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Exhibit 10.3.15.c
EXECUTION COPY
THIRD AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this "Amendment") is
made and entered into as of this 1st day of June, 2001, by and between D.I.Y.
HOME WAREHOUSE, INC., (the "Borrower"), and NATIONAL CITY COMMERCIAL FINANCE,
INC. (the "Lender").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders which are signatories thereto, National
City Commercial Finance, Inc., as Agent and National City Bank as Letter of
Credit Bank, executed and delivered a Credit and Security Agreement dated as of
October 27, 1998 (the "Original Credit Agreement"), a Waiver and Amendment to
Credit and Security Agreement dated as of November 14, 2000 (the "First
Amendment") and a Second Amendment to Credit and Security Agreement dated April
3, 2001 (the "Second Amendment") (the Original Credit Agreement as amended by
the First Amendment and the Second Amendment is referred to herein as the
"Credit Agreement"); and
WHEREAS, the Borrower has requested the Lender to amend the Credit
Agreement as hereafter set forth, and the Lender is willing to do so on the
terms and conditions hereafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, it is mutually agreed as
follows:
1. DEFINITIONS. Capitalized terms used in this Amendment that are defined
in the Credit Agreement shall have the respective meanings given to them in the
Credit Agreement.
2.1 AMENDMENT TO ANNEX I OF THE CREDIT AGREEMENT. The Revolving Credit
Commitment for National City Commercial Finance, Inc. in the amount of
$20,000,000 and the Total Revolving Credit Commitment in the amount of
$20,000,000 contained in Annex I of the Credit Agreement shall be amended by
reducing each amount to $5,000,000.
2.2 AMENDMENT TO ANNEX II OF THE CREDIT AGREEMENT. Annex II of the Credit
Agreement is hereby amended by amending the definitions of "AVAILABILITY" and
"EBITDA" in their entirety to read as follows:
"AVAILABILITY" means an amount equal to the difference of (i) the
lesser of (A) the Total Revolving Credit Commitment or (B) the then
Borrowing Base, in either case, less an amount equal to the sum of (x) One
Million Dollars ($1,000,000), (y) the aggregate amount of the Standby
Letters of Credit and (z) the amount of the Borrower's rent reserve and
(ii) the then aggregate amount of Outstandings.
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"EBITDA" means for any period of determination, the net income of the
Borrower before deductions for income taxes, Interest Expense,
depreciation, amortization and store closing expenses incurred in
connection with the Borrower's stores located in the cities of Mentor, Ohio
Medina, Ohio and Brook Park (Xxxxxxx Road), Ohio, all as determined in
accordance with GAAP.
2.3 AMENDMENT TO SECTION 8.4(a) OF THE CREDIT AGREEMENT. SECTION 8.4(a) of
the Credit Agreement shall be amended by dealing it in its entirety and
replacing it with the following SECTION 8.4(a):
(a) MINIMUM EBITDA. The Borrower shall not permit its monthly EBITDA
as measured at the end of each of the following months to be less than: (i)
($175,000) for Xxxxx, 0000, (xx) ($325,000) for Xxxxx, 0000, (xxx)
($250,000) for May, 2001, (iv) ($375,000) for June, 2001, (v) ($275,000)
for July, 2001, (vi) ($325,000) for August, 2001, and (vii) ($400,000) for
September, 2001.
3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to
the Lender as follows:
(a) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. Each and every
representation and warranty made by the Borrower in Articles 6 and 7 of the
Credit Agreement is incorporated herein as if fully rewritten herein at
length and is true, correct and complete as of the date hereof(other than
representations and warranties which expressly speak only as of a different
date);
(b) REQUISITE AUTHORITY. The Borrower has all requisite power and
authority to execute and deliver and to perform its obligations in respect
of this Amendment and each and every other agreement, certificate or
document required by this Amendment;
(c) DUE AUTHORIZATION; VALIDITY. The Borrower has taken all necessary
action to authorize the execution, delivery and performance by it of this
Amendment and every other instrument, document and certificate relating
hereto. This Amendment has been duly executed and delivered by the Borrower
and when executed and delivered by the Lender will be a legal, valid and
binding obligation of the Borrower enforceable against it in accordance
with its terms;
(d) NO CONSENT. No consent, approval or authorization of, or
registration with any governmental authority or other Person is required in
connection with the execution, delivery and performance of this Amendment
and the transactions contemplated hereby;
(e) PERFORMANCE. The Borrower has performed and complied with all of
the agreements and conditions contained in the Credit Agreement and this
Amendment required to be performed or complied with by it as of the date
hereof;
(f) NO DEFAULTS. There will exist no Potential Default or Event of
Default under the Credit Agreement; and
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(g) SECURITY INTERESTS. The Borrower confirms that the Borrower's
obligations under the Credit Agreement, continue to be secured by the
security interest granted by the Borrower in favor of the Agent for the
benefit of the Lenders and that such security interest continues to be
perfected and to have the priority required under the Credit Agreement.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. The obligation of the
Lender to enter into this Amendment shall be subject to the Borrower's
satisfaction of the following conditions:
(a) On or before the date of this Amendment, the Lender shall have
received a counterpart of this Amendment duly executed by the Borrower; and
(b) On or before the date of this Amendment, the Lender shall have
received such other certificates, opinions, agreements and documents as it
shall reasonably request.
5. NO WAIVER. The execution and delivery of this Amendment by the Lender
shall not constitute a waiver or release of any obligation or liability of the
Borrower under the Credit Agreement as in effect prior to the effectiveness of
this Amendment or as amended hereby or release of any Event of Default or
Possible Default existing at any time.
6. EXPENSES. The Borrower shall reimburse the Lender for all costs and
expenses incurred by it in the preparation, negotiation and execution of this
Amendment including, without limitation, the legal fees and out-of-pocket
expenses of Xxxxxxxx Xxxx LLP.
7. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this
Amendment, all provisions of the Credit Agreement continue unchanged and in fill
force and effect and are hereby confirmed and ratified. All provisions of the
Credit Agreement shall be applicable to this Amendment.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same document.
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IN WITNESS WHEREOF, the parties hereto, each by an officer thereunto duly
authorized, have caused this Third Amendment to Credit and Security Agreement to
be executed and delivered as of the date first above written.
D.I.Y. HOME WAREHOUSE, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxx
Its: President & CEO
NATIONAL CITY COMMERCIAL FINANCE,
INC. as Agent and Lender
By:
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Name:
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Its:
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Signature page to Third Amendment to Credit and Security Agreement
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IN WITNESS WHEREOF, the parties hereto, each by an officer thereunto duly
authorized, have caused this Third Amendment to Credit and Security Agreement to
be executed and delivered as of the date first above written.
D.I.Y. HOME WAREHOUSE, INC.
By:
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Name: Xxxxxxxx X. Xxxxxxxx
Its: President & CEO
NATIONAL CITY COMMERCIAL FINANCE,
INC. as Agent and Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: AVP
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Signature page to Third Amendment to Credit and Security Agreement
