EXHIBIT 10.1
THIRD AMENDMENT
TO CREDIT AND SECURITY AGREEMENT
THIRD AMENDMENT TO CREDIT AND SECURITY AGREEMENT, dated as of October
30, 2003 (the "Amendment"), among FRANK'S NURSERY & CRAFTS, INC., a Delaware
corporation ("Borrower"), and KIMCO CAPITAL CORP., as lender ("Lender"):
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to that certain Credit and
Security Agreement, dated as of May 20, 2002, (as amended by that certain First
Amendment and Waiver to Credit and Security Agreement, dated as of January 23,
2003 and that certain Second Amendment to Credit and Security Agreement, dated
as of July 7, 2003, and as the same may be further amended, modified or
supplemented from time to time, the "Credit Agreement"); and
WHEREAS, Borrower has requested that Lender extend Loans which, when
added to the current outstanding Loans, would exceed the Commitment; and
WHEREAS, Lender has agreed, subject to and upon the terms and
conditions set forth herein, to amend the Credit Agreement as set forth herein
in order to provide such additional Loans on or after January 1, 2004; and
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. As used herein, all terms that are defined in the
Credit Agreement shall have the same meanings herein.
2. Amendment to Credit Agreement. The Credit Agreement is, effective as
of the Third Amendment Effective Date, hereby amended as follows:
(i) Section 1.2 is hereby amended by adding at the end thereof a new
subsection (c), to read as follows:
"(c) The Lender agrees upon the terms and subject to the conditions
herein set forth, to make available to Borrower commencing on the Third
Amendment Effective Date and ending on the Overline Credit Termination
Date, Revolving Credit Loans (each an "Overline Revolving Credit Loan"
and collectively, the "Overline Revolving Credit Loans") in an
aggregate amount not to exceed $7,000,000. Subject to the foregoing and
within the foregoing limits, Borrower may borrow, repay (and subject to
the provisions of Sections 1.8 and 1.9 of the Credit Agreement, prepay)
and reborrow Overline Revolving Credit Loans prior to the Overline
Credit Termination Date, subject to the terms, provisions and
limitations set forth herein. The Overline Revolving Credit Loans shall
be made without regard to whether, after giving effect thereto, the
aggregate principal amount of the Revolving Credit Loans outstanding at
such time exceeds the Revolving Credit Commitment; provided, however,
that the Revolving Credit Loans outstanding after giving effect to an
Overline Revolving Credit Loan shall in no event exceed the Revolving
Credit Commitment by more than $7,000,000. Notwithstanding anything in
this Agreement to the contrary, upon the occurrence of the Overline
Credit Termination Date, all Overline Revolving Credit Loans
outstanding at such time shall become due and payable and Borrower
shall permanently repay all such Overline Revolving Credit Loans as of
such date, together with all accrued and unpaid interest due on such
Loans, and the commitment of Lender to provide Overline Revolving
Credit Loans pursuant to this Section 1.2(c) shall permanently
terminate. All Overline Revolving Credit Loans shall constitute
Revolving Credit Loans as such term is used in this Credit Agreement,
and the Overline Revolving Credit Loans and all amounts due in
connection therewith (including, without limitation, interest thereon)
shall constitute Obligations under this Credit Agreement and shall be
secured by the Collateral to the same extent as all other Obligations
hereunder."; and
(ii) Article 9 is hereby amended by (a) inserting the following new
definitions in appropriate alphabetical order:
""Overline Revolving Credit Loan" shall have the meaning given to such
term in Section 1.2(c) hereof."
`"Overline Credit Termination Date" shall mean the earlier to occur of
(x) April 1, 2004 and (y) the date on which the Revolving Credit
Commitment shall terminate in accordance with Section 1.7 or Article 6
hereof."
`"Third Amendment" shall mean that certain Third Amendment to Credit
and Security Agreement, dated as of October 30, 2003, among the Lender
and the Borrower."
`"Third Amendment Effective Date" shall have the meaning given to such
term in the Third Amendment.";
and
(b) amending the definition of "Revolving Credit Commitment Termination Date" by
inserting the phrase ", with respect to Revolving Credit Loans other than
Overline Revolving Credit Loans," immediately following the phrase "shall mean"
appearing therein.
