WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.58
WAIVER
AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Waiver and Third Amendment to that
certain Loan and Security Agreement ("Amendment") is made and
effective as of the 1st day of
July, 2009 (“Effective Date”) by and between AEROGROW INTERNATIONAL, INC.
(“Borrower”), Xxxx X. Xxxxxx (the “Guarantor”), Xxxxxx X. Xxxxxxx and
X. XxxXxxxxx Xxxxxx (collectively, the “Validity Guarantor”)(Borrower, Guarantor
and Validity Guarantor are collectively referred to herein as “Obligors”), and
FCC, LLC d/b/a First Capital ("Lender").
WHEREAS, Lender and Borrower are
parties to a certain Loan and Security Agreement, dated June 23, 2008, and all
amendments thereto (the "Agreement") pursuant to which Lender makes loans and
other extensions of credit to Borrower, which loans and extensions of credit are
secured by security interests upon the Collateral and guaranteed unconditionally
by the Guarantor and Validity Guarantor; and
WHEREAS, a Default is in existence
under the Agreement as a result of Borrower’s breach of the financial covenants
contained in Items 21(a), 21(b) and 21(c) of the Schedule to the Agreement, in
addition to those Defaults described in Section 2 of the Forbearance Agreement
dated January 31, 2009 among Borrower, Guarantor and Lender (all of the
foregoing Defaults are hereinafter collectively referred to as the “Existing
Defaults”), and Borrower has requested Lender waive the Existing
Defaults; and
WHEREAS,
the parties desire to amend the Agreement as hereinafter set forth;
NOW THEREFORE, in consideration of the
mutual conditions and agreements set forth in the Agreement and this Amendment,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. Capitalized
terms used in this Amendment, unless otherwise defined herein, shall have the
meaning ascribed to such term in the Agreement.
2. Amendment Subject to
the conditions set forth below, effective as of the Effective Date, the
Agreement is amended as follows:
(a) Section
1 of the Agreement is amended by deleting the definition of “Maximum Loan Amount”
in its entirety and inserting the following in lieu thereof:
(b) Section
3(a)(i) of the Agreement is amended by deleting the definition
of “Base
Rate” in its entirety and inserting the following in lieu
thereof:
“Base Rate” means, at
any time, the greater of (a) the Prime Rate (as defined below), or (b) LIBOR (as
defined below) plus 3.25%.”
(c) Item 1 of
the Schedule of the Agreement is amended by deleting the item in its entirety
and inserting the following in lieu thereof:
1. Borrowing
Base
“Borrowing Base” means, at any time, an
amount equal to:
(a) the
lesser of:
(i) The
Maximum Loan Amount, and
(ii) the
sum of:
(A) 85%
of the dollar amount of Eligible Accounts; plus
Waiver
and Amendment - Aerogrow International
(B) the
lesser of:
(1) $5,000,000,
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(2)
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As
outlined below, the percentage (%) of the dollar value (determined at the
lower of cost or market value) of Eligible
Inventory;
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Period (July 2009 through March 2010)
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%
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July
2009 through September 2009
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80 | % | ||
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October
2009 through November 2009
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70 | % | ||
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December
2009
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65 | % | ||
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January
2010
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60 | % | ||
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February
2010 through March 2010
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50 | % | ||
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Period (April 2010 and
thereafter)
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%
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December
through June of each year
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40 | % | ||
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July
through November of each year
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50 | % | ||
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provided, however,
that the aggregate principal amount available to be borrowed
against Eligible Inventory under this clause (B) shall not exceed the
percentage (%), as outlined below, of the Obligations outstanding at any
time;
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Period
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%
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July
2009 through October 2009
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100 | % | ||
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November
2009
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70 | % | ||
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December
2009 through March 2010
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60 | % | ||
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Thereafter
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%
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December
through June
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50 | % | ||
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July
through November
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70 | % | ||
minus
(b) the sum
of:
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(i)
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such
reserves as Lender may establish from time to time in its discretion,
plus
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(ii)
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the
amount available to be drawn under, plus the amount of any unreimbursed
draws with respect to, any letters of credit or acceptances which have
been issued, created or guaranteed by Lender or any Affiliate of Lender
for Borrower’s account.
