Exhibit 10.8
AMENDMENT AND CONSENT NO. 1
AMENDMENT AND CONSENT NO. 1 (this "AMENDMENT"), dated as of
May 5, 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, the Lenders party
thereto (the "LENDERS"), MERRILL LYNCH & CO., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as Lead Arranger, Syndication Agent and Documentation Agent
(collectively in such capacities, the "LEAD Arranger"), and BANKBOSTON, N.A., as
Administrative Agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, pursuant to Section 12.04 of the Credit Agreement,
each of the Obligors and each of the undersigned Lenders hereby agree 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 (i) by
adding the following definitions, each in the appropriate alphabetical order of
the existing defined terms:
"CHAMPAGNE" shall mean Champagne Industries, Inc., a Colorado
corporation.
"CHAMPAGNE ACQUISITION" shall mean the acquisition of all of
the outstanding capital stock of Champagne by Borrower for a purchase price not
to exceed $4.2 million (including an "earn-out" not to exceed $500,000 and
including amounts required to repay in full all outstanding Indebtedness of
Champagne and its Subsidiaries other than capital lease obligations not
exceeding $200,000) pursuant to the Champagne Acquisition Agreement.
"CHAMPAGNE ACQUISITION AGREEMENT" shall mean the definitive
documentation to be executed by Borrower and the sellers party thereto relating
to the Champagne Acquisition.
"HEAT" shall mean Heat, Inc., a Delaware corporation.
"HEAT ACQUISITION" shall mean the acquisition of all of the
outstanding capital stock of Heat and H.I.G. Vinyl, Inc., a Delaware
corporation ("VINYL"), by Borrower for a purchase price not to exceed
$85.0 million (including amounts required to repay in full all
outstanding Indebtedness of Heat and Vinyl and their respective
Subsidiaries other than capital lease obli-
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gations not exceeding $375,000 and other Indebtedness not exceeding
$325,000 which shall reduce the purchase price), PLUS the aggregate
amount of cash and cash equivalents held by Heat on the date of
consummation of the Heat Acquisition, PLUS or MINUS the aggregate
amount of any working capital adjustments, pursuant to the Heat
Acquisition Agreement.
"HEAT ACQUISITION AGREEMENT" means the Stock Purchase
Agreement, dated as of April 20, 1999, by and between Heat, the sellers
party thereto, H.I.G. Vinyl, Inc. and Borrower relating to the Heat
Acquisition.
"NEW NOTES" shall mean the Senior Subordinated Notes due 2009
to be issued by Borrower pursuant to the New Notes Indenture, in an
aggregate principal amount of $175.0 million, guaranteed by each of the
Guarantors (other than Atrium Holdings) on a senior subordinated basis,
including the senior subordinated notes issued pursuant to a registered
exchange offer therefor, which notes shall in any event (i) have
covenants, events of default, redemption and repurchase provisions and
modification provisions in the aggregate which in the reasonable
judgment of the Lead Arranger are not materially less favorable to
Borrower and the Lenders than the covenants, events of default,
redemption and repurchase provisions and modification provisions in the
draft Description of Notes attached hereto as EXHIBIT A, (ii) be
unsecured, and (iii) contain such terms with respect to subordination
to the Obligations that are not in the aggregate, in the reasonable
judgment of the Lead Arranger, materially more onerous to the Lenders
than the subordination terms in the draft Description of Notes attached
hereto as EXHIBIT A.
"NEW NOTES INDENTURE" means the Indenture pursuant to which
the New Notes are to be issued, dated as of the New Notes Issue Date,
by and among Borrower, each of the guarantors party thereto from time
to time and a trustee reasonably acceptable to the Lead Arranger.
"NEW NOTES ISSUE DATE" shall mean the date of original
issuance of the New Notes, which shall be no later than the date of
consummation of the Heat Acquisition and the Champagne Acquisition.
; (ii) by deleting the entire text of part (c) of the definition of "Change of
Control" and replacing it with the following:
"(c) if such transaction or event occurs at any time, whether
before or after the consummation of an Initial Public
Offering, any event or circumstance constituting a "change of
control" or other similar occurrence under the Existing Notes
Indenture (other than any "change of control" resulting from
consummation of the Merger), the New Notes Indenture or the
Investor Debt Securities Documents shall occur which results
in an obligation of any Company to prepay, purchase, offer to
purchase, redeem or defease all or a portion of such
Indebtedness."
