Exhibit 10.18
FIFTH AMENDMENT TO CREDIT AGREEMENT
-----------------------------------
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
December 8, 1998, is by and among VERDANT BRANDS, INC. ("Verdant"), SAFER, INC.
("Safer"), SURECO, INC. ("SureCo"), CONSEP, INC. ("Consep"), XXXXXXX XXXX INC.,
("Xxxx"), PACOAST INC. "(Pacoast") and VALLEY GREEN CENTER, INC. ("Valley")
(Verdant, Safer, SureCo, Consep, Pacoast, Xxxx and Valley are sometimes referred
to herein individually as a "Borrower" and collectively as the "Borrowers") and
GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation, as Lender.
RECITALS
--------
A. Verdant, Safer and Sureco and Lender are parties to that certain
Credit Agreement dated as of May 2, 1997 (as from time to time amended,
restated, supplemented or otherwise modified and in effect, the "Credit
Agreement"), pursuant to which Lender has made and may hereafter make loans and
advances and other extensions of credit.
B. Verdant, Safer and Sureco wish, and Lender is willing, to amend
certain provisions of the Credit Agreement, all on the terms and conditions set
forth in this Amendment.
C. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment. Capitalized terms used herein
without definition are so used as defined in Annex A to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Consent and Waiver.
(a) Lender hereby consents to the Consep Transaction and hereby waives
any Default or Event of Default that may arise under Section 8.1(l) as a result
of the consummation of the Consep Transaction.
(b) Any Default or Event of Default that may arise from Borrowers'
failure to achieve the Interest Coverage Ratio contained in Section (d) of Annex
G to the Credit Agreement is hereby waived for the Fiscal Quarter ended
September 30, 1998.
2. Amendment of Credit Agreement.
(a) The definition of "Borrowers" contained in the recitals to the
Credit Agreement is hereby amended to include Consep, Pacoast, Xxxx and Valley
therein. In addition, each reference to "Borrower" or "Borrowers" contained in
the other Loan Documents shall be deemed to include Consep, Pacoast, Xxxx and
Valley therein. By its execution of this Amendment, each of Consep, Pacoast,
Xxxx and Valley agree, from and after the date hereof, to be a Borrower
under the Credit Agreement and to be liable for all of the Obligations of a
Borrower under the terms of the Loan Documents.
(b) Section 3 is hereby amended by adding the following subsections at
the end thereof:
3.28 Consep Merger Agreement. Verdant has delivered to Lender
a complete and correct copy of the Consep Merger Agreement (including
all schedules, exhibits, amendments, supplements, modifications,
assignments and all other documents delivered pursuant thereto or in
connection therewith). No Credit Party and no other Person party
thereto is in default in the performance or compliance with any
provisions thereof. The Consep Merger Agreement complies with all
applicable laws. All requisite approvals by Governmental Authorities
having jurisdiction over Consep, any other Credit Party and other
Persons referenced therein, with respect to the transactions
contemplated by the Consep Merger Agreement, have been obtained, and no
such approvals impose any conditions to the consummation of the
transactions contemplated by the Consep Merger Agreement or to the
conduct by any Credit Party of its business thereafter. To the best of
each Credit Party's knowledge, none of Consep's representations or
warranties in the Consep Merger Agreement contain any untrue statement
of a material fact or omit any fact necessary to make the statements
therein not misleading. Each of the representations and warranties
given by each applicable Credit Party in the Consep Merger Agreement is
true and correct in all material respects.
(c) Section 6.1 is hereby amended by deleting the first paragraph
thereof and replacing it with the following:
6.1 Mergers, Subsidiaries, Etc. On and after the Closing Date
no Credit Party shall directly or indirectly, by operation of law or
otherwise, (a) form or acquire any Subsidiary, or (b) merge with,
consolidate with, acquire all or substantially all of the assets or
capital stock of, or otherwise combine with or acquire, any Person,
except (i) that any Borrower may merge with another Borrower, provided
that Verdant shall be the survivor of any such merger to which it is a
party and (ii) Canada, Inc. 3032809 and Chemfree Environment, Inc. may
be merged into Safer Canada, provided that in each case Safer Canada
shall be the surviving corporation of such merger.
