EXHIBIT 10.1
EXECUTION FINAL
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of August 22, 2006, by and among Omega Wire, Inc. (successor by merger
with Camden Wire Co., Inc., International Wire Rome Operations, Inc. and OWI
Corporation), a Delaware corporation ("Omega"), IWG Resources, LLC, a Nevada
limited liability company ("Resources") and Wire Technologies, Inc., an Indiana
corporation ("Wire Technologies"), IWG High Performance Conductors, Inc.
(formerly known as ▇▇▇▇▇▇ Dodge High Performance Conductors of SC & GA, Inc.), a
New York corporation ("High Performance"; together with Omega, Resources and
Wire Technologies, collectively, "Borrowers"), International Wire Group, Inc., a
Delaware corporation ("Parent", and sometimes hereinafter referred to as
"Guarantor"), the parties to the Loan Agreement (as hereinafter defined) as
lenders (each individually, a "Lender" and collectively, "Lenders") and Wachovia
Capital Finance Corporation (Central), formerly known as Congress Financial
Corporation (Central), an Illinois corporation, in its capacity as agent for
Lenders (in such capacity, "Agent").
W I T N E S S E T H:
--------------------
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into
financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders)
have made and provided, and may hereafter make and provide, loans and advances
and other financial accommodations to Borrowers as set forth in the Loan and
Security Agreement, dated October 20, 2004, by and among Agent, Lenders,
Borrowers and Guarantors, as amended by Amendment No. 1 to Loan and Security
Agreement, dated as of March 31, 2006 and by Amendment No. 2 to Loan and
Security Agreement, dated as of June 28, 2006 (as so amended and as the same may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and the other agreements, documents
and instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto (all of the foregoing, including the
Loan Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements");
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders
amend the Loan Agreement to increase the Maximum Credit from $155,000,000 to
$200,000,000, increase certain advance rates in the Borrowing Base, extend the
Renewal Date and make certain other amendments to the Loan Agreement; and
WHEREAS, by this Amendment, Agent, Lenders, Borrowers and Guarantor
desire and intend to evidence such amendments on the terms and conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements and covenants set forth herein, and for other good and valuable
consideration, the adequacy and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
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Section 1. Definitions.
1.1 Interpretation. For purposes of this Amendment, all terms used
herein shall have the respective meanings assigned thereto in the Loan
Agreement, unless otherwise defined herein.
1.2 Additional Definitions. As used herein, the following terms
shall have the meanings given to them below, and the Loan Agreement is hereby
amended to include, in addition and not in limitation, the following
definitions:
(a) "Amendment No. 3" shall mean Amendment No. 3 to Loan
and Security Agreement, dated as of August 22, 2006, by and among Borrowers,
Guarantor, Agent and Lenders, as the same now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
(b) "Amendment No. 3 Effective Date" shall mean August
22, 2006.
(c) "Appraisal Effective Date" shall mean (a) with
respect to High Performance, the Amendment No. 3 Effective Date and (b) with
respect to all Borrowers other than High Performance, the date on which Agent
shall have notified Borrowers in writing, subsequent to the Amendment No. 3
Effective Date, that Agent has received (i) in the case of such Borrowers'
Inventory, a current appraisal report with respect to such Borrowers' Inventory,
in accordance with Section 7.3, (ii) in the case of such Borrowers' Equipment, a
current appraisal report with respect to such Borrowers' Equipment, reporting
the current Net Orderly Liquidation Value thereof and prepared in accordance
with Section 7.4, and (iii) in the case of such Borrowers' Real Property (A) a
written appraisal report with respect to such Borrowers' Eligible Real Property,
reporting the current appraised fair market value thereof, prepared in
accordance with Section 7.4, and (B) environmental audits of such Borrowers'
Real Property conducted by an independent environmental engineering firm
acceptable to Agent, and in form, scope and methodology satisfactory to Agent,
the results of which shall be satisfactory to Agent, confirming that (1) such
Borrowers and the Guarantors are in compliance with all Environmental Laws and
Environmental Permits, except for any non-compliance therewith which has not
adversely affected and could not reasonably be expected to adversely affect any
such Borrower or Guarantor or its business, and (2) there is no material
potential or actual liability of such Borrowers or Guarantors for any remedial
action with respect to any non-compliance with any Environmental Laws or
Environmental Permits at any of such Real Property.
