EXHIBIT 10.17
NINTH AMENDMENT TO AMENDMENT AND RESTATEMENT OF
CREDIT AGREEMENT
THIS NINTH AMENDMENT TO AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this
"Amendment") dated effective as of April 30, 2004 (the "Effective Date") is by
and between HANDY HARDWARE WHOLESALE, INC. ("Borrower") and JPMORGAN CHASE BANK
("Bank").
PRELIMINARY STATEMENT. Bank and Borrower are parties to an Amendment and
Restatement of Credit Agreement dated as of April 30, 1996, as amended by a
First Amendment dated as of April 30, 1997, a Second Amendment dated as of April
30, 1998, a Third Amendment dated as of April 30, 1999, a Fourth Amendment dated
as of April 30, 2000, a Fifth Amendment dated as of April 30, 2001, a Sixth
Amendment dated as of April 30, 2002, a Seventh Amendment dated as of April 30,
2003 and an Eighth Amendment dated as of August 1, 2003 ("Credit Agreement").
All capitalized terms defined in the Credit Agreement and not otherwise defined
in this Amendment shall have the same meanings in this Amendment as in the
Credit Agreement. Bank and Borrower have agreed to amend the Credit Agreement to
the extent set forth herein in order to, among other things, extend the
Termination Date of the Commitment.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, Bank and Borrower hereby agree as follows:
Section 1. Section 1.1 of the Credit Agreement is amended by substituting the
following for Section 1.1 of the Credit Agreement:
"Revolving Credit Note 1.1 Subject to the terms and conditions hereof,
Bank agrees to make loans ("Loan" or "Loans") to Borrower from time to
time before the Termination Date, not to exceed at any one time
outstanding $10,000,000.00 (the "Commitment"). Borrower has the right
to borrow, repay and reborrow. Each Loan must be at least the minimum
amount required in the Note or the balance of the Commitment,
whichever is less, and each repayment must be at least the amount
required in the Note or the principal balance of the Note, whichever
is less. The Loans may only be used for capital expenditures and
working capital. Chapter 346 of the Texas Finance Code will not apply
to this Agreement, the Note or any Loan. The Loans will be evidenced
by, will bear interest and will be payable as provided in the
promissory note of Borrower dated April 30, 2004 (together with any
renewals, modifications and replacements thereof, the "Note"), which
is given in renewal, modification and replacement of that certain
promissory note dated August1, 2003 in the original principal amount
of $10,000,000.00 maturing on April 30, 2005. "Termination Date" means
the earlier of: (a) April 30, 2006; or (b) the date specified by Bank
pursuant to Section 6.1 hereof of this Agreement."
Section 2. The minimum Tangible Net Worth covenant is revised as set forth in
the Exhibit B attached to this Amendment and incorporated by reference into this
Amendment and the Credit Agreement in replacement of the Exhibit B attached to
the Credit Agreement.
Section 3. Borrower hereby represents and warrants to Bank that after giving
effect to the execution and delivery of this Amendment: (a) the representations
and warranties set forth in the Credit Agreement are true and correct on the
Effective Date as though made on and as of such date; and (b) to the best of the
undersigned's knowledge after reasonable investigation performed in good faith,
no default or Event of Default has occurred under the Agreement and is
continuing as of the Effective Date.
Section 4. This Amendment shall become effective as of the Effective Date upon
its execution and delivery by each of the parties named in the signature lines
below. The term "Agreement", as used in the Credit Agreement, shall also refer
to the Credit Agreement as amended by this Amendment.
Section 5. Borrower further acknowledges that each of the other Loan Documents
is in all other respects ratified and confirmed, and all of the rights, powers
and privileges created thereby or thereunder are ratified, extended, carried
forward and remain in full force and effect except as the Credit Agreement is
amended by this Amendment.
Section 6. This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
Section 7. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
Page 1 of 2
Section 8. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS AND AS APPLICABLE, THE LAWS OF THE UNITED STATES
OF AMERICA.
THIS WRITTEN AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN BANK AND THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF BANK AND THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed effective as of the Effective Date.
BORROWER: HANDY HARDWARE WHOLESALE, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President, CFO
Address: 0000 Xxxxxxxx Xx., Xxxxxxx, Xxxxx 00000
BANK: JPMORGAN CHASE BANK
By: /s/ Xxxxxx Xxxxxx, Jr.
-----------------------------------------------
Name: Xxxxxx Xxxxxx, Jr.
