**Exhibit10.1**

 

FIRST AMENDMENT TO

 

THIRD AMENDED AND RESTATED CREDITAGREEMENT

 

THIS FIRSTAMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) isdated as of May 28, 2004, by and among AMERIMAX FABRICATED PRODUCTS, INC., aDelaware corporation (“U.S. Operating Co.”); EURAMAX HOLDINGS LIMITED, acompany organized under the laws of England and Wales (“U.K. Operating Co.”);EURAMAX EUROPE B.V., a company organized under the laws of The Netherlands(“Dutch Operating Co.”); EURAMAX NETHERLANDS B.V., a company organizedunder the laws of The Netherlands (“Dutch Company”; U.S. Operating Co.,U.K. Operating Co., Dutch Operating Co., and Dutch Company referred tocollectively herein as the “Borrowers”); EURAMAX INTERNATIONAL, INC., aDelaware corporation (“Euramax U.S.”); EURAMAX INTERNATIONAL HOLDINGSLIMITED, a company organized under the laws of England and Wales (“NewcoU.K.”); EURAMAX INTERNATIONAL LIMITED, a company organized under the lawsof England and Wales (“Euramax”); AMERIMAX U.K., INC. (f/k/a AmerimaxHoldings, Inc.), a Delaware corporation (“Amerimax U.K.”); EURAMAXEUROPEAN HOLDINGS LIMITED, a company organized under the laws of England andWales (“U.K. Holdings”); EURAMAX EUROPE LIMITED, a company organizedunder the laws of England and Wales (“U.K. Company”);  EURAMAX CONTINENTAL LIMITED, a companyorganized under the laws of England and Wales (“Newco U.K. II”);EURAMAX EUROPEAN HOLDINGS B.V., a company organized under the laws of TheNetherlands (“Dutch Holdings”); EURAMAX INTERNATIONAL HOLDINGS B.V., acompany organized under the laws of The Netherlands (“Euramax InternationalHoldings B.V.”); the “Operating Company Subsidiaries” party thereto(such Operating Company Subsidiaries together with Euramax U.S., Newco U.K.,Euramax, Amerimax U.K., U.K. Holdings, U.K. Company, Newco U.K. II, and DutchHoldings, and Euramax International Holdings B.V. referred to collectivelyherein as the “Loan Parties”); “Lenders” party thereto; andWACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (in itscapacities as “Lender”, “Issuer”, and “Agent”);

 

WITNESSETH:

 

WHEREAS, each of theBorrowers, the Loan Parties, the Lenders, the Issuer, and the Agent executedand delivered that certain Third Amended and Restated Credit Agreement dated asof October 9, 2003 (as the same may be amended, restated, supplemented, orotherwise modified from time to time, the “Credit Agreement”);

 

WHEREAS, each of theBorrowers and the Loan Parties has requested, and each of the Lenders, the Issuer,and the Agent has agreed to, certain amendments to the Credit Agreement,subject to the terms and conditions hereof;

 

NOW, THEREFORE, for andin consideration of the above premises and other good and valuableconsideration, the receipt and sufficiency of which hereby is acknowledged bythe parties hereto, each of the Borrowers, the Loan Parties, the Lenders, theIssuer, and the Agent hereby covenant and agree as follows:

 

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# 1.               Definitions.  Unless otherwise specifically definedherein, each term used herein which is defined in the Credit Agreement shallhave the meaning assigned to such term in the Credit Agreement.  Each reference to “hereof,” “hereunder,”“herein” and “hereby” and each other similar reference and each reference to“this Agreement” and each other similar reference contained in the CreditAgreement shall from and after the date hereof refer to the Credit Agreement asamended hereby.

 

# 2.               Amendment toSection 1.1 of Credit Agreement.

 

## (a)          Section 1.1 of theCredit Agreement hereby is amended by deleting the definitions of “ApplicableBase Rate Margin” and “Applicable Eurocurrency Margin” in their entirety andsubstituting the following therefor:

 

