Exhibit 10.1
CONDITIONAL WAIVER, AMENDMENT NO. 5 TO CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SECURITY AGREEMENT
CONDITIONAL WAIVER AND AMENDMENT NO. 5, dated as of August 22,
2001 (this "Waiver and Amendment"), to the CREDIT AGREEMENT, dated as of May 21,
1998, among Apogee Enterprises, Inc., a Minnesota corporation (the "Borrower"),
each of the lenders from time to time parties thereto (collectively, the
"Lenders"), and The Bank of New York, as L/C Issuer, Administrative Agent for
the Lenders and Swing Line Lender, as such Credit Agreement has been amended
from time to time (the "Credit Agreement").
AMENDMENT NO. 1, dated as of August 22, 2001 to the SECURITY
AGREEMENT, dated as of June 13, 2000, among the Borrower, the Debtors parties
thereto, and The Bank of New York, as Administrative Agent and Collateral Agent
(the "Security Agreement").
RECITALS
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A. The Borrower has requested an amendment of the Credit Agreement and
Security Agreement to clarify provisions related to the release of collateral
and has requested a waiver under certain provisions of the Credit Agreement in
order to undertake certain transactions described in this Waiver and Amendment.
B. The Lenders desire to clarify the provisions related to the release
of collateral and to grant a conditional waiver for the transactions described
in this Waiver and Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendment to Credit Agreement.
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Pursuant to Section 11.05 of the Credit Agreement, Section
11.05(a) of the Credit Agreement shall be amended to read in its entirety as
follows:
"(a) Any provision of this Agreement may be amended, modified,
supplemented or waived, but only by a written amendment or supplement,
or written waiver, signed by the Borrower and either the Required
Lenders (and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent), or the Administrative
Agent with the consent of the Required Lenders; provided, however, that
no such amendment, modification, or waiver shall, unless signed by all
the Lenders, or by the Administrative Agent with the consent of all the
Lenders, (i) increase or decrease (other than a pro rata decrease) the
Commitment of any Lender or subject any Lender to any additional
obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone any scheduled payment of
principal of or interest on any Loan or any fees hereunder, (iv)
postpone any reduction or termination of any Commitment or any
mandatory prepayment related thereto, (v) release the Subsidiary
Guaranties, (vi) change the definition of "Required Lenders" or (vii)
amend, modify, supplement or waive the provisions of this Section
11.05."
Section 2. Amendment to Security Agreement.
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Pursuant to Sections 14(a) and 14(b) of the Security
Agreement, Section 3(f) of the Security Agreement shall be amended to read in
its entirety as follows:
"(f) Subject to Sections 4(b), 5(a), 6(b), 6(c), 7, and 9(c)
hereof, and except for the transfer of assets as expressly and
specifically permitted under the terms of the Credit Agreement and this
Agreement, each Debtor agrees it will not, without the Agent's prior
written consent, sell, assign, mortgage, lease or otherwise dispose of
the Collateral or any interest therein. For transfers of assets
specifically permitted by this Section 3(f), upon reasonable request by
the Borrower, the Agent will have the authority to execute and deliver
any certificates, amendments to financing statements or other similar
documents or instruments necessary or required to release the security
interest of the Agent and the Secured Creditors in the assets to be
transferred, provided that the Borrower has delivered to the Agent a
written communication acceptable to the Agent certifying compliance of
such transfer with this Section and the conditions on such transfer
imposed by this Agreement or the Credit Agreement."
Section 3. Sale of Assets Release.
----------------------
The parties understand that the Borrower and/or certain of its
Subsidiaries may be in the process of selling certain real property currently
owned by them: (1) excess land owned by Tru Vue, Inc., (2) 23 Harmon Glass
Company retail shops (the "Retail Shops") and (3) 5 Harmon Autoglass
Distribution Depots (the "Distribution Depots"). For the avoidance of doubt, the
Secured Creditors under the Security Agreement release any security interest in
any equipment or inventory located at, or to be sold with, the Retail Shops or
Distribution Depots, provided that such sale is conducted in compliance with
Section 3(f) of the Security Agreement and Section 7.02(a) of the Credit
Agreement.
