EXHIBIT 10.42


 


SEVENTH Amendment to

credit AND SECURITY Agreement and waiver


 


THIS SEVENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT AND WAIVER
(this “Amendment”), dated as of April 15, 2003, is entered into between
WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the “Lender”),
and NATURADE, INC., a Delaware corporation (the “Borrower”).


 


RECITALS


 


A.            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, that
certain Fourth Amendment to Credit and Security Agreement dated as of December
20, 2001, that certain Fifth Amendment to Credit and Security Agreement dated
as of September 19, 2002 (the “Fifth Amendment”) and that certain Sixth
Amendment to Credit and Security Agreement and Waiver dated as of March 24,
2003 (as amended, the “Credit Agreement”).  Capitalized terms used herein have the meanings given to them in
the Credit Agreement unless otherwise specified.


 


B.            As set forth in the
Fifth Amendment, an Availability Reserve has been implemented in the amount of
$175,000.


 


C.            An Event of Default
has occurred and is continuing under the Credit Agreement due to the Borrower’s
failure to maintain, when measured as of January 31, 2003 and February 28, 2003
the minimum amounts of Book Net Worth required by Section 6.12 of the Credit
Agreement (collectively, the “Known Existing Defaults”).


 


D.            The Borrower has
requested that the Lender waive the Known Existing Defaults, allow certain
borrowings to be made which would otherwise be precluded due to the
aforementioned Availability Reserve and make certain amendments to the Credit
Agreement.  The Lender is willing to
waive the Known Existing Defaults, make such borrowings available and amend the
Credit Agreement on the terms and conditions set forth herein.


 


E.             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.


 


AMENDMENT


 


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NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:


 


1.             Amendments to Credit Agreement.


 


(a)           The following definitions are hereby
added, in their proper alphabetical order, to Section 1.1 of the Credit Agreement:


 


“June Financial Statements” has the
meaning specified in Section 2.1(a) hereof.


 


“Special Revolving Advance” has the
meaning specified in Section 2.1(a) hereof.


 


(b)           Section 2.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:


 


“Section 2.1           Revolving
Advances.


 


(a)  The Lender agrees, on the terms and subject to the conditions
herein set forth, to make advances to the Borrower from time to time from the
date all of the conditions set forth in Section 4.1 are satisfied (the “Funding
Date”) to the Termination Date (the “Revolving Advances”).  The Lender shall have no obligation to make
a Revolving Advance if, after giving effect to such requested Revolving
Advance, the sum of the outstanding and unpaid Revolving Advances under this
Section 2.1 or otherwise would exceed the Borrowing Base less the L/C Amount; provided,
however, Lender agrees to make Revolving Advances to the Borrower which
would otherwise be unavailable solely due to the effect of an Availability
Reserve in the amount of $175,000 (each a “Special Revolving Advance”)
subject to the following conditions: (i) Special Revolving Advances may only be
requested after Borrower has delivered to Lender its financial statements
required to be delivered pursuant to Section 6.1 hereof for the periods ending
June 30, 2003 (the “June Financial Statements”), (ii) prior to the
delivery of the June Financial Statements an Event of Default has not occurred,
(iii) the June Financial Statements do not, as determined by Lender, indicate
that an Event of Default has occurred or will occur, (iv) no Special Revolving
Advance may be made for an amount in excess of $175,000 or in increments of
less than $25,000, (v) no more than one Special Revolving Advance may be
outstanding at any one time, (vi) each Special Revolving Advance must be fully
repaid, including any fees due in connection therewith, by no later than the
tenth (10th) business day after such Special Revolving Advance has
been made, (vii) without in any way limiting any other provision of this
Agreement, after the occurrence of an Event of Default, no Special Revolving
Advances may thereafter be requested, and (viii) no Special Revolving Advances
may be requested after December 15, 2003. 
Special Revolving Advances constitute Revolving Advances 


 


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under this Agreement and, except as expressly
provided in this Section 2.1(a), are subject to all of the terms and conditions
set forth in this Agreement.


