Exhibit 10.1
FIRST AMENDMENT
to
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This First Amendment to Third Amended and Restated Loan and Security
Agreement ("Amendment"), dated September 30, 2002 (the "Effective Date"), is
entered into among American Builders & Contractors Supply Co., Inc., a Delaware
corporation (the "Borrower"), the financial institutions listed on the signature
pages hereof (individually, a "Lender" and collectively, the "Lenders") and Bank
of America, National Association, a national banking association, as Agent for
the Lenders (in such capacity, the "Agent").
Recitals
A. The Borrower, the Lenders and the Agent are party to that certain
Third Amended and Restated Loan and Security Agreement dated as of March 21,
2002 (as said agreement may be amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement") pursuant to which the Lenders
have agreed to make certain loans and extend certain other financial
accommodations to the Borrower as provided therein (terms defined by the Loan
Agreement, where used in this Amendment, shall have the same meanings in this
Amendment as are prescribed by the Loan Agreement).
B. The Borrower, the Agent, and the Lenders desire to modify the Loan
Agreement in certain respects, in accordance with the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or financial accommodations heretofore, now or
hereafter made to or for the benefit of the Borrower by the Lenders, it hereby
is agreed as follows:
ARTICLE I
AMENDMENT TO LOAN AGREEMENT
1.1. Amendment to Introductory Paragraph. The introductory paragraph of the
Loan Agreement is hereby amended and restated to read in its entirety as
follows:
This Third Amended and Restated Loan and Security Agreement
("Agreement"), made as of the 21 day of March, 2002, by and among American
Builders & Contractors Supply Co., Inc., a Delaware corporation, with its
principal place of business and chief executive office at Xxx XXX Xxxxxxx,
Xxxxxx, Xxxxxxxxx 00000 (the "Borrower"), the financial institutions listed
on Schedule 1.1 hereof (individually, a "Lender" and collectively, the
"Lenders"), and Bank of America, National Association (successor by merger
to NationsBank, N.A.), with its principal place of business located at 000
X. XxXxxxx Xx., 00xx Xxxxx, Mail Code IL1-231-16-33, Xxxxxxx, XX 00000, in
its capacity as administrative agent (the "Agent"), and American National
Bank and Trust Company of Chicago, with an office at 00 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Co-Agent"):
1.2 Amendment to Section 1.1 of the Loan Agreement. The following
definitions contained in Section 1.1 of the Loan Agreement are hereby amended
and restated to read in their respective entireties as follows:
"Maximum Facility" shall mean the maximum amount which the Lenders have
agreed to consider as a ceiling on the outstanding principal balance of the
Revolving Loans to be made and Letters of Credit to be issued under this
Agreement. The Maximum Facility shall be Two Hundred Seventy Five Million
Dollars ($275,000,000.00).
"Pro Rata Share" shall mean the percentage interest of each of the Lenders
as indicated on Schedule 1.1.
1.3 Amendment to Section 8.3 of the Loan Agreement. Clause (b) of
Section 8.3 of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
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b. No Person shall acquire all or substantially all of the stock or
assets of the Borrower. Neither the Borrower nor any of its Subsidiaries
shall create any additional subsidiaries, unless promptly upon creation or
acquisition of any such subsidiary (the "New Subsidiary"), the Borrower or
any of its Subsidiaries shall first comply with this Section 8.3(b). Not
later than thirty (30) days prior to creation or acquisition of any New
Subsidiary, the Borrower shall notify the Agent that it (or any of its
Subsidiaries) intends to create or acquire such New Subsidiary and,
contemporaneously upon the effective date of such creation or acquisition,
cause (i) such New Subsidiary to become a borrower subject to and under the
terms of this Agreement, and to grant a continuing first priority security
interest and lien in and to all property of the type or nature specified in
Section 5.1, at any time owned or acquired by such New Subsidiary, as
continuing security for the Liabilities and for the New Subsidiary's
obligations under the Financing Agreements, (ii) each Guarantor to
guarantee all obligations of such New Subsidiary at any time owing to the
Agent and the Lenders under the Financing Agreements, and (iii) the
Borrower, and such New Subsidiary, each to guarantee all obligations of the
other at any time owing to the Agent and the Lenders under the Financing
Agreements. At the Agent's request, the Borrower shall promptly execute and
deliver to the Agent, and shall cause such New Subsidiary and each other
Subsidiary to promptly execute and deliver to the Agent, such amendment
agreements, joinder agreements, instruments, consents and other documents
and agreements as the Agent requests in connection with the foregoing.
