Exhibit 10.83
FOURTH AMENDMENT TO LOAN AGREEMENT
AND AMENDMENT TO NOTE AND TERM NOTE
THIS FOURTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTE
AND TERM NOTE (the " Agreement") is made and entered into as of November 10,
1999, 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, successor in interest to American Home Remodeling ("Five Star"),
[iv] KEY HOME CREDIT, INC., a Delaware corporation ("Key Home"), [v] KEY HOME
MORTGAGE, INC., a Delaware corporation ("Key Home Mortgage"), [vi] XXXXXXXX
SIDING AND WINDOW, INC., a North Dakota business corporation ("Xxxxxxxx
Siding"), [vii] PRIMAX WINDOW CO., a Kentucky corporation ("Primax"), [viii]
PRECISION WINDOW MFG., INC., a Missouri corporation ("Precision"), [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, formerly known as Ice Inc., successor in interest to Thermal Line
Windows, LLP, and Blizzard Enterprises, Inc. ("Thermal Line"), [xii] THERMOVIEW
OF MISSOURI, INC., a Missouri corporation ("ThermoView-Missouri"), [xiii]
THERMO-TILT WINDOW COMPANY, a Delaware corporation ("Thermo-Tilt"), [xiv] XXXXXX
CONSTRUCTION, INC., a Missouri corporation ("Xxxxxx"), [xv] THERMO-SHIELD OF
AMERICA (ARIZONA), INC., an Arizona corporation ("TSAAI"), [xvi] THERMO-SHIELD
OF AMERICA (MICHIGAN), INC., a Michigan corporation ("TSAMI"), [xvii]
THERMO-SHIELD COMPANY, LLC, an Illinois limited liability company ("TSC"),
[xviii] THERMO-SHIELD OF AMERICA (WISCONSIN), LLC, a Wisconsin limited liability
company ("TSAW"), [xix] THERMOVIEW ADVERTISING GROUP, INC., a Delaware
corporation ("TAG") (ThermoView, American Home, Five Star, Key Home, Key Home
Mortgage, Xxxxxxxx Siding, Primax, Precision, Rolox, TD Windows, Thermal Line,
ThermoView-Missouri, Thermo-Tilt, Xxxxxx, TSAAI, TSAMI, TSC, TSAW, and TAG
individually are referred to in this Agreement as a "Borrower" and collectively
are referred to in this Agreement as the "Borrowers"), and [xx] PNC BANK,
NATIONAL ASSOCIATION, a national banking association (the "Bank").
RECITALS:
A. Certain of the Borrowers and the Bank are parties to a
certain Loan Agreement, dated as of August 31, 1998, as amended pursuant to that
certain Joinder to Loan Documents and Amendment to Loan Documents (Xxxxxx
Construction, Inc.) dated as of January 1, 1999, by and among certain of the
Borrowers and the Bank, as further amended by that certain Joinder to Loan
Documents and Amendment to Loan Documents (Precision Window Mfg., Inc.) dated as
of January 5, 1999, by and among certain of the Borrowers and the Bank, as
further amended by that certain Joinder to Loan Documents and Amendment to Loan
Documents (Thermo-Shield) dated as of July 8, 1999, by and among the Borrowers
and the Bank, as further amended by that certain Amendment to Loan Agreement
dated as of July 30, 1999, by and among the Borrowers and the Bank, as further
amended by that certain Second Amendment to Loan Agreement dated as of October
14, 1999, by and among the Borrowers
and the Bank, as further amended by that certain Third Amendment to Loan
Agreement dated as of November 5, 1999, by and among the Borrowers and the
Bank (as so amended, the "Loan Agreement") (certain capitalized terms used in
this Agreement have the meanings set forth for them in the Loan Agreement
unless expressly otherwise defined herein), pursuant to which, among other
things, the Bank established a $15,000,000.00 Committed Line of Credit in
favor of the Borrowers.
