FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("FIRST AMENDMENT") dated as of
October 9, 1998, by and among ECO SOIL SYSTEMS, INC., a Nebraska corporation,
ASPEN CONSULTING COMPANIES, INC., a Colorado corporation, TURF SPECIALTY,
INC., a Delaware corporation, TURF ACQUISITION SUB., INC., a Delaware
corporation, ECO TURF PRODUCTS, INC., a Delaware corporation, AGRICULTURAL
SUPPLY, INC., a Delaware corporation, MITIGATION SERVICES, INC., a Delaware
corporation, XXXXXX CHEMICAL CORPORATION, a Michigan corporation, and YUMA
ACQUISITION SUB., INC., a Delaware corporation (collectively, the
"BORROWERS"), THE PROVIDENT BANK, an Ohio banking corporation, as agent
("AGENT"), and the various lenders (collectively, the "LENDERS") set forth in
the Credit Agreement (as defined below).
PRELIMINARY STATEMENT
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WHEREAS, Borrowers, Agent and the Lenders have entered into a Credit
Agreement dated as of August 25, 1998 (the "CREDIT AGREEMENT"); and
WHEREAS, Borrowers, Agent and Lenders now wish to amend the Credit
Agreement in accordance with the terms and provisions hereof.
NOW, THEREFORE, the parties hereto agree to amend the Credit Agreement
upon such terms and conditions as follows:
1. DEFINITIONS. Effective as of the date of this First Amendment,
Section 1.2 of the Credit Agreement shall be amended as follows:
(a) NEW DEFINITIONS. The following defined terms shall be added
to Section 1.2:
"ARCHITECTS" means the architects and/or engineers licensed to
practice in the State of California chosen by Holdings to prepare the
Plans and to supervise the completion of the Improvements; which
Architects shall be reasonably acceptable to Agent.
"ASSIGNMENT OF CONTRACT" shall mean an Assignment of Contract
between Holdings and Agent, in form and substance reasonably
acceptable to Agent, providing in part for an assignment to Agent of
Holdings' rights and interest under that certain Letter of Intent
dated September 8, 1998, between Mr. Xxxxx Xxxx
("Xxxx") and Holdings and any and all contracts or other agreements
between such parties and relating to the San Diego Property and all
Improvements thereon.
"ASSIGNMENT OF LIFE INSURANCE" means a Collateral Assignment of
Life Insurance in form and substance satisfactory to the Agent
covering the key man life insurance to be maintained by Holdings in
accordance with Section 6.3 hereof.
"CONTRACTOR'S COST CERTIFICATION" means a statement of the Costs
incurred or to be incurred by trade and category of work prepared by
the General Contractor and submitted to the Agent as part of each
Requisition.
"COSTS" means the aggregate costs of all labor, materials,
equipment, fixtures and furnishings consistent with the detail and
scope as provided in the Project Summary and reasonably acceptable to
the Agent, necessary for completion of the Improvements.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means that Environmental
Indemnity Agreement in form and substance reasonably acceptable to
Agent, and executed by Borrowers in favor of Agent, on behalf of the
Lenders, relating to the Premises covered by the Mortgages.
"GENERAL CONTRACTOR" means any general contractor chosen by
Holdings and reasonably acceptable to Agent to supervise and manage
completion of the Improvements.
"IMPROVEMENTS" means the proposed improvements of the San Diego
Property as set forth in the Project Summary.
"INITIAL TERM CONSTRUCTION LOAN ADVANCE" means the initial
advance for the Improvements to be made under the Term Construction
Loan.
"PLANS" means all final drawings, plans and specifications
prepared by or on behalf of Holdings or the General Contractor which
describe and show the labor, materials, equipment, fixtures and
furnishings necessary for the Improvements, including any amendments
or modifications thereto.
"PROJECT SUMMARY" means the summary of the description of the
Improvements, detailing the work, costs and timing, delivered to Agent
by Holdings and dated October __, 1998.
"PURCHASE PRICE ADVANCE" means the funding of the purchase price
under the San Diego Property Acquisition Agreement in the amount of
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______________________________ and /100 Dollars ($__________), plus
fees and expenses associated therewith.
"REQUISITION" means a statement by Holdings in a form reasonably
acceptable to Agent requesting an advance of funds under the Term
Construction Loan, together with (i) the Contractor's Cost
Certification in a form reasonably acceptable to Agent, and (ii)
payment receipts from all contractors, subcontractors or suppliers
showing payment in full for all Costs (less any applicable Retained
Amounts) which were the subject of previous Requisitions.
"RETAINED AMOUNTS" means the amounts actually retained by
Holdings from its payments to the General Contractor and any
subcontractors.
"SAN DIEGO MORTGAGE" means that certain Mortgage covering the San
Diego Property.
"SALE CLOSING DATE" means the date upon which Holdings closes on
the sale of the San Diego Property.
"TERM CONSTRUCTION LOAN" means a term loan in the principal
amount of Three Million Five Hundred Thousand and 00/100 Dollars
($3,500,000.00).