; (iii) by adding the following to the end of the definition of "Consolidated
EBITDA":
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"Prior to the first anniversary of the New Notes Issue Date,
Consolidated EBITDA shall be calculated on a pro forma basis
as if the Champagne Acquisition and the Heat Acquisition had
occurred on the first day of the relevant Measurement Period
(including giving effect to $2.250 million of pro forma
expense and cost reductions relating to the Champagne
Acquisition and the Heat Acquisition; PROVIDED, HOWEVER, that
the amount of such expense and cost reductions shall be (i)
$1.689 million if the Measurement Period ends on September 30,
1999, (ii) $1.126 million if the Measurement Period ends on
December 31, 1999, (iii) $0.563 million if the Measurement
Period ends on March 31, 2000, and (iv) $0 if the Measurement
Period ends on June 30, 2000. For any Measurement Period that
includes the fiscal quarter ending March 31, 1999, severance
payments made during such fiscal quarter in an amount not to
exceed $1.8 million shall be added back to Consolidated EBITDA
to the extent deducted in the calculation thereof (other than
for purposes of the definition of "Excess Cash Flow")"
; and (iv) by deleting the definition of "Permitted Acquisitions" and replacing
it with the following:
"PERMITTED ACQUISITIONS" shall mean any acquisition effected
in compliance with Section 9.06(i), (m) or (o)."
(b) Section 2.03 is amended by deleting clause (iii) of the
proviso to the first sentence in such Section 2.03 and replacing it with the
following:
"(iii) the outstanding aggregate amount of all Letter of
Credit Liabilities exceed $7.5 million,"
(c) Section 3.02 is amended by deleting clauses (i) and (ii)
of Section 3.02(a) and replacing them with the following:
"(i) during such periods as such Loan is an ABR Loan, (a) the
Alternate Base Rate (as in effect from time to time), PLUS (b) the
Applicable Margin, PLUS (c) on and after the New Notes Issue Date, (A)
in the case of the Revolving Credit Loans, 0.250% until the Reset Date,
and (B) in the case of the Term Loans, 0.125%, until the first date
that the Total Leverage Ratio shall be equal to or less than 4.0:1.0 on
and after the New Notes Issue Date (as specified in an Interest Rate
Certificate required by Section 9.01(e) and an Officers' Certificate
demonstrating such computation of the Total Leverage Ratio); and
(ii) during such periods as such Loan is a LIBOR Loan, for
each Interest Period relating thereto, (a) the LIBOR Rate for such Loan
for such Interest Period, PLUS (b) the Applicable Margin, PLUS (c) on
and after the New Notes Issue Date, (A) in the case of the Revolving
Credit Loans, 0.250% until the Reset Date, and (B) in the case of the
Term Loans, 0.125% until the first date that the Total Leverage Ratio
shall be equal to or less than 4.0:1.0 on and after the New Notes Issue
Date (as specified in an Interest Rate Certificate required by Section
9.01(e) and an Officers' Certificate demonstrating such computation of
the Total Leverage Ratio)."
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(d) Section 8.03 is amended by deleting the entire text
thereof (including the referenced Schedule 8.03) and replacing it with the
following:
"Section 8.03 LITIGATION. There is no Proceeding pending
against, or to the knowledge of any Company threatened in writing
against or affecting, any Company or any of its respective Properties
before any Governmental Authority that either (i) would be required to
be described in a prospectus pursuant to the Securities Act (assuming
the existence of a registered sale of securities) or (ii) has a
reasonable likelihood of being adversely determined and, if determined
or resolved adversely to such Company in accordance with the
plaintiff's demands, is reasonably likely to have (individually or in
the aggregate) a Material Adverse Effect (without giving effect to
clause (a) of the definition of Material Adverse Effect)."