 


(b) The Borrower’s obligation to pay the Revolving Advances shall be
evidenced by the Revolving Note and shall be secured by the Collateral as
provided in Article III.  Within the
limits set forth in this Section 2.1, the Borrower may borrow, prepay pursuant
to Section 2.6 and reborrow.  The
Borrower agrees to comply with the following procedures in requesting Revolving
Advances under this Section 2.1:


 


(i)   The Borrower shall make each request for a Revolving Advance to
the Lender before 10:30 a.m. (Los Angeles time) of the day of the requested
Revolving Advance.  Requests may be made
in writing or by telephone, specifying the date of the requested Revolving
Advance and the amount thereof.  Each
request shall be by (A) any officer of the Borrower; or (B) any person designated
as the Borrower’s agent by any officer of the Borrower in a writing delivered
to the Lender; or (C) any person whom the Lender reasonably believes to be an
officer of the Borrower or such a designated agent.


 


(ii)  Upon fulfillment of the applicable conditions set forth in Article
IV, the Lender shall disburse the proceeds of the requested Revolving Advance
by crediting the same to the Borrower’s demand deposit account maintained with
Wells Fargo Bank, National Association, unless the Lender and the Borrower
shall agree in writing to another manner of disbursement.  Upon the Lender’s request, the Borrower
shall promptly confirm each telephonic request for an Advance by executing and
delivering an appropriate confirmation certificate to the Lender.  The Borrower shall repay all Advances even
if the Lender does not receive such confirmation and even if the person
requesting an Advance was not in fact authorized to do so.  Any request for an Advance, whether written
or telephonic, shall be deemed to be a representation by the Borrower that the
conditions set forth in Section 4.2 have been satisfied as of the time of the
request.”


 


(c)           A new subsection (g)
is hereby added to Section 2.3 of the Credit Agreement which reads as follows:


 


“(g)               Special Revolving Advances Fees.  The Borrower hereby agrees to pay to the
Lender (i) a non-refundable accommodation fee in the amount of Ten Thousand
Dollars ($10,000), which fee is fully-earned as of April 15, 2003 and due and
payable on the earlier to occur of December 31, 2003 or the Termination Date,
(ii) a non-refundable accommodation fee in the amount of Ten Thousand Dollars
($10,000) for each Special Revolving Advance made to the Borrower under the
terms of Section 2.1(a) hereof, which fees are fully-earned as of and due and
payable on the date each such Special Revolving Advance is requested, and (iii)
to the extent fees payable under the foregoing clause (ii) aggregate less than
Forty Thousand Dollars ($40,000), a non-refundable accommodation fee in an 


 


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amount equal to (A) Forty Thousand Dollars
($40,000) less (B) the total amount of fees paid by the Borrower under the
preceding clause (ii), which fee is fully-earned as of the date the first
Special Revolving Advance is requested and is due and payable on the earlier to
occur of December 31, 2003 or the Termination Date.”


 


(d) Section
6.12 of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:


 


“Section 6.12               Minimum Book Net Worth.  The Borrower will maintain its Book Net
Worth, calculated without giving effect to any fees (but net of, and after
giving effect to, any provisions for taxes made in connection with such fees)
paid to the Lender under the terms of Section 2.3(g) hereof, when determined as
of the dates set forth below, at an amount not less than the amount set forth
opposite such date:


 




	
  Date

  	
   

  	
  Minimum
  Book Net Worth

  	
   

  
	
  March 31, 2003

  	
   

  	
  $

  	
  (2,547,000

  	
  )

  
	
  April 30, 2003

  	
   

  	
  $

  	
  (2,681,000

  	
  )

  
	
  May 31, 2003

  	
   

  	
  $

  	
  (2,705,000

  	
  )

  
	
  June 30, 2003

  	
   

  	
  $

  	
  (2,709,000

  	
  )

  
	
