EXHIBIT 10.15.3
SECOND EXTENSION AGREEMENT
This Second Extension Agreement (this "Agreement"), entered into on June
29, 1994, by and between Sunbelt Nursery Group, Inc., a Delaware corporation
("Borrower"), and Pier 1 Imports, Inc., a Delaware corporation ("Pier 1"),
and Pier-SNG, Inc., a Delaware corporation ("Pier-SNG" and, collectively with
Pier 1, sometimes referred to as "Lender").
RECITALS
A. The parties hereto have previously entered into that certain
Extension Agreement, dated April 25, 1994 (the "First Extension"), providing
for the extension of the date of the maturity (the "Maturity Date") of the
Credit Agreement and of the Notes (as such terms are defined in the First
Extension).
B. The Maturity Date of the Credit Agreement and of the Notes, as so
extended, is June 30, 1994.
C. Borrower is attempting to refinance (the "New Financing") its
obligations under the Credit Agreement and the Notes, and to facilitate the
New Financing, Borrower has requested that Lender amend the Credit Agreement
and the Notes to further extend the maturities thereof as herein provided.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein
shall have the meanings defined for such terms in the First Extension.
2. Extension Consideration. In consideration of Lender's agreement to
extend the Maturity Date to September 21, 1994, Borrower shall,
contemporaneously with the execution of this Agreement, deliver to Lender the
Borrower's 8% promissory note due September 21, 1994, in the principal amount
of $100,000 (the "Consideration").
3. Amendments of the Credit Agreement and the Notes.
(a) Amendment of the Credit Agreement. The definition "Termination
Date" in Section 1.1 of the Credit Agreement is, effective as of the date of
this Agreement and Lender's receipt of the Consideration (the "Effective
Date"), hereby replaced in its entirety as follows:
"Termination Date" shall mean September 21, 1994, or the earlier
date of termination in whole of the Commitment pursuant to Sections
2.7 or 6.2
(b) Amendment of the TCB Note. The definition "Original Termination
Date" in Section 1.1 of the TCB Facility is, effective as of the Effective
Date, hereby replaced in its entirety as follows:
"Original Termination Date" shall mean September 21, 1994.
(c) Amendment to the Standard Chartered Note. The definition
"Termination Date" in Section 1.1 of the SCB Facility is, effective as of the
Effective Date, hereby replaced in its entirety as follows:
"Termination Date" shall mean September 21, 1994, or the earlier
date of termination in whole of the Commitment pursuant to Sections
2.7 or 6.2.
(d) Payment of Accrued Interest. The Notes and Credit Agreement are
hereby amended so as to provide for Borrower's delivery to Lender of the
following interest payments thereunder:
(i) Accrued interest on the Revolving Credit Balance as provided
for under the Notes and Credit Agreement (''Accrued Interest")
for the month of June 1994 shall be payable to Lender on or
before June 30, 1994;
(ii) Accrued Interest for the month of July 1994 shall be payable
to Lender on or before July 31, 1994;
(iii) Accrued Interest for the month of August 1994 shall be
payable to Lender on or before August 31, 1994; and
(iv) Accrued Interest from September 1, 1994, to September 21,
1994, shall be payable to Lender on or before September 21,
1994.
(e) Forgiveness of Certain Indebtedness. In the event Borrower repays
to Lender on or before the Maturity Date an amount equal to the Revolving
Credit Balance less the sum of $220,000 (being the amount of consideration
paid by Borrower under the First Extension and under this Agreement), Lender
shall forgive the amount payable under Borrower's promissory note
constituting the Consideration herein.
(f) Amendment of the Notes and Credit Agreement. Notwithstanding any
provision in the Notes or the Credit Agreement to the contrary, Borrower
shall not have the right to obtain any additional extensions of credit under
the Notes or the Credit Agreement.