"TERM CONSTRUCTION LOAN NOTES" means, collectively, with respect
to the Term Construction Loan, the promissory notes of Borrowers, in
the face amount of each Lender's Participation Percentage of the Term
Construction Loan in or substantially in the form of Exhibit H-1
hereto. "TERM CONSTRUCTION LOAN NOTE" shall mean any one of the Term
Construction Loan Notes.
"TITLE INSURANCE COMPANY" means Xxxxxxx Title Company or any
other title insurance company designated by the Borrowers and
reasonably acceptable to the Agent.
(b) AMENDED DEFINITIONS. The following defined terms contained in
Section 1.2 of the Credit Agreement shall be amended in their entirety to
read as follows:
"CREDIT COMMITMENT" means, in relation to any particular Lender,
the sum of (i) the maximum amount with respect to the Revolving Credit
Loan to be loaned by such Lender to Borrowers as set forth on Schedule
1 hereof, and (ii) the maximum amount with respect to the Term
Construction Loan to be loaned by such Lender to Borrowers as set
forth on Schedule 1 hereof.
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"DRAW DATE" means, in relation to any Revolving Credit Loan or
the Term Construction Loan, the day on which such Loan is made or to
be made to Borrowers pursuant to this Agreement.
"LOANS" mean, collectively, the Revolving Credit Loans and all
advances under the Term Construction Loan, each singly a Loan made or
to be made to Borrowers by the Lenders pursuant to this Agreement.
"MORTGAGES" means the real estate mortgages or deeds of trust
granted from time to time by a Borrower to Agent to secure the Loans,
in form and substance reasonably acceptable to Agent.
"NOTES" mean, collectively, the Revolving Credit Notes and Term
Construction Loan Notes, each of which are to be dated, executed and
delivered to Lenders by Borrowers on the Closing Date or First
Amendment Closing Date, as the case may be. "NOTE" shall mean any one
of the Notes, unless specifically identified.
"REVOLVING CREDIT LOAN" means all Loans (other than Loans made
pursuant to the Term Construction Loan) outstanding from time to time
made pursuant to Section 2.2 hereof and any amounts added to the
principal balance of the Revolving Credit Loan pursuant to this
Agreement.
"SECURITY DOCUMENTS" means, collectively, this Agreement, the
Mortgages, the Blocked Account Agreements, the Assignment of Patents,
the Assignment of Trademarks, the Assignment of Contract, the
Assignment of Life Insurance, the Environmental Indemnity Agreement,
the Pledge Agreement, and each other agreement, assignment or
instrument creating or purporting to create a lien in favor of Agent
for the ratable benefit of the Lenders.
"TERMINATION DATE" means (i) with respect to the Revolving Credit
Loans, the earlier of (a) the third (3rd) anniversary of the Closing
Date, (b) the date upon which the entire principal of the Notes shall
become due pursuant to the provisions hereof (whether as a result of
acceleration by Agent or the Requisite Lenders or otherwise), or
(c) the date upon which the Credit Commitments terminate pursuant to
Section 9.2 hereof; and (ii) with respect to the Term Construction
Loan, the earlier of (a) Xxxxx 0, 0000, (x) the date upon which the
entire principal of the Notes shall become due pursuant to the
provisions hereof (whether as a result of acceleration by Agent or the
Requisite Lenders or otherwise), (c) the date upon which the Credit
Commitments terminate pursuant to Section 9.2 hereof, and (d) the Sale
Closing Date.
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2. THE LOANS.
(a) COMMITMENTS. Section 2.1 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Section 2.1 COMMITMENTS. Each Lender, severally and not
jointly, agrees, upon the terms and subject to the conditions
contained in this Agreement, to make the Revolving Credit Loans and
advances under the Term Construction Loan to Borrowers from time to
time prior to the Termination Date in a principal amount equal to such
Lender's Participation Percentage of the aggregate principal amount of
such Loan."
(b) MAKING THE LOANS. Section 2.2 of the Credit Agreement is
hereby amended to add a second paragraph to read as follows:
"Each Lender will, subject to all of the applicable terms
and conditions of this Agreement, make an amount equal to its
Participation Percentage in each advance under the Term Construction
Loan available to Borrowers in accordance with Section 2.15 hereof.
The Term Construction Loan shall be available to the Borrowers subject
to limitations herein, until the Termination Date. Each borrowing
under the Term Construction Loan shall be made in accordance with the
provisions of Section 2.15 and Article 4 hereof."
(c) THE NOTES. Section 2.4 of the Credit Agreement is hereby
amended to delete the defined term "REVOLVING CREDIT NOTE" contained therein
and replace the same with the defined term "NOTE".
(d) INTEREST RATE. Section 2.5(a) of the Credit Agreement is
hereby amended as follows: (i) first, to delete the defined term "LOANS"
contained in the first sentence thereof and to replace the same with the
defined term "REVOLVING CREDIT LOANS," and (ii) to add a new paragraph to
read as follows:
"Except as otherwise provided herein, the Term Construction
Loan shall bear interest on the daily outstanding principal balance
thereunder at an annual rate equal to the Prime Rate plus two percent
(2%)."
