EXHIBIT 10.4
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT, dated as of December 22, 2004 (as amended,
supplemented, amended and restated or otherwise modified from time to time, this
"Amendment"), is made by and among ASSOCIATED MATERIALS INCORPORATED, a
corporation organized and existing under the laws of Delaware ("AMI" or the
"U.S. Borrower"), GENTEK BUILDING PRODUCTS LIMITED, a corporation organized and
existing under the laws of Ontario, Canada ("Gentek" or the "Canadian Borrower"
and, together with the U.S. Borrower, each a "Borrower" and collectively the
"Borrowers"), ASSOCIATED MATERIALS HOLDINGS INC., a corporation organized and
existing under the laws of Delaware ("Holdings"), AMH HOLDINGS, INC., a
corporation organized and existing under the laws of Delaware ("Superholdco"),
the various financial institutions and other Persons with a Commitment under the
Second Amended and Restated Credit Agreement (as defined below) (the "Lenders"),
UBS AG, STAMFORD BRANCH, as administrative agent for the U.S. facility (in such
capacity, the "U.S. Administrative Agent"), Canadian Imperial Bank of Commerce,
as administrative agent for the Canadian Revolving Loan Lenders under the
Canadian facility (in such capacity, the "Canadian Administrative Agent" and,
together with the U.S. Administrative Agent, the "Administrative Agents"),
CITIGROUP GLOBAL MARKETS INC., as syndication agent (in such capacity, the
"Syndication Agent"), GENERAL ELECTRIC CAPITAL CORPORATION and NATIONAL CITY
BANK, as co-documentation agents (in such capacity, the "Co-Documentation
Agents"), and UBS SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC., as Joint
Lead Arrangers (in such capacity, the "Joint Lead Arrangers").
W I T N E S S E T H :
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WHEREAS, Superholdco and certain other parties named therein entered
into that certain stock purchase agreement, dated as of December 5, 2004, as
amended, supplemented or otherwise modified from time to time in accordance with
the provisions hereof and thereof (the "Stock Purchase Agreement") pursuant to
which certain affiliated entities of Investcorp S.A. ("Investcorp") and other
international investors will acquire, in the aggregate, a 50% voting and
economic interest in Superholdco (the "Equity Investment"), which in turn shall
be contributed to the equity of AMH Holdings II, Inc. ("Parentholdco") for 50%
of the voting and economic interest of Parentholdco (the "Recapitalization");
WHEREAS, AMI, Holdings, certain Lenders party thereto (the "Original
Lenders"), UBS Securities LLC and Credit Suisse First Boston Corporation, as
joint lead arrangers, Credit Suisse First Boston, Cayman Islands Branch, as
syndication agent, CIBC World Markets Corp., as documentation agent and UBS AG,
Stamford Branch, as administrative agent for the Original Lenders, entered into
that certain Amended and Restated Credit Agreement, dated as of August 29, 2003
and amended on March 19, 2004 (as further amended, supplemented or otherwise
modified from time to time prior to the date hereof, the "Original Credit
Agreement"), pursuant to which the Original Lenders made certain loans to the
Borrowers (the "Original Loans");
WHEREAS, the Obligations (as defined in the Original Credit Agreement,
hereinafter the "Original Obligations") of AMI and the other Obligors under the
Original Credit Agreement and the other Loan Documents (as defined in the
Original Credit Agreement, such
other Loan Documents hereinafter the "Original Collateral Documents") are
secured by certain collateral (hereinafter the "Original Collateral") and are
guaranteed or supported or otherwise benefited by the Original Collateral
Documents;
WHEREAS, immediately prior to the Amendment Effective Date, Term Loans
(as defined in the Original Credit Agreement) in the aggregate principal amount
of $133,000,000 were outstanding under the Original Credit Agreement (the
"Original Term Loans");
WHEREAS, the parties hereto wish to amend and restate the Original
Credit Agreement in its entirety to allow for transactions (collectively, the
"Transactions") which (a) provide for new senior secured term loans to the
Borrowers in an aggregate principal amount of $175,000,000 (a portion of which
shall be applied to the repayment of the Original Term Loans), (b) permit the
Equity Investment, (c) reduce by 0.50% the Applicable Margin with respect to