B. The Borrowers have requested that the Bank amend the Loan
Agreement, the Note, and the Term Note as more particularly described in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements set forth in this Agreement and for other good
and valuable consideration, the mutuality, receipt and sufficiency of which are
hereby acknowledged, the Borrowers and the Bank hereby agree as follows:
ARTICLE 1
AMENDMENTS TO LOAN AGREEMENT
The Loan Agreement is hereby amended as follows:
1.1 By deleting Section 1.D. of the Loan Agreement and substituting a
new Section 1.D. reading in its entirety as follows:
D. TERMINATION OF COMMITMENT. Lender's obligation to make Advances
under the Loan (the "COMMITMENT") shall continue until the earlier of
January 1, 2001, or any later date or dates, if applicable, as to which
Borrowers and the Bank (each in their sole and absolute discretion,
which may be exercised arbitrarily) may agree in writing (January 1,
2001, or such later date is referred to herein as the "LOAN EXPIRATION
DATE"), and the amount of all Advances not earlier repaid, together
with interest thereon, shall be due and payable in full as of the Loan
Expiration Date.
1.2 By deleting the last sentence of Section 1.E. of the Loan Agreement
and substituting a new last sentence to Section 1.E. of the Loan Agreement
reading in its entirety as follows:
The applicable Unused Loan Fee rate (the "UNUSED LOAN FEE RATE") shall
be based upon the ratio of the collective Senior Debt of the Borrowers
as of the end of the applicable Unused Loan Fee Calculation Period
divided by the Modified Borrower EBITDA of all Borrowers during the
applicable Unused Loan Fee Calculation Period as set forth in LOAN FEE
CALCULATION SCHEDULE attached to and made a part of this Agreement
until the end of the applicable Unused Loan Fee Calculation Period
occurring on December 31, 1999, on and after which time the Unused Loan
Fee Rate shall be based upon the ratio of the collective Senior Debt of
the Borrowers as of the
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end of the applicable Unused Loan Fee Calculation Period divided by
the EBITDA of all Borrowers during the applicable Unused Loan Fee
Calculation Period as set forth in LOAN FEE CALCULATION SCHEDULE.
1.3 By deleting the LOAN FEE CALCULATION SCHEDULE attached to the Loan
Agreement and replacing it with a new LOAN FEE CALCULATION SCHEDULE in the form
attached to this Agreement.
1.4 By deleting Section 4I.[c] of the Loan Agreement and substituting a
new Section 4I.[c] to the Loan Agreement reading in its entirety as follows:
[c] "EBITDA" is defined as the consolidated (and combined, if
applicable) sum of all earnings before interest, taxes, depreciation
and amortization less any extraordinary gain.
1.5 By deleting Section 4I.[g] of the Loan Agreement and substituting a
new Section 4I.[g] to the Loan Agreement reading in its entirety as follows:
[g] "MODIFIED BORROWER EBITDA" is defined as the sum of [i] Base
Earnings of Borrowers, PLUS [ii] an amount, representing certain
non-cash charges to income incurred by Borrowers on or before July 8,
1999, in respect of stock options heretofore issued by Borrowers (the
"STOCK OPTION CHARGES"), not to exceed [a] $6,120,000 for the
Calculation Date occurring on September 30, 1999, until, but not
including, the Calculation Date occurring on December 31, 1999, and [b]
$0.00 for all Calculations Dates occurring on and after December 31,
1999 (the "BASE EARNINGS EBITDA") of the Borrowers for which both the
Funded Debt to Modified Borrower EBITDA and Senior Debt to Modified
Borrower EBITDA financial covenants are being calculated, PLUS [iii] up
to fifty percent (50%) of the Base Earnings EBITDA of any Borrower
(each an "UNAUDITED BORROWER") for which the Bank has not received both
[a] audited financial statements in form and detail acceptable to the
Bank, as well as [b] other due diligence information concerning such
Unaudited Borrower as Bank may request, in form and substance
acceptable to the Bank or [iv] up to one hundred percent (100%) of the
Base Earnings EBITDA of any Borrower (each an "AUDITED BORROWER") for
which the Bank has received both [a] audited financial statements in
form and detail acceptable to the Bank, as well as [b] other due
diligence information concerning such Audited Borrower as Bank may
request, in form and substance acceptable to the Bank.