(e) Section 9.01 is amended by deleting the entire text of
9.01(b) and replacing it with the following:
"(b) ANNUAL FINANCIALS. As soon as available and in any event
within 90 days after the end of each fiscal year beginning with the
fiscal year ending December 31, 1998, consolidated statements of
operations, cash flows and stockholders' equity of Borrower and its
Consolidated Subsidiaries for such year and the related consolidated
balance sheet of Borrower and its Consolidated Subsidiaries as at the
end of such year, setting forth in each case in comparative form (i)
the corresponding consolidated information as of the end of and for the
preceding fiscal year (provided that for purposes of any fiscal year
ending on or prior to the first anniversary after the Closing Date,
this clause (i) shall only require a pro forma consolidated statement
of operations for the preceding fiscal year that gives effect to the
Transactions as if they occurred on the first day of such preceding
fiscal year) and (ii) the corresponding budget or plan for such period,
and, in the case of the foregoing consolidated financial statements,
accompanied by an opinion, without material qualification, thereon of
independent certified public accountants of recognized national
standing, which opinion shall state that said consolidated financial
statements fairly present the consolidated financial condition, results
of operations and cash flows of Borrower and its Consolidated
Subsidiaries as at the end of, and for, such fiscal year in accordance
GAAP, consistently applied; Borrower shall supply such additional
information and detail as to any item or items contained on any such
statement that Lenders (to the extent applicable) may reasonably
require; all such information will be prepared in accordance with GAAP
consistently applied; in addition, Borrower shall provide consolidated
financial statements for Foreign Subsidiaries (if any) for the same
periods in fiscal years 1998 and thereafter substantially consistent
with the foregoing;"
(f) Section 9.06 is amended by (i) deleting the entire text of
Section 9.06(i)(xi) and replacing it with the following:
"(i) the Acquisition Consideration for such Acquisition,
together with the aggregate amount of the Acquisition
Consideration for all Acquisitions (other than Acquisitions
made pursuant to Sections 9.06(m) and 9.06(o) below) effected
pursuant to
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this Section 9.06(i) since the Closing Date, shall not exceed
$20.0 million (PROVIDED, HOWEVER that any portion of such
Acquisition Consideration that consists of an "earn-out" or
similar payment shall not exceed $5.0 million in the aggregate
since the Closing Date), PLUS the then available amount of the
Designated Equity Issuance Proceeds but not to exceed $20.0
million."
and (ii) by deleting the "and" at the end of Section 9.06(m), deleting the "."
at the end of Section 9.06(n) and replacing it with "; and" and by adding the
following immediately after Section 9.06(n):
"(o) the Champagne Acquisition and the Heat Acquisition."
(g) Section 9.08 is amended by deleting the "and" at the end
of Section 9.08(k), deleting the "." at the end of Section 9.08(l) and replacing
it with "; and" and by adding the following immediately after Section 9.06(l):
"(m) the New Notes (less all repayments and prepayments
thereof) and any Permitted Refinancings thereof."
(h) Section 9.10 is amended by (i) deleting Section
9.10(c)(ii) and replacing it with the following:
"(ii) to make a Dividend Payment to Parent to redeem Equity
Interests (other than Disqualified Capital Stock) held by
current or former employees or directors of any Company (or
their estates or beneficiaries of their estates); PROVIDED,
HOWEVER, that the aggregate cash consideration paid, or
distributions made, pursuant to this clause (c)(ii) shall not
exceed $5.0 million in the aggregate since the Closing Date,
PLUS, in each case, the proceeds of any Excluded Equity
Issuance consummated substantially contemporaneously with such
purchase or redemption; and"
and (ii) deleting the "and" at the end of Section 9.10(c)(ii), deleting the "."
at the end of 9.10(d), replacing it with"; and" and by adding the following
immediately after Section 9.10(d):
"(e) so long as no Default has occurred and is continuing or
would arise therefrom, Borrower may make Dividend Payments to
Atrium Holdings on the New Notes Issue Date or within two
Business Days thereafter with a portion of the net proceeds
from the offering of the New Notes in an amount not to exceed
$20.0 million (plus accretion to the date of repayment of the
Investor Debt Securities) if the proceeds of such Dividend
Payment are contemporaneously used by Atrium Holdings to repay
Investor Debt Securities in the same amount and such Investor
Debt Securities are canceled."