each Term Loan, (d) permit Holdings, Borrowers and subsidiaries to make certain
Restricted Payments to (1) so long as no Default then exists or would arise
therefrom, make regularly scheduled interest payments required to be made on the
Parentholdco Notes (as defined below) and (2) make payments of such other
amounts required to be paid after the fifth anniversary of the issuance of the
Parentholdco Notes to avoid any "applicable high yield discount obligations", in
each case to the extent such payments are permitted by the Senior Subordinated
Note Indenture and the Superholdco Senior Discount Note Indenture, (e) extend
the U.S. Revolving Loan Commitment Termination Date and the Canadian Revolving
Loan Commitment Termination Date to April 19, 2009, (f) permit the following
additional Restricted Payments: (x) a special bonus payment of $22.0 million
(the "Special Bonus") to the U.S. Borrower's management consisting of
approximately $14.0 million at the Amendment Effective Date and $8.0 million
thereafter and (y) Parentholdco dividend on its Common Stock of up to
$94,406,123 (the "Transactions Dividend") of which an aggregate amount of
$33,712,500 shall be payable in the form of one or more interest bearing
promissory notes of Parentholdco, and (g) privately place the Parentholdco Notes
without requiring a repayment of the Loans (as defined below), in each case, on
and subject to the terms and conditions of this Amendment and the Second Amended
and Restated Credit Agreement;
WHEREAS, the parties hereto intend that (a) the Original Obligations
which remain unpaid and outstanding as of the Amendment Effective Date shall
continue to exist under this Amendment on the terms set forth herein, (b) the
loans under the Original Credit Agreement (other than the Original Term Loans
repaid on the Amendment Effective Date) outstanding as of the date hereof shall
be Loans under and as defined in the Second Amended and Restated Credit
Agreement on the terms set forth therein, (c) any letters of credit outstanding
under the Original Credit Agreement as of the date hereof shall be U.S. Letters
of Credit under and as defined in the Second Amended and Restated Credit
Agreement and (d) the Original Collateral and the Original Collateral Documents
shall continue to secure, guarantee, support and otherwise benefit the Original
Obligations as well as the other Obligations of the Borrowers and the other
Obligors under the Second Amended and Restated Credit Agreement and the other
Loan Documents thereunder;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Administrative Agents" is defined in the preamble.
"Amendment" is defined in the preamble.
"Amendment Effective Date" is defined in Article III.
"AMI" is defined in the preamble.
"Authorized Officer" is defined in Section 3.3.
"Borrowers" is defined in the preamble.
"Canadian Administrative Agent" is defined in the preamble.
"Canadian Borrower" is defined in the preamble.
"Citigroup" means Citicorp North America, Inc. and/or any affiliate
thereof, including Citigroup Global Markets Inc.
"Co-Documentation Agents" is defined in the preamble.
"Commitment Letter" means that certain Commitment Letter, dated
December 6, 2004 among UBS Loan Finance LLC, UBS Securities LLC, Citicorp North
America, Inc., Citigroup Global Markets Inc., Superholdco and AMI.
"Gentek" is defined in the preamble.
"Holdings" is defined in the preamble.
"Initial Lenders" means UBS and Citigroup.
"Investcorp Investor Group" means, collectively, Investcorp, certain
affiliated entities and other international investors.
"Joint Lead Arrangers" is defined in the preamble.
"Lenders" is defined in the preamble.
"New Lenders" means the Lenders other than the Original Lenders.
"Original Collateral" is defined in the recitals hereto.
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"Original Collateral Documents" is defined in the recitals hereto.
"Original Credit Agreement" is defined in the recitals hereto.
"Original Lenders" is defined in the recitals hereto.
"Original Term Loans" is defined in the recitals hereto.
"Recapitalization" is defined in the recitals hereto.
"Second Amended and Restated Credit Agreement" is defined in Article
II.
"Syndication Agent" is defined in the preamble.
"UBS" means UBS Loan Finance LLC.
"U.S. Administrative Agent" is defined in the preamble.
"U.S. Borrower" is defined in the preamble.
