FIFTH AMENDMENT TO CREDIT AGREEMENT
This Amendment (the "Amendment") dated as of Jan. 30, 2001, is between Bank
of America, N.A (the "Bank"), formerly known as Bank of America National Trust
and Savings Association, and U.S. Home & Garden Inc. (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into certain Credit Agreement dated as
of October 13,1998, as previously amended (the "Agreement"').
B. The Bank and the Borrower desire to further mend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendment. The Agreement is hereby amended as follows:
2.1. In Section 1.1, the definition of Facility 1 Maturity Date is
amended by substituting the date "March 31, 2004" for the date "September
30, 2004."
2.2. In Section 1.1, subsection (a) of the definition of Revolving
Termination Date is amended to read in its entirety as follows:
(a) June 30, 2001, for Facility 1 or September 30, 2001, for
Facility 2, and
2.3. Section 2.7(bb) is deleted.
2.4. Section 2.8(a) is amended to read in its entirety as follows:
(a) Facility 1 Loans. The Borrower shall repay the following
percentages of the total of the Facility 1 Loans outstanding on the
Revolving Termination Date on the following dates (each a "Principal
Payment Date"):
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Year March 31 June 30 September 30 December 31
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2001 7.50% 7.50% 7.50%
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2002 7.50% 7.50% 7.50% 7.50%
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2003 7.50% 10.00% 10.00% 10.50%
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2004 10.00%
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And on March 31, 2004. the entire remaining balance of the Facility 1
Loans and all accrued Interest thereon shall be immediately due and
payable.
3. Representations and Warranties. When the Borrower signs this Amendment,
the Borrower represents and warrants to the Bank that:
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3.1. No Default or Event of Default has occurred or is continuing
under the Agreement except those Defaults or Events of Default, if any,
that have been disclosed in writing to the Bank or waived in writing by the
Bank.
3.2. The representations and warranties in the Agreement are true as
of the date of this Amendment as if made on the date of this Amendment
except to the extent such representations and warranties expressly refer to
an earlier date, in which case they are true and correct as of such earlier
date.
3.3. The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Agreement as
amended by this Amendment constitutes the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with its
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
4. Effective Date. Provided that the Bank has received from the Borrower a
duly executed original of this Amendment, this Amendment will be deemed
effective as of ________________.
5. Miscellaneous.
5.1. Except as herein expressly amended, all terms, covenants and
provisions of the Agreement are and shall remain in full force and effect
and all references therein and in the other loan Documents to the Agreement
shall henceforth refer to the Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Agreement.
This Amendment is a Loan Document.
5.2. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and to the Agreement and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
5.3. This Amendment shall be governed by and construed in accordance
with the law of the State of California.
5.4. This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument. Each of the
parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in
the form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original,
and that receipt by the Bank of a facsimile transmitted document
purportedly bearing the signature of the Borrower shall bind the Borrower
with the same force and effect as the delivery of a hard copy original. Any
failure by the Bank to receive the hard copy executed original of such
document shall not diminish the binding effect of receipt of the facsimile
transmitted executed original of such document.
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This Amendment is executed as of the date stated at the beginning of this
Amendment.
Bank of America, N.A.
By
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Title Senior Vice President
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By
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Title
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U.S. Home & Garden Inc.
By Donald A. Rutishauser
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Title Chief Financial Officer
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By Robert Kassel
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Title C.O.O
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