JOINDER TO LOAN DOCUMENTS
AND AMENDMENT TO LOAN DOCUMENTS
(Xxxxxx Construction, Inc.)
THIS JOINDER TO LOAN DOCUMENTS AND AMENDMENT TO LOAN DOCUMENTS (the
"Joinder Agreement") is made and entered into as of January 1, 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] ROLOX, INC., a Kansas
corporation ("Rolox"), [ix] TD WINDOWS, INC., a Kentucky corporation ("TD
Windows"), [x]THERMAL LINE WINDOWS, INC., a North Dakota corporation,
successor in interest to Thermal Line Windows, LLP, Blizzard Enterprises,
Inc. and Ice, Inc. ("Thermal Line"), [xi] THERMOVIEW OF MISSOURI, INC., a
Missouri corporation ("ThermoView-Missouri"), [xii] THERMO-TILT WINDOW
COMPANY, a Delaware corporation ("Thermo-Tilt"), (ThermoView, American Home,
Five Star, Key Home, Key Home Mortgage, Xxxxxxxx Siding, Primax, Rolox, TD
Windows, Thermal Line, ThermoView-Missouri and Thermo-Tilt individually are
referred to in this Joinder Agreement as an "Original Borrower" and
collectively are referred to in this Joinder Agreement as the "Original
Borrowers"), [xiii] XXXXXX CONSTRUCTION, INC., a Missouri corporation
("Xxxxxx" or the "Xxxxxx Acquired Entity") and [xiv] PNC BANK, NATIONAL
ASSOCIATION, a national banking association (the "Bank").
RECITALS:
A. The Original Borrowers and the Bank are parties to a certain
Loan Agreement, dated as of August 31, 1998 (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 Original Borrowers.
B. As a condition of including the EBITDA of any Acquired Entity
in the calculation of the Commitment Limit, the Original Borrowers agreed to
cause each such Acquired Entity to join in the Loan Agreement, the Note, the
Security Agreement and the other Loan Documents promptly upon being acquired
by any of the Original Borrowers.
C. The Original Borrowers have acquired or will soon acquire
Xxxxxx, Castle Remodeling, Inc., a Missouri corporation ("Castle"), and
Showplace Home Improvements, Inc., a
Missouri corporation ("Showplace") (collectively referred to in this Joinder
Agreement as the "Xxxxxx Acquisition").
D. Immediately after the Xxxxxx Acquisition, ThermoView will
cause Castle and Showplace to be merged into Xxxxxx so that Xxxxxx will be
the surviving entity (the "Xxxxxx Merger").
E. After the Xxxxxx Merger, the Originals Borrowers desire to
have the EBITDA of Xxxxxx used in the calculation of the Commitment Limit.
F. The Original Borrowers have also requested that the Bank amend
the Loan Agreement to provide for a Letter of Credit Facility, as that term
is defined in this Joinder Agreement.
G. The Bank has agreed to allow the EBITDA of Xxxxxx to be used
in the calculation of the Commitment Limit provided Xxxxxx and the Original
Borrowers enter into this Joinder Agreement, and subject to the other
provisions of the Loan Documents, Xxxxxx has agreed to join in the Loan
Agreement, the Note, the Security Agreement, and Original Borrowers and the
Bank have agreed to modify the Loan Agreement and the other Loan Documents as
hereinafter set forth.
H. The Bank has also agreed to make available the Letter of
Credit Facility provided the Original Borrowers enter into this Joinder
Agreement, and subject to the other provisions of the Loan Documents, the
Original Borrowers and the Bank have agreed to modify the Loan Agreement and
the other Loan Documents as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in this Joinder Agreement and for other
good and valuable consideration, the mutuality, receipt and sufficiency of
which are hereby acknowledged, the Original Borrowers, Xxxxxx and the Bank
hereby agree as follows:
ARTICLE 1
JOINDER TO LOAN AGREEMENT
Subject to delivery to the Bank of each of the "Joinder Agreement
Documents" more particularly described in Article 7 of this Joinder Agreement:
1.1 Xxxxxx is hereby joined as a Borrower to the Loan Agreement.
1.2 Xxxxxx covenants and agrees to comply with:
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A. All of the covenants contained in the "Affirmative Covenants"
Section of the Loan Agreement from the date of execution of this Joinder
Agreement until all Obligations have been fully paid and any commitments of
the Bank to the Borrowers have been terminated;
B. All of the covenants contained in the "Negative Covenants"
Section of the Loan Agreement from the date of execution of this Joinder
Agreement until all Obligations have been fully paid and any commitments of the
Bank to the Borrowers have been terminated; and
C. All of the other terms, conditions, covenants, agreements and
obligations of each Borrower to be performed under and pursuant to the Loan
Agreement.
