EXHIBIT 10.15
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EXECUTION COPY
TAX SHARING AGREEMENT
THIS TAX SHARING AGREEMENT (the "Agreement"), dated as of February 12,
2004 is entered into between Ply Gem Investment Holdings, Inc., a Delaware
corporation ("Parent"), Ply Gem Holdings, Inc., a Delaware corporation
("Holdco"), and Ply Gem Industries, Inc., a Delaware corporation ("Opco", and
together with Holdco, the "Subsidiaries").
Parent is the common parent corporation of an affiliated group of
corporations within the meaning of Section 1504(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), that has elected to file consolidated federal
income tax returns, and the Subsidiaries are members of such group.
Parent and the Subsidiaries desire to set forth in this Agreement their
agreement as to certain matters relating to the inclusion of the Subsidiary
Consolidated Group (as defined below) in the Parent Consolidated Group (as
defined below), including the allocation of tax liabilities for years in which
the Subsidiaries are so included, and certain other matters relating to taxes.
The parties agree as follows:
1. DEFINITIONS.
"Adjustment" shall have the meaning set forth in Section 8.
"Agreement Year" shall mean any taxable year beginning on or after
February 12, 2004 during which the Subsidiary Consolidated Group is included in
the Parent Consolidated Group.
"Balance Payment" shall have the meaning set forth in Section 4.
"Code" shall have the meaning set forth above.
"Estimated Income Tax Payments" shall have the meaning set forth in
Section 4.
"Final Determination" shall mean the final resolution of any tax
matter, including, but not limited to, a closing agreement with the IRS or the
relevant state, local or foreign taxing authority, a claim for refund which has
been allowed, a deficiency notice with respect to which the period for filing a
petition with the Tax Court or the relevant state, local or foreign tribunal has
expired, or a decision of competent jurisdiction that is not subject to appeal
or as to which the time for appeal has expired. "IRS" shall mean the Internal
Revenue Service.
"Parent" shall have the meaning set forth above.
"Parent Consolidated Group" shall mean the affiliated group of
corporations (including any predecessors and successors thereto) within the
meaning of Section 1504(a) of the Code electing to file consolidated federal
income tax returns and of which Parent is the common parent.
"Parent Consolidated Return" shall have the meaning set forth in
Section 2.
"Post-Consolidation Year" shall have the meaning set forth in Section 6
of this Agreement.
"Pro Forma Subsidiary Attribute" shall have the meaning set forth in
Section 5.
"Pro Forma Subsidiary Return" shall have the meaning set forth in
Section 3.
"Records" shall have the meaning set forth in Section 8.
"Regulations" shall mean the Treasury regulations promulgated under the
Code.
"Total Periodic Payments" shall have the meaning set forth in Section
4.
"Subsidiaries" shall have the meaning set forth above.
"Subsidiary Consolidated Group" shall mean the affiliated group of
corporations (including any predecessors and successors thereto) within the
meaning of Section 1504(a) of the Code, of which Holdco would be the common
parent if it were not included in the Parent Consolidated Group.
"Subsidiary Return Items" shall have the meaning set forth in Section
8.
"Subsidiary Tax Package" shall have the meaning set forth in Section 7.
2. FILING OF CONSOLIDATED RETURNS AND PAYMENT OF CONSOLIDATED TAX
LIABILITY.
For all taxable years in which Parent files consolidated federal income
tax returns (any such return of the Parent Consolidated Group for any taxable
year, a "Parent Consolidated Return") and is entitled to include the Subsidiary
Consolidated Group in such returns, Parent shall include the Subsidiary
Consolidated Group in the consolidated federal income tax returns that it files
as the common parent corporation of the Parent Consolidated Group. Parent, the
Subsidiaries and the other members of the Parent Consolidated Group shall file
any and all consents, elections or other documents and take any other actions
necessary or appropriate to effect the filing of such federal income tax
returns. For all taxable years in which the Subsidiary Consolidated Group is
included in the Parent Consolidated Group, Parent shall pay the entire federal
income tax liability of
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the Parent Consolidated Group and shall indemnify and hold harmless the
Subsidiaries and each member of the Subsidiary Consolidated Group against any
such liability; provided, however, that the Subsidiaries shall make payments to
Parent or receive payments from Parent as provided in this Agreement for any
Agreement Year.