3. Representations and Warranties. Borrower represents and
warrants to, and agrees with, Lender that:
(i) Borrower has the corporate power and authority to execute, deliver
and perform, as applicable, its obligations under this Amendment and any other
documents contemplated hereby to which it is or will be a party;
(ii) the execution, delivery and performance of this Amendment (a) have
been duly authorized by all necessary corporate action on the part of Borrower,
(b) will not constitute a violation of any provision of any Applicable Law or
any order of any Governmental Authority applicable to Borrower or any of its
properties or assets, (c) will not violate any provision of the Certificate of
Incorporation, By-Laws, or any other organizational document to which Borrower
is a party and (d) will not result in the creation or imposition of (or the
obligation to create or impose) any Lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of Borrower other than pursuant
to the Credit Agreement (as amended) or the other Fundamental Documents (as
amended);
(iii) upon its execution and delivery by Borrower, this Amendment and
each Fundamental Document amended pursuant hereto shall constitute or continue
to constitute the legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency and similar laws affecting
creditors' rights general and to general principles of equity, whether such
enforceability is considered in a proceeding at law or in equity;
(iv) Borrower is not in violation of any Applicable Law (including,
without limitation, any Environmental Law) or any restrictions of record or
agreements affecting the Collateral or the Inventory Collateral, except for
violations which in the aggregate could not reasonably be expected to have a
Material Adverse Effect;
(v) The Overline Revolving Credit Loans and all obligations related
thereto constitute Obligations under the Credit Agreement and the other
Fundamental Documents, including, without limitation, the Security Documents;
and
(vi) All representations and warranties set forth in the Credit
Agreement and the other Fundamental Documents, including as set forth in Article
2 of the Credit Agreement, are true and correct in all material respects on and
as of the Third Amendment Effective Date with the same effect as if made on and
as of such date except to the extent such representations and warranties
expressly relate to an earlier date.
4. Conditions to Effectiveness. This Amendment shall become
effective (the "Third Amendment Effective Date") upon the later to occur of (a)
January 1, 2004 and (b) the date on which Lender is satisfied that each of the
following conditions shall have been satisfied:
(i) Lender shall have received an executed counterpart of this
Amendment bearing the signature of Borrower;
(ii) Borrower shall have delivered to Lender such other
documents and information as Lender may reasonably request;
(iii) Lender's counsel shall be satisfied that either (a) the
execution of this Amendment and incurrence of by Borrower of the
Overline Revolving Credit Loans and other Obligations hereunder in no
way constitutes an event default or an event which with the passage of
time would constitute an event of default under the Congress Credit
Agreement or any other agreement, instrument or document executed in
connection with the Working Capital Facility, or (b) Congress shall
have waived any such event; and
(iv) Borrower shall have executed and delivered to Lender's
counsel one or more amendments to the Mortgages as requested by Lender,
which amendments shall be in form and substance consistent with the
terms of this Amendment and satisfactory to Lender, and such other
documents, agreements and instruments as may be required by Lender.
5. Fees and Expenses. Borrower agrees that its obligations set
forth in Section 7.4 of the Credit Agreement shall extend to the preparation,
execution and delivery of this Amendment, including the reasonable and necessary
fees and disbursements of counsel to Lender.
6. Limitations. This Amendment shall be limited precisely as
written and shall not be deemed (a) to be a consent granted pursuant to, or a
waiver or modification of (other than the Substitution), any other term or
condition of the Credit Agreement or any of the instruments or agreements
referred to therein or (b) to prejudice any right or rights which Lender may now
have or have in the future under or in connection with the Credit Agreement or
any of the instruments or agreements referred to therein. Whenever the Credit
Agreement is referred to in the Credit Agreement or any of the instruments,
agreements or other documents or papers executed or delivered in connection
therewith, such reference shall be deemed to mean the Credit Agreement as
modified by this Amendment.
7. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument. A facsimile signature shall serve as the functional equivalent of a
manual executed signature for all purposes.
8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law principles thereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to Credit and Security Agreement to be duly executed as of the day and
the year first written.
BORROWER:
FRANK'S NURSERY & CRAFTS, INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President Legal and Secretary
LENDER:
KIMCO CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
