WAIVER, CONSENT AND THIRD AMENDMENT
THIS WAIVER, CONSENT AND THIRD AMENDMENT (this "WAIVER") is entered into
as of May 5, 1999, between NCI Building Systems, Inc., a Delaware corporation
("BORROWER"), NationsBank, N.A., as Administrative Agent ("AGENT"), UBS, AG,
Stamford Branch, as Documentation Agent ("DOCUMENTATION AGENT"), and the
financial institutions named as Lenders therein (collectively, "LENDERS").
Capitalized Terms not defined herein have the meaning giving such terms in
the Credit Agreement described below.
RECITALS
A. Borrower, Agent, Documentation Agent, NationsBanc Xxxxxxxxxx
Securities LLC, as Syndication Agent, and Lenders executed a credit agreement
dated as of March 25, 1998 (as previously amended by the First Amendment
dated May 1,1998 and the Second Amendment dated May 5, 1998, the "CREDIT
AGREEMENT").
B. Borrower intends to issue a minimum of $125,000,00 Senior
Subordinated Notes due 2009 (the "SENIOR NOTES").
C. The Senior Notes will constitute Funded Debt, and will be Permitted
Debt under the Credit Agreement in accordance with item (7) on SCHEDULE 7.15
thereto, PROVIDED THAT (i) such debt is contractually subordinated or junior
in right of payment to the Obligation on terms satisfactory to Determining
Lenders, and (ii) the Companies comply with SECTION 3.2(c)(iii) of the
Agreement with respect to mandatory prepayments of the Facilities.
D. Attached as EXHIBIT "A" to this Waiver are extracts to Section 1.01
(Definitions) and the entire Article Eleven (Subordination) of the April 28,
1999 draft of the Indenture covering the Senior Notes ("SENIOR NOTES
INDENTURE") as delivered by Borrower to Agent, which among other things, sets
forth the subordination terms of the Senior Notes ("SUBORDINATION TERMS").
E. Among other things, SECTION 3.2(c) of the Credit Agreement requires
Borrower to prepay the Principal Debt in the amount of 100% of any Funded
Debt incurred by any Company after the date of the Credit Agreement (net of
underwriting discounts and commissions and other costs associated therewith)
together with payment of any resulting Funding Loss PLUS all accrued and
unpaid interest on the principal amount prepaid.
F. SECTION 3.2(c) of the Credit Agreement also requires that, provided
no Default or Potential Default exists, mandatory prepayments required to be
made under SECTION 3.2(c) be applied in the following order: FIRST to the
Facility C Principal Debt (with a matching reduction of the Facility C
Commitment); SECOND to installments of principal due under Facility B in the
inverse order of maturity; and THIRD to the Facility A Principal Debt (with a
matching reduction of the Facility A Commitment).
G. SECTION 9.2 of the Credit Agreement prohibits any Company from
voluntarily prepaying principal of, or interest on, any Debt, OTHER THAN the
Obligation, if a Default or Potential Default exists.
H. Borrower has requested that Lenders (i) waiver the requirement in
SECTION 3.2(c) of the Credit Agreement that the Facility C Commitment be reduced
by the amount of the mandatory prepayment of the net proceeds of the Senior
Notes (the "SENIOR NOTES PROCEEDS") and (ii) consent to the Subordination
Terms and Lenders are willing to do so if SECTION 9.2 of the Credit Agreement
is amended to prohibit a Company from repaying, repurchasing, redeeming or
defeasing Subordinated Debt without the prior written consent of Determining
Lenders.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agree as follows:
1. WAIVER AND CONSENT. Subject to the conditions set forth below,
each Lender that has executed this Waiver hereby (a) waivers any violation
of, or noncompliance with, any provision of any Loan Document caused solely
by the Facility C Commitment not being reduced by the amount of the Senior
Note Proceeds (including, without limitation, SECTION 3.2(c) of the Credit
Agreement), (b) agrees that upon application of the Senior Notes Proceeds
pursuant to this Waiver, the Facility C Commitment will be $40,000,000, which
will be split equally between UBS, AG and NationsBank, N.A. ("POST SENIOR
NOTES PROCEEDS FACILITY C AVAILABILITY"), (c) agrees not to exercise any of
its Rights available under the Loan Documents solely as a result of any such
violation or noncompliance described in clause (a) of this PARAGRAPH 1, and
(d) consents to the Subordination Terms. Except as set forth in the
immediately preceding sentence, Borrower hereby agrees that such waiver and
consent does not constitute a waiver of, or a consent to, any present or
future violation of or noncompliance with any provision of any Loan Document
or a waiver of each Lender's right to insist upon future compliance with each
term, covenant, condition, and provision of the Loan Documents.
