EXHIBIT 10.21
FOURTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FOURTH AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT, dated as of
December 10, 2003 (this "Amendment"), is entered into among ATRIUM FUNDING
CORP., 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 XXXXXX XXXXXXX CORP. (f/k/a BMO
Xxxxxxx Xxxxx 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. Amendments. The Agreement is hereby amended as follows:
2.1. Exhibit I to the Agreement is hereby amended by adding thereto the
following new definitions in appropriate alphabetical order:
"Account" shall mean any account (as that term is defined in
Section 9-102(a)(2) of the UCC) of Atrium or any of its subsidiaries
arising from the sale or lease of goods or rendering of services.
"Contingent Obligation" shall mean, as to any Person, any
direct or indirect liability of such Person, whether or not contingent,
with or without recourse, (a) with respect to any Debt, lease, dividend
or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i) to
purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment
or discharge of any such primary obligation, or to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities
or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss
in respect thereof (each of (i)-(iv), a "Guaranty Obligation"); (b)
with respect to any Surety Instrument (other than any Letter of
Credit) issued for the account of such Person or as to which such
Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to
obtain the services of, another Person if the relevant contract or
other related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract;
provided, however, that the term Contingent Obligation shall not
include endorsements of instruments for deposit or collection or
standard contractual indemnities entered into, in each case in the
ordinary course of business. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the
stated or determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in
respect thereof, and (y) in the case of other Contingent Obligations,
be equal to the maximum reasonably anticipated liability in respect
thereof.
"Fixed Charge Coverage Ratio" shall mean, for any Test Date,
the ratio of (x) Consolidated EBITDA for the Measurement Period ending
on or immediately prior to such Test Date to (y) Fixed Charges for such
Measurement Period.
"Fixed Charges" shall mean, for any Measurement Period, the
sum of (i) Consolidated Interest Expense for such period, (ii) the sum
of all scheduled principal payments on any Debt of Atrium and its
Consolidated Subsidiaries (including, without duplication, any lease
payments in respect of Capital Leases attributable to the principal
component thereof for such period), (iii) Capital Expenditures actually
made during such period and (iv) all income taxes actually paid in cash
by Atrium and its Subsidiaries during such period.
"Guaranty Obligation" shall have the meaning set forth in the
definition of "Contingent Obligation" herein.
"Holdings" shall mean Atrium Corporation, a Delaware
corporation.
"Surety Instruments" shall mean all letters of credit
(including standby and commercial), bankers' acceptances, bank
guarantees, surety bonds and similar instruments.
"Transactions" shall have the meaning set forth in the Credit
Agreement.
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2.2. The definition of "Adjusted Net Income" set forth in Exhibit I to
the Agreement is hereby amended and restated in its entirety as follows:
"Adjusted Net Income" shall mean, for purposes of the
financial covenants listed in paragraph (s) of Exhibit IV to the
Agreement only, for any period, the consolidated net income (loss) for
such period, of Atrium and its Consolidated Subsidiaries, adjusted by
excluding (to the extent taken into account in the calculation of such
consolidated net income (loss)) the effect of (a) gains or losses for
such period from Dispositions not in the ordinary course of business
and Excluded Dispositions not in the ordinary course of business, and
the tax consequences thereof, (b) any non-recurring or extraordinary
items of income or expense for such period and the tax consequences
thereof (including expenses related to the Transactions or any
Permitted Acquisition); provided that an item will not be considered
"non-recurring" if it is in the ordinary course of continuing
operations or if such item occurred within the prior two years, (c) the
portion of net income (loss) of any Person (other than a Subsidiary) in
which Atrium or any Subsidiary has an ownership interest, except to the
extent of the amount of cash dividends or other cash distributions
actually paid to Atrium or (subject to clause (d) below) any Subsidiary
during such period to the extent not in excess of Atrium's or such
Subsidiary's proportionate interest in such Person's consolidated net
income for such period, and (d) the net income of any Subsidiary to the
extent that the declaration or payment of dividends or similar
distribution by such Subsidiary was not for the relevant period
permitted (without giving effect to any non-permanent waiver), directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary or its
stockholders.
