Exhibit 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
This Eighth Amendment (the "Amendment") dated as of September 26, 2001, is
between Bank of America, N.A. (the "Bank"), formerly known as Bank of America
National Trust and Savings Association, and U.S. Home & Garden Inc. (the
"Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Credit Agreement as of
October 12, 1998, as previously amended (the "Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendment. The Agreement is hereby amended as follows:
2.1 In Section 1.1, the following definitions are hereby amended and
restated in their entirety as follows:
"Facility 2 Commitment" means the agreement of the Bank to lend
under Section 2.1(b) in an aggregate amount at any time outstanding
not exceeding $10,000,000, less the cumulative amounts of all
reductions in the Facility 2 Commitment pursuant to Section 2.5.
"Revolving Termination Date" means the earlier to occur of:
(a) May 15, 2001, in the case of the Facility 1 Loans and
October 31, 2001, in the case of the Facility 2 Loans, and
(b) the date on which the Commitments otherwise terminate in
accordance with the provisions of this Agreement.
2.2 Section 1.1 is hereby further amended to add the definition of
"Eighth Amendment Agreement," to be inserted in appropriate alphabetical
order, as follows:
"Eighth Amendment Agreement" means that certain Eighth Amendment
and Waiver, dated as of September 26, 2001, between Bank and Borrower.
3. Effect. Except as specifically set forth herein, this Agreement does not
limit, modify, amend, waive, grant any consent with respect to, or otherwise
affect (a) any right, power or remedy of the Bank under the Credit Agreement or
any other Loan Document, (b) any provision of the Credit Agreement or any other
Loan Documents all of which shall remain in full force and effect and are hereby
ratified and confirmed.
4. Representations and Warranties. When the Borrower signs this Amendment,
the Borrower represents and warrants to the Bank that the execution, delivery
and performance by the Borrower of this Amendment have been duly authorized by
all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or
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action by, any Person (including any Governmental Authority) in order to be
effective and enforceable. The Agreement as amended by this Amendment
constitutes the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
5. Amendment Fees. On or before the Effective Date, Borrower shall pay to
Bank an amendment fee (the "Amendment Fee") in the amount of $25,000 in
connection with this Amendment. The Amendment Fee is fully earned and
non-refundable, without regard to whether this Amendment becomes otherwise
effective.
6. Effective Date. This Amendment will be effective on the date that all
conditions set forth below are satisfied:
6.1 Receipt by Bank of a duly executed original of this Amendment
signed by Borrower and of counterparts to the Reaffirmation of Guarantors
appended hereto signed by each of the Guarantors.
6.2 Receipt by Bank of the Amendment Fee.
6.3 Receipt by Bank of all documents it may reasonably request
relating to the existence of Borrower and each Guarantor, the corporate
authority for and the validity of this Amendment, the Loan Documents, and
any other agreements, documents, instruments, or matters relevant hereto,
all in form and substance satisfactory to Bank.
7. Reservation of Rights. The Borrower acknowledges and agrees that the
execution by the Bank of this Amendment shall not be deemed to create a course
of dealing or otherwise obligate the Bank to execute similar waivers under the
same or similar circumstances in the future.
8. Indemnity. As additional consideration for Bank entering into this
Amendment, Borrower shall indemnify, exonerate, pay, and hold each Indemnified
Party (as hereinafter defined) harmless from any and all claims, demands,
grievances, liabilities, debts, accounts, obligations, costs, expenses, liens,
rights, actions, and causes of action, of every kind and nature whatsoever
(including fees and expenses of counsel to any Indemnified Party in connection
with any investigative, administrative, or judicial proceeding, irrespective of
whether such Indemnified Party shall be designated a party thereto), other than
those arising as a result of the gross negligence or willful misconduct of any
Indemnified Party, which may be imposed on, incurred by, or asserted against
such Indemnified Party in any manner relating to or arising out of or in
connection with this Amendment or any of the Loan Documents, or any of the
transactions contemplated by any of the foregoing. As used in this Amendment,
the term "Indemnified Parties" means, collectively, Bank and its affiliated
corporations, and all of its current and former directors, officers, agents,
employees, shareholders, and attorneys, and all of their respective successors
and assigns.
9. Release by Borrower.
9.1 No Present Claims. Borrower acknowledges and agrees that: (i)
Borrower has no claim or cause of action against any Indemnified Party;
(ii) Borrower has no offset right, counterclaim, or defense of any kind
against any of the Indebtedness;
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and (iii) each Indemnified Party has heretofore properly performed and
satisfied in a timely manner any and all of such Indemnified Party's
obligations, if any, to Borrower. Bank desires, and Borrower agrees, to
eliminate any possibility that any past conditions, acts, omissions,
events, circumstances, or matters would impair or otherwise adversely
affect any of Bank's rights, interests, collateral security, or remedies.
