AMENDMENT AND WAIVER NO. 3
AMENDMENT AND WAIVER NO. 3 (this "AMENDMENT"), dated as of
November 17, 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"), XXXXXXX XXXXX & CO., XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX 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:
"GREENVILLE ACQUISITION" shall mean the acquisition by Borrower of
the property (the "GREENVILLE PROPERTY") located at 0000 Xx Xxxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxx and described in a Purchase and Sale Agreement
dated February 24, 1999 by and between DowBrands, Inc. and Borrower
pursuant to such document for a purchase price of $2.9 million.
"GREENVILLE EXPENDITURES" shall mean expenditures by Borrower to
effect improvements of the Greenville Property in an amount not to
exceed $2.0 million.
"GREENVILLE SALE-LEASEBACK" shall mean the sale by Borrower of the
Greenville Property for a price not less than $4.9 million and
contemporaneous leasing of the Greenville Property to Borrower by the
purchaser.
(ii) by adding the following to the end of the definition of "Capital
Expenditures":
"and (vii) the payment of the purchase price of the Greenville
Acquisition and the Greenville Expenditures."
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and; (iii) by adding the following at the end of the definition of "Excluded
Disposition":
"and (vi) the Greenville Sale-Leaseback."
SECTION TWO WAIVER. The Lenders hereby waive any Default or
Event of Default (a) that would not have arisen under Section 9.11(d) had this
Amendment become effective prior to consummation of the Greenville Acquisition
and Greenville Expenditures or (b) arising out of a default in the performance
of Borrower's obligations under Section 9.12 by reason of failure to mortgage
the Greenville Property to the Administrative Agent for the benefit of the
Issuing Lender, the Lenders and the Agents.
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 (a) 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 and (b) 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
Xxxxxx Xxxxxx & Xxxxxxx). 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. Failure to
perform the covenant set forth Section Four hereof shall result in this
Amendment retroactively not being effective.
SECTION FOUR REPRESENTATIONS, WARRANTIES AND COVENANT. In order
to induce the Lenders and the Agents to enter into this Amendment, each
Obligor (a) represents and warrants to each of the Lenders and the Agents that
after giving effect to this Amendment, (i) no Default or Event of Default has
occurred and is continuing, except Defaults waived pursuant to Section 2; and
(ii) 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, as of such specific
date) and (b) covenants to each of the Lenders and the Agents that it will use
its best efforts to consummate the Greenville Sale-Leaseback by December 31,
1999.
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
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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 Xxxxxx Xxxxxx &
Xxxxxxx) 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 STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW).
[Signature Pages Follow]
