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EXHIBIT 4.5
As of May 5, 1998
NCI Building Systems, Inc.
0000 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Chief Financial Officer
Re: Second Amendment to Credit Agreement
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 25, 1998
(as amended by the First Amendment dated as of May 1, 1998, the "CREDIT
AGREEMENT"), among NCI Building Systems ("BORROWER"), NationsBank of Texas,
N.A., as Administrative Agent ("AGENT"), NationsBanc Xxxxxxxxxx Securities LLC,
as Syndication Agent, Swiss Bank Corporation, as Documentation Agent, and the
financial institutions named therein (collectively, "LENDERS"). Unless otherwise
indicated, all capitalized terms herein are used as defined in the Credit
Agreement.
For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Borrower, Guarantors, Agent and Lenders agree as
follows:
1. Base Rate. A typographical error in the definition of "BASE RATE" in
SECTION 1.1 of the Credit Agreement is hereby corrected by deleting the words
"the sum of (a)."
2. Pro Rata Part. The definitions of "PRO RATA" and "PRO RATA PART" in
SECTION 1.1 of the Credit Agreement are hereby amended to read in their entirety
as follows:
PRO RATA and PRO RATA PART mean, when determined for any Lender:
(a) with respect to Facility A, (i) if there is no Facility A
Principal Debt or LC Exposure, the proportion (stated as a percentage)
that such Lender's portion of the Facility A Commitment bears to the
total Facility A Commitment, or (ii) if any Facility A Principal Debt
or LC Exposure is outstanding, the proportion (stated as a percentage)
that the Facility A Principal Debt owed to such Lender and (without
duplication) the LC Exposure of such Lender bears to the Facility A
Commitment Usage;
(b) with respect to Facility B, the proportion (stated as a
percentage) that the Facility B Principal Debt owed to such Lender
bears to the total Facility B Principal Debt;
(c) with respect to Facility C, (i) if there is no Facility C
Principal Debt, the proportion (stated as a percentage) that such
Lender's portion of the Facility C Commitment bears to the total
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Facility C Commitment, or (ii) if any Facility C Principal Debt is
outstanding, the proportion (stated as a percentage) that the Facility
C Principal Debt owed to such Lender bears to the total Facility C
Principal Debt; and
(d) with respect to the Facility as a whole, (i) if there is
no Principal Debt or LC Exposure, the proportion (stated as a
percentage) that such Lender's Commitment bears to the Total
Commitment, or (ii) if there is any Principal Debt or LC Exposure, the
proportion (stated as a percentage) that the Principal Debt owed to
such Lender and (without duplication) the LC Exposure of such Lender
bears to the aggregate Principal Debt and (without duplication) LC
Exposure.
3. Purchase Agreement. A typographical error in the definition of
"PURCHASE AGREEMENT" in SECTION 1.1 of the Credit Agreement is hereby corrected
by replacing the word "Australian" with the word "Australia."
4. Interest Options. A typographical error in the first sentence of
SECTION 3.3 of the Credit Agreement is hereby corrected by adding the word
"Adjusted" before the words "Eurodollar Rate."
5. LC Fees. A typographical error in the third sentence of SECTION 4.3
of the Credit Agreement is hereby corrected by adding the phrase "for the
ratable account of Lenders" after the word "Agent."
6. Commitment Fees. SECTION 4.4 of the Credit Agreement is hereby
amended to read in its entirety as follows:
4.4 Commitment Fees. Borrower shall pay to Agent for the
ratable account of all Lenders with Commitments for Facility A a
commitment fee, payable as it accrues on the last day of each fiscal
quarter of Borrower (commencing July 31, 1998) and on the Facility A
Termination Date, equal to the Applicable Percentage per annum on the
amount by which the Facility A Commitment exceeds the average daily
Facility A Commitment Usage, in each case during the fiscal quarter
ending on such date (or, in the case of the first such payment, during
the period from the date of the Acquisition through July 31, 1998).
Borrower shall also pay to Agent for the ratable account of all Lenders
with Commitments for Facility C a commitment fee, payable as it accrues
on the last day of each fiscal quarter of Borrower (commencing July 31,
1998) and on the Facility C Termination Date for each such Lender,
equal to the Applicable Percentage per annum on the amount by which
Facility C exceeds the average daily Facility C Principal Debt, in each
case during the fiscal quarter ending on such date (or, in the case of
the first such payment, during the period from the date of the
Acquisition through July 31, 1998).
7. Items to be Furnished. A typographical error in SECTION 8.1(e) of
the Credit Agreement is hereby corrected by replacing the reference to "Form
S-8" with a reference to "Form 8-K."
8. Debtor Relief. SECTION 11.3 of the Credit Agreement is hereby
amended by deleting the phrase ", that could suspend or otherwise adversely
affect the Rights of Agent or any Lender granted in the Loan Documents."
9. Remedies Upon Default. SECTION 12.1(a) of the Credit Agreement is
hereby amended by replacing the phrase "If a Default (i) occurs under SECTION
11.3(c) or (ii) occurs and is continuing under SECTION 11.3(a), (b) or (d),"
with the phrase "If a Default (i) occurs under SECTION 11.3(c) or (d), or (ii)
occurs and is continuing under SECTION 11.3(a) or (b)."
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10. Defaults. SECTION 13.3 of the Credit Agreement is hereby amended by
adding the following phrase at the end thereof:
"(except to the extent that this Agreement expressly requires that such
action may only be taken with, or may not be taken without, the consent
of the Determining Lenders)."
11. Indemnification. A typographical error in SECTION 13.5 of the
Credit Agreement is hereby corrected by replacing the reference to "SECTION
14.12" with a reference to "SECTION 8.7."
12. Assignments.
(a) SECTION 14.12(b) of the Credit Agreement is hereby amended
by adding the phrase "(if no Default exists)" at the end of the first
line thereof after the word "Borrower."
(b) SECTION 14.12(b) of the Credit Agreement is hereby further
amended by inserting the word "and" at the end of clause (i), deleting
clause (ii), and redesignating clause (iii) as clause (ii).
(c) EXHIBIT I to the Credit Agreement is hereby replaced with
EXHIBIT I attached hereto.
13. Participations. SECTION 14.12(e) of the Credit Agreement is hereby
amended by restating the parenthetical clause at the end of such section to read
as follows:
"(other than amendments, modifications or waivers decreasing the amount
of principal or the rate at which interest or any commitment fee is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest or any
commitment fee on such Loans or Notes, extending its Commitments,
releasing any Guarantor, or releasing all or substantially all of the
Collateral)."
14. Loan Request. EXHIBIT E to the Credit Agreement is hereby amended
by restating Paragraph 3 to read in its entirety as follows:
3. The requested Loan will not cause (a) the Facility A
Commitment Usage to exceed the Facility A Commitment, (b) the Facility
B Principal Debt to exceed the Facility B Commitment, (c) the Facility
C Principal Debt to exceed the Facility C Commitment, or (d) the
Principal Debt and LC Exposure to exceed the Total Commitment.
15. Conditions Precedent to Future Advances. Lenders will not be
obligated to make any further Advances, and this instrument shall not become
effective, unless and until Agent receives (a) counterparts of this instrument
executed by Borrower, each Guarantor and each Lender, and (b) such other items
related to the transactions contemplated by this instrument as Agent may
reasonably request.
16. Covenants; Representations and Warranties. Borrower hereby
covenants to pledge and deliver to Agent for the benefit of Lenders that certain
Promissory Note in the face amount of $550,000,000 made by NCI Holding Corp. on
or before May 11, 1998. Borrower represents and warrants that it possesses all
requisite power and authority to execute, deliver and comply with the terms of
this instrument, which has been duly authorized and approved by all necessary
corporate action and for which no consent of any person is required, and agrees
to furnish Agent with evidence of such authorization and approval upon request.
17. 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 instrument.
18. Loan Document; Effect. This instrument is a Loan Document and,
therefor, is subject to the applicable provisions of SECTION 14 of the Credit
Agreement, all of which are incorporated herein by reference the same as if set
forth herein verbatim. Except as amended in this instrument, the Loan
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Documents are and shall be unchanged and shall remain in full force and effect.
In the event of any inconsistency between the terms of the Credit Agreement as
hereby modified (the "AMENDED AGREEMENT") and any other Loan Documents, the
terms of the Amended Agreement shall control and such other document shall be
deemed to be amended hereby to conform to the terms of the Amended Agreement.
Borrower hereby releases Agent and Lenders from any liability for actions or
failures to act in connection with the Loan Documents prior to the date hereof.
19. No Waiver of Defaults. This instrument does not constitute a waiver
of, or a consent to any present or future violation of or default under, any
provision of the Loan Documents, or a waiver of Lenders' right to insist upon
future compliance with each term, covenant, condition and provision of the Loan
Documents, and the Loan Documents shall continue to be binding upon, and inure
to the benefit of, Borrower, Guarantors, Agent and Lenders and their respective
successors and assigns.
20. 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.
21. Multiple Counterparts. This instrument may be executed in more than
one counterpart, each of which shall be deemed an original, and all of which
constitute, collectively, one instrument; but, in making proof of this
instrument, it shall not be necessary to produce or account for more than one
such counterpart. It shall not be necessary for Borrower, Guarantors, Agent and
all Lenders to execute the same counterpart hereof so long as Borrower, each
Guarantor, Agent and each Lender execute a counterpart hereof.
22. 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.