1.3 Xxxxxx makes, as of the date of this Joinder Agreement, all of the
representations and warranties contained in the "Representations and
Warranties" Section of the Loan Agreement, which shall be continuing in
nature and remain in full force and effect until the Obligations are paid in
full, and which shall be true and correct.
1.4 Xxxxxx acknowledges its receipt of a complete copy of the Loan
Agreement and each and every other presently existing Loan Document referred
to or referenced in the Loan Agreement.
1.5 The Loan Agreement is hereby amended by substituting the CAPITAL
STRUCTURE SCHEDULE which is attached to and made a part of this Joinder
Agreement for the CAPITAL STRUCTURE SCHEDULE originally attached to and made
a part of the Loan Agreement.
1.6 The Loan Agreement is hereby amended by substituting the
ENCUMBRANCES SCHEDULE which is attached to and made a part of this Joinder
Agreement for the ENCUMBRANCES SCHEDULE originally attached to and made a
part of the Loan Agreement.
ARTICLE 2
JOINDER TO NOTE
Subject to delivery to the Bank of each of the "Joinder Agreement
Documents" more particularly described in Article 7 of this Joinder Agreement:
2.1 Xxxxxx is hereby joined as a Borrower to the Note and jointly and
severally promises and agrees to pay the indebtedness evidenced thereby in
accordance with the provisions thereof.
2.2 Without limitation of Section 2.1 above, Xxxxxx promises and agrees
to pay to the order of the Bank, the aggregate principal sum of Fifteen
Million and No/100 Dollars ($15,000,000.00), or so much thereof as may be
advanced under the Note, together with interest
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thereon as provided in the Note, in lawful money of the United States of
America, in the manner set forth in the Note, on or before the Expiration
Date as that term is defined in the Note.
2.3 Xxxxxx covenants and agrees to comply with all of the other terms,
conditions, covenants, agreements and obligations of each Borrower to be
performed under and pursuant to the Note.
2.4 Xxxxxx acknowledges its receipt of a complete copy of the Note and
each and every other Loan Document referred to or referenced in the Note.
ARTICLE 3
JOINDER TO SECURITY AGREEMENT
Subject to delivery to the Bank of each of the "Joinder Agreement
Documents" more particularly described in Article 7 of this Joinder Agreement:
3.1 Xxxxxx is hereby joined as a Borrower to the Security Agreement.
3.2 Xxxxxx assigns and grants to the Bank, as a secured party, a
continuing lien on and security interest in the Collateral.
3.3 Xxxxxx makes, as of the date of this Joinder Agreement, all of the
representations and warranties contained in the "Representations and Warranties"
Section of the Security Agreement, which shall be continuing in nature and
remain in full force and effect until the Obligations are paid in full, and
which shall be true and correct.
3.4 Xxxxxx covenants and agrees to comply with:
A. The covenants contained in the "Grantors' Covenants" and the
"Covenants for Accounts" Sections of the Security Agreement from the date of
execution of this Joinder Agreement until all Obligations have been fully
paid and any commitments of the Bank to the Grantors have been terminated;
B. The covenants contained in the "Negative Pledge; No Transfer"
Section of the Security Agreement from the date of execution of this Joinder
Agreement until all Obligations have been fully paid and any commitments of
the Bank to the Grantors have been terminated; and
C. All of the other terms, conditions, covenants, agreements and
obligations of each Borrower to be performed under and pursuant to the
Security Agreement.
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3.5 Xxxxxx acknowledges its receipt of a complete copy of the Security
Agreement and each and every other Loan Document referred to or referenced in
the Security Agreement.
ARTICLE 4
AMENDMENT TO SECURITY AGREEMENT
Subject to delivery to the Bank of each of the "Joinder Agreement
Documents" more particularly described in Article 7 of this Joinder
Agreement, the Security Agreement is hereby amended by substituting EXHIBIT
"A" TO SECURITY AGREEMENT which is attached to and made a part of this
Joinder Agreement for EXHIBIT "A" TO SECURITY AGREEMENT originally attached
to and made a part of the Security Agreement.
ARTICLE 5
AMENDMENT TO PLEDGE AGREEMENT
Subject to delivery to the Bank of each of the "Joinder Agreement
Documents" more particularly described in Article 7 of this Joinder
Agreement, the Pledge Agreement is hereby amended as follows:
5.1 Xxxxxx Construction, Inc., a Missouri corporation, is added as a
Borrower in the "Obligations Secured" Section of the Pledge Agreement.
