Exhibit 10.9
AMENDMENT NO. 2
AMENDMENT NO. 2 (this "AMENDMENT"), dated as of June 11, 1999,
to that certain Credit Agreement, dated as of October 2, 1998 (as amended to the
date hereof, the "CREDIT AGREEMENT"; capitalized terms used herein and not
defined shall have the meaning set forth in the Credit Agreement), among ATRIUM
COMPANIES, INC., a Delaware corporation ("BORROWER"), D and W HOLDINGS, INC., as
Parent, the Guarantors party thereto, MERRILL LYNCH & CO., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as Lead Arranger, Syndication Agent and
Documentation Agent (collectively in such capacities, the "LEAD ARRANGER"),
BANKBOSTON, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") and
Merrill Lynch Capital Corporation, BankBoston, N.A., BHF-Bank Aktiengesellschaft
and Bank One, Texas, N.A. (the "ADDITIONAL REVOLVING CREDIT LENDERS").
W I T N E S S E T H :
WHEREAS, Section 12.04 of the Credit Agreement permits
amendment of the Credit Agreement with the consent of the Obligors and the
Lenders party to the Credit Agreement (the "LENDERS");
WHEREAS, pursuant to Section 2(a) of Amendment and Consent No.
1 to the Credit Agreement ("AMENDMENT AND CONSENT NO. 1") dated as of May 5,
1999 among each of the Obligors, each of the Lenders, the Lead Arranger and the
Administrative Agent, the Lenders have unanimously consented to an increase in
the aggregate amount of the Revolving Credit Commitments by an amount not to
exceed $20.0 million;
WHEREAS, pursuant to Section 2(a) of Amendment and Consent No.
1, the Lenders have unanimously authorized the Lead Arranger and the
Administrative Agent to execute, on behalf of all the Lenders, the Additional
Revolving Credit Documentation (as defined in Amendment and Consent No. 1);
WHEREAS, the Additional Revolving Credit Lenders hereby agree
to increase their respective Revolving Credit Commitments as set forth herein;
and
WHEREAS, the Lead Arranger and the Administrative Agent hereby
agree, on behalf of all the Lenders, to amend certain provisions of the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE AMENDMENTS. (a) Section 1.01 is amended by
deleting the last sentence of the definition of "Revolving Credit Commitment"
and replacing it with the following: "The initial aggregate principal amount of
the Revolving Credit Commitments is $40.0 million."
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(b) Annex A is amended by deleting the column under the
heading "Revolving Credit Commitments" and replacing it with the following set
forth opposite the Persons listed below:
Revolving Credit
Legal Name Commitments
- ---------------------------------- ----------------
Merrill Lynch Capital Corporation $7,000,000
BankBoston, N.A. 8,000,000
BHF-Bank Aktiengesellschaft 7,500,000
Greater Bay Corporate Finance, A Division of
Cupertino National Bank and Trust 3,000,000
Indosuez Capital Funding IV L.P. 4,000,000
Heller Financial, Inc. 4,000,000
Bank One, Texas NA 6,500,000
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Total: $40,000,000
SECTION TWO ADDITIONAL COMMITMENTS. Each Additional Revolving
Credit Lender severally agrees, subject to the terms and conditions of the
Credit Agreement, to increase its Revolving Credit Commitment to the amount set
forth opposite such Additional Revolving Credit Lender's name on Annex A to the
Credit Agreement, as amended by Section 1(b) hereof. At the request of any
Additional Revolving Credit Lender, such Additional Revolving Credit Lender may
exchange its promissory note of Borrower for a new promissory note of Borrower
reflecting its new Revolving Credit Commitment, pursuant to Section 2.08(a)(i)
of the Credit Agreement, and Borrower agrees to execute and deliver such new
promissory note.
SECTION THREE CONDITIONS TO EFFECTIVENESS. This Amendment
shall become effective as of the date (the "EFFECTIVE DATE") when, and only
when, the Administrative Agent shall have received counterparts of this
Amendment executed by each Obligor and each of the Lead Arranger, the
Administrative Agent and each of the Additional Revolving Credit Lenders or, as
to any of the Lead Arranger, the Administrative Agent and the Additional
Revolving Credit Lenders, advice satisfactory to the Administrative Agent that
such person has executed this Amendment. The effectiveness of this Amendment
(other than Sections Six, Seven and Eight hereof) is conditioned upon the
accuracy of the representations and warranties set forth in Section Four hereof.
