Exhibit 10.1
AMENDMENT NO. 1
AMENDMENT (this "Amendment"), dated as of July 25, 2005, to
that certain SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the "Credit
Agreement"; capitalized terms used herein and not defined shall have the meaning
set forth in the Credit Agreement) dated as of February 12, 2004, first amended
and restated as of March 3, 2004 and further amended and restated as of August
27, 2004, among PLY GEM INDUSTRIES, INC., a Delaware corporation ("U.S.
Borrower"), CWD Windows and Doors, Inc., a corporation organized under the
federal laws of Canada ("Canadian Borrower" and, together with U.S. Borrower,
each a "Borrower" and collectively the "Borrowers"), PLY GEM HOLDINGS, INC., a
Delaware corporation, the Subsidiary Guarantors, the Lenders, UBS SECURITIES LLC
and DEUTSCHE BANK SECURITIES INC., as joint lead arrangers and bookrunners, X.X.
XXXXXX SECURITIES INC., as co-arranger, JPMORGAN CHASE BANK, as documentation
agent, DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as syndication agent, UBS LOAN
FINANCE LLC, as swingline lender, and UBS AG, STAMFORD BRANCH, as issuing bank,
as administrative agent (in such capacity, "Administrative Agent") for the
Lenders and as collateral agent for the Secured Parties and the Issuing Bank.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrowers desire that the Lenders amend the
Credit Agreement to permit the redemption of limited amounts of Senior
Subordinated Notes and New Senior Subordinated Notes;
WHEREAS, pursuant to Section 11.02 of the Credit Agreement the
Lenders desire to enter into this Amendment;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - Amendment. Subject to the satisfaction of the
conditions set forth in Section Two hereof, Section 6.11(a) of the Credit
Agreement is hereby amended to add the following proviso at the end of such
Section:
provided that up to $25.0 million in the aggregate may be
used during the term of this Agreement to optionally redeem Senior Subordinated
Notes and New Senior Subordinated Notes so long as (i) no Default or Event of
Default has occurred and is continuing at the time of each such redemption or
will occur after giving effect to each such redemption, (ii) after giving effect
to each such redemption the excess of the Revolving Commitments over the sum of
all Lenders' Revolving Exposures is at least $25.0 million, (iii) in connection
with each such redemption, after giving effect on Pro Forma Basis to such
redemption and the hypothetical incurrence of an additional $25.0 million of
Revolving Loans the covenants in Sections 6.10(a) and 6.10(b) would be satisfied
and (iv) in connection with each such redemption the Administrative Agent shall
have received an Officers' Certificate from U.S. Borrower certifying that the
conditions set forth in clauses (i), (ii) and (iii) above have been met, showing
the calculations related thereto and specifying the amount of Senior
Subordinated Notes and New Senior Subordinated Notes redeemed and the aggregate
redemption price therefor;
SECTION TWO - Conditions to Effectiveness. This Amendment
shall become effective when, and only when, (i) the Administrative Agent shall
have received counterparts of this Amendment executed by the Borrowers and the
Required Lenders and (ii) the Borrowers shall have delivered, by wire transfer
of immediately available funds, to the Administrative Agent, for the ratable
account of each Lender signatory hereto, a fee in dollars equal to 0.05% of the
aggregate principal amount of Term Loans, plus the aggregate amount of Revolving
Commitments, of the Lenders signatory hereto. The effectiveness of this
Amendment (other than Sections Five, Six and Seven hereof) is conditioned upon
the accuracy of the representations and warranties set forth in Section Three
hereof.
SECTION THREE - Representations and Warranties; Covenants. In
order to induce the Lenders to enter into this Amendment, the Borrowers
represent and warrant to each of the Lenders and the Agents that after giving
effect to this Amendment, (x) no Default or Event of Default has occurred and is
continuing under the Credit Agreement and (y) the representations and warranties
made by the Borrowers in the Credit Agreement are true and correct in all
material respects (except that any representation or warranty that is qualified
as to "materiality" or "Material Adverse Effect" is true and correct in all
respects) on and as of the date hereof with the same force and effect as if made
on and as of the date hereof (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date).
SECTION FOUR - Reference to and Effect on the Credit
Agreement. On and after the effectiveness of Section Two, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes and
each of the other Loan Documents to "the Credit Agreement," "thereunder,"
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment.
Without limiting the generality of the foregoing, the Security Documents and all
of the Collateral described therein do and shall continue to secure the payment
of all Obligations of the Loan Parties under the Loan Documents. Except as
expressly amended herein, the Credit Agreement is and shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver or amendment of any right, power
or remedy of any Lender or any Agent under the Credit Agreement, nor constitute
a waiver or amendment of any provision of the Credit Agreement.
SECTION FIVE - Costs, Expenses and Taxes. The Borrowers agree
to pay all reasonable costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment (including, without
limitation, the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP), if
any, in accordance with the terms of Section 11.03 of the Credit Agreement.
SECTION SIX - 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 but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION SEVEN - Governing Law. This Amendment shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflicts of law principles that would require the application
of the laws of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
PLY GEM INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Vice President
CWD WINDOWS AND DOORS, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Vice President
UBS AG, STAMFORD BRANCH
as a Lender
By: /s/ Xxxxxxx X. Saint
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Name: Xxxxxxx X. Saint
Title: Director, Banking Products
Services, US
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director, Banking
Products Services, US