2.3. The definition of "Capital Expenditures" set forth in Exhibit I to
the Agreement is hereby amended and restated in its entirety as follows:
"Capital Expenditures" shall mean, for purpose of the
financial covenants listed in clause (s) of Exhibit IV to the Agreement
only, for any period, any direct or indirect expenditures of Atrium and
the Subsidiaries which should be capitalized on the consolidated
balance sheet of Atrium and the Subsidiaries in accordance with GAAP in
respect of the purchase or other acquisition of fixed or capital assets
(including, without limitation, securities), excluding (i) normal
replacement and maintenance programs properly charged to current
operations, (ii) any expenditure made with the Net Available Proceeds
of any Disposition to the extent such Net Available Proceeds are not
required to be applied to the prepayment of the Loans in accordance
with Section 2.10(a)(iv) of the Credit Agreement, (iii) any expenditure
made with the proceeds of any Excluded Disposition, (iv) expenditures
in an amount not to exceed the sum of (x) the Net Available Proceeds of
any Casualty Event to the extent such Net Available Proceeds are not
required to be applied to the prepayment of the Loans in accordance
with Section 2.10(a)(i) of the Credit Agreement and (y) the amount of
any applicable insurance deductibles with respect to such Casualty
Event to the extent such amount is applied as set forth in clause (x)
of Section 2.10(a)(i) of the Credit Agreement within the period
specified therein, (v) expenditures to effect Permitted Acquisitions,
(vi) the purchase price of equipment to the extent that the
consideration therefor consists of used
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or surplus equipment being traded in at such time or the proceeds of a
concurrent sale of such used or surplus equipment, in each case in the
ordinary course of business, (vii) any deposits required to be made in
connection with the purchase or other acquisition of fixed or capital
assets; provided, however, that such a deposit shall no longer be
excluded from Capital Expenditures if used to purchase or acquire
fixed or capital assets, (viii) option exercise costs to acquire
Property and the costs of improvements to such Property so long as
such Property is sold within the same fiscal year, (ix) any
capitalized interest and (x) capital expenditures resulting from
operating lease conversions pursuant to Section 9.08(k)(ii) of the
Credit Agreement.
2.4. The definition of "Permitted Holders" set forth in clause (c) of
the last paragraph of the definition of "Change in Control" set forth in Exhibit
I to the Agreement is hereby amended and restated in its entirety as follows:
(c) "Permitted Holders" means (i) ATR Acquisition, LLC and any
other investment entity managed or controlled by Kenner & Company, Inc.
and/or its Affiliates, (ii) UBS Capital Americas II, LLC and/or its
Affiliates, (iii) ML IBK Positions, Inc. and/or its Affiliates, (iv)
any partners, members or investors (either directly or indirectly
through any investment partnerships or entities) in the entities
described in clauses (i), (ii) and (iii) above who are distributees of
investments held by the entities described in clauses (i), (ii) and
(iii) above, (v) any immediate family members or lineal descendents, or
trusts or other entities for their benefit in respect of the Persons
described in clauses (i), (ii), (iii) and (iv) above, and (vi) any
Affiliates in respect of the Persons described in clauses (i), (ii),
(iii) and (iv) above.
