AMENDMENT TO GUARANTY
This Amendment to Guaranty, dated as of November 30, 1997 (this
"Amendment"), is by and between Diamond Home Services, Inc. (f/k/a Diamond
Exteriors, Inc.) (the "Company") and American National Bank and Trust Company of
Chicago (the "Bank"). Capitalized terms used in this Amendment and not
otherwise defined have the meanings assigned to such terms in the Guaranty (as
defined below).
W I T N E S S E T H:
WHEREAS, the Company and the Bank are parties to the Guaranty dated as
of December 3, 1996 (as such guaranty may be amended, modified, restated or
supplemented from time to time, the "Guaranty"), under which the Company
guaranteed the obligations and liabilities of its wholly owned subsidiary,
Diamond Exteriors, Inc., to the Bank under the Loan and Security Agreement dated
as of February 6, 1996, as amended, supplemented or otherwise modified;
WHEREAS, the Bank and Diamond Exteriors, Inc. are entering into the
Fourth Amendment and Waiver to Loan and Security Agreement of even date herewith
(the "Fourth Amendment");
WHEREAS, it is a condition precedent under the Fourth Amendment that
the Company amend the Guaranty as provided in this Amendment;
NOW, THEREFORE, in consideration of premises and mutual agreements
contained in this Amendment and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the Company and Bank agree as
follows:
SECTION 1. AMENDMENT TO GUARANTY
On the date this Amendment becomes effective, after satisfaction by
the Company of each of the conditions set forth in Section 2 below (the "Closing
Date"), effective as of November 30, 1997, the Guaranty is amended as follows:
1.1 Section 3.9(C) of the Guaranty is amended by deleting such
section in its entirety and replacing it as follows:
(C) The Guarantor has no material contingent liabilities not provided
for or disclosed in the financial statements referred to in Section 3.5(B)
or such similar updated financial statements as the Guarantor provides the
Bank.
1.2 Section 5.1 of the Guaranty is amended by deleting such section
in its entirety and replacing it as follows:
5.1 Indebtedness. Not incur or permit to exist any Indebtedness
except for (i) the Indebtedness arising under this Guaranty and the
Indebtedness arising under the capital maintenance agreement among Diamond
Exteriors, the Guarantor and Xxxxxx Trust and Savings Bank and (ii)
Capitalized Lease Obligations (including Capitalized Lease Obligations of
Diamond Exteriors) not to exceed $750,000 in the aggregate at any time
outstanding.
1.3 Section 5.4 of the Guaranty is amended by deleting such section
in its entirety and replacing it as follows:
5.4 Dividend Restrictions. Not make any payment in cash, property or
other assets upon or in respect of any shares of any class of its capital
stock including, without limiting the foregoing, payments as dividends and
payments for the purpose of redeeming, purchasing or otherwise acquiring
any shares of any class of its capital stock, including in the term "stock"
any warrant or option or other right to purchase such stock, or making any
other distribution in respect as any such shares of stock or set aside any
funds for any such purpose; provided, however, the Guarantor may repurchase
its capital stock held by employees of the Guarantor or its subsidiaries
upon their retirement, termination, disability or death so long as such
repurchase does not violate any of the financial covenants contained in
Section 5 and could not reasonably be expected to result in a material
adverse effect on the condition (financial or otherwise), business, results
of operations or prospects of the Guarantor; provided, further, that the
Guarantor may otherwise repurchase its capital stock so long as the total
spent in repurchasing such stock (including stock repurchased from
employees under the preceding provision) does not exceed $8,500,000 in the
aggregate; provided, further, however, that the Guarantor may make
dividends in cash and stock so long as if immediately after making such
dividend, the Guarantor would be in compliance with each of the financial
covenants contained in Section 5.