Therefore, Borrower, on behalf of Borrower and all successors and assigns
of Borrower and any and all other parties claiming rights through Borrower,
unconditionally releases, acquits, and forever discharges each and every
Indemnified Party from: (1) any and all liabilities, obligations, duties,
or indebtedness of any of the Indemnified Parties to Borrower, whether
known or unknown, arising prior to the date hereof, and (2) any and all
claims, offsets, causes of action, suits, or defenses, whether known or
unknown, which Borrower might otherwise have against any of the Indemnified
Parties on account of any condition, act, omission, event, contract,
liability, obligation, indebtedness, claim, cause of action, defense,
circumstance, or matter of any kind which existed, arose or occurred at any
time prior to the date hereof. As further consideration for the above
release, Borrower specifically agrees, represents, and warrants that the
matters released herein are not limited to matters which are known or
disclosed, and Borrower hereby waives any and all rights and benefits which
Borrower now has, or in the future may have, conferred upon Borrower by
virtue of the provisions of Section 1542 of the Civil Code of the State of
California which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
9.2 Waiver of Unknown Claims. Borrower is aware that Borrower may
later discover facts in addition to or different from those which Borrower
now knows or believes to be true with respect to the releases given herein,
and that it is nevertheless Borrower's intention to settle, release, and
discharge fully, finally, and forever all of these matters, known or
unknown, suspected or unsuspected, which previously existed, now exist, or
may exist. In furtherance of such intention, Borrower specifically
acknowledges and agrees that the releases given in this Amendment shall be
and shall remain in effect as full and complete releases of the matters
being released, notwithstanding the discovery or existence of any such
additional or different facts and that such releases shall not be subject
to termination or rescission by reason of any such additional or different
facts.
9.3 Warranty of Non-Assignment. Borrower hereby represents and
warrants that it has not previously assigned or transferred, or purported
to assign or transfer, to any person or entity any of the claims, demands,
grievances, liabilities, debts, accounts, obligations, costs, expenses,
liens, rights, actions, or causes of action released by the terms of this
Amendment.
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10. Miscellaneous.
10.1 Except as herein expressly amended, all terms, covenants and
provisions of the Agreement are and shall remain in full force and effect
and all references therein and in the other Loan Documents to the Agreement
shall henceforth refer to the Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Agreement.
This Amendment is a Loan Document.
10.2 This Amendment shall be binding upon and inure to the benefit of
the parties hereto and to the Agreement and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
10.3 This Amendment shall be governed by and construed in accordance
with the law of the State of California.
10.4 This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Each of the
parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in
the form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original,
and that receipt by the Bank of a facsimile transmitted document
purportedly bearing the signature of the Borrower shall bind the Borrower
with the same force and effect as the delivery of a hard copy original. Any
failure by the Bank to receive the hard copy executed original of such
document shall not diminish the binding effect of receipt of the facsimile
transmitted executed original of such document.
11. Governing Law, Submission to Jurisdiction, and Waiver of Jury
Trial/Arbitration. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA AND IS SUBJECT TO
THE PROVISIONS OF SECTIONS 9.14 AND 9.15 OF THE AGREEMENT, RELATING TO
SUBMISSION TO JURISDICTION AND WAIVER OF JURY TRIAL/ARBITRATION, THE PROVISIONS
OF WHICH ARE BY THIS REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
This Amendment is executed as of the date stated at the beginning of this
Amendment.
BANK OF AMERICA, N.A. (formerly known
as Bank of America National Trust and
Savings Association)
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title Senior Vice President
---------------------------------
U.S. HOME & GARDEN INC.
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title CEO
---------------------------------
By /s/ Xxxxxx Xxxxxx
---------------------------------
Title CEO
---------------------------------
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REAFFIRMATION OF GUARANTORS
Each of the undersigned (each, a "Guarantor," and, collectively, the
"Guarantors") acknowledges and agrees that such Guarantor has read and is
familiar with, and consents to, all of the terms and conditions of the foregoing
Eighth Amendment Agreement, dated as of September 26, 2001 (the "Amendment
Agreement"). In light of the foregoing, each of the undersigned confirms and
agrees that all of the terms and provisions of that certain Guaranty Agreement,
dated as of October 13, 1998 (as amended or modified to the date hereof, the
"Guaranty"), executed by it in connection with the Credit Agreement are ratified
and reaffirmed, that the Guaranty shall continue in full force and effect.
Although each Guarantor has been informed of the terms of the Amendment
Agreement, each Guarantor understands and agrees that the Bank has no duty to so
notify any Guarantor or to seek this or any future acknowledgement, consent, or
reaffirmation, and nothing contained herein shall create or imply any such duty
as to any transactions, past or future.
GUARANTORS: EASY GARDENER, INC.
By /s/ Xxxxxx Xxxxxx
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Title: CEO
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XXXXXXXXX CONSUMER PRODUCTS GROUP, INC.
By /s/ Xxxxxx Xxxxxx
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Title: CEO
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XXXXXXXXX CONSUMER PRODUCTS, INC.
By /s/ Xxxxxx Xxxxxx
--------------------------------
Title: CEO
--------------------------------
WEED WIZARD ACQUISITION CORP.
By /s/ Xxxxxx Xxxxxx
--------------------------------
Title: CEO
--------------------------------
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GOLDEN WEST AGRI-PRODUCTS, INC.
By /s/ Xxxxxx Xxxxxx
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Title: CEO
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AMPRO INDUSTRIES, INC.
By /s/ Xxxxxx Xxxxxx
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Title: CEO
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