Exhibit 10.4
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of
December 17, 2004 (this "Amendment"), is entered into among ATRIUM COMPANIES,
INC. ("Atrium"), individually and as the Servicer, ATRIUM DOOR AND WINDOW
COMPANY OF THE NORTHEAST ("Atrium Northeast"), ATRIUM DOOR AND WINDOW COMPANY -
WEST COAST ("Atrium West Coast"), ATRIUM DOOR AND WINDOW COMPANY OF ARIZONA
("Atrium Arizona"), ATRIUM VINYL, INC. (f/k/a Heat, Inc.) ("Atrium Vinyl"),
ATRIUM DOOR AND WINDOW COMPANY OF THE NORTHWEST (f/k/a Best Built, Inc.)
("Atrium Northwest"), ATRIUM DOOR AND WINDOW COMPANY OF THE ROCKIES (f/k/a
Champagne Industries, Inc.) ("Atrium Rockies"), THERMAL INDUSTRIES, INC.
("Thermal"), ATRIUM EXTRUSION SYSTEMS, INC. (f/k/a VES, Inc.) ("Extrusion")
(Atrium, Atrium Northeast, Atrium West Coast, Atrium Arizona, Atrium Vinyl,
Atrium Northwest, Atrium Rockies, Thermal and Extrusion are herein collectively
called the "Originators" and individually called an "Originator"), ALUMINUM
SCREEN MANUFACTURERS, INC., a Delaware corporation ("Aluminum"), ATRIUM WINDOWS
AND DOORS OF FLORIDA, LLC, a Delaware limited liability company ("Atrium
Florida"), ATRIUM SHUTTERS, INC., a Texas corporation ("Shutters"), SUPERIOR
ENGINEERED PRODUCTS CORPORATION, a California corporation ("Superior")
(Aluminum, Atrium Florida, Shutters and Superior are herein collectively called
the "New Originators" and individually called a "New Originator"), and ATRIUM
FUNDING CORPORATION, a Delaware corporation ("AFC").
RECITALS:
1. The Originators and AFC are parties to the Purchase and Sale
Agreement, dated as of July 30, 2001(the "Purchase and Sale Agreement");
2. Each party hereto desires to amend the Purchase and Sale Agreement
to add the New Originators as Originators party thereto;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used but not
defined herein have the meanings set forth in the Purchase and Sale Agreement.
2. Joinder. Each New Originator, severally and for itself alone, hereby
agrees to be bound by the terms and conditions of the Purchase and Sale
Agreement (as amended hereby) and shall have all the rights and obligations of
an Originator thereunder (and under any other Transaction Document) to the same
extent as if it were an original party thereto, effective upon the effectiveness
of this Amendment.
3. Amendments to the Purchase and Sale Agreement.
(a) Each New Originator is hereby added as an "Originator"
under the Purchase and Sale Agreement and each New Originator shall for
all purposes be an Originator party to the Purchase and Sale Agreement
and shall have all the rights and obligations of an Originator
thereunder (and under any other Transaction Document) to the same
extent as if it were an original party thereto and all references to
(i) each "Originator" and (ii) the "Originators" in the Purchase and
Sale Agreement and the other Transactions Documents shall be deemed to
include each New Originator.
(b) With respect to each New Originator, any reference in the
Purchase and Sale Agreement to the "Closing Date" or the "date hereof"
shall be deemed to be a reference to "December 17, 2004".
(c) With respect to each New Originator, any reference in the
Purchase and Sale Agreement to the "Cut-off Date" shall be deemed to be
a reference to "December 17, 2004".
(d) With respect to Atrium, the reference in Section 5.9(a) of
the Purchase and Sale Agreement to "December 31, 2000" shall be deemed
to be a reference to "December 31, 2003".
(e) Section 7.3(b) to the Purchase and Sale Agreement is
hereby amended and restated in its entirety as follows:
(b) on the Closing Date and from time to time, if
requested thereafter, mark the master data processing records
that evidence or list such Receivables and related Contracts
with substantially the following legend:
"THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD
PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS
OF JULY 31, 2001, AS THE SAME MAY FROM TO TIME TO
TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED,
BETWEEN CERTAIN ENTITIES LISTED ON SCHEDULE I
THERETO, AS ORIGINATORS, AND ATRIUM FUNDING
CORPORATION, AS PURCHASER, AND AN UNDIVIDED,
FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES
DESCRIBED HEREIN HAS BEEN SOLD TO FAIRWAY FINANCE
COMPANY, LLC (F/K/A FAIRWAY FINANCE CORPORATION)
PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED
AS OF JULY 31, 2001, AS THE SAME MAY FROM TO TIME TO
TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED,
AMONG ATRIUM FUNDING
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CORPORATION, AS SELLER, ATRIUM COMPANIES, INC., AS
SERVICER, FAIRWAY FINANCE COMPANY, LLC (F/K/A FAIRWAY
FINANCE CORPORATION) AND HARRIS NESBITT CORP. (F/K/A
BMO NESBITT BURNS CORP.), AS AGENT."