3. PRO FORMA SUBSIDIARY RETURN.
For each Agreement Year, Parent shall prepare a pro forma federal
income tax return for the Subsidiary Consolidated Group (a "Pro Forma Subsidiary
Return"). Except as otherwise provided in this Agreement, the Pro Forma
Subsidiary Return for each Agreement Year shall be prepared as if Holdco filed a
consolidated federal income tax return on behalf of the Subsidiary Consolidated
Group for such taxable period. The Pro Forma Subsidiary Return shall reflect any
carryovers of net operating losses, net capital losses, excess tax credits, or
other tax attributes from prior Pro Forma Subsidiary Returns (excluding those
attributes that are carried back pursuant to Section 5) that could have been
utilized by the Subsidiary Consolidated Group if the Subsidiary Consolidated
Group had never been included in the Parent Consolidated Group and all Pro Forma
Subsidiary Returns had been filed as actual returns. The Pro Forma Subsidiary
Return shall be prepared in a manner that reflects all elections, positions and
methods used in the Parent Consolidated Return that must be applied on a
consolidated basis and otherwise shall be prepared in a manner consistent with
the Parent Consolidated Return. The provisions of the Code that require
consolidated computations, such as Sections 861, 1201-1212 and 1231, shall be
applied separately to the Subsidiary Consolidated Group as if the Subsidiary
Consolidated Group and the Parent Consolidated Group (excluding the members of
the Subsidiary Consolidated Group) were separate affiliated groups, except that
the Pro Forma Subsidiary Return prepared for the last taxable year, or portion
thereof, during which the Subsidiary Consolidated Group is included in the
Parent Consolidated Return shall also include any gains or losses of the members
of the Subsidiary Consolidated Group on transactions within the Subsidiary
Consolidated Group that must be taken into account pursuant to Section 1.1502-13
of the Regulations and reflected on the Parent Consolidated Return when the
Subsidiary Consolidated Group ceases to be included in the Parent Consolidated
Return. For each Agreement Year, Section 1.1502-13 of the Regulations shall be
applied as if the Subsidiary Consolidated Group were not a member of the Parent
Consolidated Group. For purposes of the Agreement, all determinations made as if
the Subsidiary Consolidated Group had never been included in the Parent
Consolidated Group and as if all Pro Forma Subsidiary Returns were actual
returns shall reflect any actual short taxable years resulting from the
Subsidiary Consolidated Group joining or leaving the Parent Consolidated Group.
4. TAX PAYMENTS.
(a) ESTIMATED INCOME TAX PAYMENTS. For each Agreement Year, the
Subsidiaries shall make periodic payments ("Estimated Income Tax Payments") to
Parent in such amounts, that, combined, shall be equal to the estimated tax
payments that would be payable by the Subsidiary Consolidated Group if it were
not included in the Parent Consolidated Group, no later than the dates on which
such estimated tax payments would be
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due from the Subsidiary Consolidated Group if it were not included in the Parent
Consolidated Group.
(b) BALANCE PAYMENT. For each Agreement Year, the Subsidiaries
shall pay to Parent an amount equal to the tax payment that would be payable by
the Subsidiary Consolidated Group if it were not included in the Parent
Consolidated Group, no later than March 15 of the following year (the "Balance
Payment").
