EXHIBIT 10.9(f)
THIRD AMENDMENT AND RELEASE TO LOAN AND SECURITY AGREEMENT
This Third Amendment and Release to Loan and Security Agreement, made
as of December 3, 1996 (this "Amendment"), is by and between Diamond Exteriors,
Inc. (f/k/a Diamond Home Services, 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 Loan Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Diamond Home Services, Inc. (f/k/a Diamond Exteriors, Inc.)
("DHS") and the Bank were parties to the Loan and Security Agreement dated as of
February 6, 1996 (as such Agreement may be amended, restated, supplemented or
otherwise modified from time to time, the" Loan Agreement");
WHEREAS, under the Assignment, Delegation and Assumption Agreement
dated as of May 24, 1996, by and among DHS, the Company (a wholly owned
subsidiary of DHS) and the Bank, the Company assumed all of the rights, duties,
obligations and liabilities of DHS under the Loan Agreement and other Related
Documents;
WHEREAS, the Bank has extended credit under the Loan Agreement to the
Company as evidenced by (i) the Revolving Note dated as of June 14, 1996 (the
"Existing Revolving Note"), made by the Company in favor of the Bank in the
original principal amount of $5,000,000, (ii) the Finance Company Loan Note
dated as of June 14, 1996 (the "Existing Finance Company Loan Note", made by the
Company in favor of the Bank in the original principal amount of $5,000,000 and
(iii) the Investment Loan Note dated as of June 14, 1996 (the "Existing
Investment Loan Note" and, together with the Existing Revolving Note and the
Existing Finance Company Loan Note, the "Existing Notes"), made by the Company
in favor of the Bank in the original principal amount of $5,000,000;
WHEREAS, the Company has requested that the Bank, among other things,
(i) modify the terms of the credit facility evidenced by the Loan Agreement and
the other Related Documents by, among other things, terminating the Finance
Company Line of Credit and the Investment Loan Credit Commitment and (ii)
release the security interests in and Liens on the Collateral securing the
Liabilities, and the Bank has agreed to such a request, subject to the terms and
conditions of this Amendment;
WHEREAS, in furtherance of such a request, the Company and the Bank
have agreed to amend and restate the Existing Revolving Note to (i) increase the
maximum commitment to $15,000,000 and (ii) change the maturity date to November
30, 1997;
WHEREAS, in furtherance of such a request, the Bank and the Company
have agreed to amend the Loan Agreement to, among other things, (i) reflect the
amendments to the Existing Revolving Note, (ii) provide for the issuance of
commercial and standby letters of credit, (iii) change the interest rate
applicable to Revolving Loans, (iv) terminate, effective as of December 1, 1996,
the Unused Facility Fee, (v) modify certain financial and other covenants, (vi)
modify certain terms and provisions of the Loan Agreement to reflect the
termination of the Finance Company Line of Credit and the Investment Loan Credit
Commitment and (vii) modify certain terms and provisions of the Loan Agreement
to reflect the release of security interests in and Liens on the Collateral
securing the Liabilities;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
Company and the Bank agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT
On the date this Amendment becomes effective, after satisfaction by
the Company of each of the conditions set forth in Section 7 of this Amendment
(the "Closing Date"), the Loan Agreement is amended, effective as of December 3,
1996 (except as otherwise specifically stated) as follows:
1.1. The Loan Agreement is amended by deleting the following sections
from the Loan Agreement in their entirety and replacing them with [intentionally
omitted]: Section 2.3; Section 3.2; Section 3.3; Section 5.1(b); Section 5.1(c);
Section 5.3(c); Section 9.1(k); Section 9.28; Section 9.30; Section 11.2; and
Section 12.1(o).
1.2. Section 1 of the Loan Agreement is amended by deleting the
following definitions from such section in their entirety: "Finance Company Line
Limit"; "Finance Company Line of Credit"; "Finance Company Line Repayment Date";
"Finance Company Line Termination Date"; "Finance Company Loans"; "Finance
Company Loan Note"; "Investment Loan Credit Commitment"; "Investment Loan Credit
Limit"; "Investment Loan Credit Repayment Date". "Investment Loan Credit
Termination Date"; "Investment Loans"; "Investment Loan Note"; "Securitization
Documentation"; "Special Purpose Note"; "Special Purpose Note Agreement";
"Trademark Security Agreement"; "Unused Facility Feel"; "Working Capital Note";
and "Working Capital Note Agreement."
