EXHIBIT 10.21
FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
----------------------------------------------
This FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this "Amendment"),
dated as of March 30, 2000, is by and among VERDANT BRANDS, INC., a Minnesota
corporation ("Verdant"), SAFER, INC., a Delaware corporation ("Safer"), SURECO,
INC., a Georgia corporation ("SureCo"), CONSEP, INC., an Oregon corporation
("Consep"), XXXXXXX XXXX INC., a California corporation ("Xxxx"), PACOAST INC.,
a California corporation ("Pacoast"), and VALLEY GREEN CENTER, INC., a
Massachusetts corporation ("Valley Green") (Verdant, Safer, SureCo, Consep,
Xxxx, Pacoast, and Valley Green are sometimes referred to herein individually as
a "Borrower" and collectively, the "Borrowers") and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, for itself, as Lender, and as Agent for
Lenders, and the other Lenders signatory hereto.
RECITALS
--------
A. Borrowers, Agent and Lenders are parties to that certain Amended and
Restated Credit Agreement dated as of July 14, 1999 (as from time to time
amended, restated, supplemented or otherwise modified and in effect, the "Credit
Agreement"), pursuant to which Agent and Lenders have made and may hereafter
make loans and advances and other extensions of credit to Borrowers.
B. On and subject to the terms and conditions hereof, Borrowers wish, and
Agent and Lenders are willing, to amend certain provisions of, and give certain
waivers with respect to, the Credit Agreement, all on the terms and conditions
set forth in this Amendment.
C. This Amendment shall constitute a Loan Document and these Recitals shall
be construed as part of this Amendment. Capitalized terms used herein without
definition are so used as defined in Annex A to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Amendment. The Credit Agreement is hereby amended as follows:
(a) The following term is hereby inserted into Annex A of the
Credit Agreement in alphabetical order:
"B&I Loan Agreement" shall mean Term Loan Agreement dated August
21, 1997 among SureCo., Southern Resources, Inc., Peach County
Property, Inc., the guarantors thereunder and B&I Lending, LLC
("B&I"), without giving effect to any amendment or modification
thereof.
(b) Section 1.1(b)(ii) is hereby amended by deleting it in its
entirety and substituting therefor the following:
(ii) Borrower shall pay the principal amount of the Term
Loan in eight (8) quarterly installments, commencing March 30,
2000, as follows:
Payment Date Installment Amount
------------ ------------------
March 30, 2000 $125,000
July 1, 2000 $250,000
October 1, 2000 $250,000
April 1, 2001 $375,000
July 1, 2001 $250,000
October 1, 2001 $250,000
January 1, 2002 $250,000
April 1, 2002 $250,000
Notwithstanding anything contained herein to the contrary,
Verdant shall pay the aggregate outstanding principal balance of
the Term Loan on the Commitment Termination Date, if not sooner
paid in full.
2. Waiver. The Agent and the Lenders hereby waive the Events of
Default arising under:
(a) Section 8.1(b) of the Credit Agreement resulting solely from
Borrowers' failure to (x) comply with the Capital Expenditures
limitation set forth in Annex G to the Credit Agreement for Fiscal
Year 1999 and (y) maintain the Interest Coverage Ratio set forth in
Annex G to the Credit Agreement for the Fiscal Quarter ended December
31, 1999; and
(b) Section 8.1(e) of solely by virtue of certain defaults set
forth on Schedule A hereto (collectively, the "Specified Defaults") by
SureCo under the terms of the B&I Loan Agreement, which defaults
permit B&I to cause Indebtedness in excess of $250,000 to become due
prior to its stated maturity date.
3. Representations and Warranties of Credit Parties. In order to
induce Agent and Lenders to enter into this Amendment, each Credit Party
hereby jointly and severally represents and warrants to Agent and Lenders
that:
(a) Representations and Warranties. After giving effect to this
Amendment, no representation or warranty of any Credit Party contained
in the Credit Agreement or any of the other Loan Documents, including
this Amendment, shall be untrue or incorrect in any material respect
as of the date hereof, except to the extent that such representation
or warranty expressly relates to an earlier date.
2
(b) Authorization, etc. Each Credit Party has the power and
authority to execute, deliver and perform this Amendment. Each Credit
Party has taken all necessary action (including, without limitation,
obtaining approval of its stockholders, if necessary) to authorize its
execution, delivery and performance of this Amendment. No consent,
approval or authorization of, or declaration or filing with, any
Governmental Authority, and no consent of any other Person, is
required in connection with any Credit Party's execution, delivery and
performance of this Amendment, except for those already duly obtained.
This Amendment has been duly executed and delivered by each Credit
Party and constitutes the legal, valid and binding obligation of each
Credit Party, enforceable against it in accordance with its terms. No
Credit Party's execution, delivery or performance of this Amendment
conflicts with, or constitutes a violation or breach of, or
constitutes as default under, or results in the creation or imposition
of any Lien upon the property of any Credit Party by reason of the
terms of (i) any contract, mortgage, lease, agreement, indenture or
instrument to which any Credit Party is a party or which is binding
upon it, (ii) any law or regulation or order or decree of any court
applicable to any Credit Party, or (iii) the certificate or articles
of incorporation or by-laws of any Credit Party.
4. Conditions to Effectiveness. The effectiveness of this Amendment is
expressly conditioned upon the satisfaction of each condition set forth in
this Section 4 on or prior to the date hereof and consummation of all of
the transactions contemplated thereby:
(a) Documentation. Borrowers shall have delivered to Agent (on
behalf of itself and Lenders) all of the following documents, all in
form and substance acceptable to Agent in its discretion:
(i) Amendment. Duly executed originals of this Amendment.
