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EXHIBIT 10.1
RECEIVABLES PURCHASE AGREEMENT
among
ATRIUM FUNDING CORP.,
as Seller,
ATRIUM COMPANIES, INC.,
as Servicer,
FAIRWAY FINANCE CORPORATION,
as Purchaser,
and
BMO NESBITT BURNS CORP.,
as Agent
Dated as of July 31, 2001
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TABLE OF CONTENTS
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ARTICLE I.AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1. Purchase Facility.............................................1
Section 1.2. Making Purchases..............................................2
Section 1.3. Participation Computation.....................................3
Section 1.4. Settlement Procedures.........................................3
Section 1.5. Fees..........................................................7
Section 1.6. Payments and Computations, Etc................................7
Section 1.7. Increased Costs...............................................7
Section 1.8. Requirements of Law...........................................8
Section 1.9. Inability to Determine Eurodollar Rate........................9
ARTICLE II.REPRESENTATIONS AND WARRANTIES; COVENANTS;TERMINATION
EVENTS
Section 2.1. Representations and Warranties; Covenants....................10
Section 2.2. Termination Events...........................................10
ARTICLE III.INDEMNIFICATION
Section 3.1. (a) Indemnities by the Seller................................10
ARTICLE IV.ADMINISTRATION AND COLLECTIONS
Section 4.1. Appointment of Servicer......................................13
Section 4.2. Duties of Servicer...........................................14
Section 4.3. Establishment and Use of Certain Accounts....................14
Section 4.4. Enforcement Rights...........................................16
Section 4.5. Responsibilities of the Seller...............................16
Section 4.6. Servicing Fee................................................17
ARTICLE V.MISCELLANEOUS
Section 5.1. Amendments, Etc..............................................17
Section 5.2. Notices, Etc.; Extension of Stated Termination Date..........17
Section 5.3. Assignability................................................18
Section 5.4. Costs, Expenses and Taxes....................................19
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Section 5.5. No Proceedings; Limitation on Payments.......................19
Section 5.6. Confidentiality..............................................20
Section 5.7. GOVERNING LAW AND JURISDICTION...............................20
Section 5.8. Execution in Counterparts....................................21
Section 5.9. Survival of Termination......................................21
Section 5.10. WAIVER OF JURY TRIAL........................................21
Section 5.11. Entire Agreement............................................21
Section 5.12. Headings....................................................21
Section 5.13. Purchaser's Liabilities.....................................21
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TABLE OF CONTENTS
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EXHIBITS
Exhibit I Definitions.........................................................I-1
Exhibit II Conditions of Purchases............................................II-1
Exhibit III Representations and Warranties....................................III-1
Exhibit IV Covenants..........................................................IV-1
Exhibit V Termination Events..................................................V-1
Exhibit VI Special Obligors...................................................VI-1
Exhibit VII Supplemental Uniform Commercial Code
Representations, Warranties and Covenants.........................VII-1
SCHEDULES
Schedule I Credit and Collection Policy........................................I-1
Schedule II Lock-Box Bank and Lock-Box Account.................................II-1
Schedule III Trade Names.......................................................III-1
Annex A Form of Lockbox Agreement
Annex B Form of Notice of Purchase
Annex C Form of Servicer Report
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RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT (this "AGREEMENT") is entered into as
of July 31, 2001 among ATRIUM FUNDING CORP., a Delaware corporation, as seller
(the "SELLER"), ATRIUM COMPANIES, INC. ("ATRIUM"), a Delaware corporation, as
initial servicer (in such capacity, together with its successors and permitted
assigns in such capacity, the "SERVICER"), FAIRWAY FINANCE CORPORATION, a
Delaware corporation (the "PURCHASER"), and BMO NESBITT BURNS CORP., a Delaware
corporation ("NESBITT BURNS") as agent for the Purchaser (in such capacity,
together with its successors and assigns in such capacity, the "AGENT").
PRELIMINARY STATEMENTS. Certain terms that are capitalized and used
throughout this Agreement are defined in EXHIBIT I to this Agreement. References
in the Exhibits hereto to "the Agreement" refer to this Agreement, as amended,
modified or supplemented from time to time.
The Seller desires to sell, transfer and assign an undivided variable
percentage interest in a pool of receivables, and the Purchaser desires to
acquire such undivided variable percentage interest, as such percentage interest
shall be adjusted from time to time based upon, in part, reinvestment payments
which are made by the Purchaser and additional incremental payments made to the
Seller.
In consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section I.1. PURCHASE FACILITY. (a) On the terms and conditions
hereinafter set forth, the Purchaser hereby agrees to purchase the Participation
from the Seller on the Closing Date and make Payments with regard to the
Participation purchased from the Seller from time to time during the period from
the date hereof to the Facility Termination Date. Under no circumstances shall
the Purchaser make any such Payment if, after giving effect thereto, the
aggregate outstanding Investment of the Participation would exceed the Purchase
Limit.
(b) The Seller may, upon at least 15 Business Days' notice to the Agent,
terminate the purchase facility provided in this SECTION 1.1 in whole or, from
time to time, irrevocably reduce
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in part the unused portion of the Purchase Limit; PROVIDED that each partial
reduction shall be in the amount of at least $5,000,000 or an integral multiple
of $100,000 in excess thereof; PROVIDED, FURTHER, that unless reduced to zero,
the Purchase Limit shall never be reduced below $30,000,000.
Section I.2. MAKING PURCHASES. (a) Each Payment (other than any Payment
made out of Collections pursuant to Section 1.4(b)(ii) or (iii), as applicable)
by Purchaser with regard to the Participation hereunder shall be made upon the
Seller's irrevocable written notice in the form of Annex B delivered to the
Agent in accordance with SECTION 5.2 (which notice must be received by the Agent
prior to 11:00 a.m., Chicago time) on the second Business Day next preceding the
date of such proposed Payment. Each such notice of any such proposed Payment
shall specify (x) the desired amount of such Payment and (y) the desired Yield
Period related thereto; PROVIDED that such amount shall not be less than
$1,000,000 and integral multiples of $100,000 in excess thereof, and date of
such Payment. After giving effect to any such Payment, the Participation shall
not exceed 100%. The Agent shall select the duration of such initial Yield
Period, and each subsequent Yield Period in its discretion; provided that it
shall use reasonable efforts, taking into account market conditions, to
accommodate Seller's preferences.
(b) On the date of each such Payment with regard to the Participation
hereunder (other than any Payment made out of Collections pursuant to Section
1.4(b)(ii) or (iii), as applicable), the Purchaser shall, upon satisfaction of
the applicable conditions set forth in EXHIBIT II hereto, make available to the
Agent at its office at 115 South LaSalle Street, Chicago, Illinois 60603, the
amount of such Payment (set forth in each notice delivered in accordance with
Section 1.2(a)) in same day funds, and after the Agent's receipt of such funds,
the Agent shall make such funds immediately available to the Seller at such
office.
(c) Effective on the Closing Date, the Seller hereby sells and assigns to
the Purchaser the Participation, which represents an undivided percentage
ownership interest in all of the Seller's right, title and interest in and to a
pool of all now and hereafter existing or arising Pool Receivables (other than
any Pool Receivables that arise on or after the date following the Facility
Termination Date when all Investment and other obligations of the Seller
hereunder are paid in full), Related Security and Collections with respect to,
and other proceeds of, such Pool Receivables and Related Security.
(d) To secure all of the Seller's obligations (monetary or otherwise)
under this Agreement and the other Transaction Documents to which it is a party,
whether now or hereafter existing or arising, due or to become due, direct or
indirect, absolute or contingent, the Seller hereby grants to the Purchaser a
security interest in all of the Seller's right, title and interest (including
without limitation any undivided interest of the Seller) in, to and under all of
the following, whether now or hereafter owned, existing or arising: (A) all Pool
Receivables, (B) all Related Security with respect to each such Pool Receivable,
(C) all Collections with respect to each such Pool Receivable, (D) the Lock Box
Accounts and all amounts on deposit therein
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representing proceeds of the Pool Receivables and proceeds of the Related
Security with respect thereto, the Collection Account and all amounts on deposit
therein and all certificates and instruments, if any, from time to time
evidencing such Lock Box Accounts and Collection Account and such amounts on
deposit therein and any such amounts that are invested in Permitted Investments
and any securities or other account into which such Permitted Investments, if
any, may from time to time be deposited and any other amounts from time to time
on deposit in any such account, and (E) all proceeds of, and all amounts
received or receivable under any or all of, the foregoing. The Purchaser shall
have, with respect to the property described in this SECTION 1.2(d), and in
addition to all the other rights and remedies available to the Purchaser, all
the rights and remedies of a secured party under any applicable UCC.
Section I.3. PARTICIPATION COMPUTATION. The Participation shall be
initially computed on the date of the initial purchase hereunder. Thereafter
until the Termination Date, the Participation shall be automatically recomputed
(or deemed to be recomputed) on each Business Day other than a Termination Day.
From and after the occurrence and during the continuation of any Termination
Day, the Participation shall be deemed to be 100%. The Participation shall
become zero when the Investment and Discount thereon shall have been paid in
full, all the amounts owed by the Seller hereunder to the Purchaser, the Agent,
and any other Indemnified Party or Affected Person are paid in full and the
Servicer shall have received the accrued Servicing Fee thereon.
Section I.4. SETTLEMENT PROCEDURES. (a) Collection of the Pool
Receivables shall be administered by the Servicer in accordance with the terms
of this Agreement. The Seller shall provide to the Servicer on a timely basis
all information needed for such administration, including notice of the
occurrence of any Termination Day and current computations of the Participation.
(b) The Servicer shall, on each day on which Collections of Pool
Receivables are received (or deemed received) by the Seller or Servicer,
transfer such Collections from the Lock-Box Accounts and deposit such
Collections into the Collection Account. With respect to all Collections on
deposit in the Collection Account on such day, the Servicer shall:
(i) set aside for the benefit of the Purchaser, out of the
percentage of such Collections represented by the Participation, FIRST an
amount equal to the Discount accrued through such day for each Portion of
Investment and not previously set aside and SECOND, to the extent funds
are available therefor, an amount equal to the Servicing Fee and the
Commitment Fee accrued through such day for the Participation and not
previously set aside; and
(ii) subject to SECTION 1.4(F), if such day is not a Termination
Day, remit to the Seller, on behalf of the Purchaser, the remainder of
the percentage of such Collections, represented by the Participation, to
the extent representing a return on the Investment;
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such Collections shall automatically remain invested in the
Participation; IT BEING UNDERSTOOD, that prior to so remitting to the
Seller the remainder of such Collections, the Servicer shall have
calculated the Participation on such day, and if such Participation shall
exceed 100% on such day, such Collections shall not be remitted to the
Seller but shall remain in the Collection Account for the benefit of the
Purchaser in accordance with PARAGRAPH (iii) below;
(iii) if such day is a Termination Day, maintain in the Collection
Account for the Purchaser the entire remainder of the percentage of the
Collections represented by the Participation; PROVIDED that so long as
the Facility Termination Date has not occurred if any amounts are
maintained in the Collection Account on any Termination Day and
thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are
satisfied or are waived by the Agent, such previously set aside amounts
shall, to the extent representing a return on the Investment, remain
invested in accordance with the preceding PARAGRAPH (ii) on the day of
such subsequent satisfaction or waiver of conditions; PROVIDED that so
long as the Facility Termination Date has not occurred if any amounts are
maintained in the Collection Account on any Termination Day and
thereafter, the conditions set forth in SECTION 2 of EXHIBIT II are
satisfied or are waived by the Agent, such previously set aside amounts
shall be distributed to the Seller on the day of such subsequent
satisfaction or waiver of conditions; and
(iv) during such times as amounts are required to remain invested
in accordance with the foregoing PARAGRAPH (ii) or the proviso to
PARAGRAPH (iii), release to the Seller (subject to SECTION 1.4(f)) for
its own account any Collections in excess of the sum of (x) such amounts,
(y) the amounts that are required to be maintained in the Collection
Account pursuant to PARAGRAPH (i) above and (z) in the event the Seller
is not the Servicer, all reasonable and appropriate out-of-pocket costs
and expenses of such Servicer of servicing, collecting and administering
the Pool Receivables.
(c) The Servicer shall deposit into the Purchaser's Account (or such
other account designated by the Agent), on the last day of each Yield Period
relating to a Portion of Investment:
(i) Collections held on deposit in the Collection Account for the
benefit of the Purchaser pursuant to SECTION 1.4(b)(i) in respect of
accrued Discount and the Program Fees and Commitment Fees with respect to
such Portion of Investment;
(ii) Collections held on deposit in the Collection Account for the
benefit of the Purchaser pursuant to SECTION 1.4(f) with respect to such
Portion of Investment; and
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(iii) the lesser of (x) the amount of Collections then held on
deposit in the Collection Account for the benefit of the Purchaser
pursuant to SECTION 1.4(b)(iii) and (y) such Portion of Investment.
The Servicer shall deposit to its own account from Collections held on deposit
in the Collection Account pursuant to SECTION 1.4(b)(i) in respect of the
accrued Servicing Fee, an amount equal to such accrued Servicing Fee.
(d) Upon receipt of funds deposited into the Purchaser's Account pursuant
to SECTION 1.4(c) with respect to any Portion of Investment, the Agent shall
cause such funds to be distributed as follows:
(i) if such distribution occurs on a day that is not a Termination
Day, FIRST to the Purchaser in payment in full of all accrued Discount
with respect to such Portion of Investment, SECOND, to the Purchaser in
payment of accrued and unpaid Program Fees and Commitment Fees, and
THIRD, if the Servicer has set aside amounts in respect of the Servicing
Fee pursuant to SECTION 1.4(b)(i), to the Servicer (payable in arrears on
the last day of each calendar month) in payment in full of accrued
Servicing Fees so set aside with respect to such Portion of Investment;
and
(ii) if such distribution occurs on a Termination Day, FIRST to
the Purchaser in payment in full of all accrued Discount with respect to
such Portion of Investment, SECOND to the Purchaser in payment of accrued
and unpaid Program Fees and Commitment Fees, THIRD, to the Purchaser in
payment in full of such Portion of Investment, FOURTH, if Seller or any
of its Affiliates is not the Servicer, to the Servicer in payment in full
of all accrued Servicing Fees with respect to such Portion of Investment,
and FIFTH, if the Investment and accrued Discount with respect to each
Portion of Investment have been reduced to zero, and all accrued
Servicing Fees payable to the Servicer (if other than the Seller) have
been paid in full, to the Purchaser, the Agent and any other Indemnified
Party or Affected Person in payment in full of any other amounts owed
thereto by the Seller hereunder and then to the Servicer (if the Servicer
is the Seller) in payment in full of all accrued Servicing Fees.
After the Investment, Program Fees, Discount and Servicing Fees with respect to
the Participation, and any other amounts payable by the Seller to the Purchaser,
the Agent or any other Indemnified Party or Affected Person hereunder, have been
paid in full, all additional Collections with respect to the Participation shall
be paid to the Seller for its own account.
(e) For the purposes of this SECTION 1.4:
(i) if on any day the Outstanding Balance of any Pool Receivable
is reduced or adjusted as a result of any defective, rejected, returned,
repossessed or foreclosed
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goods or services, or any discount, rebate or other adjustment made by
the Seller, any Originator or Servicer, or any setoff or dispute between
the Seller, any Originator or the Servicer and an Obligor, the Seller
shall be deemed to have received on such day a Collection of such Pool
Receivable in the amount of such reduction or adjustment;
(ii) if on any day any of the representations or warranties in
PARAGRAPHS (f) or (l) of Section 1 of EXHIBIT III is not true with
respect to any Pool Receivable, the Seller shall be deemed to have
received on such day a Collection of such Pool Receivable in full;
(iii) except as provided in PARAGRAPH (i) or (ii) of this SECTION
1.4(e), or as otherwise required by applicable law or the relevant
Contract, all Collections received from an Obligor of any Receivable
shall be applied to the Receivables of such Obligor in the order of the
age of such Receivables, starting with the oldest such Receivable, unless
such Obligor designates in writing its payment for application to
specific Receivables; and
(iv) if and to the extent the Agent or the Purchaser shall be
required for any reason to pay over to an Obligor (or any trustee,
receiver, custodian or similar official in any Insolvency Proceeding) any
amount received by it hereunder, such amount shall be deemed not to have
been so received but rather to have been retained by the Seller and,
accordingly, the Agent or the Purchaser, as the case may be, shall have a
claim against the Seller for such amount, payable when and to the extent
that any distribution from or on behalf of such Obligor is made in
respect thereof.
(f) If at any time the Seller shall wish to cause the reduction of the
entire Investment or any Portion of Investment, the Seller may do so as follows:
(i) the Seller shall give the Agent at least fifteen (or in the
case of any reduction of a Portion of Investment which is not a reduction
of the entire Investment, two) Business Days' prior written notice
thereof (including the amount of such proposed reduction and the proposed
date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and on
each day thereafter, the Servicer shall cause Collections with respect to
the Investment or such Portion of Investment (including to any related
Discount) not to be reinvested until the amount thereof not so reinvested
shall equal the desired amount of reduction, and
(iii) the Servicer shall hold such Collections in the Collection
Account for the benefit of the Purchaser, for payment to the Agent on the
last day of the current Yield Period relating to the Investment or such
Portion of Investment (and in the case of a reduction of the entire
Investment, the Servicer shall hold in the Collection Account for payment
on such date an amount equal to all other obligations of the Seller or
Servicer to
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the Purchaser, the Agent and each other Indemnified Party or Affected
Person hereunder), and the Investment or the applicable Portion of
Investment shall be deemed reduced in the amount to be paid to the Agent
only when in fact finally so paid;
PROVIDED that,
A. the amount of any such reduction shall be not less than
$1,000,000 and shall be an integral multiple of $100,000, and the entire
Investment of the Participation after giving effect to such reduction
shall be not less than $1,000,000 unless the entire Investment shall have
been reduced to zero,
B. the Seller shall choose a reduction amount, and the date of
commencement thereof, so that to the extent practicable such reduction
shall commence and conclude in the same Yield Period, and
C. if two or more Portions of Investment shall be outstanding at
the time of any proposed reduction, such proposed reduction shall be
applied, unless the Seller shall otherwise specify in the notice given
pursuant to SECTION 1.4(f)(i), to the Portion of Investment with the
shortest remaining Yield Period.
Section I.5. FEES. The Seller shall pay to the Agent certain fees in the
amounts and on the dates set forth in a letter dated July 31, 2001 between the
Seller and the Agent (as the same may be amended, amended and restated,
supplemented or modified, the "FEE LETTER") delivered pursuant to SECTION 1 of
EXHIBIT II, as such letter agreement may be amended, supplemented or otherwise
modified from time to time.
Section I.6. PAYMENTS AND COMPUTATIONS, ETC. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be paid or deposited
no later than noon (Chicago time) on the day when due in same day funds to the
Purchaser's Account. All amounts received after noon (Chicago time) will be
deemed to have been received on the immediately succeeding Business Day.
(b) The Seller shall, to the extent permitted by law, pay interest on any
amount not paid or deposited by the Seller or Servicer when due hereunder, at an
interest rate equal to 2.0% PER ANNUM above the Base Rate, payable on demand.
(c) All computations of interest under SUBSECTION (b) above and all
computations of Discount, fees, and other amounts hereunder shall be made on the
basis of a year of 360 days (other than Discount calculated of the Base Rate
which shall be computed on the basis of a year of 365 or 366 days, as the case
may be) for the actual number of days elapsed. Whenever any payment or deposit
to be made hereunder shall be due on a day other than a Business Day, such
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payment or deposit shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of such payment or
deposit.
Section I.7. INCREASED COSTS. (a) If the Agent, the Purchaser, any
Liquidity Bank, any other Program Support Provider or any of their respective
Affiliates (each an "AFFECTED PERSON") determines that the existence of or
compliance with (i) any law or regulation or any change therein or in the
interpretation or application thereof, in each case adopted, issued or occurring
after the date hereof or (ii) any request, guideline or directive from any
central bank or other Governmental Authority (whether or not having the force of
law) issued or occurring after the date of this Agreement affects or would
affect the amount of capital required or expected to be maintained by such
Affected Person and such Affected Person determines that the amount of such
capital is increased by or based upon the existence of any commitment to make
purchases of or otherwise to maintain the investment in Pool Receivables related
to this Agreement or any related liquidity facility or credit enhancement
facility and other commitments of the same type, then, upon demand by such
Affected Person (with a copy to the Agent), the Seller shall promptly pay to the
Agent, for the account of such Affected Person, from time to time as specified
by such Affected Person, additional amounts sufficient to compensate such
Affected Person in the light of such circumstances, to the extent that such
Affected Person determines such increase in capital to be allocable to the
existence of any of such commitments. A certificate as to such amounts submitted
to the Seller and the Agent by such Affected Person shall be conclusive and
binding for all purposes, absent manifest error evidence of the subject matter
thereof.
(b) If, due to either (i) the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements referred to
in SECTION 1.8) in or in the interpretation of any law or regulation or (ii)
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Affected Person of agreeing to purchase or
purchasing, or maintaining the ownership of the Participation in respect of
which Discount is computed by reference to the Eurodollar Rate, then, upon
demand by such Affected Person, the Seller shall immediately pay to such
Affected Person, from time to time as specified, additional amounts sufficient
to compensate such Affected Person for such increased costs. A certificate as to
such amounts submitted to the Seller by such Affected Person shall be conclusive
and binding for all purposes, absent manifest error.
Section I.8. REQUIREMENTS OF LAW. In the event that any Affected Person
determines that the existence of or compliance with (i) any law or regulation or
any change therein or in the interpretation or application thereof, in each case
adopted, issued or occurring after the date hereof or (ii) any request,
guideline or directive from any central bank or other Governmental Authority
(whether or not having the force of law) issued or occurring after the date of
this Agreement:
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(i) does or shall subject such Affected Person to any tax of any
kind whatsoever with respect to this Agreement, any increase in the
Participation or in the amount of Investment relating thereto, or does or
shall change the basis of taxation of payments to such Affected Person on
account of Collections, Discount or any other amounts payable hereunder
(excluding taxes imposed on the overall net income or gross receipts of
such Affected Person, and franchise taxes imposed on such Affected
Person, by the jurisdiction under the laws of which such Affected Person
is organized or a political subdivision thereof);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
purchases, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Affected Person which
are not otherwise included in the determination of the Eurodollar Rate or
the Base Rate hereunder; or
(iii) does or shall impose on such Affected Person any other
condition; and the result of any of the foregoing is (x) to increase the
cost to such Affected Person of acting as Agent, or of agreeing to
purchase or purchasing or maintaining the ownership of undivided
ownership interests with regard to the Participation (or interests
therein) or any Portion of Investment in respect of which Discount is
computed by reference to the Eurodollar Rate or the Base Rate or (y) to
reduce any amount receivable hereunder (whether directly or indirectly)
funded or maintained by reference to the Eurodollar Rate or the Base
Rate, then, in any such case, upon demand by such Affected Person the
Seller shall pay such Affected Person any additional amounts sufficient
to compensate such Affected Person for such additional cost or reduced
amount receivable. All such amounts shall be payable as incurred. A
certificate from such Affected Person to the Seller certifying, in
reasonably specific detail, the basis for, calculation of, and amount of
such additional costs or reduced amount receivable shall be conclusive
and binding for all purposes, absent manifest error.
Section I.9. INABILITY TO DETERMINE EURODOLLAR RATE. In the event that
the Agent shall have determined prior to the first day of any Yield Period
(which determination shall be conclusive and binding upon the parties hereto) by
reason of circumstances affecting the interbank Eurodollar market, either (a)
dollar deposits in the relevant amounts and for the relevant Yield Period are
not available, (b) adequate and reasonable means do not exist for ascertaining
the Eurodollar Rate for such Yield Period or (c) the Eurodollar Rate determined
pursuant hereto does not accurately reflect the cost to the Purchaser (as
conclusively determined by the Agent) of maintaining any Portion of Investment
during such Yield Period, the Agent shall promptly give telephonic notice of
such determination, confirmed in writing, to the Seller prior to the first day
of such Yield Period. Upon delivery of such notice (a) no Portion of Investment
shall be funded thereafter at the Bank Rate determined by reference to the
Eurodollar Rate, unless and until the Agent shall have given notice to the
Seller that the circumstances
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giving rise to such determination no longer exist, and (b) with respect to any
outstanding Portions of Investment then funded at the Bank Rate determined by
reference to the Eurodollar Rate, such Bank Rate shall automatically be
converted to the Bank Rate determined by reference to the Base Rate at the
respective last days of the then-current Yield Periods relating to such Portions
of Investment.
