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EXHIBIT 10.52
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SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
--------------------------
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
("Amendment") is made as of the 23 day of December, 1996, among
D.I.Y. HOME WAREHOUSE, INC., an Ohio corporation, with its principal place of
business located at 5811 Canal Road, Suite 180, Valley View, Ohio 44125 (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 155 East Broad Street, Columbus, Ohio 43251 ("NCBC"), and OLD
KENT BANK, f/k/a Old Kent Bank and Trust Company, a Michigan banking
corporation, with its principal office located at One Vandenberg Center, Grand
Rapids, Michigan 49503 ("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 Revolving
Credit Agreement dated December 7, 1994, as amended by the First Amendment to
Revolving Credit Agreement dated as of December 22, 1995 (collectively, the
"Loan Agreement"), pursuant to which the Banks have agreed to loan to the
Borrower on a revolving credit basis ("Loan") an aggregate amount not to exceed
Twenty-Three Million Dollars ($23,000,000.00).
B. The Loan is evidenced by two (2) Amended and Restated Revolving
Notes dated December 22, 1995, by the Borrower to each of NCBC and Old Kent,
each in the principal amount of Ten Million Dollars ($10,000,000.00) and two (2)
Amended and Restated Revolving Notes dated December 22, 1995, by the Borrower to
each of NCBC and Old Kent, each in the principal amount of One Million Five
Hundred Thousand Dollars ($1,500,000.00) (collectively, the "Revolving Credit
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. ACKNOWLEDGMENT OF EXTENSION OF MATURITY. The Borrower and the Banks
hereby acknowledge that, pursuant to the terms of the Loan Agreement, the
Original Commitment Maturity Date has been extended to January 1, 2000, and the
Supplemental Commitment Maturity Date has been extended to December 1, 1997. The
Original Commitment Maturity Date and the Supplemental Commitment Maturity Date
may be further extended pursuant to the terms of the Loan Agreement as provided
for therein.
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2. DEFINITIONS.
The following shall be added to the defined terms contained in Section
1.1 of the Loan Agreement:
"Documentary Letter of Credit Outstandings" shall mean at any
time the sum of (i) the aggregate undrawn face amount of outstanding
Documentary Letters of Credit and (ii) without duplication, the
aggregate amount of all unpaid and outstanding Reimbursement
Obligations relating to Documentary Letters of Credit.
"Standby Letter of Credit Outstandings" shall mean at any time
the sum of (i) the aggregate undrawn face amount of outstanding Standby
Letters of Credit and (ii) without duplication, the aggregate amount of
all unpaid and outstanding Reimbursement Obligations relating to
Standby Letters of Credit.
3. INTEREST RATES.
(a) The first sentence of Section 2.4(a) of the Loan Agreement
is modified to provide that each Prime Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Loan is made until it is repaid, at a rate per annum equal to the sum
of the Prime Rate for each such day PLUS the number of basis points set
forth in the pricing schedule contained in subsection (d) below, based
on the Fixed Charge Coverage Ratio (as hereinafter defined) of the
Borrower determined as set forth in subsection (d) below.
(b) The first sentence of Section 2.4(b) of the Loan Agreement
is modified to provide that each CD Loan shall bear interest on the
outstanding principal amount thereof, from the date such Loan is made
until the final day of the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Adjusted CD Rate applicable to
such Interest Period PLUS the number of basis points set forth in the
pricing schedule contained in subsection (d) below, based on the Fixed
Charge Coverage Ratio of the Borrower determined as set forth in
subsection (d) below.
(c) The first sentence of Section 2.4(c) of the Loan Agreement
is modified to provide that each Euro-Dollar Loan shall bear interest
on the outstanding principal amount thereof, from the date such Loan is
made until the final day of the Interest Period applicable thereto, at
a rate per annum equal to the sum of the London Interbank Offered Rate
(LIBOR) applicable to such Interest Period PLUS the number of basis
points set forth in the pricing schedule contained in subsection (d)
below, based on the Fixed Charge Coverage Ratio of the Borrower
determined as set forth in subsection (d) below.
(d) For the purposes of determining the pricing of any Prime
Loan, Euro-Dollar Loan and/or CD Loan, the Fixed Charge Coverage Ratio
of the Borrower at the date such Loan is made shall be deemed to be the
fixed charge coverage ratio as shown
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on the compliance certificate last delivered to the Banks. Any change
in the Fixed Charge Coverage Ratio shall be effective sixty (60) days
after the end of the fiscal quarter during which such change occurs;
provided, however, that if the compliance certificate evidencing the
computation of the Fixed Charge Coverage Ratio is not delivered on a
date that is on or before sixty (60) days after the end of a fiscal
quarter, the interest rate on any Loan made between, and the interest
rate on any CD Loan or Euro-Dollar Loan the Interest Period for which
commences between, the date that is sixty (60) days after the end of
such fiscal quarter and the date on which such compliance certificate
is delivered to the Banks shall be determined as if the Fixed Charge
Coverage Ratio during such period were 1.40x less than or equal to
1.49x; provided, further, that any change in the Fixed Charge Coverage
Ratio shall affect only (i) Loans made subsequent to such date and (ii)
the interest rate on any CD Loan or Euro-Dollar Loan the Interest
Period for which commences subsequent to such date.
