AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment No. 1 to Second Amended and Restated Credit
Agreement (this “ Amendment ”) is made as of
May 6, 2009, by and among the following:
(i) GIBRALTAR
INDUSTRIES, INC., a Delaware corporation (“ GII
”);
(ii) GIBRALTAR
STEEL CORPORATION OF NEW YORK, a New York corporation (together
with GII, collectively, the “ Borrowers ” and,
individually, “ Borrower ”);
(iii) the Lenders
(as defined in the Credit Agreement referred to below) signatory
hereto; and
(iv) KEYBANK
NATIONAL ASSOCIATION, as administrative agent for the Lenders (the
“ Administrative Agent ”).
A.
The Borrowers, the Administrative Agent and the Lenders are parties
to the Second Amended and Restated Credit Agreement, dated as of
August 31, 2007 (as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”).
B.
The Borrowers, the Administrative Agent and the Lenders desire to
amend the Credit Agreement to modify certain provisions thereof in
the manner and to the extent set forth herein.
C.
Each capitalized term used herein and not otherwise defined herein
shall have the same meaning set forth in the Credit
Agreement.
In
consideration of the premises and mutual covenants herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Borrowers, the Administrative
Agent and the Lenders agree as follows:
1. New
Definitions . The following definitions shall be added to
Section 1.01 of the Credit Agreement in the appropriate
alphabetical order:
““
Amendment No. 1 ” means the Amendment No. 1
to Second Amended and Restated Credit Agreement, dated as of
May 6, 2009, by and among the Borrowers, the Administrative
Agent and the Lenders signatory thereto.”
““
Amendment No. 1 Effective Date ” has the meaning
given to such term in Amendment No. 1.”
““
Chrysler Receivable ” means an account receivable owed
to a Borrower or any Subsidiary generated from the sales of goods
or services to Chrysler Corporation and its affiliates and eligible
to be sold pursuant to the Supplier Program.”
““
GM Receivable ” means an account receivable owed to a
Borrower or any Subsidiary generated from the sales of goods or
services to General Motors Corporation and its affiliates and
eligible to be sold pursuant to the Supplier
Program.”
““
Lien Priority Agreement ” means a lien priority
agreement, in substantially the form attached to Amendment
No. 1 as Exhibit A , executed and delivered by the
Administrative Agent in connection with any Supplier Purchase
Agreement and the Supplier Program.”
““
Supplier Program ” means the United States Department
of the Treasury Auto Supplier Support Program.”
““
Supplier Program Receivables ” has the meaning
provided in Section 7.02(d).”
““
Supplier Purchase Agreement ” means each supplier
purchase agreement entered into by a Borrower or a Subsidiary for
the purpose of selling GM Receivables or Chrysler Receivables
pursuant to the Supplier Program.”
2.
Amendment to Section 7.02 . Section 7.02 of the
Credit Agreement is hereby amended to delete the word
“and” at the end of clause (b), to delete the period at
the end of clause (c) and replace it with a semicolon and the word
“and,” and to add a new section
(d) thereto:
“(d)
Supplier Program Receivables . Notwithstanding anything
contained in this Section 7.02 to the contrary, the Borrowers
or any Subsidiary may sell GM Receivables or Chrysler Receivables
pursuant to the Supplier Program (the “ Supplier Program
Receivables ”), provided , that
(i) the consideration received for the Supplier Program
Receivables is in cash received in immediately available funds;
(ii) the purchase price for any Supplier Program Receivables
sold is at least 90% of the face amount of such Supplier Program
Receivables (and no other fees or charges are due and payable by
any Borrower or any Subsidiary in connection with participation in
the Supplier Program); and (iii) any Supplier Purchase
Agreement shall be substantially in the form delivered to the
Administrative Agent prior to the Amendment No. 1 Effective
Date and any other documentation entered into by a Borrower or a
Subsidiary shall be upon such terms as reasonably acceptable to the
Administrative Agent.”
3.