(f) Schedule I to the Purchase and Sale Agreement is hereby
amended and restated in its entirety as attached hereto.
(g) Schedule 5.6 to the Purchase and Sale Agreement is hereby
amended and restated in its entirety as attached hereto.
(h) Schedule 5.14A to the Purchase and Sale Agreement is
hereby amended and restated in its entirety as attached hereto.
(i) Schedule 5.14B to the Purchase and Sale Agreement is
hereby amended and restated in its entirety as attached hereto.
(j) Schedule 5.15 to the Purchase and Sale Agreement is hereby
amended and restated in its entirety as attached hereto.
4. Representations and Warranties. Each New Originator hereby makes, as
of the date hereof, all of the representations and warranties set forth in
Article V of the Purchase and Sale Agreement (as amended hereby). Each
Originator and New Originator hereby represents and warrants to the Purchaser
and the Agent as follows:
(a) Representations and Warranties. The representations and
warranties made by it in the Transactions Documents are true and
correct as of the date hereof.
(b) Enforceability. The execution and delivery by it of this
Amendment, and the performance of its obligations under this Amendment
and the Purchase and Sale Agreement (as amended hereby) are within its
corporate powers and have been duly authorized by all necessary
corporate action on its part. Each of this Amendment and the Purchase
and Sale Agreement (as amended hereby) is its valid and legally binding
obligations, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
(c) No Default. Both before and immediately after giving
effect to this Amendment and the transactions contemplated hereby, no
Purchase and Sale Termination Event or Unmatured Purchase and Sale
Termination Event exists or shall exist.
5. Effect of Amendment. All provisions of the Purchase and Sale
Agreement, as expressly amended and modified by this Amendment, shall remain in
full force and effect. After this Amendment becomes effective, all references in
the Purchase and Sale Agreement (or in any other Transaction Document) to "this
Agreement," "hereof," "herein" or words of similar effect referring to the
Purchase and Sale Agreement shall be deemed to be references to the Purchase
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and Sale Agreement as amended by this Amendment. This Amendment shall not be
deemed, either expressly or impliedly, to waive, amend or supplement any
provision of the Purchase and Sale Agreement other than as set forth herein.
6. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Agent of the following, in form and substance
satisfactory to the Agent:
(a) an original of this Amendment duly executed and delivered
by each of the parties hereto;
(b) an Originator Assignment Certificate duly completed,
executed and delivered by each New Originator;
(c) a Company Note in favor of each New Originator, each duly
executed by AFC;
(d) with respect to each New Originator, a Joinder Agreement,
duly executed by such New Originator, AFC and the Agent;
(e) evidence in form and substance satisfactory to the Agent
of financing statements (Form UCC-1), to be filed as of the date
hereof, as may be necessary or desirable, in the opinion of the Agent,
under the UCC of all appropriate jurisdictions to perfect AFC's
ownership interest in all Receivables and such other rights, accounts,
instruments and moneys (including, without limitation, Related
Security) in which an ownership or security interest may be assigned to
it hereunder;
(f) a written search report from a Person satisfactory to the
Servicer and the Agent listing all effective financing statements that
name any New Originator as debtor or assignor and that are filed in the
jurisdictions in which filings were made pursuant to the foregoing
clause (e) and any additional jurisdictions as may be necessary or
desirable, in the opinion of the Agent, together with copies of such
financing statements (none of which, except for those described in the
foregoing clause (e), shall cover any Receivable or any right related
to any Receivable or Related Security) which is to be sold to AFC
pursuant to the Purchase and Sale Agreement, and (ii) tax and judgment
lien search reports from a Person satisfactory to the Servicer and the
Agent showing no evidence of such liens filed against any New
Originator;
(g) a copy of the resolutions of the Board of Directors or
members of each New Originator, in each case approving this Amendment,
the Purchase and Sale Agreement (as amended hereby) and any other
agreements or documents and transactions contemplated hereby or
thereby, and in each case certified by the Secretary of an Assistant
Secretary of such Person;
(h) a good standing certificate for each New Originator issued
as of a recent date acceptable to the Agent by the Secretary of State
of the jurisdiction of such Person's incorporation;
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(i) a certificate of the Secretary or an Assistant Secretary
of each New Originator, in each case certifying the names and true
signatures of the officers authorized on such Person's behalf to sign
the Transaction Documents to be delivered by it (on which certificates
the Agent, the Servicer and AFC may conclusively rely until such time
as the Agent and the Servicer shall receive from any such Person a
revised certificate meeting the requirements of this paragraph);
(j) the certificate or articles of incorporation or other
organizational document of each New Originator, duly certified by the
