EXHIBIT 10.3
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of September 30, 2004
(the "Amendment") relating to the Credit Agreement referenced below, is by and
among XXXXXXX CABLE, INC., a Delaware corporation (the "Company"), certain
Subsidiaries of the Company identified on the signature pages hereto as a
Borrower (collectively referred to as the "Subsidiary Borrowers" or individually
referred to as a "Subsidiary Borrower") (hereinafter, the Company and the
Subsidiary Borrowers collectively referred to as the "Borrowers" or individually
referred to as a "Borrower"), each of the financial institutions identified as
Lenders on the signature pages hereto (referred to individually as a "Lender"
and, collectively, as the "Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION
("Wachovia"), as administrative agent (in such capacity, the "Administrative
Agent" or the "Agent").
WITNESSETH
WHEREAS, a $75,000,000 credit facility has been extended to the Borrowers
pursuant to the terms of that certain Credit Agreement dated as of September 28,
2004 (as amended, modified or otherwise supplemented from time to time, the
"Credit Agreement") among the parties identified in the introductory paragraph
above; and
WHEREAS, the Administrative Agent and the other parties hereto have agreed
to amend the Credit Agreement, on the terms and conditions provided herein.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
PART 1
DEFINITIONS
SUBPART 1.1 Certain Definitions. The following terms used in this
Amendment, including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Credit Agreement, as amended
hereby and as further amended, supplemented or otherwise modified from
time to time.
"Second Amendment Date" is defined in Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
PART 2
AMENDMENTS TO CREDIT AGREEMENT
SUBPART 2.1 Amendments Related to First Amendment to Credit Agreement. The
amendments to the Credit Agreement set forth in Part 2 of the First Amendment to
Credit Agreement and Waiver (the "First Amendment"), dated September 30, 2004,
among the Borrowers, the lenders party thereto and the Administrative Agent, are
hereby rescinded. Each provision of the Credit Agreement amended thereby is
hereby amended to restore the terms of the Credit Agreement in effect as of the
Closing Date.
SUBPART 2.2 Amendment to Section 2.4(b)(i). Section 2.4(b) of the Credit
Agreement is hereby amended by adding the following clause to the beginning
thereof before subpart (i):
Unless a Cash Management Event (as defined hereinafter) shall have
occurred and be continuing, the Credit Parties shall be permitted to receive
directly for their own account all payments or other remittances of Accounts of
the Credit Parties and other proceeds of the Collateral. Upon the occurrence and
during the continuance of a Cash Management Event, the Agent may, and at the
direction of the Required Lenders shall, give to the Credit Parties and the
Lockbox Banks (as defined hereinafter) a written payment direction notice (a
"Payment Direction Notice") (which notice in the case of an Event of Default
described in Section 11.1(f) shall be deemed given to the Credit Parties without
any further act by the Agent or any Lender) directing that:
SUBPART 2.3 Addition of Section 2.4(b)(vi). Section 2.4(b) of the Credit
Agreement is hereby amended by the addition of the following new subpart (vi):
(vi) At such time as (A) the Excess Availability Event giving rise
to a Cash Management Event shall no longer exist for a period of ten (10)
consecutive Business Days or (B) the Event of Default giving rise to a Cash
Management Event shall have been cured or waived, the Agent shall give to the
Lockbox Banks a notice rescinding any Payment Direction Notice delivered in
connection with such Cash Management Event, and each Borrower may and will
enforce, collect and receive all amounts owing on the Accounts and other
Collateral, for the benefit, and on behalf, of the Lenders, but at the
Borrowers' sole expense in accordance with the provisions of this Section
2.4(b).
SUBPART 2.4 Amendment to Section 7.18. Section 7.18 of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
Unless (a) Excess Availability shall fall below $10,000,000 for five
(5) or more consecutive Business Days (an "Excess Availability Event") or
(b) an Event of Default has occurred and is continuing, and the Agent or
the Required Lenders shall have, in their sole discretion, elected to
enforce, collect and receive all amounts owing on the Accounts and/or
other Collateral (each a "Cash Management Event"), each Borrower may and
will enforce, collect and receive all amounts owing on the Accounts and
other
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Collateral, for the benefit, and on behalf, of the Lenders, but at the
Borrowers' sole expense in accordance with the provisions of Section
2.4(b) hereof; such privilege shall terminate automatically, however, if
an Event of Default has occurred and is continuing under Section 11.1(a)
or (f) hereof. Upon the occurrence and during the continuance of a Cash
Management Event (i) the Agent shall be entitled to enforce, collect and
receive all amounts owing on the Accounts, from the account debtors and/or
any Buying Association, and all other amounts for the Lenders' benefit and
on the Lenders' behalf (but at the Credit Parties' expense) pursuant to
cash management arrangements satisfactory to the Agent and in accordance
with the Security Agreement, (ii) any checks, cash, notes or other
instruments or property received by any Credit Party or any of its
Subsidiaries with respect to any Accounts and/or other Collateral shall be
held by such Credit Party or such Subsidiary in trust for the benefit of
the Lenders, separate from such Credit Party's or Subsidiary's own
property and funds, and immediately turned over to the Agent in accordance
with Section 2.4(b) with proper assignments or endorsements and (iii) no
checks, drafts or other instruments received by the Agent shall constitute
final payment unless and until such instruments have actually been
collected.
