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EXHIBIT 10.3
AMENDMENT No. 3, dated as of April 20, 2000
(this "Amendment"), to the Credit Agreement
dated as of December 24, 1997 (the "Credit
Agreement"), as amended by Amendment No. 1,
dated as of April 15, 1998 and Amendment No. 2
and Waiver dated as of December 20, 1999,
among Frank's Nursery & Crafts, Inc. (the
"Borrower"), FNC Holdings Inc. ("Holdings"),
formerly known as General Host Corporation,
the Lenders (as defined in the Credit
Agreement), The Chase Manhattan Bank, as
administrative agent (in such capacity, the
"Administrative Agent") and collateral agent
(in such capacity, the "Collateral Agent") for
the Lenders, as swingline lender (in such
capacity, the "Swingline Lender") and as an
Issuing Bank (as defined in the Credit
Agreement), and Xxxxxxx Xxxxx Credit Partners,
L.P., as documentation agent.
A. Pursuant to the Credit Agreement, the Lenders, the
Swingline Lender and the Issuing Banks have extended credit to the
Borrower and have agreed to extend credit to the Borrower, in each case
pursuant to the terms and subject to the conditions set forth therein.
B. The Borrower and Holdings have requested that the
Administrative Agent and the Required Lenders amend certain provisions of
the Credit Agreement as set forth herein.
C. The Administrative Agent and the Required Lenders are
willing to amend the Credit Agreement, in each case, pursuant to the terms
and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendments to Section 6.04 of the Credit Agreement
(Investments, Loans, Advance, Guarantees and Acquisitions). Section 6.04(p)
of the Credit Agreement is hereby amended by deleting the amount
"$1,000,000" appearing therein and substituting in lieu thereof the amount
"3,500,000".
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SECTION 2. Amendment to Section 6.13 (Capital Expenditures).
Section 6.13 of the Credit Agreement is hereby amended by (a) deleting the
table set forth therein and substituting therefor the following:
Fiscal Year Amount
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February 2, 1998--January 31, 1999 $22,000,000
February 1, 1999--January 30, 2000 $27,000,000
January 31, 2000--January 28, 2001 $30,000,000
January 29, 2001--January 27, 2002 $26,500,000
January 28, 2002--January 26, 2003 $28,000,000
January 27, 2003--January 25, 2004 $29,500,000
January 26, 2005--January 30, 2005 $31,000,000
and (b) by deleting the last two sentences thereof and substituting
therefor the following:
Capital Expenditures set forth above in respect of the fiscal year
ending on or about January 28, 2001 in an amount not less than
$11,500,000 (the "POS Capital Expenditures") shall be used solely to
purchase a point of sale system during such fiscal year only.
The amount of permitted Capital Expenditures set forth above in respect
of any fiscal year other than the fiscal year ending on or about
January 28, 2001 shall be increased by the lesser of (a)(i) the unused
permitted Capital Expenditures for the immediately preceding fiscal
year (other than unused POS Capital Expenditures in the case of the
fiscal year ending on or about January 28, 2001) less (ii) an amount
equal to unused Capital Expenditures carried forward to such preceding
fiscal year and (b) $12,000,000. No increase from the amount set forth
in the table above shall be permitted for the fiscal year ending on or
about January 28, 2001.
SECTION 3. Representations and Warranties. Each of Holdings
and the Borrower represents and warrants to the Administrative Agent and to
each of the Lenders that:
(a) This Amendment has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a
proceeding in equity or at law, and an implied covenant of good faith
and fair dealing.
(b) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article III of the
Credit Agreement are true and correct in all material respects
on and as of the date hereof, except to the extent suchrepresentations
and warranties expressly relate to an earlier date, in which case such
representations and warranties are, to such extent, true and correct in
all material respects as of such earlier date.
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(c) After giving effect to this Amendment, no Default has
occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective as of the date first above written when (a) the
representations and warranties set forth in Section 3 hereof are true and
correct, (b) the Administrative Agent shall have received (i) counterparts
of this Amendment that, when taken together, bear the signatures of
Holdings, the Borrower and the Required Lenders and (ii) evidence
satisfactory to it that (A) Cypress and its Affiliates shall have
contributed at least $15,000,000 to Holdings in exchange for common stock
of Holdings and (B) Holdings shall have contributed at least $15,000,000 to
the Borrower in exchange for common stock of the Borrower.
SECTION 5. Effect of this Amendment. Except as expressly set
forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies
of the Lenders, the Swingline Lender, any Issuing Bank, the Collateral
Agent or the Administrative Agent under the Credit Agreement or any other
Loan Document and shall not alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle the Borrower or Holdings to a
consent to, or a waiver, amendment, modification or other change of, any of
the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document in similar or different
circumstances. After the date hereof, any reference to the Credit Agreement
shall mean the Credit Agreement as amended hereby. This Amendment shall
constitute a Loan Document for all purposes under the Credit Agreement and
the other Loan Documents.