Section I.10. LIMITATION; MITIGATION. Each Affected Person shall notify
Seller of any event that will entitle such Affected Person to compensation under
Section 1.7 and/or 1.8 as promptly as practicable, but in any event within 180
days after such Affected Person obtains actual knowledge thereof; provided,
however, that (i) if any Affected Person fails to give such notice within 180
days after it obtains actual knowledge of such an event, such Affected Person
shall, with respect to compensation payable pursuant to Section 1.7 and/or 1.8
in respect of any costs resulting from such event, only be entitled to payment
under Section 1.7 and/or 1.8 for amounts or losses incurred from and after the
date 180 days prior to the date that such Affected Person does give such notice
and (ii) each Affected Person will designate a different office for the purposes
of this Agreement if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole opinion of such Affected
Person, be disadvantageous to such Affected Person. Each Affected Person will
furnish to Seller at the time of request for compensation under Section 1.7
and/or 1.8, a certificate setting forth the basis amount and reasonable detail
of computation of each request by such Affected Person for compensation under
Section 1.7 and/or 1.8, which certificate shall, except for manifest error, be
final, conclusive, binding for all purposes.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section II.1. REPRESENTATIONS AND WARRANTIES; COVENANTS. The Seller
hereby makes the representations and warranties, and hereby agrees to perform
and observe the covenants, set forth in EXHIBITS III, IV and VII, respectively
hereto.
Section II.2. TERMINATION EVENTS. If any of the Termination Events set
forth in EXHIBIT V hereto shall occur and be continuing, the Agent may, by
notice to the Seller, declare the Facility Termination Date to have occurred (in
which case the Facility Termination Date shall be deemed to have occurred);
PROVIDED that, automatically upon the occurrence of any event (without any
requirement for the passage of time or the giving of notice) described in
SUBSECTIONS (g) of EXHIBIT V, the Facility Termination Date shall occur. Upon
any such declaration, occurrence or deemed occurrence of the Facility
Termination Date, the Purchaser and the Agent shall have, in addition to the
rights and remedies which they may have under this Agreement, all other rights
and remedies provided after default under the UCC and under other applicable
law, which rights and remedies shall be cumulative.
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ARTICLE III.
INDEMNIFICATION
Section III.1. (a) INDEMNITIES BY THE SELLER. Without limiting any other
rights that the Agent or the Purchaser or any of their respective Affiliates,
employees, agents, successors, transferees or assigns (each, an "INDEMNIFIED
PARTY") may have hereunder or under applicable law, the Seller hereby agrees to
indemnify each Indemnified Party from and against any and all claims, damages,
expenses, losses and liabilities (including Attorney Costs) (all of the
foregoing being collectively referred to as "INDEMNIFIED AMOUNTS") arising out
of or resulting from this Agreement or other Transaction Documents (whether
directly or indirectly) or the use of proceeds of purchases or reinvestments or
the ownership of the Participation, or any interest therein, or in respect of
any Receivable or any Contract, excluding, however, (a) Indemnified Amounts to
the extent resulting from negligence or willful misconduct on the part of such
Indemnified Party, (b) recourse for uncollectible Receivables to be written off
consistent with the Credit and Collection Policy or otherwise relating to the
creditworthiness of any Obligor, or (c) any net income taxes or franchise taxes
imposed on such Indemnified Party by the jurisdiction under the laws of which
such Indemnified Party is organized or is doing business (except solely as a
result of the transactions contemplated by this Agreement and the other
Transaction Documents) or any political subdivision thereof. Without limiting or
being limited by the foregoing, but subject to the exclusions set forth in the
preceding sentence, the Seller shall pay within five Business Days of demand to
each Indemnified Party any and all amounts necessary to indemnify such
Indemnified Party from and against any and all Indemnified Amounts relating to
or resulting from any of the following:
(i) the failure of any Receivable included in the calculation of
the Net Receivables Pool Balance as an Eligible Receivable to be an
Eligible Receivable, the failure of any information contained in a
Servicer Report to be true and correct, or the failure of any other
information provided to the Purchaser or the Agent with respect to
Receivables or this Agreement to be true and correct;
(ii) the failure of any representation or warranty or statement
made or deemed made by the Seller (or any of its officers) under or in
connection with this Agreement to have been true and correct in all
respects when made;
(iii) the failure by the Seller to comply with any applicable law,
rule or regulation with respect to any Pool Receivable or the related
Contract; or the failure of any Pool Receivable or the related Contract
to conform to any such applicable law, rule or regulation;
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(iv) the failure by the Seller or any Originator to vest in the
Purchaser a valid and enforceable (A) perfected undivided percentage
ownership interest, to the extent of the Participation, in the
Receivables in, or purporting to be in, the Receivables Pool and the
Related Security and Collections with respect thereto and (B) first
priority perfected security interest in the items described in SECTION
1.2(d), in each case, free and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any
Receivables in, or purporting to be in, the Receivables Pool and the
Related Security and Collections in respect thereof, whether at the time
of any purchase or reinvestment or at any subsequent time in accordance
with the terms hereof;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy or similar insolvency proceeding of the Obligor or other
financial inability to pay of the Obligor) of the Obligor to the payment
of any Receivable in, or purporting to be in, the Receivables Pool
(including, without limitation, a defense based on such Receivable or the
related Contract not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the goods or services related to
such Receivable or the furnishing or failure to furnish such goods or
services or relating to collection activities with respect to such
Receivable (if such collection activities were performed by the Seller or
any of its Affiliates acting as Servicer or by any agent or independent
contractor retained by the Seller or any of its Affiliates);
(vii) any failure of the Seller to perform its duties or
obligations in accordance with the provisions hereof or to perform its
duties or obligations under the Contracts;
(viii) any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services which are the subject of any Contract;
(ix) the commingling of Collections of Pool Receivables at any
time with other funds;
(x) any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of purchases or reinvestments or the
ownership of the Participation or in respect of any Receivable, Related
Security or Contract;
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(xi) any reduction in Investment as a result of the distribution
of Collections pursuant to SECTION 1.4, in the event that all or a
portion of such distributions shall thereafter be rescinded or otherwise
must be returned for any reason; or
(xii) any tax or governmental fee or charge (other than any tax
upon or measured by net income or gross receipts or franchise tax), all
interest and penalties thereon or with respect thereto, and all
reasonable out-of-pocket costs and expenses, including the reasonable
fees and expenses of counsel in defending against the same, which are
required to be paid by reason of the purchase or ownership of the
Participation, or other interests in the Receivables Pool or in any
Related Security or Contract.
(b) INDEMNITY BY THE SERVICER. Without limiting any other rights which
any such person may have hereunder under applicable law, Servicer hereby agrees
to indemnify each Indemnified Party, forthwith within five Business Days of
demand, from and against any and all Indemnified Amounts awarded against or
incurred by any of them arising out of or relating to:
(i) any representation or warranty made by Servicer under or in
connection with any Transaction Document or any information or report
delivered by or on behalf of Servicer pursuant hereto, which shall have
been false, incorrect or misleading in any material respect when made or
deemed made (except any such amounts to the extent representing recourse
due to the insolvency or other financial inability to pay of any
Obligor);
(ii) the failure by Servicer to comply with any applicable law,
rule or regulation (including truth in lending, fair credit billing,
usury, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) with respect to any Pool Receivable or
other related Contract;
(iii) any failure of Servicer to perform its duties, covenants and
obligations in accordance with the applicable provisions of this
Agreement; or
(iv) any dispute, claim, offset or defense (other than a discharge
in bankruptcy of the related Obligor) of an Obligor to the payment of any
Receivable in or purporting to be in the Receivables Pool resulting
solely from collection or other servicing activities of the Servicer with
respect to such Receivable.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section IV.1. APPOINTMENT OF SERVICER. (a) The servicing, administering
and collection of the Pool Receivables shall be conducted by the Person so
designated from time to time as
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Servicer in accordance with this SECTION 4.1. Until the Agent gives notice to
the Seller and the Servicer (in accordance with this SECTION 4.1) of the
designation of a new Servicer, Atrium is hereby designated as, and hereby agrees
to perform the duties and obligations of, the Servicer pursuant to the terms
hereof. Upon the occurrence and during the continuance of a Termination Event,
the Agent may designate as Servicer any Person (including itself) to succeed the
Servicer or any successor Servicer, on the condition in each case that any such
Person so designated shall agree to perform the duties and obligations of the
Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Servicer as set forth in SECTION
4.1(a) hereof, the Servicer agrees that it will terminate its activities as
Servicer hereunder in a manner which the Agent determines will facilitate the
transition of the performance of such activities to the new Servicer, and the
Servicer shall cooperate with and assist such new Servicer. Such cooperation
shall include (without limitation) access to and transfer of records and use by
the new Servicer of all licenses or software necessary or desirable to collect
the Pool Receivables and the Related Security.
(c) The Servicer acknowledges that, in making their decision to execute
and deliver this Agreement, the Agent and the Purchaser have relied on the
Servicer's agreement to act as Servicer hereunder. Accordingly, the Servicer
agrees that it will not voluntarily resign as Servicer.
(d) The Servicer may delegate its duties and obligations hereunder to any
subservicer (each, a "SUB-SERVICER"); PROVIDED that, in each such delegation (i)
such Sub-Servicer shall agree in a separate letter agreement, to perform the
duties and obligations of the Servicer pursuant to the terms hereof, (ii) the
Servicer shall remain primarily liable to the Purchaser and the Agent for the
performance of the duties and obligations so delegated, (iii) the Seller, the
Agent and the Purchaser shall have the right to look solely to the Servicer for
performance and (iv) the terms of any agreement with any Sub-Servicer shall
provide that the Agent may terminate such agreement upon the termination of the
Servicer hereunder by giving notice of its desire to terminate such agreement to
the Servicer (and the Servicer shall provide appropriate notice to such
Sub-Servicer).
Section IV.2. DUTIES OF SERVICER. (a) The Servicer shall take or cause to
be taken all such action as may be necessary or advisable to collect each Pool
Receivable from time to time, all in accordance with this Agreement and all
applicable laws, rules and regulations, with reasonable care and diligence, and
in accordance with the Credit and Collection Policy. The Servicer shall set
aside for the accounts of the Seller and the Purchaser the amount of the
Collections to which each is entitled in accordance with ARTICLE I hereto. The
Servicer may, in accordance with the Credit and Collection Policy, extend the
maturity of any Pool Receivable (but not beyond thirty (30) days) and extend the
maturity or adjust the Outstanding Balance of any Defaulted Receivable as the
Servicer may determine to be appropriate to maximize Collections thereof;
PROVIDED, HOWEVER, that (i) such extension or adjustment shall not alter the
status of such Pool
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Receivable as a Delinquent Receivable or a Defaulted Receivable or limit the
rights of the Purchaser or the Agent under this Agreement and (ii) if a
Termination Event has occurred and is continuing and Atrium or any of its
Affiliates is still serving as Servicer, the Servicer may make such extension or
adjustment only upon the prior written approval of the Agent. The Seller shall
deliver to the Servicer and the Servicer shall hold for the benefit of the
Seller and the Agent (for the benefit of the Purchaser and individually) in
accordance with their respective interests, all records and documents (including
without limitation computer tapes or disks) with respect to each Pool
Receivable. Notwithstanding anything to the contrary contained herein, the Agent
may direct the Servicer to commence or settle any legal action to enforce
collection of any Pool Receivable or to foreclose upon or repossess any Related
Security; PROVIDED, HOWEVER, that no such direction may be given unless either:
(A) a Termination Event has occurred and is continuing or (B) the Agent believes
in good faith that the failure to commence, settle or effect such legal action,
foreclosure or repossession could adversely affect the collectibility of the
Pool Receivables.
(b) The Servicer's obligations hereunder shall terminate on the Final
Payout Date. After such termination the Servicer shall promptly deliver to the
Seller all books, records and related materials that the Seller previously
provided to the Servicer in connection with this Agreement.
Section IV.3. ESTABLISHMENT AND USE OF CERTAIN ACCOUNTS.
(a) LOCK-BOX ACCOUNTS. Prior to the initial purchase hereunder, the
Seller shall enter into Lock-Box Agreements establishing the Lock-Box Accounts
listed on SCHEDULE II with all of the Lock-Box Banks, and deliver original
counterparts thereof to the Agent. Each of the Seller and the Servicer hereby
agrees, prior to the Closing Date, to provide direction to each Lock-Box Bank to
cause all Collections (except DE MINIMUS amounts, not to exceed (Five-Thousand
Dollars) $5,000 at any time, with respect to each Lock-Box Account and solely to
cover returned items relating to such Lock-Box Account) received in the
applicable Lock-Box Accounts to be automatically (and without further action,
notice to or consent of the Seller or Servicer) wire transferred to the
Collection Account within one Business Day following the receipt thereof into
such Lock-Box Account. The Agent (for the benefit of the Purchaser) shall have
sole dominion and control over each Lock-Box Account together with the ability
at any time following the occurrence and during the continuance of a Termination
Event and, subject to Section 4.3(d), to exercise all rights with respect
thereto, including without limitation, the exclusive right to receive all
Collections deposited therein. Following the Closing Date, neither the Seller
nor the Servicer shall have any ability to control or direct the application of
any Collections deposited in the Lock-Box Accounts; provided that unless a
Termination Event or an Unmatured Termination Event has occurred and is
continuing, all such Collections shall continue to be automatically transferred
to the Collection Account as described in this SECTION 4.3(a).
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(b) COLLECTION ACCOUNT. The Servicer agrees to establish the Collection
Account on or before the date of the first purchase hereunder. The Collection
Account shall be used to accept the transfer of Collections of Pool Receivables
from the Lock-Box Accounts pursuant to SECTION 1.4 and for such other purposes
described in the Transaction Documents.
(c) PERMITTED INVESTMENTS. Prior to the occurrence and continuation of
any Termination Event, any amounts in the Collection Account may be invested by
the Collection Account Bank at Servicer's direction, in Permitted Investments,
so long as (i) either (A) such Permitted Investments are credited to a
"securities account" (as defined in the applicable UCC) over which the Purchaser
shall have a first priority perfected security interest, (B) such Permitted
Investments are purchased in the name of the Purchaser or (C) such Permitted
Investments are held in another manner sufficient to establish the Purchaser's
first priority perfected security interest over such Permitted Investments and
(ii) such Permitted Investments are scheduled to mature prior to the last day of
the Yield Period during which such investment is made.
(d) CONTROL OF ACCOUNTS. The Agent may at any time following the
occurrence and during the continuance of a Termination Event or Unmatured
Termination Event give notice to each Lock-Box Bank and the Collection Account
Bank that the Agent is exercising its rights under the Lock-Box Agreements and
the Collection Account Agreement to do any or all of the following: (i) to have
the exclusive ownership and control of the Lock-Box Accounts and/or the
Collection Account, as the case may be, transferred to the Agent, to the extent
provided in the related Lock-Box Agreement and/or the Collection Account
Agreement, as applicable, (ii) to have the proceeds that are sent to the
respective Lock-Box Accounts and/or the Collection Account, as the case may be,
be redirected pursuant to its instructions rather than deposited in the
applicable Lock-Box Account and/or the Collection Account, as the case may be,
and (iii) to take any or all other actions permitted under the applicable
Lock-Box Agreement and the Collection Account Agreement. The Seller hereby
agrees that if the Agent at any time takes any action set forth in the preceding
sentence, the Agent shall have exclusive control of the proceeds (including
Collections) of all Pool Receivables and the Seller hereby further agrees to
take any other action that the Agent may reasonably request to transfer such
control. Any proceeds of Pool Receivables received by the Seller or the
Servicer, thereafter shall be sent immediately to the Agent. The parties hereto
hereby acknowledge that if at any time the Agent takes control of any Lock-Box
Account and/or the Collection Account, the Agent shall not have any rights to
the funds therein in excess of the unpaid amounts due to the Agent, the
Purchaser or any other Person hereunder and any such funds shall be distributed
by the Agent in accordance with the provisions set forth in SECTION 1.4.
Section IV.4. ENFORCEMENT RIGHTS. (a) At any time following the
occurrence and during the continuance of a Termination Event:
(i) the Agent may direct the Obligors that payment of all amounts
payable under any Pool Receivable be made directly to the Agent or its
designee;
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(ii) the Agent may instruct the Seller or the Servicer to give
notice of the Purchaser's interest in Pool Receivables to each Obligor,
which notice shall direct that payments be made directly to the Agent or
its designee, and upon such instruction from the Agent the Seller or the
Servicer, as applicable, shall give such notice at the expense of the
Seller; PROVIDED, that if the Seller or the Servicer fails to so notify
each Obligor, the Agent may so notify the Obligors; and
(iii) the Agent may request the Seller or the Servicer to, and
upon such request the Seller or the Servicer, as applicable, shall (A)
assemble all of the records necessary or desirable to collect the Pool
Receivables and the Related Security, and transfer or license to any new
Servicer the use of all software necessary or desirable to collect the
Pool Receivables and the Related Security, and make the same available to
the Agent or its designee at a place selected by the Agent, and (B)
segregate all cash, checks and other instruments received by it from time
to time constituting Collections with respect to the Pool Receivables in
a manner acceptable to the Agent and, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(b) The Seller hereby authorizes the Agent, and irrevocably appoints the
Agent as its attorney-in-fact with full power of substitution and with full
authority in the place and stead of the Seller, which appointment is coupled
with an interest, during the occurrence and continuance of a Termination Event
or Unmatured Termination Event, to take any and all steps in the name of the
Seller and on behalf of the Seller necessary or desirable, in the determination
of the Agent, to collect any and all amounts or portions thereof due under any
and all Pool Receivables or Related Security, including, without limitation,
endorsing the name of the Seller on checks and other instruments representing
Collections and enforcing such Pool Receivables, Related Security and the
related Contracts. Notwithstanding anything to the contrary contained in this
SUBSECTION (b), none of the powers conferred upon such attorney-in-fact pursuant
to the immediately preceding sentence shall subject such attorney-in-fact to any
liability if any action taken by it shall prove to be inadequate or invalid, nor
shall they confer any obligations upon such attorney-in-fact in any manner
whatsoever, except to the extent arising out of the negligence or willful
misconduct of such attorney-in-fact.
Section IV.5. RESPONSIBILITIES OF THE SELLER. Anything herein to the
contrary notwithstanding, the Seller shall (i) perform all of its obligations,
if any, under the Contracts related to the Pool Receivables to the same extent
as if interests in such Pool Receivables had not been transferred hereunder, and
the exercise by the Agent or the Purchaser of its rights hereunder shall not
relieve the Seller from such obligations and (ii) pay when due any taxes,
including, without limitation, any sales taxes payable in connection with the
Pool Receivables and their creation and satisfaction. The Agent and the
Purchaser shall not have any obligation or liability
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with respect to any Pool Receivable, any Related Security or any related
Contract, nor shall any of them be obligated to perform any of the obligations
of the Seller under any of the foregoing.
Section IV.6. SERVICING FEE. The Servicer shall be paid a fee, through
distributions contemplated by SECTION 1.4(d), equal to 0.50% PER ANNUM of the
average Outstanding Principal Balance of all Pool Receivables.
ARTICLE V.
MISCELLANEOUS
Section V.1. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or consent to any departure by the Seller or Servicer therefrom
shall be effective unless in a writing signed by the Agent, and, in the case of
any amendment, by the Seller and the Servicer and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that no such material amendment
shall be effective until the Rating Agencies have notified the Agent in writing
that such action will not result in a reduction or withdrawal of the rating of
any Notes. No failure on the part of the Purchaser or Agent to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right.
Section V.2. NOTICES, ETC.; EXTENSION OF STATED TERMINATION DATE. (a) All
notices and other communications hereunder shall, unless otherwise stated
herein, be in writing (which shall include facsimile communication) and sent or
delivered, to each party hereto, at its address set forth under its name on the
signature pages hereof or at such other address as shall be designated by such
party in a written notice to the other parties hereto. Notices and
communications by facsimile shall be effective when sent (and shall be followed
by hard copy sent by first class mail), and notices and communications sent by
other means shall be effective when received.
(b) The Seller may advise the Agent in writing of its desire to extend
the Stated Termination Date for an additional 364 days, provided such request is
made not more than 90 days prior to, and not less than 60 days prior to, the
then current Stated Termination Date. The Agent shall notify the Seller in
writing, within 45 days after its receipt of such request by the Seller, whether
the Liquidity Banks or any of them are agreeable to such extension (it being
understood that the Liquidity Banks may accept or decline such a request in
their sole discretion and on such terms as they may elect) and, to the extent
the Liquidity Banks are agreeable, the Seller, the Agent and the Liquidity Banks
shall enter into such documents as the Liquidity Banks may deem necessary or
appropriate to reflect such extension, and all reasonable costs and expenses
incurred by the Liquidity Banks, the Purchaser and the Agent in connection
therewith (including reasonable attorneys' costs) shall be paid by the Seller;
it being understood, that the
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failure of the Agent to so notify the Seller as set forth above shall not be
deemed to be a consent to such request for extension.
Section V.3. ASSIGNABILITY. (a) This Agreement and the Purchaser's rights
and obligations herein (including ownership of the Participation) shall be
assignable, in whole or in part, by the Purchaser and its successors and assigns
with the prior written consent of the Seller; PROVIDED, HOWEVER, that such
consent shall not be unreasonably withheld; and PROVIDED, FURTHER, that no such
consent shall be required if the assignment is made to any Affiliate of the
Purchaser, any Liquidity Bank or other Program Support Provider or any Person
which is (i) in the business of issuing Notes and (ii) associated with or
administered by the Agent or any Affiliate of the Agent (each such Person, a
"NOTE ISSUER"). Subject to SECTION 5.6, each assignor may, in connection with
the assignment, disclose to the applicable assignee any information relating to
the Seller or the Pool Receivables furnished to such assignor by or on behalf of
the Seller, the Purchaser or the Agent.
Upon the assignment of such rights and obligations by the Purchaser in
accordance with this SECTION 5.3, the assignee receiving such assignment shall
have all of the rights of the Purchaser with respect to the Transaction
Documents and the Investment (or such portion thereof as has been assigned).
(b The Purchaser may at any time sell or grant to one or more banks or
other institutions (each a "LIQUIDITY BANK") party to the Liquidity Agreement or
to any other Program Support Provider, participating interests or security
interests in the Participation. In the event of any such sale or grant by the
Purchaser of a participating interest to a Liquidity Bank or other Program
Support Provider, the Purchaser shall remain responsible for the performance of
its obligations hereunder. The Seller agrees that each Liquidity Bank or other
Program Support Provider shall be entitled to the benefits of SECTIONS 1.7, 1.8
and 1.9. No bank or other financial institution (other than Bank of Montreal and
those institutions for which the Agent shall have given you notice on or prior
to the Closing Date that are existing as such on the date hereof) shall become a
party to the Liquidity Agreement as a Liquidity Bank without the prior written
consent of the Seller, which consent shall not be unreasonably withheld.
(c This Agreement and the rights and obligations of the Agent hereunder
shall be assignable, in whole or in part, by the Agent and its successors and
assigns, with (unless such assignment is to an Affiliate of the Agent) the prior
written consent of Seller which consent shall not be unreasonably withheld.
(d Except as provided in SECTION 4.1(d), neither the Seller nor the
Servicer may assign its rights or delegate its obligations hereunder or any
interest herein without the prior written consent of the Agent.
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(e Without limiting any other rights that may be available under
applicable law, the rights of the Purchaser may be enforced through it or by its
agents.
Section V.4. COSTS, EXPENSES AND TAXES. (a) In addition to the rights of
indemnification granted under SECTION 3.1 hereof, the Seller agrees to pay,
within 3 Business Days of demand, all reasonable costs and expenses in
connection with the preparation, execution, delivery and administration
(including periodic auditing of Receivables and the servicing thereof, and any
reasonable and customary fees from time to time payable to the Rating Agencies
in connection with the transactions contemplated by this Agreement) of this
Agreement, the Liquidity Agreement, and the other documents and agreements to be
delivered hereunder, including all reasonable costs and expenses relating to the
amending, amending and restating, modifying or supplementing of this Agreement,
the Liquidity Agreement and the other documents and agreements to be delivered
hereunder and the waiving of any provisions thereof, and including in all cases,
without limitation, Attorney Costs for the Agent, the Purchaser and their
respective Affiliates and agents with respect thereto and with respect to
advising the Agent, the Purchaser and their respective Affiliates and agents as
to their rights and remedies under this Agreement and the other Transaction
Documents, and all reasonable costs and expenses, if any (including Attorney
Costs), of the Agent, the Purchaser and their respective Affiliates and agents,
in connection with the enforcement of this Agreement and the other Transaction
Documents.
(b In addition, the Seller shall pay on demand any and all stamp and
other taxes and fees payable in connection with the execution, delivery, filing
and recording of this Agreement or the other documents or agreements to be
delivered hereunder, and agrees to save each Indemnified Party harmless from and
against any liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
Section V.5. NO PROCEEDINGS; LIMITATION ON PAYMENTS. (a) Each of the
Seller, the Servicer, the Agent, each assignee of the Participation or any
interest therein, and each Person which enters into a commitment to purchase the
Participation or interests therein, hereby covenants and agrees that it will not
institute against, or join any other Person in instituting against, the
Purchaser or any other Note Issuer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and one day after the latest
maturing Note issued by the Purchaser or any such Note Issuer is paid in full.
