EURAMAX INTERNATIONAL PLC
Exhibit 10.28
AMENDMENT AND WAIVER, dated as of April 6, 1999 (this "Amendment"), among
Euramax International plc, a company organized under the laws of England and
Wales ("Euramax"), the other Loan Parties referred to below, each of the
Lenders, the Swing Loan Lender and the Issuer referred to below and Paribas
(formerly, Banque Paribas), as agent (in such capacity, the "Agent") for said
Lenders, the Swing Loan Lender and the Issuer, to (a) the Amended and Restated
Credit Agreement, dated as of July 16, 1997, as amended (said Agreement, as so
amended and as the same may be further amended, supplemented or otherwise
modified from time to time, being the "Credit Agreement", and the terms defined
therein being used herein as therein defined unless otherwise defined herein),
among Euramax, the other Loan Parties party thereto, the financial institutions
party thereto, as lenders (the "Lenders"), the Swing Loan Lender and the Issuer
referred to therein and the Agent, and (b) the other Loan Documents referred to
below. W I T N E S S E T H :
WHEREAS, (a) Euramax owns, directly, 99,907 shares of the outstanding shares of
Stock of French Holdings, all of which shares are pledged to the Agent, for the
ratable benefit of the Secured Parties, pursuant to the Euramax Nantissement to
secure the Guarantied Obligations of Euramax, except that only 65% of such
shares of Stock of French Holdings secure the Excluded U.S. Liabilities; (b)
Dutch Holdings owns, directly, 287,744 shares of the outstanding shares of Stock
of French Holdings, all of which shares are pledged to the Agent, for the
ratable benefit of the Secured Parties, pursuant to the Dutch Holdings
Nantissement to secure the Guarantied Obligations of Dutch Holdings, which
Guarantied Obligations exclude the Excluded U.S. Liabilities; and (c) members of
the board of directors of French Holdings own all remaining outstanding shares
of Stock of French Holdings, all of which remaining shares are Qualifying
Shares;
WHEREAS, Euramax and Dutch Holdings have proposed that Euramax transfer
to Dutch Holdings all shares of Stock of French Holdings owned by Euramax (the
"Proposed French Holdings Share Transfer") in exchange for an equivalent value
of shares of newly issued Stock of Dutch Holdings (the "Dutch Holdings Stock
Issuance" and, together with the Proposed French Holdings Share Transfer, the
"Proposed Share Transactions"), all of which shares of Stock of French Holdings
proposed to be transferred to Dutch Holdings and all of which shares of Stock of
Dutch Holdings proposed to be issued by Dutch Holdings to Euramax would be
pledged to the Agent, for the ratable benefit of the Secured Parties, to secure,
in the case of such shares of Stock of French Holdings, the Guarantied
Obligations of Dutch Holdings and to secure, in the case of such shares of Stock
of Dutch Holdings, the Guarantied Obligations of Euramax, except that no such
shares of Stock of French Holdings will secure the Excluded U.S. Liabilities and
only 65% of such shares of Stock of Dutch Holdings will secure the Excluded U.S.
Liabilities;
WHEREAS, U.S. Operating Co. proposes acquiring all of the outstanding capital
stock of Atlanta Metal Products, Inc., a Georgia corporation ("Atlanta Metal"),
from all stockholders of Atlanta Metal, all of whom are individuals (the
"Atlanta Metal Sellers"), for an aggregate purchase price, payable in cash, of
approximately $17,000,000 (which amount includes costs and expenses associated
with such acquisition), a portion of which purchase price is contemplated to be
deposited into an escrow account maintained by an escrow agent and then
increased or decreased by certain working capital adjustments, decreased by any
offset for indemnification payable under the purchase agreements for said
acquisition and paid to the Atlanta Metal Sellers upon their and U.S. Operating
Co.'s agreement on said working capital adjustment (said purchase price,
including the portion thereof deposited into escrow, being the
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"Atlanta Metal Purchase Price" and said acquisition for the Atlanta Metal
Purchase Price being the "Atlanta Metal Acquisition");
WHEREAS, Coated Products U.K. proposes acquiring all of the outstanding capital
stock of Color Clad PLC, an English company ("Color Clad"), from all of its
shareholders, all of whom are individuals (the "Color Clad Sellers"), for an
aggregate purchase price, payable in cash, of the pound sterling equivalent of
approximately $5,000,000 (a portion of which is contemplated to be retained by
Coated Products U.K. and, subject to a net working capital adjustment, paid to
the Color Clad Sellers) (said purchase price, as adjusted by any increases or
decreases to net working capital, being the "Color Clad Purchase Price" and said
acquisition, on said terms, being the "Color Clad Acquisition");
WHEREAS, (a) U.S. Operating Co. intends to finance the Atlanta Metal Acquisition
with General Purpose Revolving Credit Loans (said Loans borrowed by U.S.
Operating Co. for said purpose being "Atlanta Metal Loans"), provided that
certain provisions set forth in the Credit Agreement relating to the U.S.
