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EXHIBIT 10.19.03
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XXXXXXX XXXXXX BUILDING PRODUCTS, INC.
THIRD AMENDMENT
DATED AS OF JULY 1, 1998
RE:
NOTE PURCHASE AGREEMENTS DATED AS OF APRIL 1, 1996
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$50,000,000 SENIOR NOTES
$10,000,000 6.79% SENIOR NOTES DUE APRIL 15, 2001
$15,000,000 6.79% SENIOR NOTES DUE APRIL 15, 2002
$10,000,000 7.21% SENIOR NOTES DUE APRIL 15, 2003
$15,000,000 7.61% SENIOR NOTES DUE APRIL 15, 2006
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENTS
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THIS THIRD AMENDMENT dated as of July 1, 1998 (this "Third Amendment")
to the Note Purchase Agreements, each dated as of April 1, 1996, is between
XXXXXXX XXXXXX BUILDING PRODUCTS, INC., a Georgia corporation (the "Company"),
and each of the institutions which are signatories to this Third Amendment
(collectively, the "Noteholders").
RECITALS
A. The Company and each of the respective Purchasers named on Schedule
A thereto have entered into separate and several Note Purchase Agreements, each
dated as of April 1, 1996, as amended by (i) a First Amendment dated as of
January 15, 1997 and (ii) a Second Amendment and Waiver dated as of April 1,
1998 (as so amended, the "Note Agreements"). Capitalized terms which are used
but not defined herein shall have the respective meanings given to them in the
Note Agreements.
B. The Company and the Noteholders desire to amend certain provisions
of the Note Purchase Agreements in the respects, but only in the respects,
hereinafter set forth.
C. All requirements of law have been fully complied with and all other
acts and things necessary to make this Third Amendment a valid, legal, and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
SECTION 1. AMENDMENT
The proviso at the end of Section 10.3(c) of the Note Agreements is
hereby amended in its entirety to read as follows:
"provided that, after giving effect thereto and to the application of
the proceeds thereof the aggregate amount of Priority Obligations does
not exceed (i) during the period from January 1, 1997 to and including
June 30, 1998, 22%, (ii) during the period from July 1, 1998 to and
including October 15, 1998, 25%, and (iii) at all times after October
15, 1998, 15% of Consolidated Net Worth as at the end of the Company's
fiscal year then most recently ended."
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
To induce the Noteholders to execute and deliver this Third Amendment
(which representations shall survive the execution and delivery of this Third
Amendment), the Company represents and warrants to the Noteholders that:
(a) This Third Amendment has been duly authorized, executed
and delivered by it and this Third Amendment constitutes the legal,
valid and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
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(b) The Note Purchase Agreements, as amended by this Third
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Company enforceable against it in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally;
(c) The execution, delivery and performance by the Company of
this Third Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision of
any material indenture, agreement or other instrument to which it is a
party or by which its properties or assets are or may be bound,
including, without limitation, the Bank Credit Agreement, or (B) result
in a breach or constitute (alone or with due notice of lapse of time or
both) a default under any indenture, agreement or other instrument
referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d) As of the date hereof and after giving effect to this
Third Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) All the representations and warranties contained in
Section 5 of the Note Purchase Agreements are true and correct in all
material respects with the same force and effect as if made by the
Company on and as of the date hereof (except as to representations and
warranties which (i) refer to a specific date, (ii) have been modified
by transactions permitted pursuant to the Note Purchase Agreements, or
(iii) have been specifically waived by the requisite percentage of the
Noteholders).
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT.
This Third Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been
satisfied:
(a) Executed counterparts of this Third Amendment, duly
executed by the Company and the Holders of at least 66-2/3% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders; and
(b) the representations and warranties of the Company set
forth in Section 2 hereof are true and correct on and with respect to
the date hereof.
SECTION 4. MISCELLANEOUS.
4.1. This Third Amendment shall be construed in connection with and as
part of each of the Note Purchase Agreements, and except as modified and
expressly amended by this Third Amendment, all terms, conditions and covenants
contained in the Note Purchase Agreements and the Notes are hereby ratified and
shall be and remain in full force and effect.
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4.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Third Amendment
may refer to the Note Purchase Agreements without making specific reference to
this Third Amendment but nevertheless all such references shall include this
Third Amendment unless the context otherwise requires.
4.3. The descriptive headings of the various Sections or parts of this
Third Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
4.4. THIS THIRD AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH NEW YORK LAW.
4.5. The execution hereof by you shall constitute a contract between us
for the uses and purposes hereinabove set forth, and this Third Amendment may be
executed in any number of counterparts, each executed counterpart constituting
and original, but all together only one agreement.
XXXXXXX XXXXXX BUILDING PRODUCTS, INC.
By: /s/ J. Xxxxxx Xxxxxx
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Name: J. Xxxxxx Xxxxxx
Title: Exec. Vice Pres.,
Chief Financial Officer
PRINCIPAL LIFE INSURANCE COMPANY
(F/K/A PRINCIPAL MUTUAL LIFE INSURANCE COMPANY)
By: /s/ Xxxxx X. Xxxxx /s/ Xxxx Xxxxx Xxxxx
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Name: Xxxxx X. Xxxxx / Xxxx Xxxxx Xxxxx
Title: Counsel / Counsel
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Authorized Signatory
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Authorized Signatory
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RELIASTAR LIFE INSURANCE COMPANY
(F/K/A NORTHWESTERN NATIONAL LIFE INSURANCE
COMPANY)
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Authorized Representative
NORTHERN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
RELIASTAR UNITED SERVICES LIFE INSURANCE COMPANY
(F/K/A UNITED SERVICES LIFE INSURANCE COMPANY)
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
THE CANADA LIFE ASSURANCE COMPANY
XXXXXXXX & CO.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: a Partner
CANADA LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: a Partner
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned hereby acknowledges and consents to the
provisions of this Third Amendment and the transactions contemplated herein, and
hereby ratifies and confirms the Guaranty dated as of April 1, 1996 made by each
of the undersigned for the benefit of the Noteholders, and agrees that the
guaranty of the payment and performance of the Obligation (as defined therein)
is unimpaired hereby and shall remain in full force and effect.
ASHLEY ALUMINUM, INC.
By: /s/ J. Xxxxxx Xxxxxx
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Name: J. Xxxxxx Xxxxxx
Title: Vice President
WM. CAMERON & CO.
By: /s/ J. Xxxxxx Xxxxxx
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Name: J. Xxxxxx Xxxxxx
Title: Exec. Vice Pres.,
Chief Financial Officer
CABP, INC.
By: /s/ J. Xxxxxx Xxxxxx
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Name: J. Xxxxxx Xxxxxx
Title: Exec. Vice Pres.,
Chief Financial Officer
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