(d) Section 6.2(b) is hereby amended by deleting it in its entirety and
replacing it with the following:
(b) each Credit Party may maintain its existing investments in
its Subsidiaries as of December 8, 1998; provided, however, that the
aggregate value of Inventory transferred or otherwise conveyed from all
Credit Parties to, and held by,
2
Consep GmbH and Consep De Mexico collectively shall not exceed
$1,000,000 in the aggregate at any time;
(e) Section 6.3(a) is hereby amended by deleting clause (viii) thereof
in its entirety and replacing it with the following:
(viii) Indebtedness consisting of intercompany loans and
advances made by any Borrower to any other Borrower, provided that (A)
each Borrower shall have executed and delivered to each other Borrower,
on the Closing Date or, if later, on the date such Person becomes a
Borrower under this Agreement, as applicable, a demand note
(collectively, the "Intercompany Notes") to evidence any such
intercompany Indebtedness owing at any time by such Borrower to such
other Borrowers, which Intercompany Notes shall be in form and
substance satisfactory to Lender and shall be pledged and delivered to
Lender pursuant to the applicable Pledge Agreement or Security
Agreement as additional collateral security for the Obligations; (B)
each Borrower shall record all intercompany transactions on its books
and records in a manner satisfactory to Lender; (C) the obligations of
each Borrower under any such Intercompany Notes shall be subordinated
to the Obligations of such Borrower hereunder in a manner satisfactory
to Lender; (D) at the time any such intercompany loan or advance is
made by any Borrower to any other Borrower and after giving effect
thereto, each such Borrower shall be Solvent; and (E) no Default or
Event of Default would occur and be continuing after giving effect to
any such proposed intercompany loan.
3. Amendment of Annexes to Credit Agreement.
(a) Annex A to the Credit Agreement is hereby amended by adding the
following definitions in their proper alphabetical order:
"Consep" shall mean Consep, Inc., an Oregon corporation.
"Consep Borrowing Base" shall mean, as of any date of
determination by Lender, from time to time, an amount equal to the sum
at such time of:
(a) up to eighty-five percent (85%) of the Eligible Accounts
of Consep, less any Reserves established by Lender at such time; and
(b) (i) for any Revolving Credit Advance occurring during the
months of July through November of any Fiscal year, sixty percent (60%)
of the book value of the Eligible Inventory of Consep, and (ii) for any
Revolving Credit Advance occurring during the months of January through
June or the month of December of any Fiscal Year, sixty-five percent
(65%) of the book value of the Eligible Inventory of Consep; the book
value of Eligible Inventory shall be valued on a first-in, first-out
3
basis (at the lower of cost or market), less any Reserves established
by Lender at such time.
"Consep De Mexico" shall mean Consep De Mexico, a Mexican
corporation wholly-owned by Consep.
"Consep GmbH" shall mean Consep GmbH, an Austrian corporation
wholly-owned by Consep.
"Consep Merger Agreement" shall mean that certain Agreement
and Plan of Merger, dated September 8, 1998, by and among Verdant,
Consep Acquisition, Inc. and Consep, together with all schedules and
exhibits related thereto, as the same may have been heretofore or may
hereafter be amended, restated, modified or otherwise supplemented from
time to time.
"Consep Pledge Agreement" shall mean the Pledge Agreement,
dated as of December 8, 1998, executed by Consep in favor of Lender,
pledging the Stock of its Subsidiaries and all Intercompany Notes owing
to or held by it.
"Consep Security Agreement" shall mean the Security Agreement,
dated as of December 8, 1998, entered into between Lender and Consep.
"Consep Transaction" shall mean the acquisition by Verdant
pursuant to the Consep Merger Agreement of all of the capital stock of
Consep.
"Farchan" shall mean Farchan Laboratories, Inc., a Florida
corporation.
"Farchan Guaranty" shall mean the Guaranty, dated as of
December 8, 1998, executed by Farchan in favor of Lender.
"Xxxx" shall mean Xxxxxxx Xxxx Inc., a California corporation.