(d) "Eligible Fixed Assets" shall mean, collectively,
Eligible Equipment and Eligible Real Property.
(e) "Fixed Asset Availability" shall, prior to the
Appraisal Effective Date, have the meaning set forth in the definition of
Borrowing Base, as in effect immediately prior to the Amendment No. 3 Effective
Date, and at all times from and after the Appraisal Effective Date shall mean:
The sum of:
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(a) with respect to Eligible Real Property owned by
Borrowers as of the Appraisal Effective Date, an amount (the
"Real Property Availability") equal to the lesser of: (i)
seventy percent (70%) of the appraisal fair market value of
Borrowers' Eligible Real Property, as reflected in the
appraisal thereof delivered to Agent as of the Appraisal
Effective Date, or (ii) $20,000,000, which Real Property
Availability will amortize on a monthly basis by an amount
which shall be based upon a one hundred twenty (120) month
amortization schedule ("Real Property Amortization"),
commencing on the first day of the first month following the
Appraisal Effective Date (or if such day is less than thirty
(30) days after the Appraisal Effective Date, then on the
first day of the second month after the Appraisal Effective
Date) and on the first day of each month thereafter; and
(b) with respect to Eligible Equipment owned by
Borrowers as of the Appraisal Effective Date, an amount (the
"Equipment Availability") equal to the lesser of: (i) ninety
percent (90%) of the Net Liquidation Value of Borrowers'
Eligible Equipment, as reflected in the appraisal thereof
delivered to Agent as of the Appraisal Effective Date, or (ii)
$30,000,000, which Equipment Availability will amortize on a
monthly basis by an amount which shall be based upon an
eighty-four (84) month amortization schedule ("Equipment
Amortization", and together with the Real Property
Amortization, collectively, the "Fixed Asset Amortization"),
commencing on the first day of the first month following the
Appraisal Effective Date (or if such day is less than thirty
(30) days after the Appraisal Effective Date, then on the
first day of the second month after the Appraisal Effective
Date) and on the first day of each month thereafter.
Notwithstanding the foregoing, on each anniversary of
the Amendment No. 3 Effective Date, if (A) during the twelve
(12) month period then ended, Agent shall have received
written appraisals, in accordance with Section 7.4, with
respect to all of Borrowers' then existing Eligible Fixed
Assets, including, without limitation, any Equipment and Real
Property that was acquired by Borrowers subsequent to the
appraisal of Borrowers' Equipment or Real Property (as
applicable) most recently delivered to Agent in accordance
with Section 7.4, (B) no Default or Event of Default shall
have occurred and be then continuing, and (C) Borrowers shall
have maintained a Fixed Charge Coverage Ratio for the twelve
(12) month period most recently ended of at least 1.0:1.0,
then, at Borrowers' written request, the Fixed Asset
Availability shall be reset as of such anniversary in the same
manner that the Fixed Asset Availability was initially
calculated in accordance with subsection (a) and (b) of this
definition (such reset Fixed Asset Availability is referred to
in this definition as the "Adjusted Fixed Asset
Availability"). If the Fixed Asset Availability is reset, for
the immediately following year and unless reset in accordance
with the terms of this paragraph, thereafter the term "Fixed
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Asset Availability" shall mean such Adjusted Fixed Asset
Availability. The Adjusted Fixed Asset Availability will
amortize on a monthly basis, on the basis of the applicable
Fixed Asset Amortization, commencing on the first day of the
first full month following the applicable anniversary of the
Amendment No. 3 Effective Date and continuing on the first day
of each month thereafter, until the Fixed Asset Availability
is subsequently reset (if at all) in accordance with the terms
of this paragraph on any subsequent anniversary of the
Amendment No. 3 Effective Date.
Upon Agent's receipt of Net Cash Proceeds of Asset
Sales in respect of Eligible Fixed Assets which were included
within the Borrowing Base at the time of the occurrence of the
Asset Sale or other event that gave rise to such Net Cash
Proceeds, Fixed Asset Availability shall be reduced by the
amount of Real Property Availability or Equipment Availability
(as applicable) attributable to such Eligible Fixed Assets
which are no longer included within the Borrowing Base.
(f) "Inventory Loan Limit" shall mean $125,000,000.