SECTION 1.2 Other Definitions. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in the Second Amended
and Restated Credit Agreement shall have such meanings when used in this
Amendment.
ARTICLE II
SECOND AMENDMENT AND RESTATEMENT
OF ORIGINAL CREDIT AGREEMENT
On the Amendment Effective Date, the Original Credit Agreement shall
be and is hereby amended and restated to read in its entirety as set forth in
Annex I hereto (as set forth in such Annex I, the "Second Amended and Restated
Credit Agreement"), and as so amended and restated is hereby ratified, approved
and confirmed in each and every respect. The rights and obligations of the
parties to the Original Credit Agreement with respect to the period prior to the
Amendment Effective Date shall not be affected by such amendment and
restatement.
ARTICLE III
CONDITIONS PRECEDENT TO EFFECTIVENESS
This Amendment shall become effective upon, and the obligations of the
Lenders and, if applicable, each Issuer to fund the initial Credit Extension
under the Second Amended and Restated Credit Agreement shall be subject to the
prior or concurrent, satisfaction of each of the conditions precedent set forth
in this Article III; provided that each condition precedent set forth in this
Article III that can only be satisfied upon the funding of the initial Credit
Extension under the Second Amended and Restated Credit Agreement shall be deemed
to be satisfied immediately prior to such funding, provided that all other
actions or events required to have been taken or to have occurred in order for
such condition to be satisfied shall have been taken or have
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occurred at or prior to such time and that all other actions and events required
not to have occurred in order for such condition to be satisfied shall not have
occurred at or prior to such time (the first date as of which each such
condition has been satisfied being herein called the "Amendment Effective
Date").
SECTION 3.1 Structure, Terms etc. The structure, terms and conditions
of the Transactions shall not have changed from those described in the
Commitment Letter in a manner that is materially adverse to the Lenders.
SECTION 3.2 Counterparts and Lender Consents. The Administrative
Agents shall have received counterparts hereof executed on behalf of (a) the
Borrowers, (b) Holdings, (c) Superholdco, (d) the Original Lenders required
pursuant to the terms of the Original Credit Agreement to permit the amendments
and other modifications thereto provided for herein, (e) to the extent they are
not Original Lenders, the New Lenders and (f) the Administrative Agents.
SECTION 3.3 Resolutions, etc. The Administrative Agents shall have
received from each Obligor, as applicable, (i) a copy of a good standing
certificate (or the equivalent under local law), dated a date reasonably close
to the Amendment Effective Date, for each such Person and (ii) a certificate,
dated the Amendment Effective Date, duly executed and delivered by such Person's
Secretary or Assistant Secretary, managing member or general partner, as
applicable, as to
(a) resolutions of each such Person's Board of Directors (or other
managing body) then in full force and effect authorizing, to the extent
relevant, the execution, delivery and performance of each Loan Document to
be executed by such Person and the transactions contemplated hereby and
thereby;
(b) the incumbency and signatures of those of its officers, managing
member or general partner, as applicable, authorized to act with respect to
each Loan Document to be executed by such Person (each, an "Authorized
Officer"); and
(c) as to the full force and validity of each Organic Document of such
Person and, with respect to Superholdco, each of the Borrowers and the
Guarantors;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 3.4 Equity Investment. The Equity Investment shall have been
consummated or shall be consummated simultaneously with or immediately following
the Amendment Effective Date in accordance, in all material respects, with the
Stock Purchase Agreement and all other related documentation without amendment,
modification or waiver thereof which is materially adverse to the Lenders (as
reasonably determined by the Joint Lead Arrangers), without the prior consent of
the Joint Lead Arrangers, such consent not to be unreasonably withheld.
SECTION 3.5 Parentholdco Notes Placement. The Parentholdco Notes shall have been
issued on the terms and conditions as described in the term sheet delivered to
the Ini-
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tial Lenders on December 6, 2004 (and there shall have been no changes therefrom
that are materially adverse to the Initial Lenders) and such issuance shall have
generated gross cash proceeds of not less than $75.0 million.
