AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of November 4, 1999, by and between ThermoView
Industries, Inc., a Delaware corporation ("Company"), and GE Capital Equity
Investments, Inc., a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into that certain Securities
Purchase Agreement, dated as of July 8, 1999 (the "Purchase Agreement," and
capitalized terms defined therein and not otherwise defined herein are used
herein as so defined); and
WHEREAS, the Company desires to have Purchaser amend certain provisions
of the Purchase Agreement; and
WHEREAS, the Purchaser has agreed to such amendment upon the terms and
subject to the conditions provided herein;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. AMENDMENTS. Company and Purchaser hereby agree to the
following amendments to the Purchase Agreement:
(a) The first paragraph of Section 5.1(h)(i) of the Purchase
Agreement is hereby amended to read as follows:
"(i) FUNDED DEBT TO MODIFIED EBITDA. The ratio,
calculated as of the end of each fiscal quarter of Company and its
Subsidiaries beginning September 30, 1999 (each a "Calculation Date"), of the
consolidated (and combined, if applicable) Funded Debt of Company and its
Subsidiaries as of each Calculation Date divided by the consolidated (and
combined, if applicable) Modified EBITDA for Company and its Subsidiaries for
the four (4) fiscal quarters of Company and its Subsidiaries immediately
preceding the applicable Calculation Date shall not be greater than 4.75 to
1.00 as of the Calculation Date occurring on September 30, 1999, and 4.25 to
1.00 as of the Calculation Date occurring on December 31, 1999, and as of all
Calculation Dates occurring on and after December 31, 1999."
(b) The definition of Base Earnings in Section 5.1(h)(i)(A) of the
Purchase Agreement is hereby amended to read as follows:
"(A) "Base Earnings" shall mean the consolidated (and combined,
if applicable) sum of all earnings before interest, taxes,
depreciation and amortization LESS any extraordinary gain,
PLUS expenses, calculated and estimated by Company and its
Subsidiaries in a manner and amount acceptable to Purchaser
in each case, incurred by Company and its Subsidiaries, if
and to the extent applicable, that reasonably are expected
no longer to be incurred because of operating efficiencies
realized as a result of and following each such entity
having become a Subsidiary of Company ("Non-Recurring
Expenses")."
Section 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof when, and only when, Purchaser shall have
received (a) counterparts of this Amendment executed by Company, (b) a copy
of the annexed Consent of Guarantors executed by the parties thereto and (c)
a copy of a fully executed comparable amendment to the PNC Loan Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES. Company hereby
represents and warrants to Purchaser as follows:
(a) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing as of the date hereof.
(b) The execution, delivery and performance by Company of
this Amendment have been duly authorized by all necessary or proper corporate
action and do not require the consent or approval of any Person which has not
been obtained.
(c) This Amendment has been duly executed and delivered by
the Company and each of this Amendment and the Purchase Agreement as amended
hereby constitutes the legal, valid and binding obligation of Company,
enforceable against it in accordance with its terms.
Section 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon
the effectiveness of this Amendment, on and after the date hereof, each
reference in the Purchase Agreement and the other Loan Documents to "this
Agreement," "hereunder," "hereof," "herein," or words of like import, shall
mean and be a reference to the Purchase Agreement as amended hereby.
(b) Except to the extent waived or amended herein, the
provisions of the Purchase Agreement and all of the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of Purchaser under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
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Section 5. COSTS AND EXPENSES. Company agrees to pay to Purchaser
on demand all costs, fees and expenses of Purchaser in connection with the
preparation, execution and delivery of this Amendment and the other
instruments and documents to be delivered pursuant hereto, including the
reasonable fees and out-of-pocket expenses of counsel for Purchaser with
respect thereto.
Section 6. 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 one and the same
instrument.
Section 7. GOVERNING LAW. This Amendment shall be governed by and
construed and interpreted in accordance with the laws of the State of New
York applicable to contracts made and performed in such state, without regard
to the principles thereof regarding conflict of laws.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
as of the date first above written.
THERMOVIEW INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Managing Director
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CONSENT OF GUARANTORS
The undersigned, a party to the Guaranty, Security Agreement and Pledge
Agreement, each dated as of July 8, 1999, hereby consents to the terms of the
foregoing Amendment dated as of November 4, 1999 (to which this Consent is
annexed) and confirms that such Guaranty, Security Agreement and Pledge
Agreement remain in full force and effect and continue to secure the
Obligations pursuant to the terms thereof.
Dated as of November 4, 1999
AMERICAN HOME DEVELOPERS CO., INC.,
a California corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
FIVE STAR BUILDERS, INC., a California corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
KEY HOME CREDIT, INC., a Delaware corporation
By: /s/ Leigh Xxx Xxxxxx
-----------------------------------
Leigh Xxx Xxxxxx, President
KEY HOME MORTGAGE, INC., a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
4
XXXXXXXX SIDING AND WINDOW,
INC., a North Dakota business corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
PRIMAX WINDOW CO., a Kentucky corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
PRECISION WINDOW MFG., INC., a Missouri
corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
ROLOX, INC., a Kansas corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
TD WINDOWS, INC., a Kentucky corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMAL LINE WINDOWS, INC., a
North Dakota corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
5
THERMOVIEW OF MISSOURI, INC., a
Missouri corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-TILT WINDOW COMPANY, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
XXXXXX CONSTRUCTION, INC., a
Missouri corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA
(ARIZONA), INC., an Arizona corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA (MICHIGAN), INC., a
Michigan corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD COMPANY, LLC, an
Illinois limited liability company
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Manager and
President
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THERMO-SHIELD OF AMERICA
(WISCONSIN), LLC, a Wisconsin limited
liability company
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx, Manager and
President
THERMOVIEW ADVERTISING GROUP,
INC., a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxx, Secretary
