Exhibit 10.36
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, dated as of October 25, 2000, is entered
into by and between D and W Holdings, Inc., a Delaware corporation ("Holdings")
and Atrium Companies, Inc., a Delaware corporation ("Atrium"). Capitalized terms
used but not defined herein shall have the meanings ascribed to such terms in
that certain Second Amended and Restated Purchase Agreement, dated as of October
17, 2000 (the "Purchase Agreement") by and between The Xxxxxxx Company, Inc., a
North Carolina corporation ("Xxxxxxx"), Holdings and Atrium.
W I T N E S S E T H:
WHEREAS, pursuant to the Purchase Agreement, Atrium will acquire
substantially all of the operating assets of Xxxxxxx'x Window and Doors Division
and all of the issued and outstanding capital stock of VES, Inc., a Delaware
Corporation doing business in North Carolina as Xxxxxxx Extrusion Systems, Inc.
(the "Acquisition").
WHEREAS, Holdings, as the parent corporation of Atrium, desires to
provide for the contribution by Holdings to Atrium of $56,500,000 in cash (the
"Contributed Cash"), in order to consummate the Acquisition, and Atrium desires
to accept such contribution.
WHEREAS, the contribution by Holdings to Atrium is intended for federal
income tax purposes for treatment under Section 351 of the Internal Revenue Code
of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. CONTRIBUTION. Subject to the terms and conditions hereof, on the
date hereof, Holdings hereby transfers, assigns and conveys to Atrium all of
Holdings' right and interest in and to, the Contributed Cash, together with
possession thereof.
2. ASSUMPTION OF LIABILITIES; INDEMNIFICATION. Subject to the terms and
conditions hereof, on the date hereof, Atrium hereby assumes all liabilities and
obligations relating to the Contributed Cash.
3. CAPITAL CONTRIBUTION. Atrium hereby accepts such transfer,
assignment and conveyance of the Contributed Cash as a contribution by Holdings
to the capital of Atrium, to consummate the Acquisition.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts to be
performed in that state, without regard to conflicts of law principles.
5. SUCCESSORS. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors, heirs,
executors, administrators, legal representatives and permitted assigns.
6. FURTHER ASSURANCES. Each of the parties hereto shall at any time and
from time to time following the date hereof, execute and deliver all such
further instruments and take all such further actions as may be reasonably
necessary or appropriate in order to more effectively contribute, deliver and
convey to Atrium, or to perfect or record Atrium's title to or interest in the
Contributed Cash being conveyed hereby and otherwise to confirm or carry out the
provisions hereof.
7. ASSIGNMENT. This Agreement may not be assigned by any of the parties
hereto without the prior written consent of the other party, except that either
party may assign this Agreement to any of its affiliates.
8. AMENDMENT. This Agreement may not be amended or modified except by a
written instrument signed by the parties hereto.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of such
separate counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
D and W HOLDINGS, INC.
By:
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Name:
Title:
ATRIUM COMPANIES, INC.
By:
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Name:
Title:
