Exhibit
10.135


 


AMENDMENT NO. 8


 


AMENDMENT NO. 8 (this “Amendment”),
dated as of March 17, 2004, 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 has requested certain amendments to the Purchase
Agreement as more particularly described in this Amendment; and


 


WHEREAS, GE Capital is willing 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 12.  AMENDMENTS TO THE PURCHASE AGREEMENT.  Effective as of the Effective Date (as
defined herein), the Purchase Agreement is amended as follows:


 


12.1         By amending and
restating Section 2.6(a) of the Purchase Agreement as follows:


 


“(a)  Company shall pay
interest to Purchaser, quarterly in arrears on the last day of each March,
June, September and December, commencing on June 30, 1999 (each, an “Interest
Payment Date”), at a rate equal to 8% per annum, based on a year of 360
days for the actual number of days elapsed, and based on the principal amount
outstanding from time to time under the Note; provided, however,
that during the period commencing October 1, 2003 through and including
September 30, 2004 any interest not paid by the Borrowers in cash on the date
such interest is due shall be paid-in-kind and added to the principal amount
then outstanding (the amount of interest that would otherwise have accrued
except by reason of this proviso is referred to as “Deferred Interest”)
on each Interest Payment Date. 
Commencing on October 1, 2004 and for each day thereafter, interest on
the Note shall be paid (on the principal amount thereof, including all Deferred
Interest) solely in cash on each Interest Payment Date.”


 


12.2         By amending and
restating Section 5.1(h) of the Purchase Agreement as follows:


 


“(h) (i) 
Fixed Charge Coverage Ratio. 
Company will maintain, as of the last day of each calendar quarter for
the applicable period of measurement set


 


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forth below, a Fixed Charge Coverage Ratio of
not less than the following for such period:


 




	
  PERIOD/CALENDAR QUARTER

  	
   

  	
  FIXED
  CHARGE COVERAGE

  RATIO

  	
   

  
	
  Nine months ending on September 30, 2004

  	
   

  	
  1.00 to 1.00

  	
   

  
	
  Twelve months ending on December 31, 2004

  	
   

  	
  1.00 to 1.00

  	
   

  
	
  Twelve months ending as of the end of each calendar quarter
  thereafter

  	
   

  	
  1.00 to 1.00

  	
   

  






 


(ii)  Minimum
EBITDA.  Company shall have, as of
the last day of each calendar quarter for the applicable period of measurement
set forth below EBITDA of not less than the following for such period:


 




	
  PERIOD/CALENDAR QUARTER

  	
   

  	
  MINIMUM EBITDA

  	
   

  
	
  Six months ending on June 30, 2004

  	
   

  	
  $

  	
  800,000

  	
   

  
	
  Nine months ending on September 30, 2004

  	
   

  	
  $

  	
  2,000,000

  	
   

  
	
  Twelve months ending on December 31, 2004

  	
   

  	
  $

  	
  3,000,000

  	
   

  
	
  Twelve months ending on March 31, 2005

  	
   

  	
  $

  	
  3,120,000

  	
   

  
	
  Twelve months ending on June 30, 2005

  	
   

  	
  $

  	
  3,440,000

  	
   

  
	
  Twelve months ending on September 30, 2005

  	
   

  	
  $

  	
  3,850,000

  	
   

  
	
  Twelve months ending on December 31, 2005

  	
   

  	
  $

  	
  3,800,000

  	
   

  
	
  Twelve months ending on March 31, 2006

  	
   

  	
  $

  	
  4,070,000

  	
   

  
	
  Twelve months ending on June 30, 2006

  	
   

  	
  $

  	
  4,430,000

  	
   

  
	
  Twelve months ending as of the end of each calendar quarter
  thereafter

  	
   

  	
  $

  	
  4,430,000

  	
   

  






 


(iii)  Current Ratio.  Company and its Subsidiaries on a
consolidated basis shall maintain a Current Ratio of not less than 1.00 to 1.00
as of the end of each calendar quarter, commencing with the calendar quarter
ending September 30, 2004.


 


For purposes of each of the above financial
covenants, the following terms shall have the following meanings:


 


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(i)            “Capital Expenditures”
means, for any period, all payments for any fixed assets, or improvements or
for replacements, substitutions or additions thereto, that have a useful life
of more than one year and which are required to be capitalized under GAAP and
which payments have been made from funds of Company other than funds borrowed
by Company and its Subsidiaries.


 


(ii)           “Current Assets”
means, with respect to any Person, all current assets of such Person as of any
date of determination calculated in accordance with GAAP, but excluding debts
due from Affiliates.


 


(iii)          “Current Liabilities”
means, with respect to any Person, all liabilities that should, in accordance
with GAAP, be classified as current liabilities, and in any event shall include
all Indebtedness payable on demand or within one year from any date of
determination without any option on the part of the obligor to extend or renew
beyond such year, all accruals for federal or other taxes based on or measured
by income and payable within such year, but excluding the current portion of
long-term debt required to be paid within one year.