SECTION 3.6 Pro Forma Debt Ratio. The Initial Lenders shall have
received reasonably satisfactory evidence (including an officers' certificate
accompanied by satisfactory supporting schedules and other data) that the ratio
of (i) pro forma consolidated net debt of Parentholdco minus cash and Cash
Equivalent Investments on U.S. Borrower's balance sheet at a date as close as
reasonably practicable to the Amendment Effective Date hereof and (ii) pro forma
consolidated net debt of U.S. Borrower minus cash and Cash Equivalent
Investments on U.S. Borrower's balance sheet at the Amendment Effective Date, as
the case may be, to pro forma EBITDA (as defined in the Second Amended and
Restated Credit Agreement, as adjusted in the manner described in Schedule 1
hereto) of U.S. Borrower and its subsidiaries, in each case after giving effect
to the Transactions for the trailing twelve months ended November 30, 2004, or
such later date for which financial statements are available, was not greater
than 5.3:1 and 2.6:1, respectively.
SECTION 3.7 No Litigation. There shall not be any pending or
threatened litigation or other proceedings (private or governmental) with
respect to any of the Transactions which could reasonably be expected to result
in a Material Adverse Change or have a material adverse effect on any rights and
remedies of any Agent or Lender or legality or enforceability of any provision
of any Loan Document.
SECTION 3.8 No Change of Control Litigation. There shall not have been
commenced or threatened in writing any action, suit or proceeding with respect
to the "Change of Control" covenants under the Senior Subordinated Note
Indenture and the Superholdco Senior Discount Note Indenture.
SECTION 3.9 Amendment Effective Date Certificate. The Administrative
Agents shall have received an Amendment Effective Date Certificate, dated the
Amendment Effective Date and duly executed and delivered by an Authorized
Officer of Holdings and each Borrower, in which certificate each of Holdings and
the Borrowers shall agree and acknowledge that the statements made therein shall
be deemed to be true and correct representations and warranties of such Person
as of such date and, at the time such certificate is delivered such statements
shall in fact be true and correct. All material documents and agreements
required to be appended to the Amendment Effective Date Certificate shall be in
form and substance reasonably satisfactory to the Administrative Agents.
SECTION 3.10 Delivery of Notes. The Administrative Agents shall have
received, for the account of each Lender that has requested in writing two
Business Days prior to the Amendment Effective Date a Note or Notes, such
Lender's Note or Notes duly executed and delivered by an Authorized Officer of
the U.S. Borrower or the Canadian Borrower, as applicable.
SECTION 3.11 Closing Fees, Expenses, etc. The Administrative Agents
shall have received for their respective accounts, or for the account of each
Lender, all fees, costs and expenses due and payable on or prior to the
Amendment Effective Date, including without limitation, the fees, costs and
expenses due pursuant to Section 5.4 of this Amendment, Section 3.3.1
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of the Original Credit Agreement and, to the extent then invoiced, Section 12.3
of the Original Credit Agreement.
SECTION 3.12 No Material Adverse Change. Since December 31, 2003,
there has been no event, circumstance, change, condition, development or
occurrence, either individually or in the aggregate with all other events,
circumstances, changes, conditions, developments or occurrences, that UBS or
Citigroup determines has had or could reasonably be expected to have a material
adverse effect on the assets, liabilities, results of operations, financial
condition or business of Superholdco and its Subsidiaries, taken as a whole (any
such event, circumstance, change, condition, development or occurrence a
"Material Adverse Change"); provided, that none of the following shall, in any
case, be deemed to constitute a "Material Adverse Change," nor shall any of the
following be considered in determining whether a "Material Adverse Change" has
occurred: (A) changes (x) in economic, financial market, regulatory or political
conditions generally or (y) generally affecting the building products/siding and
windows industry or principal markets in which Superholdco or any of its
Subsidiaries conducts business that, in the case of clause (y), do not adversely
affect Superholdco and its Subsidiaries, taken as a whole, disproportionately to
other companies in the building products/siding and windows industry, (B)
changes in laws, rules, regulations or orders of any Governmental Entity (as
defined in the Stock Purchase Agreement) or interpretations thereof by any
Governmental Entity (as defined in the Stock Purchase Agreement) or changes in
accounting requirements or principles, (C) the announcement or pendency of the
transactions contemplated by the Stock Purchase Agreement, (D) the consummation
of the transactions contemplated the Stock Purchase Agreement or any actions by
any of the Parties (as defined in the Stock Purchase Agreement) or Superholdco
taken pursuant to the Stock Purchase Agreement or in connection with the
transactions contemplated thereby, (E) conduct of Superholdco or any of its
Subsidiaries (as defined in the Stock Purchase Agreement) that is (x) not
prohibited under Section 6.3 of the Stock Purchase Agreement or (y) prohibited
under Section 6.3 of the Stock Purchase Agreement for which Purchasers (as
defined in the Stock Purchase Agreement) gave or failed to give consent in
accordance with Section 6.3 of the Stock Purchase Agreement, (F) any natural
disaster or any act of terrorism, sabotage, military action or war (whether or
not declared) or any escalation or worsening thereof; in each case, which do not
adversely affect Superholdco and its Subsidiaries (as defined in the Stock
Purchase Agreement), taken as a whole, disproportionately to other Persons
affected thereby.
