Exhibit 10.12b
AMENDMENT NO. 2 AND WAIVER DATED AS OF APRIL 5, 2002
TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF DECEMBER 14, 2000
THIS AMENDMENT NO. 2 AND WAIVER DATED AS OF APRIL 5, 2002 TO THE
REVOLVING CREDIT AND TERM LOAN AGREEMENT DATED AS OF DECEMBER 14, 2000 (this
"AGREEMENT"), among AMERICAN ARCHITECTURAL PRODUCTS CORPORATION, a Delaware
corporation and a debtor and debtor-in-possession, and THE OTHER BORROWERS NAMED
THEREIN (each a "BORROWER" and, jointly and severally, the "BORROWERS"), the
financial institutions parties to the Existing Credit Agreement referred to
below and THE CIT GROUP/BUSINESS CREDIT, INC., as agent (in such capacity, the
"AGENT").
W I T N E S S E T H:
WHEREAS, the Borrowers, certain financial institutions and the Agent
are parties to the Revolving Credit and Term Loan Agreement, dated as of
December 14, 2000 and amended as of September 26, 2001 (the "EXISTING CREDIT
AGREEMENT"), and the other Loan Documents; and
WHEREAS, the Borrowers have failed to comply with the Minimum EBITDA
and Fixed Charge Coverage Ratio covenants as required by Sections 8.14 and 8.15
of the Existing Credit Agreement for the Rolling Periods ended September 30,
2001 and December 31, 2001 (the "SUBJECT EVENTS OF DEFAULT"); and
WHEREAS, the Borrowers have requested that, as of the Effective Date,
the Subject Events of Default be waived and the Existing Credit Agreement be
amended as herein provided; and
WHEREAS, the Majority Lenders are willing, subject to the terms and
conditions hereinafter set forth, to grant such waivers and make such
amendments;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 CERTAIN DEFINITIONS. The following terms (whether or not
underscored) when used in this Agreement shall have the following meanings:
"AGENT" is defined in the PREAMBLE.
"AGREEMENT" is defined in the PREAMBLE.
"AMENDED CREDIT AGREEMENT" means the Existing Credit Agreement as
amended by this Agreement as of the Effective Date.
"BORROWER" and "BORROWERS" is defined in the PREAMBLE.
"EFFECTIVE DATE" is defined in SECTION 6.1.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"SUBJECT EVENT OF DEFAULT" is defined in the SECOND RECITAL.
SECTION 1.2 OTHER DEFINITIONS. Unless otherwise defined or the context
otherwise requires, terms used herein (including in the preamble and recitals
hereto) have the meanings provided for in the Existing Credit Agreement.
ARTICLE II
WAIVER
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Effective on (and subject to the occurrence of) the Effective Date, the
Lenders waive the Subject Events of Default.
ARTICLE III
AMENDMENT
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Effective on (and subject to the occurrence of) the Effective Date, the
Existing Credit Agreement is amended as follows:
SECTION 3.1 ADDITION TO SECTION 1.01. The following new definition is
added to Section 1.01 of the Existing Credit Agreement in the appropriate
alphabetical order:
"AMENDMENT NO. 2 TO CREDIT AGREEMENT" means Amendment No. 2 and Waiver
Dated as of April ___, 2002 to this Agreement, among the Borrowers, the Agent
and the Majority Lenders.
