Exhibit 10.112




 




 




CONSENT TO AMENDMENT




 




THIS CONSENT TO AMENDMENT is made and entered into as of the

25th day of March, 2003, by and between THERMOVIEW INDUSTRIES, INC., a Delaware

corporation (“ThermoView”) and

                                         (“Holder”).




 




PRELIMINARY STATEMENTS




 




ThermoView has previously issued, or will

cause to be issued, to Holder shares of ThermoView 12% Cumulative Series D

Preferred Stock with a stated value of $5.00 (the “Preferred Stock”) in lieu of

cash Earn-out Payments.  The Holder has

previously provided to ThermoView an oral agreement to provide a written

consent to ThermoView to cause the filing with the Delaware Secretary of State

of an amendment to the Certificate of Designation of the Preferred Stock,

attached hereto as Exhibit A and incorporated herein by reference (the

“Certificate”).




 




NOW, THEREFORE, in consideration of these

preliminary statements and the mutual promises contained herein, and for other

good and valuable consideration, the receipt and sufficiency of which are

hereby acknowledged, the parties hereby agree as follows:




 




1.  Consent to Amendment. Holder consents

to the amendment to the Certificate of Designation of the Preferred Stock,

attached hereto as Exhibit A and incorporated herein by reference (the

“Certificate”).




 




2.  Miscellaneous.




 




(a)           Entire Agreement.  This Consent to Amendment embodies the

entire agreement and understanding between the parties hereto with respect to

the payment of Preferred Stock dividends and supersedes all prior oral or written

agreements and understandings relating to same.  No statement, representation, warranty, covenant or agreement of

any kind not expressly set forth in this Consent to Amendment shall affect, or

be used to interpret, change or restrict, the express terms and provisions of

this Consent to Amendment.




 




(b)           Modifications and Amendments.  The terms and provisions of this Consent to

Amendment may be modified or amended only by written agreement executed by all

parties hereto.




 




(c)           Benefit.  This Consent to Amendment shall be binding

on the parties hereto and shall inure to the benefit of the parties hereto and

the respective successors and permitted assigns of each party hereto.  Nothing in this Consent to Amendment shall

be construed to create any rights or obligations except among the parties

hereto, and no person or entity shall be regarded as a third-party beneficiary

of this Consent to Amendment.




 




(d)           Governing Law.  This Consent to Amendment and the rights and

obligations of the parties hereunder shall be construed in accordance with and

governed by the law of the Commonwealth of Kentucky, without giving effect to

the conflict of law principles thereof.




 





























 




(e)           Severability.  In the event that any court of competent

jurisdiction shall determine that any provision, or any portion thereof,

contained in this Consent to Amendment shall be unreasonable or unenforceable

in any respect, then such provision shall be deemed limited to the extent that

such court deems it reasonable and enforceable, and as so limited shall remain

in full force and effect.  In the event

that such court shall deem any such provision, or portion thereof, wholly

unenforceable, the remaining provisions of this Consent to Amendment shall

nevertheless remain in full force and effect.




 




(f)            Headings and Captions.  The headings and captions of the various

subdivisions of this Consent to Amendment are for convenience of reference only

and shall in no way modify, or affect the meaning or construction of any of the

terms or provisions hereof.




 




(g)           Counterparts.  This Consent to Amendment may be executed in

one or more counterparts, and by different parties hereto on separate

counterparts, each of which shall be deemed an original, but all of which

together shall constitute one and the same instrument.




 




IN WITNESS WHEREOF, ThermoView has caused

this Consent to Amendment to be executed by its duly authorized officer and

Holder has executed this Consent to Amendment all as of the date first above

written.




 




	

   


  	

  THERMOVIEW INDUSTRIES, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

   


  
	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  Holder


  





 




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EXHIBIT A




 




THIRD AMENDED CERTIFICATE OF DESIGNATION




OF




CUMULATIVE PREFERRED STOCK, SERIES D




OF




THERMOVIEW INDUSTRIES, INC.




 




 




Pursuant to Section 151 of the




General Corporation Law of the State of

Delaware




 




 




ThermoView Industries, Inc., a Delaware

corporation (the “Company”) certifies that pursuant to the authority contained

in Section 4.2 of Article IV of its Restated Certificate of Incorporation, as

amended, and in accordance with the provisions of Section 151 of the General

Corporation Law of the State of Delaware, the Board of Directors of the

Company, by unanimous written consent in lieu of a meeting on March

    , 2003, duly approved and adopted the following

amendment to the Certificate of Designation of 12% Series D Cumulative

Preferred Stock  (the “Certificate of

Designation”) and with the written consent of all existing holders of the 12%

Series D Cumulative Preferred Stock:




 




A.            Section

2 of the Certificate of Designation is hereby replaced in its entirety with the

following:




 




 




(2)           Dividends.