4. Waiver. Lender hereby waives until the Maturity Date any default,
breach, violation or event of default under the Credit Agreement, the TCB
Facility or the SCB Facility, and the Notes issued thereunder, including any
cross default(s) arising under (A) Section 6.1(c) of the Credit Agreement and
(B) Section 6.1(d) of each of the TCB Facility and the SCB Facility, and the
Notes issued thereunder, resulting from the failure of Borrower to satisfy
the current ratio requirement set forth in Section 4.1(k)(iv) of each of the
TCB Facility and the SCB Facility, and the failure to timely deliver notice
of such defaults required by Section 4.1(k)(iv) of each of the Credit
Agreement, the TCB Facility and the SCB Facility.
5. Representations and Warranties. (a) To induce Lender to enter into
this Agreement, Borrower hereby represents and warrants to Lender that (i)
Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power
and authority to perform its obligations under this Agreement, (ii) the
execution, delivery and performance of this Agreement have been duly
authorized by all requisite action on the part of Borrower and do not and
will not violate the certificate of incorporation or bylaws of Borrower or
any other agreement to which Borrower is a party, or any law, rule or
regulation, or any order of any court, governmental authority or arbitrator
by which it or any of its properties is bound and (iii) Borrower will apply
the net proceeds of the New Financing to repay the Revolving Credit Balance.
(b) Lender hereby represents and warrants to Borrower that (i)
Pier-SNG is the sole owner of the notes and is successor in interest to the
respective banks under the SCB Facility and the TCB Facility with full power
and authorization to amend such facilities, (ii) each of Pier 1 and Pier-SNG
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has the corporate power and authority
to perform its obligations under this Agreement and (iii) the execution,
delivery and performance of this Agreement have been duly authorized by all
requisite action on the part of Pier 1 or Pier-SNG and do not and will not
violate the certificate of incorporation or bylaws of Pier 1 or Pier-SNG or
any other agreement to which either Pier 1 or Pier-SNG is a party, or any
law, rule or regulation, or any order of any court governmental authority or
arbitrator by which they or any of their properties is bound.
6. Covenants. Notwithstanding any provisions to the contrary
contained in the Credit Agreement, Borrower hereby covenants and agrees that
it will perform, observe and comply with each of the following covenants:
(a) Weekly Financial Report. Borrower shall provide to Lender by
2:00 p.m., Fort Worth, Texas time, on the second business day of each week a
financial report for Borrower for the previous week containing income,
expense and cashflow information. All such reports shall be prepared in
accordance with sound accounting principles consistently applied and shall be
certified by the chief executive officer or the chief financial officer of
Borrower to be true and correct to the best of such person's knowledge.
(b) Other Indebtedness. Borrower shall not, and shall not suffer
its subsidiaries to, repay any indebtedness owing to any parent, affiliate or
controlling person prior to repayment in full of the Revolving Credit
Agreement.
7. Ratification of Loan Documents. Borrower hereby acknowledges and
agrees that the Credit Agreement, the Notes, and all guarantees thereof and
security interests granted in connection therewith in favor of Lender shall
remain in full force and effect and binding on the respective parties
thereto, enforceable in accordance with their respective terms. Except as
provided herein, Borrower hereby ratifies and confirms the Notes and Credit
Agreement and all of its obligations thereunder.
8. No Obligation of Lender. Except as provided herein, Lender shall
have no further obligation whatsoever to extend the maturity of the Notes or
Credit Agreement, waive any Event of Default or defer any payment. Borrower
hereby acknowledges and understands that upon the maturity of the Notes or
Credit Agreement, as extended hereby, Lender shall have the right to proceed
to exercise any and all rights and remedies to which it is entitled, which
may include foreclosure on any collateral securing the Notes and the Credit
Agreement and the institution of legal proceedings.
9. No Implied Waivers. No failure or delay on the part of Lender in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement, the Credit Agreement, the Notes or any
document related thereto shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege under this
Agreement, the Notes or the Credit Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
10. Expenses of lender. Borrower agrees to pay on demand all
reasonable costs and expenses incurred by Lender in connection with the
preparation, negotiation, execution and administration of this Agreement, and
all reasonable costs and expenses incurred by Lender in connection with the
enforcement or preservation of any rights or remedies under this Agreement,
the Credit Agreement or the Notes, including without limitation the
reasonable fees and expenses of Lender's legal counsel.
