Exhibit
10.134


 


TWELFTH AMENDMENT TO
LOAN AGREEMENT


 


TWELFTH AMENDMENT TO
LOAN AGREEMENT (this “Amendment”), dated as of March 17, 2004, by and among [i] THERMOVIEW INDUSTRIES, INC., a
Delaware corporation (“ThermoView”), [ii] AMERICAN HOME DEVELOPERS CO.,
INC., a California corporation (“American Home”), [iii] FIVE STAR
BUILDERS, INC.,  a California
corporation (“Five Star”), [iv] KEY HOME CREDIT, INC., a Delaware
corporation (“Key Home”), [v] KEY HOME MORTGAGE, INC., a Delaware
corporation (“Key Home Mortgage”), [vi] LEINGANG SIDING AND WINDOW,
INC., a North Dakota business corporation (“Leingang Siding”),  [vii] PRECISION WINDOW MFG., INC., a
Missouri corporation (“Precision”), [viii]  PRIMAX WINDOW CO., a Kentucky corporation (“Primax”),
[ix] ROLOX, INC., a Kansas corporation (“Rolox”), [x] TD WINDOWS,
INC., a Kentucky corporation (“TD Windows”), [xi] THERMAL LINE WINDOWS,
INC., a North Dakota corporation (“Thermal Line”), [xii] THERMOVIEW
OF MISSOURI, INC., a Missouri corporation (“ThermoView-Missouri”),
[xiii] THERMO-TILT WINDOW COMPANY, a Delaware corporation (“Thermo-Tilt”),
[xiv]THERMO-SHIELD OF AMERICA (ARIZONA), INC., an Arizona corporation (“Thermo-Shield
Arizona”), [xv] THERMO-SHIELD OF AMERICA (MICHIGAN), INC., a Michigan
corporation (“Thermo-Shield Michigan”), [xvi] THERMO-SHIELD COMPANY,
LLC, an Illinois limited liability company (“Thermo-Shield Company”),
[xvii] THERMO-SHIELD OF AMERICA (WISCONSIN), LLC, a Wisconsin limited liability
company (“Thermo-Shield Wisconsin”), [xviii] THERMOVIEW ADVERTISING
GROUP, INC., a Delaware corporation (“ThermoView Advertising”) and
[xix] THOMAS CONSTRUCTION, INC., a Missouri corporation (“Thomas
Construction”), (ThermoView, American Home, Five Star, Key Home, Key Home
Mortgage, Leingang Siding, Precision, Primax, Rolox, TD Windows, Thermal Line,
ThermoView-Missouri, Thermo-Tilt, Thermo-Shield Arizona, Thermo-Shield
Michigan, Thermo-Shield Company, Thermo-Shield Wisconsin, ThermoView
Advertising and Thomas Construction individually are referred to in this Agreement
as a “Borrower” and collectively, as the “Borrowers”) having an
address in care of ThermoView Industries, Inc., 5611 Fern Valley Road,
Louisville, Kentucky 40228 and [xx] GE CAPITAL EQUITY INVESTMENTS, INC., a
Delaware corporation (“GE Capital” or the “Series A Lender” or
the “Series C Lender”) and [xi] GE Capital as collateral agent, as
applicable (in such capacity, the “Collateral Agent”) and
[xii] 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, Ronald L. Carmicle, Raymond C. Dauenhauer, J. Sherman
Henderson, III, Bruce C. Merrick, George T. Underhill, II and Daniel F. Dooley
(each, a “Series B Lender” and collectively, the “Series B Lenders”,
and together with the Series A Lender and the Series C Lender, the “Lenders”).


 


W I T N E S S E T
H:


 


A.            Pursuant
to that certain Assignment and Acceptance Agreement, dated as of March 22,
2001, the Lenders purchased loans made to the Borrowers pursuant to that
certain Loan Agreement dated as of August 31, 1998, as amended pursuant to (a)
that certain Joinder to Loan Documents and Amendment to Loan Documents (Thomas
Construction, Inc.) dated as of January 1, 1999, by and among certain of the
Borrowers and PNC Bank (“PNC”), (b) that certain Joinder to Loan
Documents and Amendment


 


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to Loan Documents (Precision Window Mfg.,
Inc.) dated as of January 5, 1999, by and among certain of the Borrowers and
PNC, (c) that certain Joinder to Loan Documents and Amendment to Loan Documents
(Thermo-Shield) dated as of July 8, 1999, by and among certain of the Borrowers
and PNC, (d) that certain Amendment to Loan Agreement dated as of July 30,
1999, by and among certain of the Borrowers and PNC, (e) that certain Second
Amendment to Loan Agreement dated as of October 14, 1999, by and among certain
of the Borrowers and PNC, (f) that certain Third Amendment to Loan Agreement
dated as of November, 1999, by and among certain of the Borrowers and PNC, (g)
that certain Fourth Amendment to Loan Agreement and Amendment to Note and Term
Note dated as of November 10, 1999, by and among certain of the Borrowers and
PNC, (h) that certain Fifth Amendment to Loan Agreement and Amendment to Note
dated as of April 14, 2000, by and among the Borrowers and the PNC, (i) that
certain Sixth Amendment to Loan Agreement dated as of August 15, 2000, by and
among the Borrowers and PNC, (j) that certain Seventh Amendment to Loan
Agreement dated as of March 22, 2001, among the Borrowers and PNC, (k) that
certain Eighth Amendment and Amendment and Restatement of Note dated as of
March 22, 2001, among the Borrowers and the Lenders,  (l) that certain Ninth Amendment to Loan Agreement and Amendment
to Amended and Restated Promissory Notes among the Borrowers and the Lenders,
(m) that certain Tenth Amendment to Loan Agreement among the Borrowers and the
Lenders and (n) that certain Eleventh Amendment to the Loan Agreement dated as
of June 30, 2003, among the Borrowers and the Lenders (collectively, the “Loan
Agreement”; capitalized terms used herein and not defined shall have the
meanings assigned to such terms in the Loan Agreement).