 


(iv)          “Current Ratio”
means, with respect to any Person as of any date of determination, the ratio of
(a) Current Assets to (b) Current Liabilities.


 


(v)           “Fixed Charges”
shall mean, with respect to Company for any period, the aggregate of all
consolidated interest expenses paid or accrued, plus Capital Expenditures, plus
obligations with respect to capital leases, plus the Reimbursement Obligations,
plus cash income taxes payable, plus amounts paid to preferred shareholders,
plus fees and scheduled payments of principal with respect to Indebtedness, in
all cases during such period by Company and its Subsidiaries.


 


(vi)          “Fixed Charge
Coverage Ratio” means, with respect to any Person for any period, the ratio
of (a) EBITDA of such Person for such period to (b) the Fixed Charges
of such Person for such period.


 


(vii)         “EBITDA”
means, for any period (a) net income (or the deficit if expenses and charges
exceed revenues and proper income items) increased  by (b) all
amounts deducted therefrom (without duplication) in the calculation of net
income on account of the sum of (x) interest expense, (y) provision for income
taxes and (z) depreciation and amortization expense (including but not limited
to legal fees and closing costs associated with this Amendment and with the
registration rights in respect of all outstanding warrants), but  excluding
therefrom (c) all amounts included therein on account of extraordinary
items of income and expense, as well as gains from the sale of assets outside
the ordinary course of business.”


 


SECTION 13.  CONDITIONS PRECEDENT TO THE EFFECTIVENESS
OF THIS AMENDMENT.  This Amendment
shall be effective as of March 17, 2004 (such date is referred to herein as the
“Effective Date”) upon full execution and delivery of the following, in
each case in form and substance satisfactory to the Lenders:


 


(a)    this Amendment;


 


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(b)   the Twelfth
Amendment to the Loan Agreement, dated as of the date hereof, among Company and
its Subsidiaries, Purchaser, as agent, and the lenders party thereto (the
“Twelfth Amendment”);


 


(c)   the Amended and
Restated Series A Note, the Amended and Restated Series B Notes, the Amended
and Restated Series C Note, each dated as of the date hereof, in each case
issued by Company and its Subsidiaries;


 


(d)   the Amended and
Restated Reimbursement Agreement, dated as of the date hereof, among Company
and its Subsidiaries and Purchaser; and


 


(e)   the consent
included in the signature pages hereto of each of the Subsidiaries of the
Company party to the Guaranty and each of the Lenders party to the Twelfth
Amendment.


 


SECTION 14.  FURTHER ASSURANCES.  The Company hereby covenants to provide GE
Capital with such other information respecting the business, properties,
conditions, financial or otherwise, collateral, or operations of the Company or
any of its Subsidiaries as GE Capital may from time to time reasonably request.


 


SECTION 15.  CONFIRMATION REGARDING PAYMENTS ON
PREFERRED STOCK.  The Company hereby
confirms that it shall not declare or pay any dividends on or make any
distribution with respect to any class of its equity or ownership interest, or
purchase, redeem, retire or otherwise acquire any of its equity, other than as
set forth in Section 5G of the Loan Agreement, as amended and restated in that
certain Ninth Amendment to Loan Agreement, Amendment to Amended and Restated
Promissory Notes (the “Ninth Amendment”), dated as of Mach 28, 20003, by
and among Borrowers and Lenders (it being understood that no payments of
dividends shall be permitted pursuant to clause (ii) of Section 5G of the Loan
Agreement, as amended and restated by the Ninth Amendment, if (a) at the time
of such payment, the Borrowers shall not be in compliance with the financial
covenants set forth in Sections 4.I.[1] and 4.I.[2] of the Loan Agreement, as
such section was amended and restated in that certain Eight Amendment to the
Loan Agreement and Amendment and Restatment of Note, dated as of March 22, 2001
among Borrowers and Lenders (without giving effect for purposes of this Section
4 to the terms of any subsequent amendment to Section 4.I of the Loan
Agreement, including, without limitation, Sections 1.1 of this Amendment) or
(b) at the time of such payment a Default or Event of Default shall have
occurred and be continuing or such payment would result in the occurrence of a
Default or Event of Default).


 


SECTION 16.  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.


 


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(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 17.  RETROACTIVE EFFECT OF AMENDMENT.  This Amendment, although executed on the
date hereof, shall be deemed to have retroactive effectiveness as if executed
on October 1, 2003.


 


SECTION 18.  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 19.  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 20.  COUNTERPARTS.  This Amendment may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.


 


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

  	
   

  
	
   

  	
   

  	
  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.

  



 


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  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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMERGING BUSINESS SOLUTIONS, LLC

  
	 
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  RONALD L. CARMICLE

  
	
   

  	
   

  	
   

  
									



 


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  RAYMOND C. DAUENHAUER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J. SHERMAN HENDERSON, III

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRUCE C. MERRICK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GEORGE T. UNDERHILL, II

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DANIEL F. DOOLEY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  



 


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