Exhibit 10.43
THIRTEENTH AMENDMENT TO CREDIT
AGREEMENT
THIS THIRTEENTH AMENDMENT TO
CREDIT AGREEMENT (this
“Amendment”) is dated and effective as of
November 10, 2008, by and between TREX COMPANY, INC. ,
a Delaware corporation (sometimes hereinafter referred to herein as
“Trex Inc.”), and BRANCH BANKING AND TRUST
COMPANY , a North Carolina state banking corporation, successor
by merger to Branch Banking and Trust Company of Virginia
(hereinafter referred to herein as the
“Bank”).
Trex Inc., TREX Company, LLC, a
Delaware limited liability Company (“TREX LLC”), and
the Bank are the original parties to that certain Credit Agreement
dated as of June 19, 2002, as amended by a First Amendment to
Credit Agreement dated as of August 29, 2003, as further
amended by a Second Amendment to Credit Agreement dated as of
September 30, 2004, as further amended by a Third Amendment to
Credit Agreement dated as of March 31, 2005, as further
amended by a Fourth Amendment to Credit Agreement dated as of
July 25, 2005, as further amended by a Fifth Amendment to
Credit Agreement dated as of December 31, 2005, as further
amended by a Sixth Amendment to Credit Agreement dated as of
November 9, 2006, as further amended by a Seventh Amendment to
Credit Agreement dated as of December 31, 2006, as further
amended by an Eighth Amendment to Credit Agreement dated as of
March 16, 2007, as further amended by a Ninth Amendment to
Credit Agreement dated as of June 12, 2007 and effective as of
June 18, 2007, as further amended by a Tenth Amendment to
Credit Agreement dated as of December 21, 2007, as further
amended by an Eleventh Amendment to Credit Agreement dated as of
December 31, 2007, as further amended by a Twelfth Amendment
to Credit Agreement dated as of June 16, 2008 (as so amended
and as it may hereafter be amended, restated, supplemented,
replaced or otherwise modified from time to time, the “Credit
Agreement”). Subject to the terms and conditions contained in
the Credit Agreement, the Bank agreed to extend to Trex Inc. and
TREX LLC (i) a revolving credit facility, with a letter of
credit subfacility, in the aggregate amount of $70,000,000 for
working capital financing of Trex Inc.’s and TREX LLC’s
accounts receivable and inventory, to purchase new equipment and/or
for other general corporate purposes of Trex Inc. and TREX LLC,
(ii) a term loan facility in the amount of $9,570,079.88 to
refinance the Winchester Property (as defined in the Credit
Agreement), and (iii) a term loan facility in the amount of
$3,029,920.12 to finance existing improvements to the Winchester
Property. Effective December 31, 2002, TREX LLC merged with
and into Trex Inc., with Trex Inc. being the surviving entity. As a
result of such merger, Trex Inc. is the sole borrower under the
Credit Agreement and shall hereinafter sometimes be referred to in
this Amendment as the “Borrower.”
The Borrower has requested that the
Bank modify the amount of the letter of credit subfacility in the
Credit Agreement and modify a component of the Eligible Inventory
(as defined in the Credit Agreement) in the Credit Agreement, and
the Bank is willing to do so upon the terms and conditions
contained herein.
Accordingly, the Borrower and the
Bank hereby agree as follows:
Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings
assigned thereto in the Credit Agreement.
2. Clause 6. contained in
Section 2.01(c)ii. of the Credit Agreement is hereby deleted
in its entirety and the following new clause is substituted in its
place:
6. the account receivable is not
subject to any assignment, security interest, lien, claim, or other
encumbrance of any kind other than the lien and security interest
in favor of the Collateral Agent;
3. Clause (B) of the last
sentence contained in Section 2.01(c)iii. of the Credit
Agreement is hereby deleted in its entirety and the following new
clause is substituted in its place:
(B) consisting of Eligible Inventory
consigned to Lowe’s Company, Inc.
(“Lowe’s”) shall, notwithstanding
Section 4.4(e) of the Security Agreement and the last sentence
of Section 4.4 of the Security Agreement, be equal to the
lesser of (i) the least of (1) the actual value of the
Eligible Inventory consigned to Lowe’s, (2) $5,000,000
and (3) ten percent (10%) of the aggregate value of the
Eligible Inventory and (ii) $-0-, provided that if
(1) the Borrower shall have executed and delivered, and caused
Lowe’s to have executed and delivered, to Branch Banking and
Trust Company, as Collateral Agent (the “Collateral
Agent”), a consignee letter in form and substance acceptable
to the Collateral Agent and (2) the Borrower has fully
complied with and remains in full compliance with all of the
requirements set forth in Section 5.3(a) of the Security
Agreement, then sub-clause (ii) shall not apply commencing on
the Business Day immediately following the Business Day after the
Collateral Agent shall have received such consignee letter from
Lowe’s.
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4. Clause (i) of
Section 2.01(d) of the Credit Agreement is hereby deleted in
its entirety and the following new clause is substituted in its
place:
(i) $10,000,000,
5. The first sentence of
Section 2.01(d)(2) of the Credit Agreement is hereby deleted
in its entirety and the following new sentence is substituted in
its place:
For each Letter of Credit issued
under the terms of this Agreement (other than the Existing Letter
of Credit), the Borrower will pay to the Bank (i) at the time
of issuance a fee equal to one percent (1%) of the face amount
of such Letter of Credit, subject to any minimum fees that the Bank
may impose, and (ii) if such Letter of Credit has not expired,
been surrendered to the Bank, or otherwise fully and irrevocably
terminated on any anniversary date of the issuance of such Letter
of Credit, an annual fee equal to one percent (1%) of the face
amount of such Letter of Credit on such anniversary date (taking
into account any adjustment in the face amount of such Letter of
Credit effective as of