Borrowing Base that would restrict the amount of such Loans are waived as set
forth in this Amendment, and (b) Coated Products U.K. intends to finance the
Color Clad Acquisition from the proceeds of General Purpose Revolving Credit
Loans to be borrowed by U.K. Operating Co.;
WHEREAS, Section 2.7(d)(iii) of the Credit Agreement provides for, among other
things, a mandatory prepayment by the Borrowers of the Term Loans, within 100
days of the last day of Fiscal Year 1998, in an amount equal to 75% of Excess
Cash Flow for Fiscal Year 1998 (the "1998 Excess Cash Payment"), and Section
2.7(c) of the Credit Agreement provides that, among other things, until the
Additional Term Loans are paid in full, no partial prepayment of any other Term
Loan shall be made;
WHEREAS, the Loan Parties have requested that the Lenders, the Swing Loan Lender
and the Agent agree to (a) amend the Loan Documents to, among other things, (i)
permit the Proposed Share Transactions, the proposed Atlanta Metal Acquisition
and the proposed Color Clad Acquisition, and (ii) provide for certain provisions
relating to Y2K Compliance (as hereinafter defined); (b) waive certain U.S.
Borrowing Base restrictions for purposes of determining the amount of Atlanta
Metal Loans available to be borrowed by U.S. Operating Co. and, for a period of
six months from the date hereof, the amount of Revolving Credit Loans permitted
to remain outstanding; and (c) waive the provisions of Section 2.7(d)(iii) of
the Credit Agreement to the extent that said provisions require that the
Borrowers make the 1998 Excess Cash Payment, provided that Dutch Company makes a
prepayment of U.S. Dollar Term B Loans and Dutch Company Term Loans in the
amount set forth below, to be applied as set forth below; and
WHEREAS, the Lenders, the Swing Loan Lender and the Agent are willing to agree
to such amendments and waivers, subject to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the satisfaction of
the conditions precedent set forth in Section 3, the Credit Agreement is hereby
amended as follows:
1.1 AMENDMENT TO SECTION 1.1. (a) Section 1.1 thereof is amended by adding
thereto, in the appropriate alphabetical order, the following new
definitions:
"`APRIL 1999 AMENDMENT' means the Amendment and Waiver, dated as of April 6,
1999, among the Loan Parties, the Lenders, the Swing Loan Lender and the Agent,
to this Agreement and the Loan
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Documents referred to therein.
"`ATLANTA METAL' has the meaning specified in the April 1999 Amendment."
"`ATLANTA METAL ACQUISITION' has the meaning specified in the April 1999
Amendment."
"`ATLANTA METAL ACQUISITION CONDITIONS' means each of the following conditions:
(a) Each of the statements set forth in Section 3.1(s) (other than clause
(ii) thereof) shall be true and correct with respect to the Atlanta Metal
Acquisition, with references therein (i) to the `Existing Loans and Loans
being made on the Effective Date' to be deemed to be references to all
outstanding Loans and the Atlanta Metal Loans, (ii) to the `Effective
Date' to be deemed to be references to the date of consummation of the
Atlanta Metal Acquisition (the `CONSUMMATION DATE' thereof), (iii) to
the `Fabral Purchase Documents', the `Fabral Purchase Agreement' or to a
`Related Document' to be deemed to be references to the Related Documents
with respect to the Atlanta Metal Acquisition, (iv) to the `Transactions'
or to the `Fabral Purchase' to be deemed to be references to the Atlanta
Metal Acquisition, (v) to `Fabral Holdings' and/or `Fabral, Inc.' to be
deemed to be references to Atlanta Metal, and (vi) to the aggregate
purchase price of the Fabral Purchase as specified in the Fabral Purchase
Agreement to be references to the Atlanta Metal Purchase Price;
(b) The Agent shall have received (in sufficient copies for each Lender)
(i) from Atlanta Metal (A) on the Consummation Date, a supplement to each
of this Agreement and the Domestic Subsidiary Guaranty, each in form and
substance satisfactory to the Agent, pursuant to which Atlanta Metal shall
agree to be bound by the terms of, and for all purposes be, a Loan Party
under and party to and a Guarantor under and party to this Agreement and
the Domestic Subsidiary Guaranty, respectively, and shall agree to all
other matters set forth therein, (B) a Domestic Security Agreement, duly
executed by Atlanta Metal, together with Blocked Account Letters, duly
executed by Atlanta Metal and each of its Blocked Account Banks, and other
appropriate Collateral Documents (including, in the case of any Real Estate
or Lease owned by Atlanta Metal, all Collateral Documents referred to in
Section 3.1(j) of the Existing Credit Agreement, as in effect prior to
giving effect to the amendment and restatement thereof pursuant to this
Agreement, and with all such Real Estate and all such Leases to be deemed
to be `Specified Real Estate' and `Initial Specified Leases', as such terms
are defined in said Existing Credit Agreement), each in form and substance
satisfactory to the Agent, granting to the Agent a first priority security
interest in all assets of Atlanta Metal as security for its Guaranteed
Obligations, and (C) all other documents required to be delivered pursuant
to Section 3.1(j) of the Existing Credit Agreement (with references therein
to "Specified Real Estate" and "Initial Specified Leases" to be deemed to
be references to the Real Estate and Leases owned by Atlanta Metal); (ii)
from U.S. Operating Co. on the Consummation Date, a Pledge Amendment under
(and as defined in) the U.S. Operating Co. Pledge Agreement granting to the
Agent a first priority security interest in the Stock of Atlanta Metal as