"Xxxx Borrowing Base" shall mean, as of any date of
determination by Lender, from time to time, an amount equal to the sum
at such time of:
(a) up to eighty-five (85%) of the Eligible Accounts of Xxxx,
less any Reserves established by Lender at such time; and
(b) (i) for any Revolving Credit Advance occurring during the
months of July through November of any Fiscal year, sixty percent (60%)
of the book value of the Eligible Inventory of Xxxx, and (ii) for any
Revolving Credit Advance occurring during the months of January through
June or the month of December of any Fiscal Year, sixty-five percent
(65%) of the book value of the Eligible Inventory of Xxxx;
4
the book value of Eligible Inventory shall be valued on a first-in,
first-out basis (at the lower of cost or market), less any Reserves
established by Lender at such time.
"Xxxx Security Agreement" shall mean the Security Agreement,
dated as of December 8, 1998, entered into between Lender and Xxxx.
"Pacoast" shall mean Pacoast Inc., a California corporation.
"Pacoast Borrowing Base" shall mean, as of any date of
determination by Lender, from time to time, an amount equal to the sum
at such time of:
(a) up to eighty-five percent (85%) of the Eligible Accounts
of Pacoast, less any Reserves established by Lender at such time; and
(b) (i) for any Revolving Credit Advance occurring during the
months of July through November of any Fiscal year, sixty percent (60%)
of the book value of the Eligible Inventory of Pacoast, and (ii) for
any Revolving Credit Advance occurring during the months of January
through June or the month of December of any Fiscal Year, sixty-five
percent (65%) of the book value of the Eligible Inventory of Pacoast;
the book value of Eligible Inventory shall be valued on a first-in,
first-out basis (at the lower of cost or market), less any Reserves
established by Lender at such time.
"Pacoast Security Agreement" shall mean the Security
Agreement, dated as of December 8, 1998, entered into between Lender
and Pacoast.
"Valley" shall mean Valley Green Center, Inc., a Massachusetts
corporation.
"Valley Borrowing Base" shall mean, as of any date of
determination by Lender, from time to time, an amount equal to the sum
at such time of:
(a) up to eighty-five percent (85%) of the Eligible Accounts
of Valley, less any Reserves established by Lender at such time; and
(b) (i) for any Revolving Credit Advance occurring during the
months of July through November of any Fiscal year, sixty percent (60%)
of the book value of the Eligible Inventory of Valley, and (ii) for any
Revolving Credit Advance occurring during the months of January through
June or the month of December of any Fiscal Year, sixty-five percent
(65%) of the book value of the Eligible Inventory of Valley; the book
value of Eligible Inventory shall be valued on a first-in, first-out
basis (at the lower of cost or market), less any Reserves established
by Lender at such time.
5
"Valley Security Agreement" shall mean the Security Agreement,
dated as of December 8, 1998, entered into between Lender and Valley.
(b) Annex A to the Credit Agreement is hereby amended by deleting the
definitions of "Aggregate Borrowing Base", "Borrowing Base", "Collateral
Documents", "Pledge Agreements" and "Restricted Payment" and replacing such
definitions with the following:
"Aggregate Borrowing Base" shall mean, as of any date of
determination, an amount equal to the sum of the Verdant Borrowing
Base, the Safer Borrowing Base, the SureCo Borrowing Base, the Consep
Borrowing Base, the Xxxx Borrowing Base, the Pacoast Borrowing Base and
the Valley Borrowing Base and, following the consummation of any
Permitted Acquisition in which the Target acquired therein (or any
Subsidiary of the Target) becomes a Subsidiary of Verdant and a
Borrower in accordance with the terms of the Agreement, the Target
Borrowing Base of such Person.
"Borrowing Base" shall mean, as the context may require, the
Verdant Borrowing Base, the Safer Borrowing Base, the SureCo Borrowing
Base, the Consep Borrowing Base, the Xxxx Borrowing Base, the Pacoast
Borrowing Base and the Valley Borrowing Base and, following the
consummation of any Permitted Acquisition in which the Target acquired
therein (or any Subsidiary of the Target) becomes a Subsidiary of
Verdant and a Borrower in accordance with the terms of the Agreement,
the Target Borrowing Base of such Person, or any such Borrowing Base.
"Collateral Documents" shall mean the Security Agreement, the
Safer Canada Security Agreement, the SureCo Security Agreement, the
Consep Security Agreement, the Xxxx Security Agreement, the Pacoast
Security Agreement, the Valley Security Agreement, the Pledge
Agreements, the Guaranties, the Patent Security Agreements, the
Trademark Security Agreements, the Copyright Security Agreements and
all similar agreements entered into guaranteeing payment of, or
granting a Lien upon property as security for payment of, the
Obligations.