(c) PAYMENTS BASED ON PRO FORMA SUBSIDIARY RETURN. For each
Agreement Year, the Subsidiaries shall pay to Parent, no later than the date on
which a Parent Consolidated Return is filed for such Agreement Year, an amount
equal to the sum of (i) the federal income tax liability shown on the
corresponding Pro Forma Subsidiary Return prepared for such Agreement Year and
(ii) the additions to tax, if any, under Section 6655 of the Code that would
have been imposed on the Subsidiary Consolidated Group (treating the amount due
to Parent under (i) above as its federal income tax liability and treating any
Estimated Income Tax Payments to Parent pursuant to clause (a) as estimated
payments under Section 6655 of the Code) and which result from the inaccuracy of
any information provided by the Subsidiaries to Parent pursuant to Section 7
hereof or from the failure of the Subsidiaries to provide any requested
information, reduced by (iii) the sum for such Agreement Year of the amount of
the Estimated Income Tax Payments and the Balance Payment (collectively, the
"Total Periodic Payments"), plus (iv) any interest and additions to tax (other
than under Section 6655 of the Code) that would be due under the Code if the
Total Periodic Payments were actual payments of tax. If the Total Periodic
Payments to Parent for any Agreement Year exceed the amount of the liability of
the Subsidiaries for such Agreement Year under the preceding sentence, Parent
shall pay to Holdco an amount equal to such excess within 10 days after filing
the Parent Consolidated Return for such Agreement Year. For purposes of this
Agreement, the term "federal income tax liability" includes the tax imposed by
Sections 11, 55 and 59A of the Code, or any successor provisions to such
Sections. Parent shall notify the Subsidiaries of any amounts due from the
Subsidiaries to Parent pursuant to this Section 4 at least 5 business days prior
to the date such payments are due, and such payments shall not be considered due
until the later of the due date described above or the fifth day after Parent
gives such notice.
5. LOSSES; REFUNDS.
If a Pro Forma Subsidiary Return for any Agreement Year reflects a net
operating loss, net capital loss, excess tax credit or other tax attribute (a
"Pro Forma Subsidiary Attribute"), which attribute is actually utilized in a
Parent Consolidated Return (including any amendments thereto), then, within 30
days after the date such Pro Forma Subsidiary Attribute is actually realized in
cash (whether directly or by offset), Parent shall pay to Holdco an amount equal
to the refund that the Subsidiary Consolidated Group would have received as a
result of the carryback of such Pro Forma Subsidiary Attribute to a Pro Forma
Subsidiary Return for any prior Agreement Year or Years, assuming that all Pro
Forma Subsidiary Returns had been filed as actual returns and that the
Subsidiary Consolidated Group had filed returns as a separate affiliated
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group for all prior taxable years. All calculations of deemed refunds pursuant
to this Section 5 shall include interest computed as if the Subsidiary
Consolidated Group had filed a claim for refund or an application for a
tentative carryback adjustment pursuant to Section 6411(a) of the Code on the
date on which the relevant Parent Consolidated Return is filed.
6. PAYMENTS FOR TAXABLE YEARS IN THE EVENT OF DECONSOLIDATION.
(a) PAYMENTS BY THE SUBSIDIARIES TO PARENT. If for any taxable
year after the Subsidiary Consolidated Group ceases to be included in the Parent
Consolidated Group (a "Post-Consolidation Year"), (i) the federal income tax
liability of the Subsidiary Consolidated Group is less than the federal income
tax liability that would have been imposed with respect to the same period if
the Subsidiary Consolidated Group had not been included in the Parent
Consolidated Group for any Agreement Year and all Pro Forma Subsidiary Returns
had been actual returns for such years, or (ii) the federal income tax liability
of the Parent Consolidated Group is greater than the federal income tax
liability that would have been imposed with respect to the same period if the
Subsidiary Consolidated Group had not been included in the Parent Consolidated
Group for any Agreement Year and all Pro Forma Subsidiary Returns had been
actual returns for such years, then, to the extent that the Subsidiaries have
not already made a payment to Parent for utilization of the tax attributes that
gave rise to the decrease or increase described in (i) or (ii), the Subsidiaries
shall pay to Parent an amount equal to such decrease or increase within 10 days
of the filing of Subsidiary Post-Consolidation Year return. In the event that
there is both a decrease and an increase described in (i) and (ii),
respectively, of the previous sentence for any Post-Consolidation Year, then the
Subsidiaries shall make a payment to Parent in an amount equal to the sum of
such decrease and increase, unless such decrease and increase (or any portion
thereof) result from utilization of the same tax attribute(s), in which case the
amount of the payment will be reduced accordingly.