2. THIRD AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) SECTION 1.1 of the Credit Agreement is hereby amended by
adding the following defined terms in their appropriate alphabetical order:
(i) "SENIOR NOTES means the 9 1/4% $125,000,000 Senior
Subordinated Notes of Borrower due 2009 issued pursuant to the Senior Notes
Indenture."
(ii) "SENIOR NOTES INDENTURE means, with respect to the Senior
Notes, the Indenture dated May 5, 1999 among Borrower, as issuer, the
Guarantors (as defined therein), and Xxxxxx Trust Company of New York, as
trustee."
(b) SECTION 9.2 of the Credit Agreement is hereby amended by
adding the following sentence at the end of SECTION 9.2:
"No Company may repay, repurchase, redeem or defease
Subordinated Debt without the prior written consent of
Determining Lenders; PROVIDED, HOWEVER, THAT if Borrower has
a ratio of Funded Debt to EBITDA for the 12-month period
ending on the last day of the immediately preceding month of
less than 3.50 to 1.00, then the Companies may use 50% of
the cash proceeds (net of underwriting discounts and
commissions and other costs associated therewith) received
by any Company from the issuance and sale of equity
securities (other than sales of Borrower's common stock to
employees as a result of the exercise of any options with
regard thereto)
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to repay, repurchase, redeem or defease Subordinated Debt,
including, without limitation, the Senior Notes in
accordance with the terms of the Senior Notes Indenture."
3. CONDITIONS. This Waiver shall not be effective until (a) it
has been duly executed and delivered by (i) Borrower, (ii) each Guarantor,
(iii) Agent, (iv) Documentation Agent, and (v) at least Determining Lenders,
and (b) Borrower has delivered to Agent for the benefit of Lenders a
certificate from a Responsible Officer of Borrower that (i) no Default or
Potential Default exists under the Credit Agreement, (ii) the Senior Notes
have been issued, (iii) no default or event of default exists under the
Senior Note Indenture, and (iv) contains a true and complete copy of the
Senior Notes Indenture and all material documents or instruments delivered in
connection therewith.
4. DEFAULT. Any breach of the foregoing covenants shall
constitute a "Default" under the Credit Agreement.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents
and warrants to Agent and each Lender that: (a) the execution and delivery of
this Waiver has been authorized by all requisite action on its part and will
not violate its organizational documents; (b) the representations and
warranties in each Loan Document to which it is a party are true and correct
in all material respects on and as of the date hereof as though made on and
as of the date hereof (EXCEPT to the extent that (i) such representations and
warranties speak to a specific date, or (ii) the facts on which such
representations and warranties are based have been changed by transactions
contemplated by the Credit Agreement or the Post Senior Notes Proceeds
Facility C Availability); and (c) it is in full compliance with all Loan
Documents to which it is a party (EXCEPT for noncompliance cause solely by
the Post Senior Note Proceeds Facility C Availability).
6. MISCELLANEOUS. This Waiver is a Loan Document, and,
therefore, this Waiver is subject to the applicable provisions of SECTION 14
of the Credit Agreement, all of which applicable provisions are incorporated
herein by reference the same as if set forth herein verbatim. Except as
affected by this Waiver, the Loan Documents are unchanged and continue to
full force and effect. Borrower agrees that all Loan Documents are unchanged
and continue in full force and effect. Borrower agrees that all Loan
Documents to which it is a party remain in full force and effect and continue
to evidence its legal, valid, and binding obligations enforceable in
accordance with their terms (as the same are affected by this Wavier).
Borrower hereby releases Agent and each Lender from any liability for actions
or failures to act in connection with the Loan Documents prior to the date
hereof. This Waiver shall be binding upon and inure to the benefit of each
of the undersigned and their respective successors and permitted assigns.
7. FEES AND EXPENSES. Borrower agrees to pay the reasonable fees
and expenses of counsel to Agent for services rendered in connection with the
preparation, negotiation and execution of this Waiver.
8. FORM. Each agreement, document, instrument or other writing
to be furnished Agent or Lenders under any provision of this instrument must
be in form and substance satisfactory to Agent and its counsel.