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(d) Item
8 of the Schedule of the Agreement is amended by deleting the item in its
entirety and inserting the following in lieu thereof:
“8. Interest
Margin: 4.0%.”
(e) Item
10(a) of the Schedule of the Agreement is amended by deleting the item in its
entirety and inserting the following in lieu thereof:
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“a.
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In
consideration of the maintenance of Lender’s commitment hereunder,
Borrower will pay Lender a fee at the rate of one-half of one percent
(0.50%) per annum on the daily average unused portion of Lender’s
commitment to make loans or advances hereunder, payable monthly in arrears
on the first day of each calendar month, beginning on August 1, 2009 and
on the first day of each month
thereafter.”
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(f) Item
10(b) of the Schedule of the Agreement is amended by deleting the item in its
entirety and inserting the following in lieu thereof:
Waiver
and Amendment - Aerogrow International
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“b.
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Borrower
agrees to pay to Lender a facility fee of one percent (1.0%) of the total
Maximum Loan Amount upon each anniversary date of the Loan
Agreement.”
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(g) Item
10 of the Schedule of the Agreement is amended by adding the following
subsection:
“e. Borrower
agrees to pay to Lender a success fee of $30,000, due and payable on April 30,
2010.”
(h) Items
21(a), 21(b) and 21(c) of the Schedule of the Agreement are amended by deleting
the items in their entirety and inserting the following in lieu
thereof:
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“(a)
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Beginning
with the month ending September 30, 2009 and for each month thereafter,
Borrower shall maintain, as of the last day of each month a ratio of
Borrower’s (i) net income (excluding extraordinary gains) before provision
for interest expense, taxes, depreciation and amortization, to (ii)
interest expense, plus payments or principal actually made or scheduled to
be made with respect to indebtedness (other than scheduled but unpaid
payments on Subordinated Debt and principal payments on revolving loans
under this Agreement), plus payments with respect to capitalized leases,
plus taxes, plus dividends and distributions, plus unfinanced capital
expenditures, of at least 1.0 to 1. Such ratio shall be
measured as of the last day of each calendar month (A) with respect to
each calendar month-end beginning with the September 30, 2009 month-end
through and including the August 31, 2010 month-end, for the period from
September 1, 2009 through the calendar month most recently ended, and (B)
with respect to any calendar month ending on or after September 30, 2010,
for the twelve-month period most recently
ended.
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(b)
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As
of July 31, 2009, Borrower shall have a Tangible Net Worth, plus
outstanding principal balance of Subordinated Debt, of at least
$250,000. As of October 31, 2009, Borrower shall have a
Tangible Net Worth, plus outstanding principal balance of Subordinated
Debt, of at least $0. As of November 30, 2009, Borrower shall
have a Tangible Net Worth, plus outstanding principal balance of
Subordinated Debt, of at least $500,000. From December 31, 2009
through March 31, 2010, Borrower shall maintain at all times a Tangible
Net Worth, plus outstanding principal balance of Subordinated Debt, of at
least $2,250,000. Beginning on April 1, 2010 and at all times
thereafter, Borrower shall maintain a Tangible Net Worth, plus outstanding
principal balance of Subordinated Debt, of at least
$3,000,000. As used herein, “Tangible Net Worth” means, as of
any date, the total assets of Borrower plus Subordinated Debt minus the
total liabilities (excluding Subordinated Debt) of Borrower calculated in
conformity with GAAP, less all amounts due from Borrower’s Affiliates and
the amount of all intangible items reflected therein, including all
unamortized debt discount and expense, unamortized research and
development expense, unamortized deferred charges, goodwill, intellectual
property, unamortized excess cost of investments in subsidiaries over
equity at dates of acquisition, and all similar items which should
properly be treated as intangibles in accordance with
GAAP.
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(c)
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Beginning
April 1, 2010, and thereafter, Borrower shall maintain an Indebtedness to
Tangible Net Worth ratio of less than or equal to
3.0:1.”
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3. Waiver. Subject
to Borrower’s compliance with the terms of this Amendment (including but not
limited to Section 4 below), Lender hereby waives the Existing
Defaults. This is a limited waiver and shall not be deemed to
constitute a waiver of any other Defaults or any future breach of the
Agreement.