(i) Sections 9.11(a), (b), (c) and (d) are amended by deleting
the entire text thereof and replacing it with the following:
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"(a) MAXIMUM TOTAL LEVERAGE RATIO. 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:
Period Ratio
------ -----
New Notes Issue Date - 9/30/99 5.50
10/01/99 - 6/30/00 5.25
7/1/00 - 12/31/00 5.00
1/1/01 - 6/30/01 4.75
7/1/01 - 12/31/01 4.50
1/1/02 - 6/30/02 4.25
7/1/02 - 12/31/02 4.00
1/1/03 - 6/30/03 3.75
7/1/03 - 12/31/03 3.50
1/1/04 - 6/30/04 3.25
7/1/04 - 12/31/04 3.00
1/1/05 - 6/30/05 2.75
7/1/05 and thereafter 2.50
(b) MINIMUM INTEREST COVERAGE RATIO. The Interest 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:
Period Ratio
------ -----
New Notes Issue Date - 9/30/99 1.75
10/1/99 - 3/31/00 1.90
4/1/00 - 9/30/00 2.00
10/1/00 - 12/31/00 2.20
1/1/01 - 6/30/01 2.35
7/1/01 -12/31/01 2.50
1/1/02 - 6/30/02 2.60
7/1/02 - 12/31/02 2.75
1/1/03 - 6/30/03 2.85
7/1/03 - 12/31/03 3.00
1/1/04 - 6/30/04 3.10
7/1/04 - 12/31/04 3.25
1/1/05 - 6/30/05 3.35
7/1/05 - 12/31/05 3.50
1/1/06 - 6/30/06 3.60
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(c) MINIMUM FIXED CHARGE COVERAGE RATIO. 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:
Period Ratio
------ -----
New Notes Issue Date - 9/30/99 1.25
10/1/99 - 6/30/00 1.40
7/1/00 - 12/31/00 1.50
1/1/01 - 6/30/01 1.65
7/1/01 - 12/31/01 1.75
1/1/02 - 6/30/02 1.80
7/1/02 - 12/31/02 2.00
1/1/03 - 6/30/03 2.10
7/1/03 - 12/31/03 2.25
1/1/04 - 6/30/04 2.30
7/1/04 - 12/31/04 2.50
1/1/05 - 6/30/05 2.60
7/1/05 - 12/31/05 2.75
1/1/06 - 6/30/06 2.85
(d) CAPITAL EXPENDITURES. Borrower shall not permit the
aggregate amount of Capital Expenditures made by Borrower and the
Subsidiaries to exceed (a) $1.75 million in the aggregate for the
period from the Closing Date until December 31, 1998, (b) $10.0 million
in the aggregate for the fiscal year ended December 31, 1999, (c) $11.0
million in the aggregate for the fiscal year ended December 31, 2000,
and (d) $12.0 million in the aggregate for the fiscal year ended
December 31, 2001 and for any fiscal year of Borrower 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."
(j) Section 9.15 is amended by deleting the "or" at the end of
Section 9.15(f) and by adding the following immediately after Section 9.15(g)
but before the second proviso of Section 9.15:
"or (h) the repayment of the Investor Debt Securities (as in
effect on the date hereof) to the extent otherwise permitted
by the terms of this Agreement."
(k) Section 9.17 is amended by adding the words ",the New
Notes Indenture," to the third line of the second sentence under such Section
after the words ", the Management Agreement".
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(l) Section 9.19 is amended by deleting the "and" at the end
of Section 9.19(iii), replacing it with a ",", deleting the "." at the end of
Section 9.19(iv), and by adding the following immediately after the end thereof:
"and (v) any such encumbrances or restrictions existing under
or by reason of the New Notes Indenture as in effect on the
New Notes Issue Date and any Permitted Refinancing thereof so
long as such restriction in such Permitted Refinancing is not
substantially more disadvantageous to the Lenders or Borrower
than the New Notes Indenture in effect on the New Notes Issue
Date."
(m) Section 9.21 is amended by adding the following
immediately at the end thereof:
"Borrower shall not, nor shall it permit any Subsidiary to,
designate any Indebtedness or other obligation, other than
Indebtedness under the Credit Documents, as "Designated Senior
Indebtedness," as such term is defined in the New Notes
Indenture as in effect on the New Notes Issue Date or any
Permitted Refinancing thereof, or any comparable designation
that confers upon the holders of such Indebtedness or other
obligation (or any Person acting on their behalf) the right to
initiate blockage periods under the New Notes Indenture or any
other Indebtedness or other obligation of the Borrower and its
Subsidiaries"; and
(n) Section 9.25 is amended by (i) adding the words ", any New
Notes" after the words ", any Existing Notes" in the third line of Section
9.25(a), (ii) deleting the "and" at the end of Section 9.25(a)(4) and replacing
it with a ",", deleting the "or" at the end of Section 9.25(a)(5) and by adding
the following immediately after Section 9.25(a)(5):
"(6) any Restricted Debt Payment of the Existing Notes in an
amount not to exceed $29.1 million (plus accrued interest to
the date of payment and a repurchase premium not to exceed
$2.2 million) with a portion of the net proceeds from the
offering of the New Notes, so long as such Restricted Debt
Payment is effected within five Business Days of the receipt
of such net proceeds, and any Restricted Debt Payment of the
Investor Debt Securities in an amount not to exceed $20.0
million (plus accretion to the date of payment) with a portion
of the net proceeds from the offering of the New Notes, so
long as such Restricted Debt Payment is effected within five
Business Days of the receipt of such net proceeds; or";
and (iii) adding the words "or the New Notes Indenture or the New Notes" after
the words "and the Existing Notes" in the second line of Section 9.25(b).
