EXHIBIT 10.28
SIXTH AMENDMENT, WAIVER AND CONSENT TO
LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Loan and Security Agreement, dated as of
February 11, 1997 (this "Amendment"), is by and among Xxxxx Nursery, Inc., a
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Delaware corporation, Tip Top Nurseries, Inc., an Arizona corporation,
Nurseryland Garden Centers, Inc., a California corporation, as borrowers
(collectively, the "Borrowers"), Sunbelt Nursery Group, Inc., a Delaware
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corporation, Sunbelt Nursery Holdings, Inc., an Arizona corporation, Sunbelt
Management Services, Inc., a Delaware corporation, as guarantors (collectively,
the "Guarantors" and, together with the Borrowers, the "Loan Parties"), and
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American National Bank and Trust Company of Chicago, a national banking
association, as lender (the "Lender"). Capitalized terms used in this Amendment
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and not otherwise defined have the meanings assigned to such terms in the Loan
Agreement (as defined below).
W I T N E S S E T H:
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WHEREAS, the Loan Parties and the Lender are parties to the Loan and
Security Agreement dated as of October 14, 1994 (as such agreement has been or
may be amended, modified, restated or supplemented from time to time, the "Loan
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Agreement") under which the Lender provided the Borrowers with a $12,000,000
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revolving credit facility;
WHEREAS, the Borrowers have requested the Lender temporarily increase
the maximum facility under the Loan Agreement and the Lender has agreed to such
a request; and
WHEREAS, the Loan Parties and the Lender desire to amend the Loan
Agreement to, among other things, temporarily increase the maximum facility
under the Loan Agreement to $9,000,000 until May 30, 1997, at which time the
maximum facility will reduce to $8,000,000, all on the terms and subject to the
conditions of this Amendment;
NOW, THEREFORE, in consideration of the foregoing recitals, the
actions contemplated therein and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties to this Amendment
agree as follows:
SECTION 1. AMENDMENTS TO LOAN AGREEMENT
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On the date this Amendment becomes effective, after completion by the
Loan Parties of the conditions set forth in Section 3 of this Amendment (the
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"Closing Date"), the Loan Agreement is amended as follows:
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2. Section 1.1 of the Loan Agreement is amended by deleting the
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last sentence of the definition of "Maximum Revolving Facility" in its entirety
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and replacing it as follows:
The Maximum Revolving Facility shall be $9,000,000 through May 30,
1997. Commencing May 31, 1997, the Maximum Revolving Facility shall
be $8,000,000.
3. Section 1.1 of the Loan Agreement is further amended by
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deleting the definition of "Total Facility" in its entirety and replacing it as
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follows:
"Total Facility" shall mean the amount of $9,000,000 through
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May 30, 1997. Commencing May 31, 1997, the Total Facility shall mean
the amount of $8,000,000.
4. Section 2.1(A) of the Loan Agreement is amended by deleting
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the first sentence of such section in its entirety and replacing it as follows:
Subject to the provisions of Section 4 below, after execution of the
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Financing Agreements, Lender shall advance to each Borrower, on a
revolving credit basis, Revolving Loans ("Revolving Loans") in such
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aggregate amounts as such Borrower may from time to time request but
not exceeding at any one time outstanding an amount equal to (i) the
Borrowing Base of such Borrower plus, (a) for the period commencing
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February __, 1997, and ending February 28, 1997, an amount for all
Borrowers not to exceed $2,000,000 or (b) for the period commencing
March 1, 1997, and ending March 25, 1997, an amount for all Borrowers
not to exceed $1,000,000, minus (ii) the aggregate stated amount of
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all outstanding Letters of Credit; provided, however, that Lender
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shall not be obligated to make any such advance to any Borrower if,
after such advance, the aggregate amount of all Revolving Loans made
to all Borrowers would exceed the Maximum Revolving Facility minus the
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aggregate stated amount of all Letters of Credit for all Borrowers.
SECTION 5. REPRESENTATIONS AND WARRANTIES
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To induce the Lender to enter into this Amendment and to extend
further credit under the Loan Agreement, as amended by this Amendment, each Loan
Party severally represents and warrants to the Lender that:
6. Due Authorization, Etc. The execution, delivery and
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performance by such Loan Party of this Amendment are within its corporate
powers, have been duly authorized by all necessary corporate action, have
received all necessary governmental, regulatory or other approvals (if any are
required), and do not and will not contravene or conflict with any provision of
(i) any law, (ii) any judgment, decree or order, or (iii) such Loan Party's
Certificate of Incorporation or By-Laws, and do not and will not contravene or
conflict with, or cause any lien to arise under any provision of any agreement
or instrument binding upon such Loan Party or upon any of its property. This
Amendment and the Loan Agreement, as amended by this Amendment, are the legal,
valid and binding obligations of such Loan Party, enforceable against such Loan
Party in accordance with their respective terms.
7. No Default, Etc. As of the Closing Date, (i) no Event of
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Default or Default under the Loan Agreement, as amended by this Amendment, has
occurred and is continuing or will result from the amendments set forth in this
Amendment and (ii) the representations and warranties of such Loan Party
contained in the Loan Agreement are true and correct.
