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EXHIBIT 2.2 FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT

Stock Purchase Agreement

EXHIBIT 2.2  FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT | Document Parties: PLY GEM HOLDINGS INC | Alcoa Securities Corporation | Ply Gem Industries, Inc You are currently viewing:
This Stock Purchase Agreement involves

PLY GEM HOLDINGS INC | Alcoa Securities Corporation | Ply Gem Industries, Inc

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Title: EXHIBIT 2.2 FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
Governing Law: New York     Date: 11/6/2006

EXHIBIT 2.2  FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT, Parties: ply gem holdings inc , alcoa securities corporation , ply gem industries  inc
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EXECUTION COPY

 

 

 

FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT

 

THIS FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT (this “Amendment”), dated as of October 31, 2006, is among Alcoa Securities Corporation, a corporation organized under the laws of Delaware, U.S.A. (hereinafter “Seller”), Alcoa Inc., a corporation organized under the laws of Pennsylvania, U.S.A. (hereinafter “Alcoa”), and Ply Gem Industries, Inc., a corporation organized under the laws of Delaware, U.S.A. (hereinafter “Purchaser”).

 

RECITALS

 

A.   Seller, Alcoa and Purchaser are parties to that certain Stock Purchase Agreement (the “SPA”) dated as of September 22, 2006.

 

B.   Seller and Purchaser are parties to that certain Seller Disclosure Letter (the “Disclosures”) dated as of September 22, 2006.

 

C.   Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the SPA.

 

D.   The parties hereto desire to amend the SPA and the Disclosures on the terms and conditions set forth herein.

 

AGREEMENTS

 

In consideration of the foregoing premises and the covenants and agreements herein contained and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:

 

1.   Amendments and Supplements to the SPA . The SPA is amended and supplemented as set forth below.

 

(a)   Sections 11.05 and 11.06 .   Sections 11.05 and 11.06 of the SPA are hereby amended by adding the indicated bold, double-underlined language, and eliminating the struck-through language:

 

Section 11.05 Environmental Indemnification. Seller will, subject to the limitations set forth in Sections 13.03   (other than with respect to the indemnification  obligations of Seller set forth in Section 11.05(e), which shall not be subject to such limitations) and13.05 and the procedures set forth in Section 13.04, indemnify, defend, hold harmless, pay and reimburse the Purchaser Indemnitees from and against any and all Losses to the extent arising out of or resulting from:

 

(a)   any breach of or inaccuracy in any the representations and warranties set forth in Section 4.15 , as of the date such representation or warranty was made or as if such representation or warranty were made on and as of the Closing Date (except for such representations and warranties that expressly relate to a specified date, the breach of or inaccuracy in which will be determined by reference to such specified date); or

(b)   any release or disposal of or exposure to (except employee exposure to the extent resulting Losses are covered by workers compensation) any Hazardous Substances prior to the Closing Date either (i) on the Real Property or (ii) otherwise relating to the ownership or operation of the Business or the Company prior to the Closing;

(c) the violation of any Applicable Environmental Law by the Company prior to the Closing Date; or   

(d) any release, threatened release or disposal of any Hazardous Substances on any real property not owned or operated by the Company but at which the Company or any of its Affiliates or any predecessors of any of the foregoing arranged for the disposal of Hazardous Substances prior to the Closing Date; or 

(e) any release, threatened release or disposal of or exposure to any Hazardous Substances at any time on the real property located at 2900 Campbell Road, Sidney, Ohio.


 

Section 11.06 Survival. The obligations of Seller to indemnify Purchaser pursuant to Section 11.05will expire on the third anniversary of the Closing Date except for the indemnificationobligations of Seller set forth in Section 11.05(e) which shall survive without limitation.Notwithstanding the foregoing, the obligation of Seller to indemnify, defend and hold harmless Purchaser pursuant to Section 11.05shall not terminate with respect to any item as to which Purchaser shall have, before the expiration of Seller’s indemnification obligations, previously made a claim by delivering a notice pursuant to Section 14.04(stating in reasonable detail the basis of such claim) to Seller.

 

2.   Amendments and Supplements to the Disclosures . The Disclosures are amended and supplemented as set forth below.

 

(a)   Section 4.07(b)(4) of the Leased Property Disclosure .   Section 4.07(b)(4) of the Leased Property Disclosure is hereby amended by adding the indicated bold, double-underlined language:

 

Lease between Omega Corporate Center, L.P. (“Landlord”) and Alcoa Building Products, Inc. (“Tenant”) dated October 24, 2001 for 1590 Omega Drive, Pittsburgh, Pennsylvania, as amended pursuant to First Lease Amendment dated August 29, 2003 between Landlord and Alcoa Home Exteriors, Inc. (“Tenant”) and Second Lease Amendment dated December 12, 2003 between Landlord and Tenant.

 

(b)   Section 4.07(b) of the “Leased Property” Disclosure .   Section 4.07(b) of the “Leased Property” Disclosure is hereby amended by adding the indicated bold, double-underlined language in clauses (1), (9), (11) and (13) below:

 

(1)   Agreement To Lease dated June 6, 2001 between Roller Eavers Partnership, LC (“Lessor”) and Alcoa Building Products (“Lessee”) and Planters Bank & Trust Company of Virginia (“Assignee”), as amended pursuant to that certain First Amendment to Lease dated August 1, 2003 between Roller Eavers Partnership, LC (“Lessor”) and Alcoa Building Products (“Lessee”) and Second Amendment to Lease dated September 29, 2006 between Lessor and Alcoa Home


 
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