5.2 EXHIBIT "A" TO PLEDGE AGREEMENT, which is attached to and made a
part of this Joinder Agreement, is substituted for EXHIBIT "A" TO PLEDGE
AGREEMENT originally attached to and made a part of the Pledge Agreement.
ARTICLE 6
AMENDMENT TO LOAN AGREEMENT
Subject to delivery to the Bank of each of the "Loan Agreement
Amendment Documents" more particularly described in Article 7 of this Joinder
Agreement, the Loan Agreement is hereby amended as follows:
6.1 The following provisions are added to the Loan Agreement as new
Sections:
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F. LETTER OF CREDIT FACILITY; EXPIRATION DATE. Subject to the
provisions of this Agreement, Bank agrees to issue irrevocable standby
Letters of Credit from time to time after January ____, 1999, until the
earlier of August 31, 2000, 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 (August 31, 2000,
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"). If Bank elects not to extend any
Letter of Credit Expiration Date, Borrowers shall have ninety (90) days from
the date of written notice (the "LETTER OF CREDIT FACILITY CANCELLATION
NOTICE") from Bank that Bank does not intend to extend the Letter of Credit
Expiration Date to obtain another Bank or Banks to replace Bank as the issuer
of any then outstanding Letters of Credit. Any and each extension of the
Letter of Credit Expiration Date shall be evidenced by, and become effective
upon the execution and delivery by Borrowers and Bank of a written
"DECLARATION OF EXTENSION."
G. LETTER OF CREDIT FACILITY LIMIT. The sum at any time of
calculation of [i] the aggregate outstanding amount of all Letters of Credit
issued by Bank for the account of Borrowers but not drawn against, plus [ii]
the amount of any outstanding Advances made by Bank to honor any drafts drawn
under any Letter of Credit, shall not exceed the amount (the "LETTER OF
CREDIT FACILITY LIMIT") of Five Million and No/100 Dollars ($5,000,000.00).
H. APPLYING FOR LETTERS OF CREDIT. Borrowers shall apply for
Letters of Credit under the Letter of Credit Facility by tendering to Bank
its standard form of application for standby letter of credit (the "LETTER OF
CREDIT APPLICATION"), or pursuant to such other form as may be adopted by
Bank from time to time hereafter for use by its customers generally, signed
in every instance by Borrowers with joint and several liability thereunder.
Issuance of Letters of Credit by Bank shall be effected subject to and in
accordance with the following conditions and stipulations:
[1] Borrowers shall be, as of the date of application, in
compliance with all of the terms, covenants and conditions of this Agreement;
there shall exist no Event of Default as defined herein; and the
representations and warranties contained herein and in the other Loan
Documents shall be and remain true and correct in all material respects at
the time of such request.
[2] No Letter of Credit shall have a maturity date beyond the
earlier of a date which is 365 days beyond the date on which the Letter of
Credit is issued or the Letter of Credit Expiration Date without the prior
written consent of Bank (which consent may be granted or withheld in Bank's
sole and absolute discretion).
[3] To the extent any Letter of Credit has a maturity date
that extends beyond the Letter of Credit Expiration Date, Bank shall have no
obligation to release any Collateral securing the Letters of Credit (even if
Bank has elected not to extend the Letter of Credit Expiration Date) until
(i) the expiration of each and every such Letter of Credit, or (ii) full
disbursement of the face
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amount thereof (and repayment by Borrowers to Bank of the amount of each such
disbursement, together with interest thereon at a rate equal to the Default
Rate described in the Note, or (iii) another Bank acceptable to Bank replaces
Bank as issuer of all such Letters of Credit and Bank is absolutely released
by Borrowers and the beneficiaries of the Letters of Credit, or absolutely
indemnified by the replacement Bank, in connection with all such Letters of
Credit.
[4] All Letters of Credit shall be issued in accordance with,
and subject to, the standard terms and conditions for issuance of letters of
credit as adopted from time to time by Bank for use by its customers
generally and otherwise shall be in form and substance satisfactory to Bank.
Initially all Letters of Credit issued by Bank shall be subject to all terms
and provisions of the Letter of Credit Application. The Bank, however,
reserves the right to modify from time to time in its sole and absolute
discretion the form provisions of the Letter of Credit Application provided
by it for use by its customers generally, and Borrowers hereby agree to abide
by the terms and provisions of any such document. Bank shall endeavor to
issue Letters of Credit on the third (3rd) business day following the
business day on which an original, executed Letter of Credit Application
(signed on behalf of Borrowers and otherwise properly completed in all
respects) is delivered to Bank prior to 11:00 a.m. (Eastern Standard time or
Eastern Daylight time, as applicable). Borrowers hereby indemnify Bank
against and agrees to reimburse Bank for and hold Bank harmless from all
costs, losses, claims, damages, orders and expenses incurred by Bank, that
result from, arise out of or are connected with any request from Borrowers to
Bank to issue, or issuance by Bank of, any Letter of Credit, except to the
extent incurred as a result of Bank's gross negligence or wilfully malicious
misconduct.
