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EXHIBIT 10.69
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of the day of October, 1999, by and among the banks listed on the
signature pages hereof (the "Lenders"), KEVCO, INC., a Texas corporation (the
"Borrower"), and BANK OF AMERICA, N.A., formerly known as NationsBank, N.A., as
administrative agent for the Lenders (the "Administrative Agent"), to the extent
and in the manner provided for in the Credit Agreement (defined below and herein
so called).
BACKGROUND
(a) The Lenders, the Borrower, and the Administrative Agent
are parties to that certain Third Amended and Restated Credit Agreement
dated as of July 14, 1999 (as amended through the date hereof and as
may be further amended, extended, renewed, or restated from time to
time, the "Credit Agreement"; terms defined in the Credit Agreement and
not otherwise defined herein shall be used herein as defined in the
Credit Agreement).
(b) The Borrower, the Administrative Agent, and the Lenders
desire to amend the Credit Agreement to provide for a deferral of the
principal payment of Facility A Term Loan Advances currently scheduled
for March 31, 2000.
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, the parties
hereto covenant and agree as follows:
1. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is hereby
amended by entirely amending Section 2.8(b) thereof, as follows:
(b) Facility A Term Loan Advances. To the extent not otherwise
required to be paid earlier as provided herein, the principal amount of
the Facility A Term Loan Advances shall be repaid on each Quarterly
Date and on the Facility A Term Loan Maturity Date in such amounts as
set forth next to each such date below:
Amount of Reduction of Facility A
Quarterly Date Term Loan Advances as of each Date
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June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,875,000
March 31, 2001 $1,875,000
June 30, 2001 $1,875,000
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Amount of Reduction of Facility A
Quarterly Date Term Loan Advances as of each Date
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September 30, 2001 $1,875,000
December 31, 2001 $1,875,000
March 31, 2002 $1,875,000
June 30, 2002 $1,875,000
September 30, 2002 $1,875,000
December 31, 2002 $2,500,000
March 31, 2003 $2,500,000
June 30, 2003 $5,000,000
September 30, 2003 $5,000,000
December 31, 2003 $5,000,000
or such other amount of Facility A
Term Loan Advances then outstanding
2. ACKNOWLEDGMENT OF THE BORROWER. The Borrower acknowledges and agrees
that the Lenders executing this Amendment have done so in their sole discretion
and without any obligation. The Borrower further acknowledges and agrees that
any action taken or not taken by the Lenders or the Administrative Agent prior
to, on or after the date hereof shall not constitute a waiver or modification of
any term, covenant or provision of any Loan Document or prejudice any rights or
remedies which the Administrative Agent or any Lender now has or may have in the
future under any Loan Document, under any Applicable Law or otherwise, all of
which rights and remedies are expressly reserved by the Administrative Agent and
the Lenders.
3. SUBSIDIARIES ACKNOWLEDGMENT. By signing below, each of the
Subsidiaries which has executed a Subsidiary Guaranty (a) consents and agrees to
the execution and delivery of this Amendment, (b) ratifies and confirms its
obligations under its Subsidiary Guaranty, (c) acknowledges and agrees that its
obligations under its Subsidiary Guaranty are not released, diminished,
impaired, reduced, or otherwise adversely affected by this Amendment, and (d)
acknowledges and agrees that it has no claims or offsets against, or defenses or
counterclaims to, its Subsidiary Guaranty.
4. RELEASE.
(a) The Borrower and each Subsidiary Guarantor hereby
unconditionally and irrevocably remises, acquits, and fully and forever
releases and discharges the Administrative Agent and the Lenders and
all respective affiliates and subsidiaries of the Administrative Agent
and the Lenders, their respective officers, servants, employees,
agents, attorneys,
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principals, directors and shareholders, and their respective heirs,
legal representatives, successors and assigns (collectively, the
"Released Lender Parties") from any and all claims, demands, causes of
action, obligations, remedies, suits, damages and liabilities
(collectively, the "Borrower Claims") of any nature whatsoever,
whether now known, suspected or claimed, whether arising under common
law, in equity or under statute, which the Borrower or any Guarantor
ever had or now has against the Released Lender Parties which may have
arisen at any time on or prior to the date of this Amendment and which
were in any manner related to any of the Loan Documents or the
enforcement or attempted enforcement by the Administrative Agent or
the Lenders of rights, remedies or recourses related thereto.