SECTION 3.2 AMENDMENT TO CLAUSE (b)(x) OF SECTION 2.04(b)(iii). Clause
(b)(x) of Section 2.04(b)(iii) of the Existing Credit Agreement is amended and
restated in its entirety as follows:
"(x) other than in connection with any Eagle Prepayment Event, to the
payment, in whole or in part, of the Obligations outstanding; PROVIDED,
HOWEVER, that with respect to the sale of substantially all of the
assets of Binnings Pan American and TM Window & Door, Inc., two
divisions of Binnings Building Products, Inc., and the sale of
substantially all of the Borrowers' real and personal property located
at the Borrowers' corporate headquarters in Barberton, Ohio, the
Borrowers shall apply half of the Net Proceeds therefrom to the
repayment of the Term Loan and half of the Net Proceeds therefrom to
the repayment of the Revolving Loan and"
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SECTION 3.3 AMENDMENT TO SECTION 7.01(a). The first sentence of Section
7.01(a) of the Existing Credit Agreement is amended and restated in its entirety
as follows:
"As soon as practicable and in any event within one hundred and five
(105) days after the close of each fiscal year of the Borrowers
(except, with respect to the fiscal years ending December 31, 2000 and
December 31, 2001, within one hundred and twenty (120) days after the
close of such fiscal year), a consolidated and consolidating statement
of operations and cash flows of the Borrowers for such fiscal year and
a balance sheet of the Borrowers as of the close of such fiscal year,
and notes to each, all in reasonable detail, setting forth in
comparative form the corresponding figures for the preceding fiscal
year, which consolidated statements and balance sheet shall be audited
and accompanied by an opinion of independent certified public
accountants of recognized national standing selected by the Borrowers
and reasonably satisfactory to the Agent."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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In order to induce the Majority Lenders to make the waiver provided for
in ARTICLE II above and the amendments provided for in ARTICLE III above, the
Borrowers hereby (a) represent and warrant that each of the representations and
warranties of the Borrowers contained in the Existing Credit Agreement and in
the other Loan Documents is true and correct in all material respects as of the
date hereof as if made on the date hereof (except, if any such representation
and warranty relates to an earlier date, such representation and warranty shall
be true and correct in all material respects as of such earlier date) and both
immediately before and after giving effect to the provisions of this Agreement
no Default or Event of Default (other than immediately before giving effect to
the provisions of this Agreement, the Subject Events of Default waived pursuant
to ARTICLE II) has occurred and is continuing; (b) represent and warrant that
their consolidated EBIDTA for the Rolling Period ended December 31, 2001 was not
less than $3,600,000; (c) represent and warrant that their Fixed Charge Coverage
Ratio for the Rolling Period ended December 31, 2001 was not less than
0.46:1.00; (d) represent and warrant that they will provide the Agent by April
15, 2002 with monthly financial and borrowing base projections for the fiscal
year ending December 31, 2002; and (e) agree that the incorrectness in any
material respect of any representation and warranty contained in the preceding
CLAUSES (a) THROUGH (d) shall constitute an immediate Event of Default under the
Amended Credit Agreement.
ARTICLE V
ADDITIONAL COVENANTS
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SECTION 5.1 Pursuant to Section 2.04(b)(iii) and 2.04(c) of the Amended
Credit Agreement, the Borrowers hereby agree to use the Net Proceeds from the
sale of substantially all of the capital stock and/or assets of Eagle & Xxxxxx
Company to repay all Obligations outstanding (other than any Obligations in
respect of outstanding letters of
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credit, which shall be cash collateralized as provided in Clause (b)(y) of
Section 2.04(b)(iii) of the Amended Credit Agreement). Upon the repayment in
full (and/or cash collateralization) of all Obligations outstanding, the
Borrowers shall permanently terminate the Amended Credit Agreement in accordance
with the terms and conditions thereof.
SECTION 5.2 The failure of the Borrowers to comply with the terms and
conditions set forth in Section 5.1 hereof shall constitute an immediate Event
of Default under the Amended Credit Agreement.
ARTICLE VI
CONDITIONS TO EFFECTIVENESS; EXPIRATION
---------------------------------------
SECTION 6.1 EFFECTIVE DATE. This Agreement shall become effective on
such date (herein called the "EFFECTIVE DATE") when the conditions set forth in
this SECTION 6.1 have been satisfied.
SECTION 6.1.1 EXECUTION OF AGREEMENT. The Agent shall have received
counterparts of this Agreement duly executed and delivered on behalf of the
Borrowers, the Agent and the Majority Lenders.
SECTION 6.1.2 REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Borrowers pursuant to Article IV as of the Effective Date
shall be true and correct.
SECTION 6.1.3 FEE. The Agent shall have received a fee from the
Borrowers in the amount of $100,000.
