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EXHIBIT 10.18.5
THIRD AMENDMENT
TO SECOND RESTATED CREDIT AGREEMENT
This Third Amendment to Second Restated Credit Agreement (this "Third
Amendment"), dated as of March 18, 1998, is entered into among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Building Products, Inc., a Georgia corporation, Wm. Cameron & Co., a Georgia
corporation, Ashley Aluminum, Inc., a Georgia corporation, CABP, Inc., an
Arizona corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Canada, Inc., a Canadian corporation,
NationsBank of Texas, National Association, as Issuing Bank and Agent, ABN AMRO
Bank, N.V., as Co-Agent, Canadian Imperial Bank of Commerce, as Canadian Issuing
Bank and Canadian Agent, and each Lender.
BACKGROUND
Borrowers, Agent, Co-Agent, Issuing Bank, Canadian Agent, Canadian
Issuing Bank and Lenders have entered into the Second Restated Credit Agreement
dated as of January 29, 1997 (such agreement, together with all amendments and
restatements thereof, the "Credit Agreement"). Borrower has requested that
Lenders, Agent, Issuing Bank, Co-Agent, Canadian Agent and Canadian Issuing Bank
amend the Credit Agreement to, among other things, modify certain covenants.
AGREEMENT
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, Borrowers, Agent,
Co-Agent, Issuing Bank, Canadian Agent, Canadian Issuing Bank, Lenders and
Guarantors covenant and agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein have the meaning given to them in the Credit Agreement.
2. Amendments. The Credit Agreement is amended as follows:
(a) Section 1.01 is amended by adding the following in
alphabetical order:
"Currency Swap (1998)" means the ISDA Agreement dated
effective March 16, 1998, together with all schedules, between ABN AMRO
Bank, N.V., Chicago Branch, and CA Canada.
"Note Purchase Agreement (1996 Series)" means the Note
Purchase Agreement dated as of April 1, 1996, among Parent and each
Senior Holder (1996 Series), as amended by the First Amendment dated as
of January 15, 1997, among Parent and each Senior Holder (1996 Series).
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"Note Purchase Agreement (1998 Series)" means each Note
Purchase Agreement dated as of March 1, 1998, between either Parent or
CA Canada, respectively, and each Senior Holder (1998 Series).
"Senior Holder (1996 Series)" means each Person named on
Schedule 4.08- a under the "Note Purchase Agreement (1996 Series)"
heading, and each permitted successor and assign.
"Senior Holder (1998 Series)" means each Person named on
Schedule 4.08- a under the "Note Purchase Agreement (1998 Series)"
heading, and each permitted successor and assign.
(b) The definition of "CAFS Credit Agreement" is deleted, and the
following is substituted in lieu thereof:
"CAFS Credit Agreement" means the Restated Credit Agreement
dated as of January 22, 1998, between CAFS and Bank One, Texas, N.A.,
as from time to time amended or restated.
(c) The definition of "Funded Debt to EBITDA Ratio" is deleted,
and the following is substituted in lieu thereof:
"Funded Debt to EBITDA Ratio" means, for any date of
determination, the ratio of (a) the amount of Funded Debt of Parent and
its Subsidiaries as at the date of determination, to (b) EBITDA for the
365-day period ended on the date of determination; provided, (i) with
respect to any calculation which includes the results for Parent's
fourth quarter of fiscal 1997, each determination of EBITDA shall have
added to it, without duplication for any non-cash charges used in such
determination of "EBITDA", $5,600,000; and (ii) with respect to any
calculation which includes results for the period beginning on the date
of issuance of the first note pursuant to the Note Purchase Agreement
(1998 Series), through June 30, 1998, each determination of Funded Debt
of Parent and its Subsidiaries shall have deducted from it an amount
equal to the difference between (y) the amount of all cash of Parent
and its Subsidiaries (other than CAFS) not subject to any Lien (other
than Liens in favor of Agent or any Lender or general rights of offset
in favor of institutions holding such funds), minus (z) $5,000,000.
(d) The definition of "Note Purchase Agreement" is deleted, and
the following is substituted in lieu thereof:
"Note Purchase Agreement" means each Note Purchase Agreement
(1996 Series) and each Note Purchase Agreement (1998 Series).
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(e) The definition of "Senior Holder" is deleted.