Section 4. Conditional Waiver on Mortgage Transactions.
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(a) Understandings. The parties understand the following:
(1) The Borrower and certain of its Subsidiaries desire
to enter into certain mortgage transactions on real
property owned by the Borrower and/or these
Subsidiaries and grant mortgage liens in addition to
any liens already in existence;
(2) Such proposed transactions may take the form of
traditional mortgage liens, sale-leaseback
transactions, or sale-leaseback transactions through
a special purpose entity (the "Mortgage
Transactions"); and
(3) This Waiver and Amendment is being executed and
delivered prior to the Mortgage Transactions being
negotiated or resulting in definitive documentation.
(b) Waivers. Pursuant to Section 11.05 of the Credit
Agreement, the Lenders hereby waive (insofar as necessary to permit the Borrower
and its Subsidiaries to negotiate, draft and execute and perform under documents
related to, and structure and participate in transactions
contemplated by the documents related to, any Mortgage Transaction) the
restrictions contained in
(1) Section 7.02(a) of the Credit Agreement on sales,
transfers and leases of property;
(2) Section 7.02(b) of the Credit Agreement on liens;
(3) Section 7.02(c) of the Credit Agreement on additional
indebtedness; and
(4) Section 7.02(d) of the Credit Agreement on investments and
Section 7.02(g) of the Credit Agreement on stock issuances
of Subsidiaries, but only insofar as to permit the
Borrower or any one of its Subsidiaries to create a
special purpose vehicle deemed necessary or advisable by
the Borrower to execute a Mortgage Transaction;
in each case subject to the conditions described in Section 4(c) of this Waiver
and Amendment. Anything herein or elsewhere to the contrary notwithstanding,
such waivers are granted only insofar as necessary to permit the Mortgage
Transactions.
(c) Conditions. The waivers in Section 4(b) above will not be
effective, and shall become immediately null, void and unenforceable in their
entirety, if any of the following conditions are not satisfied:
(1) in the aggregate, the Mortgage Transactions may not relate
to real property having a Fair Market Value (as certified
under the Credit Agreement) of greater than $60 million
and any New Indebtedness from the Mortgage Transactions
may not be in an amount greater than $50 million;
(2) notwithstanding Section 7.02(a) of the Credit Agreement
and, in particular, its conditions for sale-leaseback
transactions, all of the net proceeds (100%) of any
Mortgage Transaction shall be deemed to be proceeds of New
Indebtedness, not proceeds of a sale, transfer or lease,
and must be used by the Borrower and its Subsidiaries to
(i) reduce the Total Commitment by an amount equal to such
net proceeds in accordance with Section 2.03(c) of the
Credit Agreement, and (ii) prepay Loans in an amount equal
to such net proceeds in accordance with Section 2.05(b) of
the Credit Agreement not later than the close of business
on the third Business Day after the receipt of such
proceeds;
(3) transfers and leases of real property will be permitted
between the Borrower or any of its Subsidiaries and an
Affiliate, but only insofar as to permit the execution of
a Mortgage Transaction involving a special purpose entity
that is an Affiliate or as otherwise permitted under the
Credit Agreement;
(4) prior to execution of any documents related to a Mortgage
Transaction, the Borrower shall provide a copy of all
draft documents (including any
and all schedules or exhibits thereto) to the
Administrative Agent and the Agent, in its sole
discretion, shall have determined (as Administrative
promptly as practicable after receipt of such documents)
that (i) the documents and provisions contained therein
are consistent with the requirements of the Credit
Agreement as modified or waived by this Waiver and
Amendment; and (ii) the Mortgage Transaction described by
such documents satisfies all of the conditions set forth
in this Section 4(c); and
(5) the Borrower or the appropriate Subsidiary executes a
Mortgage Transaction that satisfies all of the conditions
set forth in this Section 4(c).
Section 5. Miscellaneous.
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(a) All capitalized terms not otherwise defined in this Waiver
and Amendment shall have the meanings ascribed to them in the Credit Agreement
or the Security Agreement.