[5] If any Letter of Credit becomes the subject matter of any
order, judgment, injunction or other such determination restricting payment
by Bank under and in accordance with such Letter of Credit or extending
Bank's liability under such Letter of Credit beyond the expiration date
stated therein (herein an "ORDER"), the Letter of Credit subject to such
Order shall continue to be included within the calculation of the Letter of
Credit Facility Limit described above. If the Order remains in effect on the
Letter of Credit Expiration Date (and Borrowers shall not otherwise have
obtained another Bank to assume the Obligations of Bank under such Letter of
Credit in conjunction with a release of Bank thereunder), Borrowers shall be
obligated to continue to maintain with Bank all of the security for the
Letters of Credit provided under this Agreement or, if permitted by Bank in
its sole and absolute discretion which may be exercised arbitrarily,
Borrowers may pay to Bank on such date, in immediately available funds, an
additional amount equal to Bank's contingent liability in respect of any
Letter of Credit subject to the Order. In the event, following the Letter of
Credit Expiration Date, the original counterpart of such Letter of Credit
ultimately is returned to Bank for cancellation, or Bank is released by the
beneficiary of such Letter of Credit (and any other Person asserting a claim
in connection with the Letter of Credit) from any obligations thereunder, or
upon the entry of a final and non-appealable order, judgment or other
determination either terminating the Order or permanently enjoining Bank from
paying under such Letter of Credit, Bank shall promptly return to Borrowers
all or that portion of the funds remaining after payment and satisfaction by
Bank of all amounts required to be paid by it under the Letter of Credit and
any other
7
amounts due by Borrowers to Bank under the indemnity given to Bank pursuant
to this Agreement or otherwise under any provisions of the Loan Documents.
I. LETTER OF CREDIT FACILITY FEE. Borrowers shall pay Bank a fee
(the "LETTER OF CREDIT FEE"), for the period beginning when such Letter of
Credit is issued to its expiry date, in an amount equal to a percentage of
the outstanding amount of each Letter of Credit when issued equal to the
Applicable Eurorate Margin, as such term is defined in the Note, in effect
under the Note at the time the Letter of Credit is issued with a minimum
payment of $150.00 per Letter of Credit, payable quarterly in advance (except
in the case of a minimum payment, which payment shall be due when the Letter
of Credit is opened, renewed or extended).
6.2 By deleting Section 2 of the Loan Agreement and substituting a new
Section 2 reading in its entirety as follows:
2. SECURITY. The security for repayment of the Loan shall include but
not be limited to the collateral, and other documents heretofore,
contemporaneously or hereafter executed and delivered to the Bank (the
"SECURITY DOCUMENTS"), which shall secure repayment of the Loan, the Note,
the Letters of Credit and all other loans, Advances, debts, liabilities,
obligations, covenants and duties owing by the Borrowers to the Bank of any
kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, whether arising under any agreement, instrument
or document, whether or not for the payment of money, whether arising by
reason of an extension of credit, opening of a Letter of Credit, loan or
guarantee or in any other manner, whether arising out of overdrafts on
deposit or other accounts or electronic funds transfers (whether through
automatic clearing houses or otherwise) or out of the Bank's non-receipt of
or inability to collect funds or otherwise not being made whole in connection
with depository transfer check or other similar arrangements, whether direct
or indirect (including those acquired by assignment or participation),
absolute or contingent, joint or several, due or to become due, now existing
or hereafter arising, and any amendments, extensions, renewals or increases
and all costs and expenses of the Bank incurred in the documentation,
negotiation, modification, enforcement, collection or otherwise in connection
with any of the foregoing, including but not limited to reasonable attorneys'
fees and expenses (hereinafter referred to collectively as the
"OBLIGATIONS"). Unless expressly provided to the contrary in documentation
for any other loan or loans, it is the express intent of the Bank and the
Borrowers that all Obligations including those included in the Loan be
cross-defaulted, such that a default under any Obligation shall be a default
under all Obligations. This Agreement, the Note and the Security Documents
are collectively referred to as the "LOAN DOCUMENTS".
