EXHIBIT 4.10
FIRST AMENDMENT TO
THE BANK CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"),
dated as of December 4, 2001, is entered into among XXXXXX MANUFACTURING
COMPANY, a Delaware corporation ("Borrower"), the banks listed on the signature
pages hereof (collectively, the "Lenders"), and BANK OF AMERICA, N.A., as
Administrative Lender (in said capacity, the "Administrative Lender").
A. Borrower, the Lenders and Administrative Lender are parties to that
certain Credit Agreement, dated as of June 20, 2001 (the "Credit Agreement"; the
terms defined in the Credit Agreement and not otherwise defined herein shall be
used herein as defined in the Credit Agreement).
B. Borrower, Lenders and Administrative Lender desire to amend the
Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, Borrower, Lenders
and Administrative Lender covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Article 1 of the Credit Agreement is hereby amended by adding the
definition of "Cash and Cash Equivalents" thereto in proper alphabetical order
to read as follows:
"Cash and Cash Equivalents" means, with respect to the
Borrower and each of its Subsidiaries as of any date of determination,
(a) the remainder of (i) all cash of the Borrower and its Domestic
Subsidiaries on hand as of such date, minus (ii) an amount equal to 1%
of the consolidated revenue of the Borrower generated by the Borrower
and its Domestic Subsidiaries for the period of four consecutive fiscal
quarters ending on such date, plus (b) Eligible Securities as of such
date.
(b) Article 1 of the Credit Agreement is hereby amended by adding the
definition of "Eligible Securities" thereto in proper alphabetical order to read
as follows:
"Eligible Securities" means (a) securities issued or directly
and fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
one year from the date of acquisition; (b) commercial paper or bankers'
acceptances rated A-1 or the equivalent thereof by S&P or P-1 or the
equivalent thereof by Moody's having maturities of not more than 180
days from the date of acquisition]; (c) auction rate securities rated
at least AA or the equivalent thereof by S&P having maturities of not
more than one year from the date of acquisition; (d) variable rate
demand notes backed by a letter of credit issued by Bank of America
having maturities of not more than one year from the date of
acquisition; (e) municipal securities rated at least AA or the
equivalent thereof by S&P having maturities of not more than one year
from the date
of acquisition; (f) non-interest bearing demand deposits and interest
bearing demand or time deposits or certificates of deposits maturing
within one year from the date of issuance, in each case either (i)
issued by a Lender or by a United States commercial bank or trust
company having capital surplus and undivided profits aggregating at
least $500,000,000 and being rated at least "A" or the equivalent
thereof by S&P or at least "A" or the equivalent thereof by Moody's or
(ii) in an amount not in excess of applicable deposit insurance; and
(g) mutual funds which invest primarily in underlying securities of
types described in clauses (a) through (f) above.
(c) Article 1 of the Credit Agreement is hereby amended by adding the
definition of "Moody's" thereto to read as follows:
"Moody's" means Xxxxx'x Investors Services, Inc.
(d) Article 1 of the Credit Agreement is hereby added by adding the
definition of "S&P" thereto to read as follows:
"S&P" means Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx,
Inc.
(e) The definition of "Leverage Ratio" set forth in Section 1.1 of the
Credit Agreement is hereby amended to read as follows:
"Leverage Ratio" means, as of any date of determination, the
ratio of (a) an amount equal to the remainder of (i) Total Funded Debt
as of such date minus (ii) Cash and Cash Equivalents as of such date,
to (b) EBITDA for the period of four consecutive fiscal quarters ending
on such date. For purposes of calculating the Leverage Ratio, EBITDA
shall include (exclude) the trailing four quarters of EBITDA
attributable to any assets acquired (disposed of) during such period,
as determined by a method prepared by the Borrower and which is
reasonably satisfactory to the Determining Lenders.
(f) The second sentence of Section 2.16(a) of the Credit Agreement is
hereby amended to read as follows:
No Letter of Credit shall have an expiration date (including
all rights of renewal) later than ten days prior to the Maturity Date,
except that any Letter of Credit may have an automatic renewal
provision that could result in the expiration date of such Letter of
Credit extending beyond the Maturity Date, provided that (i) such
Letter of Credit must permit the Issuing Bank to prevent any such
renewal beyond the Maturity Date by giving prior notice to the
beneficiary thereof and (ii) the Issuing Bank shall give such notice to
prevent such renewal.
(g) The Compliance Certificate is hereby amended to be in the form
of Exhibit D hereto.