Secretary of State (or analogous government authority) of the
jurisdiction of its incorporation or organization as of a recent date
acceptable to the Agent, together with a copy of the by-laws of each
New Originator, each duly certified by the Secretary or an Assistant
Secretary of such New Originator;
(k) a certificate from an officer of each New Originator to
the effect that the Servicer and such New Originator have placed on the
most recent, and have taken all steps reasonably necessary to ensure
that there shall be placed on each subsequent, data processing report
that it generates which are of the type which any proposed purchaser or
lender would use to evaluate the Receivables, substantially the
following legend: "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD
PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF JULY 31, 2001,
AS THE SAME MAY FROM TO TIME TO TIME BE AMENDED, SUPPLEMENTED OR
OTHERWISE MODIFIED, BETWEEN CERTAIN ENTITIES LISTED ON SCHEDULE I
THERETO, AS ORIGINATORS, AND ATRIUM FUNDING CORPORATION, AS PURCHASER,
AND AN UNDIVIDED, FRACTIONAL OWNERSHIP INTEREST IN THE RECEIVABLES
DESCRIBED HEREIN HAS BEEN SOLD TO FAIRWAY FINANCE COMPANY, LLC (F/K/A
FAIRWAY FINANCE CORPORATION) PURSUANT TO A RECEIVABLES PURCHASE
AGREEMENT, DATED AS OF JULY 31, 2001 AS THE SAME MAY FROM TO TIME TO
TIME BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED, AMONG ATRIUM
FUNDING CORPORATION, AS SELLER, ATRIUM COMPANIES, INC., AS SERVICER,
FAIRWAY FINANCE COMPANY, LLC AND HARRIS NESBITT CORP. (F/K/A BMO
NESBITT BURNS CORP.), AS AGENT."; and
(l) favorable opinions from Paul, Hastings, Janofsky & Walker
LLP, special counsel to certain Originators, the New Originators,
Atrium and AFC, each in form and substance satisfactory to the Agent
regarding:
(i) certain corporate and enforceability matters;
(ii) certain bankruptcy matters; and
(iii) certain UCC matters relating to Atrium Vinyl,
Atrium Northwest, Extrusion, Atrium Rockies and each New
Originator.
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7. Covenants. Within 30 days after the date hereof, each New Originator
shall deliver to the Servicer and the Agent (with a copy for the Purchaser) a
certificate from an authorized officer to the effect that: (a) the name of the
renter of all post office boxes into which Collections of the Receivables
originated by each New Originator may from time to time be mailed have been
changed to the name of AFC (unless such post office boxes are in the name of the
relevant Lock-Box Banks) and (b) all relevant postmasters have been notified
that each of the Servicer and the Agent are authorized to collect mail delivered
to such post office boxes (unless such post office boxes are in the name of the
relevant Lock-Box Banks).
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
9. 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 the
conflict of laws principles thereof).
10. Section Headings. The various headings of this Amendment are
included for convenience only and shall not affect the meaning or interpretation
of this Amendment, the Purchase and Sale Agreement or any provision hereof or
thereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
ATRIUM FUNDING CORPORATION
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM COMPANIES, INC.,
individually and as Servicer
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE NORTHEAS
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM DOOR AND WINDOW COMPANY - WEST COAST
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
S-1 Purchase and Sale Agreement
Amendment #1 (Atrium)
ATRIUM DOOR AND WINDOW COMPANY OF ARIZONA
By:
-----------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM VINYL, INC.
By:
-----------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE
NORTHWEST
By:
-----------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE ROCKIES
By:
-----------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
S-2 Purchase and Sale Agreement
Amendment #1 (Atrium)
THERMAL INDUSTRIES, INC.
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ATRIUM EXTRUSION SYSTEMS, Inc.
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
ALUMINUM SCREEN MANUFACTURERS, INC.
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
Address: 3890 West Northwest Highway
Suite 500
Dallas, Texas 75220
Attention: Eric Long
Facsimile: (214) 630-8931
ATRIUM WINDOWS AND DOORS OF FLORIDA, LLC
By: ATRIUM SHUTTERS, INC., sole member
and sole manager of Atrium Windows
and Doors, LLC
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
Address: 3890 West Northwest Highway
Suite 500
Dallas, Texas 75220
Attention: Eric Long
Facsimile: (214) 630-8931
S-3 Purchase and Sale Agreement
Amendment #1 (Atrium)
ATRIUM SHUTTERS, INC.
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
Address: 3890 West Northwest Highway
Suite 500
Dallas, Texas 75220
Attention: Eric Long
Facsimile: (214) 630-8931
SUPERIOR ENGINEERED PRODUCTS CORPORATION
By:
------------------------------------------
Name: Jeff L. Hull
Title: Chairman, President and Chief Executive
Officer
Address: 3890 West Northwest Highway
Suite 500
Dallas, Texas 75220
Attention: Eric Long
Facsimile: (214) 630-8931
S-4 Purchase and Sale Agreement
Amendment #1 (Atrium)
ACKNOWLEDGED AND AGREED:
FAIRWAY FINANCE COMPANY, LLC
(f/k/a Fairway Finance Corporation),
as Purchaser
By:
-------------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
HARRIS NESBITT CORP.
(f/k/a BMO Nesbitt Burns Corp.),
as Agent
By:
-------------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
S-5 Purchase and Sale Agreement
Amendment #1 (Atrium)