FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
EXECUTION
COPY
FIRST
AMENDMENT TO STOCK PURCHASE AGREEMENT
THIS
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this
“Amendment”), dated as of October 31, 2006, is among Alcoa Securities
Corporation, a corporation organized under the laws of Delaware, U.S.A.
(hereinafter “Seller”), Alcoa Inc., a corporation organized under the laws of
Pennsylvania, U.S.A. (hereinafter “Alcoa”), and Ply Gem Industries, Inc., a
corporation organized under the laws of Delaware, U.S.A. (hereinafter
“Purchaser”).
RECITALS
A. Seller,
Alcoa and Purchaser are parties to that certain Stock Purchase Agreement (the
“SPA”) dated as of September 22, 2006.
B. Seller
and Purchaser are parties to that certain Seller Disclosure Letter (the
“Disclosures”) dated as of September 22, 2006.
C.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the SPA.
D. The
parties hereto desire to amend the SPA and the Disclosures on the terms and
conditions set forth herein.
AGREEMENTS
In
consideration of the foregoing premises and the covenants and agreements herein
contained and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Amendments
and Supplements to the SPA.
The
SPA
is amended and supplemented as set forth below.
(a) Sections
11.05 and 11.06. Sections
11.05
and
11.06
of the
SPA are hereby amended by adding the indicated bold, double-underlined language,
and eliminating the struck-through language:
Section
11.05 Environmental Indemnification. Seller will, subject to the limitations
set
forth in Sections
13.03 (other
than with respect to the indemnification obligations of Seller set forth
in Section 11.05(e), which shall
not be subject to such limitations)and13.05
and
the procedures set forth in Section
13.04,
indemnify, defend, hold harmless, pay and reimburse the Purchaser Indemnitees
from and against any and all Losses to the extent arising out of or resulting
from:
(a) any
breach of or inaccuracy in any the representations and warranties set forth
in
Section
4.15,
as of
the date such representation or warranty was made or as if such representation
or warranty were made on and as of the Closing Date (except for such
representations and warranties that expressly relate to a specified date, the
breach of or inaccuracy in which will be determined by reference to such
specified date); or
(b) any
release or disposal of or exposure to (except employee exposure to the extent
resulting Losses are covered by workers compensation) any Hazardous Substances
prior to the Closing Date either (i) on the Real Property or (ii) otherwise
relating to the ownership or operation of the Business or the Company prior
to
the Closing;
(c) the
violation of any
Applicable Environmental Law by the Company prior to the Closing
Date;or
(d) any
release, threatened
release or disposal of any Hazardous Substances on any real property not
owned
or operated by the Company but at which the Company or any of its Affiliates
or
any predecessors of any of the foregoing arranged for the disposal of Hazardous
Substances prior to the Closing Date; or
(e)
any
release, threatened release or disposal of or exposure to any Hazardous
Substances at any time on the real property located at 0000 Xxxxxxxx Xxxx,
Xxxxxx, Xxxx.
Section
11.06 Survival. The obligations of Seller to indemnify Purchaser pursuant
to
Section 11.05will expire on the third anniversary of the Closing Date
except
for the indemnificationobligations
of Seller set forth in
Section 11.05(e) which shall survive without limitation.Notwithstanding
the foregoing, the obligation of Seller to indemnify, defend and hold harmless
Purchaser pursuant to Section 11.05shall not terminate with respect to any
item
as to which Purchaser shall have, before the expiration of Seller’s
indemnification obligations, previously made a claim by delivering a notice
pursuant to Section 14.04(stating in reasonable detail the basis of such
claim)
to Seller.
2. Amendments
and Supplements to the Disclosures.
The
Disclosures are amended and supplemented as set forth below.