SECTION 6. APPLICABLE LAW. THIS AMIENDMIENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts, This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one
and the same instrument. Delivery of any executed counterpart of a
signature page of this Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart hereof.
SECTION 8. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Xxxxx, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of
the day and year first above written.
XXXXXX NURSERY & CRAFTS, INC., as
Borrower,
by /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice Chairman and Chief
Financial Officer
FNC HOLDINGS INC.,
by /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice Chairman and Chief
Financial Officer
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by
----------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS, L.P.,
by
----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of
the day and year first above written.
FRANK'S NURSERY & CRAFTS, INC., as
Borrower,
by
----------------------------------
Name:
Title:
FNC HOLDINGS INC.,
by
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by /s/ Xxxx X. Xxxxxx
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Name Xxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX CREDIT PARTNERS, L.P.,
by
----------------------------------
Name:
Title:
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SIGNATURE PAGE TO AMENDMENT NO. 3 DATED AS OF
APRIL 20,2000, TO THE CREDIT AGREEMENT DATED AS
OF DECEMBER 24,1997, AMONG XXXXXX NURSERY &
CRAFTS, INC., FNC HOLDINGS INC. (F/K/A GENERAL
HOST CORPORATION), THE LENDERS PARTY THERETO,
THE CHASE MANHATTAN BANK, AS ADMINISTRATIVE
AGENT, COLLATERAL AGENT, SWINGLINE LENDER, and
ISSUING BANK, and XXXXXXX XXXXX CREDIT
PARTNERS, L.P., AS DOCUMENTATION AGENT
Name of Institution XXXXXXX SACHS CREDIT PARTNERS, L.P.
---------------------------------------------
by /s/ XXXXXXXXX XXXXXXX
------------------------------------------
Name: XXXXXXXXX XXXXXXX
Title: AUTHORIZED SIGNATURE
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SIGNATURE PAGE TO AMENDMENT NO. 3 DATED AS OF
APRIL 20, 2000, TO THE CREDIT AGREEMENT DATED
AS OF DECEMBER 24, 1997. AMONG FRANK'S NURSERY
& CRAFTS, INC., FNC HOLDINGS INC. (F/K/A
GENERAL HOST CORPORATION), THE LENDERS PARTY
THERETO, THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT, COLLATERAL AGENT,
SWINGLINE LENDER and ISSUING BANK, and XXXXXXX
SACHS CREDIT PARTNERS, L.P., AS DOCUMENTATION
AGENT
Name of Institution IBJ Whitehall Bank & Trust Co.
---------------------------------------------
by /s/ Xxxxxxxx X. XxXxxxxxx
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Name: XXXXXXXX X. XxXXXXXXX
Title: MANAGING DIRECTOR
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SIGNATURE PAGE TO AMENDMENT NO. 3 DATED AS OF
APRIL 20, 2000, TO THE CREDIT AGREEMENT DATED
AS OF DECEMBER 24, 1997, AMONG FRANK'S
NURSERY & CRAFTS, INC., FNC HOLDINGS INC.
(F/K/A GENERAL HOST CORPORATION), THE LENDERS
PARTY THERETO, THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT, COLLATERAL AGENT,
SWINGLINE LENDER, and ISSUING BANK, and
XXXXXXX XXXXX CREDIT PARTNERS, L.P., AS
DOCUMENTATION AGENT
Name of Institution KZH HIGHLAND-Z LLC
---------------------------------------------
by /s/ Xxxxx Xxx
------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
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SIGNATURE PAGE TO AMENDMENT NO. 3 DATED AS OF
APRIL 20, 2000, TO THE CREDIT AGREEMENT DATED
AS OF DECEMBER 24, 1997, AMONG FRANK'S
NURSERY & CRAFTS, INC., FNC HOLDINGS INC.
(F/K/A GENERAL HOST CORPORATION), THE LENDERS
PARTY THERETO, THE CHASE MANHATTAN BANK,
AS ADMINISTRATIVE AGENT, COLLATERAL AGENT,
SWINGLINE LENDER, and ISSUING BANK, and
XXXXXXX XXXXX CREDIT PARTNERS, L.P., AS
DOCUMENTATION AGENT
Name of Institution KZH PAMCO LLC
---------------------------------------------
by /s/ Xxxxx Xxx
------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
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SIGNATURE PAGE TO AMENDMENT NO. 3 DATED AS OF
APRIL 20, 2000, TO THE CREDIT AGREEMENT DATED
AS OF DECEMBER 24, 1997, AMONG FRANK'S NURSERY
& CRAFTS, INC., FNC HOLDINGS INC. (F/K/A
GENERAL HOST CORPORATION), THE LENDERS PARTY
THERETO, THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE AGENT, COLLATERAL AGENT,
SWINGLINE LENDER, and ISSUING BANK, and XXXXXXX
SACHS CREDIT PARTNERS, L.P., AS DOCUMENTATION
AGENT
Name of Institution Transamerica Business Credit Corporation
---------------------------------------------
by /s/ Xxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