(f) Section 3.03 is deleted and the following is substituted in
lieu thereof:
3.03 Conditions Precedent to Certain Advances, Letters of
Credit and Canadian Letters of Credit. The obligation of each Lender to
make each Advance in excess of United States $75,000,000 (including the
Initial Advance) and of Issuing Bank or Canadian Issuing Bank to issue
each Letter of Credit or Canadian Letter of Credit to the extent that
Borrowers' collective Obligations under this Agreement and the other
Loan Papers shall in the aggregate exceed United States $75,000,000
shall be subject to the further condition precedent that on the date of
such Advance or the issuance of such Letter of Credit or Canadian
Letter of Credit, the Borrowers shall have received the consent of the
Senior Holders (1996 Series) holding no less than 66 2/3% of the
principal amount of the Senior Notes issued pursuant to a Note Purchase
Agreement (1996 Series) allowing each Guarantor to guarantee the entire
amount of the Commitment.
(g) The second sentence of Section 4.08 is deleted and the
following is substituted in lieu thereof:
Schedule 4.08-a is a complete and correct description of each
Note Purchase Agreement, each Senior Note, each other Senior Note
Paper, each Senior Holder (1996 Series) and each Senior Holder (1998
Series).
(h) Section 5.07 is deleted and the following is substituted in
lieu thereof:
5.07 Debt. Parent and Subsidiaries other than CAFS. Parent
shall not, and shall not permit any of its Subsidiaries (other than
CAFS) to, create, incur, assume, become, or be liable in any manner in
respect of, or suffer to exist, any Debt, except (a) Debt under the
Loan Papers, (b) Funded Debt under each Note Purchase Agreement and
guaranties of such Debt made by Parent and Subsidiaries of Parent, (c)
other Debt in existence on the date hereof, as shown on Schedule
4.08-a, (d) purchase money Debt incurred for the acquisition of
tangible assets, provided the aggregate principal amount of such Debt
incurred in any fiscal year shall not exceed $1,000,000, (e) trade
payables incurred and paid in the ordinary course of business, (f)
Contingent Liabilities under or relating to the Loan Papers, (g)
Contingent Liabilities in existence on the date hereof, as shown on
Schedule 4.08-a, (h) guarantees by Parent and its Subsidiaries (other
than CAFS) of obligations in respect of Interest Hedge Agreements
permitted under Section 5.19, (i) Debt of each Subsidiary of Parent
(other than CAFS) to Parent or to another Subsidiary of Parent, (j)
Contingent Liabilities resulting from the endorsement of negotiable
instruments for collection in the ordinary course of business, (k)
Convertible Subordinated Debt in an aggregate principal amount not
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to exceed at any time $25,000,000, (l) as to Parent and its
Subsidiaries (other than CAFS) on a consolidated basis, other Debt not
to exceed at any time, in the aggregate principal amount, the
difference between (i) $10,000,000, minus (ii) the sum of all
Attributable Debt in respect of all Sale and Leasebacks occurring on
and after the Effective Date, (m) renewals and restatements of any Debt
described in Sections 5.07(a) through (l), provided the principal
amount of the Debt renewed or restated does not exceed the principal
amount of such Debt immediately prior to such renewal or restatement,
and (n) as to Parent, only, its obligations under the CAFS Guaranty.
(i) Section 5.09 is amended by deleting "and" immediately
preceding "(k)" and by adding the following immediately preceding the period:
, and (l) Debt of CAFS payable to Cameron permitted by
Section 5.20(b).
(j) Section 5.18(a) is amended by deleting each "Effective Date"
and substituting "March 1, 1998", in lieu thereof.
(k) Section 5.19 is deleted and the following is substituted in
lieu thereof:
5.19 Swap Exposure. Parent shall not, and shall not permit any
of its Subsidiaries to, enter into or become liable in respect of any
Interest Hedge Agreement other than (a) with respect any Interest Hedge
Agreement entered into solely to manage risk associated with interest
to accrue with respect to Funded Debt of Parent or such Subsidiary of
Parent, Interest Hedge Agreements pursuant to which the aggregate
notional amount (together with the aggregate notional amount of all
other Interest Hedge Agreements) does not exceed the aggregate
principal amount of all Funded Debt, (b) the Currency Swap (1998)
(excluding any amendment which increases the obligations of CA Canada),
and (c) other Interest Hedge Agreements entered into by Parent or any
of its Subsidiaries solely to manage risk associated with interest rate
and currency value fluctuations (and not for any speculative purpose
such as making a profit (or incurring a loss) solely as a result of
interest rate or currency value fluctuations or timing of payments).