“Applicable Base Rate Margin” and “Applicable Eurocurrency Margin”mean, as to each Revolving Credit Loan or Term Loan, as applicable, thepercentage per annum for such Loan determined from the following table andcorresponding to the Ratio of Total Debt to EBITDA in effect as of the mostrecent Calculation Date (as defined below); provided, however,that (a) for the period commencing on October 8, 2003, through andincluding March 31, 2004, the Applicable Base  Rate Margin and the Applicable Eurocurrency Margin shall be basedon the percentages set forth below for Level III (as determined by reference tothe following table) and (b) for the period commencing April 1, 2004, andending on the first Calculation Date thereafter (which first such date shall beforty-five days after the end of the Fiscal Quarter ending March 26,2004), the Applicable Base Rate Margin and the Applicable Eurocurrency Marginshall be based on the percentages set forth below for Level IV (as determinedby reference to the following table):

 
| **Level** |   | **Type of Loan**        |   | **Ratio of  Total Debt to  EBITDA**    |   | **Applicable Base  Rate Margin** |   | **Applicable  Eurocurrency  Margin** |   |
|-----------|--------|-------------------------|--------|----------------------------------------|--------|----------------------------------|--------|--------------------------------------|--------|
| I         |   | Revolving  Credit Loans |   | Equal  to or greater than 4.25 to 1.00 |   | 2.00                             | %      | 3.00                                 | %      |
| II        |   | Revolving  Credit Loans |   | Equal  to or greater than 3.75 to 1.00 |   | 1.75                             | %      | 2.75                                 | %      |
| III       |   | Revolving  Credit Loans |   | Equal  to or greater than 3.25 to 1.00 |   | 1.50                             | %      | 2.50                                 | %      |
| IV        |   | Revolving  Credit Loans |   | Less  than 3.25 to 1.00                |   | 1.00                             | %      | 2.25                                 | %      |

 

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| **Level** |   | **Type of Loan** |   | **Ratio of  Total Debt to  EBITDA**    |   | **Applicable Base  Rate Margin** |   | **Applicable  Eurocurrency  Margin** |   |
|-----------|--------|------------------|--------|----------------------------------------|--------|----------------------------------|--------|--------------------------------------|--------|
| I         |   | Term  Loans      |   | Equal  to or greater than 4.25 to 1.00 |   | 2.25                             | %      | 3.25                                 | %      |
| II        |   | Term  Loans      |   | Equal  to or greater than 3.75 to 1.00 |   | 2.00                             | %      | 3.00                                 | %      |
| III       |   | Term  Loans      |   | Equal  to or greater than 3.25 to 1.00 |   | 1.75                             | %      | 2.75                                 | %      |
| IV        |   | Term  Loans      |   | Less  than 3.25 to 1.00                |   | 1.25                             | %      | 2.50                                 | %      |

 

Each of theApplicable Base Rate Margin and the Applicable Eurocurrency Margin shall bedetermined and adjusted quarterly on each date (each a “Calculation Date”)which is forty-five days after the last day of each Fiscal Quarter from theRatio of Total Debt to EBITDA reported in the Ratio Notice delivered withrespect to such Fiscal Quarter; provided, however, that ifEuramax U.S. fails to provide the Ratio Notice as required by and within thetime limits set forth in the definition of “Ratio Notice” in Section 1.1hereof, the Applicable Base Rate Margin and the Applicable Eurocurrency Marginfrom the applicable date of such failure shall be based on Level I until suchRatio Notice is provided, whereupon the Applicable Base Rate Margin and theApplicable Eurocurrency Margin, as applicable, shall be determined by the Ratioof Total Debt to EBITDA duly reported in such Ratio Notice.  Except as set forth above, each of theApplicable Base Rate Margin and the Applicable Eurocurrency Margin shall beeffective from one Calculation Date until the next Calculation Date.

 

## (b)         Section 1.1 of theCredit Agreement hereby is amended by deleting the definitions of “Level I RatePeriod”, “Level II Rate Period”, “Level III Rate Period”, and “Level IV RatePeriod” in their entirety.

 

# 3.               Restatement ofRepresentations and Warranties. Each of the Borrowers and the Loan Parties hereby restates and renewseach and every representation and warranty heretofore made by it in the CreditAgreement and the other Credit Documents as fully as if made on the date hereofand with specific reference to this Amendment and all other Credit Documentsexecuted and/or delivered in connection herewith (except to the extent that anysuch representation and warranty has been duly waived in writing and then onlywith respect to the particular instance for which such waiver or waivers weregranted).

