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EXHIBIT 10.35    
  


 
 

FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT    
  


        This Fifth Amendment to Credit and Security Agreement (the "Amendment"), dated as of September 19, 2002, is
made by and between NATURADE, INC. a Delaware corporation (the "Borrower"), and WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation
(the "Lender"). 


 
 

Recitals    
  


        The Borrower and the Lender have entered into a Credit and Security Agreement dated as of January 27, 2000 as amended by that certain First Amendment to
Credit and Security Agreement dated as of November 16, 2000, by that certain Second Amendment to Credit and Security Agreement dated as of January 3, 2001, by that certain Third
Amendment to Credit and Security Agreement dated as of May 14, 2001 and that certain Fourth Amendment to Credit and Security Agreement dated as of December 20, 2001 (collectively
referred to herein as, the "Credit Agreement"). Capitalized terms used in these recitals have the meanings given to them in the Credit Agreement unless
otherwise specified. 


        The
Lender is willing to amend the Credit Agreement pursuant to the terms and conditions set forth herein. The Borrower is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of the Lender's rights or remedies as set forth in the Credit Agreement is being waived or modified by the terms of this Amendment. 


        NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and agreements herein contained, it is agreed as follows: 



        1.    Defined Terms.    Capitalized terms used in this Amendment which are defined in the Credit Agreement shall have
the same meanings as defined therein, unless otherwise defined herein. 


        2.    Amendment to Credit Agreement    



        (a)    Minimum Book Net Worth.    Section 6.12 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows: 


"Section 6.12  Minimum Book Net Worth.  The Borrower will maintain, during each period described below, its Book Net Worth, determined
as at the end of each month, at an amount not less than the amount set forth opposite such period: 



	Month Ending
 
	 	Minimum Book Net Worth
	 
	August 31, 2002	 	$	(3,350,000	)
	September 30, 2002	 	$	(3,525,000	)
	October 31, 2002	 	$	(3,625,000	)
	November 30, 2002	 	$	(3,800,000	)
	December 31, 2002, and each month thereafter	 	$	(3,000,000	)






        (b)    Minimum Net Income.    Section 6.12 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows: 


"6.13
Minimum Net Income.  The Borrower will maintain during each period described below, Minimum Net Income determined as at the end of
each calendar quarter measured on a year-to-date basis, of not less than the amount set forth opposite such period: 



	Quarter Ending
 
	 	Minimum Net Income
	 
	September 30, 2002	 	$	(1,855,000	)
	December 31, 2002	 	$	(1,345,000	)"









        3.    Minimum Cash.    The following is added to the Credit Agreement as Section 6.15 and shall read in its
entirety as follows: 



"Minimum Cash.  The Borrower shall maintain a minimum of (i) Two Hundred Thousand Dollars ($200,000) of unrestricted cash on hand at
all times during the period beginning immediately and ending on December 31, 2002, and (ii) Four Hundred Thousand Dollars ($400,000) of unrestricted cash on hand at all times after
December 31, 2002. Such cash shall be held in a savings or CD blocked account opened for the benefit of Lender with terms satisfactory to Lender in its sole discretion. 




        4.    Availability Reserve.    An Availability Reserve shall be established in the amount of Thirty Five Thousand
Dollars ($35,000) per month beginning on August 1, 2002 and continuing for each month until December 1, 2002. 



        5.    Waiver of Defaults.    The Borrower is in default for failing to comply with (i) the Adjusted Book Net
Worth covenant as set forth in Section 6.12 of the Credit Agreement for the months of February 2002 through June 2002, and (ii) the Net Income covenant as set forth in
Section 6.13 of the Credit Agreement as of March 31, 2002 (collectively, the "Existing Defaults"). Upon the terms and subject to the
conditions set forth in this Amendment, the Lender hereby waives the Existing Defaults; provided, however, that nothing herein shall be deemed a waiver
with respect to any failure by Borrower to otherwise comply fully with Sections 6.12 and 6.13 of the Credit Agreement as amended hereby. This waiver shall be effective only in this specific instance
and for the specific purpose for which it is given, and this waiver shall not entitle the Borrower to any other or further waiver in any similar or other circumstances. 


        6.    Amendment Fee.    Borrower shall pay to Lender an amendment fee in the amount of Twenty Five Thousand Dollars
($25,000) for the preparation and execution of this Amendment ("Amendment Fee"). Which fee shall be fully earned, non-refundable and payable
upon the execution of this Amendment. 


        7.    No Other Changes.    Except as explicitly amended by this Amendment, all of the terms and conditions of the
Credit Agreement shall remain in full force and effect and shall apply to any Advance or Letter of Credit thereunder. 