(e) CONVERSIONS. Section 2.5(c) of the Credit Agreement is hereby
amended as follows: to delete the defined term "LOANS" contained in the
first sentence thereof and to replace the same with the defined term
"REVOLVING CREDIT LOANS."
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(f) MONTHLY INSTALLMENTS. Section 2.5(g) of the Credit Agreement
is hereby amended to add a new subparagraph (iii) to read as follows:
"(iii) for the account of Lenders in accordance with
their respective Pro Rata Shares, monthly in arrears on the first
Business Day of each month commencing November 1, 1998, interest on
the outstanding principal amount of the Term Construction Loan at an
annual rate equal to the Prime Rate plus two percent (2%)."
(g) REPAYMENTS. Section 2.6(a) of the Credit Agreement is hereby
amended as follows: to delete the terms "REVOLVING CREDIT LOANS" contained
therein and to replace the same with the defined term "LOANS."
(h) PREPAYMENTS FROM EXTRAORDINARY DISPOSITION. Section 2.6(c) of
the Credit Agreement is hereby amended to delete subparagraph (c) which reads
as follows:
"(c) any sale of the San Diego Property (or the rights of
Holdings in the San Diego Property Acquisition Agreement) which is
promptly followed with a leaseback of the San Diego Property, if
permitted by Section 8.12 herein."
(i) MATURITY. Section 2.6(f) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(f) MATURITY. Subject to the terms and conditions of this
Agreement, Borrowers will be entitled to reborrow all or any part of
the principal of the Revolving Credit Notes repaid or prepaid prior to
the Termination Date. The Credit Commitments of Lenders with respect
to the Revolving Credit Loans shall terminate and all of the
indebtedness evidenced by the Revolving Credit Notes shall, if not
sooner paid, be in any event absolutely and unconditionally due and
payable in full by Borrowers on August 25, 2001, the date of the final
maturity of such Notes. The Credit Commitments of Lenders with
respect to the Term Construction Loan shall terminate and all of the
indebtedness evidenced by the Term Loan Construction Notes shall, if
not sooner paid, be in any event absolutely and unconditionally due
and payable in full by Borrowers on the earlier of either the Sale
Closing Date or March 9, 1999, the date of the final maturity of such
Notes."
(j) APPLICATION OF PROCEEDS. Section 2.6(g) of the Credit
Agreement is hereby amended in its entirety to read as follows:
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"(g) APPLICATION OF PROCEEDS. With respect to mandatory
prepayments described in Sections 2.6(c), 2.6(d) or 2.6(e), all such
prepayments shall be applied in repayment of the Term Construction
Loan; and after the Term Construction Loan has been paid in full, then
all such prepayments shall be applied in repayment of permanent
reduction of the Revolving Credit Loans. Notwithstanding the
foregoing, any Net Proceeds from an Extraordinary Disposition
involving the San Diego Property in excess of the Term Construction
Loan at the time of such Extraordinary Disposition shall be retained
by Borrowers without application to the Revolving Credit Loans
pursuant to Section 2.6(c)."
(k) APPLICATION OF PREPAYMENTS. Section 2.6(i) of the Credit
Agreement is hereby amended to delete the second sentence thereof and replace
the same with the following language:
"Any amounts received in connection with a payment,
repayment or prepayment on the Revolving Credit Loans shall be applied
to the extent possible, first, to Adjusted Prime Rate Loans and, then,
to Libor Rate Loans."
(l) APPLICATION OF FUNDS. Section 2.7(b)(i) of the Credit
Agreement is hereby amended to delete the defined term "REVOLVING LOAN NOTES"
contained therein and to replace the same with the defined term "NOTES".
(m) USE OF PROCEEDS. Section 2.9(a) of the Credit Agreement shall
be amended in its entirety to read as follows:
"(a) PERMITTED USES OF LOAN PROCEEDS. Each Borrower
represents, warrants and covenants to Agent and each Lender that all
proceeds of the Revolving Credit Loans shall be used by Borrowers
solely for the purpose of acquisitions, Capital Expenditures,
construction of proprietary systems, repayment of existing debt
(including, without limitation, the Term Construction Loan), stock
repurchases not prohibited in Section 8.3(c), financing working
capital, any purpose for which the Term Construction Loan may be
utilized and for general corporate purposes, and to pay fees and
expenses reasonably associated with any of the foregoing. Further,
each Borrower represents, warrants and covenants to Agent and each
Lender that all proceeds of the Term Construction Loan shall be used
by Borrowers solely for the purpose of providing capital for the
purchase of the San Diego Property, the Improvements, and other fees
and expenses reasonably associated therewith."
(n) LETTERS OF CREDITS. Sections 2.14(a), 2.14(c), 2.14(e) and
2.14(f) of the Credit Agreement are hereby amended to delete the defined
terms "LOAN" and "LOANS" contained
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therein and replace the same with "REVOLVING CREDIT LOAN" or "REVOLVING
CREDIT LOANS", as the case may be.