2.5. The definition of "Consolidated EBITDA" set forth in Exhibit I to
the Agreement is hereby amended and restated in its entirety as follows:
"Consolidated EBITDA" shall mean, for any Measurement Period,
the remainder of (A) the sum (without duplication) of the amounts for
such period of (i) Adjusted Net Income, (ii) income tax expense to the
extent deducted in determining Adjusted Net Income for such period,
(iii) the sum of (a) all interest expense to the extent deducted in
determining Adjusted Net Income for such period, plus (b) an amount
equal to the interest (or other fees in the nature of interest or
discount accrued and paid or payable in cash) for such period on any
Permitted Receivables Transaction, plus (c) other than for purposes of
the definition of Excess Cash Flow, Permitted Securitization Fees paid
or payable in cash for such period to the extent deducted in
determining Adjusted Net Income for such period (without duplication of
any such amounts added back pursuant to any other clause of this
definition), (iv) depreciation expenses and amortization expense to the
extent deducted in determining Adjusted Net Income for such period, (v)
the non-cash component of any item of expense to the extent deducted in
determining Adjusted Net Income for such period, other than to the
extent requiring an accrual or reserve for future cash expenses, (vi)
the amortization or expensing of any asset step-up resulting from
purchase accounting to the extent deducted in determining Adjusted Net
Income, (vii) other than for purposes of calculating Excess Cash Flow,
to the extent deducted in determining Adjusted Net Income, the cash
portion of stock compensation expense related to the departure from
Holdings or any Subsidiary of any Person owning
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any Equity Interests of Holdings up to a maximum of $15.0 million,
(viii) expenses resulting from changes in accounting methods, (ix) the
non-cash portion of stock compensation expense to the extent not
requiring any cash expenses in the relevant Measurement Period and (x)
non-capitalized acquisition expenses, all as determined on a
consolidated basis for Atrium and its Consolidated Subsidiaries in
accordance with GAAP, minus (B) the sum of (1) cash dividends and
other distributions paid by Atrium pursuant to Sections 9.10(b)(i) of
the Credit Agreement and (2) solely for purposes of calculating
Consolidated EBITDA for purposes of the Interest Coverage Ratio and
the Fixed Charge Coverage Ratio, interest income from Permitted
Investments.
Other than for purposes of calculating Excess Cash Flow,
Consolidated EBITDA shall be calculated on a pro forma basis (as
determined by the Credit Agreement) to give effect to the Transactions,
any Acquisition permitted hereby and Dispositions (other than any
Dispositions in the ordinary course of business) consummated during the
relevant Measurement Period as if each such Acquisition had been
effected on the first day of such period and as if each such
Disposition had been consummated on the day prior to the first day of
such period.
Notwithstanding the foregoing, Consolidated EBITDA for (i) the
first fiscal quarter of 2003 shall be $12.447 million, (ii) the second
fiscal quarter of 2003 shall be $25.753 million and (iii) the third
fiscal quarter of 2003 shall be $27.106 million, subject to accounting
for Acquisitions and Dispositions occurring after the date hereof
(other than the Transactions) on a pro forma basis (as determined by
the Credit Agreement). In addition, Consolidated EBITDA for the fourth
fiscal quarter of 2003 shall be increased by $764,000 to account for
amounts related to certain operating lease conversions and management
fees that were deducted in determining Adjusted Net Income.
2.6. The definition of "Consolidated Interest Expense" set forth in
Exhibit I to the Agreement is hereby amended and restated by adding to the end
thereof the following new paragraph:
Consolidated Interest Expense shall be calculated on a pro
forma basis (as determined by the Credit Agreement) to give effect to
any Debt incurred, assumed or permanently repaid or extinguished during
the relevant Measurement Period in connection with any Acquisitions
permitted hereby and Dispositions (other than any Dispositions in the
ordinary course of business) as if such incurrence, assumption,
repayment or extinguishing had been effected on the first day of such
period.
2.7. The definition of "Credit Agreement" set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as follows:
"Credit Agreement" means the Credit Agreement among Atrium
Companies, Inc., as borrower, Atrium Corporation, the subsidiary
guarantors therein, each of the lenders that is or becomes a signatory
thereto as lender, Canadian Imperial Bank of Commerce, as the
administrative agent and as the collateral agent, UBS Securities LLC
("UBSS"), as the syndication agent, Antares Capital Corporation, as the
documentation agent, and CIBC World Markets Corp. and UBSS, as the
joint lead arrangers and joint book-runners,
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dated as of December 10, 2003 (without regard, or giving effect, to
any amendments, supplements, amendments and restatements, replacements
or other modification thereof or thereto that may take place on or
after such date).