PART 3
CONDITIONS TO EFFECTIVENESS
SUBPART 3.4 Second Amendment Date. This Amendment shall be and become
effective as of the date hereof (the "Second Amendment Date") when all of the
conditions set forth in this Part 3 shall have been satisfied, and thereafter
this Amendment shall be known, and may be referred to, as the "Second
Amendment".
SUBPART 3.5 Execution of Counterparts of Amendment. The Administrative
Agent shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Administrative Agent) of this
Amendment, which collectively shall have been duly executed on behalf of each of
the parties hereto.
SUBPART 3.6 Other. The Administrative Agent shall have received such other
documents, agreements or information which may be reasonably requested by the
Administrative Agent relating to the existence of the Credit Parties, the
corporate authority for and the validity of this Amendment and the transactions
contemplated hereby, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent in its sole good faith
discretion.
PART 4
MISCELLANEOUS
SUBPART 4.1 Representations and Warranties. Each of the Borrowers hereby
represents and warrants that (i) the representations and warranties contained in
Article VI of the Amended Credit Agreement are true and correct on and as of the
date hereof as though made on and as of the date hereof (except for those
representations and warranties which by their terms relate solely to an earlier
date) and after giving effect to the amendments contained herein, (ii) no
Default or Event of Default exists under the Credit Agreement or the Amended
Credit
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Agreement on and as of the date hereof and after giving effect to the amendments
contained herein, (iii) it has the corporate power and authority to execute and
deliver this Amendment and each of the documents executed and delivered in
connection herewith and to perform its obligations hereunder and has taken all
necessary corporate action to authorize the execution, delivery and performance
by it of this Amendment and each of the documents executed and delivered in
connection herewith and (iv) it has duly executed and delivered this Amendment
and each of the documents executed and delivered in connection herewith, and
this Amendment and each of the documents executed and delivered in connection
herewith constitutes its legal, valid and binding obligation enforceable in
accordance with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the rights of creditors
generally or by general principles of equity.
SUBPART 4.2 Cross-References. References in this Amendment to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.3 Instrument Pursuant to Credit Agreement. This Amendment is a
Credit Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Amended Credit Agreement.
SUBPART 4.4 References in Other Credit Documents. At such time as this
Amendment shall become effective pursuant to the terms of Subpart 3.1, all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Amended Credit Agreement.
SUBPART 4.5 Counterparts/Telecopy. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. Delivery of executed counterparts of the Amendment by telecopy shall
be effective as an original and shall constitute a representation that an
original shall be delivered.
SUBPART 4.6 Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW.
SUBPART 4.7 Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
SUBPART 4.8 Continuing Agreements. Except as specifically modified hereby,
all of the terms and provisions of the Credit Agreement and the other Credit
Documents (and Exhibits and Schedules thereto) shall remain in full force and
effect, without modification or limitation, and this Amendment shall not affect,
modify or diminish the obligations of the Credit Parties which have accrued
prior to the effectiveness of the provisions hereof. This Amendment shall not
operate as a consent to any other action or inaction by any Credit Party, or as
a waiver or
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amendment of any right, power, or remedy of any Lender or the Administrative
Agent under the Credit Documents nor constitute a consent to any such action or
inaction, or a waiver or amendment of any provision contained in any Credit
Document except as specifically provided herein.
SUBPART 4.9 Payment of Fees and Expenses. Each of the Borrowers agrees,
jointly and severally, to pay all costs and expenses of the Administrative Agent
in connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and expenses of Xxxxx & Xxx
Xxxxx, PLLC.
SUBPART 4.10 Approval by Lenders. Each Lender, by delivering its signature
page to this Amendment on the Second Amendment Date, shall be deemed to have
acknowledged receipt of, and consented to and approved, the Amendment, the
Amended Credit Agreement, each other Credit Document and each other document
required to be approved by any Agent, the Required Lenders or the Lenders, as
applicable, on the Second Amendment Date.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWERS: XXXXXXX CABLE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
OSWEGO WIRE INCORPORATED.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
CCI ENTERPRISES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
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AGENT AND LENDERS WACHOVIA BANK,
NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
SECOND AMENDMENT
NATIONAL CITY BUSINESS CREDIT, INC.,
as Syndication Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
SECOND AMENDMENT
ING CAPITAL LLC,
as Syndication Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Managing Director
SECOND AMENDMENT
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SECOND AMENDMENT
ASSOCIATED BANK,
NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SECOND AMENDMENT
CONSENT OF GUARANTORS
Each of the undersigned (collectively the "Guarantors" and each a
"Guarantor"), does hereby acknowledge receipt of a copy of the foregoing
Amendment, dated as of the same date hereof, and, in connection therewith,
hereby consents to the execution, delivery and performance thereof and agrees
that nothing contained therein nor in any document, instrument or other
agreement required or contemplated thereby, shall alter, discharge, release,
cancel or impair the duties and obligations of such Guarantor under the Guaranty
Agreement and that the Guaranty Agreement shall continue to remain in full force
and effect, enforceable against such Guarantor in accordance with its terms,
without any right of offset, deduction, defense or counterclaim in favor of such
Guarantor against the Administrative Agent or the Lenders.
IN WITNESS WHEREOF, each of the Guarantors has executed this Consent under
seal as of March __, 2005.
GUARANTORS: BARON WIRE & CABLE CORP.,
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
THE DEKALB WORKS COMPANY,
an Illinois corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
CCI INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
LAKESIDE DRIVE ASSOCIATES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: EVP/CFO
SECOND AMENDMENT
