1
EXHIBIT 4.4
As of May 1, 1998
NCI Building Systems, Inc.
0000 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Chief Financial Officer
Re: First Amendment to Credit Agreement
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 25, 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. Certain Definitions.
(a) The definition of "APPLICABLE MARGIN" in SECTION 1.1 of
the Credit Agreement is hereby amended by replacing the table therein
with the following table:
=============================================================================================================
RATIO OF FUNDED DEBT APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
TO EBITDA BASE RATE LOANS EURODOLLAR LOANS
-------------------------------------------------------------------------------------------------------------
Equal to or greater than 4.0 to 1.0 0.500% 2.000%
-------------------------------------------------------------------------------------------------------------
Less than 4.0 to 1.0, but greater than 3.75 0.500% 2.000%
to 1.0 (0.250% if Subordinated Debt (1.750% if Subordinated
equals or exceeds Debt equals or exceeds
$200,000,000) $200,000,000)
=============================================================================================================
2
=============================================================================================================
RATIO OF FUNDED DEBT APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
TO EBITDA BASE RATE LOANS EURODOLLAR LOANS
-------------------------------------------------------------------------------------------------------------
Less than or equal to 3.75 to 1.0, but 0.250% 1.750%
greater than 3.25 to 1.0 (0% if Subordinated Debt (1.500% if Subordinated
equals or exceeds Debt equals or exceeds
$200,000,000) $200,000,000)
-------------------------------------------------------------------------------------------------------------
Less than or equal to 3.25 to 1.0, but 0% 1.375%
greater than 2.5 to 1.0
-------------------------------------------------------------------------------------------------------------
Less than or equal to 2.5 to 1.0, but 0% 1.000%
greater than 2.0 to 1.0
-------------------------------------------------------------------------------------------------------------
Less than or equal to 2.0 to 1.0 0% 0.750%
=============================================================================================================
(b) The definition of "EBITDA" in SECTION 1.1 of the Credit
Agreement is hereby amended to read in its entirety as follows:
EBITDA means, in respect of any period, the
following (calculated on a consolidated basis for the
Companies in accordance with GAAP, and using pro forma
combined information for the Companies and Amatek and its
Subsidiaries for any fiscal period (or portion thereof) of
Borrower prior to the Acquisition, including amounts
expended by Amatek and its Subsidiaries for corporate
overhead and executive employee compensation): the sum of
(a) net income before interest expenses, Taxes, non-cash
operating charges (such as depreciation and amortization
expense), non-cash charges in respect of pension and
retiree benefits, and extraordinary gains and losses; plus
(b) expenses incurred by Borrower in connection with the
Acquisition during the fiscal quarters of Borrower ending
on April 30, 1998, and July 31, 1998, up to an aggregate
maximum amount for both quarters of $5,000,000; plus (c)
for each of the following fiscal periods, the following
amounts (without duplication): $10,000,000 for the four
fiscal quarters of Borrower ending on July 31, 1998;
$7,500,000 for the four fiscal quarters of Borrower ending
on October 31, 1998, $5,000,000 for the four fiscal
quarters of Borrower ending on January 31, 1999; and
$2,500,000 for the four fiscal quarters of Borrower ending
on April 30, 1999.
(c) The definition of "GUARANTORS" in SECTION 1.1 of the
Credit Agreement is hereby amended by changing the name "A&S Building Interests,
Inc." to "A&S Business Interests, Inc."
(d) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following new definition (in proper alphabetical order):
2
3
SUBORDINATED DEBT means Funded Debt which is
contractually subordinated or junior in right of
payment to the Obligation on terms satisfactory to
Determining Lenders.
2. Security. SECTION 5.2 of the Credit Agreement is hereby amended by
adding the underlined language shown below, so that the entire section shall
read as follows:
5.2 Collateral. Full and complete payment of the
Obligation shall be secured through the execution and delivery of
Pledge Agreements and Assignments of Partnership Interests with
respect to (a) all capital stock, partnership interests or other
equity interests of any Company in any domestic direct or indirect
Subsidiaries, and (b) the capital stock, partnership interests or
other equity interests of any Company in any foreign direct or
indirect Subsidiaries (other than Building Systems de Mexico, S.A.
de C.V.), up to a maximum of 65% of total combined voting power of
all classes of equity interests in such subsidiary which are
entitled to vote (together with proceeds thereof and any additional
collateral ever furnished under SECTIONS 2.3(H), 3.11(B) OR 5.3, the
"COLLATERAL").
3. Debt. SECTION 9.4 of the Credit Agreement is hereby amended by
changing the words "Funded Debt" to "Debt," so that such section shall read as
follows:
9.4 Debt. No Company may create, incur or suffer to
exist any Debt, other than Permitted Debt.
4. Dividends and Distributions. The first sentence of SECTION 9.9 of
the Credit Agreement is hereby amended, so that the entire section shall read as
follows:
9.9 Dividends and Distributions. Borrower may not
declare, make or pay any Distribution, other than Distributions
declared, made or paid by Borrower wholly in the form of its capital
stock. No Company shall enter into any arrangement or agreement
(other than this Agreement) that prohibits it from paying dividends
or other distributions to its shareholders (other than prohibitions
with respect to Borrower contained in the Indenture governing
Borrower's proposed issuance of up to $200,000,000 of Subordinated
Debt).
5. Minimum Net Worth. SECTION 10.1 of the Credit Agreement is hereby
amended by changing the date "October 31, 1998" to "July 31, 1998."
6. Maximum Leverage Ratio. SECTION 10.2 of the Credit Agreement is
hereby amended by inserting the following line at the beginning of the table set
forth therein:
July 31, 1998 4.50 to 1.00
7. Maximum Debt Ratio. SECTION 10.3 of the Credit Agreement is hereby
amended by inserting the following line at the beginning of the table set forth
therein:
July 31, 1998 4.50 to 1.00
3
4
8. Minimum Fixed Charge Coverage Ratio. SECTION 10.4 of the Credit
Agreement is hereby amended by inserting the following line at the beginning of
the table set forth therein:
July 31, 1998 1.25 to 1.00
9. 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.
10. Representations and Warranties. 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.
11. 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.
12. 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 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.
13. 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.
14. 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.
15. 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.
16. 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
4
5
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.
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------------------
Title: Vice President
----------------------------------------------
SWISS BANK CORPORATION,
STAMFORD BRANCH,
as Documentation Agent and a Lender
By: /s/ Xxxx Xxxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------------------
Title: Executive Director, Credit Risk Management
---------------------------------------------
By: /s/ Xxxxxxx XxXxxxxx
------------------------------------------------
Name: Xxxxxxx XxXxxxxx
----------------------------------------------
Title: Associate Director Loan Portfolio Support, US
---------------------------------------------
5
6
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
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------------------
Title: Vice President and Chief Financial Officer
------------------------------------------------
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.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------
A & S BUILDING SYSTEMS, L.P.
By: NCI OPERATING CORP.,
as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------
6
7
NCI BUILDING SYSTEMS, L.P.
By: NCI OPERATING CORP.,
as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
--------------------------------------------
NCI HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President and Treasurer
--------------------------------------------
NCI OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President and Chief Financial Officer
--------------------------------------------
METAL BUILDING COMPONENTS HOLDING,
INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President and Treasurer
--------------------------------------------
7
8
METAL COATERS HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President and Treasurer
--------------------------------------------
MBCI OPERATING, L.P.
By: NCI Operating Corp., as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
METAL COATERS OPERATING, L.P.
By: NCI Operating Corp., as General Partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Vice President
--------------------------------------------
8