Title: Vice President
Address: 000 Xxxxxx, Xxxxxxx, Xxxxx 00000
Page 2 of 2
EXHIBIT B to Amendment and Restatement of Credit Agreement between
Handy Hardware Wholesale, Inc. ("Borrower") and
JPMorgan Chase Bank ("Bank")
dated April 30, 1996 (as amended, restated and supplemented from
time to time, the "Agreement").
REPORTING REQUIREMENTS, FINANCIAL COVENANTS AND
COMPLIANCE CERTIFICATE FOR CURRENT REPORTING PERIOD
ENDING _______________, ___ ("END DATE")
A. REPORTING PERIOD. THIS EXHIBIT WILL BE IN PROPER FORM AND SUBMITTED WITHIN
30 DAYS OF THE END OF EACH CALENDAR QUARTER. BORROWER'S FISCAL YEAR ENDS ON
___________________, ______.
B. FINANCIAL REPORTING. Borrower will provide the following financial
information within the times indicated:
COMPLIANCE
CERTIFICATE
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Compliance
(Circle)
WHO WHEN DUE WGAT Yes No
---------------------- ------------------------------------------- ----------------------------------------------- ----------
BORROWER (i) Within 90 days of fiscal year end Financial Statements (balance sheet, Yes No
income statement, cash flow statement)
Audited (with unqualified opinion) by
independent certified public accountants
reasonably satisfactory to Bank,
accompanied by Compliance Certificate
(ii) Within 30 days of each calendar Unaudited Financial Statements Yes No
quarter end, excluding final period accompanied by Compliance Certificate
of fiscal year and accounts receivable aging
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C. FINANCIAL COVENANT. Borrower will comply with the COMPLIANCE CERTIFICATE COMPLIANCE CERTIFICATE
following financial covenant, defined in accordance with GAAP and the ----------------------
definitions in Section 8, and incorporating the calculation adjustments
indicated on the Compliance Certificate:
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Compliance
REQUIRED ACTUAL REPORTED (Circle)
-------- --------------- Yes No
Except as specified otherwise, the covenant will be maintained For Current Reporting Periods
at all times and reported for each Reporting Period or as of each of the End Date
Reporting Period End Date, as appropriate:
--------------------------------------------------------------------------------------------------------------------- ------------
1. Maintain a Tangible Net Worth as adjusted in an amount Stockholders' Equity $__________ Yes No
no less than $1,500,000.00 less than the Borrower's Minus: Goodwill $__________
actual Tangible Net Worth at each December 31. (The Other Intangible Assets $__________
Bank has discretion to adjust the Minimum Tangible Net Loans/Advances to
Worth at any time on an annual basis for each calendar Equity holders $__________
year by notice to Borrower.) For fiscal year 2004, the Loans to Affiliates $__________
required Minimum Tangible Net Worth as adjusted is at Capitalized Interest $__________
least $23,945,000.00. Equals: Tangible Net Worth
as adjusted $__________
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THE ABOVE SUMMARY REPRESENTS SOME OF THE COVENANTS AND AGREEMENTS CONTAINED IN
THE AGREEMENT AND DOES NOT IN ANY WAY RESTRICT OR MODIFY THE TERMS AND
CONDITIONS OF THE AGREEMENT. IN CASE OF CONFLICT BETWEEN THIS EXHIBIT B AND THE
AGREEMENT, THE AGREEMENT SHALL CONTROL.
The undersigned hereby certifies that the above information and computations are
materially true and correct and not misleading as of the date hereof, and that
since the date of the Borrower's most recent Compliance Certificate (if any):
|_| To the best of the undersigned's knowledge after reasonable
investigation performed in good faith, no default or Event of Default
has occurred under the Agreement during the current Reporting Period,
or been discovered from a prior period, and not reported.
|_| A default or Event of Default (as described below) has occurred during
the current Reporting Period or has been discovered from a prior
period and is being reported for the first time and:
|_| was cured on ______.
|_| was waived by Bank in writing on ______.
|_| is continuing.
Description of Event of Default:_________________________________________
_________________________________________________________________________
Executed this _________ day of _______________________________, ______.
BORROWER: HANDY HARDWARE WHOLESALE, INC.
SIGNATURE:____________________________________________________________________
NAME: Xxxx Xxxxxx
TITLE: Exeutive Vice President and CFO- Finance
ADDRESS: 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000