security for the Obligations, together with the certificates representing
such Stock and undated stock powers therefor; (iii) evidence that there are
no prior Liens or charges on any above-referenced assets except as
permitted by Section 7.1(a) and that there are no prior Liens or charges on
any above-referenced Stock; (iv) executed copies of proper Financing
Statements (Form UCC-1) under the Uniform Commercial Code of all
jurisdictions, and evidence of completion of all recordings and other
filings in all jurisdictions (including of instruments to be filed with
respect to Intellectual Property Collateral), as may be necessary or, in
the opinion of the Agent, desirable to perfect the Liens created by the
Collateral Documents to be executed pursuant to this subsection (b); (v)
evidence of satisfactory insurance coverage as to the assets of Atlanta
Metal and compliance with all provisions of the Loan Documents with respect
to such insurance; (vi) satisfactory opinions of independent counsel to the
Loan Parties, each dated the Consummation Date; (vii) from Atlanta Metal,
the documents referred to in Sections 3.1(b) and (c) required to be
delivered by a Loan Party, and from U.S. Operating Co., the documents
referred to in clause (x) of Section 3.1(b) required to be delivered
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by a Loan Party, in each case, dated the Consummation Date and with
references therein to (A) the `Fabral Purchase Document' or to the `Related
Documents' to be deemed to be references to the Related Documents entered
into in connection with the Atlanta Metal Acquisition, (B) the
`Transactions' to be deemed to be references to the Atlanta Metal
Acquisition, (C) the `Effective Date' to be deemed to be references to the
Consummation Date and (D) the `Loan Documents' to be deemed to be
references to the Loan Documents to be delivered, pursuant to this
subsection (b), on the Consummation Date; (viii) a letter, dated the
Consummation Date, from the Process Agent, in substantially the form of
Exhibit O, agreeing to act as Process Agent for Atlanta Metal; and (ix)
such financial and other information regarding Atlanta Metal as the Agent
or any Lender shall reasonably request; and
(c) Each document relating to the Atlanta Metal Acquisition shall be
satisfactory in form and substance to the Agent and the Majority Lenders in
their sole judgment exercised reasonably."
"`ATLANTA METAL PURCHASE PRICE' has the meaning specified in the April
1999 Amendment."
"`COLOR CLAD' has the meaning specified in the April 1999 Amendment."
"`COLOR CLAD ACQUISITION' has the meaning specified in the April 1999
Amendment."
"`COLOR CLAD ACQUISITION CONDITIONS' means each of the following conditions:
(a) Each of the statements set forth in Section 3.1(s) (other than clause (ii)
thereof) shall be true and correct with respect to the Color Clad Acquisition,
with references therein (i) to the `Existing Loans and Loans being made on the
Effective Date' to be deemed to be references to all outstanding Loans and any
General Purpose Revolving Credit Loans being borrowed by U.K. Operating Co., the
proceeds of which are contributed to Coated Products U.K. to finance the Color
Clad Acquisition, (ii) to the `Effective Date' to be deemed to be references to
the date of consummation of the Color Clad Acquisition (the `CONSUMMATION DATE'
thereof), (iii) to the `Fabral Purchase Documents', the `Fabral Purchase
Agreement' or to a `Related Document' to be deemed to be references to the
Related Documents with respect to the Color Clad Acquisition, (iv) to the
`Transactions' or to the `Fabral Purchase' to be deemed to be references to the
Color Clad Acquisition, (v) to `Fabral Holdings' and/or `Fabral, Inc.' to be
deemed to be references to Color Clad, and (vi) to the aggregate purchase price
of the Fabral Purchase as specified in the Fabral Purchase Agreement to be
deemed to be references to the Color Clad Purchase Price;
(b) The Agent shall have received (in sufficient copies for each Lender), (i) a
legal mortgage of shares, dated the Consummation Date and duly executed by
Coated Products U.K. and the U.K. Trustee, for the ratable benefit of the
Secured Parties, pursuant to which Coated Products U.K. shall pledge the Stock
of Color Clad to secure the Guarantied Obligations of Coated Products U.K.
(which legal mortgage of shares shall constitute a `Pledge Agreement'),
together with duly executed stock transfer forms and evidence that (A) such
Pledge Agreement shall have been duly prepared and organized for submission for
registration on Form 395 to the Companies Register in England and Wales, which
registration shall be made within 20 days after the Consummation Date, and
(B) all other action necessary or, in the opinion of the Agent, desirable to
perfect and protect the Lien created by such Pledge Agreement has been taken;
(ii) such counsel opinions and certificates as the Agent or any Lender shall
reasonably request; and (iii) such financial and other information regarding
Color Clad as the Agent or any Lender shall reasonably request; and
(c) Each document relating to the Color Clad Acquisition shall be satisfactory
in form and substance to the Agent and the Majority Lenders in their sole
judgment exercised reasonably."
"`COLOR CLAD PURCHASE PRICE' has the meaning specified in the April 1999
Amendment."
"`DUTCH HOLDINGS STOCK ISSUANCE' means, in exchange for the 99,907 shares of
Stock of French Holdings
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to be transferred to Dutch Holdings by Euramax in the Permitted French Holdings
Share Transfer, the issuance by Dutch Holdings to Euramax of an equivalent value
of shares of Stock of Dutch Holdings."