3
1.6 By adding a new Section 4I.[4] to the Loan Agreement reading in its
entirety as follows:
[i] CONVERSION OF FINANCIAL COVENANTS USE OF MODIFIED BORROWER EBITDA
TO EBITDA. Notwithstanding anything contained in this Agreement to the
contrary, effective with the Calculation Date occurring on December 31,
1999, the financial covenants set forth in Sections 4I.[1], 4I.[2], and
4I.[3] of this Agreement shall be calculated using EBITDA instead of
Modified Borrower EBITDA.
1.7 By deleting Section 4J. of the Loan Agreement and substituting a
new Section 4J. to the Loan Agreement reading in its entirety as follows:
J. NET WORTH. Borrowers will maintain at all times a consolidated (and
combined, if applicable) minimum Net Worth in an amount equal to ninety
percent (90%) of Borrowers' actual book net worth as indicated in
Borrowers' consolidated (and combined, if applicable) Financial
Statements dated as of September 30, 1999 (the "Base Net Worth"), plus,
for each fiscal quarter of Borrowers ending after September 30, 1999,
an amount equal to the sum of [i] seventy-five percent (75%) of
Borrowers' consolidated (and combined, if applicable) net income
(without giving effect to losses) for each such fiscal quarter and [ii]
one hundred percent (100%) of the net proceeds of any equity offering
(including, but not limited to, all public equity offerings and all
private equity offerings) resulting in the issuance of any equity
interest in Borrowers of any type or character (including, but not
limited to, common stock, preferred stock, or redeemable preferred
stock) for Borrowers for each such fiscal quarter. As used in this
financial covenant the parties agree that the [i] term "Net Worth"
means stockholders' equity in the Borrowers and [ii] Base Net Worth as
of September 30, 1999, was $47,944,984 (i.e. ninety percent (90%) of
$53,272,204).
ARTICLE 2
AMENDMENTS TO NOTE
The Note is hereby amended as follows:
2.1 By deleting the last sentence of paragraph 1 of the Note and
substituting a new last sentence to paragraph 1 of the Note reading in its
entirety as follows:
The "EXPIRATION DATE" shall mean the earliest to occur of [a] January
1, 2001, or [b] the date on which the Bank receives written notice from
the Borrowers (which notice shall be irrevocable) in which the
Borrowers shall state that they do not intend to
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request further Advances hereunder, and shall acknowledge that the
Bank shall have no obligation to make further Advances hereunder.
2.2 By deleting the last sentence of the definition of "Applicable
Euro-Rate Margin" and inserting a new last sentence to the definition of
"Applicable Euro-Rate Margin" reading in its entirety as follows:
The Applicable Euro-Rate Margin shall be based upon the ratio of
"Senior Debt" of the Borrowers as of the end of the applicable Interest
Calculation Period divided by the "Modified Borrower EBITDA" of
Borrowers during the applicable Interest Calculation Period, as set
forth in SCHEDULE A attached to and made a part of this Note, until the
end of the Interest Calculation Period occurring on December 31, 1999,
on and after which time the Applicable Euro-Rate Margin shall be based
upon the ratio of "Senior Debt" of the Borrowers as of the end of the
applicable Interest Calculation Period divided by the "EBITDA" of
Borrowers during the applicable Interest Calculation Period, as set
forth in SCHEDULE A attached to and made a part of this Note.
2.3 By deleting SCHEDULE A TO PROMISSORY NOTE (COMMITTED LINE OF CREDIT
NOTE) attached to the Note and replacing it with a new SCHEDULE A TO PROMISSORY
NOTE (COMMITTED LINE OF CREDIT NOTE) in the form attached to this Agreement.