SECTION 3.13 Solvency Certificate. The Administrative Agents shall
have received, with counterparts for each Lender (which each applicable
Administrative Agent shall furnish to each applicable Lender promptly upon
receipt thereof), a certificate duly executed and delivered by the chief
financial or accounting Authorized Officer of the U.S. Borrower, dated the
Amendment Effective Date, in the form of Exhibit I to the Second Amended and
Restated Credit Agreement.
SECTION 3.14 Fairness Opinion. UBS, Citigroup and the Lenders shall
have received a fairness opinion delivered by an independent evaluation firm
with respect to the Transactions in substantially identical form to the draft
letter delivered to the Initial Lenders on November 30, 2004.
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SECTION 3.15 Security and Pledge Agreements
(a) The Administrative Agents shall have received, with counterparts
for each Lender, (i) the Superholdco Security and Pledge Agreement, dated
as of the Amendment Effective Date and duly executed and delivered by an
Authorized Officer of Superholdco, in form and substance satisfactory to
the U.S. Administrative Agent and (ii) the Deposit Account Control
Agreement (as defined in the Superholdco Security and Pledge Agreement),
dated as of the Amendment Effective Date and duly executed and delivered by
an Authorized Officer of Superholdco, in form and substance satisfactory to
the U.S. Administrative Agent.
(b) The Administrative Agents shall have received an Officer's
Certificate executed by an Authorized Officer of each Borrower either
confirming that there has been no material change in the information
provided in each Perfection Certificate previously delivered to the
Administrative Agents or identifying such changes and (y) certified copies
of UCC Requests for Information or Copies (Form UCC-11), or a similar
search report certified by a party acceptable to the Administrative Agents,
dated a date reasonably near to the Amendment Effective Date, listing all
effective financing statements (filed after the date of the last such
search report provided to the Administrative Agents pursuant to the
Original Credit Agreement) which name each such Obligor as the debtor and
which are filed in the jurisdictions specified in the Perfection
Certificates, together with copies of such financial statements (none of
which shall cover collateral described in any Loan Document except to the
extent constituting Permitted Liens.
(c) The Administrative Agents shall be reasonably satisfied that (i)
each of the Liens granted to the Administrative Agents, for the benefit of
the Secured Parties in the collateral described in clauses (a) and (b)
above is a first priority (or local equivalent thereof) security interest
subject only to Permitted Liens; and (ii) no Liens exist on any of the
Collateral described above other than the Lien created in favor of an
Administrative Agents for the benefit of the Secured Parties, pursuant to a
Loan Document and Permitted Liens.
SECTION 3.16 Compliance with Laws, Approvals etc. Holdings, U.S.
Borrower and their subsidiaries are in compliance with all applicable material
foreign and U.S. federal, state and local laws and regulations (including but
not limited to ERISA, margin regulations and environmental laws) except to the
extent that the failure to be in compliance would not have a Material Adverse
Effect. All material governmental, shareholder and third party consents and
approvals necessary in connection with the consummation of the Equity Investment
and other transactions contemplated hereby, have been duly obtained.