  July 31, 2003

  	
   

  	
  $

  	
  (2,828,000

  	
  )

  
	
  August 31, 2003

  	
   

  	
  $

  	
  (2,917,000

  	
  )

  
	
  September 30, 2003

  	
   

  	
  $

  	
  (2,970,000

  	
  )

  
	
  October 31, 2003

  	
   

  	
  $

  	
  (3,024,000

  	
  )

  
	
  November 30, 2003

  	
   

  	
  $

  	
  (3,168,000

  	
  )

  
	
  December 31, 2003 and the last
  day of each month thereafter

  	
   

  	
  $

  	
  (2,892,000

  	
  )”

  






 


(a)  Section 6.13 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:


 


“Section 6.13  [Intentionally omitted.]”


 


(b) Schedule 7.2 to the Credit
Agreement is hereby replaced with the Schedule 7.2 attached hereto.


 


2.             Waiver of Known Existing
Defaults.  Except as expressly set
forth in this Amendment, the Lender hereby waives enforcement of its rights
against the Borrower arising from the Known Existing Defaults; provided,
however, nothing herein shall be deemed a waiver with respect to any
failure of the Borrower to strictly comply with Section 6.12 of the Credit
Agreement (as amended or modified by this Amendment).  This waiver shall be effective only for the specific defaults
comprising the Known Existing Defaults, and in no event shall this waiver be
deemed to be a waiver of enforcement of the Lender’s rights with respect to any
other Defaults or Events of Default now existing or hereafter arising.  Nothing contained in this 


 


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Amendment nor any
communications between the Borrower and the Lender shall be a waiver of any
rights or remedies the Lender has or may have against the Borrower, except as
specifically provided herein.  Except as
specifically provided herein, the Lender hereby reserves and preserves all of
its rights and remedies against the Borrower under the Credit Agreement and the
other Loan Documents.


 


3.             Release; Covenant Not to Sue.


 


(a)  The Borrower 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 (each a “Released Party”), 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 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 Borrower in providing 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 it 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.”


 


(b) The Borrower acknowledges that it 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.  The Borrower understands, acknowledges and
agrees that the release set forth above may be pleaded as a full and complete
defense and may be used as a basis for an injunction against any action, suit
or other proceeding which may be instituted, prosecuted or attempted in breach
of the provisions of such release.


 


(c)  The Borrower, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Released Party above that it will not sue (at law, in equity, in any regulatory
proceeding or otherwise) any Released Party on the basis of any claim released,
remised and discharged by Borrower pursuant to the above release.  If the Borrower or any of its successors,
assigns or other legal representations violates the foregoing covenant, the
Borrower, for itself and its successors, assigns and legal representatives,
agrees to pay, in addition to such other damages as any Released Party may
sustain as a result of such violation, all attorneys’ fees and costs incurred
by such Released Party as a result of such violation.


 


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4.             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.


 


5.             Conditions Precedent.  This Amendment shall be effective when the
Lender shall have received each of the following in substance and form acceptable
to the Lender in its sole discretion:


 


(a)  this Amendment executed by the Borrower and
the Lender in a sufficient number or original counterparts for distribution to
the parties hereto; and


 


(b) such other documents related
hereto or in furtherance hereof as the Lender may require.


 


