THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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This Third Amendment to Amended and Restated Credit Agreement (the "Third
Amendment") is made as of this __ day of February, 2002 by and among
WICKES INC. (formerly Wickes Lumber Company), a Delaware corporation, as
Lead Borrower (the "Lead Borrower") for the "Borrowers" which are said
WICKES, INC and WICKES LUMBER L.P., a Delaware limited partnership, and
each of those financial institutions identified as Lenders on Annex I
hereto (together with each of their successors and assigns, referred to
individually as a "Lender" and collectively as the "Lenders"), and
FLEET RETAIL FINANCE INC., acting as agent for the Lenders in the manner
and to the extent described in Article 11 hereof (in such capacity, the
"Agent"), and
BANK OF AMERICA, N.A., as Documentation Agent (the "Documentation Agent"),
and
FLEET NATIONAL BANK, as issuer of letters of credit (in such capacity, the
"Issuing Bank")
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H
A. Reference is made to the Amended and Restated Credit Agreement (as
amended and in effect, the "Credit Agreement") dated as of December 13, 2000 by
and among the Lead Borrower, the Lenders, the Agent, the Documentation Agent and
the Issuing Bank.
B. The Lead Borrower, the Borrowers, the Agent, the Lenders and the Issuing
Bank desire to further modify and amend the Credit Agreement
Accordingly, the Agent, the Lenders, the Issuing Bank, the Lead
Borrower and the Borrowers agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
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herein shall have the meanings assigned to such terms in the Credit Agreement.
2. Amendments to Article 1. The provisions of Article 1 of the Credit
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Agreement are hereby amended by deleting the reference to "Section 5.7(c)" in
the definition of "Base Rate Loan" and substituting "Section 5.1" in its stead.
3. Amendments to Article 2. The provisions of Article 2 of the Credit
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Agreement are hereby amended by deleting the following from Section 2.1 of the
Credit Agreement:
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Notwithstanding anything to the contrary herein contained, from and
after August 13, 2001, the Average outstanding Revolving Loans and
Letter of Credit Obligations during any calendar month shall not
exceed 115% of the amounts projected on the Bank Projections.
and substituting the following in its stead:
Notwithstanding anything to the contrary herein contained, from and
after August 13, 2001, the Average outstanding Revolving Loans and
Letter of Credit Obligations during any retail month of the Borrower
shall not exceed 115% of the amounts projected on the Bank
Projections. For purposes of clarity, 115% of the amounts projected on
the Bank Projections for 2002 are set forth on Schedule C hereto.
4. Amendment to Article 3. The provisions of Section 3.1 of the Credit
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Agreement are hereby amended by deleting the following:
Notwithstanding anything to the contrary herein contained, from and
after August 13, 2001, the Average outstanding Revolving Loans and
Letter of Credit Obligations during any calendar month shall not
exceed 115% of the amounts projected on the Bank Projections.
and substituting the following in its stead:
Notwithstanding anything to the contrary herein contained, from and
after August 13, 2001, the Average outstanding Revolving Loans and
Letter of Credit Obligations during any retail month of the Borrower
shall not exceed 115% of the amounts projected on the Bank
Projections. For purposes of clarity, 115% of the amounts projected on
the Bank Projections for 2002 are set forth on Schedule C hereto.
5. Amendments to Article 5. The provisions of Article 5 of the Credit
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Agreement are hereby amended as follows:
a. Section 5.1 of the Credit Agreement is hereby amended by
inserting the following provision at the end thereof:
Subject to the provisions of Section 5.3 hereof, interest on Base
Rate Loans which are Term Loans shall be payable monthly on the last
day of each month at an interest rate per annum equal to the Base Rate
plus one percent (1%).
b. Section 5.3 of the Credit Agreement is hereby amended by deleting
the following clause from the third (3rd) line thereof:
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or, if applicable with respect to the Term Loans, Section 5.7(c)
below
c. Section 5.7(a) of the Credit Agreement is hereby amended by
deleting the following sentence therefrom:
If the Borrower shall fail to select a new Interest Period for
any Borrowing consisting of Eurodollar Rate Loans in accordance
with this Section 5.7(a), such Loans will automatically, on the
last day of the then existing Interest Period therefor, convert
into Base Rate Loans in the case of Revolving Loans or into
Eurodollar Rate Loans with a one month Interest Period in the
case of Term Loans.
and substituting the following sentence in its stead:
If the Borrower shall fail to select a new Interest Period for
any Borrowing consisting of Eurodollar Rate Loans in accordance
with this Section 5.7(a), such Loans will automatically, on the
last day of the then existing Interest Period therefor, convert
into Base Rate Loans.
d. Section 5.7(b) of the Credit Agreement is hereby amended by
deleting the following clause therefrom:
; and provided further that Term Loans may not be converted into
Base Rate Loans except pursuant to Section 5.7(c)(iv).
e. Section 5.7(c)(iv) is hereby deleted in its entirety, and the
following substituted in its stead:
(iv) Intentionally Omitted.
