EXHIBIT 10.11
FIRST AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
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This First Amendment to Second Amended and Restated Loan and Security
Agreement (this "Amendment"), effective as of January 15, 1999 (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"), American National Bank and Trust Company of Chicago, (the "Co-
Agent"), and NationsBank, N.A., as Agent for the Lenders (in such capacity, the
"Agent"):
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agent are party to
that certain Second Amended and Restated Loan and Security Agreement (the "Loan
Agreement") dated as of May 12, 1998, pursuant to which the Lenders have agreed
to make certain loans and extend certain other financial accommodations to the
Borrower on the terms and subject to the conditions provided therein.
WHEREAS, the Borrower, the Agent, the Co-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, the parties hereto agree
as follows:
1. Definitions. All terms defined in the Loan Agreement and not otherwise
defined herein, wherever used in this Amendment, shall have the same meaning in
this Amendment as are prescribed to such terms in the Loan Agreement as amended
hereby.
2. Amendment to Definition of "Eurodollar Interest Period." The definition
of the term "Eurodollar Interest Period" contained in Section 1.1 of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"`Eurodollar Interest Period' shall mean, with respect to a Eurodollar
Loan, a period of one (1), two (2), three (3), four (4), six (6) or twelve
(12) months commencing on a Business Day selected by the Borrower pursuant
to this Agreement. Such Eurodollar Interest Period shall end on (but
exclude) the day which corresponds numerically to such date one (1), two
(2), three (3), four (4), six (6) or twelve (12) months thereafter,
provided, that if there is no such numerically corresponding day in such
first (lst), second (2nd), third (3rd), fourth (4th), sixth (6th) or
twelfth (12) succeeding month, such Eurodollar Interest Period shall end on
the last Business Day of such first (lst), second (2nd), third (3rd),
fourth (4th), sixth (6th) or twelfth (12th) succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a
Business Day, such Eurodollar Interest Period shall end on the next
succeeding Business Day, provided, that if said next succeeding Business
Day falls in a new month, such Eurodollar Interest Period shall end on the
last preceding Business Day."
3. Amendment to Section 2.11 of the Loan Agreement. Clause (a) in Section
2.11 of the Loan Agreement is amended by amending and restating the phrase
"provided, that no more than five (5) Eurodollar Interest Periods may be
in existence at any one time;" to read as follows: "provided, that no more than
eight (8) Eurodollar Interest Periods may be in existence at any one time;".
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4. Amendment to Section 3.2 of the Loan Agreement. Clause (a) in Section
3.2 of the Loan Agreement is amended and restated in its entirety to read as
follows: "(a) Accounts which remain unpaid more than sixty (60) days
from the stated due date or more than 120 days from the invoice date, in each
case based upon the end-of-the-month aging;".
5. Amendment to Exhibit E to the Loan Agreement. Exhibit E to the Loan
Agreement is hereby amended and restated to read in its entirety as shown on
Exhibit E attached to this Amendment.
6. Conditions to Effectiveness. This Amendment, including the amendments
and the other terms set forth herein, shall become effective as of the date
of this Amendment upon the satisfaction of the following conditions precedent,
all of which must be acceptable in form and substance to the Agent and the
Lenders in each of their sole discretion.
(a) Consent and Reaffirmation of Guarantors. Agent has received the
consent of each of Amcraft Building Products Co., Inc. and Mule-Hide
Products Co., Inc. (collectively, the "Guarantors") to this Amendment and
the reaffirmation of each of the Financing Agreements, in form and
substance satisfactory to the Agent.
(b) Validity Certification Reaffirmations. Agent has received
reaffirmations of the Validity Certifications by each of Xxxxxx X. Story
and Xxxxxxx X. Xxxxxxxxx, in form and substance satisfactory to the Agent.
(c) 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.
7. Representation and Warranties of Borrower. The Borrower hereby represents
and warrants that as of the date of this Amendment (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, (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, and (f) except as disclosed on
Schedule 1 attached hereto, all schedules attached to the Loan Agreement remain
true, correct and complete.
8. 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.
9. 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.
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10. 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.
11. Effectiveness. This Amendment shall be deemed effective prospectively as
of the Effective Date specified in the preamble upon execution by the Borrower,
the Agent, the Co-Agent and each of the Lenders whose names appear on the
signature pages below.
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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:___________________
NATIONSBANK, N.A.
In its capacity as Agent
By:______________________
Name:____________________
Title:___________________
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
In its capacity as Co-Agent
By:______________________
Name:____________________
Title:___________________
NATIONSBANK, N.A.
In its capacity as a Lender
By:______________________
Name:____________________
Title:___________________
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
In its capacity as a Lender
By:______________________
Name:____________________
Title:___________________
BANKAMERICA BUSINESS CREDIT, INC.
By:______________________
Name:____________________
Title:___________________
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LASALLE BUSINESS CREDIT, INC.
By:______________________
Name:____________________
Title:___________________
XXXXXX TRUST AND SAVINGS BANK
By:______________________
Name:____________________
Title:___________________
FLEET CAPITAL CORPORATION
By:______________________
Name:____________________
Title:___________________
SANWA BUSINESS CREDIT CORPORATION
By:______________________
Name:____________________
Title:___________________
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Each of the undersigned, by its execution below, 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, respectively. All references
in any Financing Agreement to the Loan Agreement shall be deemed to be to the
Loan Agreement as amended by the Amendment and all prior and subsequent
amendments thereto. This agreement has been executed as of January 15, 1999.
GUARANTORS:
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AMCRAFT BUILDING PRODUCTS CO., INC.
By:______________________
Name:____________________
Title:___________________
MULE-HIDE PRODUCTS CO., INC.
By:______________________
Name:____________________
Title:___________________
Each of the undersigned agrees to the continued effectiveness of the Validity
Certification executed by it and delivered to Agent. All references in each
such Validity Certification 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 thereto. This agreement has been executed as of January
15, 1999.
_______________________________________
Xxxxxxx X. Xxxxxxxxx
_______________________________________
Xxxxxx X. Story
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Schedule 1
Additional Schedule Information
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Exhibit E
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Form of Borrowing Notice
NationsBank, N.A., as agent
000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Business Credit/Division Manager: URGENT
Ladies and Gentlemen:
The undersigned hereby notifies you in connection with the Second Amended
and Restated Loan and Security Agreement dated as of May 12, 1998, among the
undersigned, certain lenders, NationsBank, N.A., as agent for such lenders, and
American National Bank and Trust Company of Chicago, as co-agent for the Lenders
(the "Loan Agreement"), of the undersigned's election that $_________________
[must be in the minimum amount of $5,000,000 and in an integral multiple of
$1,000,000] of the principal due on the Revolving Loans bear interest at a
Eurodollar Rate, commencing on __________________ [must be a Business Day at
least three Business Days after the date of this Borrowing Notice]. The
Eurodollar Interest Period with respect to such portion of the Revolving Loans
shall be ________________ [1, 2, 3, 4, 6 or 12] months. All capitalized terms
used herein shall have the meanings ascribed in the Loan Agreement.
Very truly yours,
AMERICAN BUILDERS & CONTRACTORS
SUPPLY CO., INC.
By:
----------------------------
Name:
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