Three Fiscal Months Ended

EX-10.70 2 l15426aexv10w70.htm EX-10.70 EX-10.70

Exhibit 10.70

AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) is entered into as of June 13, 2005 by and among GENERAL CABLE INDUSTRIES, INC., a Delaware corporation (the “Borrower”), the Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I of the Credit Agreement referenced below), the Lenders signatory hereto, UBS AG, STAMFORD BRANCH, as administrative agent (the “Administrative Agent”) for the Lenders and MERRILL LYNCH CAPITAL, a division of Merrill Lynch Business Financial Services Inc., as collateral agent (the “Collateral Agent”; and together with the Administrative Agent, the “Agents”) for the Secured Parties and Issuing Bank.

RECITALS

WHEREAS, the Borrower, the Guarantors, the Administrative Agent, the Collateral Agent and Lenders entered into that certain Amended and Restated Credit Agreement dated as of October 22, 2004 (as amended, supplemented, restated or otherwise modified from time to time, the “Credit Agreement”), pursuant to which Lenders have agreed to make certain loans and other financial accommodations to Borrower; and

WHEREAS, Borrower has requested that Agents and the Lenders to amend certain provisions of the Credit Agreement, all upon the terms and subject to the conditions as herein set forth.

NOW THEREFORE, in consideration of the foregoing recitals, mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agents, the Lenders and the Borrower agree as follows:

1 Amendments. Subject to the satisfaction of each of the conditions to effectiveness set forth in Section 3 of this Agreement, each of the parties hereto hereby agree as follows:

(a) The following defined terms are added to Article I of the Credit Agreement in their proper alphabetical order:

“Ozark Account(s)” shall mean those certain Account(s) with Ozark Auto Purchasing LLC as the Account Debtor owing to Borrower, any other Borrowing Base Guarantor, or any Subsidiary thereof.

“First Amendment Effective Date” shall mean June 13, 2005.

(b) The defined term “Lender Addendum” is hereby amended and restated in its entirety to read as follows:

“Lender Addendum” shall mean with respect to any Lender on the Original Closing Date, the Closing Date or the First Amendment Effective Date, as the case may be, a lender addendum in the form of Exhibit A-4¸ executed and

delivered by such Lender on the Original Closing Date, the Closing Date or the First Amendment Effective Date, as applicable, as provided in Section 11.14.

(c) The last sentence of the defined term “Revolving Commitment” is hereby amended and restated in its entirety to read as follows:

“The aggregate amount of the Lenders’ Revolving Commitments on the First Amendment Effective Date is $275.0 million.”

(d) Section 2.19(a)(xv)(b) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“(b) any Account which is due according to its original terms of sale more than 90 days after its original invoice date, except as may be approved in advance and in writing by Collateral Agent in its discretion, with such limitations as the Collateral Agent may deem appropriate; it being understood and agreed that (I) as of the Closing Date, an AutoZone Account, a Robert Bosch Account, a Ozark Account or an Account of Graybar Electric Company, Inc. or State Electric Supply Co., Inc. which is due according to its original terms of sale more than 90 days after its original invoice date shall not be deemed in default by reason of this clause (b) or by reason of clause (a) above, as long as such Account is not more than 30 days past due according to its original terms of sale and does not remain unpaid for more than 150 days after its original invoice date; (II) to the extent AutoZone, Inc., Robert Bosch Corporation, or Ozark Auto Purchasing LLC is an Investment Grade Account Debtor, an AutoZone Account, Robert Bosch Account, or Ozark Account which is due according to its original terms of sale more than 90 days after its original invoice date shall not be deemed in default by reason of this clause (b) or by reason of clause (a) above, as long as such Account is not more than 30 days past due according to its original terms of sale and does not remain unpaid for more than 180 days after its original invoice date, and (III) (A) if the aggregate Available Amounts of all AutoZone Accounts that are Eligible Accounts shall at any time exceed 25% of the aggregate Available Amounts of all Eligible Accounts which are included in the Borrowing Base, then the Collateral Agent may establish a Reserve in the exercise of its reasonable credit judgment in an amount equal to the excess of the aggregate Available Amounts of such AutoZone Accounts over 25% of the aggregate Available Amounts of all Eligible Accounts, (B) if the aggregate Available Amounts of all Robert Bosch Accounts that are Eligible Accounts shall at any time exceed 7% of the aggregate Available Amounts of all Eligible Accounts which are included in the Borrowing Base, then the Collateral Agent may establish a Reserve in the exercise of its reasonable credit judgment in an amount equal to the excess of the aggregate Available Amounts of such Robert Bosch Accounts over 7% of the aggregate Available Amounts of all Eligible Accounts, and (C) if the aggregate Available Amounts of all Ozark Accounts that are Eligible Accounts shall at any time exceed 3% of the aggregate Available Amounts of all Eligible Accounts which are included in the Borrowing Base, then the Collateral Agent may establish a Reserve in the exercise of its reasonable credit judgment in an amount

equal to the excess of the aggregate Available Amounts of such Ozark Accounts over 3% of the aggregate Available Amounts of all Eligible Accounts;”

