Exhibit 10.1
WAIVER AND AMENDMENT
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WAIVER AND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of June 25, 2002, by and among XXXXXX, INC., a
Delaware corporation (the "Company"), XXXXXX TECHNICAL SERVICES, INC., a
Delaware corporation, BOTANICALS INTERNATIONAL EXTRACTS, INC., a Delaware
corporation, and ZETAPHARM, INC., a New York corporation, (collectively, the
"Borrowers"), and XXXXX FARGO BANK, N.A. (the "Lender").
RECITALS
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WHEREAS, the Borrowers are currently indebted to the Lender pursuant to the
terms and conditions of that certain Amended and Restated Credit Agreement dated
as of December 7, 2001 (the "Current Agreement"; as amended hereby and from time
to time, the "Agreement"); and
WHEREAS, the Lender and the Borrowers have agreed to certain changes in the
terms and conditions set forth in the Current Agreement and have agreed to amend
the Current Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Current
Agreement shall be amended as follows:
A. Amendments.
1. In Section 1.01 of the Current Agreement, the defined term "Maturity
Date" is amended by replacing the phrase "August 31, 2003" with the phrase
"August 31, 2002" and by replacing the phrase "June 30, 2002" with the phrase
"August 31, 2002".
2. In Section 1.01 of the Current Agreement, the defined term "Revolving
Credit Facility Availability Period" is amended by replacing the phrase "August
31, 2003" with the phrase "August 31, 2002".
3. Section 2.06 of the Current Agreement is amended by replacing the phrase
"August 31, 2003" with the phrase "August 31, 2002".
4. Section 6.07(a) of the Current Agreement shall be deleted in its
entirety and replaced with the following:
"The Borrowers shall not permit the Consolidated
Tangible Net Worth (i) at the end of the fiscal
quarter
of the Company ending December 31, 2001 to be less
than $2,400,000; at the end of the fiscal quarter
of the Company ending March 31, 2002 to be less
than $2,300,000; and at the end of the fiscal
quarter of the Company ending June 30, 2002 to be
less than $1,900,000".
5. Section 6.07(b) of the Current Agreement shall be deleted in its
entirety and replaced with the following:
"The Borrowers will not permit the Consolidated
Operating Cash Flow to be less than: negative
$1,900,000 at the end of the fiscal quarter of the
Company ending December 31, 2001; negative
$1,400,000 at the end of the fiscal quarter of the
Company ending March 31, 2002; and negative
$100,000 at the end of the fiscal quarter of the
Company ending June 30, 2002".
B. Waivers.
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1. The Lender hereby waives, for the Company's fiscal quarters ending
December 31, 2001 and March 31, 2002 only, compliance by the Borrowers with
their covenant contained in Section 6.07(b) of the Agreement, as in effect prior
to this Amendment.
2. The Lender hereby waives compliance by the Borrowers with their covenant
contained in Section 2.07 of the Credit Agreement as in effect prior to this
Amendment.
C. Conditions. This Amendment shall not become effective until the date on
which the Borrowers shall have (i) delivered to the Lender a duly executed Term
Note and duly executed Revolving Credit Note, each substantially in the form
attached hereto as Exhibit A and Exhibit B, respectively, and (ii) paid or
reimbursed the Lender for all of the Lender's costs and expenses, including a
restructuring fee of $22,000, and fees and disbursements of outside counsel and
allocated in-house counsel, in connection with, or related to, the negotiating
and execution and effectiveness of this Agreement, other than the Additional
Restructuring Fee described below.
D. Additional Restructuring Fee. On or prior to July 31, 2002, the
Borrowers shall pay the Lender an additional restructuring fee of $22,000 (the
"Additional Restructuring Fee"); provided that if the Borrowers, on or after the
date hereof and on or prior to July 31, 2002, have made a principal pre-payment
to Lender under the Term Note in the amount of $6,000,000, the Additional
Restructuring Fee shall be waived.
Borrowers acknowledge that a failure to pay the Additional Restructuring Fee,
unless it is waived in accordance with the preceding sentence, shall constitute
an Event of Default under the Credit Agreement.
E. General. Except as specifically provided herein, all terms and
conditions of the Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Agreement shall have the same meaning
when used in this Amendment. This Amendment shall be effective upon delivery by
the Lender to the Borrowers of an executed counterpart original or facsimile
copy.
The Borrowers hereby remake all representations and warranties contained in
the Agreement and reaffirm all covenants set forth therein. The Borrowers
further certify that as of the date of this Amendment, giving effect to the
provisions hereof, there exists no Event of Default as defined in the Agreement,
nor any condition, act or event which with the giving of notice or the passage
of time or both would constitute any such Event of Default.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first written above.
XXXXXX, INC. XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Art Brokx
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Name: Xxxxxxx Xxxxxxxxx Name: Art Brokx
Title: President Title: Vice President
XXXXXX TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
BOTANICALS INTERNATIONAL EXTRACTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
ZETAPHARM, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary and Treasurer