(b Notwithstanding any provisions contained in this Agreement to the
contrary, the Purchaser shall not, and shall not be obligated to, pay any
amount, if any, payable by it pursuant to this Agreement or any other
Transaction Document unless (i) the Purchaser has received funds which may be
used to make such payment and which funds are not required to repay the Notes
when due and (ii) after giving effect to such payment, either (x) the Purchaser
could issue Notes to refinance all outstanding Notes (assuming such outstanding
Notes matured at such time) in accordance with the program documents governing
the Purchaser's securitization program or (y)
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all Notes are paid in full. Any amount which the Purchaser does not pay pursuant
to the operation of the preceding sentence shall not constitute a claim (as
defined in ss.101 of the Bankruptcy Code) against or corporate obligation of the
Purchaser for any such insufficiency unless and until the Purchaser satisfies
the provisions of CLAUSES (i) and (ii) above.
Section V.6. CONFIDENTIALITY. Unless otherwise required by applicable law
(including the disclosure requirement of applicable securities laws), each of
the Seller and Servicer agrees to maintain the confidentiality of this Agreement
and the other Transaction Documents (and all drafts thereof) in communications
with third parties and otherwise; PROVIDED that this Agreement may be disclosed
to (a) third parties to the extent such disclosure is made pursuant to a written
agreement of confidentiality in form and substance reasonably satisfactory to
the Agent and (b) the Seller's and/or the Servicer's legal counsel and auditors
if they agree to hold it confidential; PROVIDED that only the terms and
conditions of this agreement may be revealed to such parties and not the details
of any fees, pricing or interest rates. Unless otherwise required by applicable
law, each of the Agent and the Purchaser agrees to maintain the confidentiality
of non-public financial information regarding Atrium and its Subsidiaries and
other information marked as confidential by the Servicer or the Seller;
PROVIDED, that such information may be disclosed to: (i) third parties to the
extent such disclosure is made pursuant to a written agreement of
confidentiality in form and substance reasonably satisfactory to Atrium, (ii)
legal counsel and auditors of the Purchaser or the Agent if they agree to hold
it confidential, (iii) the rating agencies rating the Notes to the extent such
information relates to the Receivables Pool or the transactions contemplated by
this Agreement, or if not so related, upon obtaining the prior consent of Atrium
(such consent not to be unreasonably withheld), (iv) any Program Support
Provider or potential Program Support Provider (if they agree to hold it
confidential) to the extent such information relates to the Receivables Pool or
the transactions contemplated by this Agreement, or if not so related, upon
obtaining the prior consent of Atrium, (v) any placement agent placing the Notes
and (vi) any regulatory authorities having jurisdiction over the Agent, Bank of
Montreal, the Purchaser, any Program Support Provider or any Liquidity Bank.
Section V.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF), EXCEPT TO
THE EXTENT THAT THE PERFECTION (OR THE EFFECT OF PERFECTION OR NON-PERFECTION)
OF THE INTERESTS OF THE PURCHASER IN THE POOL RECEIVABLES AND THE OTHER ITEMS
DESCRIBED IN SECTION 1.2(d) IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK.
(b ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
EACH OF THE PURCHASER,
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THE SELLER, THE SERVICER AND THE AGENT CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
PURCHASER, THE SELLER, THE SERVICER AND THE AGENT IRREVOCABLY WAIVES, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
PURCHASER, THE SELLER, THE SERVICER AND THE AGENT EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
Section V.8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
Section V.9. SURVIVAL OF TERMINATION. The provisions of SECTIONS 1.7,
1.8, 1.9, 3.1, 5.4, 5.5, 5.6, 5.7 and 5.10 shall survive any termination of this
Agreement.
Section V.10. WAIVER OF JURY TRIAL. THE PURCHASER, THE SELLER, THE
SERVICER AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE PURCHASER, THE SELLER, THE SERVICER AND THE AGENT EACH AGREE THAT
ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES
THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section V.11. ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents embodies the entire agreement and understanding between the Purchaser,
the Seller, the Servicer and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
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Section V.12. HEADINGS. The captions and headings of this Agreement and
in any Exhibit hereto are for convenience of reference only and shall not affect
the interpretation hereof or thereof.
Section V.13. PURCHASER'S LIABILITIES. The obligations of the Purchaser
under this Agreement are solely the corporate obligations of the Purchaser. No
recourse shall be had for any obligation or claim arising out of or based upon
this Agreement against any stockholder, employee, officer, director or
incorporator of the Purchaser; and PROVIDED, HOWEVER, that this SECTION 5.13
shall not relieve any such Person of any liability it might otherwise have for
its own gross negligence or willful misconduct. The agreements provided in this
SECTION 5.13 shall survive termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
ATRIUM FUNDING CORP.,
as Seller
By:
---------------------------------
Name:
Title:
Attention:
Telephone:
Facsimile:
ATRIUM COMPANIES, INC.,
as Servicer
By:
---------------------------------
Name:
Title:
Attention:
Telephone:
Facsimile:
RECEIVABLES PURCHASE AGREEMENT
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SIGNATURE PAGE 1
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BMO NESBITT BURNS CORP.,
as Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
115 S. LaSalle
Chicago, Illinois 60603
Attention: Scott Franklin
Telephone: (312) 461-2929
Facsimile: (312) 293-4908
FAIRWAY FINANCE CORPORATION,
as Purchaser
By:
--------------------------------
Name:
Title:
c/o Lord Securities Corporation
Two Wall Street
New York, New York 10005
Attention: Dwight Jenkins
Telephone: (212) 346-9007
Facsimile: (212) 346-9012
RECEIVABLES PURCHASE AGREEMENT
S-2
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SIGNATURE PAGE 2
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EXHIBIT I
DEFINITIONS
As used in the Agreement (including its Exhibits), the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined). Unless otherwise
indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit
are to Sections of and Annexes, Exhibits and Schedules to the Agreement.
"ACQUISITION" means, for the purposes of the Financial Covenants
listed in CLAUSE (s) of EXHIBIT IV only, with respect to any Person, any
transaction or series of related transactions for the direct or indirect (a)
acquisition of all or substantially all of the Property of any other Person, or
of any business or division of any other Person, (b) acquisition of in excess of
50% of the Equity Interests of any other Person, or otherwise causing any other
Person to become a Subsidiary of such Person, or (c) merger or consolidation or
any other combination with any other Person.
"ADJUSTED NET INCOME" means, for the purposes of the Financial
Covenants listed in CLAUSE (s) of EXHIBIT IV only, for any period, the
consolidated net income (loss) for such period, of Atrium and its consolidated
Subsidiaries calculated on a consolidated basis in accordance with GAAP,
adjusted by excluding (to the extent taken into account in the calculation of
such consolidated net income (loss)) the effect of (a) gains or losses for such
period from Dispositions not in the ordinary course of business and Excluded
Dispositions not in the ordinary course of business, and the tax consequences
thereof, (b) any non-recurring or extraordinary items of income or expense for
such period and the tax consequences thereof including expenses in connection
with transactions occurring on the Closing Date, (c) the portion of net income
(loss) of any Person (other than a Subsidiary) in which Atrium or any Subsidiary
has an ownership interest, except to the extent of the amount of cash dividends
or other cash distributions actually paid to Atrium or (subject to clause (e)
below) any Subsidiary during such period to the extent not in excess of Atrium's
or such Subsidiary's proportionate interest in such Person's consolidated net
income for such period, (d) the net income (loss) of any Person combined with
Atrium or any Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination, and (e) the net income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distribution by such Subsidiary was not for the relevant period permitted
(without giving effect to any non-permanent waiver), directly or indirectly, by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Subsidiary or its stockholders.
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"ADJUSTED TOTAL RESERVE PERCENTAGE" means the Total Reserve
Percentage DIVIDED BY one minus the Total Reserve Percentage.
"ADVERSE CLAIM" means a lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement, it being understood
that a lien, security interest or other charge or encumbrance, or any other type
of preferential arrangement, in favor of or granted to the Seller or the
Purchaser pursuant to this Agreement and the other Transaction Documents shall
not constitute an Adverse Claim and excluding (i) liens for taxes, assessments
or other governmental charges which are not yet due and payable, and (ii) liens
granted to any Lock-Box Bank and/or the Collection Account Bank in the
Collections held by such bank in the related Lock-Box Account and/or Collection
Account, as the case may be, and solely for and relating to the payment of fees
and other charges to such bank and the ability of such bank to recover for
returned items, in each case, to the extent described and provided for in the
agreement, if any, relating to such account and/or the applicable Lock-Box
Agreement and/or Collection Account Agreement.
"AFFECTED PERSON" has the meaning set forth in SECTION 1.7.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person.
"AGENT" shall (i) for the purposes of this Agreement, have the
meaning set forth in the preamble to the Agreement, and (ii) solely with respect
to the terms in this EXHIBIT I used to define (directly or indirectly) certain
terms used in the financial covenants listed in paragraph(s) of EXHIBIT IV to
the Agreement, mean the agent under the Credit Agreement.
"AMENDED AND RESTATED CREDIT DOCUMENTS" means the Credit
Agreement, the "Notes" (as defined in the Credit Agreement) issued under the
Credit Agreement on or after October 25, 2000, any Letter of Credit Documents
executed and delivered on or after October 25, 2000 and any Security Documents
executed and delivered on or after October 25, 2000.
"AMENDED AND RESTATED TRANSACTIONS" means the Ellison Acquisition,
the Mezzanine Financing, the Wing Asset Sale, the Atrium Wood Asset Sale and the
borrowings under the Credit Agreement and the other transactions contemplated by
the Credit Agreement that occurred on October 25, 2000.
"APPLICABLE MARGIN" means 1.25% PER ANNUM.
"ATRIUM" has the meaning set forth in the preamble to the
Agreement.
"ATRIUM WOOD ASSET SALE" means the disposition by Atrium (d/b/a
Atrium Wood Patio Doors) of certain assets related to Atrium's wood patio door
business pursuant to an asset purchase agreement dated August 30, 2000 by and
between Atrium and Woodgrain Millwork, Inc., an Oregon corporation.
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"ATTORNEY COSTS" means and includes all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel, to be paid as set forth in
the Fee Letter.
"BANK OF MONTREAL" means Bank of Montreal, a Canadian chartered
bank.
"BANK RATE" for any Yield Period for any Portion of Investment of
the Participation means an interest rate PER ANNUM equal to (i) the Applicable
Margin plus the Eurodollar Rate for such Yield Period or (ii) the Base Rate for
such Yield Period, in either case as determined in the sole discretion of the
Agent; PROVIDED that the "BANK RATE" for each day in a Yield Period occurring
during the continuance of a Termination Event shall be an interest rate equal to
2% PER ANNUM above the Base Rate in effect on such day.
"BANKRUPTCY CODE" means the United States Bankruptcy Reform Act of
1978 (11 U.S.C.Section. 101, ET SEQ.), as amended from time to time.
"BASE RATE" means for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at all times
equal to the greater of (i) the rate of interest most recently announced by Bank
of Montreal at its branch in Chicago, Illinois as its prime commercial rate for
United States loans made in the United States and (ii) the latest Federal Funds
Rate plus 0.50% PER ANNUM.
"BUSINESS DAY" means any day on which (i) both (A) the Agent at
its branch office in Chicago, Illinois is open for business and (B) commercial
banks in New York City are not authorized or required to be closed for business,
and (ii) if this definition of "Business Day" is utilized in connection with the
Eurodollar Rate, dealings are carried out in the London interbank market.
"CAPITAL EXPENDITURES" means, for the purposes of the Financial
Covenants listed in CLAUSE (s) of EXHIBIT IV only, for any period, any direct or
indirect expenditures of Atrium and the Subsidiaries which should be capitalized
on the consolidated balance sheet of Atrium and the Subsidiaries in accordance
with GAAP in respect of the purchase or other acquisition of fixed or capital
assets (including, without limitation, securities), excluding (i) normal
replacement and maintenance programs properly charged to current operations,
(ii) any expenditure made with the Net Available Proceeds of any Disposition to
the extent such Net Available Proceeds are not required to be applied to the
prepayment of the Loans in accordance with SECTION 2.10(a)(iv) of the Credit
Agreement, (iii) any expenditure made with the proceeds of any Excluded
Disposition, (iv) expenditures in an amount not to exceed the sum of (x) the Net
Available Proceeds of any Casualty Event to the extent such Net Available
Proceeds are not required to be applied to the prepayment of the Loans in
accordance with SECTION 2.10(a)(i) of the Credit Agreement and (y) the amount of
any applicable insurance deductibles with respect to such Casualty Event to the
extent such amount is applied as set forth in clause (x) of SECTION 2.10(a)(i)
of the Credit
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Agreement within the period specified therein, (v) expenditures to effect
Permitted Acquisitions, (vi) the purchase price of equipment to the extent that
the consideration therefor consists of used or surplus equipment being traded in
at such time or the proceeds of a concurrent sale of such used or surplus
equipment, in each case in the ordinary course of business, (vii) the payment of
the purchase price of the Greenville Acquisition and the Greenville Expenditure,
(viii) the payment of the purchase price of the Mt. Pleasant Acquisition/Wing II
Acquisition, (ix) any deposits required to be made in connection with the
purchase or other acquisition of fixed or capital assets; PROVIDED, HOWEVER,
that such a deposit shall no longer be excluded from Capital Expenditures if
used to purchase or acquire fixed or capital assets, (x) expenditures in an
amount not to exceed $3.0 million in the aggregate since October 25, 2000 so
long as Atrium has a bona fide side plan to expand capacities and capture
synergies with such expenditures and (xi) option exercise costs to acquire
Property and the costs of improvements to such Property so long as such Property
is sold within the same fiscal year.
"CAPITAL LEASE," as applied to any Person, means any lease of any
Property by that Person as lessee which, in conformity with GAAP, is required to
be classified and accounted for as a capital lease on the balance sheet of that
Person.
"CAPITAL LEASE OBLIGATIONS" means, for any Person, all obligations
of such Person to pay rent or other amounts under a Capital Lease, and the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP.
"CASUALTY EVENT" means, with respect to any Property (including
Real Property) of any Person, any loss of title with respect to Real Property or
any loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, such Property (including Real
Property) for which such Person or any of its Subsidiaries receives insurance
proceeds or proceeds of a condemnation award or other compensation; PROVIDED,
HOWEVER, no such event shall constitute a Casualty Event if (x) such proceeds or
other compensation in respect thereof is less than $1.0 million and (y) all such
proceeds and other compensation in respect of all such events since the Original
Closing Date are less than $5.0 million. "Casualty Event" shall include but not
be limited to any taking of any Mortgaged Real Property or Real Property of any
Company or any part thereof, in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason of the
requisition (other than for temporary purposes) of the use or occupancy of any
Mortgaged Real Property or Real Property of any Company or any part thereof, by
any Governmental Authority, civil or military.
"CHANGE IN CONTROL" means the occurrence of any of the following
circumstances:
(a) prior to the consummation of an Initial Public Offering, the
Permitted Holders fail to collectively beneficially own, directly or indirectly,
capital stock of Atrium representing at least of majority (on a fully diluted
basis) of the aggregate voting power of the
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capital stock of Atrium at the time outstanding or fail to have the ability to
appoint at least a majority of the board of directors of Atrium; or
(b) after the consummation of an Initial Public Offering, (i) any
Person or any group (other than Permitted Holders) shall (A) (directly or
indirectly) beneficially own in the aggregate capital stock of Atrium
representing 35% or more (on a fully diluted basis) of the aggregate voting
power of the capital stock of Atrium at the time outstanding; or (B) have the
right or power to appoint, directly or indirectly, a majority or more of the
board of directors of Atrium or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of Atrium (together with any new directors whose election by the
shareholders of Atrium was approved by a vote of at least a majority of the
directors of Atrium then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
board of directors of Atrium then in office; or
(c) Atrium ceases to own, directly or indirectly, free and clear
of all liens or other encumbrances, at least 100% of the outstanding capital
stock of the Seller.
For the purposes of this definition, (a) the terms "BENEFICIALLY OWN" and
"GROUP" shall have the respective meanings ascribed to them pursuant to Section
13(d) of the United States Securities Exchange Act of 1934, except that a Person
or group shall be deemed to "beneficially own" all securities that such Person
or group has the right to acquire whether such right is exercisable immediately
or only after the passage of time, (b) any Person or group shall be deemed to
beneficially own any capital stock beneficially owned by another Person (the
"PARENT ENTITY") so long as such Person or group beneficially owns, directly or
indirectly, at least a majority of the voting power of the then outstanding
capital stock of the parent entity and no other Person or group has the right to
designate or appoint a majority or more of the directors of such parent entity,
(c) "PERMITTED HOLDERS" means Ardshiel, Inc. and GE Investment Private Placement
Partners Inc, Limited Partnership and any affiliates thereof, and (d) "INITIAL
PUBLIC OFFERING" means a primary underwritten public offering of the common
stock of D and W Holding Inc. or any other direct or indirect holding company
thereof, other than any public offering or sale pursuant to a registration
statement on Form S-8 or a comparable form.
"CLOSING DATE" means July 31,2001.
"COLLECTION ACCOUNT" means that certain bank account numbered
1596260008 maintained at Bank One, Dallas, Texas which is (i) identified as the
"ATRIUM FUNDING CORPORATION COLLECTION ACCOUNT," (ii) pledged, on a
first-priority basis, to the Purchaser pursuant to SECTION 1.2(d), and (iii) is
governed by the Collection Account Agreement.
"COLLECTION ACCOUNT AGREEMENT" means a letter agreement, in form
and substance reasonably satisfactory to the Agent, among the Seller, the Agent
and the Collection Account
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Bank, as the same may be amended, supplemented, amended and restated, or
otherwise modified from time to time in accordance with the Agreement and with
the consent of the Agent.
"COLLECTION ACCOUNT BANK" means the bank holding the Collection
Account.
"COLLECTIONS" means, with respect to any Pool Receivable, (a) all
funds which are received by the Seller, Servicer or any Originator in payment of
any amounts owed in respect of such Receivable (including, without limitation,
purchase price, finance charges, interest and all other charges), or applied to
amounts owed in respect of such Receivable (including, without limitation,
insurance payments and net proceeds of the sale or other disposition of
repossessed goods or other collateral or property of the related Obligor or any
other Person directly or indirectly liable for the payment of such Pool
Receivable and available to be applied thereon), (b) all Collections deemed to
have been received pursuant to SECTION 1.4(e) and (c) all other proceeds of such
Receivable.
"COMMITMENT FEE" has the meaning set forth in the Fee Letter.
"COMMITMENT FEE RESERVE" means on any date of determination, an
amount equal to the product of (a) 1.25%, times (b) 2 times the Days Sales
Outstanding at such time, times (c) the Investment at such time divided by (d)
360.
"COMPANIES" means the Obligors and their respective Subsidiaries;
and "COMPANY" means any of them.
"COMPANY NOTE" has the meaning set forth in the Purchase and Sale
Agreement.
"CONCENTRATION PERCENTAGE" means: (a) for any other Group A
Obligor, 8%, (b) for any Group B Obligor, 6%, (c) for any Group C Obligor, 4%,
(d) for any Group D Obligor, 3%, and (e) for any Special Obligor, as stated in
EXHIBIT VI hereto.
"CONSOLIDATED EBITDA" means, for the purposes of the Financial
Covenants listed in CLAUSE (s) of EXHIBIT IV only, for any Measurement Period,
the remainder of (A) the sum (without duplication) of the amounts for such
period of (i) Adjusted Net Income, (ii) income tax expense to the extent
deducted in determining Adjusted Net Income for such period, (iii) the sum of
(A) all interest expense to the extent deducted in determining Adjusted Net
Income for such period, PLUS (B) in the event of the consummation of a Permitted
Receivables Transaction, an amount equal to the interest (or other fees in the
nature of interest or discount accrued and paid or payable in cash) for such
period on such Permitted Receivables Transaction, PLUS (C) other than for
purposes of the definition of Excess Cash Flow, Permitted Securitization Fees
paid or payable in cash for such period to the extent deducted in determining
Adjusted Net Income for such period (without duplication of any such amounts
added back pursuant to any other clause of this definition), (iv) depreciation
expenses and amortization expense to the extent deducted in
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determining Adjusted Net Income for such period, (v) the non-cash component of
any item of expense to the extent deducted in determining Adjusted Net Income
for such period, other than to the extent requiring an accrual or reserve for
future cash expenses, all as determined on a consolidated basis for Atrium and
its Consolidated Subsidiaries in accordance with GAAP; and (vi) an amount not to
exceed $3.5 million resulting from the write-off in connection with the Ellison
Acquisition of the accounts receivable of Ellison Company owing from Reynolds
Building Products, MINUS (B) the sum of (i) cash dividends and other
distributions paid by Atrium pursuant to SECTION 9.10(b)(i) and (ii) of the
Credit Agreement solely for purposes of calculating Consolidated EBITDA for
purposes of the Interest Coverage Ratio and the Fixed Charge Coverage Ratio,
interest income from Permitted Investments. Prior to October 25, 2001,
Consolidated EBITDA shall be calculated on a pro forma basis as if the Amended
and Restated Transactions had occurred on the first day of the relevant
Measurement Period and prior to June 30, 2002, the following amounts of pro
forma expense and cost reductions relating to the Ellison Acquisition and the
Wing Asset Sale and the Atrium Wood Asset Sale shall be added to Consolidated
EBITDA calculated as of October 25, 2000 and at each of the following
Measurement Period dates (i) $2.1 million at September 30, 2001; (ii) $1.4
million at December 31, 2001; and (iii) $700,000 at March 31, 2002.
"CONSOLIDATED INTEREST EXPENSE" means, for the purposes of the
Financial Covenants listed in CLAUSE (s) of EXHIBIT IV only, for any Measurement
Period, the sum of (A) all cash interest expense (including commitment fees,
letter of credit fees and the interest component of Capital Leases) of Atrium
and its Consolidated Subsidiaries for such Measurement Period including the net
amounts payable or receivable under all Interest Rate Protection Agreements less
interest income from Permitted Investments, PLUS (B) all Dividend Payments made
during such Measurement Period pursuant to SECTION 9.10(d) and (d) of the Credit
Agreement, PLUS (C) in the event of the consummation of a Permitted Receivables
Transaction, an amount equal to the interest (or other fees in the nature of
interest or discount accrued and paid or payable in cash) for such period on
such Permitted Receivables Transaction.
"CONSOLIDATED SUBSIDIARY" means, for any Person, each Subsidiary
of such Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been) consolidated with
the financial statements of such Person in accordance with GAAP.
"CONTRACT" means, with respect to any Receivable, any and all
contracts, understandings, instruments, agreements, invoices, notes, or other
writings pursuant to which such Receivable arises or which evidences such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
"CONTRIBUTED RECEIVABLES" is defined in the Purchase and Sale
Agreement.
"CONTRIBUTED VALUE" is defined in the Purchase and Sale Agreement.
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"CP RATE" for any Yield Period for any Portion of Investment of
the Participation means, to the extent the Purchaser funds such Portion of
Investment for such Yield Period by issuing Notes, a rate PER ANNUM equal to the
sum of (i) the rate (or if more than one rate, the weighted average of the
rates) at which Notes of the Purchaser having a term equal to such Yield Period
and to be issued to fund such Portion of Investment may be sold by any placement
agent or commercial paper dealer selected by the Agent on behalf of the
Purchaser, as agreed between each such agent or dealer and the Agent and
notified by the Agent to the Servicer; PROVIDED, that if the rate (or rates) as
agreed between any such agent or dealer and the Agent with regard to any Yield
Period for such Portion of Investment is a discount rate (or rates), then such
rate shall be the rate (or if more than one rate, the weighted average of the
rates) resulting from converting such discount rate (or rates) to an
interest-bearing equivalent rate per annum, PLUS (ii) the commissions and
charges charged by such placement agent or commercial paper dealer with respect
to such Notes and carrying costs or capitalized interest on such Notes, if
applicable, expressed as a percentage of such face amount and converted to an
interest-bearing equivalent rate PER ANNUM. Notwithstanding anything to the
contrary in the Agreement or in any other Transaction Document on and after the
occurrence and during the continuation of any Termination Event the "CP Rate"
shall be equal to the Base Rate plus 2% PER ANNUM.
"CREDIT AGREEMENT" means the First Amended and Restated Credit
Agreement by and among Atrium, as borrower, the guarantors party thereto,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as lead
arranger and syndication agent, Bank One, Texas, N.A., as documentation agent,
Fleet National Bank, as administrative agent, and the lenders party thereto,
dated as of October 2, 1998, and amended and restated as of October 25, 2000 as
amended, modified or supplemented prior to (but not following) the date hereof.
"CREDIT AND COLLECTION POLICY" means those receivables credit and
collection policies and practices of the Servicer in effect on the date of the
Agreement and described in SCHEDULE I hereto, as modified in compliance with the
Agreement.
"CREDIT DOCUMENTS" means the Amended and Restated Credit Documents
and the Original Credit Documents.
