Exhibit 10.1
Forbearance Agreement
Diamond Home Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Defaults and Request for Forbearance Under that Certain Credit Agreement
Dated as of April 20, 1998 as Previously Amended
(the "Credit Agreement")
Gentlemen:
This letter will confirm various recent conversations among representatives
of this bank as agent under the Credit Agreement (the "Agent") and
representatives of Diamond Home Services, Inc. (the "Borrower") regarding the
defaults described below (the "Existing Defaults") by the Borrower under the
Credit Agreement and the Banks' analysis that the Borrower's financial condition
and operating results have continued to deteriorate. On August 19 of this year,
the Borrower furnished the Banks projections which reflected the Borrower's cash
balances to be at a level which the Banks have determined insufficient to
support the normal operation of the Borrower's business as soon as 45 days from
the date of such projections. The Banks are extremely concerned over the
Borrower's condition and prospects (financial and otherwise). The Existing
Defaults consist of noncompliance as of June 30, 1999 with the financial
covenant contained in Section 8.30 of the Credit Agreement (requiring the
Borrower's maintenance of a minimum EBITDA after Capital Expenditures) and an
Event of Default arising by virtue of the cross default in Section 9.1(g) of the
Credit Agreement by reason of Marquise's non-compliance with the Existing
Marquise Financing. For convenience, all terms defined in the Credit Agreement
shall, when capitalized and used in this letter, have the same meanings that
such terms have in the Credit Agreement.
In recent discussions, the Borrower has requested that the Banks waive, or
at least forbear from exercising their rights and remedies with respect to, the
Existing Defaults and consent to a proposed sale by Marquise of certain of its
Property. The Banks are not willing at this time to waive the Existing Defaults.
However, during the period (the "Standstill Period") ending on September 29,
1999 (the "Scheduled Standstill Expiration Date"), the Banks will provide the
Borrower with the limited additional financial support described below and
forbear from accelerating the Obligations and enforcing the liens granted by the
Collateral Documents and consent to such a sale by Marquise on the terms,
conditions and provisions contained in this letter if the Borrower agrees to the
same. However, the Banks are not otherwise waiving the Existing Defaults or any
other Defaults or Events of Defaults that may occur.
As a condition to granting the Standstill Period, the Banks require the
following acknowledgments and agreements by the Borrower and the Material
Subsidiaries (whose
acceptance must be (x) made by their acceptance hereof without modification in
the spaces provided for that purpose below and (y) received by the Agent no
later than 2:00 p.m., Chicago time on Wednesday, September 1, 1999).
Accordingly, upon the execution hereof by the Agent, the Banks, the Borrower and
the Material Subsidiaries, it is agreed as follows:
1. Amounts Owing. The Borrower acknowledges and agrees that the principal
amount of Loans and L/C Obligations as of August 26, 1999 is $40,475,000
($16,875,000 in Term Loans, $0 in Swing Loans, $22,900,000 in Revolving Loans
and $700,000 in L/C Obligations) and such amount (together with interest
thereon) is justly and truly owing by the Borrower without defense, offset or
counterclaim.
2. Acknowledgment of Default. The Borrower is in default under the Credit
Agreement as a result of the Existing Defaults described in the first paragraph
of this Agreement. The Borrower acknowledges that under Sections 7.2 and 9.2 of
the Credit Agreement, because of the Existing Defaults, the Banks are permitted
and entitled to terminate the Commitments, to decline to provide further funding
to the Borrower, to accelerate the Obligations and exercise any other rights or
remedies that may be available under the Loan Documents or under applicable law.
The Borrower represents to the Banks that the Borrower is unaware of any
Defaults or Events of Default other than the Existing Defaults.
3. Forbearance. Unless and until a Standstill Termination occurs, the
Banks will not accelerate the Obligations or enforce any of the liens granted
under the Collateral Documents or exercise any other rights or remedies
available solely by reason of the Existing Defaults. Notwithstanding anything
contained in this letter to the contrary, neither the Banks nor any of their
Affiliates are forbearing from exercising any of their rights to terminate any
of their interest rate hedging arrangements with the Borrower or any of its
Subsidiaries.
4. Consent to Marquise Sale. Unless and until a Standstill Termination
occurs, the Banks will consent to the Disposition made by Marquise to Green Tree
Financial Servicing Corporation ("Green Tree") with respect to Property owned by
Marquise pursuant to the same or substantially the same terms and conditions set
forth in the draft of that certain Green Tree Contract Purchase Agreement (the
"Purchase Agreement") faxed from Green Tree to Marquise on August 18, 1999;
provided, however, that such Disposition is for a gross cash consideration
payable entirely at closing to Marquise of not less than 103% of the face
principal amount of the Contracts (as defined in the Purchase Agreement).
5. No Additional Credit. The Borrower acknowledges that the Banks have
exercised their right to cease extending any additional credit under the Credit
Agreement and that as a result, from and after the date of this letter, the
Banks will not extend additional credit under the Revolving Credit and ▇▇▇▇▇▇
Trust and Savings Bank will not extend additional credit under the Swing Line;
provided, however, that unless and until a Standstill Termination occurs, the
Banks will continue, pursuant to Section 1.6(c) of the Credit Agreement, to make
Base Rate Loans to repay Reimbursement Obligations arising from drawings paid on
Letters of Credit. Any failure by the Borrower to make any payment as and when
required by this letter (including any payment required by the Borrowing Base
provisions of the Credit Agreement as modified by this letter) shall be deemed
an Event of Default under subsection 9.1(a) of the Credit Agreement
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entitling the Agent and the Banks to invoke the rights and remedies available
upon the occurrence of such an Event of Default; and any other noncompliance
with any of the terms, conditions or provisions of this letter shall be deemed
an Event of Default under subsection 9.1(c) of the Credit Agreement after notice
thereof to the Borrower in accordance with the terms of the Credit Agreement, in
each case entitling the Agent and the Banks to invoke the rights and remedies
available upon the occurrence of such a Default or Event of Default, as the case
may be. The Defaults and Events of Default arising from any failure to pay as
required by, or any other noncompliance with, this letter are in addition to the
Events of Default currently set forth in the Credit Agreement.
6. Borrowing Base. The Borrower must not at any time permit the excess of
the Borrowing Base as then determined and computed over the sum of Revolving
Loans, Swing Loans and L/C Obligations then outstanding to fall below
$2,500,000. The Borrower shall immediately make such payments as are necessary
to assure such excess never falls below such amount. As soon as available, and
in any event within two Business Days after the last day of each calendar week,
the Borrower shall furnish to the Agent and the Banks a Borrowing Base
Certificate showing the computation of the Borrowing Base in reasonable detail
as of the close of business on the last day of such week, prepared by the
Borrower and certified by its president or chief financial officer.
7. Proceeds of Collateral. As and when the Agent so requests, the
Borrower shall establish and maintain such arrangements as shall be necessary or
appropriate to assure that the proceeds of collections on accounts receivable
and other Collateral of the Borrower and its Material Subsidiaries are deposited
(in the same form as received) in accounts maintained with, or under the
dominion and control of, the Agent, such accounts to constitute special
restricted accounts, the Borrower acknowledging that the Agent has (and is
hereby granted) a lien on such accounts and all funds contained therein to
secure the Obligations. If and to the extent that proceeds are deposited and/or
maintained in one or more accounts maintained with financial institutions other
than the Agent, the immediately preceding sentence's requirement of dominion and
control shall be satisfied with respect to such deposit accounts only if the
financial institutions maintaining such accounts shall have delivered to the
Agent blocked account agreements satisfactory to the Agent in form and substance
pursuant to which such financial institutions acknowledge and agree the Agent's
Lien thereon, waive any right of offset or bankers' liens thereon (other than
with respect to account maintenance charges and returned items) and agree that,
upon notice from the Agent, the collected balances in such accounts will only be
transferred to the Agent. Without limiting the generality of the foregoing, the
Borrower and ▇▇▇▇▇▇ must deliver to the Agent such blocked account agreements
for their respective existing accounts at American National Bank and Trust
Company ("ANB"), NationsBank, National Association ("Nations"), AMCORE Bank,
National Association ("AMCORE") and Fidelity Investments Bank of New York
("Fidelity") by no later than September 15, 1999. At no time after September 15,
1999 shall the amount of balances at banks which have not delivered such blocked
account agreements (excluding for this purpose ANB, Nations, AMCORE and
Fidelity) exceed $300,000 in the aggregate. The Banks agree with the Borrower
that if and so long as no Standstill Termination has occurred or is continuing,
amounts on deposit in the accounts maintained with the Agent will (subject to
the rules and regulations of the Agent as from time to time in effect applicable
to demand deposit accounts) be made available to the
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Borrower and its Material Subsidiaries for use in the conduct of their business.
Upon the occurrence of a Standstill Termination, the Agent may apply the funds
on deposit in such accounts to the Obligations.
8. Turnaround Consultant. The Borrower shall continue to retain High
Ridge Partners or such other third party consulting firm as is satisfactory to
the Banks to assist in the conduct of the Borrower's business and the Borrower
shall take reasonable steps to assure that representatives of such firm are
available for discussions with the Banks regarding the Borrower's financial
condition and prospects (whether or not any member of the Borrower is present).
9. Forbearance Fee. In consideration of the Banks' agreements in this
letter, the Borrower shall pay to the Agent for the ratable account of the Banks
a fee of $63,000. Such fee shall be deemed fully earned immediately upon the
execution by the Agent and Banks and the acceptance by the Borrower and the
Material Subsidiaries of this letter in the spaces provided for that purpose
below. Such fee shall be due and payable on the Standstill Termination.
10. Intercompany Advances to Marquise. The Borrower shall not, nor shall
it permit any Subsidiary to, directly or indirectly, make any investments in, or
any intercompany loans or advances to, Marquise or any of its subsidiaries
beyond those investments, loans and advances that exist as of the date hereof.
11. Mergers, Sales and Acquisitions. During the Standstill Period, the
Borrower shall not, nor shall it permit any Subsidiary, without the written
consent of the Banks, to (i) merge any Subsidiary with and into the Borrower or
any other Subsidiary, (ii) sell, transfer, lease or otherwise dispose of
Property of the Borrower or any Subsidiary (other than in the ordinary course)
or (iii) make any Acquisitions.
12. No More Fixed Rate Loans. Effective immediately, no more Fixed Rate
Loans shall be advanced, continued or created by conversion, and any Fixed Rate
Loans outstanding as of today's date shall as of the last day of their
respective Interest Periods, automatically be reborrowed as Base Rate Loans.
13. Net Cash Position. A Standstill Termination shall be deemed to occur
if any one of the following occurs:
(a) the adjusted book position of Diamond Exteriors, Inc.
("Exteriors"), as of the close of any calendar week, is more than $150,000
less than the amount projected for such week end in the projections
attached hereto as Schedule One (the "Projections");
(b) the net cash flow position of ▇▇▇▇▇▇ and Foreline Security
Corporation ("FSC"), taken together on a consolidated basis, as of the
close of any calendar week, is more than $150,000 less than the aggregate
amount projected for such Subsidiaries for such week end in the
Projections; or
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(c) the non-cash items plus DEI interest position of Marquise, as of
the close of any calendar month must remain positive (greater than $1).
For purposes of this Agreement, the "adjusted book," "net cash flow" and
"non-cash items plus DEI interest" positions of Exteriors, ▇▇▇▇▇▇, Foreline
and Marquise shall be calculated in the same form and manner as the same
were calculated in the Projections.
14. Additional Information. The Borrower must furnish the Banks the
following information in addition to that currently required by the Loan
Documents:
(a) as soon as available, but in any event no later than the second
Business Day of each calendar week, a report of the actual net cash flow
position for the immediately preceding week (commencing with the week
ending September 5, 1999) for each of Exteriors, ▇▇▇▇▇▇, FSC and Marquise,
broken down in categories similar to the Projections and otherwise in
reasonable detail, signed by the chief financial officer of the Borrower,
or another officer of the Borrower reasonably acceptable to the Agent;
(b) as soon as available, but in any event no later than the second
Business Day of each calendar week, a report describing the variance
between the actual net cash flow positions on a cumulative basis from
August 30, 1999 through the close of the immediately preceding week
(commencing with the week ending September 5, 1999) for each of Exteriors,
▇▇▇▇▇▇, FSC and Marquise and the amounts projected for such period for such
party in the Projections, broken down in categories similar to the
Projections and otherwise in reasonable detail, together with an
explanation in reasonable detail of the reasons for such variance, all
signed by the chief financial officer of the Borrower, or another officer
of the Borrower reasonably acceptable to the Agent; and
(c) as soon as available, but in any event no later than the second
Business Day of each calendar week, a report of the aggregate amount of
balances on deposit, as of the close of the immediately preceding week from
and commencing with the week ending September 5, 1999, at accounts
maintained by the Borrower and the Material Subsidiaries at banks and other
financial institutions as to which blocked account agreements conforming
with the requirements of paragraph 7 above have not yet been delivered and
which sets out separately, to the extent relevant, balances on deposit at
ANB, Nations, AMCORE and Fidelity, in reasonable detail, signed by the
chief financial officer of the Borrower, or another officer of the Borrower
reasonably acceptable to the Agent.
15. No Material Adverse Change. No change shall occur since July 31, 1999
in the condition or prospects, financial or otherwise, of the Borrower or any
Material Subsidiary, taken as a whole, which the Agent or Required Banks deem
materially adverse.
16. Standstill Termination. As used in this letter, "Standstill
Termination" shall mean the occurrence of the Scheduled Standstill Expiration
Date, or, if earlier, the occurrence of any one or more of the following events:
(a) any Default or Events of Default under the Credit Agreement, in each case
other than the Existing Defaults; (b) any failure by the Borrower for any
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reason to comply with any term, condition or provision contained in this letter;
(c) any representation made in this letter or pursuant to it proves to be
incorrect or misleading in any material respect when made; or (d) the occurrence
of any event or the existence of any condition in each case which is specified
herein as a "Standstill Termination". The occurrence of any Standstill
Termination shall be deemed an Event of Default under the Credit Agreement. Upon
the occurrence of a Standstill Termination, the Standstill Period is
automatically terminated and the Banks are then permitted and entitled under
Sections 7.2, 9.2, 9.3 and 9.4 of the Credit Agreement, among other things, to
permanently terminate the Commitments, to decline to provide further funding, to
require payments on the L/C Obligations, to accelerate the Obligations and to
exercise any other rights and remedies that may be available under the Loan
Documents or applicable law.
17. No Waiver and Reservation of Rights. The Borrower and the Material
Subsidiaries (the Borrower and the Material Subsidiaries being hereinafter
referred to collectively as the "Loan Parties" and each individually as a "Loan
Party") acknowledge that the Banks are not waiving the Existing Defaults, but
are simply agreeing to forbear from exercising their rights with respect to the
Existing Defaults to the extent expressly set forth in this letter. Each Loan
Party will not assert and hereby forever waives any right to assert that the
Agent or the Banks are obligated in any way to continue beyond the Standstill
Period to forbear from enforcing their rights or remedies or that the Agent and
the Banks are not entitled to act on the Existing Defaults after the occurrence
of a Standstill Termination as if such default had just occurred and the
Standstill Period had never existed. Each Loan Party acknowledges that the Banks
have made no representations as to what actions, if any, the Banks will take
after the Standstill Period or upon the occurrence of any Standstill
Termination, a Default or Event of Default, and the Banks and the Agent must and
do hereby specifically reserve any and all rights and remedies they have (after
giving effect hereto) with respect to the Existing Defaults and each other
Default or Event of Default that may occur.