 




(a)           Holders

of shares of Series D Preferred Stock will be entitled to receive, when, as and

if declared by the Board of Directors of the Company, out of funds of the

Company legally available for payment, subject to the prior and superior rights

of Senior Stock, but pari passu with Parity Stock, and in

preference to Junior Stock, cumulative cash dividends at the rate per annum of

$0.60 per share of Series D Preferred Stock, with the exception of those

dividends which accrue from the period commencing October 1, 2001 and ending

March 31, 2004, which dividends shall be paid by the issuance of an equivalent

amount of Series D Preferred Stock. 

Provided, however, that in the event that funds are legally available

for payment, and the Company, following distribution of such cash dividends,

shall remain in compliance with sections 4.I.[1] and 4.I.[2] of that certain

Eighth Amendment to Loan Agreement dated March 22, 2001, by and between GE Capital

Equity Investments, Inc., et al. and the Company, the Company shall pay cash

dividends from the period commencing January 1, 2003 and ending March 31, 2004.

Dividends on the Series D Preferred Stock will begin to accrue commencing

October 1, 2001 and will be payable quarterly in arrears on the last calendar

day of April, July, October and January of each year, commencing July 31, 2004,

representing dividends due for the quarter ending June 30, 2004 (and in the

case of any accumulated and unpaid dividends not paid on the corresponding

dividend payment date, at such additional times and for such interim periods,

if any, as determined by the Board of Directors). Dividends will be cumulative

from such date, whether or not in any dividend period or periods there shall be

funds of the Company legally available for the payment of such dividends. Each

such dividend will be payable to holders of record as they appear on the stock

records of the Company at the close of business on such record dates, not more

than 60 days nor less than 10 days




 




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preceding the payment dates thereof, as shall

be fixed by the Board of Directors of the Company. Accrued dividends earn

interest to the fullest extent allowed by applicable law. Dividends payable on

the Series D Preferred Stock for any period greater or less than a full

dividend period will be computed on the basis of actual days.  Dividends payable on the Series D Preferred

Stock for each full dividend period will be computed by dividing the annual

dividend rate by four.




 




(b)           Except

as provided in the next sentence and for payment of dividends on Series E

Preferred Stock, no dividend will be declared or paid on any Parity Stock

unless full cumulative dividends have been declared and paid or are

contemporaneously declared and funds sufficient for payment set aside on the

Series D Preferred Stock for all prior dividend periods.  If accrued dividends on the Series D

Preferred Stock for all prior periods have not been paid in full, then any

dividends declared on the Series D Preferred Stock for any dividend period and

on any Parity Stock will be declared ratably in proportion to accumulated and

unpaid dividends on the Series D Preferred Stock and such Parity Stock.




 




(c)           So

long as the shares of the Series D Preferred Stock shall be outstanding, unless

(i) full cumulative dividends shall have been paid or declared and set apart

for payment on all outstanding shares of the Series D Preferred Stock and any

Parity Stock, (ii) sufficient funds have been paid or set apart for the payment

of the dividend for the current dividend period with respect to the Series D

Preferred Stock and any Parity Stock and (iii) the Company is not in default or

in arrears with respect to the mandatory or optional redemption or mandatory

repurchase or other mandatory retirement of, or with respect to any sinking or

other analogous fund for, the Series D Preferred Stock or any Parity Stock, the

Company may not declare any dividends on any Junior Stock, or make any payment

on account of, or set apart money for, the purchase, redemption or other

retirement of, or for a sinking or other analogous fund for, any shares of

Junior Stock or make any distribution in respect thereof, whether in cash or

property or in obligations or stock of the Company, other than (x) Junior Stock

which is neither convertible into, nor exchangeable or exercisable for, any

securities of the Company other than Junior Stock, or (y) Common Stock acquired

in connection with the cashless exercise of options under employee incentive or

benefit plans of the Company or any subsidiary or any other redemption or

purchase or other acquisition of Common Stock made in the ordinary course of

business, which has been approved by the Board of Directors of the Company, for

the purpose of any employee incentive or benefit plan of the Company.  The limitations in this paragraph do not

restrict the Company’s ability to take the actions in this paragraph with

respect to any Parity Stock.  As used in

this subparagraph (c), the term “dividend” with respect to Junior Stock does

not include dividends payable solely in shares of Junior Stock on Junior Stock,

or in options, warrants or rights to holders of Junior Stock to subscribe for

or purchase any Junior Stock.




 




B.                                     Other than as amended hereby, the

Certificate of Designation for the Series D Preferred Stock remains in full

force and effect.




 




IN WITNESS WHEREOF ThermoView Industries,

Inc. has caused this Certificate to be signed by its President on this

       day of March 2003.




 




	

   


  	

   


  
	

   


  	

  Name:  Charles L. Smith


  
	

   


  	

  Title:        President


  





 




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