Exhibit 10.25


 


WAIVER AND THIRD
AMENDMENT TO

LOAN AND SECURITY AGREEMENT


 


THIS WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY
AGREEMENT (this “Waiver and Amendment”), dated as of November 18, 2005, is
entered into by and among Channell Commercial Corporation, a Delaware
corporation (“Domestic Borrower”), Channell Commercial Canada Inc., an Ontario
corporation (“Canadian Borrower”), Channell Limited, a limited liability
company incorporated under the laws of England and Wales (“CLU”), Channell
Commercial Europe Limited, a limited liability company incorporated under the
laws of England and Wales (“CCEL” and, together with CLU, “UK Borrowers”, and,
together with Domestic Borrower, Canadian Borrower and CLU, “Borrowers”), Bank
of America, N.A., as assignee of Banc of America Leasing Capital, LLC,
successor-in-interest to Fleet Capital Corporation, as Administrative Agent
under the Loan Agreement referred to below (in such capacity, the “Administrative
Agent”), BABC Global Finance Inc., fka Fleet Capital Global Finance, Inc.,
as assignee of Fleet Capital Canada Corporation, as Canadian Agent under the
Loan Agreement referred to below (in such capacity, the “Canadian Agent”), Bank
of America, N.A., as successor-in-interest to Fleet National Bank, London U.K.
Branch, as UK Agent under the Loan Agreement referred to below (in such
capacity, the “UK Agent”), and the Lenders party to the Loan Agreement referred
to below, with reference to the following facts:


 


RECITALS


 


Borrowers are parties to
the Loan and Security Agreement, dated as of September 25, 2002, as
amended (collectively, the “Loan Agreement”), with the Administrative Agent,
the Canadian Agent, the UK Agent and the Lenders party thereto, pursuant to
which the Lenders have provided Borrowers with certain credit facilities.


 


Borrowers currently are
in default under Section 10.1.3 of the Loan Agreement due to their
breach of Section 8.3 of the Loan Agreement by failing to maintain
a Fixed Charge Coverage Ratio of at least 1.15 to 1.00 as of September 30,
2005 (Borrower’s actual Fixed Charge Coverage Ratio as of September 30,
2005 was 0.36 to 1.00) – such Event of Default hereinafter is referred to as
the “Existing Event of Default”.


 


The Borrowers have
requested that the Lenders waive the Existing Event of Default and modify the
minimum Fixed Charge Covenant to facilitate the Borrower’s future compliance
with the Loan Agreement.


 


The Lenders are willing
to grant such accommodations to Borrowers as set for below.


 


NOW, THEREFORE, the parties hereby agree as follows:


 





















 


1.             Defined Terms. 
Any and all initially-capitalized terms used in this Waiver and Amendment
(including, without limitation, in the recitals hereto) without definition
shall have the respective meanings specified in the Loan Agreement.


 


2.             Waiver of Existing Event of Default.  The
Lenders hereby waive the Existing Event of Default.  Such waiver by the Lenders shall constitute a
waiver of only the Existing Event of Default and not a waiver of any future
breach of Section 8.3 or any other provision of the Loan Agreement
or any other Loan Document.


 


3.             Amendment to Minimum Aggregate
Availability Covenant.  Section 8.2.18 is
hereby amended to read in full as follows:


 


“8.2.18   Aggregate Availability.  Permit Aggregate Availability to be less than
$2,500,000 at any time.”


 


4.             Amendment to Minimum Fixed Charge
Coverage Ratio Covenant.  Exhibit 8.3 to the
Loan Agreement is hereby amended to read in full as follows:


 


“EXHIBIT 8.3

FINANCIAL COVENANTS


 


Minimum Fixed Charge
Coverage Ratio.  Borrowers shall not permit, as of the last
day of any fiscal quarter of Domestic Borrower (beginning with the fiscal
quarter ending December 31, 2005), the Fixed Charge Coverage Ratio to be
less than 0.20 to 1.00.”


 


5.             Waiver and Amendment Fee. 
In consideration of the Agreement of the Agents and the Lenders to enter
into this Waiver and Amendment, Domestic Borrower hereby agrees to pay to the
Administrative Agent on the Effective Date of this Waiver and Amendment, for
the sole account of the Domestic Lender, a one-time
fee in the amount of $10,000 (the “Waiver and Amendment Fee”), which fee shall
be deemed fully-earned and non-refundable once paid.  Domestic Borrower hereby acknowledges and
agrees that the Administrative Agent may effect payment of the Waiver and Amendment
Fee by charging the full amount thereof to the Domestic Loan Account.


 


6.             Conditions Precedent. 
The effectiveness of this Waiver and Amendment shall be subject to the
prior satisfaction of the following conditions:


 


(a)           The Administrative Agent and Banc of America
Leasing Capital, LLC, as successor-in-interest to Fleet Capital Corporation,
shall have entered into an assignment agreement in form and substance
satisfactory to the Administrative Agent;


 


(b)           The Administrative Agent shall have
received, in form and substance satisfactory to the Administrative Agent, this
Waiver and Amendment, duly executed by the Borrowers, the Canadian Agent, the
UK Agent and Majority Lenders;


 


(c)           Egerton shall have executed the consent
to this Waiver and Amendment attached hereto;


 


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(d)           The Borrowers and all other Loan Parties
shall be in compliance with all the terms and provisions of the Loan Documents
applicable to such Person or its Property and no Default or Event of Default (other
than the Existing Event of Default waived hereby) shall have occurred and be
continuing; and


 


(e)           All of the Borrowers’ representations and
warranties contained herein shall be true and correct on and as of the date of
execution hereof.