(b) All provisions in Article XI of the Credit Agreement and
Section 14 of the Security Agreement shall apply to this Waiver and Amendment
with equal force and effect as if restated completely herein.
(c) Except as set forth in this Waiver and Amendment, the
Credit Agreement and the Security Agreement shall remain in full force and
effect without amendment, modification or waiver. Execution and delivery hereof
by a Lender or the Agent shall not preclude the exercise by such Lender or the
Agent of any rights under the Credit Agreement or the Security Agreement (each
as amended by this Waiver and Amendment).
(d) This Waiver and Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such state.
(e) This Waiver and Amendment shall be effective on the first
date as of which a counterpart hereof has been executed and delivered to the
Administrative Agent by the Borrower and all of the Lenders under the Credit
Agreement.
[THE NEXT PAGE IS A SIGNATURE PAGE.]
[CREDIT AGREEMENT SIGNATURE PAGES]
IN WITNESS WHEREOF, the parties to the Credit Agreement have
caused this Waiver and Amendment to be duly executed as of the date first above
written.
APOGEE ENTERPRISES, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
THE BANK OF NEW YORK, as
Administrative Agent, L/C Issuer and Swing Line
Lender in the Credit Agreement
By: /s/ John-Paul Marotta
--------------------------------------
Name: John-Paul Marotta
Title: Vice President
LENDERS (and other Agents)
--------------------------
THE BANK OF NEW YORK, as a Lender in
the Credit Agreement
By: /s/ John-Paul Marotta
--------------------------------------
Name: John-Paul Marotta
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as|
Syndication Agent and a Lender in the Credit
Agreement
By: /s/ Matthew A. Ross
--------------------------------------
Name: Matthew A. Ross
Title: Sr. Vice President
HARRIS TRUST AND SAVINGS BANK, as
Documentation Agent and a Lender in the Credit
Agreement
By: /s/ Andrew T. Claar
--------------------------------------
Name: Andrew T. Claar
Title: Vice President
THE BANK OF NOVA SCOTIA, as Co-Agent
and a Lender in the Credit Agreement
By: /s/ M.A. Thomas
--------------------------------------
Name: M.A. Thomas
Title: Senior Manager
COMERICA BANK, as Co-Agent and a Lender
in the Credit Agreement
By: /s/ Timothy O'Rourke
--------------------------------------
Name: Timothy O'Rourke
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender in the Credit Agreement
By: /s/ John H. Kemper
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Name: John H. Kemper
Title: Senior Vice President
WELLS FARGO BANK, N.A., as a Lender in
the Credit Agreement
By: /s/ Molly S. Van Metre
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Name: Molly S. Van Metre
Title: Vice President and Senior Banker
WELLS FARGO BANK, N.A., as a Lender in
the Credit Agreement
By: /s/ Chad M. Kortgard
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Name: Chad M. Kortgard
Title: Assistant Vice President
REGIONS BANK, as a Lender in the Credit
Agreement
By: /s/ Tammy M. Foschee
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Name: Tammy M. Foschee
Title: Assistant Vice President
[SECURITY AGREEMENT SIGNATURE PAGES]
IN WITNESS WHEREOF, the parties to the Security Agreement have
caused this Waiver and Amendment to be duly executed as of the date first above
written.
DEBTORS:
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APOGEE ENTERPRISES, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
HARMON, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
VIRACON/CURVLITE, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
APOGEE WAUSAU GROUP, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
VIRACON, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
VIRATEC THIN FILMS, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
TRU VUE, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
HARMON GLASS COMPANY
By: /s/ Gary R. Johnson
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Name: Gary R. Johnson
Title: V.P. - Treasurer
VIRACON GEORGIA, INC.
By: /s/ Gary R. Johnson
--------------------------------------
Name: Gary R. Johnson
Title: V.P. - Treasurer
Accepted and Agreed to in New York,
New York as of the date first above written
THE BANK OF NEW YORK,
as Agent for the Secured Creditors
By: /s/ Paul Marotta
--------------------------------------
Name: John-Paul Marotta
Title: Vice President