1.3 Amendment to Existing Definition. The definition of "Fee
Letter" set forth in Section 1.60 of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
"1.60 "Fee Letter" shall mean the fee
letter, dated as of the Amendment No. 3 Effective
Date, by and among Borrowers, Guarantors and Agent,
as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated
or replaced."
Section 2. Increase in Maximum Credit. At Borrowers' request, Lenders have
agreed to increase the Maximum Credit from $155,000,000 to $200,000,000 and, in
order to effectuate such amendment, the Loan Agreement is hereby further amended
as follows:
2.1 The definition of "Maximum Credit" set forth in Section 1.93
of the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"1.93 "Maximum Credit" shall mean the amount of
$200,000,000."
2.2 The definition of "Commitment" set forth in Section 1.27 of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
"1.27 "Commitment" shall mean, at any time, as to
each Lender, the principal amount set forth below such
Lender's signature on the signature pages to Amendment No. 3
designated as the Commitment or on Schedule 1 to the
Assignment and Acceptance Agreement pursuant to which such
Lender became a Lender hereunder in accordance with the
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provisions of Section 13.7 hereof, as the same may be adjusted
from time to time in accordance with the terms hereof;
sometimes being collectively referred to herein as
"Commitments"."
2.3 Concurrently with the satisfaction of all conditions precedent
to this Amendment set forth in Section 15 below, Wachovia will enter into and
execute an Assignment and Acceptance with UBS Loan Finance LLC ("UBS"), pursuant
to which Wachovia shall on such date sell and assign to UBS a portion of
Wachovia's Commitment set forth below its signature on the signature pages to
this Amendment, in the amount of $25,000,000 (subject to the terms and
conditions of such Assignment and Acceptance).
Section 3. Amendment to Interest Rate. (a) The definition of "Applicable Margin"
set forth in Section 1.7 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
""Applicable Margin" shall mean, at any time, as to
the Interest Rate for Prime Rate Loans and the Interest Rate
for Eurodollar Rate Loans, the applicable percentage (on a per
annum basis) set forth below if the Monthly Average Excess
Availability for the immediately preceding month is at or
within the amounts indicated for such percentage as of the
last day of the immediately preceding month:
------------------------ ----------- --------------- ---------
WHEN MONTHLY APPLICABLE APPLICABLE
AVERAGE EXCESS PRIME EURODOLLAR RATE L/C
AVAILABILITY IS: RATE MARGIN MARGIN RATE
------------------------ ----------- --------------- ---------
Greater than $50,000,000 0.0% 1.25% 1.50%
------------------------ ----------- --------------- ---------
Greater than $25,000,000 0.0% 1.50% 1.50%
and equal to or less
than $50,000,000
------------------------ ----------- --------------- ---------
Less than $25,000,000 0.0% 1.75% 1.50%
------------------------ ----------- --------------- ---------
provided that, the Applicable Margin shall be calculated and
established each month and shall remain in effect until
adjusted thereafter (if at all) after the end of the next
month."
(b) The definition of "Interest Rate" set forth in Section
1.83 of the Loan Agreement is hereby amended by (i) deleting the semi-colon at
the end of Section 1.83(b) and substituting a period therefor, and (ii) deleting
Section 1.83(c) in its entirety."
Section 4. Increase in Certain Advance Rates. At Borrowers' request, Lenders
have agreed to increase certain of the advance rates set forth in the definition
of Borrowing Base, which increases shall become effective as of the Appraisal
Effective Date. Accordingly, effective as of the Appraisal Effective Date, the
definition of Borrowing Base set forth in Section 1.15 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"1.15 "Borrowing Base" shall mean:
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(a) the lesser of:
(i) the amount equal to:
(A) 85% multiplied by the
Net Amount of Eligible Accounts of
the Borrowers; plus
(B) the lesser of (1) the
Inventory Loan Limit or (2) the sum
of:
(x)(1) 80%
multiplied by the Value of
Eligible Inventory
consisting of finished
goods and consigned
finished goods owned by
Borrowers or (2) up to 90%
of the Net Recovery
Percentage of such category
of Eligible Inventory
multiplied by the Value
thereof; plus
(y) the lesser of
(1) 80% multiplied by the
Value of Eligible Inventory
consisting of raw materials
owned by Borrowers or (2)
up to 90% of the Net
Recovery Percentage of such
category of Eligible
Inventory multiplied by the
Value thereof; plus
(z) the lesser of
(1) 80% multiplied by the
Value of Eligible Inventory
consisting of
work-in-process Inventory
of the Borrowers or (2) up
to 90% of the Net Recovery
Percentage of such category
of Eligible Inventory
multiplied by the Value
thereof; plus
(C) the Fixed Asset
Availability; or
(ii) the Revolving Loan Limit,
minus
(b) Reserves.