(b) PAYMENTS BY PARENT TO THE SUBSIDIARIES. If for any
Post-Consolidation Year (i) the federal income tax liability of the Subsidiary
Consolidated Group is greater than the federal income tax liability that would
have been imposed with respect to the same period if the Subsidiary Consolidated
Group had not been included in the Parent Consolidated Group for any Agreement
Year and all Pro Forma Subsidiary Returns had been actual returns for such
years, or (ii) the federal income tax liability of the Parent Consolidated Group
is less than the federal income tax liability that would have been imposed with
respect to the same period if the Subsidiary Consolidated Group had not been
included in the Parent Consolidated Group for any Agreement Year and all Pro
Forma Subsidiary Returns had been actual returns for such years, then, to the
extent that Parent has not already made a payment to the Subsidiaries for
utilization of the tax attributes that gave rise to the increase or decrease
described in (i) or (ii), Parent shall pay to Holdco an amount equal to such
increase or decrease within 10 days of notification by Holdco to Parent of the
filing of Subsidiary Post-Consolidation Year return. In the event that there is
both an increase and a decrease described in (i) and (ii), respectively, of the
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previous sentence for any Post-Consolidation Year, then Parent shall make a
payment to Holdco in an amount equal to the sum of such increase and decrease,
unless such increase and decrease (or any portion thereof) result from
utilization of the same tax attribute(s), in which case the amount of the
payment will be reduced accordingly.
(c) DOCUMENTATION. Prior to the payment of any amounts due
pursuant to this Section 6, the parties shall exchange such information and
documentation as is reasonably satisfactory to each of them in order to
substantiate the amounts due pursuant to this Section 6. Any disputes as to such
amounts and documentation that cannot be resolved prior to the date on which a
payment is due shall be referred to an independent accounting firm whose fees
shall paid one-half by Holdco and one-half by Parent.
(d) POST-CONSOLIDATION YEAR CARRYBACKS.
(i) If a Subsidiary Consolidated Group federal income tax return
for any Post-Consolidation Year reflects a net operating loss, net capital loss,
excess tax credits, or any other tax attribute, whether or not the Subsidiaries
waive the right to carryback any such attribute to a Parent Consolidated Return,
no payment with respect to such carrybacks shall be due from Parent.
(ii) If a Parent Consolidated Return for any Post-Consolidation
Year reflects a net operating loss, net capital loss, excess tax credits, or any
other tax attribute, such attribute may be carried back to Parent Consolidated
Return for an Agreement Year, and Parent shall be entitled to retain (without
any obligation to reimburse the Subsidiaries) the full amount of any refund
received in connection therewith. In the event that either of the Subsidiaries
(or any other member of the Subsidiary Consolidated Group) receive any refund
with respect to an Agreement Year issued in connection with a carryback of a
Parent Consolidated Group tax attribute from a Post-Consolidation Year to a
Parent Consolidated Return for an Agreement Year, such Subsidiary (or member of
the Subsidiary Consolidated Group) shall promptly pay the full amount of such
refund to Parent.
(e) NO DUPLICATION OF PAYMENT. Notwithstanding anything to the
contrary herein, neither Section 5(a) nor Section 5(b) shall require the
Subsidiaries or Parent, as the case may be, to make any payment pursuant to such
section to the extent that the payment is attributable to a tax attribute for
which payment has previously been made pursuant to Section 4.
