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EXHIBIT 10.1.3
THIRD AMENDMENT TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment"),
dated as of November 19, 1999, is entered into among HOME INTERIORS & GIFTS,
INC., a Texas corporation (the "Borrower"), the institutions listed on the
signature pages hereof that are parties to the Credit Agreement defined below
(collectively, the "Lenders"), THE CHASE MANHATTAN BANK, as syndication agent
(in said capacity, the "Syndication Agent"). NATIONAL WESTMINSTER BANK, PLC, as
documentation agent (the "Documentation Agent"), THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, as a co-agent, SOCIETE GENERALE, as a co-agent, CITICORP
USA. INC., as a co-agent (collectively, the "Co-Agents"), and BANK OF AMERICA,
N.A., formerly known as NationsBank, N.A., as administrative agent (in said
capacity, the "Administrative Agent").
BACKGROUND
A. The Borrower, the Lenders, the Documentation Agent, the
Syndication Agent, the Co-Agents, and the Administrative Agent are parties to
that certain Credit Agreement, dated as of June 4, 1998, as amended by that
certain First Amendment to Credit Agreement, dated as of December 18, 1998, and
that certain Second Amendment to Credit Agreement dated as of March 12, 1999
(said Credit Agreement, as amended, the "Credit Agreement"; the terms defined in
the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement).
B. The Borrower, the Lenders, the Documentation Agent, the
Syndication Agent, the Co-Agents, and the Administrative Agent desire to make
certain amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Lenders, the Documentation Agent, the Syndication Agent, the Co-Agents, and the
Administrative Agent covenant and agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding the following definitions in the proper alphabetical order:
"'Frankford Facility' means the approximately 630,000 square
foot new warehouse and distribution facility of the Borrower in
Carrollton, Texas."
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"`Xxxxxx Equities Properties' means the seven properties
owned by the Borrower to be purchased by Xxxxxx Equities, Inc.,
located at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxx, 0000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxx, 0000 X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx, 000 X. Xxxxxxx
Xxxx, Xxxxxxx, Xxxxx, 00000 Home Road, Frisco, Texas, 0000 X.
Xxxxxxxx, Xxxxxxx, Xxxxx, and 000 X. Xxxxxxx 000, Xxxxxxxxxx, Xxxxx."
"`Xxxxxx Equities Properties Net Cash Proceeds' means the Net
Cash Proceeds from the sale of the Xxxxxx Equities Properties."
"`Qualified Intermediary' has the meaning given to such term
in Treasury Regulation Section 1.1031(k)-1(g)(4)(iii)."
"`Qualified Intermediary Agreement' means that certain
Deferred Exchange Agreement between the Borrower and Texas Escrow
Company, Inc. related to the sale of the Xxxxxx Equities Properties."
(b) Article 5 of the Credit Agreement is hereby amended by adding
the following Section at the end thereof:
"Section 5.13 Landlord's Waivers. The Borrower shall, in good
faith, use commercially reasonable efforts to obtain, in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel, one or more landlord's waivers executed by the landlord of
the Xxxxxx Equities Properties."
(c) Article 5 of the Credit Agreement is hereby amended by adding
the following Section at the end thereof:
"Section 5.14 Xxxxxx Equities Properties Net Cash Proceeds.
The Xxxxxx Equity Properties Net Cash Proceeds shall (i) immediately
upon the sale of the Xxxxxx Equities Properties, be placed on deposit
with a Qualified Intermediary and (ii) only be accessible to the
Borrower for costs associated with the purchase and improvement of the
Frankford Facility. Upon the earlier of (i) the occurrence of an Event
of Default and a demand by the Administrative Agent at the request of
the Determining Lenders (subject to the applicable terms of the
Qualified Intermediary Agreement) or (ii) the failure of the purchase
of the Frankford Facility to occur during the "Exchange Period" as
defined in Treasury Regulation Section 1.1031(k)-l(b)(2)(ii), the
Borrower shall deliver, or cause to be delivered, to the
Administrative Agent as Collateral the Xxxxxx Equity Properties Net
Cash Proceeds. Concurrent with such delivery, the Borrower shall
execute such documents and take such other actions as are determined
by the Administrative Agent to be reasonably necessary to perfect a
Lien in the Xxxxxx Equity Properties Net Cash Proceeds in favor of the
Administrative Agent for the benefit of the Lenders."