For purposes only of applying the Inventory Loan
Limit, Agent may treat the then undrawn amounts of outstanding
Letter of Credit Accommodations for the purpose of purchasing
Eligible Inventory as Revolving Loans to the extent Agent is
in effect basing the issuance of the Letter of Credit
Accommodations on the Value of the Eligible Inventory being
purchased with such Letter of Credit Accommodations. In
determining the actual amounts of such Letter of Credit
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Accommodations to be so treated for purposes of the sublimit,
the outstanding Revolving Loans and Reserves shall be
attributed first to any components of the lending formulas set
forth above that are not subject to such sublimit, before
being attributed to the components of the lending formulas
subject to such sublimit. The amounts of Eligible Inventory of
any Borrower shall, at Agent's option, be determined based on
the lesser of the amount of Inventory set forth in the general
ledger of such Borrower or the perpetual inventory record
maintained by such Borrower."
Section 5. Use of Proceeds. Section 6.6 of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.6 Use of Proceeds. Borrowers shall use
the initial proceeds of the Loans provided on or
about the Amendment No. 3 Effective Date by Agent and
Lenders to Borrowers hereunder only as follows: (a)
to fund payments required in order for Borrowers to
pay and satisfy in full all outstanding Term Loan
Debt, and (b) for costs, expenses and fees in
connection with the preparation, negotiation,
execution and delivery of Amendment No. 3 and the
other Financing Agreements executed, and to be
executed, in connection with Amendment No. 3. All
other Loans made or Letter of Credit Accommodations
provided to or for the benefit of any Borrower
pursuant to the provisions hereof shall be used by
such Borrower only for general operating, working
capital and other proper corporate purposes of such
Borrower not otherwise prohibited by the terms
hereof. In addition to, and not in limitation of,
Borrowers' use of Loan proceeds permitted hereunder,
Borrowers shall have the right to use proceeds of the
Revolving Loans, in an aggregate amount not to exceed
$50,000,000 from and after the Amendment No. 3
Effective Date, to consummate one or more Permitted
Acquisitions. None of the proceeds of Loans will be
used, directly or indirectly, for the purpose of
purchasing or carrying any margin security or for the
purposes of reducing or retiring any indebtedness
which was originally incurred to purchase or carry
any margin security or for any other purpose which
would cause any of the Loans to be considered a
"purpose credit" within the meaning of Regulation U
of the Board of Governors of the Federal Reserve
System, as amended.
Section 6. Permitted New Notes Prepayments. Section 9.9(f)(i)(B) of the Loan
Agreement is hereby amended and restated in its entirety to read as follows:
"(B) with respect to the New Notes, (1) so
long as no Event of Default exists and is continuing,
make regularly scheduled payments of interest in
respect of such Indebtedness in accordance with the
terms of the New Notes Indenture, as in effect on the
date hereof, or as otherwise amended as permitted
hereunder, and (2) make prepayments in respect of the
New Notes, so long as (i) no Default or Event of
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Default has occurred and is continuing at the time of
any such payment or after giving effect thereto, (ii)
the Average Thirty Day Excess Availability, both as
of the date of any such payment and after giving
effect thereto, is not less than $40,000,000, (iii)
Borrowers have a Fixed Charge Coverage Ratio for the
twelve (12) month period then ended in excess of
1.1:1.0 (it being understood that, for the purposes
hereof, the Fixed Charge Coverage Ratio shall be
calculated without regard to, and Fixed Charges shall
not include, either the payment in full of the Term
Loan Debt on or about the Amendment No. 3 Effective
Date or the prepayments with respect to the New Notes
contemplated by this clause (2)) and (iv) the
aggregate amount of such prepayments shall not exceed
$20,000,000 in principal amount of New Notes in any
of Borrowers' fiscal years,"
Section 7. Permitted Acquisitions. Section 9.10(n)(iv) of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"(iv) subject to the limitation in clause
(ii) immediately above, Parent and any of its
Subsidiaries may utilize up to $35,000,000 of the Net
Cash Proceeds of any Debt Issuance, any and all
proceeds of any Equity Issuance and up to $50,000,000
of other cash and/or Revolving Loans, to consummate
such proposed Permitted Acquisition; provided that,
if Borrowers' propose to utilize any portion of the
Revolving Loans to consummate a Permitted
Acquisition, then (A) for the thirty (30) day period
