AMENDMENT NO. 1 TO LOAN AND
SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT,
dated as of June 11, 2009 (this “Amendment No.
1”), by and among Wachovia Bank, National Association, a
national banking association, in its capacity as administrative
agent pursuant to the Loan Agreement (as hereinafter defined)
acting for and on behalf of the parties thereto as lenders (in such
capacity, “Agent”), certain of the parties to the Loan
Agreement as lenders (individually, each a “Lender” and
collectively, “Lenders”), Associated Materials, LLC
(“Associated”), Gentek Building Products, Inc. and
Gentek Building Products Limited, each individually a
“Borrower” and collectively, “Borrowers”)
and Associated Materials Holdings, LLC, Alside, Inc. and Gentek
Holdings, LLC (each individually a “Guarantor” and
collectively, “Guarantors”).
WHEREAS, Agent, Lenders, Borrowers and
Guarantors have entered into financing arrangements pursuant to
which Lenders (or Agent on behalf of Lenders) have made and may
make loans and advances and provide other financial accommodations
to Borrowers as set forth in the Loan and Security Agreement, dated
October 3, 2008, by and among Agent, Lenders, Borrowers and
Guarantors (as the same now exists and is amended and supplemented
pursuant hereto and may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the
“Loan Agreement”) and the other Loan
Documents;
WHEREAS, Associated desires to (i) issue
new subordinated notes in an aggregate principal amount of
$20,000,000 and (ii) loan certain funds to its indirect, 100%
parent company AMH Holdings II, Inc. (“AMH II”) to
finance, among other things, the retirement of certain existing
debt of AMH II and AMH Holdings, LLC;
WHEREAS, Borrowers, Guarantors, Agent and the
Required Lenders have agreed to amend certain provisions of the
Loan Agreement to reflect the foregoing transactions, on the terms
and subject to the conditions set forth herein; and
WHEREAS, by this Amendment No. 1, Agent,
Required Lenders, Borrowers and Guarantors desire and intend to
evidence such amendments;
NOW, THEREFORE, in consideration of the
foregoing and the mutual agreements and covenants contained herein,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
(a)
Additional Definitions .
(i) As used herein or in the Loan Agreement
or any of the other Loan Documents, the term “Amendment
No. 1” shall mean Amendment No. 1 to Loan and
Security Agreement by and among Agent, Required Lenders, Borrowers
and Guarantors, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced,
and the Loan Agreement and the other Loan Documents shall be deemed
and are hereby amended to include, in addition and not in
limitation, such definition.
(ii) The
following new definitions are added to Section 1 of the Loan
Agreement:
“AMH II Intercompany Loans” shall
mean, collectively, the subordinated intercompany loans from
Associated to AMH II in a maximum aggregate original principal
amount of $33,000,000, due on May 1, 2015, accruing interest
at a rate of 3% per annum, payable only “in kind” by
the addition to principal of such loans, pursuant to the AMH II
Loan Agreement, as the same now exist and may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced;
individually, each, an “AMH II Intercompany
Loan”.
“AMI New Notes” shall mean,
collectively, the new subordinated notes, in an aggregate original
principal amount of $20,000,000 issued by Associated to the holders
of the Holdings II Notes; individually, each, an “AMI New
Note”.
“AMH II Loan Agreement” shall mean
the Loan Agreement, dated as of the date of Amendment No.1, between
Associated and AMH II, as the same now exists and may hereafter be
amended, modified, supplemented, extended, renewed, restated or
replaced.
|
2.
|
|
Amendment to Definitions
.
|
(a) The definition of “Consolidated
EBITDA” in Section 1.57 of the Loan Agreement is amended
by deleting clause (xiv) thereof in its entirety and
substituting the following therefor:
“(xiv) nonrecurring gains, losses and
charges; provided , that , such nonrecurring gains,
losses and charges shall not exceed $2,500,000 (exclusive of up to
an additional $5,000,000 of nonrecurring losses and charges, to the
extent actually incurred, with respect to the making of the AMH II
Intercompany Loans, the issuance of the AMI New Notes and the
transactions related thereto), during any period of twelve
(12) consecutive months and such amount is identified in the
public filings of Parent or its Affiliates and consistent with the
historical practices of Borrowers and Guarantors”.
(b) The definition of “Permitted
Investments” in Section 1.153 of the Loan Agreement is
amended by deleting clause (o) thereof in its entirety and
substituting the following therefor:
“(o) the AMH II Intercompany Loans made in
accordance with the AMH II Loan Agreement as in effect on the date
of Amendment No. 1, provided that such loans are made on or
prior to July 15, 2009;”.
2
|
2.
|
|
Acknowledgment of Permitted
Debt . The
parties hereto acknowledge that the AMI New Notes are permitted
pursuant to Section 10.3(f) of the Loan Agreement (subject to
the Borrowers’ representation in Section 4(d) of this
Amendment and subject to Agent’s confirmation that the
requirements of subclauses (i) and (ii) of such
Section 10.3(f) are satisfied, which confirmation Agent hereby
gives) and further acknowledge for purposes of subclause
(iv) of Section 10.3(f), that the proceeds of the AMI New
Notes will be applied by Agent to the Obligations in such order and
manner as it may elect (but not be held as cash collateral
therefor); provided that it is agreed that the AMI New Notes are
only approved pursuant to Section 10.2(f) of the Loan
Agreement to the extent they are issued on or prior to
July 15, 2009. Borrowers and Guarantors shall not, directly or
indirectly, redeem, retire, defease, purchase or otherwise acquire
such Indebtedness, or set aside or otherwise deposit or invest any
sums for such purpose, except as permitted by Section 10.9(e) of
the Loan Agreement.
|
|
3.
|
|
Amendment to Affiliate Transactions
Covenant .
Section 10.06 of the Loan Agreement is amended by deleting
“and” at the end of clause (f) thereof, deleting
“.” at the end of clause (g) thereof, substituting
“; and” therefor and adding the following new clause
(h):
|
“(h) the AMH II Intercompany Loans made in
accordance with the AMH II Loan Agreement as in effect on the date
of Amendment No. 1.”
|
4.
|
|
Representations and
Warranties .
Borrowers and Guarantors represent and warrant to Agent, Lenders
and Issuing Bank the following:
|
(a) no Default or Event of Default exists
or has occurred and is continuing as of the date of this Amendment
No. 1;
|