 

# 4.               Effect ofAmendment.  Except as set forthexpressly hereinabove, all terms of the Credit Agreement and the other CreditDocuments shall be and remain in full force and effect, and shall constitutethe legal, valid, binding and enforceable obligations of each of the parties

 

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# hereto.  Theamendment contained herein shall be deemed to have prospective applicationonly, unless otherwise specifically stated herein.

 

# 5.               Ratification.  Each of the Borrowers and the Loan Partieshereby restates, ratifies and reaffirms each and every term, covenant andcondition set forth in the Credit Agreement and the other Loan Documentseffective as of the date hereof (except to the extent that any such term,covenant, or condition has been duly waived in writing and then only withrespect to the particular instance for which such waiver or waivers weregranted).

 

# 6.               Counterparts.  This Amendment may be executed in any numberof counterparts and by different parties hereto in separate counterparts, eachof which may be delivered by facsimile and which when so executed and delivered(including counterparts delivered by facsimile) shall be deemed to be anoriginal and all of which counterparts, taken together, shall constitute butone and the same instrument.

#  

# 7.               Section References.  Section titles and references used inthis Amendment shall be without substantive meaning or content of any kindwhatsoever and are not a part of the agreements among the parties heretoevidenced hereby.

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# 8.               No Default.  To induce each of the Lenders, the Issuer,and the Agent to enter into this Amendment and to continue to make advancespursuant to the Credit Agreement, each of the Borrowers and the Loan Partieshereby acknowledges and agrees that, as of the date hereof, and after givingeffect to the terms hereof, there exists (i) no Default or Event ofDefault and (ii) no right of offset, defense, counterclaim, claim orobjection in favor of the Borrowers or the Loan Parties arising out of or withrespect to any of the Obligations or other obligations of the Borrowers or theLoan Parties owed to the Lenders under the Credit Agreement or otherwise.

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# 9.               FurtherAssurances.  Each of the Borrowersand the Loan Parties agree to take such further actions as the Agent shallreasonably request in connection herewith to evidence the amendments hereincontained.

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# 10.         Governing Law.  This Amendment shall be governed by andconstrued and interpreted in accordance with, the laws of the State of NewYork.

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# 11.         Consent andReaffirmation.  Each of the LoanParties which is a Guarantor (i) consents to the execution and delivery of thisAmendment by the Borrowers and each other Guarantor and (ii) reaffirms (inlight of this Amendment) all of its obligations and covenants under the LoanDocuments to which it is a party, and agrees that none of such obligations andcovenants shall be diminished by the execution and delivery of this Amendment,except as expressly provided for herein.

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# 12.         Conditions Precedent.  This Amendment shall be effective upon theAgent’s receipt of executed and delivered signature pages hereto from each ofthe Borrowers, the Loan Parties, the Lenders, the Issuer, and the Agent.

#  

[SIGNATURES ON FOLLOWING PAGES]

 

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IN WITNESS WHEREOF, eachof the Borrowers, the Loan Parties, the Lenders, the Issuer, and the Agent havecaused this Amendment to be duly executed, under seal, by its duly authorizedofficer as of the day and year first above written.

 
|   | BORROWERS:                              |
|--------|-----------------------------------------|
|   |                                    |
|   | EURAMAX  INTERNATIONAL, INC.            |
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   | Name:                                   | R.  Scott Vansant |   |
|   | Title:                                  | Chief  Financial Officer |   |
|   |                                    |
|   |                                    |
|   | EURAMAX  INTERNATIONAL LIMITED          |
|   | EURAMAX  INTERNATIONAL HOLDINGS LIMITED |
|   | EURAMAX  EUROPEAN HOLDINGS LIMITED      |
|   | EURAMAX  CONTINENTAL LIMITED            |
|   | EURAMAX  COATED PRODUCTS LIMITED        |
|   | EURAMAX  EUROPE LIMITED                 |
|   | EURAMAX  HOLDINGS LIMITED               |
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   | Name:                                   | R.  Scott Vansant |   |
|   | Title:                                  | Director |   |
|   |                                    |   |
|   |                                    |   |
|   | EURAMAX  INTERNATIONAL HOLDINGS B.V.    |
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   | Name:                                   |   |   |
|   | Title:                                  |   |   |
|        |                                         |  |  |  |  |  |  |

 