(o) TERM CONSTRUCTION LOAN ADVANCES. Article 2 of the Credit
Agreement is hereby amended to add a new Section 2.15 to read as follows:
"2.15 TERM CONSTRUCTION LOAN ADVANCES.
(a) TERM CONSTRUCTION LOAN ADVANCES. Subject to
satisfaction of the conditions of this Agreement and the First
Amendment, on the First Amendment Closing Date, Lenders shall
make the Purchase Price Advance under the Term Construction Loan.
The Initial Term Construction Loan Advance for the Improvements
will be made upon and subject to the satisfaction of all of the
conditions set forth in Section 4.3 hereof. All subsequent
advances for the payment of Improvements under the Term
Construction Loan shall be made monthly thereafter upon and
subject to the satisfaction of the applicable conditions set
forth in Sections 4.4 and 4.5 hereof. Each advance of the Term
Construction Loan shall be in an amount which shall be equal to
the aggregate of the Costs incurred by Holdings through the end
of the period covered by the Requisition for each such advance,
LESS (1) the aggregate Retained Amounts through the end of such
period (which Retained Amounts shall be decreased from time to
time if and to the extent the same are paid to the General
Contractor or any subcontractors), and (2) the total of the Term
Construction Loan advances theretofore made by the Lenders; AND,
at the election of the Agent, LESS any combination of the
following further amounts:
(i) any costs covered by the Requisition not
approved, certified or verified as provided in Section
2.15(b) below, and/or any Costs covered by a previous
Requisition for which payment receipts have not been
received by the Agent; and/or
(ii) any real estate taxes, mechanics' liens,
security interests, claims or other charges against the San
Diego Property or the Improvements and any interests, fees
or other costs which Holdings may have failed to pay in
accordance with this Agreement, the Notes or any other Loan
Document.
The excess, if any, of the Costs incurred to the
end of the period covered by the latest Requisition (net of
Retained
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Amounts not then required to be advanced) over the aggregate
Term Construction Loan advances by the Lenders for the Costs
incurred to the end of that period shall be payable by the
Borrowers out of their own funds (and not out of the proceeds of
the Term Construction Loan).
(b) VERIFICATION OF COSTS. All Costs are to be
certified by the General Contractor. Verification of the monthly
progress of the Improvements and Costs which have been incurred
by Holdings from time to time, and the estimated total Costs to
be incurred, may be made from time to time by the Agent, in its
reasonable discretion.
(c) ADVANCES. Requisitions shall be received by the
Agent at least ten (10) Business Days prior to the date of the
requested advance. Simultaneously with each Requisition,
Borrowers shall deliver to the Agent: (i) copies of the
Requisitions of the General Contractor and/or the
subcontractor(s), as the case may be, which are the basis for
such Requisition, together with all materials required to be
delivered by the General Contractor and/or any subcontractor(s),
as the case may be, pursuant to its or their respective contracts
or subcontracts in support of the amounts in question; and
(ii) copies of lien waivers from the General Contractor and all
subcontractors, with respect to all amounts previously paid to
any such Person; PROVIDED, HOWEVER, except that with respect to
subcontracts for amounts not exceeding Five Thousand and 00/100
Dollars ($5,000.00), a certificate of the General Contractor that
such lien waivers have been received from the subcontractors may
be delivered in lieu of such copies. Advances made to the
Borrowers shall be applied solely to pay the Costs set forth in
the pertinent Requisition. Agent and Lenders hereby reserve the
right to disburse all Construction Term Loan proceeds through the
Title Insurance Company.
Each Requisition submitted by Borrowers to Agent shall
constitute a representation that the work and materials for which
payment is being requested have physically been incorporated in
the Premises, free of any security interest, Lien or encumbrance,
other than the Liens in favor of the Agent created as security
for the Loans and Permitted Liens.
(d) DEFICIENCY DEPOSIT. If at any time and from time
to time, the Agent shall determine that the Term Construction
Loan, or the undisbursed balance thereof, is insufficient to cover
the remaining costs of completion of the Improvements, then to
further secure the future payment
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of such costs the Agent may require the Borrowers to furnish a
deficiency deposit, which shall consist of a deposit into a cash
collateral account, maintained by Holdings at Agent's offices, in
an amount satisfactory to Agent, and which Agent may from time to
time apply, or allow the Borrowers to apply, to the satisfaction
and payment of such remaining costs. Portions of any deficiency
deposit shall be released to the Borrowers when and to the extent
that the Agent determines that the value or amount thereof is more
than the excess, if any, of the total remaining costs of
completing the Improvements over the undisbursed balance of the
Term Construction Loan.
(e) DIRECT ADVANCES TO CONTRACTORS, MATERIALMEN, ETC.
