FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the " Agreement") is made
and entered into as of July 30, 1999, by and among [i] THERMOVIEW INDUSTRIES,
INC., a Delaware corporation ("ThermoView"), [ii] AMERICAN HOME DEVELOPERS
CO., INC., a California corporation ("American Home"), [iii] FIVE STAR
BUILDERS, INC., a California corporation, successor in interest to American
Home Remodeling ("Five Star"), [iv] KEY HOME CREDIT, INC., a Delaware
corporation ("Key Home"), [v] KEY HOME MORTGAGE, INC., a Delaware corporation
("Key Home Mortgage"), [vi] XXXXXXXX SIDING AND WINDOW, INC., a North Dakota
business corporation ("Xxxxxxxx Siding"), [vii] PRIMAX WINDOW CO., a
Kentucky corporation ("Primax"), [viii]PRECISION WINDOW MFG., INC., a
Missouri corporation ("Precision"), [ix] ROLOX, INC., a Kansas corporation
("Rolox"), [x] TD WINDOWS, INC., a Kentucky corporation ("TD Windows"), [xi]
THERMAL LINE WINDOWS, INC., a North Dakota corporation, formerly known as Ice
Inc., successor in interest to Thermal Line Windows, LLP, and Blizzard
Enterprises, Inc. ("Thermal Line"), [xii] THERMOVIEW OF MISSOURI, INC., a
Missouri corporation ("ThermoView-Missouri"), [xiii] THERMO-TILT WINDOW
COMPANY, a Delaware corporation ("Thermo-Tilt"), [xiv] XXXXXX CONSTRUCTION,
INC., a Missouri corporation ("Xxxxxx"), [xv] THERMO-SHIELD OF AMERICA
(ARIZONA), INC., an Arizona corporation ("TSAAI"), [xvi] THERMO-SHIELD OF
AMERICA (MICHIGAN), INC., a Michigan corporation ("TSAMI"), [xvii]
THERMO-SHIELD COMPANY, LLC, an Illinois limited liability company ("TSC"),
[xviii] THERMO-SHIELD OF AMERICA (WISCONSIN), LLC, a Wisconsin limited
liability company ("TSAW"), [xix] THERMOVIEW ADVERTISING GROUP, INC., a
Delaware corporation ("TAG") (ThermoView, American Home, Five Star, Key Home,
Key Home Mortgage, Xxxxxxxx Siding, Primax, Precision, Rolox, TD Windows,
Thermal Line, ThermoView-Missouri, Thermo-Tilt, Xxxxxx, TSAAI, TSAMI, TSC,
TSAW, and TAG individually are referred to in this Agreement as a "Borrower"
and collectively are referred to in this Agreement as the "Borrowers"), and
[xx] PNC BANK, NATIONAL ASSOCIATION, a national banking association (the
"Bank").
RECITALS:
A. The Borrowers and the Bank are parties to a certain Loan
Agreement, dated as of August 31, 1998, as amended pursuant to that certain
Joinder to Loan Documents and Amendment to Loan Documents (Xxxxxx
Construction, Inc.) dated as of January 1, 1999, by and between certain of
the Borrowers and the Bank, as further amended by that certain Joinder to
Loan Documents and Amendment to Loan Documents (Precision Window Mfg., Inc.)
dated as of January 5, 1999, by and between certain of the Borrowers and the
Bank, and as further amended by that certain Joinder to Loan Documents and
Amendment to Loan Documents (Thermo-Shield) dated as of July 8, 1999, by and
between the Borrowers and the Bank (as so amended, the "Loan Agreement")
(certain capitalized terms used in this Joinder Agreement have the meanings
set forth for them in the Loan Agreement unless expressly otherwise defined
herein), pursuant to which,
among other things, the Bank established a $15,000,000.00 Committed Line of
Credit in favor of the Borrowers.
B. The Borrowers have requested that the Bank amend the Loan
Agreement as more particularly described in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in this Agreement and for other good and
valuable consideration, the mutuality, receipt and sufficiency of which are
hereby acknowledged, the Borrower and the Bank hereby agree as follows:
ARTICLE 1
AMENDMENT TO LOAN AGREEMENT
The Loan Agreement is hereby amended as follows:
1.1 By deleting Section 4M. of the Loan Agreement and substituting a new
Section 4M. reading in its entirety as follows:
M. KEY HOME CREDIT FUNDING. Provided the Bank has consented in writing
to Key Home Credit's outstanding loan portfolio exceeding $5,000,000.00,
obtain additional funding, on terms and conditions satisfactory to the Bank
in its reasonable discretion, for Key Home Credit once and to the extent
that Key Home Credit's then (and thereafter, from time to time) outstanding
loan portfolio exceeds $5,000,000.00.
1.2 By adding a new Section 5J. to the Loan Agreement reading in its
entirety as follows:
5J. KEY HOME CREDIT RECEIVABLES. Shall either [a] purchase or otherwise
acquire for value any account or note receivable or other evidence of
indebtedness from any person or entity not a Borrower, or [b] create or
permit to exist any loan or note receivable arising in the course of their
respective businesses that is not either "A" or "B" paper as defined by the
so-called "FICO" scoring system utilized by the Bank and other
institutional lenders in asset securitization valuation procedures (the
"FICO System"). Notwithstanding anything in the foregoing sentence to the
contrary, Key Home Credit may create or permit to exist loans or note
receivables that are either "C" paper (the "C Paper") or the "D" paper (the
"D Paper") as defined by the FICO System provided that [i] the amount of C
Paper held on the books of Key Home Credit or any other Borrower does not
exceed $300,000.00 in the aggregate at any one time; [ii] the amount of D
Paper held on the books of Key Home Credit or any other Borrower does not
exceed
$100,000.00 in the aggregate at any one time; and [iii] Key Home Credit
has entered into and provided the Bank with copies of loan or account
receivable purchase agreements, acceptable to the Bank in its reasonable
discretion, with persons or entities other than any Borrower setting forth
the terms and conditions under which such persons or entities will purchase
C Paper or D Paper originated or held by Key Home Credit.
1.3 By adding a new Section 5K. to the Loan Agreement reading in its
entirety as follows:
5K. KEY HOME CREDIT FUNDING. Without the Bank's prior written consent,
permit Key Home Credit's outstanding loan portfolio to exceed $5,000,000.00
at any one time.
ARTICLE 2
WAIVER OF COVENANT DEFAULT
The Bank hereby grants a waiver of Borrowers' non-compliance with
the covenants contained in Section 4M. of the Loan Agreement and of the Event
of Default that would otherwise result from a violation of that Section,
solely for the period January 1, 1999 to July 30, 1999. 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.
ARTICLE 3
CONDITIONS PRECEDENT
The modifications to the Loan Agreement described in Article 1 of
this Agreement shall become effective on that date (the "Effective Date") on
which this Agreement, duly executed by each of the Borrowers and the Bank,
has been delivered to the Bank.
3
ARTICLE 4
OTHER STIPULATIONS
4.1 Upon the Effective Date, the provisions of Articles 1 and 2 of
this Agreement shall become effective and modify or supersede and replace the
applicable provisions of the Loan Agreement recited as being modified by them
or waive compliance with certain provisions of the Loan Agreement for the
period set forth herein. From and after the Effective Date each reference to
the "Loan Agreement" shall mean and be deemed a reference to the Loan
Agreement as modified by this Agreement but, except as modified by this
Agreement, the Loan Agreement shall remain in full force and effect in the
same form as existed immediately prior to the Effective Date.
4.2 This Agreement contains the final, complete and exclusive
agreement of the parties to it with regard to its subject matter, may not be
amended except in writing signed by each of the parties to it, shall be
binding upon and inure to the benefit of the respective successors and
assigns of each of the parties to it (subject to applicable provisions of the
Loan Agreement), and shall be construed in accordance with and otherwise
governed in all respects by the laws of the Commonwealth of Kentucky. This
Agreement may be executed in counterparts, and all counterparts collectively
shall constitute but one original document. Each of the Borrowers hereby
agrees to reimburse the Bank for all costs and expenses incurred by the Bank
in connection with the preparation, negotiation, documentation, execution and
delivery of this Agreement, including but not limited to the reasonable fees
of legal counsel to Bank.
4.3 Each of the Borrowers join in this Agreement for the purpose of
consenting to the provisions of the foregoing Agreement, and each of the
Borrowers confirms and agrees that its and their respective obligations
under, as applicable, the Note and the other Loan documents shall be
unimpaired by this Agreement and that no Borrower has any defenses or set
offs against the Bank, or its respective officers, directors, employees,
agents or attorneys with respect to, as applicable, the Note or the other
Loan Documents and that all of the terms, conditions and covenants in the
Loan Documents remain unaltered and in full force and effect and are hereby
ratified and confirmed.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
4
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Loan Agreement to be duly executed as of the day and year first
above written.
"BORROWERS"
THERMOVIEW INDUSTRIES, INC.,
a Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
AMERICAN HOME DEVELOPERS CO., INC.,
a California corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
FIVE STAR BUILDERS, INC., a California
corporation, successor in interest to American Home
Remodeling
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
KEY HOME CREDIT, INC., a Delaware
corporation
By: /S/ LEIGH XXX XXXXXX
--------------------------------------------
Leigh Xxx Xxxxxx, President
KEY HOME MORTGAGE, INC., a Delaware
corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
XXXXXXXX SIDING AND WINDOW, INC., a
North Dakota business corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
PRIMAX WINDOW CO., a Kentucky corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
PRECISION WINDOW MFG., INC., a Missouri
corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
ROLOX, INC. a Kansas corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
TD WINDOWS, INC. a Kentucky corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMAL LINE WINDOWS, INC. a
North Dakota corporation, formerly known as Ice
Inc., successor in interest to Blizzard Enterprises,
Inc. and Thermal Line Windows, LLP
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMOVIEW OF MISSOURI, INC., a
Missouri corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-TILT WINDOW COMPANY, a
Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
XXXXXX CONSTRUCTION, INC., a Missouri
corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA (ARIZONA),
INC., an Arizona corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD OF AMERICA
(MICHIGAN), INC., a Michigan corporation
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, President
THERMO-SHIELD COMPANY, LLC,
an Illinois limited liability company
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, Manager and President
THERMO-SHIELD OF AMERICA
(WISCONSIN), LLC, a Wisconson limited liability
company
By: /S/ XXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxx X. Xxxxxxxx, Manager and President
THERMOVIEW ADVERTISING GROUP, INC.,
a Delaware corporation
By: /S/ XXXXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxxxx X. Xxxxxxx, Secretary
"BANK"
PNC BANK, NATIONAL ASSOCIATION, a
national banking association
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