"Pledge Agreements" shall mean, collectively, the Verdant
Pledge Agreement, the Safer Pledge Agreement, the SRI Pledge Agreement,
the Consep Pledge Agreement and any pledge agreements entered into
after the Closing Date by any Credit Party (as required by the
Agreement or any other Loan Document).
"Restricted Payment" of any Person shall mean (a) the
declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other
property or assets in respect of such Person's Stock, (b) any payment
on account of the purchase, redemption, defeasance, sinking fund or
other retirement of such Person's Stock or any other
6
payment or distribution made in respect thereof, either directly or
indirectly, (c) any payment or prepayment of principal of, premium, if
any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar
payment and any claim for rescission with respect to, any Subordinated
Debt; (d) any payment made to redeem, purchase, repurchase or retire,
or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire Stock of such Person now or hereafter
outstanding; (e) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase
or sale of, any shares of such Person's Stock or of a claim for
reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission; (f) any payment,
loan, contribution, or other transfer of funds or other property to any
Stockholder of such Person; (g) any payment of management fees (or
other fees of a similar nature) by such Person to any Stockholder of
such Person or its Affiliates; and (h) in the case of any Credit Party,
any payment of any earn-out, non-compete, consulting or similar
obligation incurred in connection with any Permitted Acquisition.
(c) Annex C to the Credit Agreement is hereby deleted in its entirety
and replaced with the attached Annex C.
4. Representations and Warranties of Borrower. In order to induce
Lender to enter into this Amendment, Borrowers (as amended hereby) hereby
jointly and severally represent and warrant to Lender that:
(a) No Default. After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing that has not been waived by
Lender in writing;
(b) Representations and Warranties. After giving effect to this
Amendment, all of the representations and warranties of Borrowers contained in
the Loan Documents are true, accurate and complete in all respects on and as of
the date hereof to the same extent as though made on and as of the date hereof;
and
(c) Authorization, etc. Each Borrower has the power and authority to
execute, deliver and perform this Amendment. Each Borrower has taken all
necessary action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and performance
of this Amendment. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any other Person, is
required in connection with any Borrower's execution, delivery and performance
of this Amendment, except for those already duly obtained. This Amendment has
been duly executed and delivered by each Borrower and constitutes the legal,
valid and binding obligation of each Borrower, enforceable against it in
accordance with its terms. Each Borrower's execution, delivery and performance
of this Amendment does not conflict with, or constitute a violation or breach
of, or constitute a default
7
under, or result in the creation or imposition of any Lien upon the property of
such Borrower by reason of the terms of (a) any contract, mortgage, lease,
agreement, indenture or instrument to which any Borrower is a party or which is
binding upon it, (b) any law or regulation or order or decree of any court
applicable to any Borrower, or (c) the certificate or articles of incorporation
or by-laws of any Borrower.
5. Conditions to Effectiveness. The effectiveness of this Amendment is
expressly conditioned upon the satisfaction of each condition set forth in this
Section 5 and the delivery of the following documents to Lender on or prior to
the date hereof (unless another date shall be specified) and consummation of all
of the transactions contemplated by each such document, all in form and
substance acceptable to Lender in its sole and absolute discretion:
(a) Documentation. Borrowers shall have delivered to Lender all of the
following documents:
(i) Amendment. Duly executed originals of this Amendment.
(ii) Disclosure Schedules. Revised Disclosure Schedules to the
extent necessary to comply with Section 5.6 of the Loan Agreement.
(iii) Revolving Notes. Revolving Notes executed by Consep,
Xxxx, Pacoast and Valley in the aggregate principal amount of Twenty
Five Million Dollars ($25,000,000) payable to Lender.
(iv) Verdant Pledge Agreement. Duly executed originals of an
amendment to the Verdant Pledge Agreement, accompanied by (a) share
certificates representing all of the outstanding Stock of Consep and
undated stock powers for such share certificates executed in blank.
(v) Farchan Guaranty. Duly executed originals of the Farchan
Guaranty.