"CREDITOR" means (i) any Agent (as defined in the Credit
Agreement), (ii) the Issuing Lender, (iii) any Lender, and (iv) any party to a
Swap Contract relating to the Loans if at the date of entering into such Swap
Contract such party was a Lender or an Affiliate of a Lender.
"DAYS' SALES OUTSTANDING" means, for any calendar month, an amount
computed as of the last day of such calendar month equal to: (a) the average of
the Outstanding Balance of all Pool Receivables as of the last day of each of
the three most recent calendar months ended on the last day of such calendar
month divided by (b)(i) the aggregate credit sales made by the
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Originators during the three calendar months ended on or before the last day of
such calendar month divided by (ii) 90.
"DEBT" means (a) solely with regard to this Agreement: (i)
indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to pay the
deferred purchase price of property or services, (iv) obligations as lessee
under leases which shall have been or should be, in accordance with generally
accepted accounting principles, recorded as capital leases, (v) obligations
under direct or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others of
kinds referred to in CLAUSES (i) through (iv) above, and (vi) liabilities in
respect of unfunded vested benefits under plans covered by Title IV of ERISA;
and (b) solely with respect to the terms used in this Exhibit I to define
(directly or indirectly) certain terms used in the financial covenants listed in
paragraph(s) of Exhibit IV to the Agreement, for any Person, without
duplication, (a) all indebtedness for borrowed money of such Person; (b) all
non-contingent (but only so long as non-contingent) obligations issued,
undertaken or assumed by such Person as the deferred purchase price of Property
or services (other than trade payables and accrued expenses paid on customary
terms and not more than 60 days past due and incurred in the ordinary course of
business on ordinary terms); (c) all non-contingent reimbursement or payment
obligations of such Person with respect to Surety Instruments (such as, for
example, unpaid reimbursement obligations in respect of a drawing under a letter
of credit); (d) all obligations of such Person evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of Property or businesses; (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), the amount of such indebtedness to be
deemed the fair market value of such Property; (f) all Capital Lease Obligations
of such Person; (g) all net obligations of such Person with respect to Swap
Contracts (such obligations to be equal at anytime to the aggregate net amount
that would have been payable or receivable by such Person at the most recent
fiscal quarter end in connection with the termination of such Swap Contracts at
such fiscal quarter end); (h) all amounts required to be paid by such Person as
a guaranteed payment to partners, including any mandatory redemption of shares
or interests; (i) all indebtedness of other Persons referred to in clauses (a)
through (h) above secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in Property (including accounts and contracts rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
indebtedness, the amount of such indebtedness to be deemed to be the fair market
value of such Property; and (j) all Guaranty Obligations of such Person in
respect of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (h) above. Debt shall not include accounts extended by
suppliers in the ordinary course of business on
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normal trade terms in connection with the purchase of goods and services. The
Debt of any Person shall include any Debt of any partnership in which such
Person is the general partner.
"DEBT ISSUANCE" means the incurrence by any Obligor of any Debt
after the October 25, 2000 (other than as permitted by SECTION 9.08 of the
Credit Agreement) except with respect to CLAUSE (n) thereof.
"DEFAULT RATIO" means (a) for each calculation date occurring
prior to the Closing Date, the ratio the ratio (expressed as a percentage and
rounded upward to the nearest 1/100 of 1%) computed as of the last day of each
calendar month by dividing (i) the sum (without duplication) of (A) 90% of the
aggregate Outstanding Balance of Pool Receivables that were outstanding 61 to 90
days after their respective original due dates, as determined as of the last day
of the calendar month immediately preceding such calendar month PLUS (B) the
aggregate Outstanding Balance of Pool Receivables that were written off as
uncollectible during the calendar month ending on such day and that, if not so
written off, would have been outstanding not more than 90 days after their
respective original due dates, as determined as of such day by (ii) the
aggregate amount payable pursuant to invoices giving rise to Pool Receivables
that were generated by the Originators during the calendar month that occurred
four calendar months prior to the calendar month ending on such day, and (b) for
each calculation date occurring after the Closing Date the ratio (expressed as a
percentage and rounded upward to the nearest 1/100 of 1%) computed as the of the
last day of each calendar month by dividing (i) the sum (without duplication) of
(A) the aggregate Outstanding Balance of Pool Receivables that were outstanding
91 to 120 days after their respective original due dates, as determined as of
such day PLUS (B) the aggregate Outstanding Balance of Pool Receivables that
were written off as uncollectible during the calendar month ending on such day
and that, if not so written off, would have been outstanding not more than 120
days after their respective original due dates, as determined as of such day by
(ii) the aggregate amount payable pursuant to invoices giving rise to Pool
Receivables that were generated by the Originators during the calendar month
that occurred four calendar months prior to the calendar month ending on such
day.
"DEFAULTED RECEIVABLE" means a Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for at least 91 days from the due date for such Receivable;
(ii) as to which the Obligor thereof or any other Person
obligated thereon or owning any Related Security in respect
thereof has taken any action, or suffered any event to occur, of
the type described in PARAGRAPH (g) of EXHIBIT V hereto, except if
Owens-Corning is the Obligor and the Agent has received evidence
satisfactory to it, in its sole discretion, reconfirming payments
made and payable by Owens-Corning to third-party vendors
(including in respect of the Contracts); or
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(iii) which, consistent with the Credit and Collection
Policy, would be written off the Seller's books as uncollectible.
"DELINQUENCY RATIO" means the ratio (expressed as a percentage and
rounded upward to the nearest 1/100 of 1%) computed as of the last day of each
calendar month by dividing (i) the aggregate Outstanding Balance of all Pool
Receivables that were Delinquent Receivables on such day by (ii) the aggregate
credit sales made by the Originators during the calendar month three months
prior to such date.
"DELINQUENT RECEIVABLE" means a Receivable which is not a
Defaulted Receivable and:
(i) as to which any payment, or part thereof, remains
unpaid for at least 61 days from the due date for such Receivable;
or
(ii) which, consistent with the Credit and Collection
Policy, would be classified as delinquent by the Seller.
"DILUTION HORIZON" means, for any calendar month, the ratio
(expressed as a percentage and rounded to the nearest 1/100th of 1%, with
5/1000th of 1% rounded upward) computed as of the last day of each calendar
month by dividing: (a) the aggregate credit sales made by the Originators during
each of the last two calendar months by (b) the Net Receivable Pool Balance on
such day.
"DILUTION RATIO" means the ratio (expressed as a percentage and
rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward),
computed as of the last day of each calendar month by dividing: (a) the
aggregate amount of payments owed or deemed received by the Seller pursuant to
Section 1.4(e)(i) of the Agreement during such calendar month by (b) the
aggregate credit sales made by the Originators during the month that is two
calendar months prior to the calendar month ending on such date.
"DILUTION RESERVE PERCENTAGE" means on any date, the greater of:
(a) 4.0%, (b) the product of (i) the Dilution Horizon multiplied by (ii) the sum
of (x) two times the average of the Dilution Ratios for the twelve most recent
calendar months and (y) the Spike Factor, or (c) the percentage obtained by
dividing (i) the aggregate of the Outstanding Balances of all Pool Receivables
of each of the three highest concentration Obligors who are subject to Contracts
which are multi-family contracts by (ii) the Net Receivables Pool Balance.
"DISCOUNT" means:
(i) for the Portion of Investment of the Participation for
any Yield Period to the extent the Purchaser will be funding such
Portion of Investment on the first day of such Yield Period
through the issuance of Notes,
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CPR x I x ED + TF
---
360
(ii) for the Portion of Investment of the Participation for
any Yield Period to the extent the Purchaser will not be funding
such Portion of Investment on the first day of such Yield Period
through the issuance of Notes,
ED
---
BR x I x Year + TF
where:
BR = the Bank Rate for the Portion of Investment of
the Participation for such Yield Period
I = the Portion of Investment of the Participation
during such Yield Period
CPR = the CP Rate for the Portion of Investment of the
Participation for such Yield Period
ED = the actual number of days during such Yield Period
Year = if such Portion of Investment is funded based upon:
(i) the Eurodollar Rate, 360 days, and (ii) the Base
Rate, 365 or 366 days, as applicable
TF = the Termination Fee, if any, for the Portion of
Investment of the Participation for such Yield Period
; PROVIDED, HOWEVER, that no provision of the Agreement shall require the
payment or permit the collection of Discount in excess of the maximum permitted
by applicable law; and PROVIDED, FURTHER, that Discount for the Portion of
Investment of the Participation shall not be considered paid by any distribution
to the extent that at any time all or a portion of such distribution is
rescinded or must otherwise be returned for any reason.
"DISCOUNT RESERVE" for the Participation at any time means the sum
of (i) the Termination Discount at such time for the Participation, and (ii) the
then accrued and unpaid Discount for the Participation.
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"DISPOSITION" means (i) any conveyance, sale, lease, assignment,
transfer or other disposition (including by way of merger or consolidation and
including any sale-leaseback transaction) of any Property (including receivables
and Equity Interests of any Person owned by any Company other than Atrium)
(whether now owned or hereafter acquired) by any Company to any Person other
than Atrium or any Qualified Subsidiary, (ii) any issuance or sale by any
Subsidiary of its Equity Interests to any Person other than Atrium or any
Subsidiary, and (iii) any liquidating or other non-ordinary course dividend or
distribution or return of Investment received by any Company in respect of any
joint venture or similar enterprise, excluding, however, in each case, any
Excluded Disposition.
"DISQUALIFIED CAPITAL STOCK" means, with respect to any Person,
any Equity Interest of such Person that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon
the happening of any event, matures (excluding any maturity as the result of an
optional redemption by the issuer thereof) or is mandatorily redeemable (other
than solely for Qualified Capital Stock), pursuant to a sinking fund obligation
or otherwise, or is redeemable at the sole option of the holder thereof (other
than solely for Qualified Capital Stock) or exchangeable or convertible into
debt securities of the issuer thereof at the sole option of the holder thereof,
in whole or in part, on or prior to the date which is 90 days after June 30,
2006.
"DIVIDEND PAYMENT" means dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of Atrium or such Company through the
issuance of Qualified Capital Stock of Atrium or such Company.
"DIVIDENDS" means any dividend or distribution (in cash or
obligations) on any shares of any class of Seller's capital stock or any
warrants, options or other rights with respect to shares of any class of
Seller's capital stock.
"ELIGIBLE RECEIVABLES" means, at any time, Receivables:
(i) the Obligor of which is (a) a United States resident;
PROVIDED, HOWEVER, that if such Obligor is not a United States
resident, the aggregate Outstanding Balance of all otherwise
Eligible Receivables of such Obligor when added to the aggregate
Outstanding Balance of all other otherwise Eligible Receivables of
Obligors who are not United States residents does not exceed 2.0%
of all Eligible Receivables, (b) not a government or a
governmental subdivision, affiliate or agency, (c) not subject to
any action of the type described in PARAGRAPH (g) of Exhibit V to
the Agreement, except, if Owens-Corning is the Obligor, solely to
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the extent the Agent has received evidence satisfactory to it, in
its sole discretion, reconfirming payments made and payable by it
to third party vendors (including in respect of the related
Contracts) and (d) not an Affiliate of Atrium or any Affiliate of
Atrium;
(ii) which are denominated and payable only in U.S. dollars
in the United States;
(iii) which have a stated maturity and which stated
maturity is not more than 30 days after the date on which such
Receivable was invoiced; PROVIDED, HOWEVER, that if such
Receivable has a maturity date that is between 31 and 60 days
after the date on which such Receivable was invoiced, the
aggregate Outstanding Balance of all such Eligible Receivables
when added to the aggregate Outstanding Balance of all other
otherwise Eligible Receivables with stated maturities of not more
than 31 - 60 days, does not exceed 20% of all otherwise Eligible
Receivables;
(iv) which arise under a Contract which is in full force
and effect and which is a legal, valid and binding obligation of
the related Obligor, enforceable against such Obligor in
accordance with its terms;
(v) which conform in all material respects with all
applicable laws, rulings and regulations in effect;
(vi) which are not the subject of any asserted dispute,
offset, hold back defense, Adverse Claim or other claim (including
as a result of any liability of the applicable Originator to any
such Obligor that is also a supplier to such Originator) and which
do not arise from the sale of inventory which is subject to any
Adverse Claim;
(vii) which comply with the requirements of the Credit and
Collection Policy;
(viii) which arise from the sale and delivery of goods or
services in the ordinary course of Seller's business;
(ix) which do not require the consent of the related
Obligor to be sold or assigned;
(x) which have not been modified or restructured since
their creation;
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(xi) in which the Seller owns good and valid title and
which are freely assignable by the Seller;
(xii) for which the Purchaser shall have a valid and
enforceable undivided percentage ownership interest, to the extent
of the Participation, and a valid and enforceable first priority
perfected security interest therein and in the Related Security
and Collections with respect thereto, in each case free and clear
of any Adverse Claim;
(xiii) which constitute accounts as defined in the UCC, and
which are not evidenced by instruments or chattel paper;
(xiv) which are not Defaulted Receivables or Delinquent
Receivables;
(xv) the Obligor of which is not the Obligor of Defaulted
Receivables in an aggregate amount in excess of 25% of the
aggregate Outstanding Balance of all Receivables of such Obligor;
(xvi) which are accounts receivable representing all or
part of the sales price of merchandise, insurance or services
within the meaning of Section 3(c)(5) of the Investment Company
Act of 1940, as amended, and are "eligible assets" as defined in
Rule 3a-7 under such Act;
(xvii) the applicable Originator of which is not in default
in any material respect under the terms of the related invoice
from which such Receivable arose;
(xviii) that represents amounts earned and payable by the
related Obligor in connection with the applicable invoice and that
are not subject to the performance of additional services by the
Originator thereof;
(xix) which, in the reasonable credit judgement of the
Agent, have not been disqualified by the Agent, Purchaser or the
rating agencies rating Fairway's commercial paper for any other
reason;
(xx) for which the Obligor has been directed to make all
payments to a Lock-Box Account which is subject to a Lock-Box
Agreement; and
(xxi) which are not "bill and hold" Receivables.
"ELLISON ACQUISITION" means the acquisition of all outstanding
capital stock of VES, Inc., a Delaware corporation doing business in North
Carolina as Ellison Extrusion Systems, Inc., and substantially all of the assets
of Ellison Company's Windows and Doors
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Division by Atrium from Ellison Company pursuant to a Second Amended and
Restated Purchase Agreement dated as of September 29, 2000.
"ELLISON COMPANY" means The Ellison Company, Inc.
"EQUITY INTERESTS" means, with respect to any Person, any and all
shares, interests, participations or other equivalents, including membership
interests (however designated, whether voting or non-voting), of capital of such
Person, including, if such Person is a partnership, partnership interests
(whether general or limited) and any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such partnership, whether outstanding on or after
October 25, 2000.
"EQUITY ISSUANCE" means any of (a) any issuance or sale after
October 25, 2000 by Atrium, D and W Holdings, Inc., or any other Person of which
Atrium is a wholly owned subsidiary of (x) any Equity Interests (including any
Equity Interests issued upon exercise of any Equity Rights) or any Equity
Rights, or (y) any other security or instrument representing an Equity Interest
(or the right to obtain any Equity Interest) in the issuing or selling Person,
or (b) the receipt by any Company after October 25, 2000 of any capital
contribution (whether or not evidenced by any Equity Interest issued by the
recipient of such contribution) other than from any other Company; PROVIDED,
HOWEVER, that the issuance of any debt security that is convertible into or
exchangeable for Equity Interests or Equity Rights shall, for purposes of
SECTION 2.10(a) of the Credit Agreement, be a Debt Issuance and not an Equity
Issuance. Notwithstanding the foregoing, each of the following shall be deemed
not an Equity Issuance: (i) any issuance of Equity Interests of D and W
Holdings, Inc. to the seller or sellers in consideration for a Permitted
Acquisition; (ii) any issuance or sale of Equity Interests of any Person (other
than Atrium) owned by any Company (which, for the avoidance of doubt, is treated
as a Disposition); (iii) any individual issuance or sale by D and W Holdings,
Inc. of Equity Interests of D and W Holdings, Inc. to any employee, director,
officer or consultant in the ordinary course of business in an aggregate amount
for all such issuances and sales not to exceed 10% of the then outstanding
Equity Interests of D and W Holdings, Inc.; (iv) any issuance of Equity
Interests of D and W Holdings, Inc. to the extent that the proceeds thereof are
used for a substantially contemporaneous purchase or redemption of Equity
Interests of D and W Holdings, Inc. pursuant to SECTION 9.10(b)(ii) of the
Credit Agreement; (v) the issuance of any common Equity Interests (x) on October
25, 2000 in connection with the Amended and Restated Transactions (including
common Equity Interests issued as part of the Mezzanine Financing, common Equity
Interests issued to the seller in the Ellison Acquisition, and new common Equity
Interests issued to the Investors and others to provide financing for the
Amended and Restated Transactions) and (y) after October 25, 2000 pursuant to
the Ellison Acquisition Agreement (as in effect on October 25, 2000); and (vi)
Equity Issuances to any of the Investors or their Affiliates in an aggregate
amount not to exceed $5.0 million since October 25, 2000 so long as the entire
net proceeds thereof are used solely for working capital purposes.
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"EQUITY RIGHTS" means, with respect to any Person, any outstanding
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities convertible
into, any additional Equity Interests of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect from time to
time. References to sections of ERISA also refer to any successor sections.
"ERISA AFFILIATE" means with respect to any Person, at any time,
each trade or business (whether or not incorporated) that would, at the time, be
treated together with such Person as a single employer under Section 4001 of
ERISA or Sections 414(b), (c), (m) or (o) of the Code.
"EURODOLLAR RATE" means, for any Yield Period, an interest rate
per annum (rounded upward to the nearest 1/100th of 1%) determined pursuant to
the following formula:
Eurodollar Rate =
LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"EURODOLLAR RESERVE PERCENTAGE" means, for any Yield Period, the
maximum reserve percentage (expressed as a decimal, rounded upward to the
nearest 1/100th of 1%) in effect with respect to any Program Support Provider on
the date LIBOR for such Yield Period is determined under regulations issued from
time to time by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to "Eurocurrency" funding (currently referred to as
"Eurocurrency liabilities") having a term comparable to such Yield Period; and
"EXCESS CONCENTRATION" means the sum of the amounts by which the
Outstanding Balance of Eligible Receivables of each Obligor then in the
Receivables Pool exceeds an amount equal to: (a) the Concentration Percentage
for such Obligor multiplied by (b) the Outstanding Balance of all Eligible
Receivables then in the Receivables Pool.
"EXCESS CASH FLOW" means, for any period, (A) the sum of (i)
Consolidated EBITDA for such period (calculated for this definition by adding
back the cash portion of all extraordinary or non-recurring items of income
(other than from Dispositions and Excluded Dispositions) to the extent excluded
in the calculation of Adjusted Net Income and by deducting
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the cash portion of all extraordinary or non-recurring items of expense to the
extent excluded in the calculation of Adjusted Net Income), (ii) any net
decrease in Working Capital during such period (except to the extent
attributable to assets or Persons subject to a Disposition during such period),
and (iii) cash received from the proceeds of any life insurance or "key man"
policy during such period, MINUS (B) the sum of (i) cash interest expense
(including, without duplication, Capital Lease expense, letter of credit fees
and commitment fees and, for each Permitted Receivables Transaction, other fees
in the nature of interest or discount accrued or payable in cash) of Atrium and
its Consolidated Subsidiaries for such period to the extent deducted in
calculating Adjusted Net Income, (ii) the sum of all scheduled principal
payments (other than pursuant to SECTION 2.10(a)(v) of the Credit Agreement) on
any Debt (including Capital Leases and Term Loans pursuant to SECTION 3.01(b) of
the Credit Agreement) of Atrium and its Consolidated Subsidiaries made during
such period from internally generated funds, all prepayments of Revolving Credit
Loans made from internally generated funds and to the extent accompanied by a
permanent reduction in Revolving Credit Commitments and voluntary prepayments of
Term Loans pursuant to SECTION 2.09 of the Credit Agreement made from internally
generated funds, (iii) Capital Expenditures made during such period by Atrium
and the Subsidiaries from internally generated funds (including expenditures
that would be Capital Expenditures but for being excluded from the definition of
Capital Expenditures by clauses (v), (vii), (viii), (ix) and (x) thereof), (iv)
all income taxes actually paid in cash by Atrium or any Subsidiary during such
period or within a normal payment period thereafter (PROVIDED, HOWEVER, that any
amount deducted pursuant to this clause (iv) which was not actually paid during
such period shall not again be deducted for determining Excess Cash Flow for
another period), (v) cash dividends paid during such period by Atrium pursuant
to SECTION 9.10(b)(ii) of the Credit Agreement to the extent made with
internally generated funds, (vi) cash paid during such period for any Permitted
Acquisition to the extent funded from internally generated funds, (vii) any net
increases in Working Capital during such period (except to the extent
attributable to assets or Persons subject to an Acquisition during such
period),(viii) any earnings included in Consolidated EBITDA for such period of a
Receivables Co. to the extent the terms of any Permitted Receivables Transaction
prohibit the distribution thereof to any Obligor, and (ix) any cash payments in
respect of Permitted Securitization Fees during such period except to the extent
deducted from Consolidated EBITDA in clause (A)(i) of this definition.
"EXCLUDED DISPOSITIONS" means (i) Dispositions for fair market
value resulting in no more than $2.0 million in aggregate proceeds in any fiscal
year; (ii) an exchange of equipment or inventory for other equipment or
inventory, provided that the Company effecting such exchange receives at least
substantially equivalent value in such exchange for the Property disposed of;
(iii) any transaction permitted by SECTION 9.06 of the Credit Agreement (other
than clauses (g), (h), (p), (r), (s) and (t) thereof), any Lien permitted by
SECTION 9.07 of the Credit Agreement and any investment permitted by SECTION
9.09 of the Credit Agreement; (iv) any issuance of Equity Interests by any
Subsidiary to directors or nominees if required by applicable law if resulting
in DE MINIMUS proceeds; (v) the sale of inventory in the ordinary course of
business; and (vi) the Greenville Sale-Leaseback.
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"FACILITY TERMINATION DATE" means the earlier of (a) July 31, 2004
and (b) the current scheduled termination date of the commitments of the
Liquidity Banks under the Liquidity Agreement.
"FEDERAL FUNDS RATE" means, for any period, the PER ANNUM rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Board (including any
such successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotation") for such day under the caption "Federal Funds Effective Rate." If on
any relevant day the appropriate rate for such previous day is not yet published
in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate for such day
will be the arithmetic mean as determined by the Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on that day by each of three leading brokers of Federal funds transactions
in New York City selected by the Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the
Federal Reserve System, or any entity succeeding to any of its principal
functions.
"FEE LETTER" has the meaning set forth in SECTION 1.5.
"FINAL PAYOUT DATE" means the date following the Facility
Termination Date on which no Investment or Discount in respect of the
Participation under the Agreement shall be outstanding and all other amounts
then due and payable by the Originator, the Seller or the Servicer to the
Purchaser, the Agent or any other Indemnified Party or Affected Person under the
Transaction Documents shall have been paid in full.
"GREENVILLE ACQUISITION" shall mean the acquisition by Atrium of
the property (the "GREENVILLE PROPERTY") located at 1001 Ed Rutherford Road,
Greenville, Texas and described in a purchase and sale agreement dated February
24, 1999 by and between DowBrands, Inc. and Atrium for a purchase price of $2.9
million.
"GREENVILLE EXPENDITURES" shall mean expenditures by Atrium to
effect improvements of the Greenville Property in an amount not to exceed $2.0
million.
"GREENVILLE SALE-LEASEBACK" shall mean the sale by Atrium of the
Greenville Property for a price not less than $4.9 million and contemporaneous
leasing of the Greenville Property to Atrium by the purchaser.
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"GOVERNMENTAL AUTHORITY" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including without limitation any court, and any Person owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"GROUP A OBLIGOR" means any Obligor with a short-term rating of at
least: (a) "A-1" by Standard & Poor's, or if such Obligor does not have a
short-term rating from Standard & Poor's, a rating of "A+" or better by Standard
& Poor's on its long-term senior unsecured and uncredit-enhanced debt
securities, AND (b) "P-1" by Moody's, or if such Obligor does not have a
short-term rating from Moody's, "A1"or better by Moody's on its long-term senior
unsecured and uncredit-enhanced debt securities.
"GROUP B OBLIGOR" means an Obligor, not a Group A Obligor, with a
short-term rating of at least: (a) "A-2" by Standard & Poor's, or if such
Obligor does not have a short-term rating from Standard & Poor's, a rating of
"BBB+" to "A" by Standard & Poor's on its long-term senior unsecured and
uncredit-enhanced debt securities, AND (b) "P-2" by Moody's, or if such Obligor
does not have a short-term rating from Moody's, "Baa1" to "A2" by Moody's on its
long-term senior unsecured and uncredit-enhanced debt securities.