"`FRENCH HOLDINGS SHARE TRANSFER CONDITIONS' means, with respect to the
Proposed French Holdings Share Transfer, the following conditions precedent
with respect thereto:
(a) All necessary governmental and third party approvals (including,
without limitation, under the Senior Subordinated Indenture, if required)
in connection therewith and the Dutch Holdings Stock Issuance shall have
been obtained and remain in effect, neither the Proposed French Holdings
Share Transfer nor the Dutch Holdings Stock Issuance could have a Material
Adverse Effect and, after giving effect thereto, there shall exist no
Default or Event of Default and the representations and warranties of the
Loan Parties in the Loan Documents shall be true and correct in all
material respects;
(b) The Agent shall have received each of the following, each dated the
date of consummation of the Proposed French Holdings Share Transfer (the
`PROPOSED FRENCH HOLDINGS SHARE TRANSFER DATE') and in form and substance
satisfactory to the Agent and, except for any instruments referred to
below, in sufficient copies for the Issuer and each Lender, together with,
unless waived by the Agent, a certified copy of an English translation of
each below-referenced document submitted in a language other than English:
(i) A certificate of a Responsible Officer of Euramax, Dutch Holdings and
French Holdings certifying (A) the resolutions of its board of directors or
its general meeting of shareholders (or other governing body) approving, as
applicable, the Proposed French Holdings Share Transfer and the Dutch
Holdings Stock Issuance, all documentation therefor and the transactions
contemplated thereby, and the Loan Documents and other documents and
certificates required to be delivered by such Loan Party pursuant hereto
and the transactions contemplated hereby and thereby; (B) all documents
evidencing other necessary corporate action and required governmental and
third party approvals, licenses and consents with respect to the Proposed
French Holdings Share Transfer and the Dutch Holdings Stock Issuance and
the documentation therefor and the Loan Documents and other documents and
certificates required to be delivered by such Loan Party pursuant hereto
and the transactions contemplated hereby and thereby; (C) in the case of
Dutch Holdings and French Holdings, a copy of its organizational documents
as in effect on the Proposed French Holdings Share Transfer Date after
giving effect to the Proposed French Holdings Share Transfer and the Dutch
Holdings Stock Issuance; (D) the names and true signatures of each of its
officers who has been authorized to execute and deliver any Loan Document
or other document required pursuant hereto to be executed and delivered by
or on behalf of such Loan Party; and (E) a complete and correct copy of
each document executed or delivered in connection with the Proposed French
Holdings Share Transfer and the Dutch Holdings Stock Issuance, or
evidencing the same, including, without limitation, (1) a share transfer
form duly executed by Euramax, (2) the share transfer register of French
Holdings updated to record the Proposed French Holdings Share Transfer, (3)
the shareholders' accounts of French Holdings updated to record the
Proposed French Holdings Share Transfer, (4) a notarial deed of issuance
relating to the Dutch Holdings Stock Issuance, and (5) the register of
Dutch Holdings updated to record the Dutch Holdings Stock Issuance;
(ii) Such amendments, supplements or documents, in form and substance
satisfactory to the Agent, duly executed by Dutch Holdings and the Agent,
to the Dutch Holdings Nantissement as shall be necessary, in the opinion of
the Agent, to give effect to, and provide for, the pledge to the Agent, for
the ratable benefit of the Secured Parties, of all shares of Stock of
French Holdings to be transferred by Euramax to Dutch Holdings in the
Proposed French Holdings Share Transfer (the `TRANSFERRED SHARES') and
containing such provisions as shall be necessary or, in the
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opinion of the Agent, desirable to create a valid and perfected first
priority Lien on such shares as security for the Guarantied Obligations of
Dutch Holdings and to continue the Lien in all other Collateral covered by
the Dutch Holdings Nantissement as security for the Guarantied Obligations
of Dutch Holdings, together with:
(A) Evidence of the completion of all recordings, filings, notices,
authorizations and approvals as may be necessary or, in the opinion of the
Agent, desirable to continue, perfect or protect the Lien created by each
such Loan Document;
(B) A letter of release of the Euramax Nantissement, in form and substance
satisfactory to the Agent, executed by the Agent and Euramax, and such
filings, documentation, certificates, powers and evidence of the type
referred to in Sections 3.1(i)(i)(A) and 3.1(i)(i)(B) necessary or, in the
opinion of the Agent, desirable to continue, perfect or protect the Lien
created by or the rights of the Agent under the Dutch Holdings Nantissement
after giving effect to any amendment, supplement or document entered into
pursuant hereto;
(C) A declaration of pledge, duly executed by Dutch Holdings, in form and
substance satisfactory to the Agent; and
(D) A confirmation of pledge, duly executed by French Holdings, in form and
substance satisfactory to the Agent.
