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Exhibit 10.2
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
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FLEET RETAIL FINANCE INC.
ADMINISTRATIVE AGENT
COLLATERAL AGENT
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AmSouth Bank
Fleet Retail Finance Inc.
The CIT Group Business Credit, Inc.
FINOVA Capital Corporation
Foothill Capital Corporation
Xxxxxx Financial, Inc.
IBJ Whitehall Business Credit Corporation
Xxxxxxx National Life Insurance Company
LaSalle Business Credit, Inc.
The Provident Bank
WORKING CAPITAL LENDERS
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BACK BAY CAPITAL FUNDING LLC
TERM LENDER
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HOMEPLACE OF AMERICA, INC.
Lead Borrower for
HOMEPLACE OF AMERICA, INC.
HOMEPLACE STORES, INC.
HOMEPLACE STORES TWO, INC.
HOMEPLACE MANAGEMENT, INC.
THE BORROWERS
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September 12, 2000
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This Second Amendment (hereinafter, this "Amendment") is made as of
this 12th day of September, 2000 to that Loan and Security Agreement dated June
15, 1999 (hereinafter, the "Loan Agreement"). (Capitalized terms used herein and
not otherwise defined shall have the meanings as defined in the Loan Agreement).
This Second Amendment is made by and among:
FLEET RETAIL FINANCE INC. formerly known as BankBoston Retail
Finance Inc., a Delaware corporation with its principal executive
offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, as Agent for the
ratable benefit of the "LENDERS" (individually, " LENDER") who are, at
present:
Fleet Retail Finance Inc. formerly known as BankBoston Retail
Finance Inc. (in such capacity, the "ADMINISTRATIVE AGENT") a
Delaware corporation with its principal executive offices at
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, as Administrative
Agent for the ratable benefit of the Working Capital Lenders
and the Term Lender;
and
Fleet Retail Finance Inc. formerly known as BankBoston Retail
Finance Inc. (in such capacity, the "COLLATERAL AGENT"), as
agent for the ratable benefit of the Administrative Agent, the
Working Capital Lenders, and the Term Lender;
and
Back Bay Capital Funding LLC (in such capacity, the "TERM
LENDER"), a limited liability company with offices at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
and
HomePlace of America, Inc., a Delaware corporation with its
principal executive offices at 0000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx
Xxxxxxxx 00000 (in such capacity, the "LEAD BORROWER") as agent for the
following borrowers (individually, " BORROWER" and collectively, the
"BORROWERS"):
HomePlace of America, Inc. (a Delaware corporation
with its principal executive offices at 0000 Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000 );
HomePlace Stores, Inc. (a Delaware corporation with
its principal executive offices at 0000 Xxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxx Xxxxxxxx 00000 );
HomePlace Stores Two, Inc. (a Delaware corporation
with its principal executive offices at 0000 Xxxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxx Xxxxxxxx 00000 ); and
HomePlace Management, Inc. (an Ohio corporation with
its principal executive offices at 0000 Xxxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxx Xxxxxxxx 00000 );
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom.
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BACKGROUND:
On June 15, 1999, the Administrative Agent, the Collateral Agent, the
Working Capital Lenders, the Term Lender, the Lead Borrower, and the Borrowers
entered into the Loan Agreement. On or about May 12, 2000, a First Amendment to
the Loan Agreement was executed. At this time, the Borrowers have requested that
(i) certain amendments be made to the financing terms and conditions of the
Revolving Credit, and (ii) the amount of the Term Loan be increased. The Working
Capital Lenders and the Term Lender are willing to do so, but only upon the
terms and conditions set forth herein.
Accordingly, at this time the Administrative Agent, the Collateral
Agent, the Working Capital Lenders, the Term Lender, the Lead Borrower, and the
Borrowers hereby amend the Loan Agreement and otherwise agree as follows:
1. The definition of "INVENTORY APPRAISAL CAP" on page 14 of the
Loan Agreement is hereby deleted, and the following is
substituted in its place:
"INVENTORY APPRAISAL CAP": Shall mean the specified percentage with
respect to the corresponding period:
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TIME PERIOD PERCENTAGE
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From the closing through 85%
September 15, 2000
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From September 16, 2000 through
December 15, 2000 87.5%
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From December 16, 2000 through 85%
the Maturity Date
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2. The definition of "OVERALL INVENTORY APPRAISAL CAP" on page 18
of the Loan Agreement is hereby deleted, and the following is
inserted in its place:
"OVERALL INVENTORY APPRAISAL CAP": Shall mean the specified percentage
with respect to the corresponding period:
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TIME PERIOD PERCENTAGE
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From the closing through 95%
September 15, 2000
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From September 16, 2000 through
December 15, 2000 96%
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From December 16, 2000 through 92%
the Maturity Date
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3. From and after the effectiveness of this Amendment, the Term
Loan hereby is, and shall be amended to increase the amount of
the Term Loan by $2,000,000.00 to an aggregate total amount of
$17,000,000.00. Upon the execution of this Amendment, the Lead
Borrower and the Borrowers shall execute and deliver to the
term Lender an Amended and Restated Term Note, in the form
annexed hereto marked EXHIBIT "A".
4. The definition of "CURRENT PAY INTEREST MARGIN" in Article 1
of the Loan Agreement is hereby amended by deleting the figure
"12.5% where it appears therein, and by inserting the figure
"13.0%" in its place.
