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EXHIBIT 10.2
THIRD AMENDMENT TO LOAN AND CO-LENDER AGREEMENT
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THIRD AMENDMENT TO
LOAN AND CO-LENDER CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO LOAN AND CO-LENDER CREDIT AGREEMENT
("Amendment") is made as of the 24th day of October, 1997, among D.I.Y. HOME
WAREHOUSE, INC., an Ohio corporation, with its principal place of business
located at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxx 00000 (the "Borrower"),
as borrower, NATIONAL CITY BANK OF COLUMBUS, formerly known as National City
Bank, Columbus, a national banking association, with its principal office
located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 ("NCBC"), and OLD KENT
BANK, f/k/a Old Kent Bank and Trust Company, a Michigan banking corporation,
with its principal office located at Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx,
Xxxxxxxx 00000 ("Old Kent"), as lenders, (NCBC and Old Kent each herein,
separately, called a "Bank" and, collectively, called the "Banks"), and NCBC, as
agent for itself and Old Kent (the "Agent").
RECITALS
A. The Banks and the Borrower have entered into a certain Loan and
Co-Lender Credit Agreement dated as of December 23, 1994, as amended by the
First Amendment to Loan and Co-Lender Credit Agreement dated as of December 22,
1995, and as amended by the Second Amendment to Loan and Co-Lender Credit
Agreement dated as of December 23, 1996 (collectively, the "Loan Agreement"),
pursuant to which the Banks have loaned to the Borrower an aggregate amount not
to exceed Nine Million Dollars ($9,000,000.00) ("Loan").
B. The Loan is evidenced by two (2) Mortgage Notes dated December 23,
1994, by the Borrower to each of NCBC and Old Kent, each in the original
principal amount of Four Million Five Hundred Thousand Dollars ($4,500,000.00)
(collectively, the "Mortgage Notes").
C. The Banks and the Borrower have agreed to certain amendments with
respect to the Loan.
NOW, THEREFORE, for and in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Banks agree as follows:
1. MINIMUM TANGIBLE NET WORTH. Section 7.3 of the Loan Agreement is
deleted in its entirety and the following inserted in lieu thereof:
7.3 MINIMUM TANGIBLE NET WORTH. Permit its tangible net worth
to be less than $33,500,000.00 plus the sum of all Net Income
Adjustments as calculated quarterly commencing with the third quarter
of fiscal year 1997. As used herein, "Net Income Adjustment" shall mean
an amount equal to fifty percent (50%) of the Borrower's net income as
measured at the end of each fiscal quarter commencing with the third
quarter of fiscal year 1997. For purposes of this Agreement, losses
shall be
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considered zero (0) net income for the determination of a change in
the required minimum tangible net worth and tangible net worth shall
be defined as shareholders' equity minus intangible assets such as
goodwill, Restricted Investments, capitalized loan fees, underwriters'
discounts, non-compete agreements and deferred costs.
2. CAPITAL EXPENDITURES. Section 7.4 of the Loan Agreement is deleted
in its entirety and the following inserted in lieu thereof:
7.4 CAPITAL EXPENDITURES. Make capital expenditures for real
estate, machinery, equipment, vehicles, furniture, fixtures, leasehold
improvements or any other fixed assets in an aggregate amount greater
than Eleven Million Dollars ($11,000,000.00) during any one (1) fiscal
year commencing with fiscal year 1997. No unused portion of any capital
expenditure allowance provided for in this Section 7.4 for any fiscal
year shall be available to the Borrower for use in any subsequent
fiscal year.
3. RATIFICATION AND CERTIFICATION AS TO REPRESENTATIONS AND WARRANTIES.
The Loan Agreement is in all respects ratified and confirmed by the parties
hereto, and the Loan Agreement and this Amendment shall be read, taken and
construed as one and the same instrument. Except as modified herein, the Loan
Agreement remains unchanged and in full force and effect. Except as otherwise
defined herein, all capitalized terms shall have the meanings ascribed to them
in the Loan Agreement. The Borrower hereby acknowledges and certifies that all
other representations and warranties made in the Loan Agreement continue to be
true and correct as of the date hereof and that there are no defaults existing
under the covenants or other terms of the Loan Agreement. The Borrower hereby
ratifies and confirms the Borrower's obligations and all liability to the Banks
under the terms and conditions of the Loan Agreement and the Mortgage Notes, and
acknowledges that the Borrower has no defenses to or rights of setoff against
the Borrower's obligations and all liability to the Banks thereunder. The
Borrower hereby further acknowledges that the Banks have performed all of the
Banks' obligations to date under the Loan Agreement.
4. REFERENCES TO LOAN AGREEMENT. All references in each of the Mortgage
Notes to the Loan Agreement shall mean and refer to the Loan Agreement, as
amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by each in manner and form sufficient to bind them and duly authorized
in the premises as of the day and year first above written.
NATIONAL CITY BANK OF COLUMBUS, D.I.Y. HOME WAREHOUSE, INC.
formerly known as National City
Bank, Columbus
By: /s/ Xxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxxxx X. Xxxxxx
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Its: Assistant Vice President Its: Vice President
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OLD KENT BANK NATIONAL CITY BANK OF
COLUMBUS, formerly known as National
City Bank, Columbus, as Agent
By: /s/ Xxxxxxx X'Xxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Its: Vice President Its: Assistant Vice President
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