EXHIBIT 10.14
FIFTH AMENDMENT TO AMENDMENT AND RESTATEMENT OF
CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this
"Amendment")dated effective as of April 30, 2001 (the "Effective Date"), is by
and between HANDY HARDWARE WHOLESALE, INC. ("Borrower"), and THE CHASE MANHATTAN
BANK, successor by merger the Chase Bank of Texas, National Association
("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 and a Fourth Amendment
dated as of April 30, 2000 ("Credit Agreement"). All capitalized terms defined
in the Credit Agreement and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement. Bank and Borrower have agreed to
amend the Credit Agreement to the extent set forth herein, and in order to,
among other things, renew 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. Revolving Credit Note. Section 1.1 of the Credit Agreement is amended
by substituting the following for the Section 1.1 of the Credit Agreement:
"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 be payable as provided in, the promissory note of
Borrower dated April 30, 2001 (together with any and all renewals,
extensions, modifications and replacements thereof and substitutions
therefor, the "Note"), which is given in renewal, modification and increase
of that certain promissory note dated April 30, 2000 in the original
principal amount of $7,500,000.00 (including all prior notes of which said
note represents a renewal, extension, modification, increase, substitution,
rearrangement or replacement thereof, the "Renewed Note"). "Termination
Date" means the earlier of: (a) April 30, 2003; or (b) the date specified
by Bank pursuant to Section 6.1 hereof of this Agreement."
Section 2. Exhibit A of the Credit Agreement is hereby amended by replacing
prior Exhibit A with the attached Exhibit A incorporated into this Amendment and
the Credit Agreement for all purposes.
Section 3. Exhibit B of the Credit Agreement is hereby amended by replacing
prior Exhibit B with the attached Exhibit B incorporated into this Amendment and
the Credit Agreement for all purposes.
Section 4. 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 5. 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 6. 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 7. 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 8. This Amendment shall be included within the definition of "Loan
Documents" as used in the Agreement.
Section 9. 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 CONSTITUTE A "LOAN
AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS BUSINESS & COMMERCE CODE,
AND REPRESENTS 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/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
Address: 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
BANK: THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx Xxxxxx, Jr.
-----------------------------------
Name: Xxxxxx Xxxxxx, Jr.
Title: Senior Vice President
Address: 0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
