Exhibit 10.1
TENTH AMENDMENT TO
AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
THIS TENTH AMENDMENT TO AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this
"Amendment") dated effective as of April 30, 2005 (the "Effective Date") is by
and between HANDY HARDWARE WHOLESALE, INC. ("Borrower") and JPMORGAN CHASE BANK,
N.A., formerly known as 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, an Eighth Amendment dated as of August 1, 2003 and a Ninth Amendment dated
as of April 30, 2004 ("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
renew the Commitment, to modify certain reporting requirements and to modify the
minimum Tangible Net Worth covenant.
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 and restated in its
entirety to read as follows:
"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
revolving promissory note dated April 30, 2005 executed by Borrower
and payable to the order of Bank in the principal amount of
$10,000,000.00 on or before August 1, 2007 (together with any
renewals, modifications and replacements thereof, the "Note"). The
Note is given in renewal and modification of the revolving promissory
note dated April 30, 2004 executed by Borrower and payable to the
order of Bank in the principal amount of $10,000,000.00 on or before
April 30, 2006. "Termination Date" means the earlier of: (a) April 30,
2007; or (b) the date specified by Bank pursuant to Section 6.1 hereof
of this Agreement."
Section 2. Exhibit B attached to the Credit Agreement is amended and replaced by
the Exhibit B attached to this Amendment and incorporated by reference into this
Amendment and the Credit Agreement for all purposes.
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.
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/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: President
BANK: JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx Xxxxxx, Jr.
--------------------------------
Name: Xxxxxx Xxxxxx, Jr.
Title: Senior Vice President
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
45 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 45 days of each calendar Unaudited Financial Statements Yes No
quarter end, excluding final period accompanied by Compliance Certificate
of fiscal year
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C. FINANCIAL COVENANT. Borrower will comply with the following financial COMPLIANCE CERTIFICATE
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 Period/
at all times and reported for each Reporting Period or as of each as 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 2005, the Loans to Affiliates $__________
required Minimum Tangible Net Worth as adjusted is at Capitalized Interest $__________
least $25,270,900.00. 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