SECTION 3.17 Opinions of Counsel. The Administrative Agents shall have
received opinions, each dated the Amendment Effective Date from (a) White & Case
LLP, U.S. counsel to the Obligors, in form and substance reasonably satisfactory
to the Administrative Agents and addressed to the Administrative Agents and all
Lenders, (b) from White & Case LLP, U.S. counsel to the Obligors, addressed to
the Joint Lead Arrangers and all Lenders substantially in the form previously
delivered to the Joint Lead Arrangers and addressing that the consummation of
the Equity Investment will not trigger a "Change of Control" under the Senior
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Subordinate Note Indenture and the Superholdco Senior Discount Note Indenture,
(c) WeirFoulds LLP, Canadian counsel to the Obligors, in form and substance
reasonably satisfactory to the Administrative Agents and addressed to the
Administrative Agents and all Lenders and (d) such other counsel to the Obligors
as the Administrative Agents may reasonably request, in each case, in form and
substance reasonably satisfactory to the Administrative Agents and addressed to
the Administrative Agents and all Lenders. The Administrative Agents shall have
received a copy of an opinion of Gibson, Dunn & Crutcher LLP, counsel to
Investcorp Investor Group, addressed to Investcorp Investor Group, substantially
in the form previously delivered to the Joint Lead Arrangers (it being
understood that the Lenders shall not be entitled to rely on such legal
opinion), addressing that the consummation of the Equity Investment will not
trigger a "Change of Control" under the Senior Subordinated Note Indenture and
the Superholdco Senior Discount Note Indenture.
SECTION 3.18 Delivery of Affirmation and Acknowledgment. The
Administrative Agents shall have received a letter of affirmation and
acknowledgment, dated as of the Amendment Effective Date and substantially in
the form of Annex IV hereto, duly executed and delivered by each Obligor (other
than Holdings and the U.S. Borrower) that is a party to a Loan Document which
was executed and delivered pursuant to the Original Credit Agreement.
SECTION 3.19 Accuracy of Representations and Warranties, No Defaults,
etc. At the Amendment Effective Date and after giving effect to the initial
Credit Extension (i) the representations and warranties set forth in each Loan
Document and in Article IV herein shall, in each case, be true and correct in
all material respects with the same effect as if then made (unless stated to
relate to a specified earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of such earlier
date) and (ii) no Default shall have then occurred and be continuing.
SECTION 3.20 Superholdco Guaranty. The Administrative Agents shall
have received, with counterparts for each Lender, the Superholdco Guaranty,
dated as of the Amendment Effective Date and duly executed and delivered by an
Authorized Officer of Superholdco, in form and substance satisfactory to the
U.S. Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties. In order to induce the
Lenders signatories hereto to enter into this Amendment and to consent to the
modifications to the Original Credit Agreement provided for herein, each of
Holdings and each Borrower hereby represents and warrants to all Lenders that
the representations and warranties contained in Article VI of the Second Amended
and Restated Credit Agreement are true and correct in all material respects as
of the Amendment Effective Date after giving effect to this Amendment with the
same effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and correct in
all material respects as of such earlier date) and additionally represents and
warrants unto each Agent and each Lender as set forth in this Article IV.
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SECTION 4.2 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by Holdings and each Borrower and each other Obligor of
this Amendment and each other Loan Document executed or to be executed by it in
connection with this Amendment, each such Obligor's participation in the
consummation of all aspects of the Transactions and the execution, delivery and
performance by each other Obligor of each Loan Document (including this
Amendment) executed or to be executed by it in connection with this Amendment
and the agreements executed and delivered by it in connection with the
Transactions are within each such Person's corporate, partnership or limited
liability company powers, as the case may be, have been duly authorized by all
necessary corporate, partnership or limited liability company action, as the
case may be, and, except as disclosed in Item 6.2 of the Disclosure Schedule, do
not (i) contravene any (A) Obligor's Organic Documents, (B) material contractual
restriction binding on or affecting any Obligor, (C) court decree or order
binding on or affecting any Obligor or (D) material law or governmental
regulation binding on or affecting any Obligor, or (ii) result in, or require
the creation or imposition of, any Lien on any Obligor's properties, except
pursuant to the terms of a Loan Document or as otherwise permitted by the Second
Amended and Restated Credit Agreement.