1.3. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Cash Flow Coverage Ratio" from such section in its entirety
and replacing it as follows:
"Cash Flow Coverage Ratio" means the ratio of (i) Earnings Before
Interest and Taxes, plus (A) any unused reserves established for
warranty claims, plus (B) all noncash expenses incurred by a Person
during such period, minus (C) capital expenditures that are not funded
by Capital Leases incurred during such period or by Loan or loan
proceeds to (ii) total interest paid on Indebtedness in such period,
plus (A) taxes actually paid by such Person (or, in the case of the
Company, paid to Globe by the Company under the Tax Sharing Agreement
effective as of September 15, 1994, between the Company and Globe) for
such period, plus (B) total principal paid on Indebtedness (including,
in the case of the Company, all principal payments to Diamond Home
Services, Inc. with respect to the subordinated debt) in such period
(but, in the case of the Company, not including (x) any payments of
principal on the Revolving Loan unless made to reduce the Revolving
Credit Limit under Section 5.1(a) or (y) any principal prepayments
made in connection with the initial public offering of the common
stock of Diamond Home Services, Inc.), plus (C) all cash dividends on
capital stock paid by such Person during such period (but, in the case
of the Company, not including the dividend of approximately $8,600,000
occurring in connection with the initial public offering of the common
stock of Diamond Home Services, Inc.).
1.4. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Credit Commitment" from such section in its entirety and
replacing it as follows:
"Credit Commitment" means the Revolving Loan Commitment.
1.5. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Credit Facility" from such section in its entirety and
replacing it as follows:
"Credit Facility" means the Revolving Credit Limit.
1.6. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Credit Termination Date" from such section in its entirety
and replacing it as follows:
"Credit Termination Date" means the Revolving Credit Termination Date.
1.7. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Current Ratio" from such section in its entirety and
replacing it as follows:
"Current Ratio" means the ratio of a Person's (a) current assets
(disregarding any of such Person's non-liquid assets (to the extent such
assets are current assets), including, without limitation, covenants not to
compete, prepaid expenses, deferred charges, goodwill, franchises,
licenses, patents, trademarks, trade names, copyrights, service marks and
brand names and, in the case of the Company, including any advances to the
Finance Company permitted under this Agreement and, in the case of the
Finance Company, all accounts receivable, notwithstanding the fact that
such accounts receivable may be classified as long-term assets in
accordance with GAAP) to (b) current liabilities.
1.8. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Earnings Before Interest and Taxes" from such section in its
entirety and replacing it as follows:
"Earnings Before Interest and Taxes" means, for each preceding 12
month period, a Person's earnings before nonrecurring items, amortization,
interest expense, depreciation and taxes as set forth in such Person's
statements of income and retained earnings for such period.
1.9. Section 1 of the Loan Agreement is further amended by adding the
following definition alphabetically to such section as follows:
"L/C Cash Collateral Account" means a deposit account opened by the
Bank in the Company's name in which the Company will deposit amounts to
cash collateralize Letters of Credit under this Agreement.
1.10. Section 1 of the Loan Agreement is further amended by adding
the following definition alphabetically to such section as follows:
"Letters of Credit" means any commercial or standby letters of credit
that are now or at any time hereafter issued by the Bank at the request and
for the account of the Company and that have not expired or been revoked or
terminated.
1.11. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Liabilities" from such section in its entirety and replacing
it as follows:
"Liabilities" means any and all of the Company's obligations to the
Bank, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with this Agreement, the Related
Documents or the Company's reimbursement obligations, whether contingent or
liquidated, with respect to any Letter of Credit.
1.12. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Loans" from such section in its entirety and replacing it as
follows:
"Loans" means the Revolving Loans.
1.13. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Notes" from such section in its entirety and replacing it as
follows:
"Notes" means the Revolving Note.
1.14. Section 1 of the Loan Agreement is further amended by adding
the definition of "Related Companies" to such section as follows:
"Related Companies" means, collectively, Diamond Home Services, Inc.,
a Delaware corporation, and each of its wholly owned subsidiaries: the
Company; the Finance Company; and Solitaire Heating and Cooling, Inc., a
Delaware corporation.
1.15. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Related Documents" from such section in its entirety and
replacing it as follows:
"Related Documents" means, collectively, the Notes, the Subordination
Agreement dated as of June 14, 1996, among Diamond Home Services, Inc., the
Company and the Bank and all other documents, instruments, agreements and
certifi-xxxxx executed by the Company pursuant to or in connection with
this Agreement.
1.16. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Revolving Credit Limit" from such section in its entirety and
replacing it as follows:
"Revolving Credit Limit" means an amount equal to $15,000,000 LESS any
permanent reductions pursuant to Section 5.1(a).
1.17. Section 1 of the Loan Agreement is further amended by deleting
the definition of "Tangible Net Worth" in its entirety and replacing it as
follows:
"Tangible Net Worth" means, with respect to any Person at any time,
such Person's net worth (determined in accordance with GAAP, which includes
account receivables) after subtracting therefrom the aggregate amount of
any intangible assets of such Person as determined in accordance with GAAP.
In the case of the Company, any subordinated debt from Diamond Home
Services, Inc. will also be included in the calculation of "Tangible Net
Worth."