Amendment to Section 11.12(d) . Section 11.12(d)
of the Credit Agreement is hereby amended and restated in its
entirety as follows:
“(d) To
the extent the Required Lenders (or all of the Lenders, as
applicable, as shall be required by this Section) waive the
provisions of Section 7.02 with respect to the sale, transfer
or other disposition of any Collateral, or any Collateral is sold,
transferred or disposed of as permitted by Section 7.02,
(i) such Collateral shall be sold, transferred or disposed of
free and clear of the Liens created by the respective Security
Documents; (ii) if such Collateral includes all of the capital
stock of a Subsidiary that is a party to the Subsidiary Guaranty or
whose stock is pledged pursuant to the Security Agreement, such
capital stock shall be released from the Security Agreement and
such Subsidiary shall be released from the Subsidiary Guaranty; and
(iii) the Administrative Agent shall be authorized to take
actions deemed appropriate by it in order to
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effectuate the
foregoing, including, without limitation, executing and delivering
any Lien Priority Agreement.”
4.
Conditions Precedent . The amendments set forth above shall
become effective on the date (the “ Amendment No. 1
Effective Date ”) that the following conditions are
satisfied:
(a) this
Amendment has been executed by each Borrower, the Administrative
Agent and the Required Lenders, and counterparts hereof as so
executed shall have been delivered to the Administrative
Agent;
(b) each
Subsidiary Guarantor has executed and delivered to the
Administrative Agent the Subsidiary Guarantor Acknowledgment and
Agreement attached hereto;
(c) all
representations and warranties of the Loan Parties contained in the
Credit Agreement or in the other Loan Documents shall be true and
correct in all material respects with the same effect as though
such representations and warranties had been made on and as of the
date of this Amendment, except to the extent that such
representations and warranties expressly relate to an earlier
specified date, in which case such representations and warranties
shall have been true and correct in all material respects as of the
date when made;
(d) the
Borrowers have satisfied such other conditions as the
Administrative Agent may reasonably request relating to the
transactions contemplated hereby.
5.
Representations and Warranties . Each Borrower hereby
represents and warrants to the Administrative Agent and the Lenders
that: (a) such Borrower has the legal power and authority to
execute and deliver this Amendment; (b) the officials
executing this Amendment have been duly authorized to execute and
deliver the same and bind such Borrower with respect to the
provisions hereof; (c) the execution and delivery hereof by
such Borrower and the performance and observance by such Borrower
of the provisions hereof do not violate or conflict with the
organizational documents of such Borrower or any law applicable to
such Borrower; (d) no Default or Event of Default exists under
the Credit Agreement, nor will any occur immediately after the
execution and delivery of this Amendment or by the performance or
observance of any provision hereof; and (e) this Amendment
constitutes a valid and binding obligation of such Borrower in
every respect, enforceable in accordance with its terms, except to
the extent that the enforceability hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors’ rights and
by equitable principles (regardless of whether enforcement is
sought in equity or at law).
6. Credit
Agreement Unaffected . Each reference that is made in the
Credit Agreement or any other Loan Document shall hereafter be
construed as a reference to the Credit Agreement as amended hereby.
Except as herein otherwise specifically provided, all provisions of
the Credit Agreement shall remain in full force and effect and be
unaffected hereby.
7. Entire
Agreement . This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other
instruments, agreements and documents executed and delivered in
connection with this Amendment embody the final, entire agreement
among the parties hereto with respect to the subject matter hereof
and supersede any and all prior commitments, agreements,
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representations
and understandings, whether written or oral, relating to the
matters covered by this Amendment, and may not be contradicted or
varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral
agreements among the parties hereto relating to the subject matter
hereof or any other subject matter relating to the Credit
Agreement
8.
Waiver . Each Borrower hereby waives and releases, to the
fullest extent permitted by applicable law, the Administrative
Agent and each of the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from
any and all claims, offsets, defenses and counterclaims of which
such Borrower is aware, such waiver and release being with full
knowledge and understanding of the circumstances and effect thereof
and after having consulted legal counsel with respect
thereto.
9.
Counterparts . This Amendment may be executed in any number
of counterparts, by different parties hereto in separate
counterparts and by facsimile signature, 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
agreement.
10.
Severability . Any term or provision of this Amendment held
by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment, and
the effect thereof shall be confined to the term or provision so
held to be invalid or unenforceable.
11.
Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury
Trial .
(a) THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH
BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO
ASSERT THAT THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK GOVERNS THIS AMENDMENT. Any legal
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