"GROUP C OBLIGOR" means an Obligor, not a Group A Obligor or a
Group B Obligor, with a short-term rating of at least: (a) "A-3" by Standard &
Poor's, or if such Obligor does not have a short-term rating from Standard &
Poor's, a rating of "BBB-" to "BBB" by Standard & Poor's on its long-term senior
unsecured and uncredit-enhanced debt securities, AND (b) "P-3" by Moody's, or if
such Obligor does not have a short-term rating from Moody's, "Baa3" to "Baa2" by
Moody's on its long-term senior unsecured and uncredit-enhanced debt securities.
"GROUP D OBLIGOR" means any Obligor that is not a Group A Obligor,
Group B Obligor or Group C Obligor.
"GUARANTEED OBLIGATIONS" means the guaranty made by the guarantors
party to the Credit Agreement whereby it jointly and severally guarantees as a
primary obligor and not as a surety to each Lender, Issuing Lender and Agent and
their respective successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest (including any interest, fees, costs or charges that would accrue
but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency
petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the
Notes held by each Lender of, Atrium and all other Obligations from time to time
owing to the Lenders, Issuing Lender or Agents by Atrium under the Credit
Agreement and under the Notes and by any Obligor under any of the other Credit
Documents, and all obligations of Atrium or any Subsidiary to any Lender or any
Affiliate of any Lender in respect of any Swap Contract and all Obligations
owing
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to the Issuing Lender under the Letter of Credit Documents, in each case
strictly in accordance with the terms thereof
"INDEMNIFIED AMOUNTS" has the meaning set forth in SECTION 3.1.
"INDEMNIFIED PARTY" has the meaning set forth in SECTION 3.1.
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidations, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; in each case (a) and (b) undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"INTEREST COVERAGE RATIO" means, for any Test Date, the ratio of
(x) Consolidated EBITDA for the Measurement Period ending on or immediately
prior to such Test Date to (y) Consolidated Interest Expense for such
Measurement Period; PROVIDED, HOWEVER, that prior to October 25, 2001,
Consolidated Interest Expense shall be calculated on a pro forma basis as if the
Amended and Restated Transactions had occurred on the first day of such
Measurement Period.
"INTEREST RATE PROTECTION AGREEMENT" means, for any Person, an
interest rate swap, cap, floor or collar agreement or similar arrangement
between such Person and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies.
"INVESTMENT" means the amount paid to the Seller in respect of the
Participation or any portion thereof by the Purchaser pursuant to the Agreement
as such amount may be reduced from time to time by Collections distributed and
applied on account of such Investment pursuant to SECTION 1.4(d). If such
Investment shall have been reduced by any distribution and thereafter all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason, such Investment shall be increased by the amount of such rescinded or
returned distribution, as though it had not been made.
"INVESTORS" means Ardshiel, Inc. and GE Investment Private
Placement Partners II, Limited Partnership.
"ISSUING LENDER" means Fleet National Bank or any of its
Affiliates, or such other Lender or Lenders selected by Atrium reasonably
satisfactory to Fleet National Bank, as administration agent, as the issuer of
Letters of Credit under SECTION 2.03 of the Credit Agreement, together with its
successors and assigns in such capacity.
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"LENDER" means the Lenders party under the Credit Agreement.
"LETTER OF CREDIT" means standby and commercial documentary
letters of credit issued by the Issuing Lender for the account of Atrium or any
Subsidiary which is an Obligor (PROVIDED, that Atrium shall be a co-applicant
(and jointly and severally liable) with respect to each Letter of Credit issued
for the account of any such Subsidiary.
"LETTER OF CREDIT LIABILITY" means, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit, PLUS (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of Atrium at such time due and payable in
respect of all drawings made under such Letter of Credit.
"LIBOR" means the rate of interest per annum (i) for deposits in
U.S. dollars for a period equal to such Yield Period which appears on Telerate
Page 3750 or (ii) if such rate does not appear on Telerate Page 3750, determined
by the Liquidity Agent to be the arithmetic mean (rounded upward, if necessary,
to the nearest 1/100th of 1%) of the rates of interest per annum notified to the
Liquidity Agent as the rate of interest at which dollar deposits in the
approximate amount of the Investment associated with such Yield Period would be
offered to major banks in the London interbank market at their request, in each
case at or about 11:00 a.m. (London time) on the second Business Day prior to
the commencement of such Yield Period.
"LIEN" means, with respect to any Property, any mortgage, lien,
pledge, claim, charge, security interest or encumbrance of any kind, any other
type of preferential arrangement in respect of such Property having the effect
of a security interest or any filing consented to by any Company of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority consented to
by any Company, including any easement, right-of-way or other encumbrance on
title to Real Property, and any agreement to give any of the foregoing. For
purposes of the Credit Documents, a Person shall be deemed to own subject to a
Lien any Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"LIQUIDITY AGENT" means Bank of Montreal in its capacity as
Liquidity Agent pursuant to the Liquidity Agreement.
"LIQUIDITY AGREEMENT" means that certain Liquidity Asset Purchase
Agreement dated as of the date hereof entered into among the Purchaser, the
financial institutions parties thereto, as the Liquidity Banks, Bank of
Montreal, as Liquidity Agent, and Nesbitt Burns, as servicing agent, as amended,
amended and restated, supplemented or otherwise modified from time to time.
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"LIQUIDITY BANK" has the meaning set forth in SECTION 5.3(b).
"LOANS" means the Revolving Credit Loans and the Term Loans.
"LOCK-BOX ACCOUNT" means each account maintained at a bank or
other financial institution for the purpose of receiving Collections established
pursuant to SECTION 4.3 and as listed on SCHEDULE II.
"LOCK-BOX AGREEMENT" means an agreement, in substantially the form
of ANNEX A, between the Seller, the Servicer, each Lock-Box Bank and the Agent.
"LOCK-BOX BANK" means any of the banks or other financial
institutions holding one or more Lock-Box Accounts.
"LOSS RESERVE PERCENTAGE" means, on any date, the greater of: (a)
13% or (b) (i) the product of (A) 2 times the highest average of the Default
Ratios for any three consecutive calendar months during the twelve most recent
calendar months multiplied by (B) the sum of (1) the aggregate credit sales made
during the three most recent calendar months plus (2) 20% of the aggregate
credit sales made during the calendar month that is four months prior to such
date divided by (ii) the Net Receivables Pool Balance as of such date.
"LOSS-TO-LIQUIDATION RATIO" means the ratio (expressed as a
percentage and rounded upward to the nearest 1/100th of 1%) computed as of the
last day of each calendar month by dividing (i) the aggregate Outstanding
Balance of all Pool Receivables written off by the Seller (or Servicer on its
behalf), or which should have been written off by the Seller in accordance with
the Credit and Collection Policy, during such Fiscal Month by (ii) the aggregate
amount of Collections of Pool Receivables actually received during such period.
"MAJORITY LENDERS" means Lenders holding at least a majority of
the sum of (without duplication) (a) the aggregate principal amount of
outstanding Loans (other than Swing Loans), PLUS (b) the aggregate amount of all
Letter of Credit Liabilities, PLUS (c) the aggregate Unutilized Revolving Credit
Commitments then in effect, PLUS (d) the aggregate Term Loan Commitments then in
effect, PLUS (e) in the case of the Swing Loan Lender only, the aggregate amount
of Swing Loans then outstanding.
"MATERIAL ADVERSE EFFECT" means, with respect to any event or
circumstance and any Person, a material adverse effect on:
(i) the business, assets, or financial condition of the Seller or
the Servicer and its subsidiaries, taken as a whole;
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(ii) the ability of any Originator or the Servicer (if it is an
Originator) to perform its material obligations under the Transaction
Documents to which it is a party or the performance of any such
obligations;
(iii) the validity or enforceability of any material portion of,
or collectibility of amounts payable under, the Agreement or any other
Transaction Document;
(iv) the rights and remedies of the Purchaser, the Agent, any
Program Support Provider or any of their respective Affiliates under the
Agreement or any other Transaction Document;
(v) the status, existence, perfection, priority or enforceability
of the Seller's or Purchaser's interest in the Pool Receivables,
Contracts, or Related Security; or
(vi) the validity, enforceability or collectibility of a material
portion of the Pool Receivables.
"MEASUREMENT PERIOD" means the most recent trailing four fiscal
quarters of Atrium for which financial statements have been, or should have
been, provided pursuant to SECTION 9.01(a) or (b) of the Credit Agreement.
"MEZZANINE FINANCING" means, in connection with the financing of
the Ellision Acquisition, the purchase for cash by certain investors of senior
PIK notes and common stock, par value of $.01 per share, of D and W Holdings,
Inc., sufficient to generate gross proceeds to D and W Holdings, Inc. of not
less than $36.5 million.
"MOODY'S" means Moody's Investors Services, Inc.
"MORTGAGE" means an agreement, including, but not limited to, a
mortgage, deed of trust or any other document, creating and evidencing a Lien on
a Mortgaged Real Property, which shall be substantially in the form of EXHIBIT
D-1 to the Credit Agreement, with such schedules and including such provisions
as shall be necessary to conform such document to applicable or local law or as
shall be customary under local law, as the same may at any time be amended in
accordance with the terms thereof and of the Credit Agreement.
"MORTGAGE AMENDMENT" means an amendment to a Mortgage, which shall
be substantially in the form of EXHIBIT D-2 to the Credit Agreement, with such
schedules and including such provisions as shall be necessary to conform such
document to applicable or local law or as shall be customary under local law, as
the same may at any time be amended in accordance with the terms thereof and of
the Credit Agreement.
"MORTGAGED REAL PROPERTY" means each Real Property set forth on
SCHEDULE 7.02(xv) of the Credit Agreement which shall be subject to a Mortgage
delivered on the
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October 2, 1998, October 25, 2000 or thereafter (if any) pursuant to SECTIONS
7.02(xv) and 9.12 of the Credit Agreement.
"MT. PLEASANT ACQUISITION/WING II ACQUISITION" means (i) the
acquisition by Atrium of the property (the "MT. PLEASANT PROPERTY") previously
leased by Wing Industries, Inc. from Metal Industries, Inc. for a purchase price
of approximately $454,000 and (ii) the acquisition of the property (the "WING II
PROPERTY") leased by Wing Industries, Inc. from the Greenville Economic
Development Corporation for a purchase price of approximately $299,000.
"NET AVAILABLE PROCEEDS" means:
(i) in the case of any Disposition Event, the amount of Net Cash
Payments received by any Company in connection with such Disposition Event less
deductions for amounts applied to (w) Debt secured by Liens permitted by the
Credit Agreement on the assets sold, (x) taxes, (y) costs of sale and (z) in the
case of any Permitted Receivables Transaction, any escrowed or pledged cash
proceeds so long as they effectively secure, or so long as they are required to
be maintained as reserves by the applicable Receivables Company, the obligations
of any Company under such Permitted Receivables Transaction;
(ii) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance, condemnation awards and other compensation received by
Atrium or any Obligor in respect of such Casualty Event net of (A) fees and
expenses incurred by such Company in connection with recovery thereof, (B)
repayments of Debt (other than Debt under the Credit Agreement) to the extent
secured by a Lien on such Property that is permitted hereunder, and (C) any
taxes (including income, transfer, stamp, duty, customs, withholding and any
other taxes) paid or payable by any Company in respect of the amount so
recovered (after application of all credits and other offsets); and
(iii) in the case of any Equity Issuance or any Debt Issuance, the
aggregate amount of all cash received by the Person effecting such transaction
in respect thereof net of all investment banking fees, discounts and
commissions, legal fees, consulting fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses, actually
incurred and satisfactorily documented in connection therewith, and net of, in
the case of any Permitted Receivables Transaction, any escrowed or pledged cash
proceeds so long as they effectively secure, or so long as they are required to
be maintained as reserves by the applicable Receivables Co. for, the obligations
of any Company under such Permitted Receivables Transaction.
"NET CASH PAYMENTS" means, with respect to any Disposition Event,
the aggregate amount of all cash payments (including any cash payments received
by way of deferred payment of principal pursuant to a note or installment
receivable or purchase price adjustment receivable or otherwise, but only as and
when received) received by any Company directly or indirectly in
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connection with such Disposition Event; PROVIDED, HOWEVER, that Net Cash
Payments shall be net (without duplication) of (i) the amount of all fees and
expenses paid by any Company in connection with such Disposition Event (the
"RELEVANT DISPOSITION"); (ii) any taxes (including income, transfer, stamp,
duty, customs, withholding and any other taxes) paid or estimated to be payable
by any Company as a result of the Relevant Disposition (after application of all
credits and other offsets); (iii) any repayments by any Company of Debt (other
than Debt under the Credit Agreement) to the extent that (a) such Debt is
secured by a Lien on the Property that is the subject of the Relevant
Disposition that is permitted hereunder and (b) the transferee of (or holder of
a Lien on) such Property requires that such Debt be repaid as a condition to the
purchase or sale of such Property; (iv) amounts required to be paid to any
Person (other than any Company) owning a beneficial interest in the assets
subject to such Relevant Disposition; and (v) option exercise costs to acquire
Property.
"NET RECEIVABLES POOL BALANCE" means, at any time: (a) the
Outstanding Balance of Eligible Receivables then in the Receivables Pool minus
(b) the Excess Concentration.
"NOTE ISSUER" has the meaning set forth in SECTION 5.3(a).
"NOTES" means (i) with regard to this Agreement, short-term
promissory notes issued or to be issued by any Note Issuer to fund its
investments in accounts receivable or other financial assets, and (ii) with
regard to the financial covenants listed in Exhibit IV, subsection (s), the
Revolving Credit Notes, Term Loan Notes and the Swing Loan Note.
"OBLIGATIONS" means all amounts, direct or indirect, contingent or
absolute, of every type or description, and at any time existing, owing to any
Creditor or any of its Related Parties or their respective permitted successors,
transferees or assignees pursuant to the terms of any Credit Document or any
Swap Contract or secured by any of the Security Documents, whether or not the
right of such Person to payment in respect of such obligations and liabilities
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured and
whether or not such claim is discharged, stayed or otherwise affected by any
bankruptcy case or insolvency or liquidation proceeding.
"OBLIGOR" means, (a) with respect to this Agreement, with respect
to any Receivable, the Person obligated to make payments pursuant to the
Contract relating to such Receivable; and (b) solely with respect to terms used
in this EXHIBIT I to define (directly or indirectly) certain terms used in the
financial covenants set forth in paragraph (s) of EXHIBIT IV to the Agreement,
"obligor" means Atrium and the guarantors party to the Credit Agreement.
"ORIGINAL CREDIT DOCUMENTS" means the "Credit Documents" as such
term is defined in the Original Credit Agreement, by and among the Lenders, the
Guarantors, the Lead Arranger and the Administrative Agent dated as of October
2, 1998.
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"ORIGINATORS" means Atrium Companies, Inc. and each of the Persons
named as Originators from time to time party to the Purchase and Sale Agreement.
"OUTSTANDING BALANCE" of any Receivable at any time means the then
outstanding principal balance thereof.
"PARTICIPATION" means, at any time, the undivided percentage
ownership interest in (i) each and every Pool Receivable now existing or
hereafter arising, other than any Pool Receivable that arises on or after the
Facility Termination Date, (ii) all Related Security with respect to such Pool
Receivables, and (iii) all Collections with respect to, and other proceeds of,
such Pool Receivables and Related Security. Such undivided percentage interest
shall be computed as
I + TR + DR + SFR + CFR
-----------------------
NRB
where:
I = the Investment of the Participation at the time
of computation.
TR = the Total Reserve.
DR = the Discount Reserve of the Participation at the
time of computation.
SFR = the Servicing Fee Reserve of the Participation at
the time of computation.
CFR = the Commitment Fee Reserve at the time of
computation.
NRB = the Net Receivables Pool Balance at the time of
computation.
The Participation shall be determined from time to time pursuant to the
provisions of SECTION 1.3.
"PAYMENT" means, any amount paid or released to the Seller by or
on behalf of the Purchaser in connection with the purchase price of the
Participation pursuant to Section 1.2 and/or Section 1.4 of the Agreement.
"PAYMENT DATE" is defined in the Purchase and Sale Agreement.
"PERMITTED ACQUISITION" means any Acquisition effected in
compliance with SECTION 9.06(i), (m) or (o) of the Credit Agreement.
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"PERMITTED INVESTMENTS" means with respect to any of the funds in
the Lock-Box Accounts or the Collection Account which are invested, (a)
certificates of deposit that are not represented by instruments, have a maturity
of one week or less and are issued by the Collection Account Bank (with respect
to the investment of funds in the Collection Account) or Bank of Montreal, in
either case issued by an institution having a rating no lower than the
respective ratings assigned by each of the Rating Agencies to the Notes, (b)
direct obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United Sates of
America, or by any agency thereof, in either case maturing not more than 60 days
from the date of acquisition thereof by such Person, (c) time deposits,
certificates of deposit or bankers' acceptances (including Eurodollar deposits)
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500,000,000 and a deposit rating of A/A-1 or better by
Standard & Poor's and A2/P-1 or better by Moody's, (d) commercial paper rated
A-1 or better by Standard & Poor's and P-1 or better by Moody's maturing not
more than 60 days from the date of acquisition thereof by such Person, (e)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (c) above, (f) securities with
maturities of 60 days or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least A by Standard & Poor's and A by Moody's, or (g) money market mutual
funds that invest primarily in the foregoing items, such funds coming from an
institution having a rating no lower than the respective ratings assigned by
each of the Rating Agencies to the Notes; PROVIDED, HOWEVER, that the Agent (on
behalf of Purchaser) may, from time to time, upon three Business Days' prior
written notice to Servicer, remove from the scope of "Permitted Investments"
certificates of deposit of any such Bank(s) and specify to be within such scope,
certificates of deposit of any other bank that has a rating of at least A-1 by
Standard & Poor's and P-1 by Moody's.
"PERMITTED RECEIVABLES TRANSACTION" means any transaction
providing for the sale or financing of accounts receivable (other than between
Qualified Companies); PROVIDED, HOWEVER, that (a) any such transaction shall be
consummated on material terms substantially as described on ANNEX D, and such
other terms and provisions that in Atrium's good faith judgment are usual and
customary for transactions of this type (including without limitation
representations, warranties, covenants, indemnities and defaults), or as the
Majority Lenders may otherwise consent, such consent not to be unreasonably
withheld, and (b) the advance rate thereunder shall not be less than 50% of face
value of the Accounts subject thereto and the aggregate purchase commitments
thereunder by the parties other than any Obligor shall not exceed $50,000,000.
"PERMITTED SECURITIZATION FEES" means any fees or expenses (other
than interest or fees in the nature of interest or discount) paid in connection
with any Permitted Receivables
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Transaction, including without limitation placement fees, attorney's fees,
accountant's fees, rating agency fees and other out-of-pocket costs.
"PERSON" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"PLEDGED COLLATERAL" shall have the meaning set forth in the
Security Agreement.
"POOL RECEIVABLE" means a Receivable in the Receivables Pool.
"PORTION OF INVESTMENT" means each portion of the Investment
pursuant to which the Discount with respect thereto is calculated by reference
to a different interest rate.
"PRIME RATE" is defined in the Purchase and Sale Agreement.
"PRIOR LIENS" means Liens (as defined in the Credit Agreement)
which, pursuant to the provisions of any Security Document, are or may be
superior to the Lien of such Security Document.
"PROGRAM SUPPORT PROVIDER" means and includes any Liquidity Bank
and any other or additional Person (other than any customer of the Purchaser)
now or hereafter extending credit or having a commitment to extend credit to or
for the account of, or to make purchases from, the Purchaser or issuing a letter
of credit, surety bond or other instrument to support any obligations arising
under or in connection with Purchaser's securitization program.
"PROGRAM SUPPORT AGREEMENT" means and includes the Liquidity
Agreement and any other agreement entered into by any Program Support Provider
providing for the issuance of one or more letters of credit for the account of
the Purchaser, the issuance of one or more surety bonds for which the Purchaser
is obligated to reimburse the applicable Program Support Provider for any
drawings thereunder, the sale by the Purchaser to any Program Support Provider
of the Participation (or portions thereof) and/or the making of loans and/or
other extensions of credit to the Purchaser in connection with the Purchaser's
securitization program, together with any letter of credit, surety bond or other
instrument issued thereunder.
"PROPERTY" means any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"PURCHASE AND SALE AGREEMENT" means the Purchase and Sale
Agreement, dated as of July 31, 2001, among the Originators named therein, the
Servicer and the Seller, as the
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same may be modified, supplemented, amended and amended and restated from time
to time in accordance with the Transaction Documents.
"PURCHASE AND SALE TERMINATION EVENT" is defined in SECTION 8.1 of
the Purchase and Sale Agreement.
"PURCHASE LIMIT" means the lesser of (i) $50,000,000, as such
amount may be reduced pursuant to SECTION 1.1(b) of the Agreement and (ii) the
aggregate of the commitments, if any of all then existing Liquidity Banks under
the terms of the Liquidity Agreement. References to the unused portion of the
Purchase Limit means, at any time, the Purchase Limit minus the then outstanding
Investment of the Participation under the Agreement.
"PURCHASE REPORT" is defined in the Purchase and Sale Agreement.
"PURCHASER" has the meaning set forth in the preamble to the
Agreement.
"PURCHASER'S ACCOUNT" means the special account (account number
254580-4) of the Purchaser maintained at the office of Harris Trust and Savings
Bank in Chicago, Illinois (ABA# 071000288), or such other account as may be so
designated in writing by the Agent to the Seller and the Servicer.
"RATE VARIANCE FACTOR" means 1.5; PROVIDED, that the "Rate
Variance Factor" may be changed from time to time by the Agent (if such change
is necessary or desirable in the reasonable credit judgment of the Agent) upon
at least five Business Days' prior written notice to the Servicer; PROVIDED,
FURTHER, that the Agent may not decrease the "Rate Variance Factor" below 1.5
without the prior written consent of each Rating Agency.
"QUALIFIED COMPANY" means Atrium and each Qualified Subsidiary.
"QUALIFIED CAPITAL STOCK" means with respect to any Person any
Equity Interest of such Person that is not Disqualified Capital Stock.
"QUALIFIED SUBSIDIARY" means any Wholly Owned Subsidiary that is
an Obligor.
"RATING AGENCIES" means Moody's and S&P.
"REAL PROPERTY" means all right, title and interest of any Company
(including, without limitation, any leasehold estate) in and to a parcel of real
property owned or operated by any Company, whether by lease, license or other
use agreement, together with, in each case, all improvements and appurtenant
fixtures, equipment, personal property, easements and other property and rights
incidental to the ownership, lease or operation thereof or thereon.
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"RECEIVABLE" means any indebtedness and other obligations owed to
an Originator or Seller or any right of any Originator or Seller to payment from
or on behalf of an Obligor, whether constituting an account, chattel paper,
instrument or general intangible, arising in connection with the sale of goods
or the rendering of services by any Originator, and includes, without
limitation, the obligation to pay any finance charges, fees and other charges
with respect thereto. Indebtedness and other obligations arising from any one
transaction, including, without limitation, indebtedness and other obligations
represented by an individual invoice or agreement, shall constitute a Receivable
separate from a Receivable consisting of the indebtedness and other obligations
arising from any other transaction.
"RECEIVABLES POOL" means at any time all of the then outstanding
Receivables.
"REIMBURSEMENT OBLIGATIONS" means, at any time, the obligations of
Atrium then outstanding, or that may thereafter arise in respect of all Letters
of Credit then outstanding, to reimburse amounts paid by the Issuing Lender in
respect of any drawings under a Letter of Credit.
"RELATED PARTIES" means the respective Affiliates, directors,
officers, employees, agents and advisors of each Agent (as defined in the Credit
Agreement), Issuing Lender and any such sub-agent.
"RELATED RIGHTS" is defined in the Purchase and Sale Agreement.
"RELATED SECURITY" means, with respect to any Receivable:
(i) all of the Seller's and any Originator's interest in
any goods (including returned goods), and documentation or title
evidencing the shipment or storage of any goods (including
returned goods), relating to any sale giving rise to such
Receivable;
(ii) all other security interests or liens and property
subject thereto from time to time purporting to secure payment of
such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all UCC financing
statements or similar filings signed by an Obligor relating
thereto; and
(iii) all guaranties, indemnities, insurance and other
agreements (including the related Contract) or arrangements of
whatever character from time to time supporting or securing
payment of such Receivable or otherwise relating to such
Receivable whether pursuant to the Contract related to such
Receivable or otherwise.
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"REQUIREMENT OF LAW" mea ns as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
"RESPONSIBLE OFFICER" means the Chief Executive Officer of the
Seller or the Servicer, as the case may be, or the President of the Seller or
the Servicer, as the case may be, or, with respect to financial matters, the
Chief Financial Officer of Atrium, any Vice President-Finance or Treasurer (or
an equivalent officer); it being understood, that for purposes of this
definition if the Seller or Servicer, as applicable, does not have or no longer
has an officer with one of the titles set forth above, a "Responsible Officer"
for purposes of this Agreement and the other Transaction Documents shall be the
officer or officers of the Seller or Servicer, as applicable, designated to
perform the duties of the officers described above.