At its option, the Lenders may, after the occurrence of a Default
or Event of Default, or if Agent deems it necessary to aid in the
progress of construction, make all advances for work performed,
materials furnished or services rendered directly to the General
Contractor and/or any subcontractors, or to such other Persons,
including the Lenders, who shall be entitled to payment for any
item of Costs. The execution of this Agreement by Borrowers
constitutes an irrevocable direction and authorization to the
Agent and the Lenders to so advance the funds. No further
direction or authorization from Borrowers shall be necessary or
required for such direct advances and all such advances shall
satisfy the obligations of the Agent and the Lenders hereunder,
and shall be secured by the Mortgage as fully as if made to
Borrowers, regardless of the disposition thereof by the General
Contractor, any subcontractor, or such other Persons who shall be
entitled to payment. Neither Agent nor Lenders shall, in any
event, be responsible or liable for disbursement of or failure to
disburse the Term Construction Loan proceeds or any part thereof,
and no contractor, subcontractor, supplier or laborer shall have
any right or claim against Agent or Lenders under this Agreement
or by virtue of Agent's administration hereof."
3. CONDITIONS PRECEDENT TO DISBURSEMENTS.
(a) Article 4 of the Credit Agreement shall be amended to add a new
Section 4.3 to read as follows:
"4.3 CONDITIONS PRECEDENT TO INITIAL TERM CONSTRUCTION LOAN
ADVANCE. The obligation of Lenders to make the Initial Term
Construction Loan Advance under this Agreement is subject to the
satisfaction of the following
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conditions precedent (in form, substance and action as is satisfactory
to Agent, in its sole discretion):
(a) The Agent shall have received from Borrowers all
of the following items:
(i) copies of the current Plans which shall be
consistent in all material respects, in terms of the scope
and quality of the Improvements, with the Project Summary
and otherwise reasonably satisfactory to Agent;
(ii) a certified copy of the construction
contract;
(iii) copies of all existing inspection and test
records and reports made by or for the San Diego Property;
(iv) a Requisition for the Initial Term
Construction Loan Advance, along with an AIA form G702
Application and Certificate for payment and a Contractor's
Cost Certification and a copy of all change orders which are
in effect as of the date of the Initial Term Construction
Loan Advance.
(b) The Agent shall have received satisfactory
evidence from Borrowers to the effect that (i) the Plans for
construction work completed that requires approval of
Governmental Authorities have been approved by all Governmental
Authorities having jurisdiction; (ii) the Improvements as shown
by the Plans will comply with applicable laws, zoning ordinances
and regulations; and (iii) all permits needed as of the date of
the subject Requisition for the construction of the Improvements
for their intended purposes have been obtained by Holdings;
(c) The Agent and Lenders shall be satisfied that the
aggregate amount of the Term Construction Loan is sufficient to
pay in full the cost of the Improvements;
(d) The Agent shall have received an endorsement to
the Title Insurance Policy to the date of such advance (which
shall have the effect of increasing the coverage of such policy
by the amount of the advance then being made), in the form
accepted by the Agent or the Agent's counsel, including, but not
limited to, the pending disbursement clause and setting forth no
additional exceptions except those accepted in
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writing by the Agent or the Agent's counsel ("TITLE UPDATE
ENDORSEMENT"). Without limiting the generality of the foregoing,
the Agent shall have received evidence satisfactory to the Agent
and the Title Insurance Company that there are no mechanic's liens
or other Liens prior to the Lien of the San Diego Mortgage (except
Liens to be discharged or bonded with the proceeds of the advance
in question).
(e) The Agent shall have received builder's completed
value risk insurance against all risks of physical loss, including
collapse and transit coverage, covering the total value of work
performed and equipment, supplies and material furnished to the
San Diego Property for the construction of the Improvements issued
by companies satisfactory to Agent in an aggregate amount
sufficient at all times to protect Agent from any loss which might
be suffered by reason of the risks insured against, containing a
standard form mortgagee's clause with loss payable to Agent as its
interest may appear; and
(f) The Agent shall have received evidence satisfactory
to Agent that no work of any kind in connection with the
construction of the Improvements has been done upon the San Diego
Property or materials placed on the San Diego Property prior to
the recording of the San Diego Mortgage."
(b) Article 4 of the Credit Agreement shall be amended to add a new
Section 4.4 and a new Section 4.5 to read as follows:
"Section 4.4 CONDITIONS PRECEDENT TO ALL SUBSEQUENT TERM
CONSTRUCTION LOAN ADVANCES. The Lenders' obligations to make each and
every Term Construction Loan advance after the Initial Term
Construction Loan Advance shall be subject to the satisfaction of the
following conditions:
(a) All conditions of Sections 4.2 and 4.3 (other than
4.3(f)) shall remain satisfied, performed and unimpaired as of the
date of such subsequent advances;
(b) The Agent shall have received, as of the date of
the advance, such other documentation and information (including
but not limited to progress schedules, affidavits, lien waivers
and payment receipts from the General Contractor, any major
subcontractors and others who have performed work or provided
materials for the Improvements) as the Agent may reasonably
require, including copies of any document or instruments described
in Section 4.3 which shall have been obtained by
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the Borrowers subsequent to the date of the Initial Term
Construction Loan Advance and amendments, modifications of updates
of any item described in Section 4.3;
(c) The Agent shall have received a Requisition for
the advance, a Contractor's Cost Certification and a copy of all
change orders which are in effect as of the date of such
Requisition;
(d) The Agent shall have received a Title Update
Endorsement in form and substance acceptable to the Agent."