(iii) An amendment or supplement, in form and substance satisfactory to the
Agent, duly executed by Euramax and the Agent, to each of the Euramax Deed
of Pledge and the Additional Euramax Deed of Pledge, each giving effect to,
and providing for, the pledge to the Agent, for the ratable benefit of the
Secured Parties, of all shares of Stock of Dutch Holdings issued by Dutch
Holdings to Euramax in the Dutch Holdings Stock Issuance and containing
such provisions as shall be necessary or, in the opinion of the Agent,
desirable to create a valid and perfected first priority Lien on such
shares as security for the Guarantied Obligations of Euramax (except that
only 65% of all shares of Stock of Dutch Holdings owned by Euramax shall
secure the Excluded U.S. Liabilities) and to continue the Lien in all other
Collateral covered by the Euramax Deed of Pledge and the Additional Euramax
Deed of Pledge, and/or if required by the Agent, an additional deed of
pledge, in form and substance satisfactory to the Agent, duly executed by
Euramax and the Agent, providing for the pledge to the Agent, for the
ratable benefit of the Secured Parties, of such shares of Dutch Holdings as
security for the Guarantied Obligations of Euramax (except that only 65% of
all shares of Stock of Dutch Holdings owned by Euramax shall secure the
Excluded U.S. Liabilities), together with all filings, documentation,
certificates, powers and evidence of the type referred to in Sections
3.1(i)(i)(A) and 3.1(i)(i)(C) necessary or, in the opinion of the Agent,
desirable to continue, perfect or protect the Lien created by or the rights
of the Agent under (A) the Euramax Deed of Pledge and the Additional
Euramax Deed of Pledge after giving effect to any amendment or supplement
thereto entered into pursuant hereto and/or (B) any additional deed of
pledges entered into pursuant hereto;
(iv) Favorable opinions of counsel to the Loan Parties, each in form and
substance satisfactory to the Agent and as to such matters as any Lender or
the Issuer, through the Agent, may reasonably request; and
(v) Such additional documents, information (including financial
information) and materials as any Lender or the Issuer, through the Agent,
may reasonably request."
"`PERMITTED FRENCH HOLDINGS SHARE TRANSFER' means the Proposed French Holdings
Share Transfer
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provided that the French Holdings Share Transfer Conditions shall have been
satisfied."
"`PROPOSED FRENCH HOLDINGS SHARE TRANSFER' means the contribution
and transfer by Euramax to Dutch Holdings of 99,907 shares of Stock of French
Holdings owned by Euramax, which shares constitute all shares of Stock of French
Holdings owned, beneficially or of record, by Euramax, in consideration for the
Dutch Holdings Stock Issuance."
"`Y2K COMPLIANCE' means the ability of acomputer program to (i) record, store,
process, calculate, present and, where appropriate, insert time and accurate
dates and calculations for calendar dates falling on or after (and, if
applicable, spans of time including) January 1, 2000, (ii) record, store,
process, calculate and present any information and/or data dependent on or
relating to such dates in the same manner, and with the
same functionality, data integrity and performance, as the software records,
stores, processes, calculates and presents calendar dates on or before December
31, 1999 and in such fashion as to respond to two-digit date input in a way that
eliminates all ambiguities as to the century of concern, and treats the year
2000 as a leap-year and correctly and accurately regards and processes data and
information with respect thereto, and (iii) lose no functionality with respect
to the introduction of records, including but not limited to back-up and
archived information and/or data, containing dates falling on or after January
1, 2000 and `Y2K COMPLIANT' has the correlative meaning."
(b) Section 1.1 thereof is further amended as follows:
(i) The definition therein of "APPLICABLE GOVERNING LAW" is amended by (A)
adding to clause (ii) thereof, immediately after the reference therein to
"the Additional Euramax Deed of Pledge", the phrase ", any additional deed
of pledge entered into by Euramax pursuant to the French Holdings Share
Transfer Conditions", and (B) replacing all words in clause (iv) thereof
with the words "with respect to (A) the Euramax Nantissement until the
consummation of the Permitted French Holdings Share Transfer, and (B) the
Dutch Holdings Nantissement, the laws of the Republic of France".
(ii) The definition therein of "EURAMAX NANTISSEMENT" is amended by adding
to the end thereof the phrase ", which Euramax Nantissement shall be
terminated upon the consummation of the Permitted French Holdings Share
Transfer".
(iii) The definition therein of "FOREIGN COLLATERAL DOCUMENTS" is amended by
(A) adding thereto, immediately after the reference therein to "the
Additional Euramax Deed of Pledge," the phrase "any additional deed of
pledge entered into by Euramax pursuant to the French Holdings Share
Transfer Conditions"; and (B) adding thereto, immediately after the
reference therein to "Euramax Nantissement", but prior to the comma
immediately after said reference, the phrase "until the consummation of the
Permitted French Holdings Share Transfer".
(iv) The definition therein of "FOREIGN LOAN PARTY" is amended by adding
thereto, immediately after the reference therein to "Domestic Loan Party,"
a reference to "Color Clad,".
(v) The definition therein of "FRENCH HOLDINGS" is amended by adding to the
end thereof the proviso "; PROVIDED, HOWEVER, that, upon the consummation
of the Permitted French Holdings Share Transfer, `FRENCH HOLDINGS' shall
mean Euramax European Holdings, S.A., a company organized under the laws of
the Republic of France and a wholly owned, direct Subsidiary of Dutch
Holdings".