2. REPRESENTATIONS AND WARRANTIES TRUE: NO EVENT OF DEFAULT. By its
execution and delivery hereof, Borrower represents and warrants that, as of the
date hereof and after giving effect to the amendments contemplated by the
foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement are true and correct on and as of the date hereof as if made on and as
of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) Borrower has full power and authority to execute and deliver this
First Amendment, and this First Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as enforceability
may be limited by applicable debtor relief laws and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and except as rights to indemnity may be limited by federal or state
securities laws;
(d) neither the execution, delivery and performance of this First
Amendment or the Credit Agreement, as amended hereby, nor the consummation of
any transactions contemplated herein or therein, will conflict with any Law to
which Borrower or any of its Subsidiaries is subject, or any indenture,
agreement or other instrument to which Borrower or any of its Subsidiaries or
any of their respective property is subject; and
(e) no authorization, approval, consent, or other action by, notice to,
or filing with, any governmental authority or other Person (including the Board
of Directors of Borrower), is required for the execution, delivery or
performance by (i) Borrower of this First Amendment or (ii) the acknowledgment
of this First Amendment by each Guarantor.
3. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective
as of December 4, 2001, subject to the following:
(a) the representations and warranties contained in Section 2 of this
First Amendment, the Credit Agreement and the other Loan Documents are true and
correct on and as of the date hereof as if made on and as of such date;
(b) no event has occurred and is continuing which constitutes a Default
or an Event of Default;
(c) Administrative Lender shall have received counterparts of this
First Amendment executed by the Determining Lenders; and
(d) Administrative Lender and Lenders shall have received in form and
substance satisfactory to Administrative Lender and Lenders, such other
documents and certificates as Lenders shall require.
4. GUARANTOR ACKNOWLEDGMENT. By signing below, each Guarantor (a)
acknowledges consents and agrees to the execution by the Borrower of this First
Amendment, (b) acknowledges and agrees that its obligations in respect of its
Subsidiary Guaranty are not released, diminished, waived, modified, impaired or
affected in any manner by this First Amendment or any of the provisions
contemplated herein, (c) ratifies and confirms its obligations under its
Subsidiary Guaranty, and (d) acknowledges and agrees that it has no claims or
offsets against, or defenses or counterclaims to, its Subsidiary Guaranty.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this First Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", or words of like import
shall mean and be a reference to the Credit Agreement, as affected and amended
by this First Amendment.
(b) The Credit Agreement, as amended by this First Amendment, and all
other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
6. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand all
costs and expenses of Administrative Lender in connection with the preparation,
reproduction, execution and delivery of this First Amendment and the
other instruments and documents to be delivered hereunder (including the
reasonable fees and out-of-pocket expenses of counsel for Administrative Lender
with respect thereto and with respect to advising Administrative Lender as to
its rights and responsibilities under the Credit Agreement, as amended by this
First Amendment).
7. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
8. GOVERNING LAW; BINDING EFFECT. This First Amendment shall be
governed by and construed in accordance with the laws of the State of Texas and
shall be binding upon Borrower and each Lender and their respective successors
and assigns.
9. HEADINGS. Section headings in this First Amendment are included
herein for convenience of reference only and shall not constitute a part of this
First Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST
AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AS TO THE SUBJECT MATTER THEREIN AND HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as of the date first above written.
BORROWER:
XXXXXX MANUFACTURING COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Tressurer
ADMINISTRATIVE LENDER:
BANK OF AMERICA, N.A., as Administrative Lender
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A., as a Lender and as the
Issuing Bank
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Managing Director
COMMERCE BANK, N.A.
By: Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: VP
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice president
ACKNOWLEDGED AND AGREED:
BMC REAL ESTATE, INC.
By: Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Secretary & Assistant Treasurer
BUCON, INC.
By: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: V.P. Finance & Treasurer
XXXXXX HOLDINGS, INC.
By: Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
XXXXXX REAL ESTATE, INC.
By: Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Secretary & Assistant Treasurer
XXXXXX BUILDINGS, INC.
By: Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
XXXXXX PACIFIC, INC.
By: Xxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
MODULINE WINDOWS, INC.
By: Xxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Treasurer
LIBERTY BUILDING SYSTEMS, INC.
By: Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ____________________
To: Bank of America, as Administrative Lender Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June
20, 2001 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
herein as therein defined), among Xxxxxx Manufacturing Company (the "Borrower"),
the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Lender.
The undersigned Authorized Signatoryhereby certifies as of the date
hereofthat he/she is the ______________________________ of the Borrower, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Lender on the behalf of the Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.2 of the Agreement for the fiscal year of the
Borrower ended as of the above date, together with the report and opinion of an
independent certifiedpublic accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.1 of the Agreement for the fiscal quarter of the Borrower
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries in accordance with GAAP as at such date and for such period,
subject only to normal year-end audit adjustments and he absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and hasmade, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[select one:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD,
THE BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR
OBSERVED AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT OR EVENT OF DEFAULT
AND ITS NATURE AND STATUS:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS EXECUTED this Certificate as of
___________, ______.
XXXXXX MANUFACTURING COMPANY
By:
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Name:
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Title:
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For the Quarter/Year ended _________________("Reporting Date")
SCHEDULE 2
TO THE COMPLIANCE CERTIFICATE
($ IN 000'S)
1 Section 7.1 Capitalization Ratio
(a) Maximum at the end of any fiscal quarter 0.50 to 1
(b) Actual
(i) Total Funded Debt (without duplication)
(A) Obligations for borrowed money and obligations $___________
evidenced by bonds, debentures, notes, etc.