6.3 By deleting Section 4I[1][c] of the Loan Agreement and substituting
a new Section 4I[1][c] reading in its entirety as follows:
[C] "FUNDED DEBT" is defined as the consolidated (and combined, if
applicable) sum of all line borrowings (including, but not limited to,
Letters of Credit issued pursuant to this
8
Agreement), 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 "earn-outs", i.e. obligations of any Borrower that are
determined based on the future performance of any Acquired Entity) that in
each case are not subordinated to all indebtedness of whatsoever nature of
Borrower to the Bank pursuant to documentation acceptable in form and
substance to the Bank.
6.4 By amending Section 4I[1] of the Loan Agreement, effective as of
September 29, 1998, to change the required Funded Debt to Modified Borrower
EBITDA ratio for the September 30, 1998 Calculation Date from 3.50 to 1.00 to
3.60 to 1.00 for that Calculation Date only.
6.5 By amending Section 4I[2] of the Loan Agreement, effective as of
September 29, 1998, to change the required Modified Borrower EBIT to Interest
and Dividends ratio for the September 30, 1998 Calculation Date from 3.00 to
1.00 to 2.60 to 1.00 for that Calculation Date only.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 The joinder of Xxxxxx to each of the Loan Agreement, the Note, and
the Security Agreement and the modifications to the Security Agreement, the
Pledge Agreement and the Loan Agreement described in Articles 1 through 5 of
this Joinder Agreement shall become effective on that date (the "Effective
Date") on which each of the following documents (collectively, the "Joinder
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 Joinder Agreement, duly executed by each of the Original
Borrowers, Xxxxxx, and the Bank;
B. Certified Resolutions of the Board of Directors of Xxxxxx
authorizing the execution and delivery by Xxxxxx of this Joinder Agreement;
C. Certified Resolutions of the Board of Directors of [i]
ThermoView, [ii] American Home, [iii] American Home Remodeling, [iv] Five
Star, [v] Key Home, [vi] Xxxxxxxx Siding, [vii] Primax, [viii] Rolox, [ix] TD
Windows, [x] Thermo View-Missouri, and [xi] Thermo-Tilt authorizing the
execution and delivery by each of those entities of this Joinder Agreement
(the "Resolutions");
9
D. UCC-1 Financing Statements naming Xxxxxx as the Debtor and the
Bank as the Secured Party for filing in the St. Louis County, Missouri,
Recorder's Office and in the Office of the Secretary of State of Missouri;
E. Landlord Waivers executed by each landlord of Xxxxxx;
F. Stock Certificate evidencing ThermoView's ownership of 16,875
shares of the capital stock of Xxxxxx;
G. Stock Power executed by ThermoView;
H. Opinion of Xxxxxx & Xxxxxxxx, counsel to Xxxxxx;
I. Financial Statements of Xxxxxx for the last two (2) fiscal
years of Xxxxxx, [i] prepared on an audited basis in accordance with GAAP by
an independent certified public accountant chosen by the Borrowers and
acceptable to the Bank and [ii] containing the unqualified opinion of such
independent certified public accountant and its examination shall have been
made in accordance with GAAP consistently applied from period to period; and
J. Financial Statements for Xxxxxx for and through the period
ending September 30, 1998;
K. A completed ThermoView Industries, Inc. Draw Test certificate,
in the form attached to this Joinder Agreement as the DRAW TEST CERTIFICATE
EXHIBIT, dated as of the date of this Joinder Agreement;
L. The completion of the Xxxxxx Acquisition; and
M. The completion of the Xxxxxx Merger.
7.2 The amendment to the Loan Agreement described in Article 6 of this
Joinder Agreement shall become effective on that date (the "Amendment
Effective Date") on which each of the following documents (collectively, the
"Loan Agreement Amendment 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 Joinder Agreement, duly executed by each of the Original
Borrowers and the Bank; and
B. The Resolutions.
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ARTICLE 8
OTHER STIPULATIONS
8.1 Upon the Effective Date, the provisions of Articles 1 through 5 of
this Joinder Agreement shall become effective and modify or supersede and
replace the applicable provisions of the Loan Agreement and the other Loan
Documents recited as being modified by them and Xxxxxx shall be joined as a
party to the Loan Agreement, the Note, and the Security Agreement. Upon the
Amendment Effective Date, the provisions of Article 6 of this Joinder
Agreement shall become effective and modify or supersede and replace the
applicable provisions of the Loan Agreement and the other Loan Documents
recited as being modified by them. From and after, as applicable, the
Effective Date and the Amendment Effective Date each reference to the "Loan
Agreement" and the "Loan Documents" or words of like import shall mean and be
deemed a reference to, as applicable, the Loan Agreement and Loan Documents
as modified by this Joinder Agreement but, except as modified by this Joinder
Agreement and the other Joinder Agreement Documents, the Loan Agreement and
the other Loan Documents shall remain in full force and effect in the same
form as existed immediately prior to the, as applicable, the Effective Date
or the Amendment Effective Date.
