EXHIBIT 10.15
WAIVER AND AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 2 ("Amendment No. 2") is dated as of the
10th day of February, 2003 and is by and among Congress Financial Corporation
(Central), as Agent (the "Agent") for the lenders from time to time party to the
Loan Agreement (as defined below) (the "Lenders") and as a Lender, Standard
Federal Bank National Association, as a Lender, and Frank's Nursery & Crafts,
Inc. ("Borrower").
W I T N E S S E T H:
WHEREAS, Agent, Lenders and Borrower are parties to that
certain Loan and Security Agreement, dated as of May 20, 2002, as amended (the
"Loan Agreement"; all capitalized terms used herein, unless otherwise defined
herein, shall have the meanings ascribed to them in the Loan Agreement),
pursuant to which Lenders agreed to provide certain loans and other financial
accommodations to Borrower;
WHEREAS, Borrower has notified Agent that Borrower is in
violation of (i) Section 9.18(a) of the Loan Agreement for the period ending on
the last day of the thirteenth Accounting Period of the fiscal year of Borrower
ending in 2003 and (ii) Section 9.18(b) of the Loan Agreement for the twelfth
and thirteenth Accounting Periods of the fiscal year of Borrower ending in 2003,
in each case resulting in an Event of Default under Section 10.1(a) of the Loan
Agreement (the "Existing Defaults"); and
WHEREAS, Borrower has requested that Agent and Lenders waive
the Existing Defaults, and Agent and Lenders have agreed to do so subject to the
terms and conditions contained herein;
WHEREAS, Borrower, Agent and Lenders have also agreed to amend
the Loan Agreement in certain respects;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Waiver. In reliance upon the representations and warranties
of the Borrower set forth in Section 4 below, and subject to the satisfaction of
the conditions set forth in Section 5 below, Agent and Lenders hereby waive the
Existing Defaults. Except as set forth hereinabove, the foregoing waiver shall
not constitute (a) a modification or alteration of the terms, conditions or
covenants of the Loan Agreement or any other Financing Agreement, (b) a waiver
of any other breach of, or any other Event of Default under, the Loan Agreement
or any other Financing Agreement (including, without limitation, a breach of
Section 9.18 of the Loan Agreement for any Accounting Period ending after the
thirteenth Accounting Period of the fiscal year ending in 2003), or (c) a
waiver, release or limitation upon the exercise by the Agent or any Lender of
any of its rights, legal or
equitable, under the Loan Agreement, the other Financing Agreements and
applicable law, all of which are hereby reserved.
2. Amendment to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) Section 1.10 of the Loan Agreement is amended to replace
the chart set forth therein with the following:
Applicable Applicable
Monthly Average Prime Eurodollar Applicable Applicable
Excess Availability Rate Margin Rate Margin L/C Rate B/A Rate
------------------- ----------- ----------- -------- --------
(a) $25,000,000 or more 0.25% 2.75% 2.00% 2.00%
(b) Greater than or equal to 0.75% 3.25% 2.50% 2.50%
$14,000,000 and less than
$25,000,000
(c) Less than $14,000,000 0.75% 3.50% 2.75% 2.75%
(b) Section 9.18 of the Loan Agreement is amended and restated
in its entirety as follows:
9.18 Financial Covenants
At any time either (i) the sum of Excess Availability plus the
amount of Cash Equivalents maintained in Borrower's account at SEI
Private Trust Company under the control of Agent (in each case
calculated as of any Sunday), is $4,000,000 or less, or (ii) at any
time the sum of average Excess Availability for any four week period
ending on a Sunday plus the average amount of Cash Equivalents
maintained in Borrower's account at SEI Private Trust Company under the
control of Agent for any such four week period (in each case such
average calculated by averaging the amounts on each Sunday during such
four week period) is $9,000,000 or less, Borrower shall maintain the
following covenants:
(a) For each period below, Borrower shall maintain EBITDA of
at least the amount set forth opposite such period:
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Period Amount
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The period of 13 Accounting Periods ending on the last day of ($4,550,000)
