EXHIBIT
10.43


 


EIGHTH
AMENDMENT TO

CREDIT AND SECURITY AGREEMENT


 


THIS EIGHTH
AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”), dated as
of November 6, 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”), that
certain Sixth Amendment to Credit and Security Agreement and Waiver dated as of
March 24, 2003, and that certain Seventh Amendment to Credit and Security
Agreement and Waiver dated as of April 15, 2003 (as amended, the “Credit
Agreement”).  Capitalized terms used
herein have the meanings given to them in the Credit Agreement unless otherwise
specified.


 


B.                                     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.


 


AMENDMENT


 


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:


 


Amendments to Credit Agreement.


 


The first
sentence of Section 2.6 is hereby amended and restated to read in its entirety
as follows:


 


“This Agreement and the other Loan Documents shall become effective as
of January 27, 2000 and shall continue in full force and effect for a term
ending on March 31, 2004 (the “Maturity Date”), unless earlier
terminated by Lender or Borrower pursuant to the terms hereof.


 


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Release of the Availability Reserve.  The Availability Reserve established in the
amount of $175,000 pursuant to the Fifth Amendment is hereby released as of the
date hereof.


 


Amendment Fee.  The Borrower shall pay to Lender in cash as of the date hereof a
fully earned, non-refundable fee in the amount of Twenty Thousand Dollars
($20,000) in consideration of Lender’s execution of this Amendment (the “Amendment
Fee”)


 


Release; Covenant Not to Sue.


 


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 GERENAL 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 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 agrees 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.


 


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


 


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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.


 


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.


 


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:


 


the Amendment Fee;


 


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


 


the representations and warranties set forth herein and in the Loan
Agreement must be true and correct; and


 


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 the
Lender.


 


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


 


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.


 


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.


 


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.


 


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


 


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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.


 


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.


 


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.


 


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.


 


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.


 


Reference to and Effect on the Loan Documents.


 


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.


 


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.


 


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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.


 


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:

  	
  AVP

  	
   

  
											



 


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