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|   | EURAMAX  EUROPEAN HOLDINGS B.V.                       |
|--------|-------------------------------------------------------|
|   | EURAMAX  NETHERLANDS B.V.                             |
|   | EURAMAX  EUROPE B.V.                                  |
|   | EURAMAX  COATED PRODUCTS B.V.                         |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 |   |   |
|   | Title:                                                |   |   |
|   |                                                  |
|   |                                                  |
|   | AMERIMAX  U.K. (f/k/a/, Amerimax Holdings, Inc.) INC. |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 | David  Pugh |   |
|   | Title:                                                | Director |   |
|   |                                                  |
|   |                                                  |
|   | AMERIMAX  FABRICATED PRODUCTS, INC.                   |
|   | AMERIMAX  BUILDING PRODUCTS, INC.                     |
|   | AMERIMAX  COATED PRODUCTS, INC.                       |
|   | AMERIMAX  RICHMOND COMPANY                            |
|   | AMERIMAX  FINANCE COMPANY, INC.                       |
|   | AMERIMAX  LAMINATED PRODUCTS, INC.                    |
|   | AMERIMAX  HOME PRODUCTS, INC.                         |
|   | AMERIMAX  DIVERSIFIED PRODUCTS, INC.                  |
|   | AMERIMAX  PENNSYLVANIA, INC.                          |
|   | FABRAL  HOLDINGS, INC.                                |
|   | FABRAL,  INC.                                         |
|   |                                                  |
|   |                                                  |
|   | By:                                                   |   |   |
|   | Name:                                                 | R.  Scott Vansant |   |
|   | Title:                                                | Chief  Financial Officer |   |
|        |                                                       |  |  |  |  |  |

 

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|   | ELLBEE  LIMITED              |
|--------|------------------------------|
|   |                         |
|   |                         |
|   | By:                          |   |   |
|   | Name:                        |   |   |
|   | Title:                       |   |   |
|   |                         |
|   |                         |
|   | BERGER  HOLDINGS, LTD.       |
|   | BERGER  FINANCIAL CORP.      |
|   | BERGER  BROS COMPANY         |
|   | COPPER  CRAFT, INC.          |
|   | WALKER  METAL PRODUCTS, INC. |
|   |                         |
|   |                         |
|   | By:                          |   |   |
|   | Name:                        | R.  Scott Vansant |   |
|   | Title:                       | Vice  President and Chief Financial Officer |   |
|        |                              |  |  |  |  |  |  |

 

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|   | ISSUER  AND AGENT:                         |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | WACHOVIA  BANK, NATIONAL                   |
|   | ASSOCIATION  (successor by merger to FIRST |
|   | UNION  NATIONAL BANK)                      |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |   |   |
|   | Title:                                     |   |   |
|        |                                            |  |  |  |  |

 

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|   | LENDERS:                                   |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | WACHOVIA  BANK, NATIONAL                   |
|   | ASSOCIATION  (successor by merger to FIRST |
|   | UNION  NATIONAL BANK), as Lender           |
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |   |   |
|   | Title:                                     |   |   |
|        |                                            |  |  |  |  |

 

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|   | LASALLE  BANK NATIONAL ASSOCIATION, as Lender |
|--------|-----------------------------------------------|
|   |                                          |
|   |                                          |
|   | By:                                           |   |   |
|   | Name:                                         |   |   |
|   | Title:                                        |   |   |
|        |                                               |  |  |  |  |

 

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|   | PNC  BANK, NATIONAL ASSOCIATION, as Lender |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By:                                        |   |   |
|   | Name:                                      |   |   |
|   | Title:                                     |   |   |
|        |                                            |  |  |  |  |

 

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|   | FLEET  NATIONAL BANK, as Lender |
|--------|---------------------------------|
|   |                            |
|   |                            |
|   | By:                             |   |   |
|   | Name:                           |   |   |
|   | Title:                          |   |   |
|        |                                 |  |  |  |  |

 

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|   | SUNTRUST  BANK, as Lender |
|--------|---------------------------|
|   |                      |
|   |                      |
|   | By:                       |   |   |
|   | Name:                     |   |   |
|   | Title:                    |   |   |
|        |                           |  |  |  |  |

 

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|   | BANK  OF AMERICA, N.A., as Lender |
|--------|-----------------------------------|
|   |                              |
|   |                              |
|   | By:                               |   |   |
|   | Name:                             |   |   |
|   | Title:                            |   |   |
|        |                                   |  |  |  |  |

 

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