**Exhibit 10.43**

 

FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITYAGREEMENT

 

THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITYAGREEMENT (this “Amendment”) dated as of November 27, 2007 (the “EffectiveDate”), is entered into by and amongChannell Commercial Corporation, a Delaware corporation (“DomesticBorrower”), Channell Commercial Canada Inc., an Ontario corporation (“Canadian Borrower” and, together with Domestic Borrower, “Borrowers”),Bank of America, N.A., as AdministrativeAgent (in such capacity, “Administrative Agent”), Bank of America, N.A., Canada Branch, as Canadian agent (in such capacity,“Canadian Agent”), and the Lenders party to the Loan Agreement referred to below, with reference to the followingfacts:

 

RECITALS

 

A.            Borrowers are party to the Amended and Restated Loan and Security Agreement dated as of July 30, 2007 (the “Loan Agreement”), withthe lenders party thereto from time to time (collectively, the “Lenders”),Administrative Agent, and Canadian Agent, pursuantto which the Lenders have provided certain credit facilities to the Borrowers.

 

B.            Borrowers have informed Administrative Agent that (i) on August 31,2007, Domestic Borrower formed Bushman WaterHarvesting Corporation, a Delaware corporation (“Domestic Bushman”),all of the issued and outstanding shares of capital stock of which are owned by Domestic Borrower and (ii) onAugust 30, 2007, Canadian Borrower formed Bushman Water Harvesting Inc., an Ontario corporation (“CanadianBushman”, and together with Domestic Bushman, the “Bushman Entities”), all ofthe issued and outstanding shares ofcapital stock of which are owned by Canadian Borrower.

 

C.            The Lenders arewilling to consent to the formation of the BushmanEntities and to make certain other amendments to the LoanAgreement, subject to the conditions hereof.

 

NOW, THEREFORE, in consideration of the foregoing, andfor other good and valuable consideration, the adequacy of which ishereby acknowledged, each of the undersigned herebyagrees as follows:

 

1.            DefinedTerms. Any and all initially capitalized terms used in this Amendment without definition shall have the respective meanings specified in theLoan Agreement.

 

2.            Amendment toCorrect Cross-Reference. Section 1.3.2 of the Loan Agreement ishereby amended so that the reference to “Section 3.1.1(d)”contained in the first paragraph of suchsection shall be amended to read “Section 3.1.1(c)”.

 

3.            Amendments toSchedules. Schedules 6.1.1, 7.1.1, 7.1.4, 7.1.4A, 7.1.5,7.1.14, 7.1.22, 8.2.3(b), and 8.2.4 of theLoan Agreement are hereby amended and replaced in their entirety by Annexes 1,2, 3, 4, 5, 6, 7, 8, and 9, respectively, each of which is attached hereto.

 

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4.            Consent toBushman Entities. Notwithstanding the provisions of Sections 8.2.13and 8.2.14 of the Loan Agreement to the contrary, the Lenders hereby consent,with retroactive effect, to the creation ofthe Bushman Entities.

 

5.            Covenant Regarding Bushman Entities Documentation. In consideration of the foregoingconsent, Borrowers hereby agree to deliver each of the following documentswithin thirty (30) days of the date hereof, each in formand substance satisfactory to Administrative Agent and Canadian Agent:

 

5.1.1  an original Guaranty duly executed by DomesticBushman, guaranteeing the obligations of Domestic Borrowerunder the Loan Documents (the “DomesticBushman Guaranty (Domestic Obligations)”);

 

5.1.2  an original Guaranty duly executed by DomesticBushman, guaranteeing the obligations of Canadian Borrowerunder the Loan Documents (the “DomesticBushman Guaranty (Canadian Obligations)”);

 

5.1.3  an original Guaranty duly executed by CanadianBushman, guaranteeing the obligations of Canadian Borrowerunder the Loan Documents (the “CanadianBushman Guaranty”);

 

5.1.4  an original Security Agreement duly executedby Domestic Bushman, securing itsobligations under the Domestic Bushman Guaranty (Domestic Obligations) and the Domestic Bushman Guaranty (Canadian Obligations);

 

5.1.5  an original Security Agreement duly executed by Canadian Bushman, securing its obligations under the Canadian Bushman Guaranty;

 