The pricing schedule is as follows:
=============================================================================================================================
Pricing Options
- -----------------------------------------------------------------------------------------------------------------------------
Fixed Charge Ratio Prime LIBOR CD Rate
(Euro-Dollar)
- -----------------------------------------------------------------------------------------------------------------------------
greater than or equal to 1.95x +0 bp +125 bp +137.5 bp
- -----------------------------------------------------------------------------------------------------------------------------
1.75x less than or equal to 1.94x +0 bp +145 bp +157.5 bp
- -----------------------------------------------------------------------------------------------------------------------------
1.50x less than or equal to 1.74x +35 bp +160 bp +172.5 bp
- -----------------------------------------------------------------------------------------------------------------------------
1.40x less than or equal to 1.49x +45 bp +170 bp +182.5 bp
=============================================================================================================================
<FN>
bp = basis points
4. LETTERS OF CREDIT. The following language is added to the Loan
Agreement as Section 2.13:
2.13 LETTERS OF CREDIT.
(a) The Borrower may request the issuance of (or modification
of any issued) commercial letters of credit in connection with the
Borrower's purchase of goods and services (each a "Documentary Letter
of Credit") and standby letters of credit for the benefit of any third
person in support of obligations of the Borrower (each a "Standby
Letter of Credit" and together with Documentary Letters of Credit
referred to as "Letters of Credit" in the aggregate or individually as
a "Letter of Credit") on its behalf by delivering by no later than
10:00 a.m., Columbus, Ohio time, two (2) Domestic Business Days prior
to the requested date
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of issuance of such Letter of Credit to the Agent a written notice
specifying the proposed beneficiary, date of issuance and expiry date
for such Letter of Credit or modification to an existing Letter of
Credit and the nature of the transactions to be supported thereby (a
"Letter of Credit Notice"). Upon the receipt of a Letter of Credit
Notice, the Agent shall promptly notify each Bank in writing, or orally
and promptly confirmed in writing, of the contents thereof and such
Letter of Credit Notice shall not thereafter be revocable by the
Borrower. Subject to the terms and conditions hereof and to the
execution of a completed application and agreement for letters of
credit in such form as NCBC may specify from time to time, NCBC will
issue a Letter of Credit provided that each Letter of Credit shall (i)
have a maximum maturity of 364 days from the date of issuance, (ii) in
no event expire later than five (5) Domestic Business Days prior to the
Original Commitment Maturity Date and provided further that in no event
shall (a) the Documentary Letter of Credit Outstandings exceed, at any
one time, $4,000,000 or (b) the Standby Letter of Credit Outstandings
exceed, at any one time, $500,000 and (c) the sum of the Documentary
Letter of Credit Outstandings plus the Standby Letter of Credit
Outstandings plus the sum of all outstanding Loans made pursuant to the
Original Commitment exceed, at any one time, $20,000,000. In the event
of any conflict between the terms of this Agreement and the terms of
NCBC's application and agreement for letters of credit, the terms of
this Agreement shall control (provided that terms of NCBC's application
and agreement for letters of credit which are in addition to those
contained herein and which do not expressly conflict with the terms
contained herein shall not be deemed to be in conflict with this
Agreement).
(b) Immediately upon issuance of each Letter of Credit, and
without further action, Old Kent shall be deemed to, and hereby agrees
that it shall, have irrevocably purchased for Old Kent's own account
and risk from NCBC an individual participation interest in such Letter
of Credit and drawings thereunder in an amount equal to fifty percent
(50%) of the maximum amount which is or at any time may become
available to be drawn thereunder, and Old Kent shall be responsible to
reimburse NCBC immediately for its share of any disbursement under any
Letter of Credit which has not been reimbursed by the Borrower in
accordance with subsection (e) hereof by making its share of the Prime
Loans referred to in subsection (e) available to NCBC. Upon the
issuance of a Letter of Credit and upon request of Old Kent, NCBC shall
notify Old Kent of the amount of issued Letters of Credit.
(c) The Borrower shall pay to the Agent (i) fees ("Documentary
Letters of Credit Fees") with respect to Documentary Letters of Credit
in the amount of 0.25% per annum times the average daily Documentary
Letter of Credit Outstandings and (ii) fees ("Standby Letters of Credit
Fees") with respect to Standby Letters of Credit, in the amount of
1.00% per annum times the average daily Standby Letter of Credit
Outstandings. The Agent shall pay to NCBC one
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hundred percent (100%) of the Documentary Letters of Credit Fees and
fifty percent (50%) of the Standby Letters of Credit Fees and shall pay
to Old Kent fifty percent (50%) of the Standby Letters of Credit Fees.