1.4 Amendment to Section 10.15 of the Loan Agreement. The fourth (4th)
sentence of Section 10.15 of the Loan Agreement is amended to insert the
following immediately preceding the period that ends such sentence: ", or (iv)
amend the definition of "Eligible Accounts" or amend the definition of "Eligible
Inventory".
1.5 Addition of Schedule 1.1 to the Loan Agreement. Schedule 1.1 is hereby
added to the Loan Agreement and shall read in its entirety as Schedule 1.1
attached hereto.
ARTICLE II
MISCELLANEOUS
2.1. Conditions to Effectiveness. This Amendment, including the amendments
and other terms set forth herein, shall become effective as of the Effective
Date upon the satisfaction of each the following conditions precedent, all of
which must be satisfied and acceptable in form and substance to the Agent and
each of the Lenders signatory hereto in each of their sole discretion.
a. Execution and Delivery. This Amendment shall have been executed
and delivered by each of the Borrower, the Agent and the Lenders.
b. Consent and Agreement of Guarantors. Each of Amcraft Building
Products Co., Inc., Mule-Hide Manufacturing Co., Inc., Mule-Hide Products
Co., Inc., Seven KH Aviation, LLC, Vande Hey Roof Tile Installation, Inc.,
and Vande Hey Raleigh Roof Tile Manufacturing, Inc. shall have executed the
Consent and Agreement of Guarantors which is attached to and made a part of
this Amendment.
c. Consent and Agreement by Validity Guarantors. Each of Xxxxxx X.
Story and Xxxxxxx X. Xxxxxxxxx shall have executed the Consent and
Agreement by Validity Guarantors which is attached to and made a part of
this Amendment.
d. Revolving Credit Notes. The Borrower shall have executed and
delivered Revolving Credit Notes which evidence the commitments of each of
Bank of America, National Association, U.S. Bank National Association, and
Xxxxxx Trust and Savings Bank after giving effect to the increase in the
Maximum Facility and the Assignment (as defined below).
e. Other. The Borrower shall have executed and delivered all other
agreements, documents, certifications or opinions as the Agent may
reasonably request in connection with implementation of this Amendment.
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Notwithstanding any provision of this Amendment or any Financing Agreement to
the contrary, in addition to the foregoing requirements, this Amendment shall
not be effective unless and until the Agent has received all documentation
required to be executed and delivered pursuant to Section 10.16 of the Loan
Agreement in connection with an assignment by Bank of America, National
Association (the "Assignor") to U.S. Bank National Association of an amount
equal to $26,500,000 of the right, title, and interest of the Assignor in and to
the Loan Agreement (including the Assignor's Pro Rata Share of all outstanding
Revolving Loans and the Assignor's participation in the Letters of Credit) (such
assignment, the "Assignment"). The Assignment shall not be subject to any
conditions to the effectiveness thereof. Immediately upon effectiveness of this
Amendment, the Assignment shall become effective and the Pro Rata Share of each
of Bank of America, National Association, Xxxxxx Trust and Savings Bank, and
U.S. Bank National Association shall automatically be as set forth in Schedule
1.1 of the Loan Agreement (as amended hereby).
2.2. Representations, Warranties, Covenants of Borrower. The Borrower
hereby represents and warrants that as of the date of this Amendment and after
giving effect thereto (a) no event has occurred and is continuing which, after
giving effect to this Amendment, constitutes a Default or an Event of Default,
(b) the representations and warranties of the Borrower contained in the Loan
Agreement and the other Financing Agreements are true and correct on and as of
the date hereof to the same extent as though made on and as of the date hereof,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case they are true and correct as of such earlier
date, (c) the execution and delivery by the Borrower of this Amendment and the
performance by the Borrower of the Loan Agreement, as amended by this Amendment,
are within its corporate power and have been duly authorized by all necessary
corporate action, (d) this Amendment and the Loan Agreement, as amended by this
Amendment, are legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms and (e) the execution and
delivery by the Borrower of this Amendment and the performance by the Borrower
of the Loan Agreement, as amended by this Amendment, do not require the consent
of any Person and do not contravene the terms of the Borrower's Articles of
Incorporation or By-Laws or any indenture, agreement or undertaking to which the
Borrower is a party or by which the Borrower or any of its property is bound.