7. PREPARATION OF TAX PACKAGE AND OTHER FINANCIAL REPORTING
INFORMATION.
The Subsidiaries shall provide to Parent, in a format determined by
Parent, all information requested by Parent as reasonably necessary to prepare
the Parent Consolidated Return and the Pro Forma Subsidiary Return (the
"Subsidiary Tax Package"). The Subsidiary Tax Package with respect to any
taxable year shall be provided to Parent on a basis consistent with practices of
the Parent Consolidated Group.
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The Subsidiaries shall also provide to Parent information required to determine
the Total Periodic Payments, current federal taxable income, current and
deferred tax liabilities, tax reserve items and any additional current or prior
information required by Parent on a timely basis consistent with practices of
the Parent Consolidated Group.
8. RETURNS, AUDITS, REFUNDS, AMENDED RETURNS, LITIGATION,
ADJUSTMENTS AND RULINGS.
(a) RETURNS. Parent shall have exclusive and sole responsibility
for the preparation and filing of the Parent Consolidated Returns (including
requests for extensions) and any other returns, amended returns and other
documents or statements required to be filed with the IRS in connection with the
determination of the federal income tax liability of the Parent Consolidated
Group.
(b) AUDITS; REFUND CLAIMS. Parent will have exclusive and sole
responsibility and control with respect to the conduct of IRS examinations of
the returns filed by the Parent Consolidated Group and any refund claims with
respect to such returns, including without limitation the right to select
counsel, the right to determine the court or other body in which any contest
shall be brought, the right to determine whether to contest a proposed
deficiency or to pay a tax and sue for a refund and the right to determine
whether and how to appeal any adverse determination . The Subsidiaries shall
assist and cooperate with Parent during the course of any such proceeding.
Parent shall give Holdco notice of and consult with Holdco with respect to any
issues relating to items of income, gain, loss, deduction or credit of the
Subsidiaries (or any other member of the Subsidiary Consolidated Group) (any
such items, "Subsidiary Return Items"). Parent shall not settle or otherwise
compromise any Subsidiary Return Item that would result in additional liability
for the Subsidiaries under this Agreement without the written consent of Holdco,
which consent shall not be unreasonably withheld. If Holdco does not respond to
Parent's request for consent within 30 days, Holdco shall be deemed to have
consented.
(c) LITIGATION. If the federal income tax liability of the Parent
Consolidated Group becomes the subject of litigation in any court, the conduct
of the litigation shall be controlled exclusively by Parent. The Subsidiaries
shall assist and cooperate with Parent during the course of litigation, and
Parent shall consult with Holdco regarding any issues relating to Subsidiary
Return Items.
(d) EXPENSES. The Subsidiaries shall reimburse Parent for all
reasonable out-of-pocket expenses (including, without limitation, legal,
consulting and accounting fees) in the course of proceedings described in
paragraphs (b) and (c) of this Section 8, to the extent such expenses are
reasonably attributable to Subsidiary Return Items for any Agreement Year.
(e) RECALCULATION OF PAYMENTS TO REFLECT ADJUSTMENTS. To the
extent that there is a Final Determination with respect to a Parent Consolidated
Return that results in a change in an item relating to such return (an
"Adjustment") that affects the treatment of a Subsidiary Return Item for an
Agreement Year, a corresponding
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adjustment shall be made to the corresponding Pro Forma Subsidiary Return. All
calculations of payments made pursuant to Sections 4, 5 and 6 of this Agreement
shall be recomputed to reflect the effect of any Adjustments on the relevant Pro
Forma Subsidiary Return. Within 5 days after any such Adjustment, the
Subsidiaries or Parent, as appropriate, shall make a payment to the other party
reflecting such Adjustment, plus interest pursuant to Section 9 of the
Agreement, calculated as if payments by and to the Subsidiaries pursuant to
Sections 4, 5 and 6 of this Agreement and this Section 8 were payments and
refunds of federal income taxes. The Subsidiaries shall further pay to Parent
the amount of any penalties or additions to tax incurred by the Parent
Consolidated Group as a result of an adjustment to any Subsidiary Return Item
for an Agreement Year.