4. Conditions. The
effectiveness of this Amendment is subject to the following conditions precedent
(unless specifically waived in writing by Lender):
(a) Borrower
shall have executed and delivered such other documents and instruments as Lender
may require;
(b) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Lender and its legal counsel;
(c) No
Default, other than the Existing Defaults, shall have occurred and be
continuing;
(d) On or
before the Effective Date of this Amendment, Borrower shall have successfully
completed the raising of $3.2 million in additional cash equity and shall have
successfully converted $2.3 million in debt, accounts payable, and other
unsecured obligations into preferred stock, and $1.3 million in trade payables
into notes payable;
(e) Borrower
shall have paid Lender a documentation fee of $2,500.00; and
(f) There
shall have occurred no material adverse change in the business, operations,
financial condition, profits or prospects of Borrower, or in the
Collateral.
5. Representations and
Warranties of Borrower. Borrower represents and warrants that
(a) no Default exists under the Agreement, other than the Existing Defaults; (b)
the representations and warranties of Borrower contained in the Agreement were
true and correct in all material respects when made and continue to be true and
correct in all material respects on the date hereof with the exception of
Section 4(a)(vi) of the Loan Agreement, which is hereby qualified by Borrower’s
disclosure of the existence of an adversarial proceeding in bankruptcy court
with Linens ‘N Things regarding a claim of preferential payment; (c) the
execution, delivery and performance by Borrower of this Amendment and the
consummation of the transactions contemplated hereby are within the corporate
power of Borrower and have been duly authorized by all necessary corporate
action on the part of Borrower, do not require any approval or consent, or
filing with, any governmental agency or authority, do not violate
any provisions of any law, rule or regulation or any provision of any
order, writ, judgment, injunction, decree, determination or award presently in
effect in which Borrower is named or any provision of the charter documents
of Borrower and do not result in a breach of or constitute a default under any
agreement or instrument to which Borrower is a party or by which it or any of
its properties are bound; (d) this Amendment constitutes the legal, valid and
binding obligation of Borrower, enforceable against Borrower in accordance with
its terms; (e) all payroll taxes required to be withheld from the wages of
Borrower's employees have been paid or deposited when due; (f) it is
entering into this Amendment freely and voluntarily with the advice of
legal counsel of its own choosing; and (g) it has freely and voluntarily
agreed to the releases, waivers and undertakings set forth in this
Amendment.
Waiver
and Amendment - Aerogrow International
6.
Reaffirmation of
Obligations. Borrower hereby ratifies and reaffirms the
Agreement and all of its obligations and liabilities thereunder. The
Guarantor hereby ratifies and reaffirms the validity, legality and
enforceability of the Guaranty and agrees that such Guaranty is and shall remain
in full force and in effect until the earlier to occur of all the Obligations
being paid in full, or the Guaranty being terminated or released in accordance
with its terms. Borrower and the Guarantor acknowledge and agree that all terms
and provisions, covenants and conditions of the Agreement shall be and
remain in full force and effect and constitute the legal, valid, binding and
enforceable obligations of Borrower and Guarantor that are parties thereto in
accordance with their respective terms as of the date hereof. Although Guarantor
has been informed of the matters set forth herein and has acknowledged and
agreed to same, Guarantor understands that Lender has no obligation to inform
Guarantor of such matters in the future or to seek Guarantor’s acknowledgment or
agreement to future amendments or waivers, and nothing herein shall create such
a duty. Borrower shall pay to Lender all costs and expenses,
including legal fees, incurred by Lender in connection with preparation,
negotiation and closing of this Amendment.
7.
Ratification. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions of the Agreement, and shall not be deemed to
be a consent to the modification or waiver of any other term or condition of the
Agreement. Except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement are ratified and confirmed
and shall continue in full force and effect.
8.
No Novation,
etc. This Amendment is not intended to be, nor shall it be
construed to create, a novation or accord and satisfaction, and the Agreement,
as amended hereby, and the Agreement shall remain in full force and
effect. Notwithstanding any prior mutual temporary disregard of any
of the terms of any of the Agreement, the parties agree that the terms of each
of the Agreement shall be strictly adhered to on and after the date
hereof, except as expressly modified by this Amendment.
9.
