Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 2, WAIVER AND AGREEMENT dated as of March 6, 2009 (this
"Amendment"), among INDALEX HOLDINGS FINANCE, INC., a Delaware corporation
("Holdings"), INDALEX HOLDING CORP., a Delaware corporation (the "Parent
Borrower"), INDALEX LIMITED, a Canadian corporation (the "Canadian Subsidiary
Borrower" and, together with the Parent Borrower, the "Borrowers"), the LENDERS
party hereto and JPMORGAN CHASE BANK, N.A., as administrative agent (the
"Administrative Agent"), issuing bank and swingline lender under the Credit
Agreement referred to below, to the AMENDED AND RESTATED CREDIT AGREEMENT dated
as of May 21, 2008 (as amended, supplemented or otherwise modified prior to the
effectiveness of this Amendment, the "Credit Agreement"), among Holdings, the
Borrowers, the other Subsidiaries of the Parent Borrower party thereto, the
Lenders party thereto and the Administrative Agent.
Capitalized terms used in
this Amendment but not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement.
WHEREAS pursuant to the Credit Agreement, the Lenders and the Issuing Bank have
agreed to extend credit to the Borrowers on the terms and subject to the
conditions set forth therein;
WHEREAS the Parent Borrower has requested that the Lenders (a) grant a waiver of
the conditions to funding set forth in Section 4.02 of the Credit Agreement and
(b) amend certain provisions of the Credit Agreement; and
WHEREAS the undersigned Lenders are willing to waive and amend such provisions
of the Credit Agreement subject to the conditions and agreements set forth
herein.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, and subject to the conditions set forth herein, the parties
hereto hereby agree as follows:
SECTION 1.
ACKNOWLEDGMENT OF EVENTS OF DEFAULT; RESERVATION OF RIGHTS.
(A)
EACH OF HOLDINGS AND THE BORROWERS HEREBY ACKNOWLEDGES AND AGREES THAT, AS OF
THE DATE HEREOF, EVENTS OF DEFAULT ARISING FROM THE FAILURES SPECIFIED IN
CLAUSES (I), (II), (III) AND (IV) OF SECTION 2(B) HEREOF HAVE OCCURRED AND ARE
CONTINUING (SUCH EVENTS OF DEFAULT, COLLECTIVELY, THE "SPECIFIED EVENTS OF
DEFAULT").
(B)
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2 HEREOF, THIS AMENDMENT DOES NOT
CONSTITUTE A WAIVER OF ANY RIGHTS OR REMEDIES THAT THE ADMINISTRATIVE AGENT OR
THE LENDERS MAY HAVE UNDER THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS
ARISING OUT OF OR WITH RESPECT TO ANY SPECIFIED EVENT OF DEFAULT OR ANY OTHER
EVENT OF
DEFAULT, WHICH RIGHTS AND REMEDIES ARE HEREBY RESERVED, NOR DOES THIS AMENDMENT
ESTABLISH A PRECEDENT OR COURSE OF DEALING AMONG THE PARTIES HERETO WITH RESPECT
TO ANY SPECIFIED EVENT OF DEFAULT OR ANY OTHER EVENT OF DEFAULT OCCURRING ON OR
AFTER THE AMENDMENT NO. 2 EFFECTIVE DATE (AS DEFINED IN SECTION 29 HEREOF).
SECTION 2.
WAIVERS.
(A)
SUBJECT TO CLAUSE (C) BELOW, THE LENDERS HEREBY WAIVE
THE CONDITION PRECEDENT TO THE MAKING OF ANY LOAN SET FORTH IN
SECTION 4.02(A)(I) OF THE CREDIT AGREEMENT SOLELY WITH RESPECT TO THE
REPRESENTATION AND WARRANTY SET FORTH IN SECTION 3.07