1.18. Section 2.1 of the Loan Agreement is amended by deleting the
first sentence of such section in its entirety and replacing it as follows:
On the terms and subject to the conditions set forth in this Agreement, the
Bank agrees to make revolving loans (collectively, "Revolving Loans") to
the Company from time to time before the Revolving Credit Termination Date
in such aggregate amounts as the Company may from time to time request but
not exceeding at any one time outstanding the Revolving Credit Limit minus
the aggregate stated amount of all outstanding Letters of Credit.
1.19. Section 2.2 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
2.2 Letters of Credit.
(a) On the terms and subject to the conditions set forth in this
Agreement, the Bank shall issue for the account of the Company Letters of
Credit during the period commencing on December 3, 1996, and continuing
through the date 30 days prior to the Maturity Date (or such other date as
the Bank gives its prior written consent) at such stated amounts as the
Company may from time to time request but not exceeding at any one time
outstanding in the aggregate an amount equal to the lesser of (i)
$1,000,000 and (ii) the difference between the Revolving Credit Limit minus
the outstanding aggregate principal amount of Loans. The Letters of Credit
shall be in form and substance reasonably acceptable to the Bank. The
expiration date on any Letter of Credit shall not be later than 30 Business
Days prior to the Maturity Date (or such other date as the Bank gives its
prior written consent). The Company shall reimburse the Bank, immediately
upon demand, for any payments made by the Bank to any Person with respect
to any Letter of Credit and, until the Bank shall be so reimbursed by the
Company, such payments by the Bank shall be deemed to be Revolving Loans.
without limiting the generality of the foregoing, the Bank at its sole
discretion, may deduct any such amounts due and owing from any account of
the Company with the Bank.
(b) The Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment by the
beneficiary under any Letter of Credit issued by the Bank to ascertain that
the same appear on their face to be in conformity with the terms and
conditions of such Letter of Credit. If, after examination, the Bank shall
have determined that a demand for payment under such Letter of Credit does
not conform to the terms and conditions of such Letter of Credit, then the
Bank shall, as soon as reasonably practicable, give notice to the
beneficiary and the Company that negotiation was not in accordance with the
terms and conditions of such Letter of Credit, stating the reasons therefor
and that the relevant document is being held at the disposal of such
beneficiary or is being returned to such beneficiary, as the Bank may
elect. The beneficiary may attempt to correct any such nonconforming
demand for payment under such Letter of Credit if, and to the extent that,
such beneficiary is entitled (without regard to the provisions of this
sentence) and able to do so. If the Bank determines that a demand for
payment under such Letter of Credit conforms to the terms and conditions of
such Letter of Credit, then the Bank shall make payment to the beneficiary
in accordance with the terms of such Letter of Credit. The Bank shall have
the right to require the beneficiary to surrender such Letter of Credit to
the Bank on the stated expiration date of such Letter of Credit.
(c) As between the Company and the Bank, the Company assumes all
risks of the acts and omissions of, or misuse of Letters of Credit by, the
respective beneficiaries of the Letters of Credit. In furtherance and not
in limitation of the foregoing, subject to the provisions of the Letter of
Credit applications, the Bank shall not be responsible: (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of the Letters of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telecopy or otherwise, whether or
not they be in cipher; (v) for errors in interpretation of technical terms;
(vi) for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of
Credit; or (viii) for any consequences arising from causes beyond the
control of the Bank, including, without limitation, any governmental acts.
In furtherance of the foregoing, and without limiting the generality
thereof, the Company agrees to indemnify and hold harmless the Bank from
and against each and every claim which might arise against the Bank by
reason of any transfer, sale, delivery, surrender or endorsement of any
xxxx of lading, warehouse receipt or other document held by the Bank or for
its account, other than claims arising from the Bank's gross negligence or
willful misconduct. None of the above shall affect, impair, or prevent the
vesting of any of the Bank's rights or powers hereunder or the Company's
obligation to make reimbursement.
(d) The Company shall promptly examine (i) the copy of any Letter of
Credit, including any amendments thereto, sent to it by or on behalf of the
Bank and (ii) all documents and instruments delivered to it by or on behalf
of the Bank in connection with such Letters of Credit. In the event of any
claim of noncompliance with the Company's instructions or other
irregularity, the Company shall promptly, but no later than two Business
Days notify the Bank thereof in writing. The Company shall be conclusively
deemed to have waived any such claim against the Bank unless such notice is
given as aforesaid.
(e) on the Credit Termination Date, the Company will pay to the Bank
in same day funds at the Bank's office, for deposit in the L/C Cash
Collateral Account, an amount equal to 105% of the aggregate undrawn amount
of all outstanding Letters of Credit. The Bank may at any time apply any
or all of such cash and cash collateral to the payment of any or all of the
Liabilities, including, without limitation, to the payment of any or all of
the Company's reimbursement obligations with respect to any Letter of
Credit. Interest payable on the L/C Cash Collateral Account will be
collected by the Bank and will be paid to the Company as it is received by
the Bank less any fees or other amounts owing by the Company to the Bank
with respect to any Letter of Credit and less any amounts necessary to pay
any of the Liabilities which may be due and payable at such time. The Bank
has no obligation to pay interest on any credit balances in the L/C Cash
Collateral Account. If at any time the Bank determines that any funds held
in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Bank or that the total amount of such funds is less
than 105% of the aggregate stated amount of all outstanding Letters of
Credit, the Company will pay to the Bank, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to
(i) 105% of the aggregate stated amount of all outstanding Letters of
Credit minus (ii) the total amount of funds, if any, then held in the L/C
Cash Collateral Account that the Bank determines to be free and clear of
any such right and claim.