(l) Section 5.20(b) is deleted and the following is substituted
in lieu thereof:
(b) Neither Parent nor any Subsidiary of Parent shall be
liable at any time for any CAFS Liability or extend credit to or for
the benefit of CAFS or any CAFS Subsidiary; provided, (i) Parent may
(A) acquire for cash equity of CAFS (in addition to all equity of CAFS
owned by Parent on December 3, 1996), and (B) execute and perform under
the CAFS Guaranty, and (C) make loans to CAFS, or (D) do any
combination of activities described in clauses (A), (B) and (C), and
(ii) Cameron may make advances to CAFS, the proceeds of which advances
will be
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used by CAFS to pay corporate overhead expenses of CAFS; provided,
that, the sum of (1) the aggregate gross cash purchase price of equity
acquired on and prior to December 3, 1996 and pursuant to clause
(i)(A), plus (2) the aggregate amount for which Parent may be liable
under the CAFS Guaranty, plus (3) the aggregate amount paid by Parent
and the fair market value of property of Parent transferred with
respect to all other CAFS Liabilities, plus (4) the aggregate amount of
all other liabilities of Parent in respect of CAFS Liabilities (valued
based on the reasonable determination of Parent (including in such
valuation the probability of any claim maturing) or, if Agent disagrees
with any such determination, based on the reasonable determination of
Agent), plus (5) the aggregate amount of all unpaid principal of and
accrued interest on all loans made by Parent to CAFS, plus (6) the
aggregate amount of all unpaid principal of and accrued interest on all
loans made by Cameron to CAFS, shall not exceed at any time
$18,500,000; provided, that, Parent may not make or have outstanding
any loan to or other extension of credit to or for the benefit of CAFS
if at any time (y) Parent is not the sole owner of all equity and
rights to acquire any equity of CAFS and (z) Parent does not have a
perfected, first priority security interest in all Consumer Notes (as
defined in the CAFS Credit Agreement) which do not qualify as Eligible
Consumer Notes (as defined in the CAFS Credit Agreement) solely due to
their non-conformity with the then-applicable requirements related to
Warehousing Period (as defined in the CAFS Credit Agreement).
(m) Schedule 4.08-a is deleted and a new Schedule 4.08-a, in the
form of Schedule 4.08-a to this Third Amendment, is substituted in lieu thereof.
(n) Exhibit C is deleted and a new Exhibit C, in the form of
Exhibit A to this Third Amendment, is substituted in lieu thereof.
3. Representations and Warranties. Borrowers and Guarantors, jointly and
severally, represent and warrant to Agent, Issuing Bank, Co-Agent, Canadian
Agent, Canadian Issuing Bank and each Lender that, as of the date hereof and
after giving effect to the amendments in Section 2, the following are true and
correct:
(a) The representations and warranties contained in the Credit
Agreement and each of the other Loan Papers are true and correct in all material
respects on and as of the date hereof as though made on and as of such date
(except as to representations and warranties which (i) refer to a specific date,
(ii) have been modified by transactions permitted pursuant to the Credit
Agreement or any other Loan Paper, or (iii) have been specifically waived in
writing by Agent).
(b) Each Borrower and each Guarantor has full power and authority
to execute, deliver and perform this Third Amendment, and this Third Amendment,
the Credit Agreement and each other Loan Paper, constitute the legal, valid and
binding obligation of such Borrower and such
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Guarantor (with respect to Loan Papers to which it is a party), enforceable in
accordance with their terms (subject as to enforcement of remedies to any
applicable Debtor Relief Laws).
(c) No authorization, approval, consent or other action by, notice
to, or filing with, any Tribunal or other Person, is required for the execution,
delivery or performance by either Borrower or any Guarantor of this Third
Amendment.
(d) No Obligor has made a material misstatement of fact, or failed
to disclose any fact necessary to make the facts disclosed not misleading, to
Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank or any
Lender during the course of negotiation of this Third Amendment.