5.1.6  an original Pledge Agreement duly executed byCanadian Borrower, pledging its equity interests inCanadian Bushman to secure its obligations underthe Loan Documents;

 

5.1.7  stock certificates representing the equity interests in the Bushman Entities,together with executed undated stock powers (or the equivalent) relatingthereto, endorsed in blank;

 

5.1.8  authorization to file such PPSA or UCC-1 financing statements as Administrative Agent or Canadian Agent may request;

 

5.1.9  with respect to the Bushman Entities, suchdocumentation as Administrative Agent mayreasonably require to establish the due organization, valid existence and good standing of such entities, their qualification toengage in business in each material jurisdiction inwhich they are engaged in business or required to be so qualified, their authority to execute, deliver and perform the LoanDocuments to which they are a party, the identity,authority and capacity of each responsible officer thereof authorized to act ontheir behalf, including certified copies of articles or certificates of incorporation and amendments thereto, bylaws and amendments thereto,certificates of good standing and/orqualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates,certificates of responsible officers, and the like;

 

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5.1.10  the favorable written legal opinion(s) of counsel to Borrowers and theBushman Entities, opining as to such matters as Administrative Agent andCanadian Agent may reasonably request, together with copies of factual certificates and legal opinions, if any, delivered to such counsel in connection with suchopinion upon which such counsel has relied;

 

5.1.11  withrespect to the Bushman Entities, evidence that the Bushman Entities have obtained the insurance policies andthe loss payable and additional insured endorsements relating thereto as required by the Loan Documents; and

 

5.1.12  such additional agreements, certificates,reports, approvals, instruments, documents,consents and/or reaffirmations as Administrative Agent and Canadian Agent may reasonably request.

 

6.             ConditionsPrecedent.  The effectiveness of thisAmendment shall be subject to the prior satisfaction of the followingconditions:

 

6.1.1    Documentation. Administrative Agent shall have received, each in form and substance satisfactory to Administrative Agent and CanadianAgent, the following documents:

 

(a)        an original of this Amendment, dulyexecuted by Borrowers, Administrative Agent andCanadian Agent;

 

(b)        an original of the Consent attachedhereto as Exhibit A, duly executedby each of the UK Guarantors; and

 

(c)        an original intercompany note dulyexecuted by Channell Pty Limited evidencing anydebt owed to Domestic Borrower, along with an original endorsement allonge for such note, duly executed by Domestic Borrower.

 

6.1.2    No Defaults. Borrowers and all other Loan Parties shall be in compliance with all the terms and provisions of the Loan Documentsapplicable to such Person or its Property, and no Default or Event of Defaultshall have occurred and be continuing; and

 

6.1.3    Accuracy of Representations andWarranties. All of Borrowers’ representationsand warranties contained herein shall be true and correct on and as of the dateof execution hereof.

 

7.             Representationsand Warranties.

 

7.1.1    Reaffirmation of PriorRepresentations and Warranties. Each Borrower hereby reaffirms and restates as of the date hereof all of therepresentations and warranties made by suchBorrower in the Loan Agreement and the other Loan Documents, which shall be true and correct in all material respects, except to theextent such representations and warrantiesspecifically relate to an earlier date.

 

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7.1.2    No Default. No Default or Event of Defaulthas occurred and remains continuing under any ofthe Loan Documents.

 

8.             Miscellaneous.

 

8.1.1    Reference to Loan Agreement. The Loan Agreement, each of the other Loan Documents, and any and allother agreements, documents or instruments now or hereafter executed and deliveredpursuant to the terms hereof, or pursuant to the terms of the Loan Agreement asamended hereby, are hereby amended so that any reference therein to the Loan Agreement shall mean a reference to the Loan Agreement as amended bythis Amendment.

 

8.1.2    Loan Agreement Remains inEffect. The Loan Agreement and the otherLoan Documents remain in full force and effect and the Borrowers ratify andconfirm their agreements and covenantscontained therein.

 

8.1.3    Amendment as Loan Document. This Amendment shall constitute a LoanDocument under the Loan Agreement, and, accordingly, it shall be an Event of Default underthe Loan Agreement if Borrowers fail to perform or comply with any covenant or agreementcontained herein, including without limitation, Section 5. Any provisionof any Loan Document which applies to LoanDocuments generally shall apply to this Amendment.