ARTICLE 3
AMENDMENT TO TERM NOTE
The Term Note is hereby amended effective as of October 14,
1999, by deleting paragraph 2B. of the Term Note and replacing it with a new
paragraph 2B. reading in its entirety as follows:
B. KEY HOME LOANS. Each Borrower further agrees that Borrowers will not
permit or allow the amount of Key Home's outstanding loan portfolio to
exceed at any time [i] $1,800,000 in the aggregate during the period
beginning on the date of this Note and ending on December 1, 1999, and
[ii] $1,300,000 in the aggregate during the period beginning on
December 1, 1999 and ending on the Expiration Date, as such term is
defined in this Note.
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ARTICLE 4
CONDITIONS PRECEDENT
The modifications to the Loan Agreement described in Article 1 of
this Agreement, the modifications to the Note described in Article 2 of this
Agreement, and the modifications to the Term Note described in Article 3 of
this Agreement shall all become effective on that date (the "Effective Date")
on which this Agreement, duly executed by each of the Borrowers and the Bank,
has been delivered to the Bank.
ARTICLE 5
OTHER STIPULATIONS
5.1 Upon the Effective Date, the provisions of Article 1, Article 2 and
Article 3 of this Agreement shall become effective and modify or supersede and
replace the applicable provisions of, as applicable, the Loan Agreement, the
Note, and the Term Note recited as being modified by them. From and after the
Effective Date each reference to the "Loan Agreement," the "Note," and the "Term
Note" shall mean and be deemed a reference to, as applicable, the Loan
Agreement, the Note and the Term Note as modified by this Agreement but, except
as modified by this Agreement, the Loan Agreement, the Note and the Term Note
shall each remain in full force and effect in the same form as existed
immediately prior to the Effective Date.
5.2 This Agreement contains the final, complete and exclusive agreement
of the parties to it with regard to its subject matter, may not be amended
except in writing signed by each of the parties to it, shall be binding upon and
inure to the benefit of the respective successors and assigns of each of the
parties to it (subject to applicable provisions of the Loan Agreement), and
shall be construed in accordance with and otherwise governed in all respects by
the laws of the Commonwealth of Kentucky. This Agreement may be executed in
counterparts, and all counterparts collectively shall constitute but one
original document. Each of the Borrowers hereby agrees to reimburse the Bank for
all costs and expenses incurred by the Bank in connection with the preparation,
negotiation, documentation, execution and delivery of this Agreement, including
but not limited to the reasonable fees of legal counsel to Bank.
5.3 Each of the Borrowers join in this Agreement for the purpose of
consenting to the provisions of the foregoing Agreement, and each of the
Borrowers confirms and agrees that its and their respective obligations under,
as applicable, the Note, the Term Note and the other Loan Documents shall be
unimpaired by this Agreement and that no Borrower has any defenses or set offs
against the Bank, or its respective officers, directors, employees, agents or
attorneys with respect to, as applicable, the Note, the Term Note, or the other
Loan Documents and that all of the terms, conditions and covenants in the Loan
Documents remain unaltered and in full force and effect and are hereby ratified
and confirmed.
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5.4 Each of the Borrowers further agree that upon the written request
of the Bank, the Borrowers will cause to be delivered to the Bank the
acknowledgment of the Guarantors to the modifications to the Term Note contained
herein in form and substance satisfactory to the Bank, which acknowledgment will
contain, at a minimum, the agreement of each of the Guarantors that their
respective obligations under the Guaranty remain unimpaired in all respects by
the modifications to the Term Note set forth in this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
"BORROWERS"
THERMOVIEW INDUSTRIES, INC.,
a Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
AMERICAN HOME DEVELOPERS CO., INC.,
a California corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
FIVE STAR BUILDERS, INC., a California
corporation, successor in interest to American Home
Remodeling
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
KEY HOME CREDIT, INC., a
Delaware corporation
By: /S/ LEIGH XXX XXXXXX
-----------------------------------------------
Leigh Xxx Xxxxxx, President
KEY HOME MORTGAGE, INC., a Delaware
corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
XXXXXXXX SIDING AND WINDOW, INC., a
North Dakota business corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
PRIMAX WINDOW CO., a Kentucky corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
PRECISION WINDOW MFG., INC., a Missouri
corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
ROLOX, INC. a Kansas corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
TD WINDOWS, INC. a Kentucky corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMAL LINE WINDOWS, INC. a North
Dakota corporation, formerly known as Ice Inc.,
successor in interest to Blizzard Enterprises, Inc.
