Exhibit 10(s)
First Amendment to Master
Accounts Receivable
Purchase Agreement and
Waiver
This First Amendment to Master
Accounts Receivable Purchase Agreement and Waiver (herein, the
“Amendment” ) is entered into as of
October 22, 2007, among LaSalle Bank National Association (the
“Bank” ), The Scotts Company LLC (the
“Company” ) and The Scotts Miracle-Gro Company
(the “Parent” ).
Preliminary
Statements
A. Reference is hereby made to
that certain Master Accounts Receivable Purchase Agreement dated as
of April 11, 2007 (as amended, the “Purchase
Agreement” ), among the Company, the Parent and the
Bank.
B. The Company has requested
that the Bank (i) waive compliance with certain provisions of
the Purchase Agreement, and (ii) amend certain provisions of
the Purchase Agreement, and the Bank is willing to do so under the
terms and conditions set forth in this Amendment.
C. Capitalized terms used but
not otherwise defined herein shall have the same meaning herein as
in the Purchase Agreement.
Now, Therefore, for good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1.
Waiver.
The Company has notified the Bank
that a Termination Event has occurred under Section 18.1(i) of
the Purchase Agreement as a result of the Downgrade of the rating
of Home Depot Inc. by S&P on July 5, 2007, from A+ to BBB+
(the “Existing Termination Event” ).
Subject to the conditions precedent
set forth in Section 3 below, the Bank hereby waives the
Existing Termination Event. The Company and the Parent hereby
acknowledge and agree that the occurrence of a Downgrade as set
forth in Section 18.1(i) of the Purchase Agreement after the
date hereof shall constitute a Termination Event under the Purchase
Agreement. Accordingly, at all times following the date hereof, the
Company and the Parent shall be in full compliance with all terms,
conditions and provisions of the Purchase Agreement.
Except as specifically waived hereby,
all of the terms and conditions of the Purchase Agreement currently
in effect shall stand and remain in full force and effect.
Section 2.
Amendments to Purchase
Agreement.
Subject to the sat