"REVOLVING CREDIT COMMITMENTS" means the aggregate sum of the
Revolving Credit Commitments of all of the Revolving Credit Lenders.
"REVOLVING CREDIT COMMITMENT PERCENTAGE" means, with respect to
any Revolving Credit Lender, the ratio of (a) the amount of the Revolving Credit
Commitment of such Lender to (b) the aggregate amount of the Revolving Credit
Commitments of all of the Lenders.
"REVOLVING CREDIT LENDERS" means (a) on October 25, 2000, the
Lenders having Revolving Credit Commitments on the signature pages of the Credit
Agreement and (b) thereafter, the Lenders from time to time holding Revolving
Credit Loans and Revolving Credit Commitments after giving effect to any
assignments thereof permitted by SECTION 12.06(B) of the Credit Agreement.
"REVOLVING CREDIT LOANS" means the revolving credit loans made to
Atrium pursuant to SECTION 2.01 of the Credit Agreement.
"REVOLVING CREDIT NOTES" means the promissory notes provided for
by SECTION 2.08(a) of the Credit Agreement and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"S&P" means Standard and Poor's a division of The McGraw Hill
Companies, Inc.
"SECURITIZATION EVENT" means any date on which Atrium enters into
a Permitted Receivables Transaction.
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"SECURITY AGREEMENT" means a Security Agreement substantially in
the form of EXHIBIT E to the Credit Agreement among the Obligors thereto and the
Administrative Agent (as defined in the Credit Agreement), as the same may be
amended in accordance with the terms thereof and hereof or such other agreements
reasonably acceptable to the Administrative Agent as shall be necessary to
comply with applicable Requirements of Law and effective to grant to the
Administrative Agent a perfected first priority security interest (subject to
Prior Liens, if any) in the Pledged Collateral covered thereby.
"SECURITY DOCUMENTS" means the Security Agreement, the Mortgages
and the Mortgage Amendments and each other security document or pledge agreement
required by applicable local law to grant a valid, perfected security interest
in any property or asset acquired or developed pursuant to a Permitted
Acquisition (as defined in the Credit Agreement), and all UCC or other financing
statements or instruments of perfection required by this Agreement, the Security
Agreement, any Mortgage or any Mortgage Amendment to be filed with respect to
the security interests in Property and fixtures created pursuant to the Security
Agreement, any Mortgage or any Mortgage Amendment and any other document or
instrument utilized to pledge as collateral for the Obligations any Property of
whatever kind or nature.
"SELLER" has the meaning set forth in the preamble to the
Agreement.
"SENIOR LEVERAGE RATIO" means, for any Test Date, the ratio of (x)
the sum of Senior Debt at such Test Date, excluding any debt incurred by any
Company in connection with a financing pursuant to any Permitted Receivables
Transaction which is outstanding at such Test Date to (y) Consolidated EBITDA
for the Measurement Period ended on or immediately prior to such Test Date."
"SENIOR SUBORDINATED NOTES" means the 10 1/2% Senior Subordinated
Notes due 2009 issued by Atrium pursuant to the Senior Subordinated Notes
Indenture, in an aggregate principal amount of $175.0 million, including the
senior subordinated notes issued pursuant to a registered exchange offer
therefor guaranteed by each of the Guarantors under the Credit Agreement (other
than D and W Holdings, Inc.) on a senior subordinated basis..
"SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture by and
among Atrium, as issuer, each of the guarantors party thereto from time to time
and State Street Bank and Trust Company, as trustee, dated as of May 17, 1999,
as such may be amended and in effect from time to time in accordance with its
terms and the Credit Agreement.
"SERVICER" has the meaning set forth in the preamble to the
Agreement.
"SERVICER REPORT" means a report, in substantially the form of
ANNEX C hereto, furnished by the Servicer to the Agent pursuant to the
Agreement.
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"SERVICER REPORT DATE" means the 15th Business Day following the
last day of each calendar month.
"SERVICING FEE" means the fee referred to in SECTION 4.6.
"SERVICING FEE RESERVE" for the Participation at any time means
the sum of (i) the unpaid Servicing Fee relating to the Participation accrued to
such time, plus (ii) an amount equal to (a) the aggregate Outstanding Balance of
Pool Receivables at the time of computation multiplied by (b) the product of (x)
1.50% and (y) a fraction having 2 times the Days Sales Outstanding as its
numerator and 360 as its denominator.
"SOLVENT" means, with respect to any Person at any time, a
condition under which:
(i) the fair value and present fair saleable value of such
Person's total assets is, on the date of determination, greater
than such Person's total liabilities (including contingent and
unliquidated liabilities) at such time;
(ii) the fair value and present fair saleable value of such
Person's assets is greater than the amount that will be required
to pay such Person's probable liability on its existing debts as
they become absolute and matured ("DEBTS," for this purpose,
includes all legal liabilities, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed, or contingent);
(iii) such Person is and shall continue to be able to pay
all of its liabilities as such liabilities mature; and
(iv) such Person does not have unreasonably small capital
with which to engage in its current and in its anticipated
business.
For purposes of this definition:
(A) the amount of a Person's contingent or unliquidated
liabilities at any time shall be that amount which, in light of all the
facts and circumstances then existing, represents the amount which can
reasonably be expected to become an actual or matured liability;
(B) the "fair value" of an asset shall be the amount which may be
realized within a reasonable time either through collection or sale of
such asset at its regular market value;
(C) the "regular market value" of an asset shall be the amount
which a capable and diligent business person could obtain for such asset
from an interested buyer who is willing to Purchase such asset under
ordinary selling conditions; and
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(D) the "present fair saleable value" of an asset means the amount
which can be obtained if such asset is sold with reasonable promptness in
an arm's-length transaction in an existing and not theoretical market.
"SPECIAL OBLIGORS" are listed in EXHIBIT VI hereto.
"SPIKE FACTOR" means on any date, the product of (i), the positive
difference, if any, between: (a) the highest Dilution Ratio for any calendar
month during the twelve most recent calendar months and (b) the arithmetic
average of the Dilution Ratios for such twelve months, TIMES (ii) (a) the
highest Dilution Ratio for any calendar month during the twelve most recent
calendar months, DIVIDED BY (b) the arithmetic average of the Dilution Ratios
for such twelve months.
"STATED TERMINATION DATE" means the then current scheduled
termination date of the commitments of the Liquidity Banks under the Liquidity
Agreement, as such date may be extended from time to time in the sole discretion
of the Liquidity Banks.
"SUBORDINATED DEBT" means the Senior Subordinated Notes and any
other Debt of any Company that is subordinated to any other Debt of such
Company.
"SUB-SERVICER" shall have the meaning set forth in SECTION 4.1(D).
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. Unless the context clearly requires otherwise, all references to
any Subsidiary means a Subsidiary of Atrium. All references to any Subsidiary of
Atrium shall include all those Persons which become Subsidiaries upon
consummation of the Ellison Acquisition.
"SURETY INSTRUMENTS" means all letters of credit (including
standby and commercial), bankers' acceptances, bank guarantees, surety bonds and
similar instruments.
"SWAP CONTRACT" means any agreement entered into in the ordinary
course of business (as a BONA FIDE hedge and not for speculative purposes)
(including any master agreement and any agreement, whether or not in writing,
relating to any single transaction) that is an interest
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rate swap agreement, basis swap, forward rate agreement, commodity swap,
commodity option, forward commodity purchase agreement, equity or equity index
swap or option, bond option, interest rate option, foreign exchange agreement,
rate cap, collar or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or any other similar agreement
(including any option to enter into any of the foregoing) and is designed to
protect the Obligors against fluctuations in interest rates, currency exchange
rates, or similar risks (including any Interest Rate Protection Agreement
entered into pursuant to SECTION 9.18 of the Credit Agreement).
"SWING LOAN LENDER" means Fleet National Bank and its successors
and assigns in such capacity.
"SWING LOANS" means the swing loans made pursuant to SECTION 2.01
of the Credit Agreement.
"SWING LOAN NOTE" means the promissory note made by Atrium
evidencing the Swing Loans, in the form of EXHIBIT A-5 to the Credit Agreement.
"TANGIBLE NET WORTH" means, with respect to any Person, the net
worth of such Person after subtracting therefrom the aggregate amount of such
Person's intangible assets, including, without limitation, goodwill, franchises,
licenses, patents, trademarks, trade names, copyrights, service marks and brand
names.
"TERM LOAN COMMITMENTS" means the term loan commitment made under
the Credit Agreement.
"TERM LOANS" means the term loans made pursuant to the Credit
Agreement.
"TERM LOAN NOTES" means the Tranche A Term Loan Notes, the Tranche
B Term Loan Notes and the Tranche C Term Loan Notes, collectively.
"TERMINATION DATE" means the earlier of (i) the Business Day which
the Seller so designates by notice to the Agent at least 30 Business Days in
advance and (ii) the Facility Termination Date.
"TERMINATION DAY" means (i) each day on which the conditions set
forth in SECTION 2 of EXHIBIT II are not satisfied and (ii) each day which
occurs on or after the Termination Date.
"TERMINATION DISCOUNT" means, for the Participation on any date,
an amount equal to the product of (i) the Investment of the Participation on
such date, times (ii) the Base Rate for the Participation plus 2% per annum,
times (iii) a fraction having as its numerator the Rate
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Variance Factor multiplied by 2 times the Days Sales Outstanding at such time
and 360 as its denominator.
"TERMINATION EVENT" has the meaning specified in EXHIBIT V.
"TERMINATION FEE" means, for any Yield Period, the amount, if any,
by which (i) the additional Discount (calculated without taking into account any
Termination Fee or any shortened duration of such Yield Period pursuant to
CLAUSE (iii) of the definition thereof) which would have accrued during such
Yield Period on the reductions of Investment of the Participation relating to
such Yield Period had such reductions remained as Investment, exceeds (ii) the
income, if any, received by the Purchaser from the Purchaser investing the
proceeds of such reductions of Investment, as determined by the Agent, which
determination shall be binding and conclusive for all purposes, absent manifest
error.
"TEST DATE" means for the financial covenants set forth in Exhibit
IV, subsection (s), the last day of each fiscal quarter included within any
period set forth in the table set forth for such covenant. Compliance with such
covenants shall be tested, as of each Test Date, on the date on which financial
statements pursuant to SECTION 9.01(a) or (b) of the Credit Agreement have been,
or should have been, delivered for the applicable fiscal period.
"TOTAL DEBT" means, at any date, the aggregate amount of Debt of
Atrium and its Consolidated Subsidiaries as of such date determined on a
consolidated basis in accordance with GAAP.
"TOTAL LEVERAGE RATIO" means, for any Test Date, the ratio of (x)
the sum of Total Debt at such Test Date, excluding any debt incurred by any
Company in connection with a financing pursuant to any Permitted Receivables
Transaction which is outstanding at such Test Date to (y) Consolidated EBITDA
for the Measurement Period ended on or immediately prior to such Test Date
"TOTAL RESERVE" means the Adjusted Total Reserve Percentage
MULTIPLIED BY the Net Investment at such time.
"TOTAL RESERVE PERCENTAGE" means the sum of (i) Loss Reserve
Percentage and (ii) Dilution Reserve Percentage.
"TRANCHE A TERM LOAN NOTES" means the promissory notes provided
for by SECTION 2.08(a)(ii) of the Credit Agreement and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
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"TRANCHE B TERM LOAN NOTES" means the promissory notes provided
for by SECTION 2.08(A)(III) of the Credit Agreement and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"TRANCHE C TERM LOAN NOTES" means the promissory notes provided
for by SECTION 2.08(A)(IV) of the Credit Agreement and all promissory notes
delivered in substitution or exchange therefor, in each case as the same shall
be modified and supplemented and in effect from time to time.
"TRANSACTION DOCUMENTS" means the Agreement, the Fee Letter, the
Purchase and Sale Agreement, the Lock-Box Agreements, the Collection Account
Agreement and all other certificates, instruments, UCC financing statements,
reports, notices, agreements and documents executed or delivered under or in
connection with the Agreement, in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
Agreement.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the applicable jurisdiction.
"UNMATURED PURCHASE AND SALE TERMINATION EVENT" means any event
which, with the giving of notice or lapse of time, or both, would become a
Purchase and Sale Termination Event.
"UNMATURED TERMINATION EVENT" means an event which, with the
giving of notice or lapse of time, or both, would constitute a Termination
Event.
"UNUTILIZED REVOLVING CREDIT COMMITMENTS" means, for any Revolving
Credit Lender, at any time, the excess of such Lender's Revolving Credit
Commitment at such time over the sum of (i) the aggregate outstanding principal
amount of Revolving Credit Loans made by such Lender, (ii) such Lender's
Revolving Credit Commitment Percentage of the aggregate amount of Letter of
Credit Liabilities at such time and (iii) with respect to the Swing Loan Lender
only, the aggregate principal amount of Swing Loans then outstanding.
"WING ASSET SALE" means the disposition of certain assets related
to Atrium's residential door business pursuant to an asset purchase agreement
dated June 30, 2000 by and among Atrium, Wing Industries, Inc., a Texas
corporation and subsidiary of Atrium, and Premdor Corporation, a Michigan
corporation.
"WORKING CAPITAL" means an amount determined for Atrium and the
Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP) equal to the sum of all current assets (other than cash)
less the sum of all current liabilities (other than the current portion of
long-term Debt and the current portion of deferred tax assets or liabilities).
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"YIELD PERIOD" means, with respect to each Portion of Investment:
(a) initially the period commencing on the date of any purchase pursuant
to SECTION 1.2 and ending such number of days as the Agent shall select (subject
to the proviso set forth in the fourth sentence of Section 1.2(a) of the
Agreement), up to 90 days after such date; and
(b) thereafter each period commencing on the last day of the immediately
preceding Yield Period for such Portion of Investment and ending such number of
days (not to exceed 90 days) as the Agent (subject to the proviso set forth in
the fourth sentence of Section 1.2(a) of the Agreement) shall select; PROVIDED,
that
(i) any Yield Period (other than of one day) which would
otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day;
(ii) in the case of any Yield Period of one day, (A) if such
Yield Period is the initial Yield Period for a purchase pursuant to
SECTION 1.2, such Yield Period shall be the day of such purchase; (B)
any subsequently occurring Yield Period which is one day shall, if the
immediately preceding Yield Period is more than one day, be the last day
of such immediately preceding Yield Period, and, if the immediately
preceding Yield Period is one day, be the day next following such
immediately preceding Yield Period; and (C) if such Yield Period occurs
on a day immediately preceding a day which is not a Business Day, such
Yield Period shall be extended to the next succeeding Business Day; and
(iii) in the case of any Yield Period for any Portion of
Investment which commences before the Termination Date and would
otherwise end on a date occurring after the Termination Date, such Yield
Period shall end on such Termination Date and the duration of each Yield
Period which commences on or after the Termination Date shall be of such
duration as shall be selected by the Agent.
OTHER TERMS. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All
terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9.
Unless the context otherwise requires, "or" means "and/or," and "including" (and
with correlative meaning "include" and "includes") means including without
limiting the generality of any description preceding such term.
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EXHIBIT II
CONDITIONS OF PURCHASES
1. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The initial purchase under
the Agreement is subject to the conditions precedent that the Agent shall have
received on or before the date of such purchase the following, each in form and
substance (including the date thereof) satisfactory to the Agent:
(a) A counterpart of this Agreement and the other Transaction Documents
duly executed by the parties thereto.
(b) Certified copies of (i) the resolutions of the Board of Directors of
each of the Seller, the Servicer and the Originators authorizing the execution,
delivery, and performance by the Seller, the Servicer and the Originators of the
Transaction Documents to which they are a party, (ii) all documents evidencing
other necessary corporate action and governmental approvals, if any, with
respect to this Agreement and the other Transaction Documents and (iii) the
certificate of incorporation and by-laws of the Seller, the Servicer and the
Originators.
(c) A certificate of the Secretary or Assistant Secretary of each of the
Seller, the Servicer and the Originators certifying the names and true
signatures of its officers authorized to sign the Agreement and the other
Transaction Documents to which it is a party. Until the Agent receives a
subsequent incumbency certificate from the Seller, the Servicer and the
Originators in form and substance satisfactory to the Agent, the Agent shall be
entitled to rely on the last such certificate delivered to it by the Seller, the
Servicer and the Originators, as the case may be.
(d) Acknowledgment copies, or time-stamped receipt copies of proper
financing statements, duly filed on or before the date of such initial purchase
under the UCC of all jurisdictions that the Agent may deem necessary or
desirable in order to perfect the interests of the Purchaser contemplated by the
Agreement and other Transaction Documents.
(e) Acknowledgment copies, or time-stamped receipt copies of proper
financing statements, if any, necessary to release all security interests and
other rights of any Person in the Receivables, Contracts or Related Security
previously granted by the Seller or any Originator.
(f) Completed UCC requests for information, dated on or before the date
of such initial purchase, listing the financing statements referred to in
SUBSECTION (e) above and all other effective financing statements filed in the
jurisdictions referred to in SUBSECTION (e) above that name the Seller or any
Originator as debtor, together with copies of such other financing
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statements (none of which shall cover any Receivables, Contracts or Related
Security), and similar search reports with respect to federal tax liens and
liens of the Pension Benefit Guaranty Corporation in such jurisdictions as the
Agent may request, showing no such liens on any of the Receivables, Contracts or
Related Security.
(g) Copies of executed (i) Lock-Box Agreements with the Lock-Box Banks
and (ii) the Collection Account Agreement with the Collection Account Bank..
(h) Favorable opinions of Paul, Hastings, Janofsky & Walker LLP, counsel
for the Seller, in form and substance acceptable to the Agent and as to
corporate, enforceability, UCC and such other matters as the Agent may
reasonably request.
(i) Favorable opinions of Paul, Hastings, Janofsky & Walker LLP, counsel
for the Seller, substantially in form of any substance acceptable to the Agent
and as to bankruptcy matters.
(j) A pro-forma Servicer Report.
(k) Evidence (i) of the execution and delivery by each of the parties
thereto of the Purchase and Sale Agreement and all documents, agreements and
instruments contemplated thereby (which evidence shall include copies, either
original or facsimile, of each of such documents, instruments and agreements),
(ii) that each of the conditions precedent to the execution and delivery of the
Purchase and Sale Agreement has been satisfied to the Agent's satisfaction, and
(iii) that the initial purchases under the Purchase and Sale Agreement have been
consummated.
(l) Evidence of payment by the Seller of all accrued and unpaid fees
(including those contemplated by the Fee Letter), costs and expenses to the
extent then due and payable on the date thereof, together with Attorney Costs of
the Agent to the extent invoiced prior to or on such date, plus such additional
amounts of Attorney Costs as shall constitute the Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings;
including any such costs, fees and expenses arising under or referenced in
SECTION 5.4.
(m) The Fee Letter between the Seller and the Agent contemplated by
SECTION 1.5.
(n) Good standing certificates with respect to the Seller, the
Originators and the Servicer issued by the Secretaries of State of the States of
such Person's organization and principal place of business.
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(o) Such other approvals, opinions or documents as the Agent may
reasonably request.
2. CONDITIONS PRECEDENT TO ALL PURCHASES AND PAYMENTS. Each Payment of
purchase price in respect of the Participation shall be subject to the further
conditions precedent that:
(a) in the case of each Payment (other than a Payment out of Collections
pursuant to Section 1.4(b) (ii) and (iii), the Servicer shall have delivered to
the Agent on or prior to such purchase, in form and substance satisfactory to
the Agent, a completed Servicer Report;
(b) on the date of such Payment the following statements shall be true
(and acceptance of the proceeds of such purchase or reinvestment shall be deemed
a representation and warranty by the Seller that such statements are then true):
(i) (A) the representations and warranties contained in EXHIBIT
III and EXHIBIT VII (other than with respect to paragraph 2 of part C
therein) are true and correct on and as of the date of such purchase or
reinvestment as though made on and as of such date and (B) the Seller is
not aware that (1) the Internal Revenue Service shall have filed notice
of a lien pursuant to Section 6323 of the Internal Revenue Code with
regard to any asset of the Seller or any Originator which has not been
released within 10 Business Days or (2) the Pension Benefit Guaranty
Corporation shall have filed notice of a lien pursuant to Section 4068
of ERISA with regard to any assets of the Seller or any Originator,
unless, in any case set forth in clause (1) or (2), above, such lien
shall have been released prior to the date that any Payment is made
under the Agreement following the imposition of such lien;
(ii) no event has occurred and is continuing, or would result
from such purchase or reinvestment, that constitutes a Termination Event
or an Unmatured Termination Event;
(iii) the Participation shall not exceed 100%; and
(iv) the Internal Revenue Service shall not have filed notice of a
lien pursuant to Section 6323 of the Internal Revenue Code with regard
to any asset of the Seller or any Originator which has not been
released within 10 Business Days, and the Pension Benefit Guaranty
Corporation shall not have filed notice of a lien pursuant to Section
4068 of ERISA with regard to any assets of the Seller or any
Originator, unless, in either case, such lien shall have been released
prior to the date of such Payment.
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EXHIBIT III
REPRESENTATIONS AND WARRANTIES
1. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware, and is duly
qualified to do business, and is in good standing, as a foreign corporation in
every jurisdiction where the nature of its business requires it to be so
qualified unless any failure to be so qualified would be reasonably likely to
have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller of the
Agreement and the other Transaction Documents to which it is a party, including
the Seller's use of the proceeds of purchases and reinvestments, (i) are within
the Seller's corporate powers, (ii) have been duly authorized by all necessary
corporate action on the part of the Seller, (iii) do not contravene or result in
a default under or conflict with (1) the Seller's charter or by-laws, (2) any
law, rule or regulation applicable to the Seller, (3) any contractual
restriction binding on or affecting the Seller or its property or (4) any order,
writ, judgment, award, injunction or decree binding on or affecting the Seller
or its property unless, in each case, such contravention, default or conflict
could not reasonably be expected to have a Material Adverse Affect, and (iv) do
not result in or require the creation of any Adverse Claim upon or with respect
to any of its properties. The Agreement and the other Transaction Documents to
which it is a party have been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required for
the due execution, delivery and performance by the Seller of the Agreement or
any other Transaction Document to which it is a party other than those
previously obtained or UCC filings.
(d) Each of the Agreement and the other Transaction Documents to
which it is a party constitutes the legal, valid and binding obligation of the
Seller enforceable against the Seller in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security, free and clear of any Adverse Claim; upon each
purchase or reinvestment, the
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Purchaser shall acquire a valid and enforceable perfected undivided percentage
ownership interest, to the extent of the Participation, in each Pool Receivable
then existing or thereafter arising (other than any Pool Receivable that arises
on or after the date following the Facility Termination Date when all Investment
and other obligations of the Seller or Servicer hereunder and under the other
Transaction Documents are paid in full) and in the Related Security and
Collections and other proceeds, with respect thereto, free and clear of any
Adverse Claim; the Agreement creates a security interest in favor of the
Purchaser in the items described in SECTION 1.2(D), and the Purchaser has a
first priority perfected security interest in such items, free and clear of any
Adverse Claims. No effective financing statement or other instrument similar in
effect covering any Contract or any Pool Receivable or the Related Security or
Collections with respect thereto or any Lock-Box Account is on file in any
recording office, except those filed in favor of the Seller and the Purchaser
pursuant to this Agreement and the other Transaction Documents and those
relating to security interests that will be terminated or released on or prior
to the Closing Date.
(f) Each Servicer Report, information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Agent in connection with the Agreement is or will
be accurate in all material respects as of its date or as of the date so
furnished, and no such item contains or will contain any untrue statement of a
material fact.
(g) The principal place of business and chief executive office (as
such terms are used in the UCC) of the Seller and the office where the Seller
keeps its records concerning the Receivables are located at the address referred
to in SECTION 1(b) of EXHIBIT IV.
(h) The names and addresses of all the Lock-Box Banks, together with
the account numbers of the Lock-Box Accounts of the Seller at such Lock-Box
Banks, are specified in SCHEDULE II to the Agreement (or at such other Lock-Box
Banks and/or with such other Lock-Box Accounts as have been notified to the
Agent in accordance with the Agreement) and all Lock-Box Accounts are subject to
Lock-Box Agreements. All Obligors have been directed to make all payments with
respect to each Contract to a Lock-Box Account.
(i) The Seller is not in violation of any order of any court,
arbitrator or Governmental Authority that could be reasonably be expected to
have a Materially Adversely Effect.
(j) No proceeds of any purchase or reinvestment will be used by the
Seller for any purpose that violates any applicable law, rule or regulation,
including, without limitation, Regulations T, U or X of the Federal Reserve
Board.
(k) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable as of
the date of such calculation.
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(l) No event has occurred and is continuing, or would result from a
purchase in respect of, or reinvestment in respect of, the Participation or from
the application of the proceeds therefrom, which constitutes a Termination Event
or an Unmatured Termination Event.
(m) The Seller has complied in all material respects with the Credit
and Collection Policy with regard to each Receivable.
(n) The Seller has complied with all of the material terms,
covenants and agreements contained in the Agreement and the other Transaction
Documents.
