Exhibit 10.10
AMENDMENT NO. 1
AMENDMENT NO. 1 dated as of October 24, 2006 to the Credit Agreement
referred to below, among 1-800-FLOWERS.COM, INC., the SUBSIDIARY BORROWERS party
hereto, the GUARANTORS party hereto, the LENDERS party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
The Borrowers, the Guarantors, the Lenders party thereto and the
Administrative Agent are parties to a Credit Agreement dated as of May 1, 2006
(as amended, the "Credit Agreement"). The parties hereto wish to amend the
Credit Agreement in certain respects, and accordingly, hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment No. 1 and
not otherwise defined are used herein as defined in the Credit Agreement as
amended hereby.
Section 2. Amendments. Effective as provided in Section 6 hereof, the
Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references to the
Credit Agreement as amended hereby) to "this Agreement" (and indirect references
such as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Credit Agreement as amended hereby.
2.02. Section 7.11 of the Credit Agreement is hereby amended by replacing
each reference therein to "at any time" with the followings words ", as of the
last day of any fiscal quarter of the Company,".
2.03. Section 2.08(c)(ii) of the Credit Agreement is hereby amended by
adding the following proviso to the penultimate sentence of Section 2.08(c)(ii):
"; provided that, notwithstanding the foregoing, at the election of the
Administrative Agent in its sole discretion, any Revolving Credit Loans
outstanding on such Revolving Credit Commitment Increase Date shall be
reallocated among the Revolving Credit Lenders to the extent necessary to keep
the outstanding Revolving Credit Loans ratable with any revised pro rata shares
of such Lenders arising from any nonratable increase in the Revolving Credit
Commitments under this Section 2.08(c)."
Section 3. Waivers. Subject to the satisfaction of the conditions precedent
specified in Section 6 hereof, but with effect on and after the date hereof, the
Lenders hereby waive any Default that may have occurred and be continuing solely
as a result of:
(a) the Borrowers' failure to comply with the requirements of Section
7.11(a) of the Credit Agreement (as in effect immediately prior to the
effectiveness of this Amendment No. 1) at any time on or after September 1, 2006
and prior to the effectiveness of this Amendment No. 1;
(b) the Borrowers' failure to comply with the requirements of Sections
6.11(a), 7.04 and 7.08 of the Credit Agreement and Sections 5.07 and 6.12 of the
Security Agreement with respect to certain corporate reorganizations effected on
or about June 15, 2006 and prior to the effectiveness of this Amendment No. 1;
and
(c) any breach of any representation or warranty made or deemed made by
Borrowers during such period with respect to such compliance.
Section 4. Representations and Warranties. The Company represents and
warrants to the Administrative Agent and Lenders that (a) the representations
and warranties of the Borrowers set forth in Article IV of the Credit Agreement,
and of each Loan Party in each of the other Loan Documents to which it is a
party, shall be true and correct on the date hereof as if made on and as of such
date (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date) and as if each
reference in said Article IV to "this Agreement" included reference to this
Amendment No. 1 and (b) (after giving effect to the waivers under Section 3
hereof) no Default shall have occurred and be continuing.
Section 5. Confirmation of Security Documents. Each of the Borrowers and
the other Loan Parties hereby confirms and ratifies all of its obligations under
the Loan Documents to which it is a party, including, in the case of the
Guarantors, its obligations as a guarantor under Article III of the Credit
Agreement as amended hereby. By its execution on the respective signature lines
provided below, each of the Loan Parties hereby confirms and ratifies all of its
obligations and the Liens granted by it under the Security Documents to which it
is a party, represents and warrants that the representations and warranties set
forth in such Security Documents are complete and correct on the date hereof as
if made on and as of such date and confirms that all references in such Security
Documents to the "Credit Agreement" (or words of similar import) refer to the
Credit Agreement as amended hereby without impairing any such obligations or
Liens in any respect.
