EXHIBIT 10.21
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WAIVER
WAIVER (this "WAIVER"), dated as of March 10, 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 have been informed by their auditors that
certain leases they believed to be operating leases must be accounted for as
Capital Lease Obligations;
WHEREAS, the Borrowers desire that the Lenders temporarily waive the
applicability of Sections 6.01 and 6.02 of the Credit Agreement with respect to
such leases;
WHEREAS, pursuant to Section 11.02 of the Credit Agreement the Lenders
desire to enter into this Waiver;
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 - WAIVER. Subject to the satisfaction of the conditions set
forth in Section Two hereof, from August 27, 2004 through April 30, 2005 and
only so long as the Xxxxx Leases do not represent more than an aggregate of
$36.0 million of Capital Lease Obligations, the Xxxxx Leases shall be deemed to
not constitute Indebtedness for purposes of Section 6.01 of the Credit Agreement
and any Lien in connection with any Xxxxx Lease that
solely encumbers the property that is the subject of such lease shall be deemed
to not constitute a Lien for purposes of Section 6.02 of the Credit Agreement.
For purposes hereof, Xxxxx Leases means singly and collectively (x)
that certain Deed of Lease Agreement, made as of August 27, 2004, among PG
(Multi-16) L.P., as Landlord, and Ply Gem Industries, Inc., MWM Holding, Inc.,
Great Lakes Window, Inc., MW Manufacturers Holding Corp., MW Manufacturers Inc.,
Napco Window Systems, Inc., Kroy Building Products, Inc., Napco, Inc.,
Thermal-Gard, Inc., and Variform, Inc., as Tenant, and (y) that certain Lease
Agreement, made as of August 27, 2004, between PG-NOM (Alberta), Inc., as
nominee for PG-Trust (DE), as Landlord, and CWD Windows and Doors, Inc., as
Tenant.
SECTION TWO - CONDITIONS TO EFFECTIVENESS. This Waiver shall become
effective when, and only when, the Administrative Agent shall have received
counterparts of this Waiver executed by the Borrowers and the Required Lenders.
The effectiveness of this Waiver (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 Waiver, the Borrowers represent and
warrant to each of the Lenders and the Agents that after giving effect to this
Waiver, (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. Except
as expressly waived 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 Waiver shall not, except as
expressly provided herein, operate as an amendment or waiver of any right, power
or remedy of any Lender or any Agent under the Credit Agreement, nor constitute
an amendment or waiver 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 Waiver (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 Waiver 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 Waiver by
facsimile shall be effective as delivery of a manually executed counterpart of
this Waiver.
SECTION SEVEN - GOVERNING LAW. This Waiver 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 Waiver to be
duly executed and delivered as of the day and year first above written.
PLY GEM INDUSTRIES, INC.
By: /s/
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Name:
Title:
CWD WINDOWS AND DOORS, INC.
By: /s/
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Name:
Title:
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as a Lender
By: /s/
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Name:
Title:
