FIFTH AMENDMENT TO LOAN AGREEMENT
AND AMENDMENT TO NOTE
THIS FIFTH AMENDMENT TO LOAN AGREEMENT AND AMENDMENT TO NOTE
(the "AGREEMENT") is made and entered into as of April 14, 2000, by and among
[i] THERMOVIEW INDUSTRIES, INC., a Delaware corporation ("THERMOVIEW"), [ii]
AMERICAN HOME DEVELOPERS CO., INC., a California corporation ("AMERICAN HOME"),
[iii] THERMOVIEW INDUSTRIES, INC. OF CALIFORNIA, a California corporation,
formerly known as Five Star Builders, Inc., successor in interest to American
Home Remodeling ("THERMOVIEW CALIFORNIA"), [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, ThermoView California, 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 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 _____, 1999, by and among the Borrowers and the Bank, and as further
amended by that certain Fourth Amendment to Loan Agreement and Amendment to Note
and Term Note dated as of November 10, 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 and the 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. Bank's obligation to make Advances under
the Loan (the "COMMITMENT") shall continue until the earlier of May 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 (May 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 one eighth of one percent (.125%) per annum.
2
1.3 By deleting the first sentence of Section 1.F. of the Loan
Agreement and substituting a new first sentence to Section 1.F. of the Loan
Agreement reading in its entirety as follows:
Subject to the provisions of this Agreement, Bank agrees to issue
irrevocable standby Letters of Credit from time to time after January
1, 1999, until the earlier of May 1, 2001, or any later date or dates,
if applicable, as to which Borrowers and Bank may agree (each in their
sole and absolute discretion, which may be exercised arbitrarily) in
writing (May 1, 2001, or such later date is referred to herein as the
"LETTER OF CREDIT EXPIRATION DATE") upon the request of, for the
account of, and with recourse to Borrowers (the "LETTER OF CREDIT
FACILITY").
1.4 By deleting Section 4B.[1] of the Loan Agreement and
substituting a new Section 4B.[1] reading in its entirety as follows:
[1] MONTHLY INFORMATION. Commencing with the month ending
March 31, 2000, Borrowers will deliver to Bank as soon as practicable
after the end of each month, but in any event within thirty (30) days
thereafter: [i] an unaudited consolidated balance sheet of Borrowers at
the end of such month; [ii] unaudited consolidated statements of
income, retained earnings and cash flows of Borrowers for such month
and for the portion of such year ending with such month; [iii] an
acquisition pipeline report; [iv] projected consolidated cash flow
statements of each Borrower, including summary details of cash
disbursements, for the immediately succeeding calendar month; [v] a
report (now known as the Earn-Out Forecast) detailing all anticipated
payments for all Earn-Outs, as that term is defined in this Agreement;
and [vi] a certificate ("COMPLIANCE CERTIFICATE") signed by the Chief
Executive Officer or Chief Financial Officer of ThermoView, certifying
that such officer has reviewed the relevant terms of this Agreement and
the other Loan Documents, has made, or caused to be made under his or
her supervision, an adequate review of the transactions and condition
of each of the Borrowers during such period and as at the date of such
signing, and that such review has not disclosed the existence, during
such period or as at the date of such signing, of any Event of Default,
or if so, specifying the nature and period of existence thereof and
what action ThermoView or the applicable Borrower has taken or is
taking or proposes to take with respect thereto together with a
certification that, as applicable, ThermoView or the applicable
Borrower as at the end of such month, if applicable, was, or was not,
in compliance with the financial covenants set forth in the Section of
this Agreement entitled "Financial Covenants," and a schedule
disclosing the calculations forming the basis for such certification.
3
1.5 By deleting Section 4B.[2] of the Loan Agreement and
substituting a new Section 4B.[2] reading in its entirety as follows:
[2] QUARTERLY INFORMATION. Borrowers will deliver to Bank as
soon as practicable after the end of each of the first three quarterly
fiscal periods in each fiscal year of ThermoView, but in any event
within forty-five (45) days thereafter, [i] an unaudited consolidated
balance sheet of Borrowers as at the end of such quarter, and [ii]
unaudited consolidated statements of income, retained earnings and cash
flows of Borrowers for such quarter and (in the case of the second and
third quarters) for the portion of the fiscal year ending with such
quarter, setting forth in comparative form in each case the projected
consolidated figures for such period and the actual consolidated
figures for the comparable period of the prior fiscal year. Such
statements shall be [a] prepared in accordance with GAAP consistently
applied, [b] in reasonable detail, [c] certified by the principal
financial or accounting officer of ThermoView and [d] accompanied by a
Compliance Certificate or other statement in reasonable detail,
certified by the Chief Executive Officer or Chief Financial Officer of
ThermoView showing the calculations used in determining compliance with
each of the financial covenants set forth in this Agreement.
