Ex 10.21
FIRST AMENDMENT
TO
REVOLVING CREDIT, TERM LOAN, GUARANTY AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT, TERM LOAN, GUARANTY AND SECURITY
AGREEMENT, dated as of June 28, 2002 (this "First Amendment"), is entered into
by and among EASY GARDENER, INC., a Delaware corporation ("Borrower"), U.S. HOME
& GARDEN, INC., a Delaware corporation of which Borrower is a wholly-owned
Subsidiary ("Holdings"), the various Subsidiaries of Borrower and Holdings whose
names appear on the signature pages hereto or who may hereafter become parties
to that certain Revolving Credit, Term Loan, Guaranty and Security Agreement,
dated as of November 15, 2001 (as the same may be further amended, modified,
supplemented or restated from time to time, the "Loan Agreement"), by executing
and delivering an Instrument of Joinder (such Subsidiaries and Holdings
sometimes being referred to herein collectively as the "Guarantors" and
individually as a "Guarantor"; and the Guarantors and Borrower sometimes being
referred to herein collectively as the "Credit Parties" and individually as a
"Credit Party"), the financial institutions which are now or which hereafter
become a party to the Loan Agreement (collectively, the "Lenders" and
individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent
for Lenders (PNC, in such capacity, the "Agent").
RECITALS
A. The Credit Parties, Lenders and Agent have previously entered into that
certain Loan Agreement, pursuant to which Lenders agreed to make certain credit
facilities available to Borrower, secured by the Collateral and guaranteed by
Guarantors.
B. The parties desire to enter into this First Amendment to modify the
Loan Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the Loan
Agreement.
2. Undrawn Availability. The entire text of Section 8.1(dd) of the Loan
Agreement is hereby deleted in its entirety and replaced with the
following:
"(dd) Undrawn Availability. After giving effect to the initial
Advances hereunder, Borrower shall have Undrawn Availability of at
least $2,900,000;"
3. Permitted Encumbrances. Schedule 1.2 of the Loan Agreement is hereby
deleted in its entirety and replaced with Exhibit A attached hereto
and incorporated herein by this reference. In furtherance of the
foregoing, Lenders and Agent hereby waive any default arising prior
to giving effect to this First Amendment due to the failure of the
Credit Parties to comply with any requirements of Schedule 1.2 of
the Loan Agreement within the time period specified therein.
4. Reduction of Obligations. If the Obligations are not paid in full by
the close of business on July 10, 2002, then effective July 11,
2002, the following amendments to the Loan Agreement shall apply:
(a) The following text shall be added to the Loan Agreement as
a new definition in Section 1.2:
" 'Maximum Obligations' shall mean $25,000,000."
(b) The definition of "Maximum Revolving Advance Amount in
Section 1.2 of the Loan Agreement is changed from
"$31,000,000" to $25,000,000 less the amount outstanding from
time to time under the Term Loan."
(c) The following text shall be added to the Loan Agreement as
Section 2.17:
"2.17. Maximum Obligations. At no time shall the sum of
the outstanding Revolving Advances plus amounts outstanding
under the Term Loan plus any other outstanding Obligations
exceed the Maximum Obligations."
5. Condition Precedent. The effectiveness of this First Amendment is
subject to the payment by Borrower of an Amendment Fee, as follows:
$75,000 on June 28, 2002 by PNC charging Borrower's loan account
with PNC for such amount on that date; plus the payment by Borrower
to PNC of the sum of $25,000 on the Repayment Date or, at the option
of Borrower, by the transfer to PNC by Borrower on the Repayment
Date of the sum of $17,000,000 pursuant to a money management
agreement for a period of not less than one year. For the purposes
hereof, "Repayment Date" shall be the first to occur of (a) the date
when the Obligations are paid in full or (b) August 11, 2002.
6. General Provisions. This First Amendment shall for all purposes be
deemed a part of the Loan Agreement and shall be subject to the
terms and conditions thereof, as amended hereby. Without limiting
the foregoing, this First Amendment shall be subject to the
Miscellaneous provisions set forth in Section 16 of the Loan
Agreement. This First Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each
of which, when executed and delivered, shall be deemed to be an
original, and all of which, including, but not limited to,
counterparts transmitted by telecopier, when taken together, shall
constitute but one and the same instrument. The effect of this First
Amendment is limited to the express terms hereof. No provision of
the Loan Agreement or any other Loan Document shall be deemed to
have been waived, amended or modified in any respect except as and
to the extent expressly provided herein. Subject to the specific
terms of this Amendment, each and every term and provision of the
Loan Agreement and each of the other Loan Documents remains in full
force and effect without modification, and the same are hereby
ratified and reaffirmed in all respects. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES OF SUCH STATE).
[remainder of page intentionally left blank; signature pages follow]
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IN WITNESS WHEREOF, each of the parties has caused this First Amendment to
be duly executed and delivered by its respective duly authorized officer.
EASY GARDENER, INC.,
as Borrower
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
U.S. HOME & GARDEN INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
XXXXXXXXX CONSUMER PRODUCTS GROUP, INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
XXXXXXXXX CONSUMER PRODUCTS, INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
GOLDEN WEST AGRI-PRODUCTS, INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
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WEED WIZARD ACQUISITION CORP.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
AMPRO INDUSTRIES, INC.,
as Guarantor
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: CEO
------------------------------------
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