SECTION 4.3 Government Approval, etc. No material authorization or
approval or other action by, and no material notice to or filing with, any
Governmental Authority or other Person (other than those (x) that have been, or
on the Amendment Effective Date, will be, or, in the case of Filing Statements
delivered on the Amendment Effective Date, will be within 10 days after the
Amendment Effective Date, duly obtained or made and which are, or on the
Amendment Effective Date will be, or, in the case of Filing Statements delivered
on the Amendment Effective Date, will be within 10 days after the Amendment
Effective Date, in full force and effect and (y) that are contemplated or
required to be made after the Amendment Effective Date in accordance with the
terms of the Loan Documents and the Transactions Documents) is required for (i)
the due execution, delivery or performance by any Obligor of any Loan Document
to which it is a party or (ii) the due execution, delivery and/or performance by
any Obligor of the Transactions Documents to which each is a party, or (iii) the
conduct of the business of the U.S. Borrower and its Subsidiaries as currently
conducted following the Amendment Effective Date.
SECTION 4.4 Validity, etc. This Amendment and the Second Amended and
Restated Credit Agreement constitute legal, valid and binding obligations of
Holdings and the Borrowers enforceable in accordance with their terms (except,
in any case, as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by principles of equity).
SECTION 4.5 Liens Unimpaired. After giving effect to this Amendment,
neither the modification of the Original Credit Agreement effected pursuant to
this Amendment nor the execution, delivery, performance or effectiveness of this
Amendment
(a) impairs the validity, effectiveness or priority of the Liens
granted pursuant to any Loan Document (as such term is defined in the
Original Credit Agreement), and such Liens continue unimpaired with the
same priority to secure repayment of all Obligations, whether heretofore or
hereafter incurred; or
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(b) requires that any new filings be made or other action taken to
perfect or to maintain the perfection of such Liens other than the actions
required by Section 7.1.11 of the Second Amended and Restated Credit
Agreement.
SECTION 4.6 Solvency. On the Amendment Effective Date, after giving
effect to this Amendment and the Transactions, each of Holdings and each other
Obligor (taken together) are Solvent.
SECTION 4.7 Stock Purchase Agreement. All representations and
warranties made by Holdings and, to the knowledge of Holdings and its
Subsidiaries, each other party to the Stock Purchase Agreement were true and
correct in all respects as of the date such representations and warranties were
made, and, as of the date hereof, no default has occurred and is continuing
under the Stock Purchase Agreement, except to the extent any such default or any
failure of any such representation and warranty to be true and correct could,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change.
SECTION 4.8 No Default. Both immediately before and after giving
effect to this Amendment, no Default has occurred and is continuing as of the
Amendment Effective Date.
SECTION 4.9 Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Agent or any Lender
by or on behalf of any Obligor in connection with this Amendment or any other
Loan Document or any transaction contemplated hereby or thereby (including the
Transactions), taken as a whole, contains any untrue statements of material
fact, or omits to state any material facts necessary in either case to make such
information taken as a whole not materially misleading in light of the
circumstances under which such information was provided and no other factual
information hereafter furnished in connection with this Amendment or any other
Loan Document by or on behalf of any Obligor, or to any Agent or any Lender will
contain any untrue statements of material fact or will omit to state any
material facts in either case necessary to make such information taken as a
whole not materially misleading on the date as of which such information is
dated or certified in light of the circumstances under which such information
was provided. Notwithstanding the foregoing, all financial projections that have
been or are hereafter made available to any Lender or any of the Agents by
Holdings or any of its Subsidiaries or any of their respective representatives
in connection with the transactions contemplated hereby (the "Projections")
(including the Projections included in the bank memorandum furnished to the
Lenders with respect to the Borrowers and the other Obligors and the pro forma
balance sheet) have been or, in the case of the Projections made available after
the date hereof, will be prepared in good faith based upon assumptions believed
by Holdings and its Subsidiaries to be reasonable at the time such assumptions
were made (it being recognized by each of the Lenders and the Agents, however,
that projections as to future events are not to be viewed as facts and that the
actual results during the period or periods covered by the Projections will
probably differ from the projected results and such differences may be
material).
