AMENDMENT TO CREDIT AGREEMENT
This Amendment (the "Amendment") dated as of September 29, 1999, 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 dated
as of October 13, 1998 (the "Agreement").
B. The Bank and the Borrower desire to 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. Amendments. The Agreement is hereby amended as follows:
2.1 In Section 7.4(d), clause (ii) is amended to read in its entirety
as follows:
(ii) the prior effective written consent or approval to such
Acquisition of the board of directors or equivalent governing body of
the target is obtained, and the prior written approval of the Bank to
such Acquisition is obtained.
2.2 In Section 7,11(d), the clause "declare or pay cash dividends to
its stockholders and" is deleted, and the amount "$8,000,000" is
substituted for the amount "$5,000,000."
2.3 Section 7.18 is amended to read in its entirety as follows:
7.18 Financial Covenants.
(a) Interest Coverage, Ratio. The Borrower shall not permit the
Interest Coverage Ratio, for any four fiscal quarter period (on a
rolling four quarter basis) to be less than (i) 1.75 to 1.00 for the
four fiscal quarter periods ending on June 30, 1999, September 30,
1999, December 31, 1999, and Xxxxx 00, 0000, (xx) 2.50 to 1.00 for the
four fiscal quarter period ending on June 30, 2000, and (iii) 3.00 to
1.00 for any four fiscal quarter period ending after June 30, 2000.
(b) Leverage Ratio. The Borrower shall not permit the Leverage
Ratio for any four fiscal quarter period (on a rolling four quarter
basis) to exceed (1) 6.25 to 1.00 for the four fiscal quarter periods
ending on June 30, 1999, September 30, 1999, and December 31. 1999,
(ii) 6.50 to 1.00 for the
four fiscal quarter period ending on Xxxxx 00, 0000, (xxx) 4.25 to
1.00 for the four fiscal quarter period ending on June 30, 2000, and
for any four fiscal quarter period ending, on March 31 of any fiscal
year (except March 31, 2000), and (iv) 4.00 to 1.00 for any other four
fiscal quarter period.
(c) Fixed Charge Coverage Ratio. The Borrower shall not permit
the Fixed Charge Coverage Ratio to be less than (i) 1.25 to 1.00 for
the three fiscal quarter period ending on June 30, 1999, and for the
four fiscal quarter periods (on a rolling four quarter basis) ending
on September 30, 1999, December 31, 1999, and Xxxxx 00, 0000, (xx)
2.00 to 1.00 for the four fiscal quarter periods (on a rolling four
quarter basis) ending an or after June 30, 2000, and on or before
September 30, 2001, (iii) 1.50 to 1.00 for the four fiscal quarter
periods (on a rolling four quarter basis) ending on December 31, 2001,
and March 31, 2002, and (iv) 1.25 to 1.00 for any four fiscal quarter
period (on a rolling four quarter basis) ending after March 31, 2002.
(d) Consolidated EBITDA. The Borrower shall not permit
Consolidated EBITDA (Ampro Adjusted) for any four fiscal quarter
period (on a rolling four quarter basis) to be less than (i)
$14,500,000 for the four fiscal quarter periods ending on June 30,
1999, September 30, 1999,, and December 31, 1999, (ii) $15,500,000 for
the four fiscal quarter period ending on Xxxxx 00, 0000, (xxx)
$21,000, 000 for the four fiscal quarter period ending on June 30,
2000 and (iv) $22,000,000 for any four fiscal quarter period ending on
or after September 30, 2000.
3. Representations and Warranties. When the Borrower signs this Amendment,
the Borrower represents and warrants to the Bank that:
3.1 No Default or Event of Default has occurred or is continuing under
the Agreement except those Defaults or Events of Default, if any, that have
been disclosed in writing to the Bank or waived in writing by the Bank.
3.2 The representations and warranties in the Agreement are true as of
the date of this Amendment as if made on the date of this Amendment except
to the extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such earlier
date.
3.3 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 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.
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4. Effective Date. This Amendment will be effective on the date on which
the Bank receives from the Borrower a duly executed original of this Amendment
and a fee in the amount of Fifty-Six Thousand Two Hundred Fifty Dollars
($56,250).
5. Miscellaneous.
5.1 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.
5.2 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.
5.3 This Amendment shall be governed by and construed in accordance
with the law of the State of California.
5.4 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 affect 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.
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This Amendment is executed as of the date stated at the beginning of this
Amendment.
Bank of America, N.A.
By: Xxxxxxx Xxxxxx
Title: Vice President
U.S. Home & Garden Inc.
By: Xxxxx Xxxxxxxxx
Title: V.P. Finance
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