and Thermal Line Windows, LLP
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMOVIEW OF MISSOURI, INC., a
Missouri corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-TILT WINDOW COMPANY, a
Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
XXXXXX CONSTRUCTION, INC., a Missouri
corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA (ARIZONA),
INC., an Arizona corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA
(MICHIGAN), INC., a Michigan corporation
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD COMPANY, LLC,
an Illinois limited liability company
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, Manager and President
THERMO-SHIELD OF AMERICA
(WISCONSIN), LLC, a Wisconson limited liability
company
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, Manager and President
THERMOVIEW ADVERTISING GROUP, INC.,
a Delaware corporation
By: /S/ XXXXXXXX X. XXXXXXX
-----------------------------------------------
Xxxxxxxx X. Xxxxxxx, Secretary
"BANK"
PNC BANK, NATIONAL ASSOCIATION, a
national banking association
By: /S/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
LOAN FEE CALCULATION SCHEDULE
TO
AGREEMENT
========================================================================================================
SENIOR DEBT TO MODIFIED
BORROWER EBITDA
OR APPLICABLE UNUSED LOAN FEE
SENIOR DEBT TO EBITDA RATE
--------------------------------------------------------------------------------------------------------
Less than 1.25 to 1.0 .175%
--------------------------------------------------------------------------------------------------------
Greater than or equal to 1.25 to 1.0 but less .175%
than 1.75 to 1.0
--------------------------------------------------------------------------------------------------------
Greater than or equal to 1.75 to 1.0 but less .250%
than 2.25 to 1.0
--------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1.0 but less .300%
than 2.75 to 1.0
========================================================================================================
Greater than or equal to 2.75 to 1.0 but less .350%
than 3.50 to 1.0
========================================================================================================
SCHEDULE A
TO PROMISSORY NOTE (COMMITTED LINE OF CREDIT NOTE)
For purposes of this SCHEDULE A the terms Senior Debt,
Modified Borrower EBITDA, and EBITDA have the meanings set forth for each in the
Loan Agreement among Borrowers and Lender pursuant to which this Note was
issued, including after giving effect to any amendments hereafter of the Loan
Agreement.
As of any Interest Calculation Date occurring [i] before
December 31, 1999, the Applicable Euro-Rate Margin shall be that interest
increment per annum set forth below according to the Senior Debt to Modified
Borrower EBITDA for the applicable Interest Calculation Period and [ii] on and
after December 31, 1999, the Applicable Euro-Rate Margin shall be that interest
increment per annum set forth below according to the Senior Debt to EBITDA for
the applicable Interest Calculation Period:
========================================================================================================
SENIOR DEBT TO MODIFIED
BORROWER EBITDA
OR
SENIOR DEBT TO EBITDA APPLICABLE EURO-RATE MARGIN
--------------------------------------------------------------------------------------------------------
Less than 1.25 to 1.0 1.25%
--------------------------------------------------------------------------------------------------------
Greater than or equal to 1.25 to 1.0 but less 1.50%
than 1.75 to 1.0
--------------------------------------------------------------------------------------------------------
Greater than or equal to 1.75 to 1.0 but less 1.75%
than 2.25 to 1.0
--------------------------------------------------------------------------------------------------------
Greater than or equal to 2.25 to 1.0 but less 2.00%
than 2.75 to 1.0
========================================================================================================
Greater than or equal to 2.75 to 1.0 but less 2.25%
than 3.50 to 1.0
========================================================================================================