(vi) The definition therein of "PERMITTED MERGER" is amended by (A) deleting
from clause (c)(iv)(B) thereof the phrase "each of the Dutch Holdings
Nantissement and the Euramax Nantissement" and substituting therefor the
phrase and, "until the consummation of the Permitted French Holdings Share
Transfer, each of the Dutch Holdings Nantissement and the Euramax
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Nantissement and, thereafter, the Dutch Holdings Nantissement,"; (B) adding
to clause (z) of clause (c)(iv)(B) thereof, immediately prior to the
reference therein to "Euramax", the phrase ", until the consummation of the
Permitted French Holdings Share Transfer,"; (C) deleting from clause
(c)(v)(C) thereof the words "Euramax and" and adding to the end of said
clause the phrase "and, until the consummation of the Permitted French
Holdings Share Transfer, Euramax"; and (D) adding to the parenthetical that
immediately precedes clause (x) of clause (c)(v) thereof, immediately after
the reference therein to "French Holdings", but prior to the comma
immediately thereafter, the words "consummated prior to the consummation of
the Permitted French Holdings Share Transfer and Dutch Holdings in the case
of a Proposed Merger of French Operating Co. with and into French Holdings
consummated simultaneously with or after consummation of the Permitted
French Holdings Share Transfer,".
(vii) The definition therein of "PLEDGE AGREEMENTS" is amended by (A) adding
thereto, immediately after the reference therein to "the Euramax
Nantissement", but prior to the comma immediately after such reference, the
phrase "until the consummation of the Permitted French Holdings Share
Transfer"; and (B) adding thereto, immediately after the reference therein
to "Additional Euramax Deed of Pledge,", the phrase "any additional deed of
pledge entered into by Euramax pursuant to the French Holdings Share
Transfer Conditions,".
(viii) The definition therein of "RELATED DOCUMENTS" is amended by adding to
the end thereof the phrase ", and each purchase agreement, instrument and
other document executed with respect to the Atlanta Metal Acquisition or
the Color Clad Acquisition".
1.2. AMENDMENT TO SECTION 4.18. Section 4.18(a)(iii) thereof is amended by
adding thereto, immediately after the reference in the parenthetical
therein to "Costs", the phrase "except to finance, in the case of U.S.
Operating Co., the Atlanta Metal Purchase Price and Costs associated
therewith" and, in the case of U.K. Operating Co., the Color Clad Purchase
Price and Costs associated therewith.
1.3. NEW SECTION 4.23. Article IV thereof is amended by adding to the end
thereof a new Section 4.23 to read in full as follows:
"4.23. Y2K COMPLIANCE. Except as disclosed on Schedule 4.23, each Loan Party:
(a) has reviewed the areas within its operations and the operations of its
Subsidiaries that utilize computers;
(b) has purchased and has arranged to install computer software on all the
computer systems utilized by it or any of its Subsidiaries and necessary
for the business of such Loan Party and its Subsidiaries taken as a whole,
in order to ensure that such computer systems are Y2K Compliant, and will
install and test each such computer system on or prior to June 30, 1999;
(c) has identified those of its customers, suppliers and others who are
material to its business and that of its Subsidiaries taken as a whole or
with whom it electronically transmits or receives data and inquired of them
as to whether the computer systems utilized by such customers, suppliers
and others and necessary for their operations are Y2K Compliant, and will
summarize the results of such inquiries in a written report, to be
furnished to the Agent on or before June 30, 1999;
(d) will develop and implement a contingency plan for action to be taken by
such Loan Party and its Subsidiaries in the event that any of the computer
systems utilized by it in its business and the business of its Subsidiaries
or by the customers, suppliers and others identified pursuant to
8
clause (c) above and necessary for their operations is not Y2K Compliant;
and
(e) has no reason to believe and does not believe that it will be unable to
install the computer software or test the computer systems or implement any
contingency plan referred to in clause (d) above except for any inability
that will not have a Material Adverse Effect."
1.4. NEW SECTION 6.20. A new Section 6.20 is added to the end of Article VI
thereof to read in full as follows:
"6.20. ONGOING Y2K REPORTS. Each Loan Party will certify to the Agent each
quarter that the representation and warranty contained in Section 4.23 remains
true and correct and, if exceptions were set forth on Schedule 4.23, the
progress made during the preceding quarter with respect to the elimination
thereof on or prior to June 30, 1999."
1.5. AMENDMENT TO SECTION 7.4. Section 7.4 thereof is amended by adding
thereto, immediately after the reference therein to , "French Holdings" in
subsection (a)(iv)(J) thereof, the words "until the consummation of the
Permitted French Holdings Share Transfer,".
1.6. AMENDMENT TO SECTION 7.5. Section 7.5(b) thereof is amended by (a)
adding to the end of clause (i)(D) thereof the phrase "or by Euramax of
99,907 shares of Stock of French Holdings to Dutch Holdings in the
Permitted French Holdings Transfer," and (b) adding to the end of clause
(ii) thereof the phrase "or clause (D) above".
1.7. AMENDMENT TO SECTION 7.6. Section 7.6 thereof is amended by (a) adding
to the end of subsection (a) thereof the clause "or (iv) the Permitted
French Holdings Share Transfer and the Dutch Holdings Stock Issuance in
connection therewith"; (b) changing subsection (j) thereof to be subsection
(k); and (c) adding, immediately after subsection (i) thereof, the
following new subsection (j):
"(j) Investments consisting of (i) subject to the satisfaction of the Color Clad
Acquisition Conditions, the Stock of Color Clad by Coated Products U.K. in the
Color Clad Acquisition, and (ii) subject to the satisfaction of the Atlanta
Metal Acquisition Conditions, the purchase of the Stock of Atlanta Metal by U.S.