4. Conditions of Effectiveness. This Third Amendment shall be
effective on the date Agent delivers to Borrower written notice that each of the
following has occurred or exists ("Amendment Date"):
(a) The effectiveness of this Third Amendment shall not contravene
any Law applicable to Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian
Issuing Bank or any Lender.
(b) No Material Adverse Change, as determined by Agent, shall have
occurred and be continuing since December 31, 1997.
(c) No Default or Event of Default shall exist.
(d) Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian
Issuing Bank, each Lender and each Obligor shall have executed and received
counterparts of this Third Amendment.
(e) Agent shall have received a complete and correct copy of each
of the documents described in Sections 4.1(b), (c), (d) and (e) of the CAFS
Credit Agreement.
(f) Agent shall have received a complete and correct copy of the
executed Note Purchase Agreement (1998 Series) and each related note.
(g) Agent shall have received a complete and correct copy of the
ISDA Agreement dated effective March 16, 1998, together with all schedules,
between ABN AMRO Bank, N.V., Chicago Branch, and CA Canada and each guaranty and
other agreements assuring the obligations of CA Canada under such agreements.
(h) Agent shall have received, contemporaneously with Borrowers'
execution of this Third Amendment, payment of all fees (including attorneys'
fees) incurred by Agent prior to execution of this Third Amendment in the
preparation, negotiation and execution of this Third Amendment.
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(i) Agent shall have received, in form and substance satisfactory
to Agent and its counsel, such other approvals, documents, certificates, and
instruments as Agent shall require.
Agent, Issuing Bank, Co-Agent, Canadian Agent, Canadian Issuing Bank and each
Lender may conclusively rely on the certificates delivered pursuant to Section
3.01 of the Credit Agreement until Agent receives notice in writing to the
contrary.
5. Ratification. Each Borrower and each Guarantor each (a) represents and
warrants that it has received and reviewed this Third Amendment and (b) ratifies
and affirms its obligations under the Loan Papers, as amended by this Third
Amendment.
6. Reference to the Credit Agreement.
(a) On the Amendment Date, 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 hereby.
(b) The Credit Agreement, as affected by the amendments referred
to above, shall remain in full force and effect and is hereby ratified and
confirmed.
(c) THE CREDIT AGREEMENT, AS AFFECTED BY THE AMENDMENTS CONTAINED
IN THIS THIRD AMENDMENT, TOGETHER WITH EACH OTHER LOAN PAPER, REPRESENT THE
FINAL AGREEMENT AMONG 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 AMONG THE PARTIES.
7. Execution in Counterparts. This Third Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
8. Governing Law; Binding Effect. This Third Amendment shall be governed
by and construed in accordance with the laws of the State of Texas and be
binding upon the parties hereto and their respective permitted successors and
assigns.
9. Headings. Section headings in this Third Amendment are included herein
for convenience of reference only and shall not constitute part of this Third
Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment as of March 18, 1998.
PARENT:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BUILDING PRODUCTS,
INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇, CFO & Treasurer
-------------------------------------
(Print Name) (Print Title)
CA CANADA:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CANADA, INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, EVP
-------------------------------------
(Print Name) (Print Title)
GUARANTORS:
ASHLEY ALUMINUM, INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
-------------------------------------
(Print Name) (Print Title)
WM. CAMERON & CO.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, EVP, CFO & Treasurer
-------------------------------------
(Print Name) (Print Title)
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CABP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ , Vice President
-------------------------------------
(Print Name) (Print Title)
AGENT:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
CANADIAN AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Commercial Lending
Specialist
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(Print Name) (Print Title)
CO-AGENT:
ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ , Vice President
-------------------------------------
(Print Name) (Print Title)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , Group Vice
President
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(Print Name) (Print Title)
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ISSUING BANK:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
CANADIAN ISSUING BANK:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Commerical Lending
Specialist
-------------------------------------
(Print Name) (Print Title)
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Commercial Lending
Specialist
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(Print Name) (Print Title)
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ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ , Vice President
-------------------------------------
(Print Name) (Print Title)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ , Group Vice
President
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(Print Name) (Print Title)
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Relationship
Manager
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(Print Name) (Print Title)
SUNTRUST BANK, ATLANTA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President
-------------------------------------
(Print Name) (Print Title)
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ , Vice President
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(Print Name) (Print Title)
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