"Section 4.5 CONDITIONS PRECEDENT TO LAST TERM
CONSTRUCTION LOAN ADVANCE. In the case of the last Term Construction
Loan advance, the Agent also shall have received:
(a) Evidence of: (i) approval by all governmental
authorities of the completion of the Improvements in their
entirety; and (ii) the issuance of a permanent certificate or
certificates of occupancy covering the San Diego Property;
(b) A certification by the Architects, that all
design, site, construction, and finishing work necessary for the
completion of the Improvements have been finished and made
available for use in accordance with the Plans."
4 FINANCIAL STATEMENTS. Section 5.5 of the Credit Agreement is hereby
amended to insert the date of "July 31, 1998" in the blank contained in the
first sentence thereof.
5 ACKNOWLEDGMENT OF ASSIGNMENT OF CONTRACT. Article 6 of the Credit
Agreement shall be amended to add a new Section 6.19 to read as follows:
"Section 6.19 ACKNOWLEDGMENT OF ASSIGNMENT OF CONTRACT. Holdings
covenants and agrees that the contract that it is to enter into with
Xxxx in accordance with the letter of intent between the parties and
relating to the San Diego Property or any other sale contract relating
to the San Diego Property (either one being referred to herein as the
"Sales Contract") shall contain a provision whereby Xxxx or such other
proposed purchaser acknowledges the assignment to Agent by Holdings of
its interest in the Sales Contract and agrees to attorn to Agent, or
its successors or assigns, upon the occurrence of an Event of
Default."
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6 INTEREST COVERAGE RATIO. Section 7.2 of the Credit Agreement is
hereby amended to substitute the word "less" for the word "greater" that appears
on the second line of this section.
7 LIMITATION ON DISPOSITION OF ASSETS. Section 8.5(a)(B) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(B) the sale of the San Diego Property (or the rights under the
San Diego Property Acquisition Agreement); provided, however, that
the net sales proceeds are sufficient to pay in full the outstanding
principal balance of the Term Construction Loan and all accrued
interest thereon, and such net sales proceeds, or any required portion
thereof, is applied by Borrowers to pay in full the Term Construction
Loan."
8 LIMITATION ON SALES AND LEASEBACKS. Section 8.12 of the Credit
Agreement shall be amended in its entirety to read as follows:
"Section 8.12 LIMITATION ON SALES AND LEASEBACKS. No Borrower
shall at any time, directly or indirectly, sell and thereafter lease
back any of its respective assets or Property, except the sale and
leaseback of the San Diego Property; provided, however, that the
following conditions are satisfied to Agent's reasonable satisfaction:
(a) the net sales proceeds from such sale is an amount equal to or
greater than the outstanding principal balance and all accrued
interest thereon of the Term Construction Loan at the time of the
sale/leaseback; (b) the lease has a minimum term of at least two (2)
years after the Termination Date of the Revolving Credit Loans and all
of the other terms and conditions of the lease are in compliance with
the industry standard for the San Diego region; and (c) Holdings
executes a Leasehold Mortgage on its leasehold estate in the San Diego
Property and the fee simple owner of the San Diego Property consents
to such lien, agrees to give Agent notice of all defaults under the
lease and an opportunity to cure and agrees to attorn to Agent or its
successors and assigns."
9 REAFFIRMATION OF WARRANTIES AND REPRESENTATIONS. Borrowers hereby
agree and covenant that, as of the date of this First Amendment and after
giving effect to the provisions hereof, all representations and warranties in
the Credit Agreement including, without limitation, all of those warranties
and representations set forth in Article 5, are true and accurate in all
material respects (unless specifically stated to relate only to an earlier
date, in which case such representation or warranty shall be true and
accurate in all material respects as of such earlier date). Borrowers
further represent and warrant to Agent and Lender that, as of the date of
this First Amendment and after giving effect to the provisions hereof:
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(a) other than the filings and recordings to perfect the security
interest in the San Diego Property, no approval, consent, order,
authorization or license by, or giving notice to, or taking any other action
with respect to, any Person or any governmental or regulatory authority or
agency is required under any applicable law or any agreement, instrument or
other documents to which any Borrower is a party including, without
limitation, the holders of the notes issued pursuant to the Subordinated Debt
Offering; and
(b) the execution, delivery and performance by Borrowers of each
of this First Amendment and the related documents thereto, and the making by
Borrowers of the borrowings contemplated by this First Amendment, do not and
will not conflict with, or result in a breach of the terms of, or constitute
a default under, any agreement, instrument or other material document or
agreement to which any Borrower is a party or by which any Borrower or its
Property is bound or affected, excluding Liens in favor of Lenders.