1.4 Section 5.6 of the Guaranty is amended by deleting such section
in its entirety and replacing it as follows:
5.6 Transactions with Affiliates. Not enter into any transaction
with any Affiliate except (i) transactions in the ordinary course of
business and on terms and conditions at least as favorable to the Guarantor
as the terms and conditions that would apply in a similar transaction with
a Person who is not an Affiliate, (ii) the subordinated promissory note
made by Diamond Exteriors to the Guarantor in connection with the original
public offering of the common stock of the Guarantor and (iii) the capital
maintenance agreement among Diamond Exteriors, the Guarantor and Xxxxxx
Trust and Savings Bank.
1.5 Section 5.7 of the Guaranty is amended by deleting such section
in its entirety and replacing it as follows:
5.7 Subsidiaries. Not create or allow to exist any Subsidiaries
other than (i) those listed in Section 3.8, (ii) such other Subsidiaries as
are permitted by the Bank under the Loan Agreement and (iii) Subsidiaries
created solely for acquisitions and having substantially no assets (it
being understood that the Bank reserves its right to consent to such
acquisitions under Section 5.5).
1.6 Section 5.8 of the Guaranty is amended by deleting such section
in its entirety and replacing it as follows:
5.8 Tangible Net Worth. Commencing January 1, 1997, not permit the
Related Companies' Tangible Net Worth (as measured on a consolidated basis)
to be less than $18,000,000 plus 50% of the Related Companies' net income
minus 100% of the amount of cash used by the Guarantor to repurchase its
stock, calculated at the end of each of the Company's fiscal quarters
through the Credit Termination Date.
SECTION 2. CONDITIONS TO EFFECTIVENESS
The obligation of the Bank to make the amendments contemplated by this
Amendment, and the effectiveness of such amendments, are subject to the Bank
having received all of the following, each duly executed and dated as of the
Closing Date (or such other date as is satisfactory to the Bank) in form and
substance satisfactory to the Bank:
(A) Amendment to Guaranty. This Amendment.
(B) Fourth Amendment. The Fourth Amendment.
(C) Consents. Certified copies of all documents evidencing all
necessary corporate actions, consents and governmental approvals, if
any, with respect to this Amendment or any other document provided for
under this Amendment.
(D) Other. Such other documents as the Bank may reasonably
request.
SECTION 3. MISCELLANEOUS
3.1 Captions. The recitals to this Amendment (except for
definitions) and the section captions used in this Amendment are for convenience
only and do not affect the construction of this Amendment.
3.2 Governing Law; Severability. THIS AMENDMENT IS A CONTRACT MADE
UNDER AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES. Wherever possible, each provision of this
Amendment must be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is prohibited by or
invalid under such law, such provision is only ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.
3.3 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart is deemed to be an original, but all such counterparts together
constitute but one and the same Amendment.
3.4 Successors and Assigns. This Amendment is binding upon the
Company and the Bank and their respective successors and assigns, and inures to
the sole benefit of the Company and the Bank and their respective successors and
assigns. The Company has no right to assign its rights or delegate its duties
under this Amendment.
3.5 References. From and after the Closing Date, each reference in
the Guaranty to "this Guaranty," "hereunder," "hereof," "herein," or words of
like import, and each reference in any other document to the Guaranty or to any
term, condition or provision contained "thereunder," "thereof," "therein," or
words of like import, mean and are a reference to the Guaranty (or such term,
condition or provision, as applicable), as amended, supplemented, restated or
otherwise modified by this Amendment.
3.6 Continued Effectiveness. Notwithstanding anything contained in
this Amendment to the contrary, the terms of this Amendment are not intended to
and do not serve to effect a novation as to the Guaranty. The parties to this
Amendment expressly do not intend to extinguish the Guaranty. Instead, it is
the express intention of the parties to this Amendment to reaffirm the
indebtedness created by the Guaranty. The Guaranty, as amended by this
Amendment, remains in full force and effect.
* * *
Delivered at Chicago, Illinois, as of the day and year first above
written.
DIAMOND HOME SERVICES, INC.
By:_____________________________
Name:
Title:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:_____________________________
Xxxxxx X. Xxxxxxxx
Assistant Vice President
