Exhibit 10.4
Second Forbearance Agreement
This Agreement made as of this 29th day of October, 1999 by and among
Diamond Homes Services, Inc., a Delaware corporation (the "Borrower"), Diamond
Exteriors, Inc., a Delaware corporation ("Exteriors"), Xxxxxx Southeastern
Corporation, a Florida corporation ("Xxxxxx"), Marquise Financial Services,
Inc., a Delaware corporation ("Marquise"), Foreline Security Corporation, a
Florida corporation ("FSC"), Solitaire Heating and Cooling, Inc., a Delaware
corporation ("Kantel") and Xxxxxx Southeastern Realty, Inc., a Florida
corporation ("Xxxxxx Southeastern"), the Banks party to the Credit Agreement
hereinafter identified and defined and Xxxxxx Trust and Savings Bank as the
Banks' Agent (in such capacity, the "Agent");
Recitals:
A. The Borrower has furnished the Banks with projections which reflect
the Borrower's cash balances to be insufficient to support its normal operations
today, on which date the Borrower will be unable to meet its payroll
obligations.
B. The Borrower is currently out of compliance with the Credit Agreement
in the following respects (each such instance of noncompliance being hereinafter
referred to as an "Existing Default"):
(i) The Borrower's failure to make the principal payments required
to be paid on the Term Loans on September 30, 1999;
(ii) Noncompliance as of June 30, 1999 and September 30, 1999 with
the financial covenant contained in Section 8.30 of the Credit Agreement
requiring, among other things, the Borrower's maintenance of a minimum
EBITDA after capital expenditures;
(iii) Noncompliance as of September 30, 1999 with the financial
covenant contained in Section 8.23 of the Credit Agreement requiring, among
other things, the Borrower's maintenance of a minimum Net Worth; and
(iv) An Event of Default arising by virtue of the cross default in
Section 9.1(g) of the Credit Agreement by reason of Marquise's
noncompliance with the Existing Marquise Financing.
C. In recent discussions, the Borrower has indicated its inability to
comply with the Credit Agreement in the future in the following respects (each
such instance of future noncompliance being hereinafter referred to as a "Future
Default") (the Existing Defaults and the Future Defaults being hereinafter
referred to collectively as the "Unwaived Defaults"):
(i) The Borrower's failure to make the principal payments scheduled
to become due on the Term Loans on December 31, 1999 and March 31, 2000;
and
(ii) Noncompliance as of December 31, 1999 and March 31, 2000 with
the financial covenant contained in Section 8.22 of the Credit Agreement
requiring, among other things, the Borrower's maintenance of a maximum Cash
Flow Leverage Ratio;
(iii) Noncompliance as of December 31, 1999 and March 31, 2000 with
the financial covenant contained in Section 8.24 of the Credit Agreement
requiring, among other things, the Borrower's maintenance of a minimum
Fixed Charge Coverage Ratio;
(iv) Noncompliance as of December 31, 1999 and March 31, 2000 with
the financial covenant contained in Section 8.25 of the Credit Agreement
requiring, among other things, the Borrower's maintenance of a minimum
Interest Coverage Ratio; and
(v) Noncompliance as of December 31, 1999 and March 31, 2000 with
the financial covenant contained in Section 8.31 of the Credit Agreement
requiring, among other things, the Borrower's maintenance of a maximum
Adjusted Cash Flow Leverage Ratio.
D. Also in recent discussions, the Borrower has requested that the Banks
forbear from exercising their rights and remedies with respect to the Unwaived
Defaults and consent to a proposed sale by Marquise of certain of its Property.
E. While the Banks are not willing to waive the Unwaived Defaults, during
the period (the "Standstill Period") ending on June 30, 2000 (the "Scheduled
Standstill Expiration Date"), the Banks will provide the Borrower with the
limited additional financial support described below and forbear from
accelerating the Obligations, enforcing the liens granted by the Collateral
Documents and exercising any other rights or remedies available solely by reason
of the Unwaived Defaults and consent to such a sale by Marquise on the terms,
conditions and provisions contained in this Agreement if the Borrower,
Exteriors, Xxxxxx, Xxxxxxxx, FSC and Xxxxxx Southeastern (collectively the "Loan
Parties") each accept this Agreement (which acceptance must be (x) made by their
execution hereof without modification in the spaces provided for that purpose
below and (y) received by the Agent no later than 2:00 p.m., Chicago time on
Monday, November 1, 1999).
Now, Therefore, upon the execution hereof by the Agent, the Banks and the
Loan Parties, it is agreed as follows:
1. Amounts Owing. Each Loan Party acknowledges and agrees that the
principal amount of Loans and L/C Obligations as of October 27, 1999 is
$40,416,710 ($16,875,000 in Term Loans, $0 in Swing Loans, $22,841,710 in
Revolving Loans and $700,000 in L/C Obligations) and such amount (together with
interest thereon) is justly and truly, jointly and severally, owing by each Loan
Party without defense, offset or counterclaim.
2. Acknowledgment of Default. The Existing Defaults constitute Events of
Default under the Credit Agreement. Each Loan Party acknowledges that under
Sections 7.2 and 9.2 of the Credit Agreement, because of the Existing Defaults,
the Banks are permitted and entitled to terminate the Commitments, to decline to
provide further funding to the Borrower, to accelerate
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the Obligations and exercise any other rights or remedies that may be available
under the Loan Documents or under applicable law. The Loan Parties represent to
the Banks that the Loan Parties are unaware of any Defaults or Events of Default
other than the Existing Defaults.