immediately preceding such transaction and after
giving effect thereto, Borrowers shall have Average
Thirty Day Excess Availability of not less than
$40,000,000 and (B) Agent shall have received
financial statements for the Target for the twelve
(12) months then ended, in form and substance
satisfactory to Agent, which evidence that the
Target's cash flow (calculated in substantially the
same way as EBITDA less the Target's capital
expenditures) for such twelve (12) month period has
been positive; and"
Section 8. Fixed Charge Coverage Ratio. Section 9.17 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"9.17 Fixed Charge Coverage Ratio. If at any
time (a) Borrowers' average Excess Availability for
the immediately preceding fiscal month was less than
$30,000,000 or (b) any Default or Event of Default
shall have occurred and be continuing (the occurrence
of either of the foregoing being herein referred to
as a "Covenant Compliance Trigger"), then, commencing
with the first fiscal month immediately preceding the
Covenant Compliance Trigger in which Agent has
received the monthly financial statements required to
be delivered under Section 9.6(a)(i) hereof, and for
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each fiscal month thereafter until average Excess
Availability for the immediately preceding fiscal
month is more than $30,000,000 and no Default or
Event of Default exists, Parent and its Subsidiaries
shall maintain a Fixed Charge Coverage Ratio of not
less than 1.0:1.0. The Fixed Charge Coverage Ratio
shall be calculated monthly. For the purposes hereof,
the Fixed Charge Coverage Ratio shall be calculated
without regard to, and Fixed Charges shall not
include, either the payment in full of the Term Loan
Debt on or about the Amendment No. 3 Effective Date
or any prepayments with respect to the New Notes made
in accordance with Section 9.9(f)(i)(B)."
Section 9. Field Examinations. Section 9.21(f) of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(f) all reasonable out-of-pocket expenses
and costs heretofore and from time to time hereafter
incurred by Agent during the course of periodic field
examinations of the Collateral and such Borrower's or
Guarantor's operations, plus a per diem charge at
Agent's then standard rate for Agent's examiners in
the field and office (which rate as of the date
hereof is $1,000 per person per day), provided that,
(i) so long as no Default or Event of Default has
occurred and is continuing, Agent will perform such
field examinations no more than twice in each twelve
(12) month period following the Amendment No. 3
Effective Date, and (ii) if Borrowers have maintained
Excess Availability in excess of $30,000,000 at all
times during the month in which Agent proposes to
conduct a second annual field examination for any
twelve (12) month period, then Agent shall not
perform such second field examination unless
Borrowers thereafter fail to maintain Excess
Availability of at least $30,000,000 at any time
during the remainder of such twelve (12) month
period."
Section 10. Other Agent Designations. Section 12 of the Loan Agreement is hereby
amended by adding thereto a new Section 12.14 as follows:
"12.14 Other Agent Designations. Agent may
at any time and from time to time determine that a
Lender may, in addition, be a "Co-Agent",
"Syndication Agent", "Documentation Agent" or similar
designation hereunder and enter into an agreement
with such Lender to have it so identified for
purposes of this Agreement. Any such designation
shall be effective upon written notice by Agent to
Administrative Borrower of any such designation. Any
Lender that is so designated as a Co-Agent,
Syndication Agent, Documentation Agent or such
similar designation by Agent shall have no right,
power, obligation, liability, responsibility or duty
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under this Agreement or any of the other Financing
Agreements other than those applicable to all Lenders
as such. Without limiting the foregoing, the Lenders
so identified shall not have or be deemed to have any
fiduciary relationship with any Lender and no Lender
shall be deemed to have relied, nor shall any Lender
rely, on a Lender so identified as a Co-Agent,
Syndication Agent, Documentation Agent or such
similar designation in deciding to enter into this
Agreement or in taking or not taking action
hereunder."
Section 11. Term Extension. The first sentence of Section 13.1(a) is hereby
amended and restated in its entirety to read as follows:
"(a) This Agreement and the other Financing
Agreements shall become effective as of the date set forth on
the first page hereof and shall continue in full force and
effect for a term ending on the date five (5) years from the
Amendment No. 3 Effective Date (the "Renewal Date"), and from
year to year thereafter, unless sooner terminated pursuant to
the terms hereof."
