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Exhibit 10.12e
EXECUTION COPY
AMENDMENT NO. 5
TO
CREDIT AGREEMENT
AMENDMENT NO. 5 TO CREDIT AGREEMENT (the "AMENDMENT"), dated as of May
13, 1999, among American Architectural Products Corporation, a Delaware
corporation, Eagle & Taylor Company, a Delaware corporation, Forte, Inc., an
Ohio corporation, Western Insulated Glass, Co., an Arizona corporation,
Thermetic Glass, Inc., a Delaware corporation, Binnings Building Products, Inc.,
a Delaware corporation, Danvid Window Company, a Delaware corporation, Modern
Window Corporation, formerly known as Modern Window Acquisition Corporation, a
Delaware corporation, American Glassmith, Inc., formerly known as American
Glassmith Acquisition Corporation, a Delaware corporation, VinylSource, Inc., a
Delaware corporation, American Weather-Seal Company, formerly known as
Weather-Seal Acquisition Corporation, a Delaware corporation, Eagle Window &
Door Center, Inc., a Delaware corporation, Denver Window Company, formerly known
as Denver Window Acquisition Corporation, a Delaware corporation, AAPC One
Acquisition Corporation, a Delaware corporation, and AAPC Two Acquisition
Corporation, a Delaware corporation (the "BORROWERS"), the institutions party to
the Credit Agreement (the "LENDERS"), and BankBoston, N.A., in its capacity as
contractual representative for itself and the other Lenders (the "AGENT") under
that certain Credit Agreement, dated as of June 9, 1998, as amended, by and
among the Borrowers, the Lenders and the Agent (the "CREDIT AGREEMENT"). Defined
terms used herein and not otherwise defined herein shall have the meaning given
to them in the Credit Agreement.
WHEREAS, the Borrowers, the Lenders and the Agent have entered into the
Credit Agreement; and
WHEREAS, the Borrowers, the Lenders and the Agent have agreed to amend
the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrowers, the Lenders and the Agent agree as
follows:
1. Amendment to the Credit Agreement. Effective as of the date first
above written, unless otherwise specified herein, and subject to the execution
of this Amendment by the parties hereto and the satisfaction of the conditions
precedent set forth in Section 2 below, the Credit Agreement shall be and hereby
is amended as follows:
1.1 Section 1.1 is hereby amended as follows:
(a) The definition of "Aggregate Revolving Loan Commitment" is hereby
amended and restated as follows:
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"AGGREGATE REVOLVING LOAN COMMITMENT means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Twenty-Five Million and 00/100 Dollars ($25,000,000.00);
provided, however, that the Aggregate Revolving Loan Commitment for the
period beginning May 13, 1999 and ending August 13, 1999 shall equal
Thirty-Five Million and 00/100 Dollars ($35,000,000.00).
(b) The following are hereby inserted alphabetically into Section 1.1:
"BANKBOSTON LEASING RESERVE" means $1,800,000."
"ELIGIBLE BANKBOSTON LEASING RESERVE" means an amount equal to fifty
percent (50%) of the aggregate dollar amount of leases entered into
between BankBoston Leasing and the Borrowers; provided, however, that,
for purposes of this Agreement, the Eligible BankBoston Leasing Reserve
shall not exceed the BankBoston Leasing Reserve."
(c) The definition of "Borrowing Base" is hereby amended to insert
after the phrase "eighty-five percent (85%) of the Gross Amount of the
Borrowers' Eligible Receivables" the phrase "minus the Eligible
BankBoston Leasing Reserve,"
(d) The definition of "Revolving Loan Commitment" is hereby amended to
delete therefrom the period contained at the end thereof and substitute
therefor the following:
"; provided, however, that, during the period beginning May 13, 1999
and ending August 13, 1999, notwithstanding the amounts set forth on
Exhibit A or on any such assignment and acceptance agreement, the
Revolving Loan Commitments in the aggregate shall equal $35,000,000 and
the Lenders shall share such increase in the Aggregate Revolving Loan
Commitment equally."
1.2 Section 7.3(C) is hereby amended to insert therein the following
clause (v):
"(v) Liens in favor of BankBoston Leasing securing assets equaling
$1,800,000 in value."