the fourth Accounting Period of the fiscal year of Borrower
ending in 2004
The period of 13 Accounting Periods ending on the last day of ($5,620,000)
the seventh Accounting Period of the fiscal year of Borrower
ending in 2004
The period of 13 Accounting Periods ending on the last day of ($7,610,000)
the tenth Accounting Period of the fiscal year of Borrower
ending in 2004
The period of 13 Accounting Periods ending on the last day of $1,090,000
the fiscal year of Borrower ending in 2004
The period of 13 Accounting Periods ending on the last day of $5,070,000
the fourth Accounting Period of the fiscal year of Borrower
ending in 2005
The period of 13 Accounting Periods ending on the last day of $7,800,000
the seventh Accounting Period of the fiscal year of Borrower
ending in 2005
The period of 13 Accounting Periods ending on the last day of $9,060,000
the tenth Accounting Period of the fiscal year of Borrower
ending in 2005
The period of 13 Accounting Periods ending on the last day of $11,800,000
the fiscal year of Borrower ending in 2005
The period of 13 Accounting Periods ending on the last day of $11,800,000
each fourth, seventh, tenth and thirteenth Accounting Period
thereafter
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(b) As of the last day of each Accounting Period set forth
below, Borrower shall maintain a ratio of accounts payable to the Cost
of Inventory of Borrower of at least the ratio set forth opposite such
Accounting Period:
Accounting Period Ratio
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The second Accounting Period of the fiscal year of Borrower 39.5%
ending in 2004
The third Accounting Period of the fiscal year of Borrower 43.9%
ending in 2004
The fourth Accounting Period of the fiscal year of Borrower 53.6%
ending in 2004
The fifth Accounting Period of the fiscal year of Borrower 46.8%
ending in 2004
The sixth Accounting Period of the fiscal year of Borrower 35.8%
ending in 2004
The seventh Accounting Period of the fiscal year of Borrower 32.0%
ending in 2004
The eighth Accounting Period of the fiscal year of Borrower 39.8%
ending in 2004
The ninth Accounting Period of the fiscal year of Borrower 41.3%
ending in 2004
The tenth Accounting Period of the fiscal year of Borrower 36.1%
ending in 2004
The eleventh Accounting Period of the fiscal year of Borrower 36.0%
ending in 2004
The twelfth Accounting Period of the fiscal year of Borrower 35.3%
ending in 2004
The thirteenth Accounting Period of the fiscal year of Borrower 30.1%
ending in 2004
The first Accounting Period of the fiscal year of Borrower 43.9%
ending in 2005
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Accounting Period Ratio
----------------------------------------------------------- -------------
The second Accounting Period of the fiscal year of Borrower 45.6%
ending in 2005
The third Accounting Period of the fiscal year of Borrower 48.8%
ending in 2005
The fourth Accounting Period of the fiscal year of Borrower 58.8%
ending in 2005
The fifth Accounting Period of the fiscal year of Borrower 54.9%
ending in 2005
The sixth Accounting Period of the fiscal year of Borrower 46.0%
ending in 2005
The seventh Accounting Period of the fiscal year of Borrower 42.8%
ending in 2005
The eighth Accounting Period of the fiscal year of Borrower 49.0%
ending in 2005
The ninth Accounting Period of the fiscal year of Borrower 49.5%
ending in 2005
The tenth Accounting Period of the fiscal year of Borrower 44.1%
ending in 2005
The eleventh Accounting Period of the fiscal year of Borrower 45.0%
ending in 2005
The twelfth Accounting Period of the fiscal year of Borrower 49.3%
ending in 2005
The thirteenth Accounting Period of the fiscal year of Borrower 43.5%
ending in 2005
The first Accounting Period of the fiscal year of Borrower 43.9%
ending in 2006
The second Accounting Period of the fiscal year of Borrower 45.6%
ending in 2006 and each Accounting Period thereafter
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3. References. Agent, Lenders and Borrower hereby agree that
all references to the Loan Agreement which are contained in any of the other
Financing Agreements shall refer to the Loan Agreement as amended by this
Amendment No. 2, as such may be amended and supplemented from time to time
hereafter.