2.3. Reference to and Effect on the Loan Agreement. Except as expressly
provided herein, the Loan Agreement and all other Financing Agreements shall
remain unmodified and in full force and effect and are hereby ratified and
confirmed. The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver or forbearance of (a) any right, power or remedy of the
Lenders under the Loan Agreement or any of the other Financing Agreements, or
(b) any Default or Event of Default. This Amendment shall constitute a Financing
Agreement.
2.4. Fees, Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, negotiation,
execution and delivery, and closing of this Amendment and all related
documentation, including the fees and out-of-pocket expenses of counsel for the
Agent with respect thereto.
2.5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto as separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, when taken together, shall constitute
but one and the same agreement. A telecopy of any such executed counterpart
shall be deemed valid and may be relied upon as an original.
2.6. Effectiveness. This Amendment shall be deemed effective prospectively
as of the Effective Date specified in the preamble upon execution by the
Borrower, the Agent and the Lenders (subject, however, to the prior satisfaction
of all other conditions for effectiveness as specified by Section 2.1).
2.7. No Oral Agreements. THIS WRITTEN AGREEMENT REPRESENTS 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 ORAL
AGREEMENTS BETWEEN THE PARTIES.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first written above.
AMERICAN BUILDERS &
ATTEST: CONTRACTORS SUPPLY CO., INC.
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
BANK OF AMERICA, NATIONAL ASSOCIATION AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
In its capacity as Agent In its capacity as Co-Agent
By: By:
Xxxxx Xxxxxx Name:
Vice President Title
BANK OF AMERICA, NATIONAL ASSOCIATION AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
In its capacity as a Lender In its capacity as a Lender
By: By:
Xxxxx Xxxxxx Name
Vice President Title
LASALLE BUSINESS CREDIT, INC. XXXXXX TRUST AND SAVINGS BANK
By: By:
Name Name
Title Title
FLEET CAPITAL CORPORATION WASHINGTON MUTUAL BANK
By: By:
Name Name
Title Title
U.S. BANK NATIONAL ASSOCIATION FOOTHILL CAPITAL CORPORATION
By: By:
Name Name
Title Title
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CONSENT AND AGREEMENT BY GUARANTORS
Each of the undersigned consents to the foregoing Amendment and each of the
undersigned agrees to the continued effectiveness of the Financing Agreements to
which it is a party. All references in each such Financing Agreement to the Loan
Agreement shall be deemed to be to the Loan Agreement as amended by the
foregoing Amendment and all prior and subsequent amendments thereof. This
Consent and Agreement is executed as of the Effective Date specified in the
Amendment.
AMCRAFT BUILDING PRODUCTS CO., INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
MULE-HIDE MANUFACTURING CO., INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
MULE-HIDE PRODUCTS CO., INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
SEVEN KH AVIATION, LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
VANDE HEY ROOF TILE INSTALLATION, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
VANDE HEY RALEIGH ROOF TILE
MANUFACTURING, INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
CONSENT AND AGREEMENT BY VALIDITY GUARANTORS
Each of the undersigned consents to the foregoing Amendment and each of the
undersigned agrees to the continued effectiveness of the Validity Certification,
executed and delivered by each of the undersigned, respectively, to the Agent
for the benefit of the Lenders. All references in each such Validity
Certification, respectively, to the Loan Agreement shall be deemed to be to the
Loan Agreement as amended by the foregoing Amendment and all prior and
subsequent amendments thereof. This Consent and Agreement is executed as of the
Effective Date specified in the Amendment.
___________________________________
Xxxxxxx X. Xxxxxxxxx
___________________________________
Xxxxxx X. Story
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SCHEDULE 1.1 TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
BY AND BETWEEN
AMERICAN BUILDERS & CONTRACTORS SUPPLY CO., INC.
AND
BANK OF AMERICA, NATIONAL ASSOCIATION
Lenders' Pro Rata Shares
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Lender Pro Rata Share
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Bank of America, National Association 18.181818%
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Fleet Capital Corporation 18.181818%
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American National Bank and Trust Company 11.636364%
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LaSalle Business Credit, Inc. 11.454546%
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Foothill Capital Corporation 10.909091%
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Xxxxxx Trust and Savings Bank 12.727273%
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Washington Mutual Bank 7.272727%
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U.S. Bank National Association 9.636364%
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