 


B.            In
connection with the Loan Agreement, the Borrowers executed and delivered to (i)
the Series A Lender, the Amended and Restated Series A Promissory Note, (ii)
each Series B Lender, an Amended and Restated Series B Promissory Note and
(iii) the Series C Lender, the Amended and Restated Series C Promissory Note,
each dated March 22, 2001 (as amended, modified or supplemented from time to
time the “Notes” and together with the Loan Agreement, the “Loan
Documents”).


 


C.            The
Borrowers have requested amendments to the Loan Documents as more particularly
described in this Amendment.


 


D.            The
Lenders are willing to amend the Loan Documents as more particularly described
in this Amendment upon the condition, among others, that the Borrowers execute
and deliver this Amendment in favor of the Lenders.


 


NOW, THEREFORE, in consideration of the premises
and mutual covenants contained herein, the parties hereto agree as follows:


 


SECTION 1.  AMENDMENT TO THE LOAN AGREEMENT.  Effective as of the Effective Date (as
defined herein), the Loan Agreement is amended as follows:


 


1.1           By
amending and restating Section 4.I of the Loan Agreement as follows:


 


“[I] [1] 
Fixed Charge Coverage Ratio. 
(i) ThermoView will maintain, as of the last day of each calendar
quarter for the applicable period of measurement set forth below, a Fixed
Charge Coverage Ratio of not less than the following for such period:


 


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  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

  	
   

  






 


[2]  Minimum
EBITDA.  ThermoView 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

  	
   

  






 


[3]           Current
Ratio.  Thermoview 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:


 


[A]          “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 Thermoview other than funds borrowed by Thermoview
and its Subsidiaries.


 


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[B]           “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.


 


[C]           “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.


 


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


 


[E]           “Fixed Charges” shall mean, with respect to
Thermoview 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
Thermoview and its Subsidiaries.


 


[F]           “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.


 


[G]           “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 (i) interest expense, (ii)
provision for income taxes and (iii) 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 2.  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;


 


(b)           Amendment No.
8 to the Securities Purchase Agreement, dated as of the date hereof, between
Thermoview and GE Capital;


 


(c)           the Amended
and Restated Series A Note, the Amended and Restated Series B Notes, the
Amended and Restated Series C Note, in each case issued by the Borrowers to the
Lenders; and


 


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(d)           the Amended
and Restated Reimbursement Agreement, dated as of the date hereof, among the
Borrowers and GE Capital.


 


SECTION 3.  FURTHER ASSURANCES.  The Company hereby covenants (i) 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
and (ii) (a) to execute and deliver to GE Capital such amendments,
certificates, or other documents as GE Capital deems necessary or advisable and
(b) to take all other actions as GE Capital deems necessary or advisable, in
each case, in order to continue or grant to GE Capital a perfected first
priority interest in the collateral granted with respect to the Security
Documents.


 


SECTION 4.  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 5.  DELIVERY OF UPDATED SCHEDULES.  The Company hereby covenants to, within 30
days after the Effective Date, deliver updated disclosure schedules identical
to those which were delivered in connection with the Security Agreements.  Such disclosure schedules shall be true and
correct as of the date of delivery.


 


SECTION 6.  EXPENSES.  Within fifteen (15) days of the date hereof, Thermoview shall pay
to GE Capital, and shall reimburse GE Capital for, all reasonable expenses of
GE Capital in connection with the preparation of this Amendment and each of the
other documents prepared in connection herewith (including the reasonable fees
and expenses of counsel) and all other reasonable out-of-pocket costs and
expenses of every type and nature (including, without limitation, the
reasonable fees, expenses and disbursements of GE Capital’s counsel, Weil,
Gotshal & Manges LLP) related thereto.


 


SECTION 7.  EFFECT ON LOAN DOCUMENTS.


 


(a)           On and after
the Effective Date, each reference in the Loan Documents to “this Agreement”,
“herein”, “hereof”, “hereunder” or


 


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words
of similar import, shall mean and be a reference to such Loan Document as
amended hereby.


 


(b)           Except as
specifically amended above in connection herewith, each Loan Document 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
the Lenders under any of the Loan Documents or constitute a waiver of any
provision of any of the Loan Documents.


 


SECTION 8.  RETROACTIVE EFFECT OF AMENDMENT.  This Amendment, although executed on the
date hereof, shall be deemed to have retroactive effectiveness as if executed
on December 1, 2003.


 


SECTION 9.  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 10.  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 11.  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.


 


 


	
   

  	
  GE CAPITAL EQUITY INVESTMENTS, INC.,

  as Series A Lender, Series C Lender and as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name, Title

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SERIES B LENDERS:

  
	
   

  	
   

  
	
   

  	
  RODNEY H. THOMAS

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHARLES L. SMITH

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROBERT L. COX

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ROBERT L. COX, II

  
	
   

  	
   

  	
   

  
					



 


6

















 


	
   

  	
  STEPHEN A. HOFFMANN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MITCH M. WEXLER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  STEPHEN TOWNZEN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  	
   

  
					



 


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