EXHIBIT 10.2
AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT
This Amendment No. 3 ("Amendment No. 3") is dated as of the
25th day of November, 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 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, Agent and Lenders have 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. Amendment to Loan Agreement. The Loan Agreement is hereby amended as
follows:
(a) A new Section 2.1(e) is added to the Loan Agreement after Section
2.1(d) as follows:
(d) Notwithstanding anything contained in this Agreement to the
contrary, until such time as one or more of the Lenders (other than Congress)
have Commitments, the principal amount of which aggregate at least $8,000,000,
(i) the aggregate amount of the Loans, the Letter of Credit Accommodations and
the B/A Accommodations outstanding at any time shall not exceed $42,000,000, and
(ii) in the event the aggregate amount of the Loans, Letter of Credit
Accommodations and B/A Accommodations so exceed $42,000,000, such event shall
not limit, waive or otherwise affect any rights of Agent or Lenders in such
circumstances or on any future occasions and Borrower shall, upon demand by
Agent, which may be made at any time or from time to time, immediately repay to
Agent the entire amount of any such excess(es) for which payment is demanded.
(b) Section 9.18(b) of the Loan Agreement is amended to add the
following paragraph at the end of such section:
Notwithstanding anything in this section 9.18(b) to the contrary,
Borrower shall not be required to comply with the ratio of accounts payable to
Cost of Inventory for any Accounting Period in the fiscal year ending 2004.
Furthermore, Borrower, Agent and Lenders agree to reset the ratios required for
each Accounting Period in any fiscal year ending in 2005 based on the good faith
and reasonable projections delivered by Borrower to Agent at least 30 days prior
to the beginning of the fiscal year ended in 2005; provided that (i) the failure
of Borrower to deliver such projections as required shall constitute an Event of
Default, and (ii) if Borrower, Agent and Lenders are unable to agree on ratios
for each Accounting Period in the fiscal year ending in 2005, the ratios set
forth above for each Accounting Period shall remain unchanged and in full force
and effect.
2. Other Agreements. Borrower. Agent and Lenders agree that failure of
Kimco to make available Overline Revolving Credit Loans of at least $7,000,000
as provided in the Third Amendment to the Credit and Security Agreement between
Borrower and Kimco at all times during the period commencing January 1, 2004 and
ending April 1, 2004, shall constitute and Event of Default.
3. References. Agent, Lenders and Borrowers hereby agree that all
references to Loan Agreement which are contained in any of the other Financing
Agreements shall refer to the Loan Agreement as amended by this Amendment No. 3,
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. 3, Borrower hereby represents and warrants to Agent and
Lenders that:
(a) The execution, delivery and performance by Borrower of this
Amendment No. 3 and each of the other agreements, instruments and documents
contemplated hereby are within 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. 3, 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 had 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 and event of
default has occurred (other than the Existing Defaults).
5. Conditions to Effectiveness. This Amendment No. 3 shall be effective
upon delivery to Agent of a fully executed copy of this Amendment No. 3,
together with the payment by Borrower to Agent, for the ratable benefit of
Lenders, of an amendment fee equal to $70,000.
6. Counterparts. This Amendment No. 3 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. 3.
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 agree that all expenses incurred
by Agent and Lenders in connection with the preparation, negotiation and closing
of the transactions contemplate 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, 3, 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.
IN WITNESS WHEREOF, this Amendment No. 3 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 Senior Vice President and CFO
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CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent and Lender
By /s/ Xxxxxx Xxxxxxx
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Its Vice President
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