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(d) Section 7.3(k)is hereby amended by deleting the dollar amount
"$5,000,000" therein and inserting the dollar amount "$6,000,000" in lieu
thereof.
(e) Section 7.5 of the Credit Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"Section 7.5 Sale of Assets. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell (including for discount or
otherwise), lease, transfer or otherwise dispose of assets, except (a)
sales of inventory and other assets sold in the ordinary course of
business, (b) sales or other dispositions of worn-out or obsolete
assets or assets no longer useful in the conduct of the Borrower's
business in the ordinary course of business, (c) sales of Cash and
Cash Equivalents in the ordinary course of business, (d) sales of
assets (excluding the Xxxxxx Equities Properties) in which the Net
Cash Proceeds thereof are used within 365 days of such sale to
purchase assets of similar value and quality and business utility to
those assets sold, provided that the aggregate amount of Net Cash
Proceeds outstanding and pending reinvestment pursuant to this clause
(d) shall not exceed $5,000,000 at any time, (e) sales and
dispositions (i) from any Domestic Subsidiary to the Borrower or any
other Domestic Subsidiary and (ii) from any Foreign Subsidiary to the
Borrower or any of its Subsidiaries, (f) transfers resulting from any
casualty or condemnation of property or assets, (g) the sale or
discount of overdue accounts receivable in the ordinary course of
business, in connection with the compromise or collection thereof, (h)
licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in
each case in the ordinary course of business and which do not
materially interfere with the business of the Borrower and its
Subsidiaries, (i) the sale of assets in respect of the Candle Making
Joint Venture not to exceed $2,500,000 in aggregate amount, (j) sales
of assets during any fiscal year the aggregate Net Cash Proceeds of
which do not exceed $1,000,000, (k) assets sales, the Net Cash
Proceeds of which are applied in accordance with Section 2.5(c)
hereof, and (1) sale of the Xxxxxx Equities Properties; provided that
(i) until the closing of the purchase of the Frankford Facility, the
Net Cash Proceeds thereof are held on deposit with a Qualified
Intermediary or the Administrative Agent and (ii) the Net Cash
Proceeds thereof are used to purchase and/or construct and improve the
Frankford Facility or the Borrower's new corporate headquarters."
(f) Section 7.10 of the Credit Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"Section 7.10 Sale and Leaseback. The Borrower shall not, and shall
not permit any of its Subsidiaries to, enter into any arrangement
whereby it sells or transfers any of its assets, and thereafter rents
or leases such assets, except the Xxxxxx Equity Properties, provided
that this Section 7.10 hereof does not prohibit any sale and leaseback
resulting from the incurrence of any lease or purchase money financing
in respect of any capital assets entered into within 90 days of the
acquisition of such capital asset for the purpose of providing
permanent financing of such capital asset permitted under Section 7.1
hereof."
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(g) Section 7.11 of the Credit Agreement is hereby amended by
inserting the following proviso at the end of such section:
"; provided, however, notwithstanding anything in this Section 7.11
to the contrary, for purposes of Section 7.11 only, Capital
Expenditures shall not include (i) the difference between the Xxxxxx
Equity Properties Net Cash Proceeds and the purchase price of the
Frankford Facility, and (ii) build-out costs for the Frankford
Facility, costs related to the automated order fulfillment system for
the Frankford Facility and leasehold improvements for the Borrower's
new corporate headquarters, not to exceed with respect to both clauses
(i) and (ii) above $23,400,000 in aggregate amount."
(h) The first sentence of Section 11.6(d) of the Credit Agreement
is hereby amended by deleting clause (iv) thereof and inserting the following in
lieu thereof:
"(iv) no such assignment, other than to an Affiliate of a Lender, to
an existing Lender hereunder or to a Related Fund, shall be in an
amount of less than $5,000,000, unless the portion of the Commitments
or Advances of a Lender is less than $5,000,000, in which case such
assignment may be in the total amount of such Lender's portion of the
Commitments or Advances; provided, however, notwithstanding anything
herein to the contrary, in no event shall the portion of any
Commitments or Advances retained by any Lender in connection with and
as a result of any such assignment be less than $1,000,000."
2. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT.
By its execution and delivery hereof, the Borrower represents and warrants that,
as of the date hereof and after giving effect to the amendment contemplated by
the foregoing Section 1:
(a) the representations and warranties contained in the Credit
Agreement (other than those representations and warranties that specifically
relate to an earlier date) and the other Loan Documents are true and correct in
all material respects on and as of the date hereof as made on and as of such
date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default;
(c) the Borrower has full corporate power and authority to
execute and deliver this Third Amendment, and this Third Amendment constitutes
the legal, valid and binding obligations of the Borrower, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
Debtor Relief Laws and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except as rights
to indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this Third
Amendment nor the consummation of any transactions contemplated herein will
conflict with any material Applicable Law, the articles of incorporation, bylaws
or other governance document of the Borrower or any of
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its Subsidiaries, or any material indenture, agreement or other instrument to
which the Borrower or any of its Subsidiaries or any of their respective
property may be bound; and
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person (including
the Board of Directors of the Borrower or any Guarantor), is required for the
execution, delivery or performance by the Borrower of this Third Amendment or
the acknowledgment of this Third Amendment by any Guarantor other than (i) those
approvals and consents already obtained, and (ii) consents under immaterial
contractual obligations.
3. CONDITIONS OF EFFECTIVENESS. This Third Amendment shall be
effective as of November 19, 1999, subject to the following:
(a) the Administrative Agent shall receive counterparts of this
Third Amendment executed by the Determining Lenders, the Required Facility A
Term Loan Lenders and the Required Facility B Term Loan Lenders;
(b) the Administrative Agent shall receive counterparts of this
Third Amendment executed by the Borrower and acknowledged by each Guarantor;
(c) arrangements shall have been made, in form and substance
reasonably satisfactory to the Administrative Agent and its counsel, for the
possession by a Qualified Intermediary of the Xxxxxx Equity Properties Net Cash
Proceeds; and
(d) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall reasonably
require.
4. GUARANTOR ACKNOWLEDGMENT. By signing below, each of the
Guarantors (i) acknowledges, consents and agrees to the execution and delivery
of this Third Amendment, (ii) acknowledges and agrees that its obligations in
respect of its Subsidiary Guaranty are not released, diminished, waived,
modified, impaired or affected in any manner by this Third Amendment or any of
the provisions contemplated herein, (iii) ratifies and confirms its obligations
under its Subsidiary Guaranty, and (iv) acknowledges and agrees that it has no
claims or offsets against, or defenses or counterclaims to, its Subsidiary
Guaranty solely as a result of the execution and delivery of this Third
Amendment.
5. REFERENCE TO THE CREDIT AGREEMENT.
(a) Upon the effectiveness of this Third Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", or words of like
import shall mean and be a reference to the Credit Agreement, as amended by this
Third Amendment.
(b) The Credit Agreement, as amended by this Third Amendment,
and all other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
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6. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, reproduction, execution and delivery
of this Third Amendment and the other instruments and documents to be delivered
hereunder (including the reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent with respect thereto and with respect to advising
the Administrative Agent as to its rights and responsibilities under the Credit
Agreement, as amended by this Third Amendment).
7. EXECUTION IN COUNTERPARTS. This Third Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each 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.
8. GOVERNING LAW: BINDING EFFECT. This Third Amendment shall be
governed by and construed in accordance with the Laws of the State of Texas
without regard to the principles of the conflicts of Laws and the applicable
federal Laws and shall be binding upon the Borrower, the Administrative Agent,
the Syndication Agent, the Documentation Agent and each Lender and their
respective successors and assigns.
9. HEADINGS. Section headings in this Third Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Third Amendment for any other purpose.
10. ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY
THIS THIRD AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as the date first written.
HOME INTERIORS & GIFTS, INC.