(ii) Other Documents. All other agreements, certificates,
opinions and other documents as Agent may reasonably request to
accomplish the purposes of this Amendment.
(b) Term Loan Paydown. Agent shall have received immediately
available funds in an amount not less than $125,000 to be applied by
Agent in accordance with Section 1.3(a) of the Credit Agreement.
(c) Fee. Agent shall have received a fee in the amount of
$50,000.
(d) No Default. No Default or Event of Default shall have
occurred and be continuing, or would result after giving effect
hereto.
(e) Representations and Warranties. After giving effect to this
Amendment, no representation or warranty of any Credit Party contained
in the Credit Agreement or any of the other Loan Documents, including
this Amendment, shall be untrue or incorrect in any material respect
as of the date hereof, except to the extent that such representation
or warranty expressly relates to an earlier date.
(f) Consents and Acknowledgments. Each Credit Party shall have
obtained all consents, approvals and acknowledgments which may be
required with respect to the execution, delivery and performance of
this Amendment.
3
5. Reference to and Effect on Loan Documents.
(a) Ratification. Except as specifically amended above, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and each Credit Party hereby ratifies and confirms
each such Loan Document.
(b) No Waiver. Except as specifically provided in this Agreement,
the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver or forbearance of any right, power or remedy of
Agent or any Lender under the Credit Agreement or any of the other
Loan Documents, or constitute a consent, waiver or modification with
respect to any provision of the Credit Agreement or any of the other
Loan Documents. Upon the effectiveness of this Amendment each
reference in (a) the Credit Agreement to "this Agreement,"
"hereunder," "hereof," or words of similar import and (b) any other
Loan Document to "the Agreement" shall, in each case and except as
otherwise specifically stated therein, mean and be a reference to the
Credit Agreement as amended hereby.
6. Miscellaneous.
(a) Successors and Assigns. This Amendment shall be binding on
and shall inure to the benefit of the Credit Parties, Agent and
Lenders and their respective successors and assigns, except as
otherwise provided herein. No Credit Party may assign, transfer,
hypothecate or otherwise convey its rights, benefits, obligations or
duties hereunder without the prior express written consent of Agent
and Lenders. The terms and provisions of this Amendment are for the
purpose of defining the relative rights and obligations of the Credit
Parties, Agent and Lenders will respect to the transactions
contemplated hereby and there shall be no third party beneficiaries of
any of the terms and provisions of this Amendment.
(b) Entire Agreement. This Amendment, including all schedules and
other documents attached hereto or incorporated by reference herein or
delivered in connection herewith, constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes
all other understandings, oral or written, with respect to the subject
matter hereof.
(c) Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, Borrower agree to pay on demand all fees, costs and
expenses incurred by Agent in connection with the preparation,
execution and delivery of this Amendment.
(d) Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
(e) Severability. Wherever possible, each provision of this
Amendment shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Amendment
shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Amendment.
4
(f) Conflict of Terms. Except as otherwise provided in this
Amendment, if any provision contained in this Amendment is in conflict
with, or inconsistent with, any provision in any of the other Loan
Documents, the provision contained in this Amendment shall govern and
control.
(g) Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed signature page to
this Amendment by telecopy shall be effective as delivery of a
manually executed signature page to this Amendment.
(h) Incorporation of Credit Agreement. The provisions contained
in Sections 11.9 and 11.13 of the Credit Agreement are incorporated
herein by reference to the same extent as if reproduced herein in
their entirety, except with reference to this Amendment rather than
the Credit Agreement.
(i) Acknowledgment. Each Credit Party hereby represents and
warrants that there are no liabilities, claims, suits, debts, liens,
losses, causes of action, demands, rights, damages or costs, or
expenses of any kind, character or nature whatsoever, known or
unknown, fixed or contingent (collectively, the "Claims"), which any
Credit Party may have or claim to have against Agent or any Lender, or
any of their respective affiliates, agents, employees, officers,
directors, representatives, attorneys, successors and assigns
(collectively, the "Lender Released Parties"), which might arise out
of or be connected with any act of commission or omission of the
Lender Released Parties existing or occurring on or prior to the date
of this Amendment, including, without limitation, any Claims arising
with respect to the Obligations or any Loan Documents. In furtherance
of the foregoing, each Credit Party hereby releases, acquits and
forever discharges the Lender Released Parties from any and all Claims
that any Credit Party may have or claim to have, relating to or
arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby
or any action taken in connection therewith from the beginning of time
up to and including the date of the execution and delivery of this
Amendment. Each Credit Party further agrees forever to refrain from
commencing, instituting or prosecuting any lawsuit, action or other
proceeding against any Lender Released Parties with respect to any and
all Claims.
[signature pages follow]
5
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first written above.
VERDANT BRANDS, INC.
SAFER, INC.
SURECO, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Executive Vice President,
and Treasurer
CONSEP, INC.
PACOAST INC.
XXXXXXX XXXX INC.
VALLEY GREEN CENTER, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Vice President, Secretary and
Treasurer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By: /s/ (Illegible)
-----------------------------------
Title: Duly Authorized Signatory
Each of the following Persons is a signatory to this Agreement in its
capacity as a Credit Party and not as a Borrower.
SAFER, LTD.
SOUTHERN RESOURCES, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Title: Executive Vice President,
Secretary and Treasurer
FARCHAN LABORATORIES, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Title: Vice President, Secretary and
Treasurer
6