3. Forbearance. Unless and until a Standstill Termination occurs, the
Banks will not accelerate the Obligations or enforce any of the liens granted
under the Collateral Documents or exercise any other rights or remedies
available solely by reason of the Unwaived Defaults.
4. No Additional Credit Except as Follows. Each Loan Party acknowledges
that the Banks have exercised their right to cease extending any additional
credit under the Credit Agreement and that as a result, from and after the date
of this Agreement, the Banks will not extend additional credit under the
Revolving Credit and Xxxxxx Trust and Savings Bank will not extend additional
credit under the Swing Line; provided, however, that unless and until a
Standstill Termination occurs:
(a) The Banks will continue to make Borrowings of Revolving Credit
Loans to the Borrower for the sole purpose of the Borrower's substantially
concurrent intercompany advance of the proceeds of each such Borrowing to
Xxxxxx and FSC to finance their ordinary working capital expenses of the
type reflected on the Xxxxxx Budget provided that the aggregate principal
amount of Revolving Loans and L/C Obligations shall not at any time exceed
the lesser of (x) $22,841,710 (the aggregate amount of Revolving Loans
outstanding as of the date hereof) or (y) the sum of $5,149,064 plus the
Borrowing Base attributable solely to the Collateral of Xxxxxx and FSC as
then determined and computed (such sum being hereinafter referred to as the
"Xxxxxx/FSC Borrowing Base"), with payments and collections from Xxxxxx and
FSC to be deemed (for purposes of determining compliance with this
proviso's requirement) first applied to Revolving Loans before application
to any other Obligations; and
(b) On and subject to the provisions of the Credit Agreement as
modified hereby and provided there is compliance with the proviso set forth
in the immediately preceding clause (a), the Banks will make Borrowings of
Base Rate Loans available to repay Reimbursement Obligations arising from
drawings paid on Letters of Credit and to cover interest due on the Loans
(it being understood that the liability for such Obligations shall not be
impaired to the extent such Loans, pursuant to the terms of the Credit
Agreement as modified hereby, are inadequate or cannot be made).
Any failure by the Borrower to make any payment as and when required by this
Agreement (including any payment required by the Borrowing Base provisions of
the Credit Agreement as modified by this Agreement) shall be deemed an Event of
Default under subsection 9.1(a) of the Credit Agreement entitling the Agent and
the Banks to invoke the rights and remedies available upon the occurrence of
such an Event of Default; and any other noncompliance with any of the terms,
conditions or provisions of this Agreement shall be deemed an Event of Default
under subsection 9.1(c) of the Credit Agreement after notice thereof to the
Borrower in accordance with the terms of the Credit Agreement, in each case
entitling the Agent and the Banks to invoke the rights and remedies available
upon the occurrence of such a Default or Event of Default, as the case may be.
The Defaults and Events of Default arising from any failure to pay as required
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by, or any other noncompliance with, this Agreement are in addition to the
Events of Default currently set forth in the Credit Agreement.
5. Collateral Value. (a) Exteriors' Eligible Accounts. A Standstill
Termination shall be deemed to occur if the unpaid balance of Exteriors'
Eligible Accounts falls below (i) $5,000,000 as of the last day of any calendar
month (commencing November 30, 1999) other than January 31, 2000 or (ii)
$4,000,000 as of January 31, 2000.
(b) Xxxxxx Borrowing Base. Xxxxxx and FSC must not at any time permit the
Revolving Loans then outstanding to exceed the Xxxxxx/FSC Borrowing Base as then
determined and computed. Xxxxxx and FSC shall immediately make such payments as
are necessary to eliminate such excess.
(c) Xxxxxx and FSC Revolving Loan Mechanization. No later than November
19, 1999, the Company shall make such arrangements as shall be necessary or
appropriate to arrange for the administration of the Revolving Loans on the
Agent's asset-based lending system. Under such system, collections on the
accounts receivable of Xxxxxx and FSC will be applied daily in reduction of the
principal of then outstanding Revolving Loans, with new Revolving Loans to be
available under and subject to Section 4(a) hereof.
6. Marquise Collections. Upon repayment of the Existing Marquise
Financing, any and all Net Marquise Collections received in each calendar week
thereafter shall be remitted to the Agent no later than the second Business Day
of the immediately following week for application to the Term Loans (with
application to their installments in inverse order) until paid in full and then
to the remaining Obligations in accordance with Section 3 of the Credit
Agreement. No later than the repayment of the Existing Marquise Financing, each
day's Net Marquise Collections received by Marquise shall immediately be
delivered to the Agent (in the same form as received, together with any
necessary endorsement, if appropriate) for deposit in a deposit account
maintained by Marquise with the Agent for such purpose.
7. Asset Sales. Notwithstanding anything in the Credit Agreement to the
contrary, any and all Net Cash Proceeds from any Disposition or Event of Loss
shall be remitted to the Agent for application in reduction of the Term Loans.
Each such prepayment shall be applied to the remaining installments of the Term
Notes in the inverse order of their maturity.
8. Interest Payments. Xxxxxx and FSC must keep interest current on the
Loans. The Banks will not charge interest at the default rates during the
Standstill Period. However, no more Fixed Rate Loans shall be advanced,
continued or created by conversion, and any Fixed Rate Loans outstanding as of
today's date shall as of the last day of their respective Interest Periods,
automatically be reborrowed as Base Rate Loans.