        8.    Effectiveness of this Amendment.    Lender must have received the following items, in form and content
acceptable to Lender, before this Amendment is effective and before Lender is required to extend any credit to Borrower as provided for by this Amendment. 



        (a)    Amendment.    This Amendment fully executed in a sufficient number of counterparts for distribution to Lender
and Borrower. 


        (b)    Amendment Fee.    The Amendment Fee. 


        (c)    Representations and Warranties.    The representations and warranties set forth herein and in the Credit
Agreement must be true and correct. 


        (d)    Other Required Documentation.    All other documents and legal matters in connection with the transaction
contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to Lender. 




        9.    Representations and Warranties.    The Borrower hereby represents and warrants to the Lender as follows: 



        (a)  The
Borrower has all requisite power and authority to execute this Amendment and to perform all of its obligations hereunder, and this Amendment has been duly executed
and delivered by the Borrower and constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms. 


        (b)  The
execution, delivery and performance by the Borrower of this Amendment have been duly authorized by all necessary corporate action and do not (i) require any
authorization, consent 











or approval by any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate any provision of any law, rule or regulation or of any
order, writ, injunction or decree presently in effect, having applicability to the Borrower, or the articles of incorporation or by-laws of the Borrower, or (iii) result in a breach
of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Borrower is a party or by which it or its properties may be bound or
affected. 


        (c)  All
of the representations and warranties contained in Article V of the Credit Agreement are correct on and as of the date hereof as though made on and as of such
date, except to the extent that such representations and warranties relate solely to an earlier date. 




        10.    References.    All references in the Credit Agreement to "this Agreement" shall be deemed to refer to the
Credit Agreement as amended hereby; and any and all references in the Loan Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as amended hereby. 



        11.    No Waiver.    The execution of this Amendment and acceptance of any documents related hereto shall not be
deemed to be a waiver of any Default or Event of Default under the Credit Agreement or breach, default or event of default under any Loan Document or other document held by the Lender, whether or not
known to the Lender and whether or not existing on the date of this Amendment. 


        12.    Release.    The Borrower, and Guarantor by signing the Acknowledgment and Agreement of Guarantor set forth
below, each hereby absolutely and unconditionally releases and forever discharges the Lender, and any and all participants, parent corporations, subsidiary corporations, affiliated corporations,
insurers, indemnitors, successors and assigns thereof, together with all of the present and former directors, officers, agents and employees of any of the foregoing, from any and all claims, demands
or causes of action of any kind, nature or description, whether arising in law or equity or upon contract or tort or under any state or federal law or otherwise, which the Borrower or Guarantor has
had, now has or has made claim to have against any such person for or by reason of any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and including the date of
this Amendment, whether such claims, demands and causes of action are matured or unmatured or known or unknown. It is the intention of the parties in executing this release that the same shall be
effective as a bar to each and every claim, demand and cause of action specified and in furtherance of this intention each waives and relinquishes all rights and benefits under Section 1542 of
the Civil Code of the State of California, which provides: 



"A
general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him might have materially
affected his settlement with the debtor." 




        The
parties acknowledge that each may hereafter discover facts different from or in addition to those now known or believed to be true with respect to such claims, demands, or causes of
action and agree that this instrument shall be and remain effective in all respects notwithstanding any such differences or additional facts. 


        13.    Costs and Expenses.    The Borrower hereby reaffirms its agreement under the Credit Agreement to pay or
reimburse the Lender on demand for all costs and expenses incurred by the Lender in connection with the Credit Agreement, the Loan Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrower specifically agrees to pay all fees and
disbursements of counsel to the Lender for the services performed by such counsel in connection with the preparation of this Amendment and the documents and instruments incidental hereto. The Borrower
hereby agrees that the Lender may, at any time or from time to time in its sole discretion and without further authorization by the Borrower, make a loan to the Borrower under the Credit Agreement, or
apply the proceeds of any loan, for the purpose of paying any such fees, disbursements, costs and expenses. 








        14.    Miscellaneous.    This Amendment may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. 


        IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above. 



	WELLS FARGO BUSINESS CREDIT, INC.,

a Minnesota corporation	 	NATURADE, INC.,

a Delaware corporation
	

By	

/s/ TOM MAKOWSKI	
 	

By	

/s/ LAWRENCE J. BATINA
	 	
	 	 	

	 	Name:	 	TOM MAKOWSKI	 	 	Name:	LAWRENCE J. BATINA
	 	 	 	
	 	 	 	

	 	Title:	 	Commercial Loan Officer	 	 	Title:	Chief Financial Officer
	 	 	 	
	 	 	 	












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EXHIBIT 10.35


FIFTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT

Recitals