Termination and Release Agreement
Exhibit 10.1
Termination and Release Agreement dated as of April 9, 2008 (this “Agreement”), by
and among The Scotts Company, LLC, a limited liability company organized under the laws of
Ohio (the “Company”), The Scotts Miracle-Gro Company, a company organized under the laws
of Ohio (the “Parent”), and LaSalle Bank National Association (the “Bank”), a bank
organized under the laws of the United States of America. Capitalized terms shall have the
meanings assigned to such terms in the Purchase Agreement (as defined below).
Whereas, pursuant to the Master Accounts Purchase Agreement dated as of April 11,
2007, as amended, by and among the Company, the Parent and the Bank (the “Purchase Agreement”), the
Company has sold, and through the Effective Date will continue to sell interests in its Purchased
Receivables (the “Released Receivables”) to the Bank;
Whereas, the parties to the Purchase Agreement wish to terminate the rights and
obligations of the Company, the Parent and the Bank under the Purchase Agreement and to terminate
each blocked account agreement and to have the Bank reconvey to the Company the Released
Receivables on the terms and conditions set forth herein;
Whereas, the parties to the Purchase Agreement consent to the termination of the
rights and obligations of the Company, the Parent and the Bank under the Purchase Agreement and to
the termination of the blocked account agreement and the reconveyance of the Released Receivables;
Whereas, pursuant to the Purchase Agreement, the Company granted security interests
and other rights in the Released Receivables and certain bank accounts to the Bank;
Whereas, the Company wishes to have the above-mentioned security interests released
and such other rights to be terminated;
Whereas, the Bank desires to sell and assign to the Company all of the Released
Receivables upon the terms and conditions hereinafter set forth; and
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is hereby agreed by and among the parties hereto as follows:
Section 1. Release from Purchase Agreement and Blocked Account Agreements.
(a) The Bank hereby releases and discharges, effective as of the Effective Date, any and all
right, title and interest that it may now or hereafter have or may now or hereafter be entitled to
by virtue of the Purchase Agreement in all receivables and all other assets and property of the
Company, including without limitation the Released Receivables, and does hereby declare the same
fully released and discharged on the Effective Date from any and all security interests created by
virtue of or in connection with the Purchase Agreement.
(b) The Bank does hereby release and discharge, effective as of the Effective Date, any and
all right, title and interest that it may have or be entitled to by virtue of or in connection with
the Purchase Agreement, in the blocked account agreement(s) in the related Blocked Account(s) named
on Schedule I hereto (the “Released Blocked Accounts”).
Section 2. Release of Liens. From and after the Effective Date, the Bank agrees to execute
and deliver, or deliver, as the case may be, to the Company or the Parent proper financing
statements (Form UCC-3) or other instruments or documents, if any, necessary to release all
security interests and other rights of the Bank in and to the Released Receivables and any other
assets or property of the Company, pursuant to the Purchase Agreement or otherwise.
Section 3. Sale of Receivables. Without recourse, representation or warranty (except as set
forth below), the Bank hereby agrees to sell, assign, transfer and convey to the Company on the
Effective Date, and the Company hereby purchases from the Bank all of the Bank’s right, title and
interest to and under such Released Receivables outstanding on the Effective Date, and all proceeds
of the foregoing. The Bank hereby represents that the Bank has not encumbered or transferred any
right, title or interest in and to the Released Receivables.
Section 4. UCC Financing Statement. The Bank agrees to execute and deliver, on the Effective
Date, to the Company any proper financing statements (Form UCC-1 or other similar form) or other
instruments or documents, if any, with respect to Released Receivables sold by the Bank hereunder
meeting the requirements of applicable state law in such manner and in such jurisdiction as are
necessary to perfect and protect the interests of the Company and to deliver either the originals
of such financing statements or a file-stamped copy of such financing statements or other evidence
of such filings to the Company.
Section 5. Conditions Precedent. This Termination and Release shall become effective on the
date (“Effective Date”) of satisfaction of the following conditions precedent: (i) the execution
and delivery hereof by the Company, the Bank and the Parent and (ii) if paid on or before 1:00 p.m.
(Central Standard Time) on April 9, 2008, the receipt of $288,052,797.07 in immediately available
funds, constituting payment in full of the outstanding amount of the Released Receivables and
$210,248.54 in immediately available funds, constituting all other amounts owing to the Bank under
the Purchase Agreement.
Section 6. Further Assurances. The Bank hereby agrees to execute any and all further
documents, agreements and instruments prepared by the Company, and take all further action
-2-
(at the
expense of the Company) that may be required by law or otherwise, necessary or desirable to give
effect to this Agreement and effectuate the termination of the blocked account agreements.
Section 7. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Section 8. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original and all of which, when taken together,
shall constitute one agreement. Delivery of an executed counterpart of a signature page of this
Agreement shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 9. Beneficiaries. This Agreement shall be binding upon and inure to the benefit of
the Bank, the Parent, and the Company and their respective successors and assigns. .
Section 10. Headings. Section headings in this Termination and Release are included for
convenience of reference only and are not part of this agreement for any other purpose.
Section 11. Miscellaneous. The Company agrees to pay on demand all costs and expenses
(including reasonable fees and expenses of counsel) of or incurred by the Bank in connection with
the negotiation, preparation, execution and delivery of this Agreement.
The undersigned each agree and confirm that all references in the Purchase Agreement
to the “Termination Date” shall be deemed to refer to the Effective Date.
-3-
In Witness Whereof, the parties hereto have executed and delivered this Termination
and Release Agreement as of the date first written above.
| LaSalle Bank National Association |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
| The Scotts Company LLC |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | C.F.O. | |||
| The Scotts Miracle-Gro Company |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | C.F.O. | |||
-4-
Schedule I
Released Company & Lock-Box Accounts
| Bank | Collection Account | |||
JPMorgan Chase Bank, N.A. |
744446444 | |||
JPMorgan Chase Bank, N.A. |
744446493 | |||
JPMorgan Chase Bank, N.A. |
744446519 | |||
-5-
