EXHIBIT 10.18.3
FIRST AMENDMENT
TO SECOND RESTATED CREDIT AGREEMENT
This First Amendment to Second Restated Credit Agreement (this "FIRST
AMENDMENT"), dated as of May 23, 1997, is entered into among Xxxxxxx Xxxxxx
Building Products, Inc., a Georgia corporation, Wm. Cameron & Co., a Georgia
corporation, Ashley Aluminum, Inc., a Georgia corporation, CABP, Inc., an
Arizona corporation, Xxxxxxx Xxxxxx Canada, Inc., a Canadian corporation,
NationsBank of Texas, National Association, as Issuing Bank and Agent, ABN AMRO
Bank, N.V., as Co-Agent, Canadian Imperial Bank of Commerce, as Canadian Issuing
Bank and Canadian Agent, and each Lender.
BACKGROUND
Borrowers, Agent, Co-Agent, Issuing Bank, Canadian Agent, Canadian Issuing
Bank and Lenders have entered into the Second Restated Credit Agreement dated as
of January 29, 1997 (such agreement, together with all amendments and
restatements thereof, the "CREDIT AGREEMENT"). Borrower has requested that
Lenders, Agent, Issuing Bank, Co-Agent, Canadian Agent and Canadian Issuing Bank
amend the Credit Agreement to, among other things, increase the aggregate amount
of Investments which can be made in CA Canada.
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, Agent,
Co-Agent, Issuing Bank, Canadian Agent, Canadian Issuing Bank, Lenders and
Guarantors covenant and agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
herein have the meaning given to them in the Credit Agreement.
2. AMENDMENTS. The Credit Agreement is amended as follows:
(a) SECTION 5.07(h) is deleted and the following is substituted IN LIEU
thereof:
(h) Debt of each Subsidiary of Parent (other than CAFS) to
Parent or to another Subsidiary of Parent
(b) SECTION 5.09 is amended by deleting "and" immediately preceding "(h)"
and substituting a comma IN LIEU thereof and by adding the following:
, and (i) Investments permitted under SECTION 5.22.
(c) SECTION 5.22 is deleted and the following is substituted IN LIEU
thereof:
5.22 INTERCOMPANY ADVANCES. Neither Parent nor any
Guarantor or CAFS shall make any loans, advances, extensions of credit
to, or Investments in CA Canada such that the total amount outstanding
of such loans, advances, extensions of credit or Investments at any
one time shall be in excess of $16,000,000.
3. REPRESENTATIONS AND WARRANTIES. Borrowers and Guarantors, jointly and
severally, represent and warrant to Agent, Issuing Bank, Co-Agent, Canadian
Agent, Canadian Issuing Bank and each Lender that, as of the date hereof and
after giving effect to the amendments in SECTION 2, the following are true and
correct:
(a) The representations and warranties contained in the Credit Agreement
and each of the other Loan Papers are true and correct in all material respects
on and as of the date hereof as though made on and as of such date (except as to
representations and warranties which (i) refer to a specific date, (ii) have
been modified by transactions permitted pursuant to the Credit Agreement or any
other Loan Paper, or (iii) have been specifically waived in writing by Agent).
(b) Each Borrower and each Guarantor has full power and authority to
execute, deliver and perform this First Amendment, and this First Amendment, the
Credit Agreement and each other Loan Paper, constitute the legal, valid and
binding obligation of such Borrower and such Guarantor (with respect to Loan
Papers to which it is a party), enforceable in accordance with their terms
(subject as to enforcement of remedies to any applicable Debtor Relief Laws).
(c) No authorization, approval, consent or other action by, notice to, or
filing with, any Tribunal or other Person, is required for the execution,
delivery or performance by either Borrower or any Guarantor of this First
Amendment.
(d) No Obligor has made a material misstatement of fact, or failed to
disclose any fact necessary to make the facts disclosed not misleading, to
Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank or any
Lender during the course of negotiation of this First Amendment.
4. CONDITIONS OF EFFECTIVENESS. This First Amendment shall be effective on
the date Agent delivers to Borrower written notice that each of the following
has occurred or exists ("AMENDMENT DATE"):
(a) The effectiveness of this First Amendment shall not contravene any Law
applicable to Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing
Bank or any Lender.
(b) No Material Adverse Change, as determined by Agent, shall have
occurred and be continuing since January 29, 1997.
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(c) No Default or Event of Default shall exist.
(d) Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank,
each Lender and each Obligor shall have executed and received counterparts of
this First Amendment.
(e) Agent shall have received, contemporaneously with Borrower's execution
of this First Amendment, payment of all fees (including attorneys' fees incurred
by Agent prior to execution of this First Amendment in the preparation,
negotiation and execution of this First Amendment).
(f) Agent shall have received, in form and substance satisfactory to Agent
and its counsel, such other approvals, documents, certificates, and instruments
as Agent shall require.
Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank and each
Lender may conclusively rely on the certificates delivered pursuant to SECTION
3.01 of the Credit Agreement until Agent receives notice in writing to the
contrary.
5. RATIFICATION. Ashley, Cameron and CABP each (a) represents and warrants
that it has received and reviewed this First Amendment and (b) ratifies and
affirms its obligations under the Loan Papers, as amended by this First
Amendment.
6. REFERENCE TO THE CREDIT AGREEMENT.
(a) On the Amendment Date, 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 hereby.
(b) The Credit Agreement, as affected by the amendments referred to above,
shall remain in full force and effect and is hereby ratified and confirmed.
(c) THE CREDIT AGREEMENT, AS AFFECTED BY THE AMENDMENTS CONTAINED IN THIS
FIRST AMENDMENT, TOGETHER WITH EACH OTHER LOAN PAPER, REPRESENT THE FINAL
AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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.
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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 be binding
upon the parties hereto and their respective permitted successors and assigns.
9. HEADINGS. Section headings in this First Amendment are included herein for
convenience of reference only and shall not constitute part of this First
Amendment for any other purpose.
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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
as of May 23, 1997.
PARENT:
XXXXXXX XXXXXX BUILDING PRODUCTS, INC.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
CA CANADA:
XXXXXXX XXXXXX CANADA, INC.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
GUARANTORS:
ASHLEY ALUMINUM, INC.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
WM. CAMERON & CO.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
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CABP, INC.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
AGENT:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By:
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Xxxxxx X. Xxxxxxx, Vice President
CANADIAN AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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------------------------, ---------------------
(Print Name) (Print Title)
CO-AGENT:
ABN AMRO BANK, N.V., Atlanta Agency
By:
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------------------------, ---------------------
(Print Name) (Print Title)
By:
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------------------------, ---------------------
(Print Name) (Print Title)
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ISSUING BANK:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By:
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Xxxxxx X. Xxxxxxx, Vice President
CANADIAN ISSUING BANK:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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------------------------, ---------------------
(Print Name) (Print Title)
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By:
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Xxxxxx X. Xxxxxxx, Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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------------------------, ---------------------
(Print Name) (Print Title)
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ABN AMRO BANK, N.V., Atlanta Agency
By:
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------------------------, ---------------------
(Print Name) (Print Title)
By:
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------------------------, ---------------------
(Print Name) (Print Title)
XXXXX FARGO BANK (TEXAS), N.A.
By:
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------------------------, ---------------------
(Print Name) (Print Title)
SUNTRUST BANK, ATLANTA
By:
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------------------------, ---------------------
(Print Name) (Print Title)
By:
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------------------------, ---------------------
(Print Name) (Print Title)
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