(f) RULINGS. The Subsidiaries shall assist and cooperate with
Parent and take all actions requested by Parent in connection with any ruling
requests submitted by Parent to the IRS.
(g) APPLICABILITY WITH RESPECT TO ALL CONSOLIDATED RETURNS. The
provisions of Sections 8(a), (b) and (c) above shall apply to Parent
Consolidated Returns and Subsidiary Return Items for all taxable years in which
the Subsidiaries are includable in the Parent Consolidated Group.
(h) DOCUMENT RETENTION, ACCESS TO RECORDS AND USE OF PERSONNEL.
Until the expiration of the relevant statute of limitations (including
extensions), the Subsidiaries shall (i) retain records, documents, accounting
data, computer data and other information (collectively, the "Records")
necessary for the preparation, filing, review, audit or defense of all tax
returns relevant to an obligation, right or liability of either party under the
Agreement; and (ii) give Parent reasonable access to such Records and to its
personnel (insuring their cooperation) and premises to the extent relevant to an
obligation, right or liability of either party under the Agreement. Prior to
disposing of any such Records, the Subsidiaries shall notify Parent in writing
of such intention and afford Parent the opportunity to take possession or make
copies of such Records at its discretion.
9. INTEREST.
Interest required to be paid by or to the Subsidiaries pursuant to the
Agreement shall, unless otherwise specified, be computed at the rate and in the
manner provided in the Code for interest on underpayments and overpayments,
respectively, of federal income tax for the relevant period. Any payments
required pursuant to the Agreement which are not made within the time period
specified in the Agreement shall bear interest at a rate equal to the rate
provided in the Code for interest on underpayments of tax.
10. FOREIGN, STATE AND LOCAL INCOME TAXES.
(a) In the case of foreign, state or local taxes based on or
measured by the net income of the Parent Consolidated Group, or any members of
the Parent Consolidated Group (other than solely with respect to the Subsidiary
Consolidated Group
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or solely with respect to members of the Parent Consolidated Group other than
members of the Subsidiary Consolidated Group) on a combined, consolidated or
unitary basis, the provisions of this Agreement shall apply with equal force to
such foreign, state or local tax for each Agreement Year, whether or not the
Subsidiary Consolidated Group is included in the Parent Consolidated Group for
federal income tax purposes; provided, however, that interest pursuant to the
first sentence of Section 9 of this Agreement shall be computed at the rate and
in the manner provided under such foreign, state or local law for interest on
underpayments and overpayments of such tax for the relevant period, and
references to provisions of the Code throughout the Agreement shall be deemed to
be references to analogous provisions of foreign, state and local law.
(b) For any taxable year, Parent shall have the sole and exclusive
control of (a) the determination of whether a combined, consolidated or unitary
tax return should be filed for any foreign, state or local tax purpose and (b)
all foreign, state or local income tax audits and litigation with respect to the
Subsidiary Consolidated Group to the same extent as provided in this Agreement
for federal income tax matters (including the right in its sole discretion to
have the Subsidiaries pay any disputed taxes and sue for a refund in the forum
of Parent's choice). The Subsidiaries shall reimburse Parent for all reasonable
out-of-pocket expenses (including, without limitation, legal, consulting and
accounting fees) in the course of proceedings described in the preceding
sentence, to the extent such expenses are reasonably attributable to the
Subsidiary Consolidated Group.
(c) Holdco shall be responsible for filing tax returns relating to
payroll, sales and use, property, withholding, capital stock, net worth and
similar taxes attributable to members of the Subsidiary Consolidated Group and
shall be responsible for the payment of such taxes.