2.8. The definition of "Debt" set forth in Exhibit I to the Agreement
is hereby amended and restated in its entirety as follows:
"Debt" means (1) solely with regard to this Agreement: (i)
indebtedness for borrowed money, (ii) obligations evidenced by bonds,
debentures, notes or other similar instruments, (iii) obligations to
pay the deferred purchase price of property or services, (iv)
obligations as lessee under leases which shall have been or should be,
in accordance with generally accepted accounting principles, recorded
as capital leases, (v) obligations under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of kinds referred to
in clauses (i) through (iv) above, and (vi) liabilities in respect of
unfunded vested benefits under plans covered by Title IV of ERISA; and
(2) solely with respect to the terms used in this Exhibit I to define
(directly or indirectly) certain terms used in the financial covenants
listed in paragraph(s) of Exhibit IV to the Agreement, for any Person,
without duplication, (a) all indebtedness for borrowed money of such
Person; (b) all non-contingent (but only so long as non-contingent)
obligations issued, undertaken or assumed by such Person as the
deferred purchase price of Property or services (other than trade
payables and accrued expenses paid on customary terms and not more than
60 days past due and incurred in the ordinary course of business on
ordinary terms); (c) all non-contingent reimbursement or payment
obligations of such Person with respect to Surety Instruments (such as,
for example, unpaid reimbursement obligations in respect of a drawing
under a letter of credit); (d) all obligations of such Person evidenced
by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
Property or businesses; (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement,
or incurred as financing, in either case with respect to Property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such Property), the amount of such
indebtedness to be deemed the fair market value of such Property; (f)
all Capital Lease Obligations of such Person; (g) all amounts required
to be paid by such Person as a guaranteed payment to partners,
including any mandatory redemption of shares or interests; (h) all
obligations, contingent or otherwise, relative to the face amount of
all letters of credit, whether or not drawn, and banker's acceptances
issued for the account of such Person; (i) all obligations of such
Person under any take-or-pay or other similar arrangements that are not
in the ordinary course of business; (j) all obligations of such Person
under any Disqualified Capital Stock; (k) all indebtedness of other
Persons referred to in clauses (a) through (j) above secured by (or for
which the holder of such indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in Property (including
accounts and contracts rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such
indebtedness, the amount of such indebtedness to be deemed to be the
fair market value of such Property; and (l) all Guaranty Obligations of
such Person in respect of indebtedness or obligations of others of the
kinds referred to
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in clauses (a) through (j) above. Debt shall not include accounts
extended by suppliers in the ordinary course of business on normal
trade terms in connection with the purchase of goods and services. The
Debt of any Person shall include any Debt of any partnership in which
such Person is the general partner.
2.9. The definition of "Disqualified Capital Stock" set forth in
Exhibit I to the Agreement is hereby amended and restated by replacing the date
"June 30, 2006" where it appears in the last line thereof, with the date
"December 10, 2008" therein.
2.10. The definition of "Excluded Dispositions" set forth in Exhibit I
to the Agreement is hereby amended and restated in its entirety as follows:
"Excluded Dispositions" shall mean (i) Dispositions for fair
market value resulting in no more than $5.0 million in aggregate
proceeds in any fiscal year; (ii) an exchange of equipment or inventory
for other equipment or inventory, provided that the applicable Obligor
(or any of its Subsidiaries) effecting such exchange receives at least
substantially equivalent value in such exchange for the Property
disposed of; (iii) other than for purposes of Section 9.06 of the
Credit Agreement, any transaction permitted by Section 9.06 of the
Credit Agreement (other than clauses (g) and (h) thereof), any Lien and
any Investment permitted by Section 9.09 of the Credit Agreement; (iv)
any issuance of Equity Interests by any Subsidiary to directors or
nominees if required by applicable law if resulting in de minimis
proceeds; and (v) the sale of inventory in the ordinary course of
business.
2.11. Paragraph (a) of the definition of "Facility Termination Date"
set forth in Exhibit I to the Agreement is hereby amended and restated by
replacing the date "July 31, 2004" with the date "December 10, 2008" therein.
2.12. The definition of "Permitted Receivables Transaction" set forth
in Exhibit I to the Agreement is hereby amended and restated in its entirety as
follows:
"Permitted Receivables Transaction" shall mean any transaction
providing for the sale or financing of Accounts receivable (other than
between Qualified Companies) including the facility evidenced by the
Agreement and the other Transaction Documents; provided, however, that
(a) any such transaction shall be consummated on material terms
substantially as described on Annex A to the Credit Agreement and such
other terms and provisions that in Atrium's good faith judgment are
usual and customary for transactions of this type (including, without
limitation, representations warranties, covenants, indemnities and
defaults), or as the Majority Lenders may otherwise consent, such
consent not to be unreasonably withheld, and (b) the advance rate
thereunder shall not be less than 50% of face value of the Accounts
subject thereto and the aggregate purchase commitments thereunder by
the parties other than any Obligor shall not exceed $75,000,000, in the
aggregate for all such transactions in effect from time to time.