8. Litigation. As of the Closing Date, except as previously
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disclosed by such Loan Party to the Lender in writing, no claims, litigation
(including, without limitation, derivative actions), arbitration proceedings,
governmental investigations or proceedings or regulatory proceedings are
pending, or to the knowledge of such Loan Party, threatened against it, nor does
such Loan Party know of any basis for the foregoing. In addition, there are no
inquiries, formal or informal, which might give rise to such actions,
proceedings or investigations.
9. Pier 1 Agreements. As of the Closing Date, no default exists
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under any of the Pier 1 Agreements.
10. Securities Matters. All filings made by the Loan Parties to
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the Securities and Exchange Commission during the last 12 months have complied
with the Securities Laws and all provisions of such Securities Laws, including
any provision requiring the filing of audited financial statements.
SECTION 11. CONDITIONS TO EFFECTIVENESS
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The obligation of the Lender to make the amendments contemplated by
this Amendment and the effectiveness thereof, are subject to the following:
12. Representations and Warranties. The representations and
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warranties of the Loan Parties contained in this Amendment are true and correct
as of the Closing Date.
13. Documents. The Lender has received all of the following, each
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duly executed and dated as of the Closing Date (or such other date as is
satisfactory to the Lender) in form and substance satisfactory to the Lender:
(A) Sixth Amendment. This Amendment;
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(B) Resolutions. Resolutions of the Board of Directors of each
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Loan Party authorizing or ratifying the execution, delivery and performance
of this Amendment;
(C) Consents, Etc. Certified copies of all documents evidencing
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necessary corporate action, consents and governmental approvals, if any,
with respect to this Amendment or any other document provided for under
this Amendment; and
(D) Other. Such other documents as the Lender may reasonably req
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SECTION 14. MISCELLANEOUS
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15. Captions. The recitals to this Amendment (except for
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definitions) and the section captions used in this Amendment are for convenience
only, and do not affect the construction of this Amendment.
16. Governing Law; Severability. THIS AMENDMENT IS A CONTRACT
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MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES. Wherever possible, each provision of this
Amendment must be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is prohibited by or
invalid under such law, such provision is only ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Amendment.
17. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties on separate counterparts, and each
such counterpart is deemed to be an original, but all such counterparts together
constitute but one and the same Amendment.
18. Successors and Assigns. This Amendment is binding upon each
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Loan Party and the Lender and their respective successors and assigns, and
inures to the sole benefit of each Loan Party and the Lender and their
successors and assigns. The Loan Parties have no right to assign their
respective rights or delegate their respective duties under this Amendment.
19. References. From and after the Closing Date, each reference
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in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words of like import, and each reference in any Financing Agreement to the Loan
Agreement or to any term, condition or provision contained "thereunder,"
"thereof," "therein," or words of like import, mean and are a reference to the
Loan Agreement (or such term, condition or provision, as applicable) as amended,
supplemented or otherwise modified by this Amendment.
20. Continued Effectiveness. Notwithstanding anything contained
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in this Amendment, the terms of this Amendment are not intended to and do not
serve to effect a novation as to the Loan Agreement. The parties to this
Amendment expressly do not intend to extinguish the Loan Agreement. Instead, it
is the express intention of the parties to this Amendment to reaffirm the
indebtedness created by and secured under the Loan Agreement. The Loan
Agreement, as amended by this Amendment, remains in full force and effect.
21. Costs, Expenses and Taxes. Each Loan Party affirms and
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acknowledges that Section 10.2 and Section 10.3 of the Loan Agreement applies to
this Amendment and the transactions and agreements and documents contemplated
under this Amendment.
22. Guarantors Reaffirmation. Each of the Guarantors acknowledges
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that it has read this Amendment and consents to this Amendment and agrees that
its Guaranty of the Guaranteed Obligations (as defined in such Guaranty)
continues in full force and effect, is valid and enforceable and is not impaired
or otherwise affected by the execution of this Amendment or any other document
or instrument delivered in connection with this Amendment.
* * * * *
Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXX NURSERY, INC.,
as a Borrower
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
TIP TOP NURSERIES, INC.,
as a Borrower
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
NURSERYLAND GARDEN CENTERS, INC.,
as a Borrower
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
SUNBELT NURSERY GROUP, INC.,
as a Guarantor
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
SUNBELT NURSERY HOLDINGS, INC.,
as a Guarantor
By:/s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SUNBELT MANAGEMENT SERVICES, INC.,
as a Guarantor
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By:/s/Xxxxxxxxx X. Xxxxxxx
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Xxxxxxxxx X. Xxxxxxx
First Vice President
Xxxxxxx X. Xxxxx, guarantor under the Guaranty dated as of October 14,
1994 (the "Xxxxx Guaranty") made in favor of the Lender, acknowledges that he
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has read this Amendment referenced herein and consents to this Amendment and
agrees that his guarantee of the Guaranteed Obligations (as defined in the Xxxxx
Guaranty) continues in full force and effect, is valid and enforceable and is
not impaired or otherwise affected by the execution of this Amendment or any
other document or instrument delivered in connection with this Amendment.
/s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
