EXHIBIT 10.33
ELEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Eleventh Amendment to Loan and Security Agreement, dated as of
November 21, 1997 (this "Amendment"), is by and among Xxxxx Nursery, Inc., 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
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
American National Bank and Trust Company of Chicago, a national banking
association, as lender (the "Lender"). Capitalized terms used in this Amendment
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
Agreement");
WHEREAS, the Loan Parties and the Lender desire to amend the Loan
Agreement to extend the maturity date of the Loan Agreement to November 30,
1997, 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
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
"Closing Date"), Section 1.1 of the Loan Agreement is amended by deleting the
definition of "Maturity Date" in its entirety and replacing it as follows:
"Maturity Date" shall mean November 30, 1997.
SECTION 2. REPRESENTATION AND WARRANTIES
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:
2.1 Due Authorization, Etc. The execution, delivery and 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.
2.2 No Default, Etc. As of the Closing Date, (i) no Event of 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.
SECTION 3. CONDITIONS TO EFFECTIVENESS
The obligation of the Lender to make the amendments contemplated by
this Amendment and the effectiveness thereof, are subject to the following:
3.1 Representations and Warranties. The representations and
warranties of the Loan Parties contained in this Amendment are true and correct
as of the Closing Date.
3.2 Documents. The Lender has received all of the following, each
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:
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(A) Eleventh 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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any 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
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request.
SECTION 4. MISCELLANEOUS
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4.1 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.
4.2 Governing Law; Severability. THIS AMENDMENT IS A CONTACT MADE
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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.
4.3 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.
4.4 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.
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4.5 References. From and after the Closing Date, each reference in
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the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein," or
words 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.
4.6 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.
4.7 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.
4.8 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)
contains 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.
* * * * *
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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. XXXXX
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Name: XXXXXXX X.XXXXX
Title: 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/ XXXXXX X. XXXXXXXX
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Name: XXXXXX X. XXXXXXXX
Title: SENIOR 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 has
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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
