Exhibit 10.2
FIFTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FIFTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, dated as of
December 17, 2004 (this "Amendment"), is entered into among ATRIUM FUNDING
CORPORATION, a Delaware corporation, as seller (the "Seller"), ATRIUM COMPANIES,
INC., a Delaware corporation, as initial servicer (in such capacity, together
with its successors and permitted assigns in such capacity, the "Servicer"),
FAIRWAY FINANCE COMPANY, LLC (as successor to Fairway Finance Corporation), a
Delaware limited liability company (the "Purchaser"), and HARRIS NESBITT CORP.
(f/k/a BMO Nesbitt Burns Corp.), a Delaware corporation as agent for the
Purchaser (in such capacity, together with its successors and assigns in such
capacity, the "Agent").
BACKGROUND
1. The Seller, the Servicer, the Purchaser and the Agent are parties to
that certain Receivables Purchase Agreement, dated as of July 31, 2001 (as
amended through the date hereof, the "Agreement").
2. The parties hereto desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings assigned thereto in the
Agreement.
SECTION 2. Amendment. The Agreement is hereby amended as follows:
2.1. The definition of "Purchase Limit" as set forth in Exhibit I to the
Agreement is hereby amended by deleting the amount "$50,000,000" therein and
substituting the amount "$60,000,000" therefor.
SECTION 3. Representations and Warranties. Each of the Seller and the
Servicer hereby represents and warrants to the Agent and the Purchaser as
follows:
(a) Representations and Warranties. The representations and
warranties of such Person contained in Exhibit III to the Agreement are
true and correct as of the date hereof (unless stated to relate solely
to an earlier date, in which case such representations and warranties
were true and correct as of such earlier date).
(b) Enforceability. The execution and delivery by such Person of
this Amendment, and the performance of its obligations under this
Amendment and the Agreement, as amended hereby, are within its corporate
powers and have been duly authorized by all necessary corporate action
on its part. This Amendment and the
Agreement, as amended hereby, are its valid and legally binding
obligations, enforceable in accordance with its terms.
(c) Termination Event. No Termination Event or Unmatured
Termination Event has occurred and is continuing.
SECTION 4. Effectiveness. This Amendment shall become effective as of
the date hereof upon receipt by the Agent of the following, each duly executed
and dated as of the date hereof (or such other date satisfactory to the Agent),
in form and substance satisfactory to the Agent:
(a) counterparts of this Amendment (whether by facsimile or
otherwise) executed by each of the parties hereto;
(b) receipt by the Agent of written confirmation from each Rating
Agency that the effectiveness of this Amendment will not cause the
downgrade or withdrawal by such Rating Agency of its then current rating
of the Notes;
(c) receipt by the Agent of written confirmation from S&P
reaffirming the "A" rating of the facility;
(d) receipt by the Agent from the Seller on or prior to the date
hereof of an "amendment fee" in the amount set forth in that certain fee
letter dated as of the date hereof, by and between Seller and Agent;
(e) a fully executed and effective First Amendment to Purchase
and Sale Agreement, dated as of the date hereof, among the Originators
party thereto and the Seller; and
(f) such other documents, opinions, instruments and approvals as
the Agent may reasonably request.
SECTION 5. Effect of Amendment. Except as expressly amended and modified
by this Amendment, all provisions of the Agreement shall remain in full force
and effect. After this Amendment becomes effective, all references in the
Agreement (or in any other Transaction Document) to "the Receivables Purchase
Agreement," "this Agreement," "hereof," "herein" or words of similar effect, in
each case referring to the Agreement, shall be deemed to be references to the
Agreement as amended by this Amendment. This Amendment shall not be deemed to
expressly or impliedly waive, amend or supplement any provision of the Agreement
other than as set forth herein.
SECTION 6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
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SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York without
reference to conflict of laws principles.
SECTION 8. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this amendment or the Agreement or any provision hereof or thereof.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective, duly authorized officers as of the date and year
first-above written.
ATRIUM FUNDING CORPORATION, as Seller
By:_____________________________________
Name Printed: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
S-1 Fifth Amendment to RPA (Atrium)
ATRIUM COMPANIES, INC.,
as Servicer
By:________________________________
Name Printed: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
S-2 Fifth Amendment to RPA (Atrium)
HARRIS NESBITT CORP., as Agent
By:________________________________
Name Printed:______________________
Title:_____________________________
S-3 Fifth Amendment to RPA (Atrium)
FAIRWAY FINANCE COMPANY, LLC, as Purchaser
By:________________________________
Name Printed:______________________
Title:_____________________________
S-4 Fifth Amendment to RPA (Atrium)