Notwithstanding the foregoing, if Borrower shall not have complied with the last
sentence of Section Four hereof in the time period provided, this Amendment No.
2 shall be deemed not effective and shall have no effect on the Credit
Documents.
SECTION FOUR REPRESENTATIONS AND WARRANTIES; COVENANTS. In
order to induce the Lenders and the Agents to enter into this Amendment, each
Obligor represents and warrants to each of the Lenders and the Agents that after
giving effect to this Amendment, and both before and after giving effect to
transactions contemplated by this Amendment, (a) no Default or Event of Default
has occurred and is continuing; and (b) all of the representations and
warranties in the Credit Agreement are true and complete in all material
respects on and as of the date hereof as if made on the date hereof (or, if any
such representation or warranty is expressly stated to have been made as of a
specific date,
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as of such specific date). On the Effective Date, Borrower shall repay all
Revolving Credit Loans then outstanding, Reimbursement Obligations resulting
from any then drawn Letters of Credit and Swing Loans then outstanding
(including all costs under Section 5.05(a)(4) of the Credit Agreement, if any)
(which repayment may be made from drawings under the Revolving Credit
Commitments after such effectiveness) and shall pay all accrued and unpaid fees
under Section 2.05(a) of the Credit Agreement.
SECTION FIVE REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT
AND THE NOTES. On and after the Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Credit Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment. The Credit
Agreement, the Notes and each of the other Credit Documents, as specifically
amended by this Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Security Documents and all of the Collateral
described therein do and shall continue to secure the payment of all Obligations
of the Obligors under the Credit Documents, in each case as amended by this
Amendment. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or any Agent under any of the Credit Documents,
nor constitute a waiver of any provision of any of the Credit Documents. Each
Guarantor ratifies and confirms its Guarantee as in full force and effect after
giving effect to the amendments and waivers herein set forth and to any prior
amendment or waiver to the Credit Agreement.
SECTION SIX COSTS, EXPENSES AND TAXES. Borrower agrees to pay
all reasonable costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, if any (including, without limitation,
the reasonable fees and expenses of Cahill Gordon & Reindel) in accordance with
the terms of Section 12.03 of the Credit Agreement. In addition, Borrower shall
pay or reimburse any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment and the
other instruments and documents to be delivered hereunder, if any, and agrees to
save each Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes.
SECTION SEVEN EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION EIGHT GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
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STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO
CONFLICTS OF LAW).
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BORROWER:
ATRIUM COMPANIES, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
GUARANTORS:
ATRIUM CORPORATION
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
ATRIUM DOOR AND WINDOW COMPANY -
WEST COAST
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
ATRIUM DOOR AND WINDOW COMPANY
OF THE NORTHEAST
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
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ATRIUM DOOR AND WINDOW COMPANY
OF NEW YORK
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
ATRIUM DOOR AND WINDOW COMPANY
OF ARIZONA
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
ATRIUM DOOR AND WINDOW COMPANY
OF NEW ENGLAND
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
DOOR HOLDINGS, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
R.G. DARBY COMPANY, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
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TOTAL TRIM, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
WING INDUSTRIES HOLDINGS, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
WING INDUSTRIES, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
R.G. DARBY COMPANY - SOUTH
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
TOTAL TRIM, INC. - South
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
HEAT, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
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H.I.G. VINYL, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
CHAMPAGNE INDUSTRIES, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
THERMAL INDUSTRIES, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
BEST BUILT, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
PARENT:
D AND W HOLDINGS, INC.
By: /s/ Jeff L. Hull
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Name: Jeff L. Hull
Title: Executive Vice President
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AGENTS:
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, as Lead
Arranger, Syndication Agent and
Documentation Agent
By: /s/ Howard B. Sysler
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Name: Howard B. Sysler
Title: Vice President
BANKBOSTON, N.A.,
as Administrative Agent, Issuing
Lender and as a Lender
By: /s/ Marie L. Duprey
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Name: Marie L. Duprey
Title: Vice President
ADDITIONAL REVOLVING CREDIT LENDERS:
MERRILL LYNCH CAPITAL CORPORATION
By: /s/ Howard B. Sysler
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Name: Howard B. Sysler
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Marie C. Duprey
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Name: Marie C. Duprey
Title: Vice President
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BHF BANK AKTIENGESELLSCHAFT
By:
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Name:
Title:
BANK ONE, TEXAS, N.A.
By: /s/ Chris W. Holder
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Name: Chris W. Holder
Title: Vice President