(o) The Seller's complete corporate name is set forth in the
preamble to the Agreement, and the Seller does not use and has not during the
last six years used any other corporate name, trade name, doing-business name or
fictitious name, except as set forth on SCHEDULE III and except for names first
used after the date of the Agreement and set forth in a notice delivered to the
Agent pursuant to SECTION 1(l)(vii) of EXHIBIT IV.
(p) Seller has filed or caused to be filed all U.S. federal income
tax returns and all other material returns, statements, forms and reports for
taxes, domestic or foreign, required to be filed by it and has paid all taxes
payable by it which have become due or any assessments made against it or any of
its Property and all other material taxes, fees or other charges imposed on it
or any of its Property by any Governmental Authority (other than those which, in
the aggregate, are not substantial in amount or those the amount or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with generally accepted accounting
principles have been provided on the books of the Seller).
(q) The Seller is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(r) The consolidated balance sheet of Atrium as at December 31,
2000, a copy of which has been furnished to the Agent, fairly presents the
financial condition of Atrium, as at such date, and since the date of such
balance sheet, there has been no material adverse change in the financial
condition of the Seller or Atrium or the ability of the Seller or any Originator
to perform their material obligations under the Agreement or the other
Transaction Documents to which it is a party or the collectibility of the Pool
Receivables, or which affects the legality, validity or enforceability of the
Agreement or the other Transaction Documents.
(s) There is no pending action or proceeding or, to the Seller's
knowledge, no threatened action or proceeding, affecting the Seller, Servicer or
any Originator before any Governmental Authority or arbitrator which could
reasonably be expected to have a Material Adverse Effect.
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2. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. The Servicer
represents and warrants as follows:
(a) The Servicer is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business, and is in good standing, as a foreign corporation
in every jurisdiction where the nature of its business requires it to be so
qualified unless any failure to be so qualified would not have a Material
Adverse Effect.
(b) The execution, delivery and performance by the Servicer of the
Agreement and the other Transaction Documents to which it is a party, (i) are
within the Servicer's corporate powers, (ii) have been duly authorized by all
necessary corporate action on the part of the Servicer, (iii) do not contravene
or result in a default under or conflict with (1) the Servicer's charter or
by-laws, (2) any law, rule or regulation applicable to the Servicer, (3) any
contractual restriction binding on or affecting the Servicer or its property or
(4) any order, writ, judgment, award, injunction or decree binding on or
affecting the Servicer or its property, unless in each case such continuation,
default or conflict could not reasonably be expected to have a Material Adverse
Effect, and (iv) with respect to the Servicer, do not result in or require the
creation of any Adverse Claim upon or with respect to any of its properties. The
Agreement and the other Transaction Documents to which it is a party have been
duly executed and delivered by the Servicer.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority or other Person is required for
the due execution, delivery and performance by the Servicer of the Agreement or
any other Transaction Document to which it is a party, other than those
previously obtained.
(d) Each of the Agreement and the other Transaction Documents to
which it is a party constitutes the legal, valid and binding obligation of the
Servicer enforceable against the Servicer in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditor's rights generally and by
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(e) The consolidated balance sheets of the Servicer and its
subsidiaries as at December 31, 2000, a copy of which has been furnished to the
Agent, fairly presents the financial condition of the Servicer and its
subsidiaries, as at such date, and since December 31, 2000, no event has
occurred that has had, or could be reasonably expected to have, a Material
Adverse Effect.
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(f) There is no pending action or proceeding or, to the Servicer's
knowledge, no threatened action or proceeding, affecting the Servicer before any
Governmental Authority or arbitrator which could reasonably be expected to have
a Material Adverse Effect.
(g) The Servicer has complied in all material respects with the
Credit and Collection Policy with regard to each Pool Receivable.
(h) Each Servicer Report, information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Servicer to the Agent in connection with the Agreement is or
will be accurate in all material respects as of its date or (except as otherwise
disclosed to the Agent at such time) as of the date so furnished, and no such
item contains or will contain any untrue statement of a material fact.
(i) The Servicer is not in violation of any order of any court,
arbitrator or Governmental Authority that could reasonably be expected to have a
Materially Adversely Effect.
(j) Each Pool Receivable included as an Eligible Receivable in the
calculation of the Net Receivables Pool Balance is an Eligible Receivable as of
the date of such calculation.
(k) No event has occurred and is continuing, or would result from a
Payment in respect of the Participation or from the application of the proceeds
therefrom, which constitutes a Termination Event or an Unmatured Termination
Event.
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EXHIBIT IV
COVENANTS
COVENANTS OF THE SELLER AND THE SERVICER. Until the latest of the
Facility Termination Date, the date on which no Investment of or Discount in
respect of the Participation shall be outstanding or the date all other amounts
owed by the Seller or Servicer under the Agreement to the Purchaser, the Agent
and any other Indemnified Party or Affected Person shall be paid in full:
(a) COMPLIANCE WITH LAWS, ETC. Each of the Seller and the Servicer
shall comply in all material respects with all applicable laws, rules,
regulations and orders, and preserve and maintain its corporate existence,
rights, franchises, qualifications, and privileges except to the extent that the
failure so to comply with such laws, rules and regulations or the failure so to
preserve and maintain such existence, rights, franchises, qualifications, and
privileges would not adversely affect the collectibility of the Receivables or
the enforceability of any related Contract or materially adversely affect the
ability of the Seller or the Servicer to perform its obligations under any
related Contract or under the Agreement or any other Transaction Document.
(b) OFFICES, RECORDS AND BOOKS OF ACCOUNT, ETC. The Seller (i) shall
keep its principal place of business and chief executive office (as such terms
are used in the UCC) and the office where it keeps its records concerning the
Receivables at the address of the Seller set forth under its name on the
signature page to the Agreement or, upon at least 30 days' prior written notice
of a proposed change to the Agent, at any other locations in jurisdictions where
all actions reasonably requested by the Agent to protect and perfect the
interest of the Purchaser in the Receivables and related items (including
without limitation the items described in SECTION 1.2(d)) have been taken and
completed and (ii) shall provide the Agent with at least 60 days' written notice
prior to making any change in the Seller's name or making any other change in
the Seller's identity or corporate structure (including a merger) which could
render any UCC financing statement filed in connection with this Agreement
"seriously misleading" as such term is used in the UCC; each notice to the Agent
pursuant to this sentence shall set forth the applicable change and the
effective date thereof. The Seller or the Servicer on its behalf also will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables and
related Contracts in the event of the destruction of the originals thereof), and
keep and maintain all documents, books, records, computer tapes and disks and
other information reasonably necessary or advisable for the collection of all
Receivables in the ordinary course of business (including, without limitation,
records adequate to permit the daily identification of each Receivable and all
Collections of and adjustments to each Receivable).
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(c) PERFORMANCE AND COMPLIANCE WITH CONTRACTS AND CREDIT AND
COLLECTION POLICY. Each of the Seller and the Servicer shall, at its expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Contracts related to the
Receivables, and timely and fully comply in all material respects with the
Credit and Collection Policy with regard to each Receivable and the related
Contract.
(d) OWNERSHIP INTEREST, ETC. The Seller shall, at its expense, take
all action necessary or desirable to establish and maintain a valid and
enforceable undivided ownership interest, to the extent of the Participation, in
the Pool Receivables and the Related Security and Collections and other proceeds
with respect thereto, and a first priority perfected security interest in the
items described in SECTION 1.2(d), in each case free and clear of any Adverse
Claim, in favor of the Purchaser, including, without limitation, taking such
action to perfect, protect or more fully evidence the interest of the Purchaser
under the Agreement as the Purchaser, through the Agent, may request.
(e) SALES, LIENS, ETC. Except for retransfers of Receivables to the
Originators in accordance with the Transaction Documents, the Seller shall not
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect to, any or all
of its right, title or interest in, to or under, any item described in SECTION
1.2(d) (including without limitation the Seller's undivided interest in any
Receivable, Related Security, or Collections, or upon or with respect to any
account to which any Collections of any Receivables are sent), or assign any
right to receive income in respect of any items contemplated by this PARAGRAPH
(e).
(f) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as provided in the
Agreement and the Credit and Collection Policy, neither the Seller nor the
Servicer shall extend the maturity or adjust the Outstanding Balance or
otherwise modify the terms of any Pool Receivable in any material respect, or
amend, modify or waive in any material respect any term or condition of any
related Contract.
(g) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. Neither the
Seller nor the Servicer shall make any material change in the character of its
business, or make any change in the Credit and Collection Policy that would
adversely affect the collectibility of the Receivables Pool or the
enforceability of any related Contract or materially adversely affect the
ability of the Seller or Servicer to perform its obligations under any related
Contract or under the Agreement. Neither the Seller nor the Servicer shall make
any material change in the Credit and Collection Policy without the prior
written consent of the Agent.
(h) AUDITS. Each of the Seller and the Servicer shall, at the
Seller's or Servicer's expense, as applicable, at any time and from time to time
(but, so long as no
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Termination Event or Unmatured Termination Event has occurred and is continuing,
not more than twice during any calendar year), during regular business hours,
upon reasonable advance notice as requested by the Agent, permit the Agent, or
its agents or representatives, (i) to examine and make copies of and abstracts
from all books, records and documents (including, without limitation, computer
tapes and disks) in the possession or under the control of the Seller or the
Servicer relating to Receivables and the Related Security, including, without
limitation, the related Contracts and (ii) to visit the offices and properties
of the Seller and the Servicer for the purpose of examining such materials
described in CLAUSE (I) above, and to discuss matters relating to Receivables
and the Related Security or the Seller's or Servicer's performance hereunder or
under the Contracts with any of the officers, employees agents or contractors of
the Seller or the Servicer having knowledge of such matters.
(i) CHANGE IN LOCK-BOX BANKS, LOCK-BOX ACCOUNTS AND PAYMENT
INSTRUCTIONS TO OBLIGORS. Neither the Seller nor the Servicer shall add or
terminate any bank as a Lock-Box Bank or any account as a Lock-Box Account from
those listed in Schedule II to the Agreement, or make any change in its
instructions to Obligors regarding payments to be made to the Seller or the
Servicer or payments to be made to any Lock-Box Account (or related post office
box), unless the Agent shall have consented thereto in writing and the Agent
shall have received copies of all agreements and documents (including without
limitation Lock-Box Agreements) that it may request in connection therewith.
(j) DEPOSITS TO LOCK-BOX ACCOUNTS. The Seller shall, or shall cause
the Servicer to and the Servicer shall, (i) instruct all Obligors of Receivables
originated by Atrium or any other Originator to make payments of such
Receivables to one or more Lock-Box Accounts or to post office boxes to which
only Lock-Box Banks have access (and shall instruct the Lock-Box Banks to cause
all items and amounts relating to such Receivables received in such post office
boxes to be removed and deposited into a Lock-Box Account on a daily basis) and
(ii) deposit, or cause to be deposited, any Collections of Pool Receivables
(other than DE MINIMUS amounts, not to exceed (Five-Hundred Dollars) $500 at any
time, with respect to any local deposit account existing on the Closing Date
(other than any Lock-Box Account or the Collection Account) into which
Collections are deposited prior to their transfer to a Lock-Box Account, and
solely to cover returned items relating to such local deposit account) received
by the Seller or the Servicer into Lock-Box Accounts not later than one Business
Day (or, in the case of amounts received by the Seller or Servicer after 3:00
p.m. on any Business Day, the second Business Day following such receipt) after
receipt thereof. Neither the Seller nor the Servicer will deposit or otherwise
credit, or cause or permit to be so deposited or credited, to any Lock-Box
Account cash or cash proceeds other than Collections of Pool Receivables.
(k) MARKING OF RECORDS. At its expense, the Seller (or the Servicer
on its behalf) shall mark its master data processing records relating to Pool
Receivables and related Contracts, with a legend or other notation evidencing
that the undivided percentage ownership
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interests with regard to the Participation related to such Receivables and
related Contracts have been sold in accordance with the Agreement.
(l) REPORTING REQUIREMENTS. The Seller (or the Servicer on its
behalf) shall provide to the Agent (in multiple copies, if requested by the
Agent) the following:
(i) as soon as available and in any event within 60 days after
the end of the first three quarters of each fiscal year of the Seller
and Atrium (separately for each), consolidated balance sheets of the
Seller and Atrium, respectively, and their respective subsidiaries as
of the end of such quarter and statements of operations, cash flows and
shareholders' equity of the Seller and Atrium, respectively, and their
respective subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, certified
by the chief financial officer of the Seller and Atrium as applicable,
which certificate shall state that said consolidated financial
statements fairly present the consolidated financial condition, results
or operations and cash flows of such Person in accordance with
generally accepted accounting principles, consistently applied, as of
the end of, and for, such period (subject to normal year-end audit
adjustments), as applicable;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year of the Seller and Atrium (separately for
each), consolidated statements of operations, cash flows and
stockholder' equity of Seller and Atrium, respectively, and their
respective subsidiaries for such year and the related consolidated
balance sheet of Seller and Atrium, respectively, and their respective
subsidiaries as at the end of such year, accompanied by an opinion of
independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present the consolidated financial conditions,
results or operations and cash flows of Seller and Atrium as applicable
and their respective subsidiaries as at the end of, and for, such
fiscal year in accordance with generally accepted accounting principals
consistently applied;
(iii) as soon as available and in any event not later than each
Monday of each calendar week (or if such day is not a Business Day, the
next Succeeding Business Day), a report, substantially in the form of
the Servicer Report described in the next paragraph, summarizing the
Receivables activity pertinent to the transactions contemplated by the
Transaction Documents since the last such report.
(iv) as soon as available and in any event not later than the
Servicer Report Date, a Servicer Report as of the calendar month ended
immediately prior to such Servicer Report Date;
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(v) as soon as possible and in any event within two Business
Days after an officer of the Seller or Servicer obtains knowledge of
the occurrence of each Termination Event or Unmatured Termination
Event, a statement of the chief financial officer of the Seller or
Servicer setting forth details of such Termination Event or event and
the action that the Seller or Servicer has taken and proposes to take
with respect thereto;
(vi) promptly after the filing or receiving thereof, copies of
all reports and notices that the Seller or any Affiliate files under
ERISA with the Internal Revenue Service or the Pension Benefit Guaranty
Corporation or the U.S. Department of Labor or that the Seller or any
Affiliate receives from any of the foregoing or from any multiemployer
plan (within the meaning of Section 4001(a)(3) of ERISA) to which the
Seller or any Affiliate is or was, within the preceding five years, a
contributing employer;
(vii) at least thirty days prior to any change in the Seller's
name or any other change requiring the amendment of UCC financing
statements, a notice setting forth such changes and the effective date
thereof;
(viii) such other information respecting the Receivables or the
condition or operations, financial or otherwise, of the Seller, the
Servicer or any of their respective Affiliates as the Agent may from
time to time reasonably request;
(ix) promptly after a Responsible Officer of the Seller or
Servicer obtains notice or knowledge thereof, notice of any litigation,
investigation or proceeding which may exist at any time between the
Seller or the Servicer, on the one hand, and any other Person if not
cured or if adversely determined, as the case may be, would be
reasonably expected to have a material adverse effect on the business,
operations, property or financial or other condition of the Seller, any
Originator or the Servicer, as the case may be; and
(x) promptly after a Responsible Officer of the Seller obtains
knowledge thereof upon the public disclosure thereof, notice of a
material adverse change in the business, operations, property or
financial or other condition of the Seller, any Originator or the
Servicer.
(m) SEPARATE CORPORATE EXISTENCE. Each of the Seller and the
Servicer hereby acknowledges that Purchaser and the Agent are entering into the
transactions contemplated by the Agreement and the Transaction Documents in
reliance upon the Seller's identity as a legal entity separate from Servicer,
Atrium and the Originators. Therefore, from and after the date hereof, the
Seller and the Servicer shall take all reasonable steps to continue the Seller's
identity as a separate legal entity and to make it apparent to third Persons
that the Seller is an entity with assets and liabilities distinct from those of
Servicer, Atrium, the Originators and any other Person, and is not a division of
Servicer, Atrium or the Originators or any other Person. Without
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limiting the generality of the foregoing and in addition to and consistent with
the covenant set forth in PARAGRAPH (a) of this EXHIBIT IV, the Seller and the
Servicer shall take such actions as shall be required in order that:
(i) The Seller will be a limited purpose corporation whose sole
activities are restricted in its certificate of incorporation to
purchasing Receivables from the Originators, entering into agreements
for the servicing of such Receivables, selling undivided interests in
such Receivables and conducting such other activities as it deems
necessary or appropriate to carry out its primary purpose;
(ii) Not less than one member of Seller's Board of Directors
(the "INDEPENDENT DIRECTORS") shall be individuals who are not (except
as members of Seller's Board of Directors) direct, indirect or
beneficial stockholders, officers, directors, employees, affiliates,
associates, customers or suppliers of Seller, Servicer or any
Originator or any of their respective Affiliates. The Seller's Board of
Directors shall not approve, or take any other action to cause the
commencement of a voluntary case or other proceeding with respect to
the Seller under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law, or the appointment
of or taking possession by, a receiver, liquidator, assignee, trustee,
custodian, or other similar official for the Seller unless in each case
the Independent Directors shall approve the taking of such action in
writing prior to the taking of such action. The Independent Directors'
fiduciary duty shall be to the Seller (and its creditors) and not to
the Seller's shareholders in respect of any decision of the type
described in the preceding sentence. In the event an Independent
Director resigns or otherwise ceases to be a director of the Seller,
there shall be selected a replacement Independent Director who shall
not be an individual within the proscriptions of the first sentence of
this CLAUSE (II) or any individual who has any other type of
professional relationship with Seller, Servicer or any Originator or
any of their respective Affiliates or any management personnel of any
such Person or Affiliate and who shall be (x) a tenured professor at a
business or law school, (y) a retired judge or (z) an established
independent member of the business community, having a sound reputation
and experience relative to the duties to be performed by such
individual as an Independent Director;
(iii) No Independent Director shall at any time serve as a
trustee in bankruptcy for any Originator or any Affiliate thereof;
(iv) Any employee, consultant or agent of the Seller will be
compensated from the Seller's own bank accounts for services provided
to the Seller except as provided herein in respect of the Servicer's
Fee. The Seller will engage no agents other than a servicer for the
Receivables, which servicer will be fully compensated for its services
to the Seller by payment of the Servicer's Fee;
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(v) The Seller will contract with the Servicer to perform for
the Seller all operations required on a daily basis to service its
Receivables. The Seller will pay the Servicer a monthly fee based on
the level of Receivables being managed by the Servicer. The Seller will
not incur any material indirect or overhead expenses for items shared
between the Seller and the Originators or any Affiliate thereof which
are not reflected in the Servicer's Fee or otherwise appropriately
allocated between such Persons based on usage in accordance with the
next sentence. To the extent, if any, that the Seller and the
Originators or any Affiliate thereof share items of expenses not
reflected in the Servicer's Fee, such as legal, auditing and other
professional services, such expenses will be allocated to the extent
practical on the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to the actual use or the
value of services rendered, it being understood that Atrium shall pay
all expenses relating to the preparation, negotiation, execution and
delivery of the Transaction Documents, including, without limitation,
legal and other fees;
(vi) The Seller's operating expenses will not be paid by any
Originator or any Affiliate thereof unless the Seller shall have agreed
in writing with such Person promptly to reimburse such Person for any
such payments;
(vii) The Seller will have its own separate mailing address and
stationery;
(viii) The Seller's books and records will be maintained
separately from those of Servicer, Atrium and the Originators or any
respective Affiliate thereof;
(ix) Any financial statements of Servicer, Atrium, any
Originator or any respective Affiliate thereof which are consolidated
to include the Seller will contain detailed notes clearly stating that
the Seller is a separate corporate entity and has sold ownership
interests in the Seller's accounts receivable;
(x) The Seller's assets will be maintained in a manner that
identifies and segregates them from those of Servicer, Atrium, the
Originators and any of their respective Affiliates;
(xi) The Seller will strictly observe corporate formalities in
its dealings with the Servicer, Atrium, the Originators and any
respective Affiliate thereof, and funds or other assets of the Seller
will not be commingled with those of Servicer, Atrium, the Originators
or any respective Affiliate thereof. The Seller shall not maintain
joint bank accounts or other depository accounts to which Servicer,
Atrium, the Originators or any respective Affiliate thereof (other than
Atrium in its capacity as Servicer) has independent access. None of the
Seller's funds will at any time be pooled with any funds of Servicer,
Atrium, the Originators or any respective Affiliate thereof;
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(xii) The Seller shall pay to the Originators the marginal
increase (or, in the absence of such increase, the market amount of its
portion) of the premium payable with respect to any insurance policy
that covers the Seller and any Affiliate thereof, but the Seller shall
not, directly or indirectly, be named or enter into an agreement to be
named, as a direct or contingent beneficiary or loss payee, under any
such insurance policy, with respect to any amounts payable due to
occurrences or events related to Servicer, Atrium, the Originators or
any respective Affiliate thereof; and
(xiii) The Seller will maintain arm's length relationships with
Servicer, Atrium, the Originators and any respective Affiliate thereof
and, except as contemplated by the Transaction Documents, will have no
other dealings, contractual, financial or otherwise, among themselves.
Any Originator or any Affiliate thereof that renders or otherwise
furnishes services to the Seller will be compensated by the Seller at
market rates for such services (except in the case of any Originator
acting as a Sub-Servicer whose fee is payable by the Servicer out of
the Servicing Fee). Neither the Seller nor any Originator or any
Affiliate thereof will be or will hold itself out to be responsible for
the debts of the other or the decisions or actions respecting the daily
business and affairs of the other.
(n) MERGERS, ACQUISITIONS, SALES, ETC.
(i) The Seller shall not:
(A) be a party to any merger or consolidation, or directly or
indirectly purchase or otherwise acquire, whether in one or a series
of transactions, all or substantially all of the assets or any stock
of any class of, or any partnership or joint venture interest in,
any other Person, or sell, transfer, assign, convey or lease any of
its property and assets (including, without limitation, any Pool
Receivable or any interest therein) other than pursuant to this
Agreement;
(B) make, incur or suffer to exist an investment in, equity
contribution to, loan, credit or advance to, or payment obligation
in respect of the deferred purchase price of property from, any
other Person, except for obligations incurred pursuant to the
Transaction Documents; or
(C) create any direct or indirect Subsidiary or otherwise
acquire direct or indirect ownership of any equity interests in any
other Person.
(o) RESTRICTED PAYMENTS.
(i) GENERAL RESTRICTION. Except in accordance with this
SUBPARAGRAPH (II) below, the Seller shall not (A) purchase or redeem
any shares of its capital stock,
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(B) declare or pay any dividend or set aside any funds for any such
purpose, (C) prepay, purchase or redeem any subordinated indebtedness
of the Seller, (D) lend or advance any funds or (E) repay any loans or
advances to, for or from any Originator. Actions of the type described
in this CLAUSE (i) are herein collectively called "RESTRICTED
PAYMENTS".
(ii) TYPES OF PERMITTED PAYMENTS. Subject to the limitations set
forth in CLAUSE (iii) below, the Seller may make Restricted Payments so
long as such Restricted Payments are made only to the Originators and
only in one or more of the following ways:
(A) Seller may make cash payments (including prepayments) on the
Company Notes in accordance with their terms; and
(B) if no amounts are then outstanding under the Company Notes,
the Seller may declare and pay Dividends.
(iii) SPECIFIC RESTRICTIONS. The Seller may make Restricted
Payments only out of Collections paid or released to the Seller
pursuant to SECTIONS 1.4. Furthermore, the Seller shall not pay, make
or declare:
(A) any Dividend if, after giving effect thereto, Seller's
Tangible Net Worth would be less than $15,000,000; or
(B) any Restricted Payment (including any Dividend) if, after
giving effect thereto, any Termination Event or Unmatured
Termination Event shall have occurred and be continuing.
(p) USE OF SELLER'S SHARE OF COLLECTIONS. The Seller shall apply its
share of Collections to make payments in the following order of priority: FIRST,
the payment of its expenses (including, without limitation, the obligations
payable to Purchaser, the Affected Persons and the Agent under the Transaction
Documents), SECOND, the payment of accrued and unpaid interest on the Company
Notes, THIRD, the payment of the outstanding principal amount of the Company
Notes, and FOURTH, other legal and valid corporate purposes.
(q) AMENDMENTS TO CERTAIN DOCUMENTS.
(i) The Seller shall not amend, supplement, amend and restate,
or otherwise modify the Purchase and Sale Agreement, the Company Notes,
any other document executed under the Purchase and Sale Agreement, the
Collection Account Agreement, the Lock-Box Agreements or the Seller's
certificate of incorporation or by-laws or any other Transaction
Document to which it is a party, except (A) in accordance
IV-9
<Page>
with the terms of such document, instrument or agreement and (B) with
the advance written consent of the Agent.