Section 6. Conditions Precedent to Effectiveness. The amendments set forth
in Section 2 hereof and the waivers in Section 3 hereof shall become effective
as of the date hereof, upon receipt by the Administrative Agent of one or more
counterparts of this Amendment No. 1 executed by the Loan Parties and the
Required Lenders.
Section 7. Post-Closing. In connection with the effectiveness of this
Amendment No. 1, the Company has agreed to complete, within 30 days of the date
hereof, in form and substance satisfactory to the Administrative Agent, evidence
of compliance with Section 6.11(a) of the Credit Agreement with respect to The
Plow & Hearth I, LLC, a newly formed Domestic Subsidiary of the Company.
Section 8. Miscellaneous. The Borrowers shall pay all reasonable expenses
incurred by the Agent, including the reasonable fees, charges and disbursements
of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to the
Administrative Agent, in connection with the preparation, negotiation, execution
and delivery of this Amendment No. 1. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same agreement and any of the parties hereto may
execute this Amendment No. 1 by signing any such counterpart. This Amendment No.
1 shall be governed by, and construed in accordance with, the law of the State
of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered as of the day and year first above written.
1-800-FLOWERS.COM, INC.
/s/ Gerard M. Gallagher
---------------------------
Gerard M. Gallagher
Corporate Secretary
SUBSIDIARY BORROWERS
BLOOMNET EXCHANGE, INC.
THE CHILDREN'S GROUP, INC.
THE POPCORN FACTORY, INC.
800-FLOWERS, INC.
CHERYL & CO.
THE PLOW & HEARTH, INC.
FANNIE MAY CONFECTIONS BRANDS, INC.
FANNIE MAY CONFECTIONS, INC.
HARRY LONDON CANDIES, INC.
/s/ Gerard M. Gallagher
---------------------------
Gerard M. Gallagher
Corporate Secretary
SUBSIDIARY GUARANTORS
1-800-FLOWERS RETAIL INC.
AMALGAMATED CONSOLIDATED ENTERPRISES, INC.
CONROY'S, INC.
1-800-FLOWERS TEAM SERVICES, INC.
800-FLOWERS, INC.
FRESH INTELLECTUAL PROPERTIES, INC.
BLOOMNET TECHNOLOGIES, INC.
THE PLOW & HEARTH, INC.
WESTBURY INVESTING CORP.
THEGIFT.COM, INC.
GT&C.COM, INC.
THE CHILDREN'S GROUP, INC.
GUARDED REALTY HOLDINGS, LLC
1-800-FLOWERS.COM FRANCHISE CO., INC.
THE POPCORN FACTORY, INC.
1-800-FLOWERS SEASONAL TEAM, INC.
BLOOMNET EXCHANGE, INC.
THE WINETASTING NETWORK
WTN SERVICES, LLC
CHERYL & CO.
FANNIE MAY CONFECTIONS BRANDS, INC.
FANNIE MAY CONFECTIONS, INC.
HARRY LONDON CANDIES, INC.
FMCB ACQUISITION CO., INC.
/s/ Gerard M. Gallagher
---------------------------
Gerard M. Gallagher
Corporate Secretary
LENDERS
JPMORGAN CHASE BANK, N.A.,
Individually and as Administrative Agent
/s/ Tara Lynne Moore
-----------------------------
Tara Lynne Moore
Vice President
BANK OF AMERICA, N.A.
/s/ Steven J. Melicharek
-----------------------------
Steven J. Melicharek
SVP/CPO
WACHOVIA BANK, NATIONAL ASSOCIATION
/s/ Scheline Crutchfield
------------------------------
Scheline Crutchfield
Senior Vice President
NORTH FORK BANK
/s/ Kevin Brown
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Kevin Brown
Senior Vice President
KEYBANK NATIONAL ASSOCIATION
/s/ Marianne T. Meil
--------------------------------
Marianne T. Meil
Senior Vice President
HSBC USA NATIONAL ASSOCIATION
/s/ Andrew D. Ackerman
---------------------------------
Andrew D. Ackerman
Commercial Executive