AMENDMENT No. 3
Exhibit 8
AMENDMENT
No. 3
TO
BY AND BETWEEN
NCI BUILDING SYSTEMS, INC.
AND
XXXXXXX, DUBILIER & RICE FUND VIII, L.P.
Dated as of October 8, 2009
This AMENDMENT No. 3 (this “Amendment
No. 3”), dated as of October 8, 2009, to the
Investment Agreement, dated as of August 14, 2009, by and
between NCI BUILDING SYSTEMS, INC., a Delaware corporation, and
XXXXXXX, DUBILIER & RICE FUND VIII, L.P., a
Cayman exempted limited partnership (the
“Investor”), as amended by that Amendment,
dated August 28, 2009, by and between the Company and the
Investor and by that Amendment No. 2, dated as of
August 31, 2009, by and between the Company and the
Investor (as so amended, the “Investment
Agreement”).
WHEREAS, Section 13 of the Investment Agreement provides
for the amendment of the Investment Agreement in accordance with
the terms set forth therein; and
WHEREAS, capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Investment Agreement.
NOW THEREFORE, in consideration of the premises and of the
respective representations, warranties, covenants and conditions
contained herein, the parties hereto agree as follows:
Section 1. Definitions;
References. Unless otherwise specifically defined
herein, each term used herein shall have the meaning assigned to
such term in the Investment Agreement. Each reference in the
Investment Agreement to “hereof,” “herein,”
“hereunder,” “hereby,” “hereto”
and “this Agreement” shall, from and after the date
hereof, refer to the Investment Agreement as amended by this
Amendment No. 3, and each reference in the Transaction
Documents (other than the Investment Agreement) and in the
Disclosure Letter to “the Investment Agreement” shall
refer to the Investment Agreement as amended by this Amendment
No. 3.
Section 2. Addition of
Exhibit J. A new Exhibit J is hereby
added to the Investment Agreement in the form of Exhibit J
attached hereto.
Section 3. Amendment to
Section 9(74). The definition of “Form
of Amended Credit Agreement” in Section 9(74) of the
Investment Agreement is hereby amended and restated as follows:
(74) “Form of Amended Credit Agreement” means the
form attached hereto as Exhibit A after giving effect to
the matters referred to in Exhibit J, with such additions,
modifications, alterations, corrections or other changes as the
Investor deems advisable in its sole discretion (exercised in
good faith) (i) to add, provide or complete any schedule,
annex, exhibit, numerical amount or other information that is
omitted, missing or incomplete, or to modify, alter, correct or
change (including without limitation by deleting or replacing)
any wording that is in brackets, (ii) to cure any
ambiguity, mistake, omission or defect, (iii) to cure any
inconsistency, including with any other provision of the same
agreement or of the ABL Agreement or any other Transaction
Document, (iv) to address a material risk that (x) the
Company will be unable to comply with the terms or conditions of
the agreement or (y) by complying with the terms and
conditions of the agreement the Company will be subject to a
material risk of not complying with the terms and conditions of
the ABL Agreement or any other Transaction Document, (v) to
effect the intent evidenced by the form attached hereto as
Exhibit A after giving effect to the matters referred to in
Exhibit J or (vi) to avoid adverse tax consequences to
the Company or any of its Subsidiaries, in each case under
clauses (i) through (vi) above, as determined by the
Investor in its sole discretion (exercised in good faith).
Section 4. Amendment to
Section 3(c)(vi). The first sentence of
Section 3(c)(vi) of the Investment Agreement is hereby
amended and restated as follows:
The Company shall have duly authorized, executed and delivered
the Amended Credit Agreement for the Term Loan Refinancing (or
the Alternative Term Loan Refinancing, as the case may be)
(i) in the case of the Term Loan Refinancing, in the form
of the Form of Amended Credit Agreement or (ii) in the case
of the Alternative Term Loan Refinancing, on terms and
conditions that are (x) no less favorable (as to each item
(other than immaterial items) and in the aggregate) to the
Company and the Investor in its capacity as a prospective
shareholder of the Company than the terms and conditions
contemplated in the Form of Amended Credit Agreement without
giving effect to the matters referred to in Exhibit J, as
determined by the Investor in
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its sole discretion (exercised in good faith) or
(y) otherwise acceptable to the Investor in its sole
discretion (exercised in good faith).
Section 5. Amendment to
Section 6(g)(iii). Section 6(g)(iii) of
the Investment Agreement is hereby amended and restated as
follows:
(iii) In the event the Term Loan Refinancing is not
available on the terms and conditions contemplated in the Form
of Amended Credit Agreement for any reason, the Company shall
use its reasonable best efforts (and the Investor shall use
commercially reasonable efforts to cooperate with the Company in
such efforts, including by actively assisting the Company in its
negotiation of related definitive documentation) to amend and
restate the terms of the Credit Agreement (A) on terms and
conditions (x) that are no less favorable (as to each item
(other than immaterial items) and in the aggregate) to the
Company and the Investor as a prospective shareholder of the
Company than the terms and conditions contemplated in the Form
of Amended Credit Agreement without giving effect to the matters
referred to in Exhibit J, as determined by the Investor in
its sole discretion (exercised in good faith) or
(y) otherwise acceptable to the Investor in its sole
discretion (exercised in good faith), and (B) to extend the
maturity of $150 million principal amount of the term loans
outstanding under the Credit Agreement (an “Alternative
Term Loan Refinancing”), as promptly as practicable but in
any event no later than the Outside Date.
Section 6. Amendment to
Section 6(q). Section 6(q) of the
Investment Agreement is hereby amended and restated as follows:
At the request of the Investor, the Board shall approve
(i) the Amended Credit Documents so long as (A) in the
case of the Term Loan Refinancing, the Amended Credit Agreement
is in the form of the Form of Amended Credit Agreement or
(B) in the case of the Alternative Term Loan Refinancing,
the Amended Credit Agreement is on terms and conditions that are
(x) no less favorable (as to each item (other than
immaterial items) and in the aggregate) to the Company and the
Investor in its capacity as a prospective shareholder of the
Company than the terms and conditions contemplated in the Form
of Amended Credit Agreement without giving effect to the matters
referred to in Exhibit J, as determined by the Investor in
its sole discretion (exercised in good faith) or
(y) otherwise consented to by the Company, such consent not
to be unreasonably withheld; (ii) the ABL Documents so long
as the ABL Agreement is on terms and conditions that are no less
favorable (as to each item and in the aggregate) to the Company
and the Investor as a prospective shareholder of the Company
than the terms and conditions summarized in the ABL Term Sheet,
as determined by the Investor in its sole discretion (exercised
in good faith) and are otherwise (1) consistent with and no
less favorable to the Company and the Investor in its capacity
as a prospective shareholder of the Company than the terms and
conditions of asset-based revolving credit financing
transactions for companies sponsored by CD&R, Inc., as
determined by the Investor in its reasonable discretion
(exercised in good faith), or (2) consented to by the
Company, such consent not to be unreasonably withheld and
(iii) the Ancillary Refinancing Agreements are consistent
with and no less favorable (as to each item (other than
immaterial items) and in the aggregate) to the Company and the
Investor in its capacity as a prospective shareholder of the
Company than the terms and conditions of the respective document
or agreement for companies sponsored by CD&R, Inc., as
determined by the Investor in its reasonable discretion
(exercised in good faith), or consented to by the Company, such
consent not to be unreasonably withheld.
Section 7. No Further
Amendment. Except as expressly amended hereby,
the Investment Agreement is in all respects ratified and
confirmed and all the terms, conditions, and provisions thereof
shall remain in full force and effect. This Amendment No. 3
is limited precisely as written and shall not be deemed to be an
amendment to any other term or condition of the Investment
Agreement or any of the documents referred to therein.
Section 8. Effect of
Amendment. This Amendment No. 3 shall form a
part of the Investment Agreement for all purposes, and each
party thereto and hereto shall be bound hereby. From and after
the execution of this Amendment No. 3 by the parties
hereto, any reference to the Investment Agreement shall be
deemed a reference to the Investment Agreement as amended
hereby. This Amendment No. 3 shall be deemed to be in full
force and effect from and after the execution of this Amendment
No. 3 by the parties hereto.
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Section 9. Miscellaneous. Section 12
(Successors and Assign); Section 13 (Amendments; Waiver);
Section 14 (Headings); Section 15 (Severability);
Section 16 (Liability Limitations); Section 17
(Integration); Section 18 (Governing Law); Section 19
(Counterparts); Section 23 (Specific Performance;
Jurisdiction); Section 24 (Waiver of Jury Trial);
Section 25 (Interpretation); Section 26 (No Third
Party Beneficiaries); and Section 27 (Certain
Considerations Relating to Bankruptcy) of the Investment
Agreement shall apply to this Amendment No. 3, mutatis
mutandis.
[Signature
Page Follows]
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Please confirm that the foregoing correctly sets forth the
agreement between us by signing in the space provided below for
that purpose.
XXXXXXX, DUBILIER & RICE FUND VIII, L.P.
By: CD&R Associates VIII, Ltd., its general partner
By: CD&R Associates VIII, Ltd., its general partner
| By: |
/s/ Xxxxxxx
X. Xxxx
|
Name: Xxxxxxx X. Xxxx
| Title: | Vice President, Treasurer and Assistant Secretary |
[Signature
Page to the Amendment No. 3 to the Investment
Agreement]
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NCI BUILDING SYSTEMS, INC.
| By: |
/s/ Xxxxxx
X. Xxxxxxxx
|
Name: Xxxxxx X. Xxxxxxxx
| Title: | Chief Executive Officer |
[Signature
Page to the Amendment No. 3 to the Investment
Agreement]
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EXHIBIT J
1. [Intentionally omitted]
2. The definition of the term “Applicable Margin”
in the Form of Amended Credit Agreement will be modified
(a) to substitute “5.00% per annum” for
“4.00% per annum” with respect to ABR Loans, and
“6.00% per annum” for “5.00% per annum” with
respect to Eurocurrency Loans, respectively, in clause (i)
thereof, and (b) to insert the phrase “ending on or
after October 30, 2011” after the phrase “most
recently completed fiscal quarter of the Borrower” in
clause (ii) thereof.
3. The following definition will be added to the Form of
Amended Credit Agreement in appropriate alphabetical order:
“2009 Tax Refund”: any U.S. federal or
state income tax refund received by the Borrower or any
Subsidiary thereof (including the amount of such refund that
would have been received by the Borrower or such Subsidiary but
for being utilized to offset any tax liability otherwise payable
by the Borrower or such Subsidiary) to the extent attributable
to (and that would not have been so received but for) any
carryback of net operating losses, capital losses, tax credits
or similar tax attributes, if any, of the Borrower and its
Subsidiaries for the taxable year ended on November 1, 2009
to any prior taxable year, provided that, for these
purposes, (i) the amount of any state income tax refund
shall be net of U.S. federal income tax cost thereof to the
Borrower or any of its Subsidiaries, (ii) a 2009 Tax Refund
shall not include any refund of state income taxes as a result
of an audit or examination of any tax return of the Borrower or
any Subsidiary thereof and (iii) a 2009 Tax Refund shall
not include any refund of U.S. federal income taxes as a
result of an audit or examination of any tax return of the
Borrower or any Subsidiary thereof unless the amount of such
refund exceeds $4,000,000.
“Tax Refund Calculation Date: (i) each day on which
the Borrower or any Subsidiary receives a 2009 Tax Refund of
U.S. federal income taxes and (ii) the last day of any
fiscal quarter of the Borrower if during such fiscal quarter the
Borrower and its Subsidiaries have received 2009 Tax Refunds of
state income taxes, in the aggregate, in excess of $100,000,
provided that if, during any fiscal quarter, the Borrower and
its Subsidiaries have received 2009 Tax Refunds of state income
taxes that, in the aggregate, do not exceed $100,000, then the
amount of such 2009 Tax Refunds received in such fiscal quarter
shall be treated as being received by the Borrower and its
Subsidiaries in the immediately following fiscal quarter for the
purpose of this clause (ii).
4. The definition of “Excess Cash Flow” in the
Form of Amended Credit Agreement will be modified to delete the
words “plus (m)” in the last line thereof and insert
in lieu thereof the words “minus (m) to the extent
included in calculating EBITDA for such period, any 2009 Tax
Refund or any portion thereof, plus (n).”
5. Section 3.4(c) of the Form of Amended Credit
Agreement will be modified to renumber paragraph (iii) as
paragraph (iv).
6. Section 3.4(c) of the Form of Amended Credit
Agreement will be modified to insert a new paragraph
(iii) in numerical order as follows:
“(iii) On or before the date (each such date, a “Tax
Refund Prepayment Date”) that is 45 calendar days after
each Tax Refund Calculation Date, the Borrower shall, in
accordance with Section 3.4(d) and Section 3.4(e),
prepay the Term Loans in an amount equal to the Tax Refund
Prepayment Amount (if greater than zero) with respect to such
Tax Refund Calculation Date. As used herein, the term “Tax
Refund Prepayment Amount” with respect to any Tax Refund
Calculation Date means the amount equal to the excess of
(1) the greater of (x) $10 million and
(y) 50% of the aggregate amount of all 2009 Tax Refunds
received by the Borrower and its Subsidiaries from the date of
this Agreement to such Tax Refund Calculation Date over
(2) the aggregate principal amount of Term Loans prepaid
pursuant to Section 3.4(a) (other than any principal amount
of Term Loans so prepaid that has previously been applied by the
Borrower pursuant to Section 3.4(c)(ii) to reduce the
amount of any prepayment of Term Loans otherwise required
pursuant to Section 3.4(c)(ii)), repurchased pursuant to
Section 3.4(b) or prepaid pursuant to this
Section 3.4(c)(iii), in each case from the date of this
Agreement to the Tax Refund Prepayment Date corresponding to
such Tax Refund Calculation Date.”
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7. Section 3.4(c)(ii) will be modified to insert the
phrase “(other than any principal amount of Term Loans so
prepaid that has previously been applied by the Borrower
pursuant to Section 3.4(c)(iii) to reduce the amount of any
prepayment of Term Loans otherwise required pursuant to
Section 3.4(c)(iii))” after the phrase “the
aggregate principal amount of Term Loans prepaid pursuant to
Section 3.4(a)” where it appears twice in
Section 3.4(c)(ii).
8. Article VI of the Form of Amended Credit Agreement
will be modified to add the following:
“Section 6.11 2009 Tax Refund.
“The Borrower shall use reasonable best efforts to obtain
the maximum amount of any 2009 Tax Refund of U.S. federal
income taxes and shall use commercially reasonable efforts to
obtain any 2009 Tax Refund of state income taxes, in each case
that is legally due to the Borrower or any Subsidiary thereof,
as soon as reasonably practicable and based on positions
determined by the Borrower in good faith and consistent with
past practice of the Borrower and its Subsidiaries in the
ordinary course, provided that this Section 6.11
shall not apply to any 2009 Tax Refund of state income taxes
that, in the good faith judgment of the Borrower, is not
expected to be greater than $25,000, and provided,
further, that neither the Borrower nor any Subsidiary
thereof shall be required to file any tax return prior to the
due date (taking into account applicable extensions) for filing
such tax return.”
9. Article VI of the Form of Amended Credit Agreement
will be modified to add a new affirmative covenant that will
read as follows:
“Section 6.12 Notice of Any ABL Refinancing.
“If the Borrower shall have determined to replace or
refinance the ABL Facility Agreement, the Borrower shall give
notice to the Administrative Agent of such determination (and
the Administrative Agent agrees to so notify the Lenders). The
Lenders shall have an opportunity (for such period of time as
the Borrower shall in good faith determine to be reasonable) to
make a proposal to provide such replacement or refinancing of
the ABL Facility Agreement, provided that (i) the
Borrower shall not have any obligation to accept any such
proposal or to enter into, continue or consummate any
discussions, negotiations, understanding or agreement with any
of the Lenders or any other Person with respect to any such
proposal or any replacement or refinancing of the ABL Facility
Agreement, (ii) if the Borrower elects to enter into any
discussions or negotiations with any of the Lenders or any other
Person with respect to any such proposal or any replacement or
refinancing of the ABL Facility Agreement, the Borrower shall
have the right in its sole discretion to suspend, discontinue or
terminate such discussions or negotiations at any time or from
time to time, and (iii) notwithstanding any other provision
hereof, the Borrower shall not have any liability to any of the
Lenders with respect to any fees, expenses or other obligations
or liabilities that any of the Lenders or any other Person may
incur in making any such proposal or in entering into or
continuing any such discussions or negotiations.”
10. Section 9.10 of the Form of Amended Credit
Agreement will be modified to read as follows:
“(a) Subject to the appointment of a successor as set forth
herein, the Administrative Agent and the Collateral Agent may
resign or be removed as Administrative Agent or Collateral
Agent, respectively, under this Agreement and the other Loan
Documents, as follows:
“(i) The Administrative Agent and the Collateral Agent may
resign as Administrative Agent or Collateral Agent,
respectively, upon 10 days’ notice to the Lenders and
the Borrower.
“(ii) If the Administrative Agent or the Collateral Agent
is a Defaulting Lender or an Affiliate of a Defaulting Lender,
either the Required Lenders or the Borrower may, upon
10 days’ notice to the Administrative Agent or
Collateral Agent, as applicable, remove such agent.
“(iii) If an ABL Default Event shall have occurred and be
continuing, and the Administrative Agent or Collateral Agent, as
applicable, is an Affiliate of or the same Person as the
administrative agent or collateral agent under the ABL Facility
Agreement, the Required Lenders may, upon 10 days’
notice to the Administrative Agent or Collateral Agent, as
applicable, remove such agent.
“(b) If the Administrative Agent or Collateral Agent shall
resign or be removed as Administrative Agent or Collateral
Agent, as applicable, under this Agreement and the other Loan
Documents, then the Required
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Lenders shall appoint from among the Lenders a successor agent
for the Lenders, which successor agent shall be subject to
approval by the Borrower, whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative
Agent or the Collateral Agent, as applicable, and the term
“Administrative Agent” or “Collateral
Agent,” as applicable, shall mean such successor agent
effective upon such appointment and approval, and the former
Agent’s rights, powers and duties as Administrative Agent
or Collateral Agent, as applicable, shall be terminated, without
any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of
the Term Loans. After any retiring Agent’s resignation or
removal as Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement and the
other Loan Documents. Additionally, after any retiring
Agent’s resignation as such Agent, the provisions of this
Section shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was such Agent under this
Agreement and the other Loan Documents.
“(c) Any successor agent shall be subject to approval by
the Borrower, which approval (i) shall not be unreasonably
withheld or delayed in the case of any successor agent that is a
commercial bank with a combined capital and surplus of at least
$500,000,000 and (ii) may otherwise be withheld by the
Borrower in its sole discretion. It is understood and agreed
that the Borrower shall have no obligation to pay any fee to any
successor agent that is greater than or in addition to the fees
payable to the Administrative Agent on the date hereof.”
11. The Form of Amended Credit Agreement will be modified
to include a definition of “ABL Default Event” that
will provide that an ABL Default Event will have occurred if any
of certain specified major events of default has occurred and is
continuing, and the administrative agent or collateral agent
under the ABL Facility Agreement shall have exercised any remedy
provided for thereunder and shall not have rescinded such action
(it being understood and agreed that the definitive wording of
such definition shall be determined in accordance with the
definition of the term “Form of Amended Credit
Agreement,” including clause (i) of such definition).
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