If the foregoing terms and conditions are acceptable to Borrower and
Guarantors, Borrower and Guarantors should indicate its acceptance by signing in
the space provided below, whereupon this letter shall become an agreement
binding upon and inuring to the benefit of Agent, Lenders, Borrower and
Guarantors and their respective successors and assigns.
Very truly yours,
NATIONSBANK OF TEXAS, N.A.
as Administrative Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
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Title: Vice President
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SWISS BANK CORPORATION,
STAMFORD BRANCH,
as Documentation Agent and a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Executive Director, Credit Risk Management
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By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
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Title: Associate Director Loan Portfolio Support, US
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Accepted and agreed to as of the day and year first set forth in the
foregoing letter.
NCI BUILDING SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President and Chief Financial Officer
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GUARANTORS' CONSENT AND AGREEMENT
As an inducement to Agent and Lenders to execute, and in consideration
of Agent's and Lenders' execution of the foregoing, the undersigned hereby
consent thereto and agree that the same shall in no way release, diminish,
impair, reduce or otherwise adversely affect the respective obligations and
liabilities of each of the undersigned under the Guaranty dated as of May 1,
1998, executed by the undersigned, or any agreements, documents or instruments
executed by any of the undersigned to create liens, security interests or
charges to secure the Obligation. This consent and agreement shall be binding
upon the undersigned, and the respective successors and assigns of each, and
shall inure to the benefit of Agent and Lenders, and respective successors and
assigns of each.
A & S BUSINESS INTERESTS, INC.
NCI HOLDING CORP.
NCI OPERATING CORP.
METAL BUILDING COMPONENTS HOLDING, INC.
METAL COATERS HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title: Vice President
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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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Name: Xxxxxx X. Xxxxxxx
--------------------------------------------
Title: Vice President and Chief Financial Officer
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EXHIBIT I
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of March 25, 1998
(as amended, the "CREDIT AGREEMENT") among NCI Building Systems, Inc., a
Delaware corporation ("BORROWER"), the Lenders (as defined in the Credit
Agreement), the other parties to such Credit Agreement and NationsBank of Texas,
N.A., as Administrative Agent for the Lenders ("AGENT"). Terms defined in the
Credit Agreement are used herein with the same meaning.
The "ASSIGNOR" and the "ASSIGNEE" referred to on SCHEDULE 1 agree as
follows:
23. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Loan
Documents as of the date hereof equal to the percentage interest specified on
SCHEDULE 1 of all outstanding rights and obligations under each Facility
designated on SCHEDULE 1. After giving effect to such sale and assignment, the
Commitments of the Assignee and any remaining Commitments of the Assignor and
the amount of the Loans owing to the Assignee and Assignor (if applicable) will
be as set forth on SCHEDULE 1.
24. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Company
or the performance or observance by any Company of any of its obligations under
the Loan Documents; and (iv) attaches the relevant Note or Notes held by the
Assignor and requests that Agent exchange such Note or Notes for new Notes
payable to the order of the Assignee in an amount equal to the Commitments
assumed by the Assignee pursuant hereto and to the Assignor in an amount equal
to the Commitments retained by the Assignor, if any, as specified on SCHEDULE 1.
25. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) appoints and authorizes Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (iv) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (v)
attaches any U.S. Internal Revenue Service or other forms required under SECTION
3.20(d).
26. Following the execution of this Assignment and Acceptance, it will
be delivered to Agent for acceptance and recording by Agent. The effective date
for this Assignment and Acceptance (the "EFFECTIVE DATE") shall be the date of
acceptance hereof by Agent, unless otherwise specified on SCHEDULE 1.
27. Upon such acceptance and recording by Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have
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the rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance and in the Credit
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement.
28. Upon such acceptance and recording by Agent, from and after the
Effective Date, Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest and commitment fees with respect thereto) to
the Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
29. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Texas.
30. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
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SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
%
Percentage interest assigned: ---------
Facility: ---------
$
Assignee's Commitment for such Facility: ---------
$
Aggregate outstanding principal amount of Loans under such Facility assigned: ---------
$
Assignor's remaining Commitment under such Facility, if any ---------
$
Principal amount of Note payable to Assignee for such Facility: ---------
$
Principal amount of Note payable to Assignor for such Facility: ---------
[If percentages in more than one Facility are being assigned, repeat above
information for each other relevant Facility.]
*
Effective Date (if other than date of acceptance by Agent): -----,---
[NAME OF ASSIGNOR], as Assignor
By:
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Name:
------------------------------------
Title:
------------------------------------
[NAME OF ASSIGNEE], as Assignee
By:
--------------------------------------
Name:
------------------------------------
Title:
----------------------------------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to Agent.
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Accepted and Approved
this ___ day of ___________, __
NATIONSBANK OF TEXAS, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Approved this ____ day
of ____________, __
NCI BUILDING SYSTEMS, INC.
By:
----------------------------------------
Name:
---------------------------------------
Title:
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