Exhibit 10.111




 




 




AMENDMENT NO. 5




 




AMENDMENT NO. 5 (this “Amendment”), dated as of March 28, 2003,

between ThermoView Industries, Inc. (“Company”) and GE Capital Equity

Investments, Inc. (“GE Capital”).




 




W

I T N E S S E T H:




 




WHEREAS, Company and GE Capital are parties to that certain Securities

Purchase Agreement, dated as of July 8, 1999 (as from time to time amended,

restated, supplemented or otherwise modified, the “Purchase Agreement”,

and unless the context otherwise requires or unless otherwise defined herein,

capitalized terms used herein shall have the meanings assigned to them in the

Purchase Agreement); and




 




WHEREAS, Company is in default under the

Purchase Agreement as of the date hereof, and Company requested a waiver of

such default and Event of Default (as such term is defined in the Purchase

Agreement) existing as of the date hereof, as well as amendments to the

Purchase Agreement as more particularly described in this Amendment; and




 




WHEREAS, GE Capital is willing to waive such default and Event

of Default existing under the Purchase Agreement as of the date hereof, and to

amend the Purchase Agreement as more particularly described in this Amendment

upon the condition, among others, that Company execute and deliver this

Amendment in favor of GE Capital;




 




NOW, THEREFORE, in consideration of the premises and mutual covenants

contained herein, and on the terms and subject to the conditions as hereinafter

set forth, the parties hereto agree as follows:




 




SECTION 1.           AMENDMENTS

TO THE PURCHASE AGREEMENT. 

Effective as of the Effective Date (as defined herein), the Purchase

Agreement is amended as follows:




 




1.1           By amending

and restating Section 5.1(h)(i) of the Purchase Agreement as follows:




 




“(i)  Free Cash

Flow to Cash Interest Payments.  (i)

Company will maintain a ratio of Free Cash Flow to Cash Interest Payments equal

to or greater than as set forth below. 

Such ratio shall be determined on a rolling 4 quarter basis and measured

to begin with the fiscal quarter ending on December 31, 2001 and as of each

fiscal quarter thereafter through and including the fiscal quarter ending on

June 30, 2004:




 




	

  June 30, 2001


  	

   


  	

  1.75 to 1.00


  
	

  September 30, 2001


  	

   


  	

  1.75 to 1.00


  
	

  December 31, 2001


  	

   


  	

  1.75 to 1.00


  
	

  March 31, 2002


  	

   


  	

  1.10 to 1.00


  
	

  June 30, 2002


  	

   


  	

  1.75 to 1.00


  
	

  September 30, 2002


  	

   


  	

  1.75 to 1.00


  
	

  December 31, 2002


  	

   


  	

  1.75 to 1.00


  
	

  March 31, 2003


  	

   


  	

  1.40 to 1.00


  
	

  June 30, 2003


  	

   


  	

  1.40 to 1.00


  
	

  September 30, 2003


  	

   


  	

  1.40 to 1.00


  
	

  December 31, 2003 


  and thereafter”


  	

   


  	

  1.75 to 1.00


  





 




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1.2           By

amending and restating the chart included in Section 5.1(h)(ii) of the Purchase

Agreement as follows:




 




“(ii)  Funded Debt to EBITDA

Ratio.  The ratio, calculated as of

the end of each fiscal quarter of Company beginning December 31, 2001 (each a “Calculation

Date”), of the consolidated (and combined, if applicable) Funded Debt of

Company as of each Calculation Date divided by the consolidated (and combined,

if applicable) EBITDA for Company for the four (4) fiscal quarters of Company

ending on the applicable Calculation Date shall not be greater than as set

forth opposite each Calculation Date below:




 




	

  December 31, 2001


  	

  5.25 to 1.00


  
	

  March 31, 2002


  	

  5.25 to 1.00


  
	

  June 30, 2002


  	

  4.15 to 1.00


  
	

  September 30, 2002


  	

  3.40 to 1.00


  
	

  December 31, 2002


  	

  3.55 to 1.00


  
	

  March 31, 2003


  	

  5.00 to 1.00


  
	

  June 30, 2003


  	

  5.00 to 1.00


  
	

  September 30, 2003


  	

  4.10 to 1.00


  
	

  December 31, 2003


  	

  3.70 to 1.00


  
	

  March 31, 2004 and

  thereafter”


  	

  3.15 to 1.00


  





 




1.3           By

amending and restating Section 5.2(g) as follows:




 




“(g)         Restricted

Payments.  Company shall not and shall not permit any

Subsidiary of Company to make any Restricted Payments nor shall Company permit

any Subsidiary to make such payments with respect to Company’s Stock, other

than regularly scheduled (i) “PIK” dividends accrued for the period from

October 1, 2001 to December 31, 2002 on its outstanding Series D Preferred

Stock, $.001 par value, of Company (“Series D Preferred Stock”), and

Series E Preferred Stock, $.001 par value, of Company (“Series E Preferred

Stock”), which payments shall be in the form of Series D Preferred Stock

and Series E Preferred Stock, respectively and (ii) “PIK” or cash dividends

accruing after January 1, 2003 on the Series D Preferred Stock and Series E

Preferred Stock; provided, however, that no payments of dividends

shall be permitted pursuant to clause (ii) above if, (x) at the time of such

payment, Company shall not be in compliance with the provisions of Section

5.1(h) of this Agreement as such section is amended and restated in Amendment

No. 4 and Waiver, dated as of March 22, 2001, between Purchaser and Company

(without giving effect for purposes of this clause (x) to the terms of any

subsequent amendment to Section 5.1(h) of 

this Agreement, including, without limitation, Sections 1.1 and 1.2 of

Amendment No. 5, dated as of March 28, 2003, between Purchaser and Company) or

(y) at the time of such payment a Default or Event of Default shall have

occurred and be continuing or such payment would




 




78





























 




result

in the occurrence of a Default or Event of Default.”




 




1.4           By

amending and restating Section 5.2(k) as follows:




 




“(k)         Voluntary

Prepayments on Subordinated Debt. 

So long as the Note or any portion thereof shall remain outstanding,

Company shall not and shall not permit any Subsidiary of Company to voluntarily

prepay any amount in respect of that certain Promissory Note dated as of March

22, 2001 by Company and its Subsidiaries in favor of Stephen A. Hoffmann (the “Hoffmann

Note”) or that certain Promissory Note dated as of March 22, 2001 by

Company and its Subsidiaries in favor of Richard E. Bowlds (the “Bowlds Note”)

or make any amendments to the Hoffmann Note or the Bowlds Note.”




 




1.5           By

amending and restating Section 7.1(k) as follows:




 




“(k)         So

long as any Loan shall remain outstanding, Company or any of its Subsidiaries

shall make any principal payment or voluntarily prepay any amount in connection

with the Hoffmann Note or the Bowlds Note.”




 




SECTION 2.           WAIVER

OF CERTAIN PROVISIONS. 

Effective as of the Effective Date, GE Capital hereby grants a waiver of

Company’s and its Subsidiaries’ non-compliance with the financial

covenant contained in Section 5.1(h)(ii) of the Purchase Agreement for the

quarter ending on December 31, 2002 and of the Event of Default that would

otherwise result from a violation of that sections as of the date hereof.




 




SECTION 3.           CONDITIONS

PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT.  Except as otherwise expressly provided herein, this Amendment

shall be effective as of December 31, 2002 (such date is referred to herein as

the “Effective Date”) so long as each of the following conditions shall

have been satisfied or provided for in a manner satisfactory to GE Capital or

waived by GE Capital on or prior to the Effective Date:




 




(a)           This

Amendment shall have been fully executed and delivered by each of the parties

hereto.




 




(b)           Each

of the Subsidiaries of Company party to the Guaranty and each of the lenders

party to the Ninth Amendment to Loan Agreement, Amendment to Amended and

Restated Promissory Notes and Waiver dated as of the date hereof (the “Ninth

Amendment”) shall have executed and delivered the applicable consent

included in the signature pages hereto.




 




(c)           The

Ninth Amendment shall have been executed and delivered by each of the parties

thereto in form and substance satisfactory to GE Capital.




 




(d)           Company

shall have obtained, and delivered to GE Capital a copy of, each consent

required in connection with this Amendment and the Ninth Amendment.




 




(e)           Company

shall have delivered to GE Capital a certificate of the President of Company

dated the date hereof, to the effect that, as of the date hereof, no litigation

not listed on Annex A hereto shall have been commenced against Company

or any of its Subsidiaries.




 




79





























 




SECTION 4.           EFFECT

ON PURCHASE AGREEMENT.




 




(a)           On

and after the Effective Date, each reference in the Purchase Agreement to “this

Agreement”, “herein”, “hereof”, “hereunder” or words of similar import, shall

mean and be a reference to the Purchase Agreement as amended hereby.