6. Amendments to Article 9. The provisions of Section 9.3 of the
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Credit Agreement are hereby amended by deleting the number "$9,000,000"
appearing therein and substituting the number "$7,000,000" in its stead.
7. Amendments to Schedules. The Credit Agreement is hereby amended by
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adding a new Schedule C in the form annexed hereto.
8. Regarding Wickes Lumber, L.P. Pursuant to the Second Amendment to
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Amended and Restated Credit Agreement, the Lead Borrower represented that
the Lead Borrower was transferring and contributing its assets located in
the states of Michigan and Indiana to Wickes Lumber L.P., subject to the
Liens in favor of the Agent under the Loan Documents. The parties
acknowledge that only the Indiana assets were contributed to Wickes Lumber,
L.P. and that all of the Michigan assets are, and shall continue to be,
owned by the Lead Borrower.
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9. Conditions Precedent to Effectiveness. This Third Amendment shall
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not be effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Agent:
a. This Third Amendment shall have been duly executed and delivered
by the Majority Lenders and the other parties hereto and, shall
be in full force and effect and shall be in form and substance
satisfactory to the Agent and the Majority Lenders.
b. All action on the part of the Borrowers necessary for the valid
execution, delivery and performance by the Borrowers of this
Third Amendment shall have been duly and effectively taken and
evidence thereof satisfactory to the Agent shall have been
provided to the Agent.
c. Except for (i) the filing of Uniform Commercial Code financing
statements and recordation of amendments to the Mortgages, (ii)
consents or authorizations which have been obtained or filings
which have been made, and which in either case are in full force
and effect or (iii) consents or authorizations the failure to
obtain or filings the failure to make could not reasonably be
expected to have a Material Adverse Effect, no consent or
authorization of, permit from, filing with or other act by or in
respect of, any Governmental Authority or any other Person shall
be required in connection with the transactions contemplated
hereunder, the grant of the Liens pursuant to the Credit
Documents, or the continuing operations of the Borrower, the
enforcement of the Agent's or the Lenders' rights under the
Credit Documents, or with the execution, delivery, performance,
validity or enforceability of the Credit Agreement, the other
Credit Documents, the Indenture or any other documents executed
in connection herewith or therewith.
d. The Collateral Documents shall be effective to create in favor of
the Agent for the benefit of the Lenders legal, valid and
enforceable first (except for Liens permitted under Section 9.5
of the Credit Agreement which are entitled to priority under
applicable law) security and mortgage interests in the
Collateral. All filings, recordings, deliveries of instruments
and other actions necessary or desirable in the opinion of the
Agent to protect and preserve such security and mortgage
interests shall have been duly effected. The Agent shall have
received evidence thereof in form and substance satisfactory to
the Agent.
e. The Borrower shall have paid to the Agent (i) an amendment fee,
for the pro rata account of the Lenders based on their respective
Commitment Percentages, in an amount equal to $100,000. The
amendment fee shall be fully earned upon the effectiveness of
this Third Amendment and shall not be subject to refund or rebate
under any circumstances.
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f. The Borrower shall have provided such additional instruments and
documents to the Agent as the Agent and Agent's counsel may have
reasonably requested.
1) Miscellaneous.
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a. This Third 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.
b. This Third 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.
c. Any determination that any provision of this Third Amendment or
any application hereof is invalid, illegal or unenforceable in
any respect and in any instance shall not effect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any
other provisions of this Third Amendment.
d. The Borrower shall pay on demand all costs and expenses of the
Agent, including, without limitation, reasonable attorneys' fees
in connection with the preparation, negotiation, execution and
delivery of this Third Amendment.
e. The Borrower warrants and represents that the Borrower has
consulted with independent legal counsel of the Borrower's
selection in connection with this Third Amendment and is not
relying on any representations or warranties of the Agent or its
counsel in entering into this Third Amendment.
IN WITNESS WHEREOF, the parties have duly executed this Third Amendment as
of the day and year first above written.
WICKES, INC.
by____________________________________
Name:
Title:
Address:
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WICKES LUMBER L.P.
By its General Partner
Wickes, Inc.
by____________________________________
Name:
Title:
Address:
FLEET RETAIL FINANCE INC., as Agent and Lender,
by____________________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION
by____________________________________
Name:
Title:
BANK OF AMERICA, N.A.
by____________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
by____________________________________
Name:
Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.
by____________________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION (CENTRAL)
by____________________________________
Name:
Title:
AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO
by____________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
by____________________________________
Name:
Title:
COMERICA BANK
by____________________________________
Name:
Title:
THE PROVIDENT BANK
by____________________________________
Name:
Title:
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SCHEDULE C
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Retail Month 115% of Bank Projections
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January, 2002 $93,908,000
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February, 2002 $96,514,000
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March, 2002 $108,573,00
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April, 2002 $126,079,000
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May, 2002 $136,988,000
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June, 2002 $133,568,000
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July, 2002 $139,336,000
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August, 2002 $132,641,000
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September, 2002 $110,631,000
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October, 2002 $109,389,000
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November, 2002 $93,091,000
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December, 2002 $79,826,000
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694129.6