 

8.1.4    APPLICABLE LAW. THIS AMENDMENT SHALL BEDEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE INTHE STATE OF CALIFORNIA AND SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.

 

8.1.5    Counterparts. This Amendment may be executedin one or more counterparts, each of which whenso executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument.

 

[signature page follows]

 

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IN WITNESS WHEREOF, the parties have entered into thisAmendment by their respective duly authorizedofficers as of the date first above written.

 
|   | **Channell  Commercial Corporation,**a Delaware corporation   |
|--------|---------------------------------------------------------------|
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/  Patrick E McCready |
|   | Name:                                                         | Patrick  E McCready |
|   | Title:                                                        | CFO |
|   |                                                          |   |
|   |                                                          |   |
|   | **Channell  Commercial Canada Inc.**,  an Ontario corporation |
|   |                                                          |
|   |                                                          |
|   | By:                                                           | /s/  Michael L. Perica |
|   | Name:                                                         | Michael  L. Perica |
|   | Title:                                                        | Treasurer |
|   |                                                          |   |
|   |                                                          |   |
|   | **Bank of America, N.A.,**                                    |
|   | as Administrative Agent and as sole                           |
|   | Domestic Lender                                               |
|   |                                                          |
|   | By:                                                           | /s/  Matthew R. Van Steenhuyse |
|   |                                                          | Matthew  R. Van Steenhuyse |
|   |                                                          | Senior Vice President & Portfolio Manager |
|   |                                                          |
|   |                                                          |
|   | **Bank  of America, N.A., Canada Branch,**                    |
|   | as Canadian Agent and  sole Canadian Lender                   |
|   |                                                          |
|   | By:                                                           | /s/  Nelson Lam |
|   | Name:                                                         | Nelson  Lam |
|   | Title:                                                        | Vice  President |

 

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**EXHIBIT A**

** **

**CONSENT**

 

Each of the undersignedparties (collectively, the “UK Guarantors”) hereby (a) acknowledges receipt ofa copy of the attached First Amendment to Amended and Restated Loan andSecurity Agreement (the “Amendment”), (b) consents to Borrowers entering intothe Amendment and all of the other documents, instruments and agreements now orhereafter executed in connection therewith, and (c) agrees that nothingcontained in the Amendent, or in any other document, instrument or agreement executedin connection therewith, shall serve to diminish, alter, amend or affect in anyway the Loan Documents to which it is a party. Each UK Guarantor expressly andknowingly reaffirms its liability under the Loan Documents to which it is aparty and acknowledges that it has no known defense, offset or counterclaimagainst Lenders with respect to such Loan Documents.

 

Dated as of November 27, 2007

 
| **Channell Commercial Europe  Limited,**                                                                 |                    | **Channell Limited,**                                                                                    |
|----------------------------------------------------------------------------------------------------------|-------------------------|----------------------------------------------------------------------------------------------------------|
| a limited liability  company incorporated under the laws of England and Wales (Company number  02837910) |                    | a limited liability  company incorporated under the laws of England and Wales (Company number  00912862) |
|                                                                                                     |                    |
|                                                                                                     |                    |
| By:                                                                                                      | /s/  Patrick E McCready |                                                                                                     | By: | /s/  Patrick E McCready |
| Name:                                                                                                    | Patrick  E McCready     |                                                                                                     | Name: | Patrick  E McCready |
| Title:                                                                                                   | Director                |                                                                                                     | Title: | Director |
|                                                                                                     |                    |                                                                                                     |   |
|                                                                                                     |                    |                                                                                                     |   |
| **A.C. Egerton (Holdings)  Limited,**                                                                    |                    |                                                                                                     |   |
| a limited liability  company incorporated under the laws of England and Wales (Company number  00818919) |                    |                                                                                                     |   |
|                                                                                                     |                    |                                                                                                     |   |
|                                                                                                     |                    |                                                                                                     |   |
| By:                                                                                                      | /s/  Patrick E McCready |                                                                                                     |   |   |
| Name:                                                                                                    | Patrick  E McCready     |                                                                                                     |   |   |
| Title:                                                                                                   | Director                |                                                                                                     |   |   |
|                                                                                                          |                         |                                                                                                          |  |  |  |  |  |

 

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