SECTION 6.1.4 EXPIRATION. If all the conditions set forth in this
SECTION 6.1 have not been satisfied on or prior to 20 business days from the
actual execution and delivery of this Agreement, the agreements of the parties
contained in this Agreement shall, unless otherwise agreed by the Majority
Lenders, terminate effective immediately on such date and without further
action.
ARTICLE VII
MISCELLANEOUS
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SECTION 7.1 CROSS-REFERENCES. References in this Agreement to any
Article or section are, unless otherwise specified, to such Article or Section
of this Agreement.
SECTION 7.2 LOAN DOCUMENT PURSUANT TO AMENDED CREDIT AGREEMENT. This
Agreement is a Loan Document executed pursuant to the Amended Credit Agreement.
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SECTION 7.3 LIMITATION OF WAIVER AND AMENDMENTS. The waiver set forth
in ARTICLE II above and the amendments set forth in ARTICLE III above shall be
limited precisely as provided for herein and shall not be deemed to be a waiver
of, amendment of, consent to or modification of any other term or provision of
the Existing Credit Agreement or of any term or provision of any other Loan
Document or of any transaction or further or future action on the part of the
Borrowers which would require the consent of any of the Lenders under the
Existing Credit Agreement or any other Loan Document.
SECTION 7.4 COUNTERPARTS. This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SECTION 7.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 7.6 FURTHER ASSURANCE. The Borrowers shall execute and deliver,
from time to time, in favor of the Agent and the Lenders such documents,
agreements, certificates and other instruments as shall be necessary or
advisable to effect the purposes of this Agreement.
SECTION 7.7 COSTS AND EXPENSES. The Borrowers, jointly and severally
agree to pay all reasonable costs and expenses incurred by the Agent (including
the reasonable fees and out-of-pocket expenses of legal counsel of the Agent)
incurred in connection with the execution and delivery of this Agreement and the
other agreements and documents entered into in connection herewith.
SECTION 7.8 GOVERNING LAW; WAIVER OF JURY TRIAL; ENTIRE AGREEMENT. THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. EACH PERSON A PARTY HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY AGREEMENT OR DOCUMENT
ENTERED INTO IN CONNECTION HEREWITH. THIS AGREEMENT CONSTITUTES THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDES ANY PRIOR AGREEMENT, WRITTEN OR ORAL, WITH RESPECT HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized as of the day and
year first above written.
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BORROWERS:
- AMERICAN ARCHITECTURAL PRODUCTS CORPORATION
- FORTIFIED WINDOW & DOOR COMPANY fka AAPC ONE
ACQUISITION CORPORATION
- AAPC TWO ACQUISITION CORPORATION
- AAPC THREE ACQUISITION CORPORATION
- AAPC FOUR ACQUISITION CORPORATION
- AAPC FIVE ACQUISITION CORPORATION
- AAPC SIX ACQUISITION CORPORATION
- AMERICAN GLASSMITH, INC.
- AMERICAN WEATHER-SEAL COMPANY
- BINNINGS BUILDING PRODUCTS, INC.
- DANVID WINDOW COMPANY
- DENVER WINDOW COMPANY
- EAGLE & XXXXXX COMPANY
- EAGLE WINDOW & DOOR CENTER, INC.
- FORTE, INC.
- MODERN WINDOW CORPORATION
- THERMETIC GLASS, INC.
- VINYLSOURCE, INC.
- WIG LIQUIDATION COMPANY EACH AS DEBTOR AND
DEBTOR-IN-POSSESSION
By: ________________________________
Name: Xxxxxx Xxxxxxxxxxx
Title: President of each of the foregoing
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Address for Notices:
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American Architectural Products Corporation
000 Xxxxxxxx - Xxxxxxxx Xxxx
Xxxxx 000, XXXX Xxxxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxxx Xxxxxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy for all notices regarding any
Potential Default or Event of Default:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
AGENT AND LENDER:
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THE CIT GROUP/BUSINESS CREDIT, INC.
By:
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Name: Xxxxxx Xxxxxx
Title: Vice President
Address for Notices:
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The CIT Group/Business Credit, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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With a copy for all notices regarding any
Potential Default or Event of Default:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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