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ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 No Other Amendments; References to the Credit Agreement.
Other than as specifically provided herein or in the Second Amended and Restated
Credit Agreement, this Amendment shall not operate as a waiver or amendment of
any right, power or privilege of the Lenders under (and as defined in) the
Original Credit Agreement or any other Loan Document (as such term is defined in
the Original Credit Agreement) or of any other term or condition of the Original
Credit Agreement or any other Loan Document (as such term is defined in the
Original Credit Agreement) nor shall the entering into of this Amendment
preclude the Lenders from refusing to enter into any further waivers or
amendments with respect to the Second Amended and Restated Credit Agreement. All
references to the Original Credit Agreement in any document, instrument,
agreement, or writing shall from and after the Amendment Effective Date be
deemed to refer to the Second Amended and Restated Credit Agreement, and, as
used in the Second Amended and Restated Credit Agreement, the terms "Agreement,"
"herein," "hereafter," "hereunder," "hereto" and words of similar import shall
mean, from and after the Amendment Effective Date, the Second Amended and
Restated Credit Agreement.
SECTION 5.2 Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 5.3 Execution in Counterparts. This Amendment may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
SECTION 5.4 Expenses. The Borrowers agree to pay promptly (and in any
event on the Closing Date) after presentation of an invoice therefor all
reasonable out-of-pocket expenses of the Agents (including the reasonable fees
and out-of-pocket expenses of one counsel to the Agents (and of local counsel,
if any, who may be retained by such counsel)) in connection with the
preparation, negotiation, execution and delivery of this Amendment, the Second
Amended and Restated Credit Agreement, each other Loan Document and the
documents and transactions contemplated hereby, including the reasonable fees
and disbursements of Cahill Gordon & Reindel LLP, counsel for the Agents.
SECTION 5.5 Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified or otherwise required by the
context, to such Article or Section of this Amendment.
SECTION 5.6 Cooperation; Other Documents. At all times following the
execution of this Amendment, the Obligors party hereto shall execute and deliver
to the Lenders and the Agents, or shall cause to be executed and delivered to
the Lenders and the Agents, and shall do or cause to be done all such other acts
and things as the Lenders and the Agents may reasonably deem to be necessary or
desirable to assure the Lenders and the Agents of the benefit of this Amendment
(including the Second Amended and Restated Credit Agreement), the other Loan
Documents and each other document relating to this Amendment.
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SECTION 5.7 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
(INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK AND RULE 327(B) OF THE NEW YORK CIVIL
PRACTICE LAW AND RULES).
SECTION 5.8 Acknowledgments. The undersigned hereby (i) expressly
acknowledges the terms of the Second Amended and Restated Credit Agreement, (ii)
ratifies and affirms its obligations under the Loan Documents (including
guarantees and security agreements) executed by the undersigned and (iii)
acknowledges renews and extends its continued liability under all such Loan
Documents and agrees such Loan Documents remain in full force and effect,
including with respect to the obligations of the Borrowers as modified by the
Second Amended and Restated Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers hereunder duly authorized as of the
date and year first above written.
ASSOCIATED MATERIALS INCORPORATED,
as U.S. Borrower
By:
-----------------------------------
Name:
Title:
GENTEK BUILDING PRODUCTS LIMITED,
as Canadian Borrower
By:
-----------------------------------
Name:
Title:
AMH HOLDINGS INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
ASSOCIATED MATERIALS HOLDINGS INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
GENTEK HOLDINGS, INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
GENTEK BUILDING PRODUCTS INC.,
as a Guarantor
By:
-----------------------------------
Name:
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Title:
ALSIDE INC.,
as a Guarantor
By:
-----------------------------------
Name:
Title:
-15-
UBS AG, STAMFORD BRANCH,
as the U.S. Administrative Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as the Canadian Administrative Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC., as the
Syndication Agent
By:
-----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORA-
TION,
as Co-Documentation Agent
By:
-----------------------------------
Name:
Title:
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NATIONAL CITY BANK,
as Co-Documentation Agent
By:
-----------------------------------
Name:
Title:
,
as a Lender
By:
-----------------------------------
Name:
Title:
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