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9. COUNTERPARTS. This Waiver may be executed in more than one
counterpart, 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.
10. FINAL AGREEMENT. THE LOAN DOCUMENTS, AS AMENDED HEREBY,
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first written above.
NCI BUILDING SYSTEMS, INC., AS BORROWER
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Executive Vice President
NATIONSBANK, N.A. AS ADMINISTRATIVE AGENT
AND A LENDER
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx.
Vice President
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UBS AG, STAMFORD BRANCH,
AS DOCUMENTATION AGENT AND A LENDER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Associate Director, Loan Portfolio Support, US
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By: /s/ Xxxxxxx Saint
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Name: Xxxxxxx Saint
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Title: Associate Director, Loan Portfolio Support, US
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THE BANK OF NOVA SCOTIA, AS A LENDER
By:
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Name:
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Title:
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TYLER TRADING INC., AS A LENDER
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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UNION BANK OF CALIFORNIA, N.A., AS A LENDER
By: /s/ J. Xxxxx Xxxxxx
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Name: J. Xxxxx Xxxxxx
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Title: Vice President
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IMPERIAL BANK, AS A LENDER
By:
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Name:
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Title:
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FIRST UNION CAPITAL MARKETS, INC.,
AS A LENDER
By: /s/ C. Xxxxxxx Xxxxxx
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Name: C. Xxxxxxx Xxxxxx
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Title: Senior Vice President
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COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, AS A LENDER
By: /s/ Xxxxxxx Xxxx /s/ Xxxxx X'Xxxxx
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Name: Xxxxxxx Xxxx Xxxxx X'Xxxxx
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Title: Vice President Vice President
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COMERICA BANK, AS A LENDER
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
AS A LENDER
By:
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Name:
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Title:
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CREDITANSTALTCORPORATEFINANCE,
INC., AS A LENDER
By:
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Name:
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Title:
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By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION, AS A LENDER
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Duly Authorized Signatory
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SOCIETE GENERALE, AS A LENDER
By:
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Name:
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Title:
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WACHOVIA BANK, N.A., AS A LENDER
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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CIBC, INC., AS A LENDER
By:
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Name:
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Title:
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CREDIT AGRICOLE INDOSUEZ, AS A LENDER
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED, AS A LENDER
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, AS A LENDER
By: /s/ Takuya Honjo
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Name: Takuya Honjo
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Title: Senior Vice President
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THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, AS A LENDER
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Head of Southwest Region
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SOUTHWEST BANK OF TEXAS, N.A., AS A LENDER
By:
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Name:
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Title:
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[CONSENT OF EACH GUARANTOR FOLLOWS ON NEXT PAGE.]
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GUARANTORS' CONSENT
Each of the undersigned:
(a) consents and agrees to this Waiver and agrees that the Loan Documents to
which it is a party shall remain in full force and effect and shall
continue to be the legal, valid, and binding obligations of the undersigned
enforceable in accordance with their terms;
(b) confirms that Borrower's obligations to each Lender in connection with the
Senior Note Proceeds are part of the debt guaranteed and secured by any
guaranty or security document to which it is a party;
(c) represents and warrants to each Lender that: (a) the execution and delivery
of this Waiver have been authorized by all requisite action on its part and
will not violate its organizational documents; (b) the representations and
warranties in each Loan Document to which it is a party are true and
correct in all material respects on and as of the date hereof as though
made on and as of the date hereof (EXCEPT to the extent that (i) such
representations and warranties speak to a specific date, or (ii) the facts
on which such representations and warranties are based have been changed by
transactions contemplated by the Credit Agreement or the Senior Note
Proceeds Application); and (c) it is in full compliance with all Loan
Documents to which it is a party (EXCEPT for noncompliance caused solely by
the Senior Note Proceeds Application).
(d) releases each Lender from any liability for actions or failures to act in
connection with the Loan Documents prior to the date hereof.
NCI HOLDING CORP.
NCI OPERATING CORP.
METAL BUILDING COMPONENTS HOLDINGS, INC.
METAL COATERS HOLDING, INC.
METAL COATERS OF CALIFORNIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
A & S BUILDING SYSTEMS, L.P.
NCI BUILDING SYSTEMS, L.P.
MBCI OPERATING, L.P.
METAL COATERS OPERATING, L.P.
By: NCI OPERATING CORP.,
as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
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