Operating Co. in the Atlanta Metal Acquisition; and".
1.8. AMENDMENT TO SECTION 7.7. Section 7.7(b) thereof is amended by (a)
adding thereto, immediately after the reference therein to "the French Note
Conversion," the phrase "the Permitted French Holdings Share Transfer", and
(b) adding thereto, immediately after the reference therein to "a Permitted
Share Transfer", the phrase ", or any other change in its capital structure
specifically permitted by Section 7.6".
1.9. AMENDMENTS TO SECTION 7.10. Section 7.10 thereof is amended by adding
to the end of each of clause (ii) and clause (iii) thereof the phrase "or
in the Permitted French Holdings Share Transfer".
1.10. AMENDMENT TO SECTION 7.13. Clause (a) of Section 7.13 thereof is
amended by adding thereto, immediately prior to the reference therein to
"French Holdings", the phrase ", until the Permitted French Holdings Share
Transfer,".
1.11. AMENDMENT TO SECTION 8.1(L). Clause (ix) of Section 8.1(l) thereof is
amended by (a) deleting the words "Euramax and" therefrom and (b) adding
thereto, immediately after the reference therein to "Dutch Holdings", the
phrase "and, until the consummation of the Permitted French
9
Holdings Share Transfer, Euramax".
SECTION 2. WAIVERS AND CERTAIN AGREEMENTS. (a) Subject to the satisfaction
of the conditions precedent set forth in Section 3, the Lenders, the Swing Loan
Lender and the Agent (i) hereby permanently waive, effective as of the date
hereof, the 1998 Excess Cash Payment, provided that, on or prior to May 12,
1999, Dutch Company shall have made a prepayment of the U.S. Dollar Term B Loans
and Dutch Company Term Loans in the equivalent in the relevant currency of
approximately $9,300,000, which prepayment shall be applied to reduce ratably
the remaining installments of said Term Loans notwithstanding the provisions of
Section 2.7(c) of the Credit Agreement; and (ii) hereby agree that, if the
Atlanta Loans are made, then, solely for purposes of determining (A) the
aggregate principal amount of Atlanta Metal Loans available to be borrowed by
U.S. Operating Co. pursuant to Section 2.1(b) of the Credit Agreement, (B) the
aggregate principal amount of General Purpose Revolving Credit Loans available
to be borrowed by U.S. Operating Co. pursuant to said Section 2.1(b) during the
period commencing on the date hereof and ending on the sixth-month anniversary
date hereof (the "Waiver Period"), and (C) whether any principal amount of
Revolving Credit Loans shall be required to be prepaid pursuant to clause (d)(i)
or (d)(vi) of Section 2.7 of the Credit Agreement at any time during the Waiver
Period, the calculation of the "Available U.S. Credit", the "Maximum Amount of
Revolver Liabilities of U.S. Operating Co.", and the "Swing Loan Lender Excess
Amount" shall be made as if the term "U.S. Borrowing Base" was the term
"Borrowing Base".
(b) Each party hereto hereby agrees that, from and after the execution by
Atlanta Metal of the supplement to the Domestic Subsidiary Guaranty and the
supplement to the Credit Agreement referred to in the definition of
"Atlanta Metal Acquisition" in Section 1 hereof, Atlanta Metal shall for
all purposes be a Loan Party under and a party to the Credit Agreement and
a Guarantor under and a party to the Domestic Subsidiary Guaranty,
respectively.
SECTION 3. EFFECTIVENESS. This Amendment shall become effective on the date
on which the Agent shall have executed a counterpart hereof and shall have
received counterparts hereof executed by the Lenders, the Swing Loan Lender and
each Loan Party.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Loan Parties
represents and warrants as to itself and each of its Subsidiaries as follows:
(a) The execution, delivery and performance of this Amendment has been duly
authorized by all necessary corporate action, and this Amendment and the
Loan Documents as amended hereby, and the transactions contemplated hereby
and thereby, do not and will not (i) require any consent or approval of the
stockholders of any Loan Party or any of its Subsidiaries or any third
party, other than any consents or approvals that have already been obtained
and which remain in full force and effect, (ii) violate any Requirement of
Law, (iii) result in a breach of or constitute a default under any
Contractual Obligation to which any Loan Party or any of its Subsidiaries
is a party or by which any of them or their respective properties may be
bound or affected, or (iv) result in, or require, the creation or
imposition of any Lien of any nature upon or with respect to any of the
properties now owned or hereafter acquired by any Loan Party or any of its
Subsidiaries (other than pursuant to the Loan Documents).
(b) All authorizations, consents, approvals of, licenses of, or filings or
registrations with, any court or Governmental Authority, required in
connection with the execution, delivery and performance by any Loan Party
of this Amendment and the performance by each Loan Party of the Loan
Documents as amended hereby, and the consummation by each Loan Party of the
transactions contemplated hereby and thereby, have been obtained, given,
filed or taken and are in full force and
10
effect.
(c) This Amendment has been duly executed and delivered by each Loan Party,
and each of this Amendment and each Loan Document as amended hereby
constitutes the legal, valid and binding obligation of each Loan Party
thereto, enforceable against such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or law).