Section 12. Early Termination Fee. Section 13.1(c) of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
"(c) If for any reason this Agreement is terminated
prior to the Renewal Date, in view of the impracticality and
extreme difficulty of ascertaining actual damages and by
mutual agreement of the parties as to a reasonable calculation
of Agent's and each Lender's lost profits as a result thereof,
Borrowers agree to pay to Agent, for the benefit of Lenders,
upon the effective date of such termination, an early
termination fee in the amount equal to
Amount Period
------ ------
(i) 0.75% of Maximum Credit From the Amendment No. 3
Effective Date to and including
the first anniversary of the
Amendment No. 3 Effective Date
(ii) 0.25% of Maximum Credit From and after the first
anniversary of the Amendment
No. 3 Effective Date to and
including the second
anniversary of the Amendment
No. 3 Effective Date
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Amount Period
------ ------
(iii) 0% of Maximum Credit From and after the second
anniversary of the Amendment
No. 3 Effective Date to and
including any time prior to the
end of the then current term.
Such early termination fee shall be presumed to be the amount
of damages sustained by Agent and Lenders as a result of such
early termination and Borrowers and Guarantors agree that it
is reasonable under the circumstances currently existing. In
addition, Agent and Lenders shall be entitled to such early
termination fee upon the occurrence of any Event of Default
described in Sections 10.1(g) and 10.1(h) hereof, even if
Agent and Lenders do not exercise the right to terminate this
Agreement, but elect, at their option, to provide financing to
any Borrower or permit the use of cash collateral under the
United States Bankruptcy Code. The early termination fee
provided for in this Section 13.1(c) shall be deemed included
in the Obligations."
Section 13. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrowers and Guarantors to Agent and Lenders pursuant to the other
Financing Agreements, each Borrower and Guarantor, jointly and severally, hereby
represents, warrants and covenants with and to Agent and Lenders as follows
(which representations, warranties and covenants are continuing and shall
survive the execution and delivery hereof):
13.1 Corporate Power and Authority. This Amendment and each other
agreement or instrument to be executed and delivered by each Borrower and
Guarantor have been duly authorized, executed and delivered by all necessary
action on the part of such Borrower or Guarantor which is a party hereto and
thereto and, if necessary, its stockholders, and is in full force and effect as
of the date hereof, as the case may be, and the agreements and obligations of
each Borrower and Guarantor contained herein and therein constitute legal, valid
and binding obligations of such Borrower or Guarantor enforceable against it in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other laws
affecting creditor's rights generally and by general principles of equity.
13.2 Consents; Approvals. No material action of, or filing with, or
consent of any Governmental Authority (other than the filing of amendments with
respect to Mortgages filed of record), and no material approval or consent of
any other party, is required to authorize, or is otherwise required in
connection with, the execution, delivery and performance of this Amendment and
the transactions contemplated hereby.
13.3 No Event of Default. As of the date hereof, and after giving
effect to the provisions of this Amendment, no Default or Event of Default,
exists or has occurred and is continuing. All of the representations and
warranties set forth in the Loan Agreement and the other Financing Agreements
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are true and correct in all material respects on and as of the date hereof as if
made on the date hereof, except to the extent any such representation or
warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct in all material respects as of such
date.
13.4 Violation of Law. None of the transactions contemplated by
this Amendment violate or will violate any applicable material law or
regulation, or do or will give rise to a default or breach under any material
agreement to which any Borrower or Guarantor is a party or by which any material
property of any Borrower or Guarantor is bound.
13.5 Further Assurances. Borrowers and Guarantors shall take such
steps and execute and deliver, and cause to be executed and delivered, to Agent,
such additional UCC financing statements, and other and further agreements,
documents and instruments as Agent may require in order to more fully evidence,
perfect and protect Agent's first priority security interest in the Collateral.
13.6 Mortgage Modifications. The applicable Borrower or Guarantor
which owns the real property described on Schedule A appended hereto shall
execute and deliver to Agent, on the date hereof, in form and substance
reasonably satisfactory to Agent, a modification with respect to each Mortgage
covering such real property, duly authorized, executed and delivered by such
Borrower or Guarantor, together with an appropriate endorsement with respect to
the existing mortgagee title insurance policy insuring Agent's interest in each
such Mortgage, as a result of the recordation of each such Mortgage
modification.