10 REAFFIRMATION OF COVENANTS. Borrowers reaffirm all covenants in
the Credit Agreement, including all of those covenants set forth in Articles
6, 7 and 8, as if fully set forth herein.
11 WAIVER OF EVENT OF DEFAULT. To the extent that Borrowers are not
currently in compliance with the financial covenant set forth in Section 7.3
of the Credit Agreement, Agent and Lenders agree to waive (i) their rights
to enforce any remedies for this Event of Default, solely as they relate to
this particular Event of Default; and (ii) the requirement under this
Agreement that there exist no Default or Event of Default (but solely as such
Default or Event of Default relates to noncompliance with Section 7.3) in
order for Lenders to be obligated to make any advances under the Term
Construction Loan, which waivers shall terminate upon the Sale Closing Date.
Borrowers acknowledge that these waivers are waivers of Agent's and Lenders'
rights to exercise their remedies and a waiver of Lenders' option not to
disburse advances under the Term Construction Loan and not a waiver of any
other term or condition of this Agreement, including without limitation, any
requirements for disbursement of the Revolving Credit Loans."
12 LEGAL OPINION. Borrowers covenant and agree to deliver to Agent
within four (4) Business Days of the First Amendment Closing Date (as
hereinafter defined) a written legal opinion, addressed to Agent and Lenders
and dated as of the First Amendment Closing Date, from legal counsel for
Holdings, which shall be in a form acceptable to Agent.
13 CONDITIONS PRECEDENT TO CLOSING OF FIRST AMENDMENT. On or prior to
the closing of the First Amendment (hereinafter the "FIRST AMENDMENT CLOSING
DATE"), each of the following conditions precedent shall have been satisfied:
(a) PROOF OF AUTHORITY. Agent and Lenders shall have received
from Borrowers copies, certified by a duly authorized officer to be true and
complete on and as of the
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First Amendment Closing Date, of records of all action taken by Borrowers to
authorize the execution and delivery of this First Amendment and all other
certificates, documents and instruments to which each of them is or is to
become a party as contemplated or required by this First Amendment, and
performances by each of them of all of their respective obligations under
each of such documents.
(b) CERTIFICATION OF ORGANIZATIONAL DOCUMENTS. Agent shall have
received a certificate from the Secretary or Assistant Secretary of each
Borrower certifying (i) that there have been no amendments, revisions or
supplements to its respective organizational documents previously delivered to
Agent and that the same are in full force and effect; (ii) that each Borrower is
in good standing with its respective state of organization and all other states
in which it is qualified to do business; and (iii) the incumbency certificate
previously delivered to Agent is in full force and effect.
(c) TERM CONSTRUCTION LOAN NOTES. Borrowers shall have executed and
delivered the Term Construction Loan Notes substantially in the form of Exhibit
H-1 attached hereto in favor of each Lender in the amounts of the respective
Lender's Participation Percentage of the Term Construction Loan.
(d) DOCUMENTS. Each of the documents to be executed and delivered at
the closing and all other certificates, documents and instruments to be executed
in connection herewith shall have been duly and properly authorized, executed
and delivered by Borrowers and shall be in full force and effect on and as of
the First Amendment Closing Date.
(e) LEGALITY OF TRANSACTIONS. No change in applicable law shall have
occurred as a consequence of which it shall have become and continue to be
unlawful (i) for Agent or any Lender to perform any of its respective agreements
or obligations under any of the Loan Documents, or (ii) for any Borrower to
perform any of its respective agreements or obligations under any of the Loan
Documents.
(f) PAYMENT OF CLOSING FEE. Borrowers shall have paid to Lenders the
closing fee for the Term Construction Loan separately agreed to by Agent and
Borrowers.
(g) CHANGES; NONE ADVERSE. Since the Closing Date, no changes shall
have occurred in the financial condition, business or operations of Borrowers
which, individually or in the aggregate, are materially adverse to such
Borrowers.
(h) CONSUMMATION OF ACQUISITION AGREEMENT. The San Diego Property
Acquisition Agreement shall have been completed and closed simultaneously with
the First Amendment Closing Date upon terms and conditions satisfactory to the
Agent and Lenders and in full and complete accordance with all applicable laws.
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(i) REAL ESTATE. The following documents shall be executed (and,
where appropriate, acknowledged) by Persons satisfactory to the Agent:
(i) the San Diego Mortgage duly executed and delivered by
Holdings (and, where appropriate, by the trustee thereunder) in recordable
form (in such number of copies as the Agent shall have requested), together
with such Uniform Commercial Code financing statements as may be needed in
order to perfect the security interests granted by the San Diego Mortgage
in any fixtures and other property therein described which may be subject
to the Uniform Commercial Code, in each case appropriately completed and
duly executed and in proper form for filing in all offices in which
required;
(ii) an Environmental Indemnity Agreement with respect to the
San Diego Property duly executed and delivered by Borrowers;
(iii) with respect to the Premises covered by the San Diego
Mortgage, an ALTA Loan Policy Form B-1970 (or such other form that may be
acceptable to Agent) issued by the Title Insurance Company, insuring the
validity and priority of the Liens created under the San Diego Mortgage for
and in amounts satisfactory to Agent, with all standard and general
exceptions deleted and endorsed over so as to afford full "extended form
coverage" subject only to the Permitted Liens and such other exceptions as
are satisfactory to Agent and including a "Pending Disbursement Clause" and
such endorsements as Agent may require, including without limitation a
"Comprehensive Endorsement" and a "First Loss Endorsement".