All Documentary Letters of Credit Fees and Standby Letters of Credit
Fees (collectively, "Letters of Credit Fees") shall be computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed and shall be payable quarterly in arrears commencing with the
first (1st) Domestic Business Day after the end of each fiscal quarter
following issuance of each Letter of Credit and on the earlier of the
Original Commitment Maturity Date or the acceleration of the Revolving
Credit Notes.
(d) The Borrower shall also pay to NCBC for its sole account
(i) a fronting fee as determined by NCBC and the Borrower and (ii)
NCBC's then in effect customary issuance fees and administrative
expense payable with respect to its Documentary Letters of Credit and
Standby Letters of Credit as NCBC may generally charge or incur from
time to time in connection with the issuance, maintenance, modification
(if any), assignment or transfer (if any), negotiation, and
administration of commercial letters of credit, payable at such times
as NCBC may specify.
(e) The Borrower shall be obligated immediately to reimburse
NCBC (each a "Reimbursement Obligation") for all amounts which NCBC is
required to pay pursuant to the Letters of Credit issued by NCBC on or
before the date on which NCBC is required to make payment with respect
to a draft presented thereunder; provided, however, that a
Reimbursement Obligation with respect to a Documentary Letter of Credit
time draft which has been accepted for payment by NCBC shall not arise
until the date on which NCBC is obligated to make payment with respect
to such draft which it has accepted for payment. NCBC will promptly
notify (i) the Borrower of each demand or presentment for payment or
draft accepted for payment or other drawing under each Letter of Credit
issued by NCBC and (ii) the Agent of the amount required to be paid by
NCBC pursuant to each such Letter of Credit. The Agent shall promptly
notify each Bank of the amount required to be paid by such Bank as a
result of a drawing upon such Letter of Credit if NCBC shall have
notified the Agent that the Borrower has not timely reimbursed NCBC for
such draw. If such notice is received by a Bank before 1:00 p.m.,
Columbus, Ohio time, such Bank shall deliver such Bank's ratable share
of such payment in immediately available funds to the Agent on that
Domestic Business Day. If such notice is received by a Bank after 1:00
p.m., Columbus, Ohio time, such Bank shall before 10:00 a.m., Columbus,
Ohio time, on the next succeeding Domestic Business Day deliver to the
Agent such Bank's ratable share of such payment as a Prime Loan from
such Bank in immediately available funds. Upon receipt of each Bank's
ratable share of such payment, the Agent shall immediately deliver such
Bank's ratable share of such payment to NCBC.
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(f) The Borrower agrees to be bound by the terms of NCBC's
application and agreement for letters of credit and NCBC's written
regulations and customary practices relating to letters of credit,
though such interpretation may be different from the Borrower's own. It
is understood and agreed that, except in the case of gross negligence
or willful misconduct, NCBC shall not be liable for any error,
negligence and/or mistakes, whether omission or commission, in
following the Borrower's instructions or those contained in the Letters
of Credit issued by NCBC or any modifications, amendments or
supplements thereto.
(g) In determining whether to honor any request for drawing
under any Letter of Credit by the beneficiary thereof, NCBC shall be
responsible only to determine that the documents and certificates
required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the
requirements of such Letter of Credit.
(h) In addition to amounts payable as provided in subsections
(c) and (d) above, the Borrower hereby agrees to pay and to protect,
indemnify and save harmless NCBC from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel and
allocated costs of internal counsel) which NCBC may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, other than as a result of (A) the gross negligence or
willful misconduct of NCBC as determined by a final judgment of a court
of competent jurisdiction or (B) subject to the following clause (ii),
the wrongful dishonor by NCBC of a proper demand for payment made under
any Letter of Credit or (ii) the failure of NCBC to honor a drawing
under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions
herein called "Governmental Acts").
(i) As between the Borrower and NCBC, the Borrower assumes all
risks of the acts and omissions of, or misuse of the Letters of Credit
by, the respective beneficiaries of the Letters of Credit. In
furtherance and not in limitation of the foregoing, NCBC shall not be
responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for an issuance of any Letter of Credit
issued by NCBC, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged (even
if NCBC shall have been notified thereof); (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting
to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any
conditions required in order to draw upon such Letter of Credit; (iv)
errors, omissions,
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interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) errors in interpretation of technical terms; (vi) any loss
or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the
proceeds thereof; (vii) the misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any drawing under such Letter
of Credit; or (viii) any consequences arising from causes beyond the
control of NCBC, including any Governmental Acts, and none of the above
shall affect or repair, or prevent the vesting of, any of NCBC's rights
or powers hereunder.