(e) Section 5.16 of the Credit Agreement is hereby amended and restated to read in its entirety as follows:

“SECTION 5.16 Distributions by GCC Spain. On or before June 30, 2006: (a) each of the Loan Parties shall, jointly and severally, cause GCC Spain to make a cash dividend or cash return of equity capital to Holdings in respect of the Equity Interest held by Holdings in GCC Spain and/or to redeem, retire, purchase or otherwise acquire for a consideration, in each case in cash, any such Equity Interest outstanding, in an aggregate amount of not less than $10,000,000, (b) immediately upon receipt of the proceeds of the distributions described in clause (a) above, Holdings shall distribute such proceeds in cash and in an aggregate amount of not less than $10,000,000, whether directly or through sequential downstream of such distributions, to Borrower, (c) immediately upon receipt of the proceeds of the distributions described in clause (b) above, Borrower shall use such proceeds to prepay the Borrowings in an aggregate amount of not less than $10,000,000 and (d) the Administrative Agent and the Collateral Agent shall have received an Officers’ Certificate from Borrower certifying that the Loan Parties have complied with the terms and provisions of this Section 5.16.”

(f) Clauses (iii) and (iv) of Section 6.01(l) of the Credit Agreement is hereby amended and restated in their entirety to read as follows:

“(iii) [Intentionally Omitted];

(iv) of Holdings in respect of Indebtedness for borrowed money of Joint Ventures as long as such Contingent Obligations do not exceed, together with all Investments made in such Joint Ventures under Section 6.04(n), the Dollar Equivalent of $25.0 million in the aggregate at any time; or”

(g) Section 6.04(n) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(n) additional Investments after the Original Closing Date in any Joint Venture as long as the aggregate outstanding amount of additional Investments in all Joint Ventures does not exceed with respect to all Joint Ventures, together with all Contingent Obligations issued in respect of such Joint Ventures under Section 6.01(l)(iv) the Dollar Equivalent of $25.0 million in the aggregate; and”

(h) Section 6.04(o) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(o) (i) Loan Parties may capitalize or forgive any Indebtedness owed to it by other Loan Parties (except that Borrower shall not forgive intercompany loans made to any other Loan Party) and (ii) Holdings may capitalize the GCC

Spain Refinancing Intercompany Debt in an amount not to exceed 10.0 million Euros as long as no Event of Default has occurred and is continuing.”

(i) Section 11.14 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“11.14 Lender Addendum. Each Lender a party to the Prior Credit Agreement on the Original Closing Date has delivered to the Administrative Agent a Lender Addendum duly executed by such Lender, the Borrower and the Administrative Agent. In addition, each Lender to become a party to this Agreement on the Closing Date shall do so by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender, the Borrower and the Administrative Agent. In addition, each Lender that is a party to that certain Amendment No. 1 to the Amended and Restated Credit Agreement, dated as of the First Amendment Effective Date, among such Lenders, the Administrative Agent, the Collateral Agent, the Borrower and the other Loan Parties, shall deliver to the Administrative Agent on or prior to the First Amendment Effective Date a Lender Addendum duly executed by such Lender, the Borrower and the Administrative Agent.”

(j) Schedule 1.01(d), Schedule 1.01(e) and Schedule 3.05(b) to the Credit Agreement are hereby amended and restated in their entirety to read as Schedule 1.01(d), Schedule 1.01(e) and Schedule 3.05(b) respectively to this Agreement.

2 Amendment to Lender Addendum. Each of the Lender Addenda among the Administrative Agent, the Borrower and the Lenders signatory to this Agreement (other than UBS Loan Finance LLC and Merrill) is hereby amended by increasing such Lender’s Commitment by an amount equal to such Lender’s Pro Rata Percentage (as such Pro Rata Percentage is in existence prior to the date hereof and without taking account of this Agreement) of $35,000,000, which represents the aggregate amount of the increase in Commitments on the date hereof (the “Increased Commitment Amount”), the Lender Addendum among the Administrative Agent, the Borrower and UBS Loan Finance LLC is hereby amended by increasing UBS Loan Finance LLC’s Commitment in an amount equal to ###-###-####% of the Increased Commitment Amount, and the Lender Addendum among the Administrative Agent, the Borrower and Merrill is hereby amended by increasing Merrill’s Commitment by ###-###-####% of the Increased Commitment Amount.

3 Conditions to Effectiveness. The parties hereto hereby agree that this Agreement shall be effective upon satisfaction of the following conditions precedent:

(a) This Agreement shall have been executed and delivered by the Administrative Agent, the Collateral Agent, the Required Lenders, all Lenders whose Commitment is increased upon the effectiveness of this Agreement, the Borrower and the other Loan Parties.

(b) The Administrative Agent shall have received a completed and executed Lender Addendum from each Lender whose Commitment is increased upon the effectiveness of this Agreement.