1.3 Section 7.3(D)(vii) is hereby amended and restated as follows and
shall be deemed to have been effective as of April 14, 1999:
"(vii) Investments in TM Window and Door Company not exceeding
$3,850,000 in the aggregate; provided, however, that such Investments
shall be reduced to $3,350,000 in the aggregate by September 30, 1999."
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1.4 Section 7.3(J) is hereby amended to insert immediately at the end
thereof the following:
"provided, however, that American Weather-Seal Company shall be allowed
to enter into such a lease for its manufacturing facilities, excluding
all personal property located therein, in Ottawa, Ohio and such lease
shall not constitute Indebtedness for purposes of the limitation set
forth in Section 7.3(a)(vii)(4); provided further, that one-hundred
percent (100%) of the proceeds resulting from the aforementioned
transaction, aside from costs and commissions related to the closing of
such transaction, are applied to reduce the outstanding Obligations
under this Agreement."
1.5 Section 7.3(S) is hereby amended and restated as follows and shall
be deemed to have been effective as of April 14, 1999:
"(S) Limitation on Revolving Credit Availability. The Borrowers shall
not permit the Revolving Credit Availability to be less than (i) Three
Million Five Hundred Thousand Dollars ($3,500,000.00) between April 30,
1999 and May 17, 1999, and (ii) Ten Million Dollars ($10,000,000)
between May 18, 1999 through June 1, 1999 and at any time between April
15 and June 1 or between October 15 and December 1 of any year
thereafter.
2. Conditions Precedent. This Amendment shall become effective as of
the date above written, if, and only if, the Agent has received (i) an amendment
fee, on behalf of the Lenders which execute this Amendment, equal to $62,500 in
same day funds, (ii) duly executed originals of this Amendment from the
Borrowers, the Required Lenders and the Agent, (iii) evidence that all amounts
due and payable to Sidley & Austin for services rendered in connection with the
Credit Agreement and all Amendments thereto have been paid in full in same day
funds, (iv) evidence from the Borrowers or the United States Trust Company of
New York that the holders of the Senior Notes have consented, under the terms of
the Senior Notes, to the increase in the Aggregate Revolving Loan Commitment set
forth herein, and (v) copies of amended and restated promissory notes executed
by the Borrowers.
3. Representations and Warranties of the Borrowers. The Borrowers
hereby represent and warrant as follows:
(a) This Amendment and the Credit Agreement, as amended hereby,
constitute legal, valid and binding obligations of the Borrowers and are
enforceable against the Borrowers in accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrowers hereby
reaffirm all representations and warranties made in the Credit Agreement, and to
the extent the same are not amended hereby, agree that all such
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representations and warranties shall be deemed to have been remade as of the
date of delivery of this Amendment, unless and to the extent that any such
representation and warranty is stated to relate solely to an earlier date, in
which case such representation and warranty shall be true and correct as of such
earlier date.
4. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Credit Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) The Credit Agreement, as amended hereby, and all other documents,
instruments and agreements executed and/or delivered in connection therewith,
shall remain in full force and effect, and are hereby ratified and confirmed.
(c) Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Agent or the Lenders, nor constitute a waiver of any
provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws (as opposed to the conflict of law provisions)
of the State of Illinois.
6. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
on the date first above written.
AMERICAN ARCHITECTURAL BANKBOSTON, N.A., individually
PRODUCTS CORPORATION and as Agent
EAGLE AND TAYLOR COMPANY By: /s/ W. J. Sherald
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Title: Vice President
FORTE, INC.
WESTERN INSULATED GLASS, CO.
THERMETIC GLASS, INC.
BINNINGS BUILDING PRODUCTS, INC.
DANVID WINDOW COMPANY
MODERN WINDOW CORPORATION
AMERICAN GLASSMITH, INC.
VINYLSOURCE, INC.
AMERICAN WEATHER-SEAL
COMPANY
EAGLE WINDOW & DOOR CENTER, INC.
DENVER WINDOW COMPANY
AAPC ONE ACQUISITION CORPORATION
AAPC TWO ACQUISITION CORPORATION
By: /s/ Frank J. Amedia
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(on behalf of the above-listed parties)
Name: Frank J. Amedia
Title: President & CEO