(j) In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by
NCBC under or in connection with the Letters of Credit issued by it or
any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not put NCBC under any resulting liability
to the Borrower or Old Kent.
(k) Old Kent may not commence a proceeding against NCBC for
wrongful disbursement under a Letter of Credit issued by NCBC as a
result of acts or omissions constituting gross negligence or willful
misconduct of NCBC, until the Banks have made the Prime Loans described
in subsection (e) and the Borrower may not commence a proceeding
against NCBC for wrongful disbursement under a Letter of Credit issued
by NCBC as a result of acts or omissions constituting gross negligence
or willful misconduct of NCBC, until the Banks have made and the
Borrower has repaid the Prime Loans described in subsection (e);
provided, however, that nothing in this Section 2.13 shall adversely
affect the right of the Borrower, after such payment, to commence any
proceeding against NCBC for any breach of its obligations hereunder.
5. FIXED CHARGE COVERAGE. Section 7.2 of the Loan Agreement is deleted
in its entirety and the following inserted in lieu thereof:
7.2 FIXED CHARGE COVERAGE. Permit the ratio of (a) the sum of
its net income before taxes for the preceding twelve (12) month period
plus its interest, rent and lease expense for the same period to (b)
the sum of its interest, rent and lease expense for the same period
(the foregoing ratio, the "Fixed Charge Coverage Ratio") to be less
than 1.40 to 1.00 as measured at the end of the fiscal quarter ending
September 28, 1996; and less than 1.50 to 1.00 at the end of the fiscal
quarter ending December 28, 1996 and at the end of each fiscal quarter
of the Borrower thereafter.
6. LEVERAGE. Section 7.5 of the Loan Agreement is deleted in its
entirety and the following inserted in lieu thereof:
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Section 7.5 LEVERAGE. Permit the ratio of (a) its total
liabilities less its Subordinated Indebtedness to (b) the sum of its
tangible net worth plus its Subordinated Indebtedness to be greater
than the following during the periods specified herein as measured at
the end of each fiscal quarter of the Borrower:
For the first fiscal quarter annually, 1.75 to 1.00;
For the second, third and fourth fiscal quarters ending
in the fiscal year ending December 28, 1996, 1.50 to 1.00;
and
For the second, third and fourth fiscal quarters ending
in the fiscal year ending January 3, 1998 and thereafter,
1.35 to 1.00.
7. INDEBTEDNESS. Section 7.7(c) of the Loan Agreement is hereby amended
by excluding from the term "leases" (a) those thirteen (13) truck leases
described on Schedule A, attached hereto and incorporated herein by reference
and (b) that certain General Business Lease Agreement, Agreement No. G00266385,
between Borrower and IBM Credit Corporation, executed by Borrower on June 3,
1996.
8. 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 Revolving Credit
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.
9. REFERENCES TO CREDIT AGREEMENT. All references in each of the
Revolving Credit Notes to the Credit 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/ Ralph A. Kaparos By: /s/ Marilyn A. Eisele
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Its: Senior 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/ Peter T. Campbell By: /s/ Ralph A. Kaparos
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Its: Vice President Its: Senior Vice President
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"SCHEDULE A"
CAPITAL LEASES SIGNED DELIVERY LEASE FIXED TOTAL 1995 LEASES,
AT DATE EXPIRES COST COST IN 1996
MO. THE LIFE COMMENCEMENT
CLEVELAND FLAT 50665 06/26/95 02/01/96 02/01/01 1,179 70,740
CLEVELAND BOX 50853 06/26/95 02/01/96 02/01/01 1,043 62,580
RANDALL FLAT 50666 06/26/95 02/01/96 02/01/01 1,179 70,740
RANDALL/BEDFORD BOX 50854 06/26/95 02/01/96 02/01/01 1,043 62,580
EASTLAKE FLAT 50667 06/26/95 02/01/96 02/01/01 1,179 70,740
EASTLAKE/MENTOR BOX 50856 06/26/95 02/01/96 02/01/01 1,043 62,580
BEDFORD FLAT 50668 06/26/95 02/01/96 02/01/01 1,179 70,740
BROOKPARK FLAT 50669 06/26/95 02/01/96 02/01/01 1,179 70,740
BROOKPARK/MEDINA BOX 50855 06/26/95 02/01/96 02/01/01 1,043 62,580
MEDINA FLAT 50670 06/26/95 02/01/96 02/01/01 1,179 70,740
MENTOR FLAT 250671 06/26/95 02/01/96 02/01/01 1,179 70,740
ARLINGTON FLAT 50672 06/26/95 02/01/96 02/01/01 1,179 70,740
W MARKET FLAT 50673 06/26/95 02/01/96 02/01/01 1,179 70,740
KITCHEN WAREHOUSE BOX 06/26/95 02/01/01 1,043 62,580