(c) There shall have been delivered to the Administrative Agent and the Collateral Agent such other documents, instruments, agreements, certificates and legal opinions as the Administrative Agent and/or the Collateral Agent shall reasonably request in connection with the transactions contemplated by this Agreement, including all those listed in the Closing Checklist attached hereto as Annex I.

(d) The Administrative Agent shall have received, for the account of Lenders whose Commitments are increased on the First Amendment Effective Date, an amendment fee in the amount of $43,750 (to be allocated by the Administrative Agent among such Lenders based on the percentage of the Increased Commitment Amount represented by the amount of increase in the Commitment of each such Lender), which fee, once paid, shall be nonrefundable and shall not be creditable against any other fees payable in connection with the Credit Agreement or the other Loan Documents.

(e) The Administrative Agent and the Collateral Agent shall have received all fees payable pursuant to that certain Fee Letter, dated as of the date hereof, by an among the Administrative Agent, the Collateral Agent and the Borrower.

(f) The representations and warranties contained herein shall be true and correct in all respects, and, after giving effect to this Agreement, no Event of Default or Default shall exist on the date hereof.

4 Representations and Warranties.

(a) The execution, delivery and performance by Borrower of this Agreement has been duly authorized by all necessary corporate action and this Agreement is a legal, valid and binding obligation of the Borrower and each of the other Loan Parties enforceable against the Borrower and each of the other Loan parties in accordance with its terms, except as the enforcement thereof may be subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law);

(b) Each of the representations and warranties contained in the Credit Agreement is 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 that such representations and warranties expressly relate to an earlier date; and

(c) Neither the execution, delivery and performance of this Agreement by the Borrower nor the consummation of the transactions contemplated hereby does or shall result in a breach of, or violate (i) any provision of the Borrower’s or any other Loan Party’s articles of incorporation or bylaws or other similar documents or instruments, (ii) any law or regulation, or any order or decree of any court or government instrumentality, applicable to the Borrower or the other Loan Parties or binding upon any of their properties, or (iii) any indenture, mortgage, deed

of trust, lease, agreement or other instrument to which the Borrower or any other Loan Party is a party or by which the Borrower or any other Loan Party or any of their property is bound, except in any such case to the extent such conflict or breach has been waived by a written waiver document, a copy of which has been delivered to the Agents on or before the date hereof.

5 Reference to and Effect upon the Credit Agreement.

(a) Except as specifically set forth above, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed, including, without limitation each Guarantor’s guarantee set forth in Article VII of the Credit Agreement.

(b) The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Agent or any Lender under the Credit Agreement or any other Loan Document, nor constitute an amendment of any provision of the Credit Agreement or any other Loan Document, except as specifically set forth herein. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement as amended hereby.

(c) The Borrower acknowledges and agrees that the execution and delivery by the Agents and the Required Lenders of this Agreement shall not be deemed (i) to create a course of dealing or otherwise obligate any Agent or any Lender to forbear, waive, consent or execute similar amendments under the same or similar circumstances in the future, or (ii) to amend, relinquish or impair any right of any Agent or any Lender to receive any indemnity or similar payment from any Person or entity as a result of any matter arising from or relating to this Agreement.

(d) The Borrower affirms and acknowledges that this Agreement constitutes a Loan Document under the Credit Agreement and any reference to the Loan Documents under the Credit Agreement contained in any notice, request, certificate or other document executed concurrently with or after the execution and delivery of this Agreement shall be deemed to include this Agreement unless the context shall otherwise specify.

6 Costs and Expenses. As provided in Section 11.03 of the Credit Agreement, Borrower agrees to reimburse Agents for all reasonable out-of-pocket expenses incurred by the Administrative Agent and the Collateral Agent in connection with the preparation, execution and delivery of this Agreement, including the fees, charges and disbursements of Latham & Watkins, LLP, counsel for the Administrative Agent.

7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.

8 Loan Document. This Agreement shall be deemed to be a Loan Document.

9 Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purposes.

10 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf the signature is executed) the same with the same force and effect as if such facsimile signature page were an original thereof, and such party shall promptly follow its facsimile signature page by mailing of a hard copy original.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.


LOAN PARTIES GENERAL CABLE INDUSTRIES, INC., as the Borrower
By:	/s/ Robert J. Siverd
	Name:	Robert J. Siverd
	Title:	Executive Vice President and General Counsel


GENERAL CABLE COMPANY, as a Loan Party, Guarantor and Borrowing Base Guarantor
By:	/s/ Robert J. Siverd
	Name:	Robert J. Siverd
	Title:	Executive Vice President and General Counsel


GENERAL CABLE CORPORATION, as a Loan Party, Borrowing Base Guarantor and Guarantor
By:	/s/ Robert J. Siverd
	Name:	Robert J. Siverd
	Title:	Executive Vice President and General Counsel


GK TECHNOLOGIES, INCORPORATED, as a Loan Party, Borrowing Base Guarantor and Guarantor
By:	/s/ Robert J. Siverd
	Name:	Robert J. Siverd
	Title:	Executive Vice President and General Counsel