(a) Section
4.07(b)(4) of the Leased Property Disclosure. Section
4.07(b)(4)
of the
Leased Property Disclosure is hereby amended by adding the indicated bold,
double-underlined language:
Lease
between Omega Corporate Center, L.P. (“Landlord”) and Alcoa Building Products,
Inc. (“Tenant”) dated October 24, 2001 for 0000 Xxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx, as
amended pursuant to First Lease Amendment dated August 29, 2003 between Landlord
and Alcoa Home Exteriors, Inc. (“Tenant”) and Second Lease Amendment dated
December 12, 2003 between Landlord and Tenant.
(b) Section
4.07(b) of the “Leased Property” Disclosure. Section
4.07(b)
of the
“Leased Property” Disclosure is hereby amended by adding the indicated bold,
double-underlined language in clauses (1), (9), (11) and (13)
below:
(1) Agreement
To Lease dated June 6, 2001 between Roller Xxxxxx Partnership, LC (“Lessor”) and
Alcoa Building Products (“Lessee”) and Planters Bank & Trust Company of
Virginia (“Assignee”), as amended pursuant to that certain First Amendment to
Lease dated August 1, 2003 between Roller Xxxxxx Partnership, LC (“Lessor”) and
Alcoa Building Products (“Lessee”) and
Second Amendment to Lease dated September 29, 2006 between Lessor and Alcoa
Home
Exteriors, Inc.
for
property located at South River District, Stuarts Draft, Virginia.
(9) Lease
Agreement dated August 26, 2003 between Service First Logistics Corporation
(“Landlord”) and Alcoa Home Exteriors, Inc. (“Tenant”), as amended pursuant to
the Lease Addendum dated October 10, 2003 between the parties; Lease
Addendum dated November 21, 2003 between the parties;
Fourth
Amendment dated February 26, 2004 between the parties; Fifth Amendment dated
March 29, 2004 between the parties; Sixth Amendment To Lease Agreement dated
April 20,2004; Seventh Amendment To Lease Agreement dated September 2, 2004;
and
The Eight Amendment To Lease Agreement dated November 28, 2005 between the
parties for property located at 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxx
Xxxxxxxx.
(11) Lease
Agreement dated September
____, 2006 October
3, 2006
between
X.X. Xxx Incorporated (“Landlord”) and Alcoa Home Exteriors, Inc. (“Tenant”) for
property located at 3345 and 0000 Xxxxxxx Xx., Xxxxxxx, Xxxxx. This
lease is to be executed before the Closing Date.
(13) Lease
dated October 18, 2006 between Xxxxxx Mill Road Plant, LLC (“Landlord”) and
Alcoa Home Exteriors, Inc. (“Tenant”) for property located at 0000 Xxxxxx Xxxx
Xxxx, Xxxxxxxx, Xxxxxxxx.
(c) Section
4.07(b) of the “Exceptions to a Lease” Disclosure.
Section
4.07(b)
of the
Exceptions to a Lease Disclosure is hereby amended by adding the indicated
bold,
double-underlined language, and eliminating the struck-through
language:
EXCEPTIONS
TO A LEASE
1. The
Exhibit concerning the environmental Baseline Report referenced in Section
Eleven of the Agreement To Lease dated June 6, 2001 between Roller Xxxxxx
Partnership, LC (“Lessor”) and Alcoa Building Products (“Lessee”) and Planters
Bank & Trust Company of Virginia (“Assignee”), as amended, for the for
property located at South River District, Stuarts Draft, Virginia, cannot be
located.