6.             Condition Subsequent.  The obligation of the Lender to continue to
make Advances, or otherwise extend credit under the Credit Agreement, is
subject to the delivery, on or before April 30, 2003, by the Borrower to the
Lender of evidence, in form and substance satisfactory to the Lender in its
sole discretion, of the receipt by the Borrower of no less than: (a) an
additional $400,000 as cash proceeds of a loan or equity contribution made to
the Borrower by Health Holdings and Botanicals, LLC (“HHB”) together
with, in the event such funds are received as a loan, an amendment and
restatement of the subordination agreement previously executed by HHB for the
benefit of the Lender, duly executed by HHB and in form and substance
satisfactory to the Lender in its sole discretion (the “New Subordination
Agreement”) and (b) an additional $50,000 as cash proceeds of a loan or
equity contribution made to the Borrower by David A. Weil (“Weil”)
together with, in the event such funds are received as a loan, the New
Subordination Agreement duly executed by Weil; provided, however,
if such funds are received in the form of a cash equity contribution, Schedule
7.2 to the Credit Agreement (as amended by this Amendment) shall not be deemed
to include any indebtedness owed to HHB or Weil, which indebtedness shall
therefore not be permitted under the terms of the Credit Agreement.  Furthermore, the failure by the Borrower to
fulfill the terms of this Section 6 shall constitute an Event of Default.  Without in any way limiting any provision of
the Credit Agreement, the Borrower understands and agrees that any additional
indebtedness incurred by the Borrower in connection with that certain Loan
Agreement, dated on or about April, 2003, among the Borrower, HHB and Weil and
providing for advances of up to $750,000, shall not be considered permitted
indebtedness except as expressly set forth on Schedule 7.2 (as amended) and
only to the extent the Lender has received a subordination agreement from the proposed
holder of such indebtedness or a joinder agreement under which such holder
becomes a party to the New Subordination Agreement, in either case, in form and
substance satisfactory to the Lender.


 


7.             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.


 


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(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 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.


 


(d) This Amendment has been
entered into without force or duress, of the free will of Borrower.  Borrower’s decision to enter into this
Amendment is a fully informed decision and Borrower is aware of all legal and
other ramifications of such decision. 
Borrower has read and understands this Amendment, has consulted with and
been represented by legal counsel in connection herewith, and has been advised
by its counsel of its rights and obligations hereunder and thereunder.


 


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


 


9.             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 Loan
Documents, 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.


 


10.           Integration.  This Amendment, together with the other Loan
Documents, incorporates all negotiations of the parties hereto with respect to
the subject matter hereof and is the final expression and agreement of the
parties hereto with respect to the subject matter hereof.


 


11.           Choice of Law.  The validity of this Amendment, its
construction, interpretation and enforcement, the rights of the parties
hereunder, shall be determined under, governed by, and construed in accordance
with the internal laws of the State of California governing contracts only to
be performed in that State.


 


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12.           Reference to and Effect on the
Loan Documents.


 


(a)  Upon and after the effectiveness of this
Amendment, each reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Credit Agreement,
and each reference in all other documents or agreements related thereto,
including the other Loan Documents, to “the Credit Agreement”, “thereof” or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as modified and amended hereby.


 


(b) To the extent that any terms and conditions in
any of the Loan Documents or any documents or agreements related thereto shall
contradict or be in conflict with any terms or conditions of the Credit
Agreement, after giving effect to this Amendment, such terms and conditions are
hereby deemed modified or amended accordingly to reflect the terms and
conditions of the Credit Agreement as modified or amended hereby.


 


13.           Miscellaneous.  This Amendment and the acknowledgment
attached hereto may be executed by facsimile and 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.


 


14.           Submission of Amendment.  The submission of this Amendment to the
parties or their agents or attorneys for review or signature does not
constitute a commitment by Lender to waive any of its rights and remedies under
the Loan Documents, and this Amendment shall have no binding force or effect
until all of the conditions to the effectiveness of this Amendment have been
satisfied as set forth herein.


 


[Signatures follow on next page.]


 


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IN WITNESS
WHEREOF, the parties have entered into this Amendment as of the date first
above written.


 


	
   

  	
  NATURADE, INC., 

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill D. Stewart

  	
   

  
	
   

  	
  Name:

  	
  Bill D. Stewart

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WELLS FARGO BUSINESS CREDIT, INC., 

  
	
   

  	
  a Minnesota corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tom Makowski

  	
   

  
	
   

  	
  Name:

  	
  Tom Makowski

  
	
   

  	
  Title:

  	
  Corporate Loan Officer

  
						



 


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