(vi) Consep Pledge Agreement. Duly executed originals of the
Consep Pledge Agreement, accompanied by (a) share certificates
representing all of the outstanding Stock being pledged pursuant to
such Pledge Agreement and undated stock powers for such share
certificates executed in blank and (b) the original Intercompany Notes
of each of Consep, Xxxx, Pacoast and Valley, duly endorsed in blank.
(vii) Consep Security Agreement. Duly executed originals of
the Consep Security Agreement.
(viii) Xxxx Security Agreement. Duly executed originals of the
Xxxx Security Agreement.
8
(ix) Pacoast Security Agreement. Duly executed originals of
the Pacoast Security Agreement.
(x) Valley Security Agreement. Duly executed originals of the
Valley Security Agreement.
(xi) Security Interests and Code Filings. Evidence
satisfactory to Lender that Lender has a valid and perfected first
priority security interest in the Collateral of the Borrowers,
including (i) such documents duly executed by the Borrowers (including
financing statements and amendments thereto under the Code and other
applicable documents under the laws of any jurisdiction with respect to
the perfection of Liens) as Lender may request in order to perfect its
security interests in such Collateral and (ii) copies of Code search
reports listing all effective financing statements that name Consep,
Farchan, Xxxx, Pacoast or Valley as debtor, together with copies of
such financing statements, none of which shall cover the Collateral and
Permitted Encumbrances.
(xii) Payoff Letters; Termination Statements; Releases. Payoff
letters from Silicon Valley Bank itemizing amounts of principal,
interest, fees, expenses or other amounts payable to it; UCC-3 or other
appropriate termination statements and mortgage releases, executed by
Silicon Valley Bank, releasing all Liens of such Person upon any of the
personal property of Consep and its Subsidiaries, and termination of
all blocked account agreements, bank agency agreements or other similar
agreements or arrangements in favor of such Person or relating to the
loans.
(xiii) Intellectual Property Security Agreement. Duly executed
originals of a Trademark Security Agreement, dated the date hereof,
executed by Consep in favor of Lender, together with all instruments,
documents and agreements executed pursuant thereto.
(xiv) Powers of Attorney. Originals of the Power of Attorney
executed by Consep, Xxxx, Pacoast and Valley.
(xv) Borrowing Base Certificate. Duly executed originals of a
Borrowing Base Certificate from each Borrower, dated the dated hereof,
reflecting information concerning Eligible Accounts and Eligible
Inventory of such Borrower.
(xvi) Letter of Direction. Duly executed originals of a letter
of direction from Borrower Representative addressed to Lender with
respect to the disbursement on the date hereof of the proceeds of any
Revolving Credit Advance.
9
(xvii) Cash Management System; Blocked Account Agreements.
Evidence satisfactory to Lender that as of the date hereof, Cash
Management Systems with respect to Consep, Xxxx, Pacoast and Valley
complying with Annex C to the Credit Agreement have been established
and are currently being maintained in the manner set forth in such
Annex C, together with copies of duly executed tri-party blocked
account and lock box agreements, satisfactory to Lender, with the banks
as required by Annex C.
(xviii) Consep Merger. Evidence satisfactory to Lender that
Verdant and Consep shall have consummated the transactions contemplated
by the Consep Merger Agreement in accordance with the terms set forth
therein (which terms and conditions shall be satisfactory to Lender and
its counsel in all respects), and Verdant shall have furnished to
Lender a certified copy of the Consep Merger Agreement and all exhibits
and schedules thereto, as finally amended, and all consents, approvals
or permits obtained with respect thereto and a certificate signed by
the Chief Executive Officer of Verdant certifying that (i) the
transactions contemplated by the Consep Merger Agreement have been
consummated in accordance with the Consep Merger Agreement and no term
or condition of the Consep Merger Agreement has been amended, modified
or waived except as set forth in the certified copy of the Consep
Merger Agreement provided to Lender, (ii) any documents required to be
filed to effect the Consep Transaction have been filed in accordance
with applicable law, (iii) all consents, approvals or permits necessary
or admissible to be obtained in connection with the Consep Transaction
have been obtained, and (iv) neither Verdant nor any of its
Subsidiaries has failed to perform any material obligation or covenant
required by the Consep Merger Agreement to be performed or complied
with by such Person on or before the merger date unless waived by
Consep, and the substance of such certificate shall be true and
correct.