(iv) with respect to the Premises covered by the San Diego
Mortgage, a survey prepared by a registered land surveyor or engineer,
duly licensed in the State of California certified to the Title Insurance
Company and in such form as to cause the Title Insurance Company to delete
the standard printed survey exception from the title insurance policy and
to enable the Title Insurance Company to issue its policy free from any
exceptions or objections whatsoever relating to survey matters.
In addition, Borrowers shall have (A) delivered to Agent copies
of all environmental reports and studies made or conducted on the San Diego
Property including, without limitation, a Phase I Site Assessment, each of
which shall be acceptable to Agent, and (B) paid to the Title Insurance
Company all expenses and premiums of the Title Insurance Company in
connection with the issuance of such policy and endorsements. In addition,
Borrowers shall have paid to the Title Insurance Company or the Agent an
amount equal to all mortgage and mortgage recording taxes, intangibles
taxes, stamp taxes and other taxes payable in connection with the execution
and delivery of the San Diego Mortgage, and the obligations secured thereby
and the recording of the San Diego Mortgage in the appropriate land
offices.
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(j) FLOOD CERTIFICATION. Borrowers shall deliver to Agent a
Standard Flood Hazard Determination Form certifying that the San Diego
Property is not located in a flood plain zone.
(k) INSURANCE CERTIFICATES. Agent shall have received insurance
certificates naming Agent as mortgagee, loss payee and additional insured, as
its interests may appear, as required by Section 6.2(b)(iii) of the Credit
Agreement and Sections 2.4 and 2.5 of the Mortgage.
(l) EMPLOYMENT RESTRICTION WAIVER. Agent shall have received
evidence satisfactory to it, in its sole discretion, that the Employment
Restriction (as defined in the San Diego Property Acquisition Agreement)
imposed by the County of San Diego has been terminated, amended or waived in
a manner and to the extent required in the San Diego Property Acquisition
Agreement.
(m) ASSIGNMENT OF CONTRACT. Agent shall have received the
Assignment of Contract duly executed by Holdings.
(n) APPRAISAL. Agent shall have received an appraisal that is
satisfactory to Agent, of the San Diego Property.
14 AMENDED SCHEDULE 1. Schedule 1 to the Credit Agreement is hereby
amended in its entirety and replaced with the Schedule 1 attached hereto.
15 MISCELLANEOUS.
(a) Borrowers shall reimburse Agent for all fees and disbursements
of legal counsel to Agent which shall have been incurred by Agent in
connection with the preparation, negotiation, review, execution and delivery
of this First Amendment and the handling of any other matters incidental
hereto.
(b) All of the terms, conditions and provisions of the Credit
Agreement not herein modified shall remain in full force and effect. In the
event a term, condition or provision of the Credit Agreement conflicts with a
term, condition or provision of this First Amendment, the latter shall govern.
(c) This First Amendment shall be governed by and shall be
construed and interpreted in accordance with the laws of the State of Ohio.
(d) This First Amendment shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns.
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(e) This First Amendment may be executed in several counterparts,
each of which shall constitute an original, but all which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered by or on behalf of each of the parties as of the day and in the year
first above written.
SIGNED IN THE PRESENCE OF: BORROWERS:
ECO SOIL SYSTEMS, INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Chief Financial Officer and Secretary
ASPEN CONSULTING COMPANIES, INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
TURF SPECIALTY, INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
TURF ACQUISITION SUB., INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
ECO TURF PRODUCTS, INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
AGRICULTURAL SUPPLY, INC. (f.k.a.
AGRICULTURAL ACQUISITION SUB., INC.)
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
MITIGATION SERVICES, INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
XXXXXX CHEMICAL CORPORATION
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
YUMA ACQUISITION SUB., INC.
/S/ XXXXX X. XXXXXXXXXX By: /S/ L. XXXX XXXX, XX.
---------------------------- ----------------------------------
Xxxxx X. Xxxxxxxxxx Name: L. Xxxx Xxxx, Xx.
Title: Secretary
LENDERS:
THE PROVIDENT BANK
/S/ XXXXXX X. ZEUNI By: /S/ K. XXXXXX XXXXX
---------------------------- ----------------------------------
/S/ XXXXXX X. XXXX Name: K. Xxxxxx Xxxxx
---------------------------- Title: SVP
AGENT:
THE PROVIDENT BANK, as Agent
/S/ XXXXXX X. ZEUNI By: /S/ K. XXXXXX XXXXX
---------------------------- ----------------------------------
/S/ XXXXXX X. XXXX Name: K. Xxxxxx Xxxxx
---------------------------- Title: SVP