(B) Obligations in respect of letters of credit, $___________
bankers' acceptances, bank guaranties, surety
bonds and similar instruments
(C) Net obligations under Swap Contracts $___________
(D) Obligations to pay deferred purchase price of $___________
property or services, and indebtedness
secured by a Lien on property whether or not
assumed
(E) Capitalized Lease Obligations and Synthetic $___________
Lease Obligations
(F) Redeemable Stock $___________
(G) TOTAL FUNDED DEBT (A) + (B) + (C) + (D) + $___________
(E) + (F)
(ii) Total Capital
(A) Shareholder's Equity $
(B) TOTAL FUNDED DEBT (FROM 1 .(B)(I)(G) ABOVE) $
(C) TOTAL CAPITAL (A) + (B) $
(iii) Capitalization Ratio (i)(G) to (ii)(C) _______ to 1
2. Section 7.2 Fixed Charge Coverage Ratio
(a) Minimum at the end of any fiscal quarter 1.70 to 1
(b) Actual
(i) EBITDAR
(A) Pre-tax net income (excluding $___________
extraordinary gains and non-recurring,
non-cash credits andincluding
extraordinary losses and non-recurring,
non-cash charges)
(B) Interest expense $___________
(C) DEPRECIATION AND AMORTIZATION $___________
(D) Lease expense $___________
(E) EBITDAR (A) + (B) + (C) + (D) $___________
(ii) Fixed Charges
(A) Interest expense (including interest $___________
expense payable pursuantto Capitalized
Lease Obligations)
(B) Lease expense payable pursuant to $___________
Operating Leases
(C) Restricted Payments (other than $___________
Treasury Stock Purchases)
(D) FIXED CHARGES (A) + (B) + (C) $___________
(iii) Fixed Charge Coverage Ratio (i)(E) to (ii)(D) _______ to 1
3. Section 7.3 Leverage Ratio
(a) Maximum at the end of any fiscal quarter
(i) At each fiscal quarter-end through and including June 30, 3.25 to
1 2002
(ii) At each fiscal quarter-end thereafter 3.00 to 1
(b) Actual
(i) Total Funded Debt (from 1.(b)(i)(G) above) $___________
(ii) Cash and Cash Equivalents (A) Domestic Cash $___________
(B) 1% of revenues of Borrower and Domestic $___________
Subsidiaries
(C) Eligible Securities $___________
(D) Cash arid Cash Equivalents (A) - (B) + (C) $___________
(iii) EBITDA
(A) Pre-tax net income (excluding extraordinary $___________
gains and non-recurring, non-cash credits and
including extraordinary losses and
non-recurring, non-cash charges)
(B) Interest expense $___________
(C) Depreciation and amortization $___________
(D) EBITDA (A) + (B) + (C) $___________
(iv) Leverage Ratio (i) - (ii)(D) to (iii)(D) _______to 1
4. Section 7.4(g) Other Guaranties
(a) Maximum $ 15,000,000
(b) Actual $___________
5. Section 7.5 Liens
(a) Liens on cash collateral for bank letters of credit
(i) Maximum $ 7,000,000
(ii) Actual $___________
(b) Other Liens
(i) Maximum $ 20,000,000
(ii) Actual $___________
6. Section 7.6(a) Investments in the form of loans to officers and employees
in the ordinary course of business
(a) Maximum $ 5,000,000
(b) Actual $___________
7. Section 7.6(c) Other Investments
(a) Maximum
(i) $10,000,000 $ 10,000,000
(ii) Shareholder's Equity ($_________________) x 25% $___________
(i) + (ii) $___________
(b) Actual
(i) Investments $___________
(ii) Acquisitions of Foreign Subsidiaries $___________
(i) + (ii) $___________
8. Section 7.7(i) Acquisitions of Domestic Subsidiaries
(a) Maximum
(i) $20,000,000 $ 20,000,000
(ii) Shareholder's Equity ($__________) x 25% $___________
(i) + (ii) $___________
(b) Actual
Acquisition of Domestic Subsidiaries $___________
9. Section 7.7(ii) Acquisitions of Foreign Subsidiaries
(a) Maximum
(from 7.(a) above) $___________
(b) Actual
(from 7.(b) above) $___________
10. Section 7.9 Dispositions
(a) Maximum
10% to Total Assets for preceding fiscal quarter $___________
(b) Actual
(i) Assets disposed of during present fiscal year
through Reporting Period $___________
(ii) Proceeds reinvested within 180 days of disposition $___________
(i) - (ii) $___________
This Compliance Certificate is executed and delivered on the ______ day
of ____________, ______.
By:
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Name:
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Title:
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