(d) There exists no judgment, order, injunction or other restraint
prohibiting or imposing materially adverse conditions upon the execution,
delivery and performance of this Amendment or the Loan Documents as amended
hereby or upon the consummation of the transactions contemplated hereby or
thereby.
(e) None of the transactions contemplated by this Amendment or the Loan
Documents as amended hereby will have or could have a Material Adverse
Effect, and the execution, delivery and performance of this Amendment will
not and could not adversely affect the Liens of any Collateral Document.
(f) No provision of any Related Document or any other Contractual
Obligation of any Loan Party would prohibit, restrict or impose any
conditions on this Amendment or the Loan Documents as amended hereby, and
no consent under any Related Document or other Contractual Obligation is
required for the execution, delivery or performance of this Amendment, or
the Loan Documents as amended hereby, or for the consummation of any of the
transactions contemplated hereby, including the transactions contemplated
by the amendments set forth herein except as specifically contemplated
hereby.
(g) Each of the representations and warranties contained in each Loan
Document are true and correct on and as of the date hereof, and no Default
or Event of Default has occurred or is continuing or would result from the
consummation of any transaction contemplated hereby.
SECTION 5. COSTS AND EXPENSES. The Loan Parties jointly and severally agree
to pay (a) all costs and expenses of the Agent in connection with the
preparation, execution and delivery of this Amendment, including the reasonable
fees and out-of-pocket expenses of counsel for the Agent with respect thereto,
and (b) all costs and expenses otherwise required to be paid under Section 10.4
of the Credit Agreement.
SECTION 6. MISCELLANEOUS.
(a) Upon the effectiveness of this Amendment each reference in any Loan
Document to "this Agreement", "hereunder", "herein", or words of like
import, and each reference in any other Loan Document to such Loan
Document, shall mean and be a reference to such Loan Document as amended or
waived hereby.
(b) Except as specifically amended or waived hereby, each Loan Document
shall remain in full force and effect and is hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power, or remedy of the Lenders, the Issuer, the Swing Loan Lender or the
Agent under any Loan Document, nor constitute a waiver of
11
any provision of any Loan Document.
(d) This 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.
(e) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
(f) EACH LOAN PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH,
THIS AMENDMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE ISSUER, ANY LENDER
OR ANY LOAN PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS
ENTERING INTO THIS AMENDMENT.
12
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
EURAMAX INTERNATIONAL PLC
By:
------------------------------------
Title:
EURAMAX EUROPEAN HOLDINGS PLC
By:
------------------------------------
Title:
EURAMAX EUROPEAN HOLDINGS, B.V.
By:
------------------------------------
Title:
EURAMAX EUROPE LIMITED
By:
------------------------------------
Title:
EURAMAX NETHERLANDS B.V.
By:
------------------------------------
Title:
EURAMAX HOLDINGS LIMITED
By:
------------------------------------
Title:
13
EURAMAX EUROPE B.V.
By:
------------------------------------
Title:
ELLBEE LIMITED
By:
------------------------------------
Title:
EURAMAX COATED PRODUCTS LIMITED
By:
------------------------------------
Title:
EURAMAX COATED PRODUCTS B.V.
By:
------------------------------------
Title:
AMERIMAX HOLDINGS, INC.
AMERIMAX FABRICATED PRODUCTS, INC.
AMERIMAX BUILDING PRODUCTS, INC.
AMERIMAX COATED PRODUCTS, INC.
AMERIMAX RICHMOND COMPANY
AMERIMAX HOME PRODUCTS, INC.
AMERIMAX LAMINATED PRODUCTS, INC.
By:
------------------------------------
Title:
FABRAL HOLDINGS, INC.
(formerly, Gentek Holdings, Inc.)
FABRAL, INC.
(formerly, Gentek Building Products,
Inc.)
By:
------------------------------------
Title:
14
PARIBAS (formerly, Banque Paribas), as
Agent, as a Lender, as the Issuer and
as Swing Loan Lender
By:
------------------------------------
Title:
By:
------------------------------------
Title:
BANKBOSTON, N.A., as a Lender
By:
------------------------------------
Title:
SUNTRUST BANK, ATLANTA, as a Lender
By:
------------------------------------
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC., as a Lender
By:
------------------------------------
Title:
By:
------------------------------------
Title:
15
FLEET NATIONAL BANK, as a Lender
By:
------------------------------------
Title:
LASALLE NATIONAL BANK, as a Lender
By:
------------------------------------
Title:
WACHOVIA BANK, N.A., as a Lender
By:
------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender
By:
------------------------------------
Title:
PPM AMERICA, INC., as attorney in fact,
on behalf of ▇▇▇▇▇▇▇ National Life
Insurance Company, as a Lender
By:
------------------------------------
Title:
DE NATIONALE INVESTERINGS BANK
N.V., as a Lender
By:
------------------------------------
Title:
By:
------------------------------------
Title:
PARIBAS CAPITAL FUNDING LLC,
as a Lender
By:
------------------------------------
16
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC., as a Lender
By:
------------------------------------
Title:
DEBT STRATEGIES FUND, INC.,
as a Lender
By:
------------------------------------
Title:
17
