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