Exhibit 10.133


 


AMENDED
AND RESTATED REIMBURSEMENT AGREEMENT


 


THIS
AMENDED AND RESTATED REIMBURSEMENT AGREEMENT (this “Agreement”), dated
as of March 17, 2004, is made by and between THERMOVIEW INDUSTRIES, INC., a
Delaware corporation (“ThermoView”), each of its subsidiaries party
hereto (together with ThermoView, the “Borrowers”), and GE CAPITAL
EQUITY INVESTMENTS, INC., a Delaware corporation (the “Indemnitor”).


 


RECITALS


 


A.            The Borrowers posted, with
Westchester Fire Insurance Company as a surety (the “Surety”), a
Supersedeas Bond in the amount of $690,000 (the “Appeal Bond”) in
connection with the appeal in Thermoview Industries, Inc. v. Clemmens, Case
No. 2003-CA-1043 (including any subsequent appeals).


 


B.            The Indemnitor agreed to indemnify
the Surety for all losses and expenses in respect of the Appeal Bond.


 


C.            In consideration for the
Indemnitor’s agreement to indemnify the Surety in respect of the Appeal Bond,
the Indemnitor requested, and the Borrowers agreed, pursuant to that certain
Reimbursement Agreement dated as of June 30, 2003 among the parties hereto (the
“Original Reimbursement Agreement”), to reimburse the Indemnitor for any
payments made by the Indemnitor to the Surety in respect of the Appeal Bond.


 


D.            The Borrowers have requested certain
amendments to the Original Reimbursement Agreement as more particularly
described herein.


 


E.             The Indemnitor is willing to amend
the Original Reimbursement Agreement as more particularly described herein and
the parties hereto have agreed to amend and restate the Original Reimbursement
Agreement to provide for such amendments on the terms set forth in this
Agreement.


 


F.             It is the intent of the parties
that this Agreement not constitute a novation or waiver of the obligations and
liabilities existing under the Original Reimbursement Agreement, including any
obligation or action required to be performed prior to the date hereof, or
evidence payment of all or any of such obligations and liabilities, but that
this Agreement amend and restate in its entirety the Original Reimbursement
Agreement, and that from and after the date hereof, the Original Reimbursement
Agreement be of no further force or effect except as to evidence the incurrence
of the obligations of the Borrowers thereunder and the representations and
warranties made thereunder.  It is also
the intent of the parties that all of the obligations of the Borrowers under
the Original Reimbursement Agreement continue in all respects (as amended
hereby), with the terms thereof being modified to the extent provided herein
and that the liens and security interests as granted under the security
agreement securing payment of such obligations are in all respects continuing
and in full force and effect and secure the payment of such obligations.


 


NOW,
THEREFORE, in consideration of the foregoing and the undertakings herein set
forth and intending to be legally bound, the Borrowers and the Indemnitor
hereby agree as follows:


 


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ARTICLE I


 


APPEAL BOND; INDEMNIFICATION;
REIMBURSEMENT.


 


Section 1.1.            Indemnification
of Surety.  Subject to the execution
and delivery of this Agreement by the parties hereto and the satisfaction by
the Borrowers of the requirements of this Agreement, the Indemnitor has agreed
to indemnify the Surety with respect to any losses or expenses suffered by the
Surety in connection with the Appeal Bond.


 


Section 1.2.            Reimbursements.


 


(a)           Principal.  The Borrowers hereby unconditionally
covenant and agree to reimburse and/or pay to the Indemnitor all amounts which
the Indemnitor shall have paid to the Surety pursuant to any payments under the
Appeal Bond on the day immediately following the date of any such payment
(each, a “Repayment Date”).


 


(b)           Interest.  The Borrowers hereby unconditionally covenant
and agree to pay to the Indemnitor interest on any and all amounts owing to the
Indemnitor and remaining unpaid by the Borrowers under clause (a) above, from
and including the applicable Repayment Date, to but not including the date of
payment in full thereof, at a rate of interest equal to 12% per annum.  Amounts payable under this Section 1.02(b)
shall be payable at any time and from time to time on demand of the Indemnitor.


 


(c)           Renewal Fee.  On May 31 of each year, if, on such date,
the Appeal Bond shall continue to be posted and the Indemnitor shall continue
to agree to indemnify the Surety with respect to the Appeal Bond, the Borrowers
hereby unconditionally covenant and agree to pay to the Indemnitor a renewal
fee in the amount of two and one-half percent (2-1/2%) of the face amount of
the Appeal Bond then posted.


 


ARTICLE
II


 


SECURITY INTERESTS; EVENT
OF DEFAULT.


 


Section 2.1.            Affirmation of Security Interest.  To secure the obligations of the Borrowers
to make payments pursuant to Section 1.01 hereof (collectively, the “Reimbursement
Obligations”), the Borrowers hereby unconditionally affirm (a) that all of
the obligations of the Borrowers under the Original Reimbursement Agreement are
in all respects continuing (as amended hereby), with the terms thereof being
modified to the extent provided herein; and (b) that the liens and security
interests granted in favor of the Indemnitor pursuant to that certain Security
Agreement, dated as of August 31, 1998, as amended, among the Borrowers and the
lenders party thereto, securing payment of such obligations are in all respects
continuing and in full force and effect.