1.6 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 EBITDA. The ratio, calculated as of the end
of each fiscal quarter of Borrowers beginning March 31, 2000 (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) EBITDA for Borrowers for the
four (4) fiscal quarters of Borrowers immediately preceding the
applicable Calculation Date shall not be greater than 10.00 to 1.00 as
of the Calculation Date occurring on March 31, 2000, and thereafter
until, but not including, the Calculation Date occurring on June 30,
2000; 7.50 to 1.00 as of the Calculation Date occurring on June 30,
2000, and thereafter until, but not including, the Calculation Date
occurring on September 30, 2000; 5.25 to 1.00 as of the Calculation
Date occurring on September 30, 2000, and thereafter until, but not
including, the Calculation Date occurring on December 31, 2000, and
4.25 to 1.00 as of the Calculation Date occurring on December 31, 2000,
and as of all Calculation Dates thereafter.
1.7 By deleting Section 4I.[2]of the Loan Agreement and
substituting a new Section 4I.[2] reading in its entirety as follows:
[2] SENIOR DEBT TO EBITDA. The ratio as of each Calculation
Date of the consolidated (and combined, if applicable) Senior Debt of
Borrowers as of each Calculation Date divided by the consolidated (and
combined, if applicable) EBITDA
4
for Borrowers for the four (4) fiscal quarters of Borrowers immediately
preceding the applicable Calculation Date shall not be greater than
4.60 to 1.00 as of the Calculation Date occurring on March 31, 2000,
and thereafter until, but not including, the Calculation Date occurring
on June 30, 2000; 4.50 to 1.00 as of the Calculation Date occurring on
June 30, 2000, and thereafter until, but not including, the Calculation
Date occurring on September 30, 2000; and 3.50 to 1.00 as of the
Calculation Date occurring on September 30, 2000, and as of all
Calculation Dates thereafter.
1.8 By deleting Section 4I.[3]of the Loan Agreement and
substituting a new Section 4I.[3] reading in its entirety as follows:
[3] FIXED CHARGE COVERAGE. The ratio as of each Calculation
Date of the consolidated (and combined, if applicable) EBITDA LESS the
amount of any cash taxes ("CASH TAXES") LESS the amount of all
Earn-Outs, as that term is defined herein, not financed with the
proceeds of loans or other borrowings from any person or entity
("UNFINANCED EARN-OUTS") LESS the amount of any Capital Expenditures,
as that term is defined herein, of the Borrowers not financed with the
proceeds of loans or other borrowings from any person or entity
("UNFINANCED CAPITAL EXPENDITURES"), which Cash Taxes, Unfinanced
Earn-Outs, and Unfinanced Capital Expenditures were incurred during the
immediately preceding four (4) fiscal quarters of the Borrowers,
divided by the sum of, for the same period, consolidated (and combined,
if applicable) current maturities of Funded Debt for Borrowers PLUS any
and all dividends paid or accrued by the Borrowers PLUS all
consolidated interest expenses paid or accrued by the Borrowers, shall
not be less than .70 to 1.00 as of the Calculation Date occurring on
March 31, 2000, and thereafter until, but not including, the
Calculation Date occurring on June 30, 2000; and .75 to 1.00 as of the
Calculation Date occurring on June 30, 2000, and thereafter until, but
not including, the Calculation Date occurring on September 30, 2000;
and 1.10 to 1.00 as of the Calculation Date occurring on September 30,
2000, and thereafter until, but not including, the Calculation Date
occurring on December 31, 2000; and 1.20 to 1.00 as of the Calculation
Date occurring on December 31, 2000, and as of all Calculation Dates
thereafter.
1.9 By deleting Section 4I.[4] of the Loan Agreement and
substituting a new Section 4I[4] 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 and all other calculations required by this
Agreement, including the calculations contained
5
in the "Limitation of Commitment" Section of this Agreement, shall be
calculated using EBITDA instead of Modified Borrower EBITDA.
1.10 By deleting Section 4I.[d] of the Loan Agreement and
substituting a new Section 4I.[d] reading in its entirety as follows:
[D] "FUNDED DEBT" is defined as the consolidated (and
combined, if applicable) sum of all line borrowings, plus current (i.e.
less than or equal to one (1) year) and non-current maturities of long
term debt of each of the Borrowers (including but not limited to any
obligations of any Borrower that are determined based on the future
performance of any Acquired Entity ("EARN-OUTS")) to the Bank or any
other person or entity. For purposes of this calculation, Funded Debt
shall be deemed to include, at all times, the actual principal amount
of the GE Subordinated Debt due and owing without regard to any
carrying value thereof shown on the books and records of the Borrowers.
1.11 By deleting Section 4J. of the Loan Agreement and substituting
a new Section 4J. 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 December 31, 1999 (the
"BASE NET WORTH"), plus, for each fiscal quarter of Borrowers ending
after December 31, 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
(whether in the form of cash or a decrease in any debt of any of the
Borrowers) of any equity offering (including, but not limited to, all
public equity offerings, all private equity offerings and any
conversions of any debt of any of the Borrowers to equity) resulting in
the issuance for any reason 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 December 31, 1999, was
$_______________ (i.e. ninety percent (90%) of $_______________).
1.12 By deleting the third sentence of Section 4P. of the Loan
Agreement and substituting a new third sentence to Section 4P. of the Loan
Agreement reading in its entirety as follows:
The Bank may require additional field audits during the term of this
Agreement as often as is deemed necessary by the Bank in the exercise
of the Bank's sole and absolute discretion.
6
1.13 By adding a new Section 4S. to the Loan Agreement reading in
its entirety as follows:
S. RENEWAL FEE. Pay to Bank [i] on or before June 30,
2000, $50,000.00, which represents a portion of the $70,000.00 fee (the
"EXTENSION FEE") charged by Bank for extending the Loan Expiration Date
to May 1, 2001, and [ii] on or before July 31, 2000, $20,000.00, which
represents the remainder of the Extension Fee.
1.14 By deleting Section 5F. of the Loan Agreement and
substituting a new Section 5F. reading in its entirety as follows:
F. CHANGE IN BUSINESS, MANAGEMENT OR OWNERSHIP. Except for the
issuance of [i] the 9.6% Cumulative Convertible Series C Preferred
Stock ("SERIES C PREFERRED STOCK"), [ii] the 12% Cumulative Series D
Preferred Stock ("SERIES D PREFERRED STOCK") on terms and conditions
acceptable to the Bank, [iii] 113,173 shares of the Series D Preferred
Stock to Xxxxxxx X. Xxxxxx ("XX. XXXXXX") on terms and conditions
acceptable to the Bank, [iv] 60,745 shares of the ThermoView common
stock (the "COMMON STOCK") and 49,735 shares of the Series D Preferred
Stock to Xxxxxx X. Xxxx ("XX. XXXX") on terms and conditions acceptable
to the Bank, [v] 49,735 shares of the Series D Preferred Stock and
60,745 shares of the Common Stock to Xxxxx X. Xxxxxxxx ("XX.
XXXXXXXX"), [vi] 113,173 shares of the Series D Preferred Stock to
Xxxxxxx X. Xxxxx ("XX. XXXXX"), and [vii] 1,113,500 shares of the
Series D Preferred Stock to Xxxxxx X. Xxxxxx ("XX. XXXXXX") on terms
and conditions acceptable to the Bank, make or permit any material
change [a] in the nature of its respective business as carried on as of
the date hereof, [b] in the composition of its respective current
executive management, or [c] in its respective equity ownership.
1.15 By adding a new Section 5M. to the Loan Agreement reading in
its entirety as follows:
M. EARN-OUT PAYMENTS. Except for the $1,000,000.00 Earn-Out
payment paid to Xx. Xxxxxx on February 29, 2000, and financed (i.e. not
an Unfinanced Earn-Out) with the proceeds of the recent equity offering
by ThermoView, make or permit any payment with respect to any Earn-Out
at any time [i] the Funded Debt to EBITDA ratio of Borrowers, as such
ratio is more particularly described in Section 4I.[1] of this
Agreement, is greater than or equal to 5.00 to 1.00 as of the
Calculation Date immediately preceding the date any such Earn-Outs are
due and payable or [ii] the Fixed Charge Coverage Ratio of Borrowers,
as such ratio is more particularly described in Section 4I.[3] of this
Agreement, is less than or equal to 1.10 to 1.00 as of the Calculation
Date immediately preceding the date any such Earn-Outs are due and
payable.
7
1.16 By deleting the LOAN FEE CALCULATION SCHEDULE TO AGREEMENT
attached to the Loan Agreement.
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] May 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 request further
Advances hereunder, and shall acknowledge that the Bank shall have no
obligation to make further Advances hereunder.
2.2 By deleting the definition of "Applicable Euro-Rate Margin" in the
Note and inserting a new definition of "Applicable Euro-Rate Margin" into the
Note reading in its entirety as follows:
"Applicable Euro-Rate Margin" means four percent (4.00%) per annum.
2.3 By deleting the first grammatical paragraph of section 5 of the
Note and inserting a new first grammatical paragraph of section 5 to the Note
reading in its entirety as follows:
5. PAYMENT TERMS. Principal of this Note shall be paid in a
single payment on the Expiration Date. Until June 1, 2000, interest on
each Advance accruing interest at the Euro-Rate Loan Rate shall be
payable on the last day of the Euro-Rate Interest Period for such
Advance unless such Euro-Rate Interest Period is longer than three (3)
months, in which case interest shall be payable both on the three-month
anniversary and on the last day of the Euro-Rate Interest Period of
such Advance. On and after June 1, 2000, interest on each Advance
accruing interest at the Euro-Rate Loan Rate shall be payable on the
last day of the Euro-Rate Interest Period for such Advance unless such
Euro-Rate Interest Period is longer than one (1) month, in which case
interest shall be payable both on the one-month anniversary and on the
last day of the Euro-Rate Interest Period of such Advance. Interest on
Advances bearing interest at the Base Rate shall be payable on the last
day of each calendar month and on any and each date that the principal
of this Note is paid in full, and on the Expiration Date.
2.4 By deleting SCHEDULE A TO PROMISSORY NOTE (COMMITTED LINE OF
CREDIT NOTE).
8
ARTICLE 3
WAIVER OF COVENANT DEFAULT
Subject to delivery to the Bank of each of the "Agreement
Documents" more particularly described in Article 4 of this Agreement, the Bank
hereby grants a waiver of Borrowers' non-compliance with [i] the financial
covenants contained in the Section 4I. and Section 4J. of the Loan Agreement and
of the Events of Default that would otherwise result from a violation of those
Sections, solely for the period November 10, 1999, to March 31, 2000, and [ii]
the covenants contained in Section 4B.[1] of the Loan Agreement and of the
Events of Default that would otherwise result from a violation of that Section,
solely for the period January 1, 2000, to March 31, 2000. The Borrowers agree
that they will hereafter comply fully with these provisions, as amended, and all
other provisions of the Loan Agreement and the Loan Documents, which remain in
full force and effect and will deliver the information required by Section
4B.[3] of the Loan Agreement on or before.
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 waivers described in Article 3 of this Agreement shall all
become effective on that date (the "EFFECTIVE DATE") on which on which each of
the following documents (collectively, the "AGREEMENT DOCUMENTS") has been
executed by each of the parties to them and delivered to the Bank and when the
Bank determines to its satisfaction that each other condition set forth below
has been fulfilled:
A. This Agreement, duly executed by each of the
Borrowers and the Bank;
B. Copies of each of the fully-executed documents and
instruments modifying the financial covenants contained in the GE Loan Documents
so that such financial covenants are no more restrictive than the financial
covenants contained in the Loan Documents after giving effect to the
modifications to the Loan Documents described in this Agreement;
C. Evidence satisfactory to the Bank in its sole
discretion that the Earn-Outs, as that term is defined in the Loan
Agreement, due and payable by the Borrowers as of March 31, 2000, have been
paid and/or converted to the equity of ThermoView;
D. The guaranty of payment to the Bank of a portion of
the Obligations by each of Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx,
Xxxxxxx X. Xxxxxx, and Xxxxxxx X Xxxxxxx, III (the "GUARANTY AGREEMENT"),
which Guaranty Agreement will be in form and substance satisfactory to
9
the Bank and which will be secured by collateral in form and amount acceptable
to the Bank in its sole discretion;
E. Pledge Agreements from each of the Guarantors
("PLEDGE AGREEMENTS"), in form and substance satisfactory to the Bank,
granting the Bank a lien on and security interest in certain certificates
of deposit of each of the Guarantors on deposit with the Bank;
F. UCC-1 Financing Statements showing the Bank as Secured
Party and each of American Home, ThermoView California, Key Home Mortgage,
Xxxxxxxx Siding, Precision, Rolox, Thermal Line, ThermoView-Missouri, Xxxxxx,
TSAAI, TSAMI, TSC, and TSAW as Debtor for filing with the Office of the
Secretary of State of Kentucky; and
G. UCC-1 Financing Statements showing the Bank as
Secured Party and Thermal Line as Debtor for filing with the Minnesota
Secretary of State, the Colorado Secretary of State and the North Dakota
Secretary of State.
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 and the
Note recited as being modified by them. From and after the Effective Date each
reference to the "Loan Agreement" and the "Note" shall mean and be deemed a
reference to, as applicable, the Loan Agreement and the Note as modified by this
Agreement but, except as modified by this Agreement, the Loan Agreement and the
Note shall each remain in full force and effect in the same form as existed
immediately before 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 the 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 and the other Loan Documents shall be unimpaired by this
Agreement and that no Borrower has any defenses or set offs against the Bank,
10
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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
11
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
THERMOVIEW INDUSTRIES, INC. OF CALIFORNIA,
a California corporation, formerly
known as Five Star Builders, Inc.,
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 Wisconsin 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