AMENDMENT NO. 3 TO CREDIT AGREEMENT
Exhibit 10.3
AMENDMENT NO. 3
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT (the Amendment) is made as of December 8, 2006 by and among Central Garden & Pet Company, a Delaware corporation (the Company), the institutions listed on the signature pages hereto and JPMorgan Chase Bank, National Association, as the administrative agent for the Lenders referred to below (the Administrative Agent). Capitalized terms used but not otherwise defined herein shall have the respective meanings given to them in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the signatories hereto are parties to that certain Credit Agreement, dated as of February 28, 2006, among the Company, the Subsidiary Borrowers from time to time parties thereto, the financial institutions from time to time parties thereto (the Lenders) and the Administrative Agent (as amended by Amendment No. 1 thereto dated as of May 16, 2006 and further amended by Amendment No. 2 thereto dated as of August 24, 2006, and as the same may from time to time be amended, restated, supplemented or otherwise modified, the Credit Agreement);
WHEREAS, the parties hereto have agreed to amend the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Lenders and the Administrative Agent have agreed to the following amendment to the Credit Agreement.
1. Amendments. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2 below, the Credit Agreement is hereby amended as follows:
(a) The signatories agree that the purchase price paid or payable by the Company or its Subsidiaries in connection with the Farnam Acquisition shall not be deemed to exceed $300,000,000 as a result of any related assumption of liabilities otherwise causing such excess.
(b) A new Section 9.14 is hereby added to the Credit Agreement immediately following Section 9.13 as follows:
SECTION 9.14 Confirmation of Co-Obligors. Each of the Subsidiary Guarantors hereby enters into this Agreement in order to ratify and affirm its obligations under the Subsidiary Guaranty that such Subsidiary Guarantor is a co-obligor, jointly and severally with the Borrowers and the other Subsidiary Guarantors, with respect to the full and punctual payment and performance when due (whether at stated maturity, upon
acceleration or otherwise) of the Secured obligations, including, without limitation, (i) the principal of and interest on each Loan made to any Borrower pursuant to this Agreement, (ii) obligations owing under or in connection with Letters of Credit, (iii) all other amounts payable by any Borrower under this Agreement and the other Loan Documents, including, without limitation, all obligations under any Swap Agreement, and (iv) the punctual and faithful performance, keeping, observance, and fulfillment by any Borrower of all of the agreements, conditions, covenants, and obligations of such Borrower contained in the Loan Documents. Upon the failure by any Borrower or any other guarantor, as applicable, to pay punctually any such amount or perform such obligation, subject to any applicable grace or notice and cure period, each of the Subsidiary Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in this Credit Agreement, any Swap Agreement or the relevant other Loan Document, as the case may be. Each of the Subsidiary Guarantors hereby agrees that its obligations as a co-obligor is absolute and irrevocable.
2. Conditions of Effectiveness. This Amendment shall become effective as of the date hereof if, and only if, the Administrative Agent shall have received: (a) executed copies of this Amendment from the Company, each of the Subsidiary Guarantors as of the date hereof and the Required Lenders and (b) executed copies of the Reaffirmation attached hereto in the form of Exhibit A from the existing Subsidiary Guarantors.
3. Representations and Warranties of the Company. The Company hereby represents and warrants as follows:
(a) The Company has the power and authority and legal right to execute and deliver this Amendment and the Credit Agreement (as modified hereby) and to perform its obligations hereunder and thereunder. The execution and delivery by the Company of this Amendment and the performance of its obligations hereunder and under the Credit Agreement (as modified hereby) have been duly authorized by proper proceedings, and this Amendment and the Credit Agreement (as modified hereby) constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) Neither the execution and delivery by the Company of this Amendment, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof or of the Credit Agreement (as modified hereby) (i) will require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (ii) will violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Company or any of its Subsidiaries or any order of any Governmental Authority, (iii) will violate or result in a default under any indenture, agreement or other instrument binding upon the Company or any of its Subsidiaries or its assets (including, without limitation, the Senior Subordinated Note Indenture and the Senior Subordinated Notes), or give rise to a right thereunder to require any payment to be made by the Company or any of its Subsidiaries or (iv) will result in the creation or imposition of any Lien on any asset of the Company or any of its Subsidiaries.
(c) As of the date hereof and giving effect to the terms of this Amendment, (i) no Default has occurred and is continuing and (ii) the representations and warranties of the Company set forth in the Credit Agreement (as modified hereby) and the other Loan Documents are true and correct in all material respects (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
4. Reference to and Effect on the Credit Agreement and Loan Documents.
(a) Upon the effectiveness of this Amendment, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit Agreement as modified hereby. This Amendment is a Loan Document pursuant to the Credit Agreement and shall (unless expressly indicated herein or therein) be construed, administered, and applied, in accordance with all of the terms and provisions of the Credit Agreement.