 


Section 2.2.            Establishment of Cash Account.  On the first day of each calendar month, the Borrowers shall
place cash in an account at Bankers Trust (Account No. 50-265-154) and in the
Indemnitor’s name (the “Cash Account”) in an amount equal to at least
(i) $50,000 for each month from (and including) July to December and (ii)
$30,000 for each month from (and including) January to June; provided that, as
of November 1, 2004, there shall be at least $690,000 available in the Cash
Account; provided further


 


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that the Borrowers shall not
have any further obligation to place cash in the Cash Account if funds in the
Cash Account are more than the face amount of the Appeal Bond then posted.  The Borrowers hereby grant to the Indemnitor
a security interest in the Cash Account for the prompt and complete payment and
performance when due of all the obligations to the Indemnitor under this
Agreement, and the Indemnitor shall retain control (as defined in the Uniform
Commercial Code) of all funds therein until satisfaction in full of the
Borrowers’ obligations under this Agreement. 
The Borrowers agree that any amounts held in the Cash Account may be
applied against obligations of the Borrowers under this Agreement as the same
shall become due and payable.  Upon
satisfaction in full of the obligations under this Agreement, any remaining
amounts in the Cash Account will be used by the Borrowers to prepay the
obligations under the terms of that certain Loan Agreement, dated as of August
31, 1998 (the “Loan Agreement”), as amended from time to time, among the
Borrowers and the lenders party thereto, which prepayments shall be made in
accordance with the terms of the Loan Agreement and the related notes.


 


Section 2.3.            Default.  The following shall be “Events of Default”
for purposes of this Agreement: (i) failure by the Borrowers to pay any amount required to
be paid pursuant to Article I of this Agreement within two business days of the
date such amount becomes due and payable; (ii) failure of the Borrowers to pay
any other amount payable under this Agreement (including deposits to the Cash
Account in accordance with Section 2.02 within five business days of the date
such amount becomes due and payable; and (iii) failure by the Borrowers to
perform or comply with any other obligation under this Agreement which failure
is not cured within 30 days of notice by the Indemnitor.


 


Section 2.4.            Remedies.  The Indemnitor may, if an Event of Default has occurred and is
continuing, by written notice to the Borrowers: (i) declare the Borrowers’
obligations hereunder to be, whereupon the same shall become, immediately due
and payable; and (ii) exercise, or cause to be exercised, any and all such
remedies as it may have under this Agreement or at law or in equity, it being
understood and agreed that the Indemnitor shall exercise its remedies against
the Cash Account prior to exercising remedies with respect to any other
collateral of the Borrowers.


 


ARTICLE III


 


MISCELLANEOUS


 


Notices. 
All notices and other communications provided for hereunder shall be
sent in accordance with the notice provisions contained in that certain Securities
Purchase Agreement, dated as of July 9, 1999, as amended, between Thermoview
and the Indemnitor.


 


Section 3.1.            Successors
and Assigns.  This Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and their
respective successors and assigns.  No
Borrower may assign its rights under this Agreement without the prior written
consent of the Indemnitor.  The
Borrowers and the Indemnitor intend that no person other than the parties
hereto and their successors and assigns as permitted hereunder shall have any
claim or interest under this Agreement or right of action hereon or hereunder.


 


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Section 3.2.            Counterparts.  The execution hereof by each party hereto
shall constitute a contract between them for the uses and purposes herein set
forth, and this Agreement may be executed in any number of counterparts, with
each executed counterpart constituting an original and all counterparts
together constituting one agreement.


 


Section 3.3.            Amendments.  This Agreement may be amended only by an
instrument in writing executed and delivered by the Borrowers and the
Indemnitor.


 


Section 3.4.            Complete
Agreement.  Taken together with the
other instruments and documents delivered in compliance herewith, this
Agreement is a complete memorandum of the agreement of the Borrowers and the
Indemnitor.


 


Section 3.5.            Consent
to Jurisdiction; Venue; Waiver of Jury Trial.  The Borrowers hereby irrevocably (i) agree that any suit, action
or other legal proceeding arising out of or relating to this Agreement may be
brought in any federal or state court located in New York and consent to the
non-exclusive jurisdiction of such court in any such suit, action or
proceeding, (ii) to the extent allowed by law, waive any objection which they
may have to the laying of venue of any such suit, action or proceeding in any
such court and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum.  The
Borrowers agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by applicable law.  THE PARTIES HERETO HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION ARISING HEREUNDER OR UNDER THIS AGREEMENT.


 


Section 3.6.            Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York (without reference to its principles of conflicts of law.


 


Section 3.7.            Further
Assurances.  The Borrowers will
execute and deliver such further instruments and perform such further acts as
may be requested by the Indemnitor from time to time to confirm the provisions
of this Agreement and/or to confirm the priority and/or perfection of any lien,
pledge, assignment or security interest created or intended to be created by
this Agreement in any property, rights or interests of the Applicant.  The Borrowers agrees to pay all reasonable
costs of any such acts required to be taken by the Borrowers hereunder
including without limitation the recording, filing and acknowledging of such
documents in such public offices as the Indemnitor may require.


 


IN WITNESS WHEREOF, the
Borrowers and the Indemnitor have caused this Reimbursement Agreement to be
duly executed and delivered as of the date first noted above.


 


	
   

  	
  GE CAPITAL EQUITY INVESTMENTS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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  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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