4. Representations and Warranties. To induce Agent and Lenders
to enter into this Amendment No. 2, Borrower hereby represents and warrants to
Agent and Lenders that:
(a) The execution, delivery and performance by Borrower of
this Amendment No. 2 and each of the other agreements, instruments and documents
contemplated hereby are within its corporate power, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approval (if any shall be required), and do not and will not contravene or
conflict with any provision of law applicable to Borrower, the articles of
incorporation and by-laws of Borrower, any order, judgment or decree of any
court or governmental agency, or any agreement, instrument or document binding
upon Borrower or any of its property;
(b) Each of the Loan Agreement and the other Financing
Agreements, as amended by this Amendment No. 2, are the legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its
terms, except as the enforcement thereof may be subject to (i) the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditor's rights generally, and (ii) general principles of equity;
(c) The representations and warranties contained in the Loan
Agreement and the other Financing Agreements are true and accurate as of the
date hereof with the same force and effect as if such had been made on and as of
the date hereof; and
(d) Borrower has performed all of its obligations under the
Loan Agreement and the Financing Agreements to be performed by it on or before
the date hereof and as of the date hereof, Borrower is in compliance with all
applicable terms and provisions of the Loan Agreement and each of the Financing
Agreements to be observed and performed by it and no event of default or other
event which upon notice or lapse of time or both would constitute an event of
default has occurred (other than the Existing Defaults).
5. Conditions to Effectiveness. This Amendment No. 2 shall be
effective upon delivery to Agent of a fully executed copy of this Amendment No.
2, together with the payment by Borrower to Agent, for the ratable benefit of
Lenders, of an amendment fee equal to $125,000.
6. Counterparts. This Amendment No. 2 may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Amendment No. 2.
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7. Continued Effectiveness. Except as specifically set forth
herein, the Loan Agreement and each of the Financing Agreements shall continue
in full force and effect according to its terms.
8. Costs and Expenses. Borrower hereby agrees that all
expenses incurred by Agent and Lenders in connection with the preparation,
negotiation and closing of the transactions contemplated hereby, including
without limitation reasonable attorneys' fees and expenses, shall be part of the
Obligations.
9. Release.
(a) In consideration of the agreements of Agent and Lenders
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower, on behalf of itself and
its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges Agent
and Lenders, and their successors and assigns, and their present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (Agent, each
Lender and all such other Persons being hereinafter referred to collectively as
the "Releasees" and individually as a "Releasee"), of and from all demands,
actions, causes of action, suits, covenants, contracts, controversies,
agreements, promises, sums of money, accounts, bills, reckonings, damages and
any and all other claims, counterclaims, defenses, rights of set-off, demands
and liabilities whatsoever (individually, a "Claim" and collectively, "Claims")
of every name and nature, known or unknown, suspected or unsuspected, both at
law and in equity, which Borrower or any of its successors, assigns, or other
legal representatives may now or hereafter own, hold, have or claim to have
against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on or
prior to the day and date of this Amendment No. 2, including, without
limitation, for or on account of, or in relation to, or in any way in connection
with any of the Loan Agreement, or any of the other Financing Agreements or
transactions thereunder or related thereto.
(b) Borrower understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be
used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of
such release.
(c) Borrower agrees that no fact, event, circumstance,
evidence or transaction which could now be asserted or which may hereafter be
discovered shall affect in any manner the final, absolute and unconditional
nature of the release set forth above.
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IN WITNESS WHEREOF, this Amendment No. 2 has been executed as
of the day and year first written above.
FRANK'S NURSERY & CRAFTS, INC.,
as Borrower
By /s/ Xxxx Xxxxxx
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Its SVP - CFO
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CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent and Lender
By /s/ Xxxxxx X. Xxxxxxx
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Its VP
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STANDARD FEDERAL BANK NATIONAL
ASSOCIATION
By LaSalle Retail Finance, a division of LaSalle
Business Credit LLC, as Agent
By /s/ Xxxxxxx X'Xxxxxx
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Its Senior Vice President
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