1.20. Section 2.4 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
2.4 Loan Borrowing Procedures. The Bank will have received, (1) by
1:00 p.m. (Chicago time) on the Business Day on which an advance is to be
made for Base Rate Loans, (2) by 11:00 a.m. (Chicago time) on the third
Business Day prior to the Business Day on which the advance is to be made
for LIBOR Loans or (3) by 11:00 a.m (Chicago time) on the second Business
Day prior to the date a Letter of Credit is to be issued under this
Agreement (i) irrevocable telephonic notice of each proposed Loan borrowing
or Letter of Credit issuance, specifying the amount of such advance or
issuance and (ii) in the case of a request for a LIBOR Loan, the date of
such LIBOR Loan and the duration of the Interest Period for such LIBOR
Loan; provided, however, that only four LIBOR Loans may be outstanding at
any time. Each request for a Loan or Letter of Credit automatically
constitutes a representation and warranty by the Company that, as of the
date of such requested Loan or Letter of Credit, all conditions precedent
to the making of such Loan or issuance of such Letter of Credit set forth
in Section 11 are satisfied. Each borrowing of a Loan or issuance of a
Letter of Credit must be on a Business Day.
1.21. Section 4.1 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
4.1 Interest Rates on Loans. The Company shall pay to the Bank
interest on the outstanding principal balance of each Revolving Loan at a
rate per annum equal to (i) during such periods as such Revolving Loan is a
Base Rate Loan, the Base Rate and (ii) during such periods as such
Revolving Loan is a LIBOR Loan, the sum of LIBOR applicable to such periods
plus 1.35%; provided, however, that, if any principal of any Revolving Loan
is not paid when due (whether by acceleration or otherwise), the unpaid
principal amount of such Revolving Loan shall bear interest after such due
date until paid at a rate per annum equal to the applicable interest rate
in effect from time to time for such Revolving Loan plus 3.50%
1.22. Section 4.2 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
4.2 Interest Payment Dates. Accrued interest on each Base Rate Loan
is payable on the last Business Day of each calendar month and at maturity,
whether by acceleration or otherwise, commencing on the last day of the
month in which such Base Rate Loan is made. Accrued interest on each LIBOR
Loan is payable at the end of the applicable Interest Period and, if the
applicable Interest Period is greater than three months, at the end of each
three-month period following commencement of such Interest Period and at
maturity, whether by acceleration or otherwise. After maturity, whether by
acceleration or otherwise, on the stated maturity date or otherwise,
accrued interest on all Loans shall be payable on demand.
1.23. Section 4.4 of the Loan Agreement is amended, effective as of
December 1, 1996, by deleting such section in its entirety and replacing it
as follows:
4.4 Letter of Credit Fees. For each Letter of Credit, the Company
will pay to the Bank a fee (the "L/C Fee") equal to (i) 1.50% per annum of
the undrawn face amount of each standby Letter of Credit and (ii) 0.25% per
issuance of the face amount of each commercial Letter of Credit. The L/C
Fee for standby Letters of Credit is payable quarterly in advance, on the
first day of each calendar quarter during which each such standby Letter of
Credit remains outstanding and will be computed on the basis of a 360-day
year for the actual number of days elapsed. The L/C Fee for commercial
Letters of Credit is payable upon the issuance of each such commercial
Letter of Credit. The L/C Fee is the Bank's standard fee for letters of
credit and may change as the Bank announces new letter of credit fees in
Chicago, Illinois. Any change in such fees is effective as of the
effective date stated in the announcement by the Bank of such change and
the Bank has no obligation to notify the Borrower of such change. In
addition, the Borrower will pay to the Bank all customary charges and out-
of-pocket and additional expenses in connection with the issuance and
administration of any Letters of Credit issued under this Agreement.
1.24. Section 5.3 of the Loan Agreement is amended by deleting
subsection (a) from such section in its entirety and replacing it as follows:
(a) The Company agrees that, if at any time the aggregate unpaid
principal amount of the Revolving Loans plus the aggregate stated amount of
all outstanding Letters of Credit exceeds the Revolving Credit Limit, the
Company will forthwith make a mandatory prepayment of principal of the
Revolving Loans in an amount equal to such excess. Each such mandatory
prepayment shall be without premium or penalty.