(f) Section
4.15 Environmental Matters.
Section
4.15(4)
Environmental Matters are hereby amended by adding the indicated bold,
double-underlined language, and eliminating the struck-through
language:
Xxxxxx
Services, Rock Hill, South Carolina
- The
Company is involved at this site through its affiliation with Southeastern
Kusan. The site operated from the 1960s to 1997 as a hazardous waste recycler
and incinerator. The South Carolina Department of Health and Environmental
Control is the lead agency who has been investigating, and implementing removal
actions at the site since approximately 2004. In November 2004, SCDHEC sent
notice letters to a number of entities, not including Southeastern Kusan,
demanding that those entities make a good faith offer to investigate and
remediate the site. A PRP group formed in February 2005, and in May 2006, this
group invited other former alleged contributors to the site, including
Southeastern Kusan, to join the group and participate at the site. Alcoa, on
behalf of Southeastern Kusan and other affiliated and/or predecessor entities,
joined the group in June 2006. To date, Alcoa has paid two assessments totaling
$25,000 to the group to fund the group's work related to the site. According
to
nexus documents acquired by the group from SCDEHC, it
appears that
Southeastern Kusan allegedly sent some 276,990 358,000
lbs of
material to the site,
which would represent less than 1% of the total waste in to the
site.
The
group has yet to develop an
final
allocation for the site as
the number of parties in the group continues to expand.
, and
therefore there are no percentage shares for the group
member
Currently, SCDHEC is conducting the RI/FS at the site and hopes to have the
remedy selected in early 2007. SCDHEC has indicated to the group that it intends
to commence negotiations with the PRP group in the very near future to reach
an
agreement under which the group would perform the selected remedy. SCDHEC’s
preliminary estimate for total future costs to finalize the RI/FS and implement
the remedy totals between $15 and $25 MM.
3. Amendments
and Supplements to the SPA Regarding Certain Material Contract
Matters.
The
parties hereby acknowledge that prior to the date hereof, Seller notified
Purchaser of an actual or alleged breach or default by the Company under the
Material Contract described in Section
4.13(a)(xv)(15)
of the
Disclosure Letter (the “Subject Material Contract”) and that on or prior to the
date hereof, in order to induce Purchaser to proceed with the Closing, Seller
has caused the Company to enter into a letter agreement to the Subject Material
Contract with the other party thereto (the “Waiver”), pursuant to which such
other party agreed to waive such actual or alleged breach or default in return
for the payment of an amount calculated in accordance therewith (the “Waiver
Amount”) and at the time specified therein. In furtherance of the foregoing, and
to further induce Purchaser to proceed with the Closing:
(a) Purchaser
hereby agrees to cause the Company to perform its obligations set forth in
the
Waiver, including paying the Waiver Amount to the other party to the Subject
Material Contract, at the time specified in the Waiver; and
(b) Notwithstanding
anything to the contrary set forth in the SPA, for all purposes under the SPA,
the Waiver Amount shall be deemed to be a current liability as of the close
of
business on the Closing Date, shall be included in the calculation of the
Closing Working Capital pursuant to Article 3 of the SPA and shall be reflected
as a current liability in the Closing Working Capital Statement, and the SPA
shall be deemed to be amended, supplemented and otherwise modified
accordingly.
4. Governing
Law.
This
Amendment shall be construed and interpreted in accordance with the internal
laws of the State of New York without giving effect to the conflict of laws
principles thereof.
5. No
Other Modification.
Other
than as set forth in this Amendment, the terms and conditions of the SPA and
Disclosure shall remain in full force and effect without modification thereto
and is hereby ratified and confirmed.
6. Counterparts.
This
Amendment may be executed in any number of identical counterparts, any or all
of
which may contain the signatures of fewer than all of the parties but all of
which shall be taken together as a single instrument. This Amendment, to the
extent signed and delivered by means of a facsimile machine, shall be treated
in
all manner and respects and for all purposes as an original agreement or
instrument and shall be considered to have the same binding legal effect as
if
it were the original signed version thereof delivered in person.
Remainder
of Page Intentionally Left Blank.
Signature
Page Follows.
IN
WITNESS WHEREOF,
each of
the parties hereto has duly executed and delivered this Amendment, or caused
this Amendment to be duly executed and delivered on its behalf as of the date
first written above.
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SELLER:
ALCOA
SECURITIES CORPORATION
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ALCOA
INC.
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By: | ||
Name: | ||
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PURCHASER:
PLY
GEM INDUSTRIES, INC.
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Name: | ||
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