9. Xxxxxx Sale. The Borrower has represented to the Banks that the
Borrower intends to sell Xxxxxx within the time frame required below and use the
proceeds of such sale to pay, among other things, the Obligations. The Banks'
agreements herein are made in large part in reliance on such representation. A
Standstill Termination shall be deemed to occur if the Borrower or Xxxxxx fail
for any reason to pursue diligently and in good faith such a sale
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(including a failure to diligently analyze any Xxxx Xxxxx Xxxxxx issues that may
arise in the case of any industry buyer) or if any proposed buyer who has
executed a definitive purchase agreement for its acquisition of Xxxxxx shall
fail to diligently and in good faith pursue a closing of such acquisition.
Without limiting the generality of the foregoing, failure to satisfy any of the
following shall constitute a Standstill Termination:
(a) The Borrower has indicated that it will retain within the next
thirty days a reputable investment banking firm with extensive experience
in the appropriate industry to assist the Borrower with its sale of Xxxxxx.
A Standstill Termination will be deemed to occur if no such investment
banker has been retained by November 30, 1999 (or such later date to which
the Borrower and (in their discretion) the Banks mutually agree), or if the
investment banker so retained is not reasonably acceptable to the Banks.
The Borrower shall take all steps reasonably necessary to provide the Agent
and Banks access, upon reasonable request by the Agent, to such investment
banker (without any Loan Party present if the Agent so requests) for
discussions regarding its efforts to consummate such a sale.
(b) No later than January 30, 2000 (or such later date to which the
Borrower and (in their discretion) the Banks mutually agree), the Borrower
and Xxxxxx must have completed assembly of a comprehensive package of
information regarding Xxxxxx for submission as an offering memorandum to
prospective buyers and submitted such package to each of the prospective
buyers (both financial buyers and industry buyers) which the investment
banker has reasonably determined to be a purchaser worth contacting, with a
requirement that bids for the purchase of Xxxxxx are due no later than
March 15, 2000.
(c) No later than April 30, 1999 (or such later date to which the
Borrower and (in their discretion) the Banks mutually agree), the Borrower
must furnish the Banks a copy of a fully executed definitive and binding
purchase agreement for a bona fide sale of Xxxxxx to a third party (which
may condition the closing of the sale of Xxxxxx upon satisfaction of due
diligence and other conditions of a type and scope customarily required by
sophisticated parties to be satisfied in similar sale transactions)
reasonably capable of closing prior to the Scheduled Standstill Termination
Date or such later date as the Borrower and (in their discretion) the Banks
mutually agree, for a consideration in an amount acceptable to the Borrower
and to which the Banks have consented.
9B. Lien on Marquise Assets. Notwithstanding anything contained in the
Credit Agreement to the contrary, no later than November 5, 1999 (whether or not
the Existing Marquise Financing has been paid), Marquise shall grant the Agent a
lien on its Property to secure the Obligations on substantially the same terms
and conditions as the other Collateral Documents and in all events in a manner
satisfactory to the Agent in form and substance (which include without
limitation satisfactory bailee arrangements with First Union).
10. Lien on Xxxxxx Real Estate. Notwithstanding anything contained in the
Credit Agreement to the contrary, (i) no later than November 17, 1999, Xxxxxx
shall have executed and delivered to the Agent (or a security trustee therefor)
a mortgage (or trust deed) to grant to the
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Agent for the benefit of itself and the Banks a Lien on each parcel of real
property owned by Xxxxxx described on Exhibit A hereto to secure the
Obligations, (ii) no later than November 30, 1999, Xxxxxx shall at the expense
of the Loan Parties (other than, during the Standstill Period, Exteriors)
provide to the Agent for each such parcel (except to the extent waived in
writing by the Agent), a survey and commitment for a mortgagee's policy of title
insurance in an amount equal to the value set forth on such Exhibit (or such
lesser amount as may be acceptable to the Agent in its discretion) from a title
insurer reasonably acceptable to the Agent insuring the validity of the relevant
mortgage (or trust deed) and its status as a first Lien (subject to Liens
permitted by the Credit Agreement) on the real property encumbered thereby and
(iii) no later than December 15, 1999, Xxxxxx shall at the expense of the Loan
Parties (other than, during the Standstill Period, Exteriors) provide to the
Agent an environmental report for each such parcel to the extent requested by
the Agent.
