SECOND AMENDMENT TO ACCOUNT PURCHASE AGREEMENT
EXHIBIT 10.02
SECOND AMENDMENT TO ACCOUNT PURCHASE AGREEMENT
THIS SECOND AMENDMENT (this “Amendment”), dated as of March 31, 2011, is entered into by and
between XXXXXX XXXXXXXX MATERIALS, INC., a North Carolina corporation (the “Customer”), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, acting through its Xxxxx Fargo Business Credit operating division
(“WFBC”).
RECITALS
The Customer and WFBC are parties to an Account Purchase Agreement dated April 21, 2009 (as
amended from time to time, the “Account Purchase Agreement”). Capitalized terms used in these
recitals have the meanings given to them in the Account Purchase Agreement unless otherwise
specified.
The Customer has requested that certain amendments be made to the Account Purchase Agreement,
which WFBC is willing to make pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Amendment which are defined in the
Account Purchase Agreement shall have the same meanings as defined therein, unless otherwise
defined herein.
2. Section 2.22 of the Account Purchase Agreement is hereby amended and restated to read in
its entirety as follows:
“2.22 “Consolidated Debt” means at any date the Debt of the Customer and its Consolidated
Subsidiaries, determined on a consolidated basis as of such date; provided that, at
any date on which there are no Revolving Loans (as defined in the Credit Agreement)
outstanding and the Purchased Amount is zero, Consolidated Debt shall be reduced in an
amount equal to the lesser of (a) $200,000,000 and (b) the excess (i) of the unrestricted
cash and Temporary Cash Investments (as defined in the Credit Agreement) of the Customer and
its Consolidated Subsidiaries over (ii) $50,000,000.”
3. Section 2.71 of the Account Purchase Agreement is hereby amended and restated to read in
its entirety as follows:
| “2.71 “Settlement Period” means each calendar month; provided that (a) following an Event of Termination, WFBC may select the length of any Settlement Period which commences on or after the date on which such Event of Termination occurs; and (b) any Settlement Period which commences before an Event of Termination and would otherwise terminate after the date of such Event of Termination occurs shall end on the date such Event of Termination occurs.” |
4. Section 2.86 of the Account Purchase Agreement is hereby amended and restated to read in
its entirety as follows:
| “2.86 “WFBC Discount” means, for any Settlement Period, the product of (a) the sum of (i) LIBOR in effect as of the first day of such Settlement Period plus (ii) 135 basis points, multiplied by (b) the quotient of (i) the number of days in such Settlement Period divided by (ii) 360.” |
5. No Other Changes. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Account Purchase Agreement shall remain in full force and effect and shall
apply to any purchase thereunder.
6. Amendment Fee. The Customer shall pay WFBC on the first Settlement Date after
March 31, 2011, a fully earned, non-refundable fee in the amount of $80,000 in consideration of
WFBC’s execution and delivery of this Amendment.
7. Conditions Precedent. This Amendment shall be effective when WFBC shall have
received an executed original hereof.
8. Representations and Warranties. The Customer hereby represents and warrants to
WFBC as follows:
(a) The Customer has all requisite power and authority to execute this Amendment and any other
agreements or instruments required hereunder and to perform all of its obligations hereunder and
thereunder, and this Amendment and all such other agreements and instruments have been duly
executed and delivered by the Customer and constitute the legal, valid and binding obligation of
the Customer, enforceable in accordance with their terms.
(b) The execution, delivery and performance by the Customer of this Amendment and any other
agreements or instruments required hereunder have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate
any provision of any law, rule or regulation or of any order, writ, injunction or decree presently
in effect, having applicability to the Customer, or the articles of incorporation or by-laws of the
Customer, or (iii) result in a breach of or constitute a default under any agreement, lease or
instrument to which the Customer is a party or by which it or its properties may be bound or
affected.
(c) All of the representations and warranties contained in Article 6 of the Account Purchase
Agreement are correct on and as of the date hereof as though made on and as of such date, except to
the extent that such representations and warranties relate solely to an earlier date.
9. References. All references in the Account Purchase Agreement to “this Agreement”
shall be deemed to refer to the Account Purchase Agreement as amended hereby; and any and all
references in the Related Documents to the Account Purchase Agreement shall be deemed to refer to
the Account Purchase Agreement as amended hereby.
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10. No Waiver. The execution of this Amendment and the acceptance of all other
agreements and instruments related hereto shall not be deemed to be a waiver of any Event of
Termination under the Account Purchase Agreement or a waiver of any breach, default or event of
default under any Related Document or other document held by WFBC, whether or not known to WFBC and
whether or not existing on the date of this Amendment.
11. Costs and Expenses. The Customer hereby reaffirms its agreement under the Account
Purchase Agreement to pay or reimburse WFBC on demand for all costs and expenses incurred by WFBC
in connection with the Account Purchase Agreement and the Related Documents, including without
limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality
of the foregoing, the Customer specifically agrees to pay the fee required under Paragraph 6 of
this Amendment and all fees and disbursements of counsel to WFBC for the services performed by such
counsel in connection with the preparation of this Amendment and the documents and instruments
incidental hereto.
12. Choice of Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflicts of laws provisions,
except with respect to (a) Section 5-1401 of the New York General Obligations Law; and (b) the
choice of laws provisions of the Uniform Commercial Code as adopted in New York.
13. WAIVER OF JURY TRIAL. EACH OF THE CUSTOMER AND WFBC HEREBY IRREVOCABLY WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION AT LAW OR IN EQUITY OR IN ANY OTHER PROCEEDING BASED ON OR
PERTAINING TO THIS AMENDMENT.
14. Miscellaneous. This Amendment may be executed in counterparts and each
counterpart shall constitute one and the same original. Manually executed counterparts of the
signature pages of this Amendment may be delivered by the parties electronically so long as
transmitted pages are reproducible on paper medium upon receipt. Each party is duly authorized to
print any executed signature page so received and attach it to this Amendment, whereupon this
Amendment shall be deemed to have been duly executed and delivered by the transmitting party and
the paper copy of this Amendment assembled by the recipient with such signature page attached shall
be deemed an original for all purposes, absent manifest error or bad faith.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
|
XXXXXX XXXXXXXX MATERIALS, INC. | |||
By: /s/ Xxxxxx X. Xxxxx
Its: Authorized Signatory |
By: /s/ Xxxx X. Xxxxx
Its: Chief Financial Officer |
Signature Page to Second Amendment to Account Purchase Agreement