Section 14. Closing Fee. In addition to (and not in limitation of) all other
fees and charges payable by Borrowers under the Loan Agreement or any of the
other Financing Agreements (including, without limitation, pursuant to the Fee
Letter (as defined in this Amendment)), Borrower hereby agrees to pay to Agent,
for the account of Lenders (to the extent and in accordance with the
arrangements between Agent and each Lender), the Closing Fee described in the
Fee Letter, which fee shall be fully earned and payable on the date hereof and
shall constitute part of the Obligations.
Section 15. Conditions Precedent. The amendments set forth herein shall be
effective upon the satisfaction of each of the following conditions precedent in
a manner reasonably satisfactory to Agent:
15.1 Agent shall have received an original or facsimile of this
Amendment, duly authorized, executed and delivered by Borrowers and Guarantors;
15.2 Agent shall have received, in form and substance reasonably
satisfactory to Agent, the Fee Letter, duly authorized, executed and delivered
by Parent and Borrowers, and Borrowers shall have paid in full to Agent the
Closing Fee described in Section 1 of the Fee Letter;
15.3 After giving effect to the amendments provided for herein, no
Default or Event of Default shall exist or have occurred;
12
15.4 The aggregate amount of the Excess Availability as of the date
hereof shall be not less than $50,000,000, as reasonably determined by Agent
after the application of proceeds of the Revolving Loans for payment of (a) all
outstanding Term Loan Debt and (b) all fees and expenses payable to Agent in
connection with this Amendment;
15.5 The accounts payable of Borrowers shall be at a level in a
condition reasonably acceptable to Agent;
15.6 Agent shall have received, in form and substance reasonably satisfactory to
Agent, all releases, terminations and such other documents as Agent may
reasonably request to evidence and effectuate the termination by the Term Loan
Lenders of their financing arrangements with Borrowers and Guarantors and the
termination and release by them of any interest in and to any assets and
properties of Borrowers and Guarantors in connection with such Term Loan
financing arrangements, duly authorized, executed and delivered (if required) by
each of them, including, but not limited to, UCC termination statements for all
UCC financing statements previously filed by or on behalf of any Term Loan
Lender, as secured party, and any Borrower or Guarantor, as debtor, and releases
of all mortgages filed by Term Loan Lenders against any of Borrowers' Real
Property.
Section 16. Provisions of General Application.
16.1 Effect of this Amendment. Except as modified pursuant hereto,
no other changes or modifications to the Financing Agreements are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
date hereof. This Amendment represents the entire agreement and understanding
concerning the subject matter hereof and thereof between the parties hereto, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written. To the
extent of a conflict between the terms of this Amendment and the other Financing
Agreements, the terms of this Amendment shall control. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
16.2 Further Assurances. The parties hereto shall execute and
deliver such additional documents and take such additional action as may be
reasonably necessary or desirable to effectuate the provisions and purposes of
this Amendment.
16.3 Governing Law. The rights and obligations hereunder of each of
the parties hereto shall be governed by and interpreted and determined in
accordance with the laws of the State of New York but excluding any principles
of conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of New York.
16.4 Binding Effect. This Amendment shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
16.5 Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
13
the parties hereto. This Amendment may be executed and delivered by telecopier
or other method of electronic transmission with the same force and effect as if
it were a manually executed and delivered counterpart.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Agent, Lenders, Borrowers and Guarantors have
caused these presents to be duly executed as of the day and year first above
written.
BORROWERS
---------
OMEGA WIRE, INC.
IWG RESOURCES, LLC
WIRE TECHNOLOGIES, INC.
IWG HIGH PERFORMANCE CONDUCTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
GUARANTOR
INTERNATIONAL WIRE GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
AGENT
-----
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), formerly
known as Congress Financial Corporation
(Central), as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Associate
------------------------------
LENDERS
-------
WACHOVIA CAPITAL FINANCE
CORPORATION (CENTRAL), formerly
known as Congress Financial Corporation
(Central)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Associate
------------------------------
Commitment: $110,000,000
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Account Executive
------------------------------
Commitment: $45,000,000
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
Commitment: $45,000,000
WACHOVIA CAPITAL MARKETS, LLC,
as Sole Lead Arranger and Sole Bookrunner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Managing Director
------------------------------