(b) The Borrower and each Subsidiary Guarantor covenants and
agrees never to commence, voluntarily aid in any way, prosecute or
cause to be commenced or prosecuted against any of the Released Lender
Parties any action or other proceeding based upon any of the Borrower
Claims which may have arisen at any time on or prior to the date of
this Amendment and were in any manner related to any of the Loan
Documents.
(c) The agreements of the Borrower and each Guarantor set
forth in this Section 7 shall survive termination of this Amendment and
the other Loan Documents.
5. REPRESENTATIONS AND WARRANTIES TRUE, NO EVENT OF DEFAULT. By its
execution and delivery hereof, the Borrower represents and warrants to the
Lenders that, as of the date hereof:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct in all
material respects on and as of the date hereof as made on and as of
such date, except for any representations and warranties made as of a
specific date, which shall be true and correct in all material respects
as of such specific date; and
(b) no event has occurred and is continuing which constitutes
a Default or an Event of Default.
6. CONDITIONS OF EFFECTIVENESS. This Amendment shall not be effective
until each of the following conditions precedent shall have been satisfied:
(a) All reasonable out-of-pocket fees and expenses in
connection with the Loan Documents, including this Amendment, including
legal and other professional fees and expenses incurred on or prior to
the date of this Amendment by the Administrative Agent, including,
without limitation, the fees and expenses of Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C. and Xxxxxx Xxxxxxxx L.L.P., shall have been paid.
(b) The Administrative Agent shall have received such
documents, certificates and instruments as the Administrative Agent
shall reasonably require.
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7. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this
Amendment, 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 by this Amendment.
8. COUNTERPARTS; EXECUTION VIA FACSIMILE. This Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Amendment may be validly executed and delivered by facsimile or other electronic
transmission.
9. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by
and construed in accordance with the laws of the State of Texas and shall be
binding upon the Borrower, the Administrative Agent, each Lender and their
respective successors and assigns.
10. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
11. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to
all provisions of the Credit Agreement applicable to Loan Documents, all of
which are incorporated in this Amendment by reference the same as if set forth
in this Amendment verbatim.
12. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN 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 BETWEEN THE
PARTIES.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
the date first above written.
KEVCO, INC.
By: /s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
Executive Vice President
BANK OF AMERICA, N.A., formerly known as
NationsBank, N.A., as Administrative
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXXXXXXXX, XX
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Name: Xxxxxxx X. Xxxxxxxxxxx, XX
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Title: Managing Director
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NATIONAL CITY BANK KENTUCKY
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President
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GUARANTY FEDERAL BANK, F.S.B.
By: /s/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
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Title: Senior Vice President
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XXXXX FARGO BANK, N.A.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: Vice President
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PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc., as its
Investment Manager
By: /s/ XXXXXX XXXXXX
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Name: XXXXXX XXXXXX, CFA
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Title: VICE PRESIDENT
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ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc., as
Collateral Manager
By: /s/ XXXXXXX X. XXXXXXXX
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Name: XXXXXXX X. XXXXXXXX
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Title: SENIOR VICE PRESIDENT &
PORTFOLIO MANAGER
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ALLIANCE CAPITAL FUNDING, L.L.C.
By: Alliance Capital Management, L.P.,
as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION
General Partner of Alliance
Capital Management, L.P.
By: /s/ XXXXXXX X. KUTARI
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Name: Xxxxxxx X. Kutari
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Title: Senior Vice President
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XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor
By: /s/ XXXXXX XXXXXXX
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Name: XXXXXX XXXXXXX
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Title: AUTHORIZED SIGNATORY
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Xxxxxxx Xxxxx Debt Global Investment
Series:
INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management,
L.P., as Investment Advisor
By: /s/ XXXXXX XXXXXXX
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Name: XXXXXX XXXXXXX
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Title: AUTHORIZED SIGNATORY
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BANK ONE, TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ XXXX XXXXXXX
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Name: XXXX XXXXXXX
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Title: SENIOR PORTFOLIO MANAGER
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ACKNOWLEDGED AND AGREED:
KEVCO MANAGEMENT, INC.
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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KEVCO HOLDING, INC.
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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KEVCO GP, INC.
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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KEVCO COMPONENTS, INC.
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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DCM DELAWARE, INC.
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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KEVCO MANUFACTURING, L.P.
By: KEVCO GP, INC., its General Partner
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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KEVCO DISTRIBUTION, L.P.
By: KEVCO GP, INC., its General Partner
By: /s/ XXXXX XXXXXXX
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Name: XXXXX XXXXXXX
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Title: EVP
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