18. Release. For value received, including without limitation, the
agreements of the Banks in this letter, each Loan Party hereby releases the
agent and each Bank, its current and former shareholders, directors, officers,
agents, employees and professional advisors (collectively, the "Released
Parties") of and from any and all demands, actions, causes of action, suits,
controversies, acts and omissions, liabilities, and other claims of every kind
or nature whatsoever, both in law and in equity, known or unknown, which each
Loan Party has or ever had against the Released Parties from the beginning of
the world to this date, including, without limitation, those arising out of the
existing financing arrangements between the Banks, and each Loan Party further
acknowledges that, as of the date hereof, it does not have any counterclaim,
set-off or defense against the Released Parties, each of which the Borrower
hereby expressly waives.
19. Loan Documents Remain Effective. Except as expressly set forth in this
letter, the Loan Documents remain in full force and effect. Without limiting the
foregoing, each Loan Party agrees to comply with all of the terms, conditions
and provisions of the Loan Documents except to the extent such compliance is
irreconcilably inconsistent with the express provisions of this letter. This
letter and the Loan Documents are intended by the Banks as a final expression of
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their agreement and are intended as a complete and exclusive statement of the
terms and conditions of that agreement.
20. Fees and Expenses. The Borrower shall pay all reasonable fees and
expenses (including attorneys' fees) heretofore incurred by the Banks and their
counsel in connection with the drafting and preparation of the Loan Documents
and incurred by the Banks and their counsel in connection with the drafting and
preparation of this Agreement, and the supervision of legal matters in
connection with this Agreement.
This Agreement shall take effect upon its execution by the Agent and Banks
and its acceptance by the Borrower and the Material Subsidiaries. By their
acceptance hereof, the Borrower and the Material Subsidiaries represent that
they have the necessary power and authority to execute, deliver and perform the
undertakings contained herein and that the same do bind the Borrower and the
Material Subsidiaries hereto. This Agreement shall be governed by Illinois law
and shall be governed and interpreted on the same basis as the Credit Agreement.
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Dated as of September 1, 1999.
▇▇▇▇▇▇ Trust And Savings Bank,
individually and as Agent
By
Its
-----------------------------------
LaSalle Bank, National Association
By
Its
-----------------------------------
Bank of America, N.A.
By
Its
-----------------------------------
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Accepted and agreed to.
Diamond Home Services, Inc.
By
Its
-----------------------------------
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Material Subsidiaries' Consent
The undersigned, being all the Material Subsidiaries of the Borrower, have
heretofore executed and delivered to the Banks a Guaranty and certain other
Collateral Documents and hereby consent to the above Agreement and confirm that
their Guaranty and such Collateral Documents and all of the undersigneds'
obligations thereunder remain in full force and effect. The undersigned further
agree that the consent of the undersigned to any further modifications in the
credit arrangements contemplated by the Credit Agreement shall not be required
as a result of this consent having been obtained. Each Material Subsidiary shall
take such action as the Borrower is required by this letter to cause such
Material Subsidiary to take, and shall refrain from taking such action as the
Borrower is required by the above Agreement to prohibit such Material Subsidiary
from taking.
▇▇▇▇▇▇ Southeastern Corporation
By
Its
-----------------------------------
Foreline Security Corporation
By
Its
-----------------------------------
Diamond Exteriors, Inc.
By
Its
-----------------------------------
Marquise Financial Services, Inc.
By
Its
-----------------------------------
▇▇▇▇▇▇ Southeastern Realty, Inc.
By
Its
-----------------------------------
Schedule One
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