11. Sears Licensing Arrangements. The Sears Licensing Agreement must
continue to be governed by the terms and conditions of the November 2, 1999 Term
Sheet currently in effect between and executed by Sears and Exteriors (the
"Sears Term Sheet"). A Standstill Termination shall be deemed to occur if (w) a
definitive binding agreement providing (in form and substance satisfactory to
the Banks) for the Sears Term Sheet has not been executed by Sears and
Exteriors by November 15, 1999 or (x) Exteriors at any time fails to defer
amounts due from Exteriors under the Sears Licensing Agreement as modified by
the Sears Term Sheet, to the maximum extent such deferral is permitted thereby
(Exteriors hereby agreeing that it will take all action as is necessary to defer
the maximum amount possible under the Sears Licensing Agreement as so modified),
(y) Exteriors or Sears breaches any term or condition of the Sears Licensing
Agreement as modified by the Sears Term Sheet (including without limitation
Sears' failure to remit to Exteriors the credit participation fee when so
provided by the Sears Term Sheet) or (z) Sears or Exteriors terminates (whether
with or without cause) the Sears Licensing Agreement as so modified. Each Loan
Party must (in form and substance reasonably acceptable to the Banks) fully
reserve (x) all its rights to assert that neither Sears nor its affiliates have
any right to recoup any monies and otherwise set off in reduction of amounts
Sears and its affiliates owe to any Loan Party, whether under the Sears
Licensing Agreement, on any accounts receivable of any Loan Party or otherwise
(any such right of Sears or any such affiliate being hereafter referred to
collectively as the "Sears Setoff Claims") and to contest any exercise of the
Sears Setoff Claims and (y) all of such Loan Party's other rights, claims and
causes of action with respect to the Sears Setoff Claims. Sears must
acknowledge (in form and substance reasonably acceptable to the Banks) that (x)
neither the Agent nor any Bank waives any of its rights, claims or causes of
action with respect to the Sears Setoff Claims and (y) the Agent and each Bank
fully reserves its right to assert their status as secured creditors of the Loan
Parties with a first priority, perfected lien and security interest (superior to
all other rights and interests) on all Property of the Loan Parties. The Banks
acknowledge and agree that Sears is fully reserving its right to assert any and
all of the Sears Setoff Claims and the Sears Licensing Agreement (as modified by
the Sears Term Sheet) as against the Loan Parties, Banks and Agent.
12. Sears Subordination. Sears has agreed to subordinate its rights to
payment of the License Deferral Amount, in an aggregate amount equal to the
Collateral Diminution, to the prior payment of the Obligations on the following
conditions:
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(a) During the Standstill Period and for so long thereafter as any
Collateral Diminution exists (whether or not bankruptcy or other insolvency
proceedings have been instituted by or against any Loan Party), no Loan
Party shall make any payment or distribution on or otherwise in respect of
the License Deferral Amount, and neither Sears nor its affiliates shall be
entitled to receive or retain any License Deferral Amount, until such time
as the Banks have received for application in reduction of the Obligations,
payments and collections from Exteriors or its Property (not from any other
Loan Party) in an aggregate amount after the Standstill Period equal to the
amount of the Collateral Diminution; and
(b) The foregoing subordination shall not preclude Sears or its
affiliates' collection of amounts due under the License Agreement or
otherwise, other than the License Deferral Amount (it being understood and
agreed, however, that the Bank Group reserves all of its rights and
remedies to contest any use by Sears or any of its affiliates of its
asserted setoff or recoupment rights, or any other right asserted as prior
to the Banks' and Agent's rights, to collect such amounts until the
Obligations have been paid in full).
13. Intercompany Advances. No Loan Party shall, nor shall any Loan Party
permit any of its Subsidiaries to, directly or indirectly, make any investments
in, or any intercompany loans or advances or any other payment to, any other
Loan Party or its Affiliates, except for (i) those investments, loans and
advances that exist as of the date hereof and appropriately reflected on the
Borrower's September 30, 1999 financial statements heretofore submitted to the
Banks, (ii) Exteriors' payment to Kantel (at rates not in excess of Kantel's
actual cost) for services provided to Exteriors by Kantel in the ordinary course
of Kantel's business, (iii) Marquise's payments to reimburse Exteriors for
payroll advanced, and general administrative and overhead expenses incurred, by
Exteriors for Marquise's benefit in the ordinary course of business, (iv)
payments by Xxxxxx and Exteriors to reimburse the Borrower for general
administrative and overhead expenses incurred by the Borrower in the ordinary
course of its business, (v) intercompany advances by the Borrower to Xxxxxx and
FSC of the Revolving Loans permitted by Section 4(a) above, (vi) intercompany
advances by and between Xxxxxx and FSC in the ordinary course of their
respective business, (vii) Exteriors' payment to Marquise of a reasonable
servicing fee in consideration of Marquise's servicing of certain consumer loans
of Exteriors, (viii) Marquise's remittance to Exteriors of collections received
by Marquise on Exteriors' loan assets in connection with the aforesaid servicing
arrangements and (ix) intercompany payables due from Exteriors to Xxxxxx in
compliance with Section 14 hereof.
14. Intercompany Payables between Xxxxxx and Exteriors. Exteriors
purchases inventory and fence installation services from Xxxxxx in the ordinary
course of Exteriors business and such purchases give rise to intercompany
payables due from Exteriors to Xxxxxx. A Standstill Termination shall be deemed
to occur if (x) Exteriors' intercompany payables to Xxxxxx at any one time
outstanding exceed $1,500,000 or (y) Exteriors fails to pay Xxxxxx intercompany
payables on normal payment terms equivalent to those provided to Exteriors'
third party vendors in the ordinary course of Exteriors' business (other than
such payables which are classified as "unreconciled" or "disputed").
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15. Mergers, Sales and Acquisitions. During the Standstill Period, no
Loan Party shall, nor shall any Loan Party permit any of its Subsidiaries,
without the written consent of the Banks, to (i) merge any Subsidiary with and
into the Borrower or any other Subsidiary, (ii) sell, transfer, lease or
otherwise dispose of Property of the Borrower or any Subsidiary (other than
sales of inventory in the ordinary course) or (iii) make any Acquisitions.