8.2 If each of the Joinder Agreement Documents has not been fully
executed and delivered to the Bank on or before January _____, 1999, this
Joinder Agreement shall be voidable at any time prior to the delivery of each
of such Joinder Agreement Document upon notice given by any Borrower to the
Bank.
8.3 This Joinder Agreement and the other Joinder Agreement Documents
contain the final, complete and exclusive agreement of the parties to them
with regard to their subject matter, may not be amended except in writing
signed by each of the parties to them, shall be binding upon and inure to the
benefit of the respective successors and assigns of each of the parties to
them (subject to applicable provisions of, as applicable, the Loan Agreement
and the Loan Documents), and shall be construed in accordance with and
otherwise governed in all respects by the laws of the Commonwealth of
Kentucky. This Joinder Agreement may be executed in counterparts, and all
counterparts collectively shall constitute but one original document. Each
of the Original Borrowers and Xxxxxx 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
Joinder Agreement and the other Joinder Agreement Documents, including but
not limited to the reasonable fees of legal counsel to Bank.
8.4 Each of the Original Borrowers join in this Joinder Agreement for
the purpose of consenting to the provisions of the foregoing Joinder
Agreement, and each of the Original Borrowers confirm and agree that its and
their respective obligations under, as applicable, the Note and the other
Loan documents shall be unimpaired by this Joinder Agreement and that no
Original Borrower has any defenses or set offs against the Bank, or its
respective officers, directors, employees, agents
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Joinder
Agreement to be duly executed as of the day and year first above written.
"ORIGINAL 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
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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
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
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THERMAL LINE WINDOWS, INC. a
North Dakota corporation, successor in
interest to Blizzard Enterprises, Inc., Ice.,
Inc., and Key Home Credit, Inc.
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"
XXXXXX CONSTRUCTION, INC., a Missouri
corporation
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
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"BANK"
PNC BANK, NATIONAL ASSOCIATION, a national
banking association
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
ATTACHMENTS:
- EXHIBIT A TO SECURITY AGREEMENT
- EXHIBIT A TO PLEDGE AGREEMENT
- CAPITAL STRUCTURE SCHEDULE
- DRAW TEST CERTIFICATE EXHIBIT
- ENCUMBRANCES SCHEDULE
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EXHIBIT "A"
TO SECURITY AGREEMENT
Address of each Grantor's chief executive office, including the County, for
each Grantor named in A through P) below is 0000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx Xxxxxx, Xxxxxxxx 00000.
1. ThermoView
2. American Home
3. American Home Remodeling
4. Blizzard Enterprises
5. Five Star
6. Ice
7. Key Home
8. Key Home Mortgage
9. Xxxxxxxx Siding
10. Primax
11. Rolox
12. TD Windows
13. Thermal Line
14. ThermoView-Missouri
15. Thermo-Tilt
16. Xxxxxx
16
Address for books and records, if different:
17. ThermoView
18. American Home
00000 Xxxxxxx Xxxx., Xxxxxx 000 xxx 000
Xxxxxxxx Xxxxx, XX 00000
19. American Home Remodeling
00000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
20. Blizzard Enterprises
0000 00xx Xxxxxx XX
Xxx 000
Xxxxxx, XX 00000
21. Five Star
0000 Xxxxxx Xxxxx Xx
Xxxxx 000
Xxx Xxxxx, XX 00000
22. Ice
0000 00xx Xxxxxx XX
Xxx 000
Xxxxxx, XX 00000
23. Key Home
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
24. Key Home Mortgage
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
25. Xxxxxxxx Siding
0000 Xxxx Xxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000
26. Primax
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
17
27. Rolox
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
28. TD Windows
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
29. Thermal Line
0000 00xx Xxxxxx X.X.
Xxx 000
Xxxxxx, XX 00000
30. ThermoView-Missouri
0000 Xxxxxxx
Xx. Xxxxx, XX 00000
31. Thermo-Tilt
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
32. Xxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
18
Addresses of other Collateral locations, including Counties and name and
address of landlord or owner if location is not owned by the applicable
Grantor:
A ThermoView
33. American Home
34. American Home Remodeling
35. Blizzard Enterprises
36. Five Star
37. Ice
38. Key Home
39. Key Home Mortgage
40. Xxxxxxxx Siding
41. Primax
42. Rolox
43. TD Windows
44. Thermal Line
45. ThermoView-Missouri
46. Thermo-Tilt
47. Xxxxxx
[See attached schedule.]