(xix) Charter, Bylaws and Good Standing. For each of Consep,
Xxxx, Pacoast, Valley and Farchan, such Person's (a) charter and all
amendments thereto, (b) bylaws, together with all amendments thereto
(c) good standing certificates in its state of incorporation and (d)
good standing certificates and certificates of qualification to conduct
business in each jurisdiction where its ownership or lease of property
or the conduct of its business requires such qualification, each dated
a recent date prior to the date hereof and certified by the applicable
Secretary of State or other authorized Governmental Authority.
(xx) Verdant Restated Articles and Bylaws. Verdant's Restated
Articles of Incorporation and Bylaws as amended to give effect to the
Consep Transaction, dated a recent date prior to the date hereof and,
with respect to the Articles of Incorporation, certified by the
Secretary of State of Minnesota.
10
(xxi) Good Standing Certificates. For each of Verdant, Safer,
Sureco, SRI and Safer Canada, good standing certificates in its state
or province of incorporation.
(xxii) Resolutions. For each Credit Party, resolutions of such
Person's Board of Directors (and shareholders, if necessary), approving
and authorizing the execution, delivery and performance of the Loan
Documents to which such Person is a party and the transactions to be
consummated in connection therewith, each certified as of the date
hereof by such Person's corporate secretary or an assistant secretary
as being in full force and effect without any modification or
amendment.
(xxiii) Incumbency Certificates. For each Credit Party,
signature and incumbency certificates of the officers of each such
Person executing any of the Loan Documents, certified as of the date
hereof by such Person's corporate secretary or an assistant secretary
as being true, accurate, correct and complete.
(xxiv) Opinion of Counsel. Duly executed originals of opinions
of Xxxxxx & Whitney LLP, counsel for the Credit Parties, and Xxxx Xxxxx
LLP, Oregon counsel for the Credit Parties, each dated the date hereof,
and accompanied by a letter addressed to such counsel from the
applicable Credit Parties, authorizing and directing such counsel to
address its opinion to Lender and to include in such opinion an express
statement to the effect that Lender is authorized to rely on such
opinion.
(xxv) Appointment of Agent for Service. An appointment of CT
Corporation as agent for service of process for Consep, Xxxx, Pacoast,
Valley and Farchan.
(xxvi) Waivers. Duly executed originals of landlord waivers
and consents and bailee letters with respect to Consep, Xxxx, Pacoast
and Valley, in each case as required pursuant to Section 5.9.
(xxvii) Other Documents. All other documents, certificates and
agreements as the Lender may reasonably request to accomplish the
purposes of this Amendment.
(b) Insurance. Satisfactory evidence that the insurance policies of
Consep and its Subsidiaries required by Section 5.4 of the Credit Agreement are
in full force and effect and, within five (5) days after the date hereof,
appropriate evidence showing loss payable and/or additional insured clauses or
endorsements, as requested by Lender in favor of Lender.
(c) Permitted Acquisition. Evidence satisfactory to Lender of
compliance with the requirements of Section 6.1 with respect to a Permitted
Acquisition.
11
(d) No Default. As of the date hereof after giving effect to this
Amendment, no Default or Event of Default shall have occurred and be continuing,
that has not been waived by Lender in writing.
(e) Warranties and Representations. After giving effect to this
Amendment, all of the warranties and representations of Borrowers contained in
the Credit Agreement and the other Loan Documents (including, without
limitation, this Amendment) shall be true and correct in all material respects
to the same extent as though made on and as of the date hereof.
(f) Consents and Acknowledgments. Borrowers shall have obtained all
consents, approvals and acknowledgments which may be required with respect to
the execution, delivery and performance of this Amendment.
(g) Fees, Costs and Expenses. Lender shall have received payment of all
fees, costs and expenses, including, without limitation, reasonable attorneys'
fees and expenses invoiced to Borrower Representative and as otherwise due
pursuant to the Loan Documents, incurred by Lender in connection herewith.
6. Reference to and Effect on Loan Documents.
6.1 Ratification. Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
each Borrower hereby ratifies and confirms each such Loan Document.