5. The definition of "CURRENT PAY INTEREST PRICING GRID" in
Article 1 of the Loan Agreement is hereby amended by deleting
the figures "12.00%" and "12.50%" where they appear therein,
and by inserting the figures "12.50%" and "13.00%",
respectively, in their place.
6. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Loan Agreement and all of the
other Loan Documents shall remain in full force and effect and
are hereby ratified, confirmed, and reaffirmed.
7. Waiver of Claims. The Lead Borrower and each of the Borrowers
hereby acknowledges and agrees that none of them has any
offsets, defenses, claims, or counterclaims against the
Administrative Agent, the Collateral Agent, the Working
Capital Lenders, or the Term Lender, or their respective
officers, directors, employees, attorneys, representatives,
parents, affiliates, predecessors, successors, or assigns with
respect to the Liabilities, or otherwise, and that if the Lead
Borrower or any of the Borrowers now has, or ever did have,
any offsets, defenses, claims, or counterclaims against the
Administrative Agent, the Collateral Agent, the Working
Capital Lenders, or the Term Lender or their respective
officers, directors, employees, attorneys, representatives,
affiliates, predecessors, successors, or assigns, whether
known or unknown, at law or in equity, from the beginning of
the world through this date and through the time of execution
of this Amendment, all of them are hereby expressly WAIVED,
and the Lead Borrower and each Borrower hereby RELEASES the
Administrative Agent, the Collateral Agent, the Working
Capital Lenders, and the Term Lender and their respective
officers, directors, employees, attorneys, representatives,
affiliates, predecessors, successors, and assigns from any
liability therefor.
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8. Amendment Fee. In consideration of the Working Capital Lenders
entering into this Amendment, upon the execution of this
Amendment the Lead Borrower shall pay to the Administrative
Agent an amendment fee in the amount of $100,000.00. Upon
receipt of the amendment fee, the Administrative Agent shall
distribute to each of the Working Capital Lenders its pro rata
share of the amendment fee.
9. Miscellaneous.
(1) The Lead Borrower and each Borrower shall execute and
deliver to the Administrative Agent and the
Collateral Agent whatever additional documents,
instruments, and agreements that the Administrative
Agent and/or the Collateral Agent may require in
order to give effect to, and implement the terms and
conditions of this Amendment.
(2) This Amendment may be executed in several
counterparts and by each party on a separate
counterpart, each of which when so executed and
delivered shall be an original and all of which
together shall constitute one instrument.
(3) This Amendment expresses the entire understanding of
the parties with respect to the transactions
contemplated hereby. No prior negotiations or
discussions shall limit, modify, or otherwise affect
the provisions hereof.
(4) The Borrower shall pay on demand all reasonable costs
and expenses of the Administrative Agent, the
Collateral Agent, the Working Capital Lenders, and
the Term Lender, including, without limitation,
reasonable attorneys' fees in connection with the
preparation, negotiation, execution, and delivery of
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Loan and Security Agreement by their respective duly authorized officers.
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HOMEPLACE OF AMERICA, INC.
THE LEAD BORROWER
By_______________________________
Print Name:______________________________
Title:______________________________
THE BORROWERS
HOMEPLACE OF AMERICA, INC. HOMEPLACE STORES, INC.
By_________________________________ By_______________________________
Print Name:________________________ Print Name:_______________________________
Title:_____________________________ Title:_______________________________
HOMEPLACE HOLDINGS, INC. HOMEPLACE STORES TWO, INC.
By_________________________________ By_______________________________
Print Name:________________________ Print Name:_______________________________
Title:_____________________________ Title:_______________________________
HOMEPLACE MANAGEMENT, INC.
By_________________________________
Print Name:________________________
Title:_____________________________
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FLEET RETAIL FINANCE INC.
ADMINISTRATIVE AGENT
COLLATERAL AGENT
By_________________________________
Xxxxx X. Xxxx, Vice President
THE WORKING CAPITAL LENDERS
AMSOUTH BANK
By_____________________________
Notice Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax
FLEET RETAIL FINANCE INC.
By_____________________________
Xxxxx X. Xxxx, Vice President
Notice Address:
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Fax
THE CIT GROUP BUSINESS CREDIT, INC.
By_____________________________
Notice Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax
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FINOVA CAPITAL CORPORATION
By_____________________________
Notice Address:
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Fax
FOOTHILL CAPITAL CORPORATION
By_____________________________
Notice Address:
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention:
Fax
XXXXXX FINANCIAL, INC.
By_____________________________
Notice Address:
000 Xxxx 00x Street, 7th Floor
New York, New York 10017
Attention:
Fax
IBJ WHITEHALL BUSINESS CREDIT CORPORATION
By_____________________________
Notice Address:
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax
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XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By_____________________________
Notice Address:
c/o PPM America
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Fax
LASALLE BUSINESS CREDIT, INC.
By_____________________________
Notice Address:
000 Xxxxx XxXxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention:
Fax
THE PROVIDENT BANK
By_____________________________
Notice Address:
Xxx Xxxx Xxxxxx Xxxxxx, 000X
Xxxxxxxxxx, Xxxx 00000
Attention:
Fax
THE TERM LENDER
BACK BAY CAPITAL FUNDING LLC
By_____________________________
Xxxxxxx Xxxxxxx, Managing Director
Notice Address:
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Fax
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