(d) For all taxable years that the Subsidiaries are members of the
Parent Consolidated Group, the Subsidiaries shall have the sole and exclusive
responsibility for all taxes based on or measured by net income that are
determined solely by the income of the Subsidiary Consolidated Group (or any
combination of the members thereof, including the predecessors and successors of
such members) on a combined, consolidated, unitary or separate company basis.
(e) Parent will provide notice of and consult with the
Subsidiaries with respect to any issue relating to such audits and litigation,
and the Subsidiaries will provide to Parent any information necessary to conduct
such audits and litigation. Parent shall not settle or otherwise compromise any
audits or litigation that would result in additional liability for the
Subsidiaries under this Section 10 without the written consent of Holdco, which
consent shall not be unreasonably withheld. If Holdco does not respond to
Parent's request for consent within 30 days, Holdco shall be deemed to have
consented.
11. SUCCESSORS AND ACCESS TO INFORMATION.
The Agreement shall be binding upon and inure to the benefit of any
successor to any of the parties, by merger, acquisition of assets or otherwise,
to the same
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extent as if the successor had been an original party to the Agreement, and in
such event, all references in this Agreement to a party shall refer instead to
the successor of such party. If for any taxable year the Subsidiaries are no
longer included in the Parent Consolidated Group, Parent and the Subsidiaries
agree to provide to the other party any information reasonably required to
complete tax returns for taxable periods beginning after the Subsidiaries are no
longer included in a Parent Consolidated Return, and each of Parent and the
Subsidiaries will cooperate with respect to any audits or litigation relating to
any Parent Consolidated Return.
12. CONFIDENTIALITY.
Each of Parent and the Subsidiaries agrees that any information
furnished pursuant to the Agreement is confidential and, except as and to the
extent required by law or otherwise during the course of an audit or litigation
or other administrative or legal proceeding, shall not be disclosed to other
persons. In addition, each of Parent and the Subsidiaries shall cause its
employees, agents and advisors to comply with the terms of this Section 12.
13. GOVERNING LAW.
The Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts entered into and to be
fully performed within the State of Delaware.
14. HEADINGS.
The headings in the Agreement are for convenience only and shall not be
deemed for any purpose to constitute a part or to affect the interpretation of
the Agreement.
15. SECTION REFERENCES.
References to Sections shall, unless otherwise specified, be references
to Sections of this Agreement.
16. COUNTERPARTS.
The Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, and it shall not be
necessary in making proof of the Agreement to produce or account for more than
one counterpart.
17. SEVERABILITY.
If any provision of the Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to the maximum extent practicable. In any
event, all other provisions of the Agreement shall be deemed valid, binding, and
enforceable to their full extent.
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18. TERMINATION.
The Agreement shall remain in force and be binding so long as the
applicable period of assessments (including extensions) remains unexpired for
any taxes contemplated by the Agreement; provided, however, that neither Parent
nor the Subsidiaries shall have any liability to the other party with respect to
tax liabilities for any taxable year in which the Subsidiary Consolidated Group
is not included in the Parent Consolidated Return for such year, except as
provided in Sections 5 and 10.
19. SUCCESSOR PROVISIONS.
Any reference herein to any provisions of the Code or Treasury
Regulations shall be deemed to include any amendments or successor provisions
thereto, as appropriate.
20. COMPLIANCE BY SUBSIDIARIES.
Parent and Holdco each agrees to cause all members of the Parent
Consolidated Group and the Subsidiary Consolidated Group (including predecessors
and successors to such members) to comply with the terms of this Agreement.
IN WITNESS WHEREOF, each of the parties to this Agreement has caused
this Agreement to be executed by its duly authorized officer on this February
12, 2004.
[Signatures follow]
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PLY GEM INVESTMENT HOLDINGS, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title:
PLY GEM HOLDINGS, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title:
PLY GEM INDUSTRIES, INC.
By: /s/ Lee D. Meyer
---------------------------------------
Name: Lee D. Meyer
Title:
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