1.25. Section 7.10 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
7.10 Termination of Security Interest and Liens. The Bank's security
interest and other Liens in, on and to the Collateral shall terminate when
all the Liabilities have been finally and fully paid and performed and all
Letters of Credit have expired or been revoked or terminated, at which time
the Bank shall reassign and redeliver (or cause to be reassigned and
redelivered) to the Company, or to such Person as the Company shall
designate, against receipt, such of the Collateral (if any) assigned by the
Company to the Bank as shall not have been sold or otherwise applied by the
Bank pursuant to the terms hereof and shall still be held by it hereunder,
together with appropriate instruments of reassignment and release. Any
such reassignment shall be without recourse upon or representation or
warranty by the Bank and shall be at the Company's cost and expense.
1.26. Section 9.1 of the Loan Agreement is amended by deleting
sections (b) and (c) from such section in their entirety and replacing them as
follows:
(b) Interim Reports. On or before the 45th day after the end of each
of the Company's fiscal quarters, a copy of the quarterly report on Form
10-Q filed by Diamond Home Services, Inc. with the Securities Exchange
Commission for such fiscal quarter and unaudited financial statements of
the Related Companies prepared in a manner consistent with the financial
statements referred to in Section 9.1(a), signed by an Authorized Officer
or a counterpart at another Related Company and consisting of at least
consolidating balance sheets as at the close of such fiscal quarter and
statements of earnings for such fiscal quarter and for the period from the
beginning of such fiscal year to the close of such fiscal quarter.
(c) Certificates. At the Bank's option, contemporaneously with the
furnishing of each annual financial statement and each quarterly statement
provided for in this Section 9.1, a duly completed certificate in the form
of ' Exhibit P with appropriate insertions (each such certificate herein
called a "Compliance Certificate") dated the date of such annual financial
statement or such quarterly statement and signed by an Authorized Officer,
which Compliance Certificate shall state that no Event of Default or
Unmatured Event of Default has occurred and is continuing, or, if there is
any such event, shall describe it and the steps, if any, being taken to
cure it. In addition, except in the case of a Compliance Certificate dated
the date of such annual financial statement, the Compliance Certificate
shall contain a computation of, and show compliance with, each of the
financial ratios and restrictions contained in this Section 9.
1.27. Section 9.6 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
9.6 Limits on Credit Commitments. Not permit the aggregate
outstanding principal amount of the Revolving Loans plus the aggregate
amount of all outstanding Letters of Credit to exceed the then-current
Revolving Credit Limit.
1.28. Section 9.7 of the Loan Agreement is amended by deleting
such section in its entirety and replacing it as follows:
9.7 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
(as determined in accordance with GAAP), calculated at the end of each of
the Company's fiscal quarters through the Credit Termination Date.
1.29. Section 9.9 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it with "[INTENTIONALLY OMITTED]."
1.30. Section 9.10 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
9.10 Current Ratio. Not permit the Related Companies' Current Ratio
(as measured on a consolidated basis) to be less than 1.5:1, calculated the
at the end of each of the Company's fiscal quarters through the Credit
Termination Date.
1.31. Section 9.11 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
9.11 Cash Flow Coverage. Not permit the Related Companies' Cash Flow
Coverage Ratio (as measured on a consolidated basis) to be less than 1.3:1,
calculated as of the end of each of the Company's fiscal quarters through
the Credit Termination Date and measured over the immediately preceding
twelve-month period ending on such calculation date.
1.32. Section 9.14 of the Loan Agreement is amended by deleting
clauses (j), (k) and (1) from such section in its entirety and replacing them as
follows:
(j) [INTENTIONALLY OMITTED]; (k) [INTENTIONALLY OMITTED]; or (1)
[INTENTIONALLY OMITTED];
1.33. Section 9.19 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
9.19 Use of Proceeds.
(a) Not use or permit the use of any proceeds of any Revolving
Loan other than (i) to support the Company's working capital and (ii)
for advances, not exceeding $5,000,000 in the aggregate, to the
Finance Company to be used by the Finance Company solely to support
the Finance Company's working capital.
(b) Not use or permit the use of any proceeds of any Loan other than
solely for the purposes specified in 815 ILCS 205/4; and not use or permit
the direct or indirect use of any proceeds of or with respect to the Loans
for the purpose, whether immediate, incidental or ultimate, of "purchasing
or carrying" (within the meaning of Regulation U) Margin Stock.
1.34. Section 9.20 of the Loan Agreement is amended by deleting such
section in its entirety and replacing it as follows:
9.20 Transactions with Affiliates. Not enter into any transaction
with any Affiliate except (a) transactions in the ordinary course of
business and on terms and conditions at least as favorable to the Company
as the terms and conditions that would apply in a similar transaction with
a Person who is not an Affiliate (including, without limitation,
administrative contracts with HI, Inc. to provide telephone services), (b)
an agreement with The Handy Craftsman, Inc. pursuant to which the Company
leases space and prepays payroll in an outstanding amount at any time not
exceeding $100,000 and (c) the subordinated promissory note made by the
Company to Diamond Home Services, Inc. in connection with the initial
public offering of the common stock of Diamond Home Services, Inc.
1.35. Section 11 of the Loan Agreement is amended by deleting the
introduction to such section in its entirety and replacing it as follows:
The Bank's obligation to make any Loan or issue any Letter of Credit
is subject to the following conditions precedent:
1.36. Section 11.1 of the Loan Agreement is amended by deleting such
section (up to subsection (a)) in its entirety and replacing it as follows:
11.1 Initial Loans; Initial Letters of Credit. The Bank's obligation
to make any initial Revolving Loan or issue any initial Letter of Credit
is, in addition to the conditions precedent specified in Section 11.3,
subject to the satisfaction of each of the following conditions precedent:
1.37. Section 11.3 of the Loan Agreement is amended by deleting such
section (up to subsection (a)) in its entirety and replacing it as follows:
11.3 All Loans; All Letters of Credit. The Bank's obligation to make
any initial Loans or issue any initial Letter of Credit, and each
subsequent Loan and Letter of Credit, is subject to the following
conditions precedent:
1.38. Section 11.3(d) of the Loan Agreement is amended by deleting
such section in its entirety and replacing it as follows:
(d) No Letter of Credit Prohibition. As to requested Letters of
Credit, no order, judgment or decree of any Governmental Authority will, or
will purport to, enjoin or restrain the Bank from issuing the requested
Letter of Credit nor will any law or governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Bank prohibit or request
that the Bank refrain from the issuance of Letters of Credit in particular
or impose upon the Bank with respect to any Letter of Credit any
restrictive or reserve requirement (for which the Bank is not otherwise
compensated) or any uncumbered loss, cost or expense which was not in
effect as of December 3, 1996.
1.39. Section 12.1 of the Loan Agreement is amended by deleting
subsection (p) from such section in its entirety and replacing it as follows:
(p) Finance Company Advances. The Finance Company uses the proceeds
of any advance from the Company other than for general corporate purposes
and to support the Finance Company's working capital.
1.40. Section 12.2.1 of the Loan Agreement is amended by deleting
such section in its entirety and replacing it as follows:
12.2.1 Acceleration.
(a) If any Event of Default described in Section 12.1(d) shall occur,
the Credit Commitment (if it has not theretofore terminated) shall
immediately terminate and all Loans, Notes and all other Liabilities,
including, without limitation, all of the Company's contingent liabilities
with respect to any Letters of Credit, shall become immediately due and
payable, all without presentment, demand or notice of any kind.
(b) If any other Event of Default shall occur, the Bank may declare
the Credit Commitment (if it has not theretofore terminated) to be
terminated and all Loans, Notes and all other Liabilities, including,
without limitation, all of the Company's contingent liabilities with
respect to any Letters of Credit, to be due and payable, whereupon the
Credit Commitment shall immediately terminate and all Loans, Notes and all
other Liabilities, including, without limitation, all of the Company's
contingent liabilities with respect to any Letters of Credit, shall become
immediately due and payable, all without presentment, demand or notice of
any kind.
(c) If an Event of Default shall occur, the Bank may, regardless of
whether the Bank is taking any of the actions described in this Section
12.2.1 or otherwise, make demand upon the Company to, and immediately upon
such demand the Company shall, pay to the Bank in immediately available
funds at the Bank's office, for deposit in the L/C Cash Collateral Account,
an amount equal to 105% of the aggregate undrawn amount of all outstanding
Letters of Credit. All such amounts will be treated as described in
Section 2.2(e).
1.41. Section 13.2 of the Loan Agreement is amended by deleting
subsection (a) from such section in its entirety and replacing it as follows:
(a) if to the Company, addressed to the Company at its address shown
below its signature hereto, with a copy to Xxx Xxxxxxx Xxxxxxxxx, Esq. at
the same address; or
SECTION 2. AMENDMENTS TO EXHIBITS AND RELATED
DOCUMENTS
2.1. Amendment to Exhibits to Loan Agreement. On the Closing Date,
(i) Exhibit A to the Loan Agreement will be replaced with Exhibit A to this
Amendment and (ii) Exhibits B, C, J, K, L, M and N to the Loan Agreement will be
deleted in their entirety.
2.2. Amendment to Related Documents. On the Closing Date, the
Existing Revolving Note will be amended, restated and replaced in its entirety
by the Amended and Restated Revolving Note of even date with this Amendment (the
"Amended Note"), made by the Company in favor of the Bank in the original
principal amount of the Revolving Credit Limit.
2.3. Return of the Existing Notes. On the Closing Date and after
receipt of the Amended Note, the Bank will (i) xxxx the Existing Revolving Note
"superseded" and return it to the Company and (ii) xxxx both the Existing
Finance Company Loan Note and the Existing Investment Loan Note "cancelled" and
return them to the Company.
SECTION 3. EXISTING LOANS
The Company acknowledges that it has no indebtedness to the Bank on
the Finance Company Loans and the Investment Loans, including any accrued and
unpaid interest and fees on the principal amount of such loans. On the Closing
Date, the Finance Company Loans, evidenced by the Existing Finance Company Loan
Note, and the Investment Loans, evidenced by the Existing Investment Loan Note,
will automatically, without further action on the part of the Company or the
Bank, become evidenced by the Amended Note and, to that extent, the Amended Note
is issued in renewal of, and evidences the same indebtedness formerly evidenced
by, the Existing Finance Company Loan Note and the Existing Investment Loan Note
as well as evidencing the Revolving Loans made pursuant to the Existing
Revolving Note and the additional Revolving Loans made under the Loan Agreement,
as amended by this Amendment. Except as set forth in the last sentence of this
Section 3, after the Closing Date the Finance Company Loans and the Investment
Loans will be treated as though they constituted Revolving Loans under the Loan
Agreement, as amended by this Amendment, in an amount equal to the aggregate
unpaid principal balance of such Finance Company Loans or the Investment Loans
on the Closing Date. If any accrued and unpaid interest or fees are outstanding
in respect of any of the Finance Company Loans or the Investment Loans as of the
date that such Finance Company Loans and the Investment Loans become evidence by
the Amended Note, such accrued interest or fees will be evidenced by the Amended
Note and will be due and payable on the first interest payment date under the
Amended Note. On the Closing Date, both the Finance Company Line of Credit and
the Investment Loan Credit Commitment under the Loan Agreement will terminate.
SECTION 4. RELEASE
4.1. Release of Security Interests and Liens. In addition to the
Loan Agreement, the following Related Documents were executed by the Company to
grant the Bank a security interest in and Lien upon the Collateral, each dated
as of February 6, 1996: (i) a Trademark Security Agreement made by the Company
in favor of the Bank; (ii) a Blocked Deposit Account Agreement among the
Company, the Bank and Amcore Bank N.A. Northwest; and (iii) a Declaration and
Agreement among the Company, the Bank and the owner of the Company's
headquarters. On the Closing Date, the Bank acknowledges and agrees that all of
the security interests and Liens granted to the Bank by the Company under the
Loan Agreement and other Related Documents (including, without limitation, the
other Related Documents listed above) will terminate and be released.
4.2. Termination of Certain Provisions of the Loan Agreement. In
order to effect the releases set forth in Section 4.1 of this Amendment,
commencing on the Closing Date and continuing until the Company and the Bank
expressly agree otherwise, the following provisions of the Loan Agreement will
be of no further force and effect: Section 5.3(b); Section 7; Section 8.6;
Section 8.20; Section 8.21; the second sentence of Section 9.4(b); Section
9.19(b); Section 10; Section 12.1(m); Section 12.2.2; Section 12.2.4; Section
12.2.5; Section 13.1(c)(iv); Section 13.1(d); Section 13.13; Section 13.17; and
Section 13.18.
4.3. Termination Agreements; Further Assurances. On or after the
Closing Date, the Bank will execute and deliver (i) UCC-3 termination
statements, (ii) a Release of Security Interest in Trademarks, (iii) a letter to
Amcore Bank N.A. Northwest informing such bank of the termination of the Blocked
Deposit Account Agreement and (iv) a letter to the owner of the Company's
headquarters informing such owner of the termination of the Declaration and
Agreement, each to evidence the termination and release of the security
interests and Liens granted under the terms and conditions of Section 4.1 of
this Amendment. After the Closing Date, the Bank will deliver such further
termination statements and releases reasonably requested by Company to
effectuate the release of all of the Bank's security interests and liens in the
Collateral.
SECTION 5. CONSENT
5.1. Finance Company Documents. On the Closing Date, the Bank
consents to (i) the cancellation of the Special Purpose Note Agreement, the
Special Purpose Note, the Working Capital Note Agreement, the Working Capital
Note and the Security Agreement dated as of February 6, 1996, made by the
Finance Company in favor of the Company and (ii) the termination of all security
interests and Liens granted by the Finance Company to the Company.
5.2. No Waiver. Nothing in this Amendment in any way is deemed to be
a consent or waiver of any Event of Default or an agreement to forbear from
exercising any remedies with respect to any Event of Default.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Amendment and to extend further
credit under the Loan Agreement, as amended by this Amendment, the Company
represents and warrants to the Bank that:
6.1. Due Authorization; No Conflict; No Lien; Enforceable Obligation. The
execution, delivery and performance by the Company of this Amendment and the
Amended Note are within its corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary governmental, regulatory
or other approvals (if any is required), do not and will not contravene or
conflict with any provision of (i) any law, (ii) any judgment, decree or order
or (iii) its articles or certificate of incorporation or by-laws and do not and
will not contravene or conflict with, or cause any lien to arise under, any
provision of any agreement or instrument binding upon the Company or upon any of
its property. This Amendment, the Loan Agreement, as amended by this Amendment,
and the Amended Note are the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their respective terms.
6.2. No Default; Representations and Warranties. As of the Closing
Date, (i) no Event of Default or Unmatured Event of Default under the Loan
Agreement, as amended by this Amendment, has occurred and is continuing or will
result from the amendments set forth in this Amendment and (ii) the
representations and warranties of the Company contained in the Loan Agreement,
as amended by this Amendment, are true and correct.
SECTION 7. CONDITIONS TO EFFECTIVENESS
The obligation of the Bank to make the amendments, releases and
consents contemplated by this Amendment, and the effectiveness thereof, are
subject to the following:
7.1. Representations and Warranties. The representations and
warranties of the Company contained in this Amendment are true and correct as of
the Closing Date.
7.2. Documents. The Bank has 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) Third Amendment and Release. This Amendment.
(B) Amended Note. The Amended Note substantially in the form of
Exhibit A to this Amendment.
(C) Guaranty. A guaranty made by DHS in favor of the Bank
substantially in the form of Exhibit B to this Amendment (the "Guaranty").
(D) Legal Opinion. An opinion of the Company's legal counsel to the
effect that (i) the Company has the power and authority to execute, deliver
and perform this Amendment and the Amended Note and that this Amendment and
the Amended Note have been duly authorized and (ii) this Amendment and the
Amended Note are the legal, valid and binding obligations of the Company.
(E) Company's Secretary's Certificate. A certificate of the
Secretary of the Company as to (i) no amendments or modifications to the
Company's articles or certificate of incorporation or by-laws since May 24,
1996, and (ii) resolutions of the board of directors of the Company
authorizing or ratifying the execution, delivery and performance of this
Amendment and the Amended Note.
(F) DHS' Secretary's Certificate. A certificate of the Secretary of
DHS as to (i) no amendments or modifications to DHS' articles or
certificate of incorporation or by-laws since May 24, 1996, and (ii)
resolutions of the board of directors of DHS authorizing or ratifying the
execution, delivery and performance of the Guaranty.
(G) Consents. Certified copies of all documents evidencing any
necessary corporate action, consents and governmental approvals, if any,
with respect to this Amendment, the Amended Notes, any other document
provided for under this Amendment or the Guaranty.
(H) Good Standing Certificates. Good standing certificates for the
Company from the States of Delaware and Illinois and for DHS from the State
of Delaware.
(I) Reaffirmation by DHS. A reaffirmation by DHS as to the
Subordinated Debt under, and as defined in, the Subordination Agreement
dated as of June 14, 1996, among DHS, the Company and the Bank.
(J) Other. Such other documents as the Bank may reasonably request.
SECTION 8. MISCELLANEOUS
8.1. 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.
8.2. Governing Law; Severability. THIS AMENDMENT IS A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. Wherever
possible, each provision of this Amendment must be interpreted in such a 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
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
8.3. 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. The Company and the Bank agree to
accept facsimile counterparts.
8.4. Successors and Assigns. This Amendment is binding upon the
Company, the Bank and their respective successors and assigns, and inures to the
sole benefit of the Company, the Bank and their successors and assigns. The
Company cannot assign its rights or delegate its duties under this Amendment.
8.5. References. From and after the Closing Date, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import, and each reference in the Loan Agreement or any other
Related Document to the Loan Agreement, the Existing Revolving Note or to any
term, condition or provision contained "thereunder," "thereof," "therein," or
words of like import, mean and are a reference to the Loan Agreement or the
Existing Revolving Note (or such term, condition or provision, as applicable) as
amended, supplemented, restated or otherwise modified by this Amendment or the
Amended Note, as applicable.
8.6. Continued Effectiveness. Except as set forth in Section 3 of
this Amendment, notwithstanding anything contained in this Amendment to the
contrary, the terms of this Amendment and the Amended Note are not intended to
and do not serve to effect a novation as to the Loan Agreement or the Existing
Notes, as applicable. Except as set forth in Section 3 of this Amendment, the
Company and the Bank expressly do not intend to extinguish the Loan Agreement or
the Existing Notes. Instead, it is the express intention of the Company and the
Bank to reaffirm the indebtedness created under the Loan Agreement, which is
evidenced by the Existing Notes. The Loan Agreement, as amended by this
Amendment, and the Existing Revolving Note, as amended and restated by the
Amended Note, remain in full force and effect and the terms and provisions of
the Loan Agreement and the Existing Revolving Note are ratified and confirmed.
8.7. Costs, Expenses and Taxes. The Company affirms and acknowledges
that Section 13.5 of the Loan Agreement applies to this Amendment and the
transactions and agreements and documents contemplated under this Amendment.
Delivered at Chicago, Illinois, as of the day and year first above
written.
DIAMOND EXTERIORS, INC.
By:
Name:
Title:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:
Xxxxxx X. Xxxxxxxx
Assistant Vice President
Delivered at Chicago, Illinois, as of the day and year first above
written.
DIAMOND EXTERIORS, INC.
By:
Name:
Title:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:
Xxxxxx X. Xxxxxxxx
Assistant Vice President