SECTION TWO CONSENTS. (a) Subject to the entering into of
definitive documentation by one or more of the Revolving Credit Lenders or one
or more Persons who will become Revolving Credit Lenders and the Obligors by
June 30, 1999 pursuant to which such Revolving Credit Lenders agree to increase
their, or provide new, Revolving Credit Commitments (the "ADDITIONAL REVOLVING
CREDIT DOCUMENTATION"), the Majority Lenders consent to increasing the aggregate
amount of the Revolving Credit Commitments by an amount not to exceed $20.0
million and authorize the Lead
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Arranger and the Administrative Agent to, on behalf of all the Creditors,
execute and deliver the Additional Revolving Credit Documentation to change the
definition of "Revolving Credit Commitment" to reflect such increased aggregate
Revolving Credit Commitment and to increase the Revolving Credit Commitment of
any Revolving Credit Lender on ANNEX A to the Credit Agreement and/or to add any
new Revolving Credit Lender to ANNEX A to the Credit Agreement and to make such
other conforming and clarifying changes as is necessary to give effect to the
foregoing (such Additional Revolving Credit Documentation to be in form and
substance reasonably satisfactory to the Lead Arranger); PROVIDED, HOWEVER, that
on the date of any Additional Revolving Credit Documentation and immediately
after its effectiveness, 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), 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); PROVIDED, FURTHER, HOWEVER, that if no
Additional Revolving Credit Documentation shall have become effective by June
30, 1999 or if the amounts provided in the preceding proviso are not repaid or
paid, as applicable, the consent and authorization provided in this Section 2(a)
by the Majority Lenders shall be deemed withdrawn and shall have no effect on
the Credit Documents.
(b) Notwithstanding the proviso to Section 9.25(b) of the
Credit Agreement or anything else in the Credit Documents to the contrary, the
Majority Lenders consent to any amendment, supplement or other modification of
the Investor Debt Securities and the Investor Debt Securities Indenture to the
extent that the Lead Arranger determines in its reasonable judgment at the time
of such amendment, supplement or other modification that the terms and
provisions of the Investor Debt Securities and the Investor Debt Securities
Indenture, as so amended, supplemented or otherwise modified, is not in the
aggregate materially less favorable to Atrium Holdings and the Lenders than the
terms and provisions of the New Notes and the New Notes Indenture (as in effect
on the New Notes Issue Date).
(c) Pursuant to Section 9.17 of the Credit Agreement, the
Majority Lenders and the Lead Arranger consent to an amendment to the Management
Agreement to be entered into on the New Notes Issue Date, provided that such
amendment is in form and substance reasonably satisfactory to the Lead Arranger.
(d) Pursuant to Section 9.27 of the Credit Agreement, the
Majority Lenders and the Lead Arranger consent to an amendment to the Tax
Sharing Agreement to be entered into on the New Notes Issue Date, provided that
such amendment is in form and substance reasonably satisfactory to the Lead
Arranger.
(e) The Majority Lenders consent to the supplement to the
Schedules to the Credit Agreement reflecting additions related to the Heat
Acquisition and the Champagne Acquisition in the form attached hereto as EXHIBIT
B.
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(f) Notwithstanding anything to the contrary in the Credit
Agreement, any voluntary prepayment of Loans with the proceeds of the New Notes
may be applied among the Classes of Loans at the discretion of Borrower.
