Exhibit 10.23
FIRST AMENDMENT TO
SECOND AMENDED & RESTATED CREDIT AGREMENT
This First Amendment to Second Amended & Restated Credit Agreement is
dated as of April 22, 1999 and is by and between Ply Gem Industries, Inc.,
a Delaware corporation (the "Company"), the Designated Subsidiaries party
to the Credit Agreement (as defined below), the Banks party to the Credit
Agreement (as defined below) and Fleet National Bank, as the Agent for the
Banks (in such capacity, together with its successors in such capacity, the
"Agent").
The parties hereto mutually agrees as follows:
1. Capitalized terms used herein and not expressly defined herein shall
have the respective meanings assigned thereto in that certain Seconded
Amended and Restated Credit Agreement dated as of August 26, 1997 and
amended and restated as of December 30, 1998, among the Company, said
Designated Subsidiaries, said Banks and the Agent (the "Credit
Agreement").
2. The Credit Agreement is hereby amended, effective as of the date
hereof, in the following respects:
(a) The definition of "Material Operating Subsidiaries" is deleted
and replaced in its entirety by the following definition:
""Material Operating Subsidiaries" shall mean (a) each Designated
Subsidiary; (b) any Subsidiary of the Company other than (i)
Napco and its Subsidiaries, (ii) Peachtree and its Subsidiaries
and (iii) Thermal-Gard and its Subsidiaries, which conducts
business operations and is material to the operations of the
business of the Company and its Subsidiaries taken as a whole;
and (c) each Subsidiary of the Company which the Company
designates as a Material Operating Subsidiary."
(b) The following definitions are added to subsection 1.1 of the Loan
Agreement each at the location in subsection 1.1 necessary to
place such definition in alphabetical order with the existing
definitions therein.
(i) "Peachtree" shall mean Caradon Doors and Windows, Inc., a
Tennessee corporation which is changing its name to
Peachtree Doors and Windows Inc. on or about April 26, 1999.
(ii) "Thermal-Gard" shall mean Caradon Thermal-Gard, Inc., a
Pennsylvania corporation which is changing its name to
Thermal-Gard, Inc. on or about April 26, 1999.
(c) Subsection 6.7(e)(ii)A) is deleted and replaced in its entirety
by the following language:
""(A)$50,000,000 in the aggregate during any fiscal year of the
Company (plus, in the case of the 1999 fiscal year, the
amount, if any, by which the Company's investment in
Peachtree and Thermal-Gard exceeds $50,000,000)."
(d) Section 9.2 of the Credit Agreement is amended by deleting the
address for the Agent's counsel and replacing same with the
following:
"with a copy to:
Xxxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx III, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000"
3. The Credit Agreement, amended as set forth above, is hereby ratified,
approved and confirmed and shall remain in full force and effect.
4. The Company and the Designated Subsidiaries represent and warrant that
each of the representations and warranties in Section 3 of the Credit
Agreement is accurate and complete as of the date hereof and that no
Default or Event of Default exists under any of the Loan Documents.
The Company and the Designated Subsidiaries represent and covenant
that none of the Company and the Designated Subsidiaries has any
claim, defense or setoff to any of its obligations under any of the
Loan Documents.
5. On the date of this First Amendment to Second Amended and Restated
Credit Agreement the Company shall pay to the Agent for the pro rata
account of the Banks an amendment fee equal to .10% of the Commitment.
6. This First Amendment to Second Amended and Restated Credit Agreement
shall be governed by and construed and interpreted in accordance with
the laws of the State of New York.
7. Section 9.14 of the Credit Agreement entitled "Governing Law; Consent
to Jurisdiction; Waiver of Trial by Jury" is by this reference fully
incorporated herein.
8. This First Amendment to Second Amended and Restated Credit Agreement
may be executed by one or more of the parties on any number of
separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
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9. A set of the copies of this First Amendment to Second Amended and
Restated Credit Agreement signed by all of the parties shall be lodged
with the Company and the Agent.
IN WITNESS WHEREOF each of the parties hereto has caused this First
Amendment to Second Amended and Restated Credit Agreement to be duly executed
by its duly authorized officer as of the date first set forth above.
BORROWER:
PLY GEM INDUSTRIES, INC.
By: ___________________
Title:
DESIGNATED SUBSIDIARIES:
SNE ENTERPRISES, INC.
By: _________________________
Title:
VARIFORM, INC.
By:___________________________
Title:
GREAT LAKES WINDOW, INC.
By: ___________________________
Title:
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AGENT:
FLEET NATIONAL BANK,
as Agent and as a Bank
By: ________________________
Title:
BANKS:
BANK OF MONTREAL
By: __________________________
Title:
EUROPEAN AMERICAN BANK
By: ________________________
Title:
CITIZENS BANK OF RHODE ISLAND
By: __________________________
Title:
SOVEREIGN BANK
By: ___________________________
Title
ERSTE BANK
By: ___________________________
Title:
By: ___________________________
Title:
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