First Amendment to Waiver to Credit Agreement

EX-10.2 22 c94405exv10w2.txt FIRST AMENDMENT TO WAIVER TO CREDIT AGREEMENT EXHIBIT 10.2 FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER dated as of September 30, 2004 (the "Amendment") relating to the Credit Agreement referenced below, is by and among COLEMAN 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; WHEREAS, as an inducement to close the Credit Agreement, the Credit Parties provided a Post Closing Agreement dated September 28, 2004 (the "Post Closing Agreement") to the Administrative Agent, pursuant to which the Credit Parties agreed to deliver or cause to be delivered to the Administrative Agent leasehold mortgages on each leasehold property listed on Schedule 6.19 to the Credit Agreement within 60 days after the Closing Date (the "Post Closing Requirement"); WHEREAS, the Company has requested that the Administrative Agent waive the Post Closing Requirement for the leasehold property of the Credit Parties located in Oswego, New York (the "Oswego Property"); and WHEREAS, the Administrative Agent has agreed to provide such waiver, and the 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. "First Amendment Date" is defined in Subpart 4.1. 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 Amendment to Section 5.2. Section 5.2(a)(iii) of the Credit Agreement is hereby deleted in its entirety. SUBPART 2.2 Amendment to Section 6.6. Section 6.6(b) of the Credit Agreement is hereby deleted in its entirety. SUBPART 2.3 Amendment to Section 7.5. Section 7.5 of the Credit Agreement is hereby deleted in its entirety and replaced with the following: 7.5 PROCEEDINGS OR ADVERSE CHANGES. The Credit Parties will as soon as possible, and in any event within five (5) Business Days after any Credit Party learns of the following, give written notice to the Agent of any proceeding(s) being instituted or threatened to be instituted by or against any Credit Party or any of its Subsidiaries in any federal, state, local or foreign court or before any commission or other regulatory body (federal, state, local or foreign) that, if adversely determined, could reasonably be expected to have a Material Adverse Effect. Provision of such notice by the Credit Parties will not constitute a waiver or excuse of any Default or Event of Default occurring as a result of such changes or events. PART 3 WAIVER SUBPART 3.1 Notwithstanding the provisions of the Post Closing Agreement, the Administrative Agent and the Lenders hereby waive the Post Closing Requirement for the Oswego Property; provided, that upon the acquisition of a fee interest in the Oswego Property by any Credit Party, such Credit Party shall comply with the provisions of Section 7.9 of the Credit Agreement with respect to the Oswego Property. FIRST AMENDMENT 2 PART 4 CONDITIONS TO EFFECTIVENESS SUBPART 4.1 First Amendment Date. This Amendment shall be and become effective as of the date hereof (the "First Amendment Date") when all of the conditions set forth in this Part 4 shall have been satisfied, and thereafter this Amendment shall be known, and may be referred to, as the "First Amendment". SUBPART 4.2 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 4. 3 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 5 MISCELLANEOUS SUBPART 5.1 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 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 5.2 Cross-References. References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment. SUBPART 5.3 Instrument Pursuant to Credit Agreement. This Amendment is a Credit Document executed pursuant to the Credit Agreement and shall (unless otherwise FIRST AMENDMENT 3 expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Amended Credit Agreement. SUBPART 5.4 References in Other Credit Documents. At such time as this Amendment shall become effective pursuant to the terms of Subpart 4.1, all references in the Credit Documents to the "Credit Agreement" shall be deemed to refer to the Amended Credit Agreement. SUBPART 5.5 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 5.6 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 5.7 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 5.8 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 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 5.9 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 Moore & Van Allen, PLLC. SUBPART 5.10 Approval by Lenders. Each Lender, by delivering its signature page to this Amendment on the First 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 First Amendment Date. [remainder of page intentionally left blank] FIRST AMENDMENT 4 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: COLEMAN CABLE, INC., a Delaware corporation By: /s/ Richard N. Burger ----------------------------------- Name: Richard N. Burger Title: Executive VP & CFO OSWEGO WIRE INCORPORATED., a Texas corporation By: /s/ Richard N. Burger ----------------------------------- Name: Richard N. Burger Title: Executive VP & CFO CCI ENTERPRISES, INC., a Delaware corporation By: /s/ Richard N. Burger ----------------------------------- Name: Richard N. Burger Title: Executive VP & CFO FIRST AMENDMENT 5 AGENT AND LENDERS WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent and as a Lender By: /s/ Robert L. Dean --------------------------------------- Name: Robert L. Dean Title: Managing Director FIRST AMENDMENT NATIONAL CITY BUSINESS CREDIT, INC., as Syndication Agent and as a Lender By: /s/ Glenn P. Bartley --------------------------------------- Name: Glenn P. Bartley Title: Director FIRST AMENDMENT ING CAPITAL LLC, as Syndication Agent and as a Lender By: /s/ William C. Beddingfield --------------------------------------- Name: William C. Beddingfield Title: Managing Director FIRST AMENDMENT PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent and as a Lender By: /s/ Sherry Winick --------------------------------------- Name: Sherry Winick Title: Vice President FIRST AMENDMENT ASSOCIATED BANK, NATIONAL ASSOCIATION, as Documentation Agent and as a Lender By: /s/ Joseph J. Gehrke --------------------------------------- Name: Joseph J. Gehrke Title: Vice President FIRST 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 September 30, 2004. GUARANTORS: BARON WIRE & CABLE CORP., an Illinois corporation By: /s/ Richard N. Burger --------------------------------------- Name: Richard N. Burger Title: Executive VP & CFO THE DEKALB WORKS COMPANY, an Illinois corporation By: /s/ Richard N. Burger --------------------------------------- Name: Richard N. Burger Title: Executive VP & CFO CCI INTERNATIONAL, INC., a Delaware corporation By: /s/ Richard N. Burger --------------------------------------- Name: Richard N. Burger Title: Executive VP & CFO LAKESIDE DRIVE ASSOCIATES, INC., a Delaware corporation By: /s/ Richard N. Burger --------------------------------------- Name: Richard N. Burger Title: Executive VP & CFO FIRST AMENDMENT