2.13. The definition of "Total Debt" set forth in Exhibit I to the
Agreement is hereby amended and restated in its entirety as follows:
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"Total Debt" shall mean, at any date, and without duplication,
the aggregate amount of Debt of Atrium and its Consolidated
Subsidiaries of the types described in clauses (a), (b), (c), (d), (e),
(f), (h) and (j) of paragraph (2) of the definition of "Debt" and all
Guaranty Obligations of Atrium and its Consolidated Subsidiaries in
respect thereof as of such date and determined on a consolidated basis
in accordance with GAAP.
2.14. Paragraph (s) of Exhibit IV to the Agreement is hereby amended
and restated in its entirety as follows:
(s) Financial Covenants.
(i) Maximum Total Leverage Ratio. With regard to the
Servicer (on a consolidated basis) 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
------ -----
December 10, 2003 through September 30, 2004 4.95x
October 1, 2004 through September 30, 2005 4.75x
October 1, 2005 through September 30, 2006 4.25x
October 1, 2006 through September 30, 2007 3.75x
October 1, 2007 through September 30, 2008 3.25x
October 1, 2008 and thereafter 3.00x
(ii) Minimum Interest Coverage Ratio. With regard to
the Servicer (on a consolidated basis), 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
------ -----
December 10, 2003 through September 30, 2004 2.25x
October 1, 2004 through September 30, 2005 2.25x
October 1, 2005 through September 30, 2006 2.50x
October 1, 2006 through September 30, 2007 2.50x
October 1, 2007 through September 30, 2008 2.75x
October 1, 2008 and thereafter 3.00x
(iii) Minimum Fixed Charge Coverage Ratio. With
regard to the Servicer (on a consolidated basis), 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:
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Period Ratio
------ -----
December 10, 2003 through September 30, 2004 1.25x
October 1, 2004 through September 30, 2005 1.25x
October 1, 2005 through September 30, 2006 1.25x
October 1, 2006 through September 30, 2007 1.25x
October 1, 2007 through September 30, 2008 1.25x
October 1, 2008 and thereafter 1.25x
(iv) Capital Expenditures. The Servicer shall not
permit the aggregate amount of Capital Expenditures made by it
and its subsidiaries to exceed (a) $25.0 million in the
aggregate for the fiscal year ended December 31, 2003, (b)
$25.0 million in the aggregate for the fiscal year ended
December 31, 2004, (c) $26.0 million for the fiscal year ended
December 31, 2005, (d) $27.0 million for the fiscal year ended
December 31, 2006, (e) $28.0 million for the fiscal year ended
December 31, 2007, (f) $29.0 million for the fiscal year ended
December 31, 2008, (g) $30.0 million for the fiscal year ended
December 31, 2009 and (h) $31.0 million for the fiscal year
ended December 31, 2010; 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 75% of the
amount of such shortfall may be added to the amount of Capital
Expenditures permitted for the immediately succeeding (but not
any other) fiscal year 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."
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.
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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 of the Purchaser;
(c) receipt by the Agent from the Seller on the date hereof of
an "amendment fee" in the amount set forth in that certain fee letter
dated December 10, 2003, by and between Seller and Agent;
(d) receipt by the Agent of a true and correct copy of the
Credit Agreement, executed by each of the parties thereto; and
(e) 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.
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 CORP., as Seller
By:
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Name Printed:
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Title:
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S-1
ATRIUM COMPANIES, INC.,
as Servicer
By:
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Name Printed:
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Title:
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S-2
XXXXXX XXXXXXX CORP., as Agent
By:
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Name Printed:
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Title:
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By:
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Name Printed:
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Title:
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S-3
FAIRWAY FINANCE COMPANY, LLC,
as Purchaser
By:
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Name Printed:
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Title:
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S-4