11. Indemnification. Section 2.16 of the Credit Agreement is
applicable to this Agreement.
12. Survival of Representations and Warranties. All representations
and warranties made in this Agreement shall survive the execution and
delivery of this Agreement, and no investigation by Lender or any closing
shall affect the representations and warranties or the right of Lender to
rely upon them.
13. Review and Construction of Documents. Borrower hereby
acknowledges, and represents and warrants to Lender, that (i) Borrower has
had the opportunity to consult with legal counsel of its own choice and has
been afforded an opportunity to review this Agreement with its legal counsel,
(ii) Borrower has reviewed this Agreement and fully understands the effects
thereof and all terms and provisions contained therein, and (iii) Borrower
has executed this Agreement of its own free will and volition.
14. Entire Agreement; Amendment. This agreement embodies the final,
entire agreement between the parties hereto regarding the maturity extensions
granted herein and supersedes any and all prior commitments, representations
and understandings, whether written or oral, relating to the subject matter
hereof. The provisions of this Agreement may be amended or waived only by an
instrument in writing signed by the partes hereto. The Notes, Credit
Agreement and related documents, including but not limited to the Loan Papers
(as defined in the Credit Agreement), continue to evidence the agreement of
the parties with respect to the subject matter thereof
15. Notices. All notices, requests, demands and other communications
under this Agreement shall be given in accordance with the provisions of the
Loan Papers (as defined in the Credit Agreement).
16. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective heirs,
legal representatives, successors and assigns, provided that Borrower may not
assign any rights or obligations under this Agreement without the prior
written consent of Lender.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
18. Interpretation. Wherever the context hereof shall so require, the
singular shall include the plural, the masculine gender shall include the
feminine gender and the neuter and vice versa. The headings, captions and
arrangements used in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement.
19. Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions hereof, and this
Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
20. Counterparts. This Agreement may be executed and delivered in any
number of counterparts, and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute
one and the same instrument.
21. Further Assurances. Each party to this Agreement agrees to
execute, acknowledge, deliver, file and record such further certificates,
instruments and documents, and to do all other acts and things, as may be
reasonably necessary or advisable to carry out the intents and purposes of
this Agreement.
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as
of the day and year first above written.
SUNBELT NURSERY GROUP, INC.
By:
Title:
PIER 1 IMPORTS, INC.
By:
Title:
PIER-SNG, INC.
By:
Title:
To induce Lender to enter into the foregoing Agreement, each of the
undersigned consent and agree (a) to the execution and delivery of the
foregoing Agreement, (b) that such Agreement shall in no way release,
diminish, impair, reduce or otherwise adversely affect any obligations,
guarantees or assurances heretofore granted by each of the undersigned to
Pier 1 or Pier-SNG, which shall each continue to be in full force and effect.
Each of the undersigned parties waive notice of acceptance of this Agreement
by Lender, which Agreement shall be binding upon each of the undersigned and
the successors and assigns of each of the undersigned and shall inure to the
benefit of Lender and their successors and assigns. It is understood that
SNG Acquisition, Inc. is not guaranteeing the performance of Borrower under
Borrower's $100,000 promissory note constituting the Consideration for the
Second Extension.
SNG ACQUISITION COMPANY, INC.
By:
Title:
WOLFE NURSERY GROUP, INC.
By:
Title:
TIP TOP NURSERIES, INC.
By:
Title:
HOUSTON PATIO & GARDEN CENTERS, INC.
By:
Title:
GREEN BROS. NURSERY, INC.
By:
Title:
SUNBELT MANAGEMENT SERVICES, INC.
By:
Title:
NURSERYLAND GARDEN CENTERS, INC.
By:
Title: