THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (the " Agreement") is made
and entered into as of November 5, 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. 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 between 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 between 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
between the Borrowers and the Bank, as further amended by that certain
Amendment to Loan Agreement dated as of July 30, 1999, by and between 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
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 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
AMENDMENT TO LOAN AGREEMENT
The Loan Agreement is hereby amended as follows:
1.1 By deleting Section 4I.[1] of the Loan Agreement and substituting a
new Section 4I.[1] reading in its entirety as follows:
[1] FUNDED DEBT TO MODIFIED BORROWER EBITDA. The ratio,
calculated as of the end of each fiscal quarter of Borrowers beginning
September 30, 1999 (each a "CALCULATION DATE"), of the consolidated (and
combined, if applicable) Funded Debt of Borrowers as of each Calculation Date
divided by the consolidated (and combined, if applicable) Modified Borrower
EBITDA for Borrowers for the four (4) fiscal quarters of Borrowers
immediately preceding the applicable Calculation Date shall not be greater
than 4.75 to 1.00 as of the Calculation Date occurring on September 30, 1999,
and 4.25 to 1.00 as of the Calculation Date occurring on December 31, 1999,
and as of all Calculation Dates occurring on and after December 31, 1999.
1.2 By deleting Section 4M. of the Loan Agreement and substituting a
new Section 4M. reading in its entirety as follows:
[a] "BASE EARNINGS" is defined as the consolidated (and
combined, if applicable) sum of all earnings before interest, taxes,
depreciation and amortization LESS any extraordinary gain, PLUS
expenses, calculated and estimated by Borrowers in a manner and amount
acceptable to Bank in each case, incurred by each Borrower, if and to
the extent applicable, that reasonably are expected no longer to be
incurred because of operating efficiencies realized as a result of and
following each such entity having become a Borrower ("NON-RECURRING
EXPENSES").
ARTICLE 2
CONDITIONS PRECEDENT
The modifications to the Loan Agreement described in Article 1 of
this Agreement shall 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 3
OTHER STIPULATIONS
3.1 Upon the Effective Date, the provisions of Article 1 of this
Agreement shall become effective and modify or supersede and replace the
applicable provisions of the Loan Agreement recited as being modified by
them. From and after the Effective Date each reference to the "Loan
Agreement" shall mean and be deemed a reference to the Loan Agreement as
modified by this Agreement but, except as modified by this Agreement, the
Loan Agreement shall remain in full force and effect in the same form as
existed immediately prior to the Effective Date.
3.2 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.
3.3 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 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 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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3
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