SECTION THREE CONDITIONS TO EFFECTIVENESS. This Amendment
shall become effective as of the date (the "EFFECTIVE DATE") when, and only
when, (a) Borrower shall have issued or shall simultaneously issue the New Notes
pursuant to an offering in which Merrill Lynch, Pierce, Fenner & Smith
Incorporated acts as sole and exclusive underwriter, initial purchaser or agent,
in an aggregate principal amount of $175.0 million pursuant to the New Notes
Indenture and having an interest rate reasonably satisfactory to the Lead
Arranger, and containing terms and conditions satisfying the definition of New
Notes and otherwise reasonably satisfactory to the Lead Arranger, and Borrower
shall have repaid, or simultaneously with the issuance of the New Notes will
repay, in full all outstanding Existing Notes, (b) the Heat Acquisition shall
have been or shall simultaneously be consummated in accordance with the terms
hereof and the terms of the Heat Acquisition Agreement (without the waiver or
amendment of any material condition unless consented to by the Lead Arranger)
and (c) the Administrative Agent shall have received (i) counterparts of this
Amendment executed by each Obligor and the Majority Lenders or, as to any of the
Lenders, advice satisfactory to the Administrative Agent that such Lender has
executed this Amendment, (ii) 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), (iii) all agreements, guarantees, documents and certificates
as the Lead Arranger or the Administrative Agent may have reasonably requested,
and all other actions shall have been taken as the Lead Arranger or the
Administrative Agent may have reasonably requested, as required by Section 9.12
and 9.20 of the Credit Agreement in connection with Heat, Vinyl and each of
their respective Subsidiaries becoming Qualified Subsidiaries and parties to the
Security Agreement, and (iv) an Officers' Certificate from Borrower stating that
each of the conditions in this Section Three have been satisfied; PROVIDED,
HOWEVER, that if the Effective Date shall not have occurred by June 30, 1999,
this Amendment shall be deemed to have not been adopted by the Majority Lenders
and shall have no effect on the Credit Documents; PROVIDED, FURTHER, HOWEVER,
that if the Champagne Acquisition shall not have been consummated in accordance
with the terms hereof and the Champagne Acquisition Agreement within 30 days
after the Effective Date, all amendments relating thereto in Section One shall
be deemed to have not been adopted by the Majority Lenders and shall have no
effect on the Credit Documents. 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.
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 the
Heat Acquisition and the Champagne Acquisition and the issuance of the New
Notes, (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
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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, as of such
specific date).
In addition, with respect to each Mortgaged Real Property set
forth on SCHEDULE 4 hereto, the Obligors shall deliver to the Administrative
Agent, on behalf of the Lenders, the documents and instruments reasonably
requested by the Administrative Agent, including, without limitation, the items
set forth in Section 7.01 of the Credit Agreement in respect of Mortgaged Real
Property, on or prior to 30 days after the New Notes Issue Date.
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.
-12-
SECTION EIGHT GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW).
[Signature Pages Follow]
S-1
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
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
GUARANTORS:
ATRIUM CORPORATION
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
ATRIUM DOOR AND WINDOW COMPANY -
WEST COAST
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
ATRIUM DOOR AND WINDOW COMPANY
OF THE NORTHEAST
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
ATRIUM DOOR AND WINDOW COMPANY
OF NEW YORK
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
S-2
ATRIUM DOOR AND WINDOW COMPANY
OF ARIZONA
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
ATRIUM DOOR AND WINDOW COMPANY
OF NEW ENGLAND
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
DOOR HOLDINGS, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
R.G. DARBY COMPANY, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
S-3
TOTAL TRIM, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
WING INDUSTRIES HOLDINGS, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
WING INDUSTRIES, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
R.G. DARBY COMPANY - SOUTH
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Secretary
TOTAL TRIM, INC. - SOUTH
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer and Assistant
Secretary
S-4
PARENT:
D AND W HOLDINGS, INC.
By: /s/ Jeff L. Hull
--------------------------------------
Name: Jeff L. Hull
Title: Executive Vice President
Chief Financial Officer
Treasurer, Secretary and
Director
AGENTS:
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, as Lead
Arranger, Syndication Agent and
Documentation Agent
By: /s/ Howard B. Sysler
--------------------------------------
Name: Howard B. Sysler
Title: Vice President
BANKBOSTON, N.A., as Administrative
Agent, Issuing Lender and as a Lender
By: /s/ Marie C. Duprey
--------------------------------------
Name: Marie C. Duprey
Title: Vice President
LENDERS:
MERRILL LYNCH CAPITAL CORPORATION
By: /s/ Howard B. Sysler
--------------------------------------
Name: Howard B. Sysler
Title: Vice President
S-5
BHF BANK AKTIENGESELLSCHAFT
By: /s/ Steven Alexander
--------------------------------------
Name: Steven Alexander
Title: Assistant Treasurer
BALANCED HIGH-YIELD FUND II LTD.