(ii) The Seller shall not enter into or otherwise become bound
after the Closing Date by, any agreement, instrument, document or other
arrangement that restricts its right to amend, supplement, amend and
restate or otherwise modify, or to extend or renew, or to waive any
right under, this Agreement or any other Transaction Document.
(r) INCURRENCE OF INDEBTEDNESS. The Seller shall not (i) create,
incur or permit to exist, any indebtedness or (ii) cause or permit to be issued
for its account any letters of credit or bankers' acceptances, except for
indebtedness incurred pursuant to the Company Notes or incurred pursuant to or
in connection with the Transaction Documents or otherwise permitted therein.
(s) FINANCIAL COVENANTS.
(i) MAXIMUM TOTAL LEVERAGE RATIO. (A) With regard
to the Servicer (on a consolidated basis), the Total Leverage Ratio shall not,
as of any Test Date during any period set forth in the table below, exceed the
ratio set forth opposite such period in the table below:
<Table>
<Caption>
PERIOD RATIO
-------- -------
7/31/01-9/30/01 5.50x
10/1/01-9/30/02 5.00x
10/1/02-9/30/03 4.50x
10/1/03 and thereafter 4.00x
</Table>
(ii) MAXIMUM SENIOR LEVERAGE RATIO. (A) With regard to the
Servicer (on a consolidated basis), the Senior Leverage Ratio shall not, as of
any Test Date during any period set forth in the table below, exceed the ratio
set forth opposite such period in the table below:
<Table>
<Caption>
PERIOD RATIO
-------- -------
7/31/01-9/30/01 3.00x
10/1/01-9/30/02 2.75x
10/1/02-9/30/03 2.50x
10/1/03 and thereafter 2.25x
</Table>
(iii) MINIMUM INTEREST COVERAGE RATIO. With regard to the
Servicer (on a consolidated basis) the Interest Coverage Ratio shall not, as of
any Test Date, during any period
IV-10
<Page>
set forth in the table below, be less than the ratio set forth opposite such
period in the table below:
<Table>
<Caption>
PERIOD RATIO
-------- -------
07/31/01 - 12/30/01 1.50x
12/31/01 - 12/30/02 1.75x
12/31/02 - 12/30/03 2.00x
12/31/03 - 12/30/04 2.25x
12/31/04 and thereafter 2.50x
</Table>
(iv) MINIMUM FIXED CHARGE COVERAGE RATIO. With regard to the
Servicer (on a consolidated basis), the Fixed Charge Coverage Ratio shall not,
as of any Test Date during any period set forth in the table below, be less than
the ratio set forth opposite such period in the table below:
<Table>
<Caption>
PERIOD RATIO
-------- -------
7/31/01-9/30/01 1.05x
10/1/01-9/30/02 1.10x
10/1/02-9/30/03 1.20x
10/1/03 and thereafter 1.30x
</Table>
(v) CAPITAL EXPENDITURES. The Servicer shall not permit the
aggregate amount of Capital Expenditures made by it and its subsidiaries to
exceed (a) $16.0 million in the aggregate for the fiscal year ended December 31,
2001, (b) $17.0 million in the aggregate for the fiscal year ended December 31,
2002, (c) $18.0 million for the fiscal year ended December 31, 2003, and (d)
$20.0 million for any fiscal year thereafter; PROVIDED, HOWEVER, that (x) if the
aggregate amount of Capital Expenditures for any fiscal year shall be less than
the amount permitted for such fiscal year (before giving effect to any
carryover), then the shortfall may be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not any other) fiscal
year if the amount expended in such fiscal year would not exceed 125% of the
amount permitted for such fiscal year (before any carryover) and (y) in
determining whether any amount is available for carryover, the amount expended
in any fiscal year shall first be deemed to be from the amount allocated to such
year before any carryover.
(vi) JUNE 30, 2001 TEST DATE. The Servicer shall not breach any
of the financial covenants set forth in SECTION 9.11 of the Credit Agreement (as
in effect on the date hereof) for the Test Date ended June 30, 2001.
IV-11
<Page>
EXHIBIT V
TERMINATION EVENTS
Each of the following shall be a "Termination Event":
(a) The Servicer, any Originator or the Seller shall fail to
make when due any payment or deposit to be made by it under the Agreement or any
other Transaction Document and such failure shall continue unremedied for two or
more Business Days; or
(b) Atrium (or any Affiliate thereof) shall fail to transfer to
any successor Servicer when required any rights, pursuant to the Agreement,
which Atrium (or such Affiliate) then has as Servicer; or
(c) Any representation or warranty made or deemed made by the
Seller, any Originator or the Servicer (or any of their respective officers)
under or in connection with the Agreement or any other Transaction Document or
any information or report delivered by the Seller or the Servicer pursuant to
the Agreement shall prove to have been incorrect or untrue in any material
respect when made or deemed made or delivered; or
(d) The Seller, any Originator or the Servicer shall fail to
perform or observe any other term, covenant or agreement contained in the
Agreement or any other Transaction Document on its part to be performed or
observed and any such failure shall remain unremedied for 30 days after the
Seller, any Originator or Servicer, as applicable, has notice or knowledge
thereof (or, with respect to a failure to deliver the Servicer Report pursuant
to the Agreement, such failure shall remain unremedied for 2 Business Days); or
(e) The Seller, Atrium or any Originator shall fail to pay any
principal of or premium or interest on any of its Debt which is outstanding in a
principal amount of at least $5,000,000 in the aggregate when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement, mortgage, indenture
or instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement, mortgage, indenture or instrument relating to
any such Debt and shall continue after the applicable grace period, if any,
specified in such agreement, mortgage, indenture or instrument, if the effect of
such event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to repay, redeem,
purchase or defease such Debt shall be required to be made, in each case prior
to the stated maturity thereof; or
(f) The Agreement or any purchase or any reinvestment pursuant
to the Agreement shall for any reason (other than pursuant to the terms hereof)
(i) cease to create, or the Participation shall for any reason cease to be, a
valid and enforceable perfected undivided percentage ownership interest to the
extent of the Participation in each Pool Receivable and the Related Security and
Collections and other proceeds with respect thereto, free and clear of any
Adverse Claim or (ii) cease to create with respect to the items described in
SECTION 1.2(d), or the
V-1
<Page>
interest of the Purchaser with respect to such items shall cease to be, a valid
and enforceable first priority perfected security interest, free and clear of
any Adverse Claim; or
(g) The Seller, Atrium or any Originator shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally as such debts become due, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be instituted
by or against the Seller, Atrium or any Originator seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either (a) such proceeding
shall remain undismissed or unstayed for a period of 60 days, or (b) in any such
proceeding, there is entered an order for relief against, or the there is
appointed a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property); or Seller, Atrium or any Originator
shall take any corporate action to authorize any of the actions set forth above
in this PARAGRAPH (g); or
(h) As of the last day of any calendar month (i) the Default
Ratio at such time shall exceed 6.5%, (ii) the arithmetic average for the most
recent three calendar months of (A) the Default Ratios shall exceed 5.5%, (B)
the Delinquency Ratios shall exceed 7.0% or (C) the Dilution Ratios shall exceed
6.0%, (iii) the arithmetic average for the most recent twelve calendar months of
the Loss-to-Liquidation Ratios shall exceed 1.0%, and (iv) the senior implied
rating assigned to Atrium debt by the Rating Agencies shall be, with regard to
Standard & Poor's, no less than B, and with regard to Moody's, no less than B2.
(i) The Participation shall exceed 100% and such condition shall
continue unremedied for two Business Days; or
(j) A Change in Control shall occur; or
(k) The Internal Revenue Service shall file notice of a non
de-minimus lien (or any other lien that is either with respect to claims in
excess of $500,000 or could be reasonably expected to have a Material Adverse
Effect) pursuant to Section 6323 of the Internal Revenue Code with regard to any
assets of Seller or any Originator and such lien or any other lien filed
thereunder shall not have been released within thirty Business Days, or the
Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to
Section 4068 of ERISA with regard to any of the assets of Seller or any
Originator and such lien shall not have been released within ten Business Days;
or
(l) Seller's Tangible Net Worth shall be less than $15,000,000.
V-2
<Page>
EXHIBIT VI
SPECIAL OBLIGORS
1. Home Depot, Inc. 10% (so long as not below BBB+/Baa1, by S&P and
Moody's, respectively)
2. Lowes Companies, Inc. 12% (so long as not below BBB+/Baa1, by S&P and
Moody's, respectively)
3. Builders FirstSource, Inc. 4%
VI-1
<Page>
EXHIBIT VII
SUPPLEMENTAL REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in the
Exhibits III and IV of the Receivables Purchase Agreement, to induce the
Purchaser and the Agent to enter into the Receivables Purchase Agreement and, in
the case of Purchaser, to purchase the Participation, the Seller hereby
represents, warrants, and covenants as follows:
A. THE RECEIVABLES.
1. The Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the Receivables in favor of the
Purchaser, which security interest is prior to all other Adverse
Claims, and is enforceable as such as against creditors of and
purchasers from the Seller.
2. The Receivables constitute either "accounts," "general intangibles"
or "tangible chattel paper" within the meaning of the applicable UCC.
3. CREATION. The Seller owns and has good and marketable title to the
Receivables free and clear of any Adverse Claim.
4. PERFECTION. Seller has caused (and will cause each Originator to
cause), within ten days after the Closing Date, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
sale of the Receivables from each Originator to the Seller pursuant to
the Purchase and Sale Agreement, and the sale and security interest
therein from the Seller to the Purchaser under the Agreement, to the
extent that such collateral constitutes "accounts," "general
intangibles," or "tangible chattel paper."
5. TANGIBLE CHATTEL PAPER. With respect to any Receivables that
constitute "tangible chattel paper", if any, the Seller (or the
Servicer on its behalf) has in its possession the original copies of
such tangible chattel paper that constitute or evidence such
Receivables, and the Seller has caused (and will cause each Originator
to cause), within ten days after the Closing Date, the filing of
financing statements described in paragraph 4, above, each of which
will contain a statement that: "A purchase of or security interest in
any collateral described in this financing statement will violate the
rights of the Purchaser." The Receivables to the extent they are
evidenced by "tangible chattel paper" do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Seller or the Purchaser.
B. THE LOCK-BOX ACCOUNTS AND THE COLLECTION ACCOUNT.
6. Each of the Lock-Box Accounts and the Collection Account constitute
"deposit accounts" within the meaning of the applicable UCC.
7. CREATION. The Seller owns and has good and marketable title to the
Lock-Box Accounts and the Collection Account free and clear of any
Adverse Claim.
8. PERFECTION. The Seller has delivered to the Purchaser a fully executed
Lock-Box Agreement relating to each Lock-Box Account and the Collection
Account Agreement relating to the Collection Account, in each case,
pursuant to which the applicable Lock-Box Bank and/or Collection
Account Bank, as the case may be, has agreed, following the occurrence
and continuation of a Termination Event, to comply with all
instructions
VII-1
<Page>
originated by the Agent (on behalf of the Purchaser) directing the
disposition of funds in such Lock-Box Account or the Collection
Account, as the case may be, without further consent by the Seller or
the Servicer.
9. The Seller has established procedures such that any Permitted
Investments purchased with funds (other than funds remitted to the
Seller in accordance with Section 1.4 of this Agreement) withdrawn from
the Lock-Box Accounts and/or the Collection Account will be either (i)
credited to a "securities account" (within the meaning of the
applicable UCC) over which the Purchaser will have a first priority
perfected security interest, (ii) purchased in the name of the
Purchaser, or (iii) held in another manner sufficient to establish the
Purchaser's first priority perfected security interest over such
Permitted Investments.
C. PRIORITY.
10. Other than the transfer of the Receivables to Seller and Purchaser
under the Purchase and Sale Agreement and this Agreement, respectively,
and/or the security interest granted to the Seller and the Purchaser
pursuant to the Purchase and Sale Agreement and this Agreement,
respectively, neither Seller nor any Originator has pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Receivables or any Lock-Box Account, the Collection Account or any
subaccount thereof, except for any such pledge, grant or other
conveyance which has been released or terminated. Neither the Seller
nor any Originator has authorized the filing of, or is aware of any
financing statements against either the Seller or such Originator that
include a description of Receivables or any Lock-Box Account, the
Collection Account or any subaccount thereof, other than any financing
statement (i) relating to the sale thereof by the Originators to Seller
under the Purchase and Sale Agreement, (ii) relating to the security
interest granted to Purchaser under this Agreement, or (iii) that has
been released or terminated.
11. The Seller is not is aware of any judgment, ERISA or tax lien
filings against either the Seller or any Originator.
12. Neither the Lock-Box Accounts nor the Collection Account are not in the
name of any person other than the Seller or the Purchaser. Neither the
Seller nor the Servicer has consented to any bank maintaining such
accounts to comply with instructions of any person other than the
Purchaser or the Agent on its behalf.
13. SURVIVAL OF SUPPLEMENTAL REPRESENTATIONS. Notwithstanding any other
provision of the Agreement or any other Transaction Document, the
representations contained in this Exhibit VII shall be continuing, and
remain in full force and effect until such time as the Investment and
all other obligations under the Agreement have been finally and fully
paid and performed.
14. NO WAIVER. The parties to the Agreement: (i) shall not, without
obtaining a confirmation of the then-current rating of the Notes, waive
any of the representations set forth in this Exhibit VII; (ii) shall
provide the Ratings Agencies with prompt written notice of any breach
of any representations set forth in this Exhibit VII, and shall not,
without obtaining a confirmation of the then-current rating of the
Notes (as determined after any
VII-2
<Page>
adjustment or withdrawal of the ratings following notice of such
breach) waive a breach of any of the representations set forth in this
Exhibit VII.
15. SERVICER TO MAINTAIN PERFECTION AND PRIORITY. In order to evidence
the interests of Purchaser under this Agreement, the Servicer shall,
from time to time take such action, or execute and deliver such
instruments (other than filing financing statements) as may be
necessary or advisable (including, without limitation, such actions as
are reasonably requested by the Purchaser or the Agent) to maintain and
perfect, as a first-priority interest, the Purchaser's security
interest in the Receivables, Related Security and Collections. The
Servicer shall, from time to time and within the time limits
established by law, prepare and present to the Agent for the Agent's
authorization and approval all financing statements, amendments,
continuations or initial financing statements in lieu of a continuation
statement, or other filings necessary to continue, maintain and perfect
the Purchaser's security interest as a first-priority interest. The
Agent's approval of such filings shall authorize the Servicer to file
such financing statements under the UCC without the signature of the
Seller, any Originator or the Purchaser where allowed by applicable
law. Notwithstanding anything else in the Transaction Documents to the
contrary, the Servicer shall not have any authority to file a
termination, partial termination, release, partial release, or any
amendment that deletes the name of a debtor or excludes collateral of
any such financing statements, without the prior written consent of the
Agent.
VII-3
<Page>
SCHEDULE I
CREDIT AND COLLECTION POLICY
Schedule I-1
<Page>
SCHEDULE II
LOCK-BOX BANK AND LOCK-BOX ACCOUNT
LOCK-BOX BANK LOCK-BOX ACCOUNT
Schedule II-1
<Page>
SCHEDULE III
TRADE NAMES
Schedule III-1
<Page>
ANNEX A
FORM OF LOCK-BOX AGREEMENT
[Letterhead of Seller]
LOCK-BOX AGREEMENT
___________, 200__
[Name and Address of
Lock-Box Bank]
Gentlemen:
Reference is made to our [lock-box](1/) account[s] no[s]. maintained
with you (the "Account[s]"). Pursuant to a Receivables Purchase Agreement dated
as of ______________, 200_ among [__], as Seller, [__], as Servicer, Fairway
Finance Corporation, as purchaser together with its successors and assigns, in
such capacity, the "Purchaser"), and BMO Nesbitt Burns Corp., as agent for the
Purchaser (the "Agent"), we have assigned and/or may hereafter assign to the
Purchaser one or more undivided percentage ownership interests in accounts,
chattel papers, instruments or general intangibles (collectively, "Receivables")
with respect to which payments are or may hereafter be made to the Account[s],
and have granted to the Purchaser a security interest in such Receivables, the
Account[s], amounts on deposit therein and related property. Your execution of
this letter agreement is a condition precedent to our continued maintenance of
the Account[s] with you.
We hereby transfer exclusive ownership and control of the Account[s] to
the Agent on behalf of the Purchaser, subject only to the condition subsequent
that the Agent shall have given you notice of its election to assume such
ownership and control, which notice may be in the form attached hereto as
Exhibit A or in any other form that gives you reasonable notice of such
election. At all times during the term of this Agreement prior to your receipt
of such Agent's Notice, you shall automatically and without notice to or consent
from us or the Servicer transfer all funds received by you in the Accounts to
[Collection Account Bank], Account No. [ ], ABA#[ ], (the "Collection Account")
by wire transfer in same day funds within one day of its receipt thereof. You
shall not, at any time during the term of this Agreement (whether before or
after the date you receive any such Agent's Notice), honor any request or
direction for withdrawal,
- ----------
(1/) Delete in the case of direct wire transfer accounts.
Annex A-1
<Page>
payment, transfer or other instructions (collectively, "instructions") received
from us or the Servicer and concerning the Account and, at no time during the
term of this Agreement, shall we or the Servicer have any right or ability to
access or withdraw or transfer funds from the Accounts.
We hereby irrevocably instruct you, at all times from and after the
date of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account[s] directly
to the Collection Account in accordance with the immediately preceding
paragraph, or otherwise in accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account[s], including, without limitation,
(a) the right to specify when payments are to be made out of or in connection
with the Account[s] (it being understood that at all times during the term of
this Agreement and prior to your receipt of Agent's Notice, all amounts received
in the Accounts will be transferred to the Collection Account pursuant to the
second paragraph of this Agreement, and (b) the right to require preparation of
duplicate monthly bank statements on the Account[s] for the Agent's audit
purposes and mailing of such statements directly to an address specified by the
Agent.
Notice from the Agent may be personally served or sent by Telex,
facsimile or U.S. mail, certified return receipt requested, to the address,
[Telex] or facsimile number set forth under your signature to this letter
agreement (or to such other address, [Telex] or facsimile number as to which you
shall notify the Agent in writing). If notice is given by [Telex] or facsimile,
it will be deemed to have been received when the notice is sent [and the
answerback is received (in the case of Telex)] or receipt is confirmed by
telephone or other electronic means (in the case of facsimile). All other
notices will be deemed to have been received when actually received or, in the
case of personal delivery, delivered.
By executing this letter agreement, you acknowledge and consent to the
existence of the Agent's right to ownership and control of the Account[s] and
the Purchaser's security interest in the Account[s] and amounts from time to
time on deposit therein and agree that from the date hereof the Account[s] shall
be maintained by you for the benefit of, and amounts from time to time therein
held by you as agent for, the Agent on the terms provided herein. The Account[s]
[is/are] to be titled "[Name of Seller] and BMO Nesbitt Burns Corp. as the Agent
for the Purchaser, its successors and assigns, as their interests may appear."
Except as otherwise provided in this letter agreement, payments to the
Account[s] are to be processed in accordance with the standard procedures
currently in effect. All service charges and fees with respect to the Account[s]
shall continue to be payable by us as under the arrangements currently in
effect.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other person or entity asserting, claiming or exercising, any right of set-off,
banker's lien or other purported form of claim with respect to [any of] the
Account[s] or any funds from time to time therein. Except for your right to
payment of your service charges
Annex A-2
<Page>
and fees and to make deductions for returned items, you shall have no rights in
the Account[s] or funds therein. To the extent you may ever have such rights,
you hereby expressly subordinate all such rights to all rights of the Agent.
You may terminate this letter agreement by cancelling the Account[s]
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming [mail addressed to] [wire transfers to] the Account[s] received after
such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Purchase Agreement pursuant to
which this letter agreement was obtained is no longer in effect. Except as
otherwise provided in this paragraph, this letter agreement may not be
terminated or amended without the prior written consent of the Agent. This
letter agreement may be executed in any number of counterparts, and by the
parties hereto on separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
No party to this Agreement shall institute or join any other person or
entity in instituting against the Seller or the Purchaser any case pursuant to
Title 1 of the United States Code, or any similar case under applicable state or
federal law prior to the date which is one year and one day after all
obligations of the Seller to the Purchaser have been paid in full (or, in the
case of the Purchaser, after all commercial paper notes of the Purchaser have
been paid in full).
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing the two copies of this letter agreement enclosed herewith
in the space provided below, sending one such signed copy to the Agent at its
address provided above and returning the other signed copy to us.
Very truly yours,
[NAME OF SELLER]
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Acknowledged and agreed to
as of the date first
written above:
BMO NESBITT BURNS CORP., as Agent
Annex A-3
<Page>
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
115 S. LaSalle
Chicago, Illinois 60603
Attention: Scott Franklin
Telephone: (312) 461-2929
Facsimile: (312) 293-4908
Annex A-4
<Page>
[NAME OF LOCK-BOX BANK]
By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
Address for notice:
Attention:
Telex No.:
(Answerback:)
Telephone:
Facsimile:
Annex A-5
<Page>
EXHIBIT A to
Lock-Box Agreement
[BMO Nesbitt Burns Corp.]
[Name and Address
of Lock-Box Bank]
Re: [Name of Seller]
[LOCK-BOX](*/) ACCOUNT NO[s]. [AND ]
----------- ------------------------------
Gentlemen:
Reference is made to the letter agreement dated July [ ], 2001 (the
"Letter Agreement") among [Name of Seller],[Name of Servicer] as Servicer,
Fairway Finance Corporation (the "Purchaser"), the undersigned, as Agent and you
concerning the above described [lock-box]* account[s] (the "Account[s]"). We
hereby give you notice of our assumption of ownership and control of the
Account[s] as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the ACCOUNT[s] [directly to the undersigned, at [our address
set forth above], for the account of the Purchaser (account no.____)].
[other instructions]
Very truly yours,
BMO NESBITT BURNS CORP., as Agent
By:
--------------------------------
Name:
Title:
By:
---------------------------------
- ----------
(*/) Delete in the case of direct wire transfer accounts.
Annex A-6
<Page>
Name:
Title:
115 S. LaSalle
Chicago, Illinois 60603
Attention: Scott Franklin
Telephone: (312) 461-2929
Facsimile: (312) 293-4908
Annex A-7
<Page>
ANNEX B
FORM OF NOTICE OF PURCHASE
Annex B-1
<Page>
ANNEX C
FORM OF SERVICER REPORT
Annex C-1
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ANNEX D
GENERAL TERMS OF PERMITTED RECEIVABLES TRANSACTION
ORIGINATORS: Atrium Companies, Inc. ("Atrium") and/or its' subsidiaries
TRANSFEROR: A special purpose, bankruptcy remote entity,
Atrium Funding Corp., ("Atrium Funding" and the "SPC")
established solely for the purposes outlined in this
discussion term sheet. Atrium Funding will (i) satisfy certain
criteria acceptable to the Agent designed to ensure that the
assets and liabilities of SPC will not be substantively
consolidated with those of the Originators and (ii) purchase
Receivables and related property from the Originators in "true
sale" transactions as described below.
SERVICER: Atrium will provide its unconditional obligation to
act as Servicer to administer the Receivables on the Buyers'
behalf until the Receivables have been collected in full.
Provisions will be made for revocation of Atrium's role as
Servicer upon the occurrence of a servicer default.
SUB-SERVICERS: TBD, if necessary.
FACILITY: Purchases of an undivided ownership interests in a
revolving pool of domestic trade receivables ("Receivables")
generated by the Originators and transferred to Atrium
Funding. The transfer between the Originators and Atrium
Funding will be characterized as legal true sales (discount of
receivables at fair market value) supported by appropriate
legal opinions to that effect.
The Originators will sell the Receivables in existence on the
closing date and arising on each day thereafter to the SPC
pursuant to Purchase and Sale Agreements. The SPC will then
transfer Receivables to the Buyers pursuant to a Receivables
Purchase Agreement or incur debt secured by the Receivables.
BUYERS: "To be named", a multi-seller asset backed
commercial paper conduit administered by "to be
named", other multi-seller asset backed
commercial paper conduits, collectively the
"Purchasers", and/or the respective Liquidity
Providers.
Annex D-1
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MAXIMUM
NET INVESTMENT: $50,000,000
RPA TERM: The term of the underlying RPA will be three
years, subject to the availability of the supporting
liquidity facility.
OBLIGORS: A diversified pool of customers of the Originators.
SURETY PROVIDERS: MBIA, or other AAA rated mono-line insurance company
will provide a 100% wrap on the facility, for the
timely payment of interest and the ultimate payment
of principal. The Surety Provider will also benefit
from the overcollateralization provided by the
transferor.
ADMINISTRATIVE
AGENT: To be named.
LIQUIDITY PROVIDERS: A1/P1 rated institutions.
LIQUIDITY TERM: The liquidity facilities provided by each
financial institution will be available on a
committed basis for up to 364 days. The liquidity
facility can be extended for additional periods
not to exceed 364 days from the extension date
upon the mutual consent of the Originator,
Transferor, Buyers and the Liquidity Providers.
PURCHASE AND SALE AGREEMENT