EXHIBIT 10.30
EIGHTH AMENDMENT, CONSENT AND WAIVER
TO LOAN AND SECURITY AGREEMENT
This Eighth Amendment, Consent and Waiver to Loan and Security Agreement,
dated as of June 23, 1997 (this "Consent"), is by and among Xxxxx Nursery, Inc.,
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a 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"), Sunbelt Nursery Holdings, Inc., an Arizona corporation,
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Sunbelt Management Services, Inc., a Delaware corporation, as guarantors
(collectively, the "Guarantors" and, together with the Borrowers, the "Loan
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Parties"), and American National Bank and Trust Company of Chicago, a national
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banking association (the "Lender"). Capitalized terms used in this Consent and
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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 may be
amended, modified, restated or supplemented from time to time, the "Loan
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Agreement");
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WHEREAS, Xxxxxxx X. Xxxxx desires to sell 1,000,000 shares of Sunbelt
common stock (the "Transaction") and use the proceeds of such sale to payoff and
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terminate the credit facility provided by, among other things, the Credit
Agreement dated as of October 14, 1994 (as amended, the "Xxxxx Credit
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Agreement"), between Xxxxxxx X. Xxxxx and the Lender; and
WHEREAS, the Loan Parties have requested that the Lender amend the Loan
Agreement to provide for the Transaction, consent to the Transaction and waive
any event of default that may occur as a result of the Transaction, and the
Lender has agreed to such a request;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained in this Consent, the Loan Parties and the Lender agree as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT
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On the date of this Consent, the Loan Agreement is amended by deleting
Section 9.1(O) in its entirety and replacing it as follows:
(O) Xxxxxxx X. Xxxxx does not own at least 3,200,000 shares of the common
stock of Sunbelt;
SECTION 2. CONSENT AND WAIVER
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On the date of this Consent, the Lender consents to the Transaction and
waives any Event of Default under Section 9.1(O) of the Loan Agreement as a
result of the Transaction. Nothing in this Consent should in any way be deemed
a (i) waiver of any other Event of Default under the Loan Agreement or (ii) an
agreement to forbear from exercising any remedies with respect to any such other
Event of Default.
SECTION 3. CONDITIONS TO EFFECTIVENESS
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The obligation of the Lender to make the consents and waivers contemplated
by this Consent and the effectiveness thereof, are subject to the following:
(A) THIS CONSENT. The Lender has received a duly executed and delivered
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copy of this Consent.
(B) NO DEFAULT. As of the date of this Consent, except as expressly
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waived in Section 2 above, no Event of Default or Default under the Loan
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Agreement has occurred and is continuing or will result from the transactions
contemplated by this Consent.
(C) PAYOFF OF XXXXX CREDIT AGREEMENT. The Lender has received the
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proceeds of the Transaction from Xxxxxxx X. Xxxxx, which proceeds will be
applied to the repayment of all principal and interest owing under the Xxxxx
Credit Agreement.
SECTION 4. MISCELLANEOUS
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(A) CAPTIONS. The recitals to this Consent (except for definitions) and
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the section captions used in this Consent are for convenience only, and do not
affect the construction of this Consent.
(B) COUNTERPARTS. This Consent 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 Consent. The Loan Parties and the Lender agree
to accept facsimile counterparts.
(C) COSTS, EXPENSES AND TAXES. Each Loan Party affirms and acknowledges
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that Section 10.2 and Section 10.3 of the Loan Agreement applies to this Consent
and the transactions and agreements and documents contemplated under this
Consent.
(D) GUARANTORS REAFFIRMATION. Each of the Guarantors acknowledges that it
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has read this Consent and consents to this Consent 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
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otherwise affected by the execution of this Consent or any other document or
instrument delivered in connection with this Consent.
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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 By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
Title: Secretary Title: President
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SUNBELT MANAGEMENT SERVICES, INC.,
as a Guarantor
By:/s/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
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 Consent referenced herein and consents to this Consent 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 Consent or any other
document or instrument delivered in connection with this Consent.
/s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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