6.2 No Waiver. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Lender
under the Credit Agreement or any of the other Loan Documents, or, except as
expressly provided herein, constitute a consent, waiver or modification with
respect to any provision of the Credit Agreement or any of the other Loan
Documents. Upon the effectiveness of this Amendment each reference in (a) the
Credit Agreement to "this Agreement," "hereunder," "hereof," or words of similar
import and (b) any other Loan Document to "the Agreement" shall, in each case
and except as otherwise specifically stated therein, mean and be a reference to
the Credit Agreement as amended hereby.
7. Affirmation of Guaranty.
Each of Safer Canada and SRI (i) consents to and approves the execution
and delivery of this Amendment by Borrowers and Lender, (ii) agrees that this
Amendment does not and shall not limit or diminish in any manner its obligations
under the Guaranty or under any of the other Loan Documents executed and/or
delivered by it in connection therewith, (iii) agrees that this Amendment shall
not be construed as requiring the consent of such Person in any other
circumstance, (iv) reaffirms its obligations under the Guaranty and all of the
other Loan Documents to which it is a party, and (v) agrees that the Guaranty
and such other Loan Documents remain in full force and effect and are each
hereby ratified and confirmed.
12
8. Miscellaneous.
8.1 Successors and Assigns. This Amendment shall be binding on and
shall inure to the benefit of Borrowers, Lender and their respective successors
and assigns, except as otherwise provided herein or therein. The terms and
provisions of this Amendment are for the purpose of defining the relative rights
and obligations of Borrowers and Lender with respect to the transactions
contemplated hereby and there shall be no third party beneficiaries of any of
the terms and provisions of this Amendment.
8.2 Entire Agreement. This Amendment, including all schedules and other
documents attached hereto or incorporated by reference herein or delivered in
connection herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all other understandings,
oral or written, with respect to the subject matter hereof.
8.3 Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, Borrowers agree to pay on demand all fees, costs and expenses
incurred by the Lender in connection with the preparation, execution and
delivery of this Amendment.
8.4 Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8.5 Severability. Wherever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
8.6 Conflict of Terms. Except as otherwise provided in this Amendment,
if any provision contained in this Amendment is in conflict with, or
inconsistent with, any provision in any of the other Loan Documents, the
provision contained in this Amendment shall govern and control.
8.7 Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment.
8.8 Incorporation of Loan and Security Agreement. The provisions
contained in Sections 11.9 and 11.13 of the Credit Agreement are incorporated
herein by reference to the same extent as if reproduced herein in their
entirety.
8.9 Acknowledgment. Each Credit Party hereby represents and warrants
that there are no liabilities, claims, suits, debts, liens, losses, causes of
action, demands, rights, damages
13
or costs, or expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent (collectively, the "Claims"), which any Credit
Party may have or claim to have against Lender, or any of their respective
affiliates, agents, employees, officers, directors, representatives, attorneys,
successors and assigns (collectively, the "Lender Released Parties"), which
might arise out of or be connected with any act of commission or omission of the
Lender Released Parties existing or occurring on or prior to the date of this
Amendment, including, without limitation, any Claims arising with respect to the
Obligations or any Loan Documents. In furtherance of the foregoing, each Credit
Party hereby releases, acquits and forever discharges the Lender Released
Parties from any and all Claims that any Credit Party may have or claim to have,
relating to or arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby or any
action taken in connection therewith from the beginning of time up to and
including the date of the execution and delivery of this Amendment. Each Credit
Party further agrees forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against any Lender Released
Parties with respect to any and all Claims.
IN WITNESS WHEREOF, this Fifth Amendment to Credit Agreement has been
duly executed as of the date first written above.
VERDANT BRANDS, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Executive Vice President
------------------------------
SAFER, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Executive Vice President
------------------------------
SURECO, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Secretary
------------------------------
CONSEP, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
PACOAST INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
14
XXXXXXX XXXX INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
VALLEY GREEN CENTER, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By: /S/ Xxxxxx Xxxxx
---------------------------------
Title: Vice President
------------------------------
Each of the following Persons is a signatory to this Amendment in its
capacity as a Guarantor.
SAFER, LTD.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
SOUTHERN RESOURCES, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
FARCHAN LABORATORIES, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------------------
Title: Vice President
------------------------------
15