19
Other names or tradenames now or formerly used by the Grantors:
A ThermoView
48. American Home
49. American Home Remodeling
[DBA Pacific Exteriors]
50. Blizzard Enterprises
51. Five Star
52. Ice
53. Key Home
54. Key Home Mortgage
55. Xxxxxxxx Siding
[Xxxxxxxx Construction and Steel Siding]
56. Primax
57. Rolox
[Rolox at Kansas City, MO and Rolox at Wichita]
58. TD Windows
[Allhom Eagle Windows and Doors, Inc.]
59. Thermal Line
60. ThermoView-Missouri
[NuView Industries, Inc.]
61. Thermo-Tilt
20
EXHIBIT A
TO
PLEDGE AGREEMENT
QUANTITY DESCRIPTION OF SECURITIES CERTIFICATE NUMBER(S)
-------- ------------------------- ---------------------
100 Shares of the common Stock 2
of American Home
100 Shares of the common Stock 2
of American Home Remodeling
100 Shares of the common Stock 2
of Five Star
1,000 Shares of the common Stock 2
of Ice, Inc.
100 Shares of the common Stock 2
of Key Home
100 Shares of the common Stock 2
of Key Home Mortgage
24,408 Shares of the common Stock 2
of Xxxxxxxx Siding
100 Shares of the common Stock 2
of Primax
100 Shares of the common Stock 2
of Rolox
100 Shares of the common Stock 1
of TD Windows
100 Shares of the common Stock 1
of ThermoView-Missouri
9,500 Shares of the non-voting common 104
Stock of Blizzard Enterprises
21
QUANTITY DESCRIPTION OF SECURITIES CERTIFICATE NUMBER(S)
-------- ------------------------- ---------------------
500 Shares of the voting common 103
Stock of Blizzard Enterprises
100 Shares of the Common Stock ____
of Thermo-Tilt
16,875 Shares of the Common Stock 11
of Xxxxxx
22
CAPITAL STRUCTURE SCHEDULE
TO
AGREEMENT
ThermoView Industries, Inc.
COMPANY AUTHORIZED SHARES ISSUED AND OUTSTANDING
------- ----------------- ----------------------
ThermoView - Common 100,000,000 _____________
ThermoView - Preferred 50,000,000 2,980,000**
American Home 1,000 100
American Home Remodeling 1,000 100
Five Star 1,000 100
Key Home 10,000 1,000
Xxxxxxxx Siding 25,000 24,408
Primax 1,000 100
Rolox 1,000 100
TD Windows 1,000 000
Xxxxxxx Xxxx X/X X/X
Thermo-Tilt 20,000,000 100*
Thermo-View-Missouri 1,000 100
Key Home Mortgage 10,000 1,000
Blizzard Enterprises 5,000 voting common 500
95,000 non-voting common 9500
Ice, Inc. 2,500 1,000
Xxxxxx Construction, Inc. 30,000 16,875
* 5,381,475 shares were canceled for the 100 shares of Thermo-Tilt
** Series A Preferred Stock
23
DRAW TEST CERTIFICATE EXHIBIT
TO
JOINDER AGREEMENT
(Attach Form of Draw Test Certificate)
24
ENCUMBRANCES SCHEDULE
TO
AGREEMENT
(Describe additional Liens and Encumbrances)
-------------------------------------------------------------------------------
SCHEDULE OF PERMITTED ENCUMBRANCES
FILE DATE FILE NO. TYPE ADDITIONAL INFORMATION COMMENTS
AMERICAN HOME REMODELING
04/19/95 9511460165 UCC-1 Copelco Capital, Inc. LEASE: ETS 4-station
telemarketing system
07/31/95 9521460825 UCC-1 Milguard PMSI:
Manufacturing, Inc. Inventory-aluminum
windows and doors
06/30/97 9718360563 UCC-1 Green Tree Vendor LEASE: Predictive
Services Corporation dialing hardware
FIVE STAR BUILDERS, INC.
01/08/96 0000000000 UCC-1 Copelco Capital, Inc. LEASE: Notice
marketing hardware
10/18/96 9629660662 UCC-1 Copelco Capital, Inc. LEASE: Notice
marketing hardware
03/03/97 9706660394 UCC-1 Sun Data, Inc. LEASE: Notice
marketing hardware
04/11/97 97105C0221 Assig Norwest Equipment Assignment at
Finance, Inc. 03/03/97 #9706660394
03/13/97 9707760731 UCC-1 Matsushita Electric Telephone equipment
Corporation of America
08/03/98 9821860024 UCC-1 Matsushita Electric Telephone Equipment
Corporation
PRIMAX WINDOW CO.
