EXHIBIT 10.35
THIRTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Thirteenth Amendment to Loan and Security Agreement, dated as of
December 15, 1997 (this "Amendment"), is by an 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 December 22, 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 December 22, 1997.
SECTION 2. REPRESENTATIONS AND WARRANTIES
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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
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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
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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
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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
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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
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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) Thirteenth Amendment. This Amendment;
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(B) Resolutions. Resolutions of the Board of Directors of each Loan
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Party authorizing or ratifying the execution, delivery and performance of this
Amendment;
(C) Consents, Etc. Certified copies of all documents evidencing any
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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 request.
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SECTION 4. MISCELLANEOUS
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4.1 Captions. The recitals to this Amendment (except for definitions)
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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 CONTRACT 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 Loan
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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 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 of 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 other wised modified by the Amendment.
4.6 Continued Effectiveness. Notwithstanding anything contained in
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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 no 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 Cost, 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
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)
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.
* * * * *
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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