 




(b)           Except

as specifically amended above in connection herewith, the Purchase Agreement

shall remain in full force and effect and is hereby ratified and confirmed.




 




(c)           The

execution, delivery and effectiveness of this Amendment shall not, except as

expressly provided herein, operate as a waiver of any right, power or remedy of

GE Capital under any of the Loan Documents or constitute a waiver of any

provision of any of the Loan Documents.




 




SECTION 5.           GOVERNING

LAW.  THIS AMENDMENT AND THE

OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED

IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS CONFLICT

OF LAWS RULES.




 




SECTION 6.           SECTION

TITLES.  Section titles contained in

this Amendment are and shall be without substantive meaning or content of any

kind whatsoever and are not a part of the agreement between the parties hereto.




 




SECTION 7.           COUNTERPARTS.  This Amendment may be executed in any number

of separate counterparts, each of which shall collectively and separately

constitute one agreement.




 




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IN WITNESS WHEREOF, this Amendment has been duly executed as of the

date first written above.




 




 




	

   


  	

  THERMOVIEW

  INDUSTRIES, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Charles L.

  Smith,  President


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  GE CAPITAL

  EQUITY INVESTMENTS, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Duly Authorized

  signatory


  
					





 




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CONSENT

OF THE GUARANTORS




 




The Subsidiaries of

Company hereby (i) acknowledge receipt of a copy of this Amendment and (ii)

agree that the terms and provisions thereof shall not affect in any way the

obligations and liabilities of such Subsidiaries under the Guaranty or any of

the other Loan Documents, all of which obligations and liabilities shall remain

in full force and effect and each of which are hereby reaffirmed.




 




	

   


  	

  THERMOVIEW

  INDUSTRIES, INC.


  
	

   


  	

  AMERICAN HOME

  DEVELOPERS CO., INC.


  
	

   


  	

  FIVE STAR

  BUILDERS, INC.


  
	

   


  	

  KEY HOME

  CREDIT, INC.


  
	

   


  	

  KEY HOME

  MORTGAGE, INC.


  
	

   


  	

  LEINGANG SIDING

  AND WINDOW, INC.


  
	

   


  	

  PRIMAX WINDOW

  CO.


  
	

   


  	

  PRECISION

  WINDOW MFG., INC.


  
	

   


  	

  ROLOX, INC.


  
	

   


  	

  TD WINDOWS,

  INC.


  
	

   


  	

  THERMAL LINE

  WINDOWS, INC.


  
	

   


  	

  THERMOVIEW OF

  MISSOURI, INC.


  
	

   


  	

  THERMO-TILT

  WINDOW COMPANY


  
	

   


  	

  THOMAS

  CONSTRUCTION, INC.


  
	

   


  	

  THERMO-SHIELD

  OF AMERICA (ARIZONA), INC.


  
	

   


  	

  THERMO-SHIELD

  OF AMERICA (MICHIGAN), INC.


  
	

   


  	

  THERMO-SHIELD

  COMPANY, LLC


  
	

   


  	

  THERMO-SHIELD

  OF AMERICA (WISCONSIN), LLC


  
	

   


  	

  THERMOVIEW

  ADVERTISING GROUP, INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Charles L.

  Smith, President


  





 




82





























 




	

   


  	

  CONSENT OF

  LENDERS


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  GE CAPITAL

  EQUITY INVESTMENTS INC.


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

    Name,

  Title


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  RODNEY H.

  THOMAS


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  CHARLES L.

  SMITH


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  ROBERT L. COX


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  ROBERT L. COX,

  II


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  STEPHEN A.

  HOFFMANN


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  MITCH M. WEXLER


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  STEPHEN TOWNZEN


  
	

   


  	

   


  
	

   


  	

   


  	

   


  





 




83





























 




	

   


  	

  EMERGING

  BUSINESS SOLUTIONS, LLC


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  	

   


  
	

   


  	

  Name:


  
	

   


  	

  Title:


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  RONALD L.

  CARMICLE


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  RAYMOND C. DAUENHAUER


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  J. SHERMAN

  HENDERSON, III


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  BRUCE C.

  MERRICK


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  GEORGE T.

  UNDERHILL, II


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  DANIEL F.

  DOOLEY


  
	

   


  	

   


  
	

   


  	

   


  	

   


  





 




84