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Exhibit 10.3.15.b
EXECUTION COPY
SECOND AMENDMENT TO
CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this "Amendment")
is made and entered into as of this 3rd day of April, 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") and a Waiver and Amendment
to Credit and Security Agreement dated as of November 14, 2000 (the "First
Amendment") (the Original Credit Agreement as amended by the First 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. AMENDMENTS. The definition of "AVAILABILITY" contained in Annex II of
the Credit Agreement shall be amended by deleting it in its entirety and
replacing it with the following:
"AVAILABILITY" means, (a) at any time on or prior to April 13, 2001,
an amount equal to the difference of: (i) the lesser of (A) the Total
Revolving Credit Commitment or (B) the then Borrowing Base and (ii) the
then aggregate amount of Outstandings; and (b) at any time after April 13,
2001, an amount equal to the difference of: (i) the lesser of (A) the Total
Revolving Credit Commitment or (B) twenty percent (20%) of the then
Borrowing Base and (ii) the then aggregate amount of Outstandings.
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);
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(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
(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 & Xxxxx LLP.
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7. EFFECT ON OTHER PROVISIONS. Except as expressly amended by this
Amendment, all provisions of the Credit Agreement continue unchanged and in full
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 Second 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: Assistant Vice President
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Signature page to Second 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 Second 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 Second Amendment to Credit and Security Agreement