 


7.             Representations and Warranties.


 


(a)           Reaffirmation of Prior Representations
and Warranties.  Each Borrower hereby reaffirms and restates
as of the date hereof all of the representations and warranties made by such
Borrower in the Loan Agreement and the other Loan Documents, which shall be
true and correct in all material respects, except to the extent such
representations and warranties specifically relate to an earlier date.


 


(b)           No Default.  Other than
the Existing Event of Default waived hereby, no Default or Event of Default has
occurred and remains continuing under any of the Loan Documents.


 


8.             Miscellaneous.


 


(a)           Reference to Loan Agreement. 
The Loan Agreement, each of the other Loan Documents, and any and all
other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof, or pursuant to the terms of the Loan
Agreement as amended hereby, are hereby amended so that any reference therein
to the Loan Agreement shall mean a reference to the Loan Agreement as amended
by this Waiver and Amendment.


 


(b)           Loan Agreement Remains in Effect. 
The Loan Agreement and the other Loan Documents remain in full force and
effect and the Borrowers ratify and confirm their agreements and covenants
contained therein.


 


(c)           APPLICABLE LAW. 
THIS WAIVER AND AMENDMENT SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE
PERFORMABLE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.


 


(d)           Counterparts. 
This Waiver and Amendment may be executed in multiple counterparts, each
of which when so executed shall be deemed to be an original, but all of which
when taken together shall constitute one and the same instrument.


 


[Rest of page intentionally left blank;
signature pages follow]


 


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IN WITNESS
WHEREOF, the parties have entered into this Waiver and Amendment by their
respective duly authorized officers as of the date first above written.


 


	
   

  	
  Channell
  Commercial Corporation,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William H. Channell, Jr.

  	
   

  
	
   

  	
  Name: 

  	
  William H. Channell, Jr.

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Channell
  Commercial Canada Inc.,

  
	
   

  	
  an Ontario corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William H. Channell, Jr.

  	
   

  
	
   

  	
  Name: 

  	
  William H. Channell, Jr.

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Channell
  Limited,

  
	
   

  	
  a limited liability company incorporated

  
	
   

  	
  under the laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William H. Channell, Jr.

  	
   

  
	
   

  	
  Name: 

  	
  William H. Channell, Jr.

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Channell
  Commercial Europe Limited,

  
	
   

  	
  a limited liability company incorporated

  
	
   

  	
  under the laws of England and Wales

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ William H. Channell, Jr.

  	
   

  
	
   

  	
  Name: 

  	
  William H. Channell, Jr.

  
	
   

  	
  Title: 

  	
  President and Chief Executive Officer

  



 


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  Bank of
  America, N.A.,

  
	
   

  	
  (as assignee of Banc of America

  
	
   

  	
  Leasing & Capital, LLC, successor-

  
	
   

  	
  in-interest to Fleet Capital Corporation),

  
	
   

  	
  as Administrative Agent and as sole

  
	
   

  	
  Domestic Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/Matthew R. Van Steenhuyse

  	
   

  
	
   

  	
   

  	
  Matthew R. Van Steenhuyse

  
	
   

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BABC
  GLOBAL FINANCE INC.,

  
	
   

  	
  (as assignee of Fleet Capital Global
  Finance, Inc.,

  
	
   

  	
  as assignee of Fleet Capital Canada
  Corporation),

  
	
   

  	
  as Canadian Agent and as Canadian Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Bank of
  America, N.A.

  
	
   

  	
  (successor-in-interest to Fleet National
  Bank, London U.K. Branch), as UK Agent and as UK Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


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Consent of Egerton


 


Reference is made to that certain Loan and Security
Agreement, dated as of September 25, 2002, among Channell Commercial
Corporation, a Delaware corporation, Channell Commercial Canada Inc., an Ontario
corporation, Channell Limited, a limited liability company incorporated under
the laws of England and Wales, Channell Commercial Europe Limited, a limited
liability company incorporated under the laws of England and Wales, Bank of
America, N.A., as assignee of Banc of America Leasing & Capital, LLC,
successor-in-interest to Fleet Capital Corporation, as Administrative Agent, BABC Global Finance Inc., fka Fleet Capital Global Finance, Inc.,
as assignee of Fleet Capital Canada Corporation, a Canadian corporation, as
Canadian Agent, Bank of America, N.A., successor-in-interest to Fleet National
Bank, London U.K. Branch, which traded as FleetBoston Financial, as UK Agent,
and the Lenders party thereto.


 


The undersigned hereby consents to the execution, delivery
and performance of the foregoing Waiver and Third Amendment to Loan and
Security Agreement.


 


 


Dated:  November 18,
2005


 


 


A.C. Egerton (Holdings) Limited,

a company incorporated under the 

laws of England and Wales


 


 


	
  By: 

  	
  /s/ William H. Channell, Jr.

  	
   

  
	
  Name: 

  	
  William H. Channell, Jr.

  
	
  Title:

  	
  President and Chief Executive Officer

  



 


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