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXXXX
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Title: CHIEF FINANCIAL OFFICER
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BANK OF AMERICA, N.A., as Administrative
Agent and as a Lender
By: /s/ XXXXXXX XXXXXX
------------------------------------
Xxxxxxx Xxxxxx XXXXXXX XXXXXX
Vice President VICE PRESIDENT
THE CHASE MANHATTAN BANK, as Syndication
Agent and as a Lender
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXXXX
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Title: MANAGING DIRECTOR
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THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, as Co-Agent and as a Lender
By: /s/ B. XXXX XXXXX
------------------------------------
Name: B. Xxxx Xxxxx
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Title: Vice President
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SOCIETE GENERALE, as Co-Agent and as a
Lender
By: /s/ XXXXXXX X. XXX
------------------------------------
Name: Xxxxxxx X. Xxx
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Title: Managing Director
-----------------------------
CITICORP USA, INC., as Co-Agent and as a
Lender
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXXX
------------------------------
Title: MANAGING DIRECTOR/SCO
-----------------------------
BANK ONE, TEXAS, N.A.
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
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Title: Managing Director
-----------------------------
BANKERS TRUST COMPANY
By: /s/ XXXXX X. XXXX
------------------------------------
Name: XXXXX XXXX
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Title: PRINCIPAL
-----------------------------
BHF (USA) CAPITAL Corporation
By: /s/ XXXXXXX XXXXX
------------------------------------
Name: XXXXXXX XXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
By: /s/ XXXXXXXXXXX XXXXXX
------------------------------------
Name: XXXXXXXXXXX XXXXXX
------------------------------
Title: ASSOCIATE
-----------------------------
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: XXXXXXX XXXXXXX
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Title: ASSOCIATE
-----------------------------
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By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Name: XXXXXX X. XXXXXXXX
------------------------------
Title: EXECUTIVE VICE PRESIDENT
-----------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Name: XXXXXX X. XXXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
NATIONAL CITY BANK OF KENTUCKY
By: /s/ XXX XXXXXXX
------------------------------------
Name: XXX XXXXXXX
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Title: VICE PRESIDENT
-----------------------------
BALANCED HIGH-YIELD FUND I
By: BHF (USA) Capital Corporation
acting as attorney-in-fact
By: /s/ XXXXXXX XXXXX
------------------------------------
Name: XXXXXXX XXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
By: /s/ XXXXXXXXXXX XXXXXX
------------------------------------
Name: XXXXXXXXXXX XXXXXX
------------------------------
Title: ASSOCIATE
-----------------------------
KZH ING-2 LLC
By: /s/ XXXXX XXXX
------------------------------------
Name: Xxxxx Xxxx
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Title: Authorized Agent
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DELANO COMPANY
By: Pacific Investment Management
Company, As its Investment Advisor
By: Pimco Management Inc., A General
Partner
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc.,
as Collateral Manager
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Manager
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: XXXXXXX XXXXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
FIRST DOMINION FUNDING I
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as
General Partner
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
By: TCW Investment Management Company,
as Investment Manager
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW Advisers (Bermuda), Ltd., as
General Partner
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
By: TCW Investment Management Company,
as Investment Manager
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
CAPTIVA III FINANCE LTD., as advised by
Pacific Investment Management Company
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC
as Collateral Manager
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXX
------------------------------
Title: MANAGING DIRECTOR
-----------------------------
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. XXXXX XXXXXX
------------------------------------
Name: J. XXXXX XXXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXX
------------------------------
Title: MANAGING DIRECTOR
-----------------------------
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
FUND
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: XXXXXXX XXXXXXX
------------------------------
Title: VICE PRESIDENT
-----------------------------
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as
Investment Advisor
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Name: XXXXXXX XXXXXXX
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Title: VICE PRESIDENT
-----------------------------
ACKNOWLEDGED AND AGREED:
DALLAS WOODCRAFT, INC., a Texas corporation
GIA, INC., a Nebraska corporation
HOMCO, INC., a Texas corporation
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
Name: XXXXXXX X. XXXXXXXXX
-------------------------------
Title: SECRETARY
------------------------------
HOMCO PUERTO RICO, INC., a Delaware corporation
SPRING VALLEY SCENTS, INC., a Texas corporation
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: XXXXXXX X. XXXXXXXXX
----------------------------------
Title: SECRETARY
---------------------------------
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