By: BHF Bank Aktiengesellschaft, acting
through its New York Branch, as
Attorney-in fact
By: /s/ Steven Alexander
--------------------------------------
Name: Steven Alexander
Title: Assistant Treasurer
GREATER BAY CORPORATE FINANCE, A
DIVISION OF CUPERTINO NATIONAL
BANK & TRUST
By: /s/ Dan McCartney
--------------------------------------
Name: Dan McCartney
Title: Vice President
HELLER FINANCIAL, INC.
By: /s/ Scott Zienke
--------------------------------------
Name: Scott Zienke
Title: Assistant Vice President
BANK ONE, TEXAS, N.A.
By: /s/ Chris W. Holder
--------------------------------------
Name: Chris W. Holder
Title: Vice President
S-6
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Thomas Li
--------------------------------------
Name: Thomas Li
Title: Managing Director
MASS MUTUAL HIGH YIELD PARTNERS II,
LLC
By: /s/ Thomas Li
--------------------------------------
Name: Thomas Li
Title: Managing Director
KZH RIVERSIDE LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH ING-2 LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
FLOATING RATE PORTFOLIO
By: INVESCO SENIOR SECURED
Management, as Attorney-in-Fact
By: /s/ Joseph Rizando
--------------------------------------
Name: Joseph Rizando
Title: Authorized Signatory
S-7
MEDICAL LIABILITY MUTUAL
INSURANCE COMPANY
By: /s/ Joseph Rizando
--------------------------------------
Name: Joseph Rizando
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
CYPRESSTREE SENIOR FLOATING RATE
FUND
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
as Portfolio Manager
By:
--------------------------------------
Name:
Title:
S-8
NORTH AMERICAN SENIOR FLOATING
RATE FUND
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY INC., as
Portfolio Manager
By: /s/ Catherine C. McDermott
--------------------------------------
Name: Catherine C. McDermott
Title: Principal
MORGAN STANLEY DEAN WITTER PRIME
INCOME TRUST
By: /s/ Peter Geoste
--------------------------------------
Name: Peter Geoste
Title: Authorized Signatory
CERES FINANCE LTD.
By:
--------------------------------------
Name:
Title:
AERIES FINANCE LTD.
By: /s/ Andrew Ian Wignall
--------------------------------------
Name: Andrew Ian Wignall
Title: Director
S-9
STRATA FUNDING LTD.
By:
--------------------------------------
Name:
Title:
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: /s/ Jeffrey A. Bakalar
--------------------------------------
Name: Jeffrey A. Bakalar
Title: Vice President
ML CLO XII PILGRIM AMERICA
(CAYMAN) LTD.
By: PILGRIM AMERICA INVESTMENTS
INC., as its Investments Manager
By: /s/ Jeffrey A. Bakalar
--------------------------------------
Name: Jeffrey A. Bakalar
Title: Vice President
ML CLO XV PILGRIM AMERICA
(CAYMAN) LTD.
By: PILGRIM AMERICA INVESTMENTS
INC., as its Investments Manager
By: /s/ Jeffrey A. Bakalar
--------------------------------------
Name: Jeffrey A. Bakalar
Title: Vice President
S-10
AIM FLOATING RATE FUND
By:
--------------------------------------
Name:
Title:
KZH III LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
KZH IV LLC
By: /s/ Virginia Conway
--------------------------------------
Name: Virginia Conway
Title: Authorized Agent
OASIS COLLATERALIZATION AIGH
INCOME PORTFOLIO 1 LTD
By: /s/ Andrew Ian Wignall
--------------------------------------
Name: Andrew Ian Wignall
Title: Director
S-11
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
--------------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT FUND, LLC
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
its Managing Member
By: /s/ Catherine C. McDermott
--------------------------------------
Name: Catherine C. McDermott
Title: Principal
CYPRESSTREE INSTITUTIONAL FUND,
LLC
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
its Managing Member
By: /s/ Catherine C. McDermott
--------------------------------------
Name: Catherine C. McDermott
Title: Principal