Release
of Claims. To
induce Lender to enter into this Amendment, each Obligor hereby releases,
acquits and forever discharges Lender, and Lender's officers, directors, agents,
employees, successors and assigns, from all liabilities, claims, demands,
actions or causes of action of any kind (if any there be), whether absolute or
contingent, due or to become due, disputed or undisputed, liquidated or
unliquidated, at law or in equity, or known or unknown, that any one or more of
them now have or ever have had against Lender up to and including the date of
this Amendment, whether arising under or in connection with the Agreement or
otherwise.
10.
Waiver of
Limitations Period. Each Obligor hereby waives the benefit of
any statute of limitations that might otherwise bar the recovery of any of the
Obligations from any one or more of them.
11.
Non-Waiver of
Default. Neither this Amendment, Lender’s forbearance
hereunder nor Lender's continued making of loans or other extensions of credit
at any time extended to Borrower in accordance with the Agreement shall be
deemed a waiver of or consent to any Default, other than the Existing
Defaults. Obligors agree that any such Default shall not be deemed to
have been waived, released or cured by virtue of advances, loans or other
extensions of credit at any time extended to Borrower, Lender's agreement to
forbear pursuant to the terms of this Amendment, or the execution of this
Amendment.
12. Relationship of Parties; No
Third Party Beneficiaries. Nothing in this Amendment shall be
construed to alter the existing debtor-creditor relationship between Borrower
and Lender, nor is this Amendment intended to change or affect in any way the
relationship between Lender and Guarantors to one other than a debtor-creditor
relationship. This Amendment is not intended, nor shall it be
construed, to create a partnership or joint venture relationship between or
among any of the parties hereto. No Person other than a party hereto
is intended to be a beneficiary hereof and no Person other than a party hereto
shall be authorized to rely upon or enforce the contents of this
Amendment.
13.
Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
14.
References. Any
reference to the Agreement contained in any document, instrument or agreement
executed in connection with the Agreement, shall be deemed to be a reference to
the Agreement as modified by this Amendment.
15.
Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall
constitute an original, but all of which taken together shall be one and the
same instrument.
16.
Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, heirs
and personal representatives.
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed under seal and delivered by their
respective duly authorized officers on the date first written
above.
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FCC,
LLC dba First Capital
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By: /s/Xxx X.
Xxxxxx
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By: /s/Xxxxxx X. Xxxxxxx |
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Xxx
X. Xxxxxx, Senior Vice President
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Xxxxxx
X. Xxxxxxx, Chief Executive Officer
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Waiver
and Amendment - Aerogrow International
ACKNOWLEDGMENT
AND AGREEMENT OF GUARANTOR
The
undersigned Guarantor acknowledges the foregoing Waiver and Third Amendment to
Loan and Security Agreement and agrees that its Guaranty in favor of Lender
dated _____________, 2009, remains in full force and effect, subject to no right
of offset, claim or counterclaim.
GUARANTOR
/s/ Xxxx X.
Xxxxxx
(L.S.)
Xxxx X. Xxxxxx
[ADDITIONAL
ACKNOWLEDGMENT AND AGREEMENT ON FOLLOWING PAGE]
Waiver
and Amendment - Aerogrow International
ACKNOWLEDGMENT
AND AGREEMENT OF VALIDITY GUARANTORS
The
undersigned, Validity Guarantors in respect of the indebtedness of Borrower to
Lender, hereby (a) acknowledge receipt of the foregoing Waiver and Third
Amendment to Loan and Security Agreement; (b) consent to the terms and
execution thereof; (c) acknowledge that the Obligations of Borrower under
the Loan Agreement may have increased; (d) reaffirms their obligations to Lender
pursuant to the terms of the Validity Agreement to which they are a party; and
(e) acknowledge that Lender may amend, restate, extend, renew or otherwise
modify the Loan Agreement and any indebtedness or agreement of Borrower, or
enter into any agreement or extend additional or other credit accommodations,
without notifying or obtaining the consent of the undersigned and without
impairing the liability of the undersigned under any Validity Agreement for all
of each Borrower’s present and future indebtedness to Lender.
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VALIDITY
GUARANTORS
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By: /s/
Xxxxxx
X. Xxxxxxx
Xxxxxx X.
Xxxxxxx
By: /s/
X. XxxXxxxxx
Xxxxxx
X.
XxxXxxxxx Xxxxxx
Waiver
and Amendment - Aerogrow International