16. Financial Performance. A Standstill Termination shall be deemed to
occur if any one of the following occurs:
(a) as determined at the first business day of January, 2000, and at
the first business day of each month thereafter, Exteriors' actual
cumulative installed sales revenues for all fully completed calendar months
commencing on October 1, 1999 (with such months taken together) shall be
less than 90% of the amount projected on a cumulative basis for such months
on Exhibit B hereto; or
(b) the actual cumulative Xxxxx Xxxxxxxx Collections for each fully
completed calendar month commencing on or at any time after November 1,
1999 (with such months taken together) shall be more than 20% less than the
amount projected on a cumulative basis for such months on the Marquise
Budget attached as Exhibit F; or
(c) the actual cumulative EBITDA of Xxxxxx and FSC (with EBITDA
determined on a combined basis for Xxxxxx and FSC, but in any event
increasing such EBITDA by the amount deducted in arriving at such EBITDA
amount in respect of audit charges and appraisal fees due the Agent and
transaction costs associated with this Agreement) for each fully completed
calendar month commencing on or at any time after November 1, 1999 (with
such months taken together) shall be less than the amount set forth for
such period on Exhibit C hereto.
17. Additional Information. The Borrower must furnish the Banks the
following information in addition to that currently required by the Loan
Documents:
(a) as soon as available, and in any event within three Business
Days after the last day of each calendar week (commencing with the week
ending October 29, 1999), a Borrowing Base Certificate showing the
computation of the Borrowing Base for Exteriors as of the close of such
week, together with a report of the License Deferral Amount (both the
License Deferral Amount deferred during such week and the aggregate
cumulative License Deferral Amount deferred on and after the commencement
of the arrangements contemplated by the Sears Licensing Agreement through
the close of such week), all of the foregoing in reasonable detail,
prepared by the Borrower and signed by the chief executive officer or chief
financial officer of Borrower, or another officer of Borrower reasonably
acceptable to the Agent;
(b) as soon as available, and in any event (i) prior to consummation
of the arrangements contemplated by Section 5(c) above, within three
Business Days after the last day of each calendar week (commencing with the
week ending today) and (ii) immediately upon consummation of the
arrangements contemplated by Section 5(c)
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above, no later than noon one Business Day after each Business Day, a
Borrowing Base Certificate showing the computation of the Borrowing Base
for Xxxxxx and FSC combined as of the close of the first such Business Day,
in reasonable detail, prepared by Xxxxxx and signed by the chief executive
officer or chief financial officer of Xxxxxx, or another officer of Xxxxxx
reasonably acceptable to the Agent;
(c) as soon as available, but in any event no later than twenty days
following the close of each calendar month, an income statement on each of
Xxxxxx, FSC, Exteriors and Kantel as at the close of such month and an
income statement and statement of cash flows for such Loan Parties for the
month then ended, prepared in all material respects in accordance with
GAAP, with the statements for Xxxxxx and FSC to show such Loan Parties on
both an individual and consolidated basis and all such statements otherwise
in reasonable detail, and with each such statement signed by the chief
executive officer or chief financial officer of the relevant Loan Party, or
another officer of such Loan Party reasonably acceptable to the Agent;
(d) as soon as available, but in any event no later than the 15th
day of each calendar month, a projection (each, an "eight-week Exteriors
cash projection") of Exteriors' weekly cash receipts and cash uses for the
immediately ensuing two calendar months, in reasonable detail and signed by
the chief executive officer or chief financial officer of Exteriors, or
another officer of Exteriors reasonably acceptable to the Agent;
(e) as soon as available, but in any event no later than the third
Business Day of each calendar week, a report describing the variance
between the actual cash receipts and actual cash uses during the
immediately preceding week for Exteriors and the amounts projected for such
period for Exteriors in the then most recent eight-week Exteriors cash
projection, in reasonable detail, together with an explanation in
reasonable detail of the reasons for such variance, all in reasonable
detail, signed by the chief executive officer or chief financial officer of
Exteriors, or another officer of Exteriors reasonably acceptable to the
Agent;
(f) as soon as available, but in any event no later than the 20th
day of each calendar month, a certificate from each of Exteriors, Marquise,
Xxxxxx and FSC showing a computation of compliance with the requirements
imposed on such Loan Party by Section 16 hereof, in reasonable detail,
signed by the chief executive officer or chief financial officer of the
relevant Loan Party, or another officer of such Loan Party reasonably
acceptable to the Agent;
(g) as soon as available, but in any event no later than the third
Business Day of each calendar week (commencing immediately), a report of
the aggregate amount of balances on deposit, as of the close of the
immediately preceding week, at accounts maintained by the Loan Parties at
banks and other financial institutions as to which blocked account
agreements conforming with the requirements of Section 20 below have not
yet been delivered, in reasonable detail, signed by the chief financial
officer of the Borrower, or another officer of the Borrower reasonably
acceptable to the Agent;
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(h) no later than November 1, 1999, a budget of Marquise's ordinary
and necessary working capital expenses and an accompanying projection of
Marquise's cash receipts, in each case through at least the Scheduled
Standstill Termination Date, such budget and projection to be in reasonable
detail in a format similar to the Marquise Budget already submitted for the
period ending December 31, 1999 (except that such budget need be broken
down on only a month by month basis as opposed to a week by week basis) and
otherwise acceptable to the Agent in form and substance;
(i) as soon as available, but in any event, no later than the 15th
day of each calendar month (commencing December 15, 1999), a budget of
Marquise's ordinary and necessary working capital expenses and an
accompanying projection of Marquise's cash receipts, in each case for the
immediately ensuing two calendar months, such budget and projection to be
in reasonable detail in a format similar to the Marquise Budget already
submitted for the period ending December 31, 1999 and otherwise acceptable
to the Agent in form and substance
(j) no less frequently than once every two calendar weeks, an update
(which may be verbal) summarizing the Loan Parties' progress in locating a
purchaser for Xxxxxx, in reasonable detail acceptable to the Agent and (if
written) signed by the chief executive officer of the Borrower, together
with copies of all written expressions of interest, letters of intent and
draft purchase agreements submitted by prospective buyers; and
(k) as soon as available, but in no event any later than their
submission to Sears, a copy of the financial and other information pursuant
to the Sears Term Sheet, including without limitation: (i) the Business
Plan for Exteriors referenced therein and (ii) each weekly tracking report
of all key drivers; and
(l) promptly upon request of the Agent or any Bank, such other
information regarding the sales of Marquise or Xxxxxx or any other
Disposition as the Agent or such Bank shall reasonably request.
18. Turnaround Consultant. The Borrower shall continue to retain High
Ridge Partners or such other third party consulting firm as the Borrower shall
in its discretion select which is reasonably satisfactory to the Banks to assist
in the conduct of the Borrower's business. The Loan Parties shall take
reasonable steps to assure that representatives of such firm are available for
discussions with the Banks regarding the Loan Parties' financial condition and
prospects (whether or not any member of any Loan Party is present).
19. Green Tree Purchase. The Banks will consent to the Disposition made
by Marquise to Green Tree Financial Servicing Corporation ("Green Tree") of
Property owned by Marquise on the same or substantially the same terms and
conditions as are set forth in the draft of the Green Tree Contract Purchase
Agreement ("Draft Purchase Agreement") faxed from Green Tree to Marquise on
October 4, 1999; provided, however, that (i) such Disposition is made prior to
any Standstill Termination, (ii) such Disposition is for a gross cash
consideration payable entirely at closing to Marquise of not less than 103% of
face principal amount of the Contracts
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(as defined in the Draft Purchase Agreement) and (iii) any guaranty or other
support by the Borrower or any Subsidiary for Marquise's obligations with
respect to such Disposition shall be on terms and conditions no more burdensome
on the Borrower that those set forth in the form of guaranty for such purpose
heretofore approved by the Banks.
20. Proceeds of Collateral. The Borrower shall establish and maintain
such arrangements as shall be necessary or appropriate to assure that the
proceeds of collections on accounts receivable and other Collateral of the Loan
Parties are deposited (in the same form as received) in bank accounts maintained
with, or under the dominion and control of, the Agent, such bank accounts to
constitute special restricted bank accounts, the Loan Parties acknowledging that
the Agent has (and is hereby granted) a lien on such bank accounts and all funds
contained therein to secure the Obligations; provided, however, that such
arrangements need not be made with respect to bank accounts in which the
aggregate balances (in all such bank accounts taken together) at no time exceed
$500,000. If and to the extent that proceeds are deposited and/or maintained in
one or more bank accounts maintained with financial institutions other than the
Agent, the immediately preceding sentence's requirement of dominion and control
shall be satisfied with respect to such deposit accounts only if the financial
institutions maintaining such bank accounts shall have delivered to the Agent
blocked account agreements satisfactory to the Agent in form and substance
pursuant to which such financial institutions acknowledge and agree the Agent's
Lien thereon, waive any right of offset or bankers' liens thereon (other than
with respect to account maintenance charges and returned items) and agree that,
upon notice from the Agent, the collected balances in such bank accounts will
only be transferred to the Agent. The Banks agree with the Borrower that if and
so long as no Standstill Termination has occurred or is continuing, except for
payments and collections from Xxxxxx and FSC to comply with Section 5(b) above
and Net Marquise Collections required to be prepaid pursuant to Section 6 above,
amounts on deposit in such bank accounts of each Loan Party will (subject to the
rules and regulations of the relevant depository as from time to time in effect
applicable to demand deposit accounts) be made available to such Loan Party for
use in the conduct of its business. Upon the occurrence of a Standstill
Termination, the Agent may apply the funds on deposit in such bank accounts in
reduction of the Obligations in accordance with Section 3 of the Credit
Agreement. The acceptance by the Agent and Lenders of the foregoing
arrangements contemplated by this Section does not constitute a waiver of any of
their rights, claims or causes of action with respect to the Sears Setoff
Claims.
21. Standstill Termination. As used in this Agreement, "Standstill
Termination" shall mean the occurrence of the Scheduled Standstill Expiration
Date, or, if earlier, the occurrence of any one or more of the following events:
(a) any Default or Events of Default under the Credit Agreement, in each case
other than the Unwaived Defaults; (b) any failure by the Borrower for any reason
to comply with any term, condition or provision contained in this Agreement; (c)
any representation made in this Agreement or pursuant to it proves to be
incorrect or misleading in any material respect when made; (d) any change shall
occur after October 29, 1999 in the condition or prospects, financial or
otherwise, of the Borrower or any Material Subsidiary, taken as a whole, which
the Agent or Required Banks in good xxxxx xxxx materially adverse; or (e) the
occurrence of any event or the existence of any condition in each case which is
specified herein as a "Standstill Termination". The occurrence of any
Standstill Termination shall be deemed an Event of Default under the Credit
Agreement. Upon the occurrence of a Standstill Termination,
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the Standstill Period is automatically terminated and the Banks are then
permitted and entitled under Sections 7.2, 9.2, 9.3 and 9.4 of the Credit
Agreement, among other things, to permanently terminate the Commitments, to
decline to provide further funding, to require payments on the L/C Obligations,
to accelerate the Obligations and to exercise any other rights and remedies that
may be available under the Loan Documents or applicable law.
22. No Waiver and Reservation of Rights. The Loan Parties acknowledge
that the Banks are not waiving the Unwaived Defaults, but are simply agreeing to
forbear from exercising their rights with respect to the Unwaived Defaults to
the extent expressly set forth in this Agreement. Each Loan Party will not
assert and hereby forever waives any right to assert that the Agent or the Banks
are obligated in any way to continue beyond the Standstill Period to forbear
from enforcing their rights or remedies or that the Agent and the Banks are not
entitled to act on the Unwaived Defaults after the occurrence of a Standstill
Termination as if such default had just occurred and the Standstill Period had
never existed. Each Loan Party acknowledges that the Banks have made no
representations as to what actions, if any, the Banks will take after the
Standstill Period or upon the occurrence of any Standstill Termination, a
Default or Event of Default, and the Banks and the Agent must and do hereby
specifically reserve any and all rights and remedies they have (after giving
effect hereto) with respect to the Existing Defaults and each other Default or
Event of Default that may occur.
23. Release. For value received, including without limitation, the
agreements of the Banks in this letter, each Loan Party hereby releases the
agent and each Bank, its current and former shareholders, directors, officers,
agents, employees and professional advisors (collectively, the "Released
Parties") of and from any and all demands, actions, causes of action, suits,
controversies, acts and omissions, liabilities, and other claims of every kind
or nature whatsoever, both in law and in equity, known or unknown, which each
Loan Party has or ever had against the Released Parties from the beginning of
the world to this date, including, without limitation, those arising out of the
existing financing arrangements between the Banks, and each Loan Party further
acknowledges that, as of the date hereof, it does not have any counterclaim,
set-off or defense against the Released Parties, each of which the Borrower
hereby expressly waives.
24. Loan Documents Remain Effective. Except as expressly set forth in
this Agreement, the Loan Documents and all of the Loan Parties' obligations
thereunder, the rights and benefits of the Agent and Banks thereunder and the
liens and security interests created thereby remain in full force and effect.
Without limiting the foregoing, each Loan Party agrees to comply with all of the
terms, conditions and provisions of the Loan Documents except to the extent such
compliance is irreconcilably inconsistent with the express provisions of this
Agreement. This Agreement and the Loan Documents are intended by the Banks as a
final expression of their agreement and are intended as a complete and exclusive
statement of the terms and conditions of that agreement.
25. Fees and Expenses. No later than November 15, 1999, the Loan Parties
(other than, during the Standstill Period Exteriors) must pay in full all of the
Agent's invoices for field audit, appraisal and legal expenses in connection
with the credit arrangements contemplated by the
-12-
Credit Agreement. The Borrower shall pay all other reasonable fees and expenses
(including attorneys' fees) heretofore incurred by the Banks and their counsel
in connection with the drafting and preparation of the Loan Documents and
incurred by the Banks and their counsel in connection with the drafting and
preparation of this Agreement, and the supervision of legal matters in
connection with this Agreement.
26. Definitions. The following terms shall have the following meanings
herein:
"Collateral Diminution" means the amount (the "Initial Collateral
Diminution Amount"), if any, by which (x) the arithmetic average of the unpaid
balance of Exteriors' Eligible Accounts as of the last Business Day of each of
the last four calendar weeks preceding the date of this Agreement (concluding
with the calendar week within which the date of this Agreement occurs)) exceeds
(y) the arithmetic average (the "Ending Eligible Accounts Balance") of the
unpaid balance of Exteriors' Eligible Accounts as of the last Business Day of
each of the last four calendar weeks preceding the Initial Diminution
Measurement Date (concluding with the calendar week within which the Initial
Diminution Measurement Date occurs); provided that: (1) the Agent shall
determine the Eligible Accounts in the manner required by the Credit Agreement;
(2) the Initial Diminution Measurement Date shall be the date on which the
Standstill Period terminates and shall not be later than June 30, 2000; (3) a
Subsequent Diminution Measurement Date shall occur once every four calendar
weeks after the Initial Diminution Measurement Date; (4) on each Subsequent
Diminution Measurement Date, the amount of the Collateral Diminution shall equal
the amount (if any) by which (A) the Initial Collateral Diminution Amount
exceeds (B) the excess of (i) the then highest arithmetic average of the unpaid
balance of Exterior's Eligible Accounts as of the last Business Day of each of
the last four calendar weeks preceding such Subsequent Diminution Measurement
Date and any prior Subsequent Diminution Measurement Date (including for such
purposes the four calendar weeks concluding with the calendar week within which
any Subsequent Diminution Measurement Date occurs) over (ii) the Ending Eligible
Accounts Balance; and (5) in no event shall the amount of the Collateral
Diminution exceed either the aggregate amount of the License Deferral Amount as
of the Initial Diminution Measurement Date or the Initial Collateral Diminution
Amount.
"Credit Agreement" shall mean that certain Credit Agreement dated as of
April 20, 1998 by and among the Loan Parties, the Agent and the Banks from time
to time party thereto as amended by First, Second and Third Amendments thereto
dated as of August 3, 1998, November 13, 1998, and March 30, 1999, respectively.
"License Deferral Amount" means as of any day, the aggregate amount of
licensing fees due Sears under Section 19 of the Sears Licensing Agreement that
Exteriors had the right to defer by the provisions of the Sears Term Sheet.
"Exteriors Budget" shall mean the budget headed "Projected Operating
Results" attached hereto as Exhibit D hereto.
"Xxxxx Xxxxxxxx Collections" means all payments and collections made on
Marquise's loan assets and all other proceeds of Marquise's Collateral.
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"Marquise Budget" shall mean the budget headed "Weekly Cash Flow" attached
hereto as Exhibit F and each budget for Marquise subsequently provided to the
Agent pursuant to Section 17(h) hereof.
"Net Marquise Collections" means with respect to each calendar week (each,
a "collection week"), all Xxxxx Xxxxxxxx Collections received during such
collection week in excess of the amount then reasonably expected as necessary to
cover Marquise's expenses through the close of the fourth week following such
collection week to the extent such expenses are reflected on the Marquise
Budget.
"Xxxxxx Budget" shall mean the budget attached hereto as Exhibit E hereto.
"Sears" shall mean Sears, Xxxxxxx and Co.
"Sears Licensing Agreement" shall mean that certain License Agreement dated
January 1, 1996, as amended, including the Credit Addendum attached as Exhibit B
thereto by and between Sears and Exteriors, and that certain letter agreement
dated June 30, 1999, each by and between Sears and the Borrower.
All capitalized terms used herein without definition shall have the same
meanings herein as such terms have in the Credit Agreement.
This Agreement shall take effect upon its execution by the Agent and Banks
and its acceptance by the Borrower and the Material Subsidiaries. By their
acceptance hereof, the Borrower and the Material Subsidiaries represent that
they have the necessary power and authority to execute, deliver and perform the
undertakings contained herein and that the same do bind the Borrower and the
Material Subsidiaries hereto. This Agreement shall be governed by Illinois law
and shall be governed and interpreted on the same basis as the Credit Agreement.
-14-
Dated as of October 29, 1999.
Xxxxxx Trust And Savings Bank,
individually and as Agent
By
Its
--------------------------------------------
LaSalle Bank, National Association
By
Its
--------------------------------------------
Bank of America, N.A.
By
Its
--------------------------------------------
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Accepted and agreed to.
Diamond Home Services, Inc.
By
Its
--------------------------------------------
Xxxxxx Southeastern Corporation
By
Its
--------------------------------------------
Foreline Security Corporation
By
Its
--------------------------------------------
Diamond Exteriors, Inc.
By
Its
--------------------------------------------
Marquise Financial Services, Inc.
By
Its
--------------------------------------------
Xxxxxx Southeastern Realty, Inc.
By
Its
--------------------------------------------
Solitaire Heating and Cooling, Inc.
By
Its
--------------------------------------------
-16-
Exhibit A
Address Estimated Value
0000 Xxxxxxx Xxxx $170,000
Xxxxxxxx, XX 00000
000 Xxxx X.X. Xxxxx $273,263
Xxxxxxxxxx, XX 00000
North Kings Road $220,000
Xxxxxxxxxx, XX 00000
0000 Xxxxx Xxxx $281,743
Xxxxxxxxxxxx, XX 00000
0000 Xxxx Xxxxx Xxxx $241,225
Xxxxxxxxx, XX 00000
Laurinburg-Maxton AFB $270,000
Xxxxxxxxxx, XX 00000
0000 00xx Xxxxxx XX $400,000
Xxxxxxxx, XX 00000
0000 Xxxx Xxxxxx $251,489
Xxxxxx, XX 00000
000 Xxxx Xxxxxx $320,516
Jefferson, LA
0000 Xxxxxx Xxxx $227,690
Xxxxxxx, XX 00000-0000
0000 Xxxxxxx Xxxx x000,000
Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxxx x000,000
Xxxx Xxxxx, XX 00000
0000 Xxxxxx Xxxx $3,665,612
Xxxxx, XX 00000
Xxxxxx Field $443,452
Xxxxxxxx Xxxxxx xxx
Xxxxxxxxxx Xxxx
Xxxxx, XX
Exhibit B
Cumulative Exteriors Installed Sales Revenues
in Thousands (000's)
Test Date No Less than Amount Period Covered
01/01/2000 $26,063 10/99 - 12/99
02/01/2000 $33,009 10/99 - 01/00
03/01/2000 $40,935 10/99 - 02/00
04/01/2000 $48,226 10/99 - 03/00
05/01/2000 $56,960 10/99 - 04/00
06/01/2000 $66,914 10/99 - 05/00
Exhibit C
Minimum Required Cumulative Xxxxxx/FSC EBITDA
--------------------------------------------------------------------------------
As of close of the calendar month: Cumulative EBITDA must not be less than:
--------------------------------------------------------------------------------
November $306,028
--------------------------------------------------------------------------------
December $612,309
--------------------------------------------------------------------------------
January '00 $643,854
--------------------------------------------------------------------------------
February $607,799
--------------------------------------------------------------------------------
March $1,550,010
--------------------------------------------------------------------------------
April $2,246,022
--------------------------------------------------------------------------------
May $2,851,661
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-2-
Confidential material in Exhibits D, E and F has been deleted for filing
purposes and omitted pursuant to a request for confidential treatment.
Confidential material has been or will be filed separately. Confidential
material consists of 15 pages.