11/25/97 973170560564 TLS Bank One 1998 Ford Windstar
04/24/98 972810560378 TLS Bank One 1997 Ford cargo van
-------------------------------------------------------------------------------
25
-------------------------------------------------------------------------------
SCHEDULE OF PERMITTED ENCUMBRANCES
FILE DATE FILE NO. TYPE ADDITIONAL INFORMATION COMMENTS
09/10/98 49863 TLS Ford Motor Credit 1990 Ford F-250
AMERICAN HOME REMODELING D/B/A PACIFIC EXTERIORS, INC.
03/21/94 94055064 UCC-1 Eberhard Equipment Heavy
equipment-tractor
06/06/94 94112915 UCC-1 Ford Motor Credit Heavy
Company equipment-tractor
10/27/94 9432260059 UCC-1 Ford Motor Credit Heavy
Company equipment-tractor
10/27/94 9432260338 UCC-1 Associates Commercial Xxxxxx Xxxxxxxx skip
Corp. loader
10/23/95 9529760567 UCC-1 Ford New Holland Ford heavy
Credit Company equipment-tractor,
loader, hydraulic
scraper
TD WINDOWS (ALLHOM EAGLE WINDOWS & DOORS, INC.)
09/01/98 9807781 TLS Chelsea Building Equipment
Products, Inc.
06/17/97 T734237 TLS Huntington Acceptance 1997 Chevy 1500
THERMAL LINE WINDOWS, L.L.P.
03/14/96 1832278 UCC-1 Norwest Bank North Equipment
Dakota, NA
01/12/98 98-000741420 UCC-1 Norwest Equipment LEASE: Complast
Finance Manuf. Equipment
THERMO-TILT WINDOW COMPANY
08/05/96 979393 UCC-1 Ford Motor Credit TLS: 1997 F-150 truck
Company
06/02/97 989114 UCC-1 Ford Motor Credit TLS: 1997 F-150 truck
Company
09/26/97 993247 UCC-1 National City Bank TLS: 1992 Ford pickup
-------------------------------------------------------------------------------
26
-------------------------------------------------------------------------------
SCHEDULE OF PERMITTED ENCUMBRANCES
FILE DATE FILE NO. TYPE ADDITIONAL INFORMATION COMMENTS
09/26/97 993248 UCC-1 National City Bank TLS: 1990 Chevy van
11/07/97 994777 UCC-1 The Owensboro TLS: 1994 Chevy S-10
National Bank truck
01/09/98 996591 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
01/09/98 996592 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
01/09/98 996593 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
01/27/98 997130 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
01/27/98 997131 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
01/27/98 997132 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
02/23/98 997955 UCC-1 Lincolnland Bank TLS: 1998 Dodge Ram
truck
THERMOVIEW INDUSTRIES, INC.
06/21/98 98-06463 UCC-1 LCDA, Inc. Telephone equipment
XXXXXX CONSTRUCTION, INC.
12/22/94 015682 UCC-1 Clarklift of PMSI: Forklift
St. Louis Inc.
08/22/96 10082 UCC-1 Ameritech Credit LEASE: Equipment
Corporation
04/12/97 3996 UCC-3 Ameritech Credit Amendment
Corporation
03/21/97 3494 UCC-1 Ikon Office Solutions LEASE: Equipment
03/24/97 3523 UCC-1 Forklifts of PMSI: Forklift
St. Louis Inc.
-------------------------------------------------------------------------------
27
-------------------------------------------------------------------------------
SCHEDULE OF PERMITTED ENCUMBRANCES
FILE DATE FILE NO. TYPE ADDITIONAL INFORMATION COMMENTS
05/14/97 5795 UCC-1 Ikon Office Solutions LEASE: Equipment
11/05/97 13265 UCC-1 Ikon Office Solutions LEASE: Equipment
12/19/94 2485452 UCC-1 Clarklift of PMSI: Forklift
St. Louis Inc.
08/19/96 2698058 UCC-1 Ameritech Credit LEASE: Equipment
Corporation
03/27/97 2771989 UCC-3 Ameritech Credit Amendment
Corporation
03/21/97 2768931 UCC-1 Ikon Office Solutions LEASE: Equipment
03/21/97 2770518 UCC-1 Forklifts of PMSI: Forklift
St. Louis Inc.
05/12/97 2788911 UCC-1 Ikon Office Solutions LEASE: Equipment
11/03/97 2847843 UCC-1 Ikon Office Solutions LEASE: Equipment
-------------------------------------------------------------------------------
LEGEND:
LOC = Line of Credit
TLS = Title Lien Statement
Lease = Equipment Leased - Notice Only
PMSI = Purchase Money Security Interest
28