(b) The Company (i) agrees that this Amendment and the transactions contemplated hereby shall not limit or diminish the obligations of the Company arising under or pursuant to the Credit Agreement and the other Loan Documents to which it is a party, (ii) reaffirms its obligations under the Credit Agreement and each and every other Loan Document to which it is a party (including, without limitation, each applicable Collateral Document), (iii) reaffirms all Liens on the Collateral which have been granted by it in favor of the Administrative Agent (for itself and the other Holders of Secured Obligations) pursuant to any of the Loan Documents, and (iv) acknowledges and agrees that, except as specifically modified above, the Credit Agreement and all other Loan Documents executed and/or delivered in connection therewith shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of or consent to any modification of any provision of the Credit Agreement or any other Loan Documents executed and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of New York.
6. Headings. Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts (including by means of facsimile or electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first above written.
CENTRAL GARDEN & PET COMPANY, as the Company | ||
By: | /s/ Roger J. Fleischmann, Jr. | |
Name: | Roger J. Fleischmann, Jr. | |
Title: | Vice President and Treasurer |
FARNAM COMPANIES, INC. | ||
FOUR PAWS PRODUCTS, LTD. | ||
KAYTEE PRODUCTS INCORPORATED | ||
PENNINGTON SEED, INC. | ||
T.F.H. PUBLICATIONS, INC. | ||
WELLMARK INTERNATIONAL | ||
ALL-GLASS AQUARIUM CO., INC. | ||
CEDAR WORKS, LLC | ||
GRANT LABORATORIES, INC. | ||
GRO TEC, INC. | ||
GULFSTREAM HOME & GARDEN, INC. | ||
INTERPRET USA, LLC | ||
MATTHEWS REDWOOD AND NURSERY SUPPLY, INC. | ||
NEW ENGLAND POTTERY, LLC | ||
NORCAL POTTERY PRODUCTS, INC. | ||
OCEANIC SYSTEMS, INC. | ||
PENNINGTON SEED, INC. OF NEBRASKA | ||
PETS INTERNATIONAL, LTD | ||
PHAETON CORPORATION | ||
SEEDS WEST, INC. | ||
THOMPSONS VETERINARY SUPPLIES, INC. | ||
For each of the foregoing entities | ||
By: | /s/ Stuart W. Booth | |
Name: | Stuart W. Booth | |
Its Authorized Signatory |
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent, the Issuing Bank, the Swingline Lender and a Lender | ||
By: | /s/ Clara Sohan | |
Name: | Clara Sohan | |
Title: | Vice President |
BANK OF AMERICA, N.A., as Syndication Agent and a Lender | ||
By: | /s/ J. Casey Cosgrove | |
Name: | J. Casey Cosgrove | |
Title: | Vice President |
CIBC WORLD MARKETS CORP., as a Co-Documentation Agent | ||
By: | /s/ Leonardo Fernandez | |
Name: | Leonardo Fernandez | |
Title: | Executive Director | |
CIBC INC., as a Lender | ||
By: | /s/ Leonardo Fernandez | |
Name: | Leonardo Fernandez | |
Title: | Authorized Signatory |
CANADIAN IMPERIAL BANK OF COMMERCE, as an Issuing Bank with respect to the Existing Letters of Credit | ||
By: | /s/ Leonardo Fernandez | |
Name: | Leonardo Fernandez | |
Title: | Authorized Signatory |
SUNTRUST BANK, as an Issuing Bank with respect to the Existing Letters of Credit, a Co-Documentation Agent and a Lender | ||
By: | /s/ Hugh E. Brown | |
Name: | Hugh E. Brown | |
Title: | Director |
UNION BANK OF CALIFORNIA, N.A., As a Co-Documentation Agent and a Lender | ||
By: | /s/ J. William Bloore | |
Name: | J. William Bloore | |
Title: | Vice President |
WELLS FARGO BANK, N.A., as a Lender | ||
By: | /s/ Meggie Chichioco | |
Name: | Meggie Chichioco | |
Title: | Senior Vice President |
HARRIS N.A., as a Lender | ||
By: | /s/ Jennifer A. Wendrow | |
Name: | Jennifer A. Wendrow | |
Title: | Vice President |
COÖPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., RABOBANK INTERNATIONAL NEW YORK BRANCH, as a Lender | ||
By: | /s/ Marina Kremer | |
Name: | Marina Kremer | |
Title: | Vice President | |
By: | /s/ Rebecca O. Morrow | |
Name: | Rebecca O. Morrow | |
Title: | Executive Director |
BNP PARIBAS, as a Lender | ||
By: | /s/ Katherine Wolfe | |
Name: | Katherine Wolfe | |
Title: | Managing Director | |
By: | /s/ Sandy Bertram | |
Name: | Sandy Bertram | |
Title: | Vice President |
LASALLE BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Adam F. Lutastanski | |
Name: | Adam F. Lutastanski | |
Title: | Vice President |
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||
By: | /s/ Dwayne Coker | |
Name: | Dwayne Coker | |
Title: | Duly Authorized Signatory |
WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender | ||
By: | /s/ Mark Supple | |
Name: | Mark Supple | |
Title: | Director |
ING CAPITAL, LLC, as a Lender | ||
By: | /s/ Marcy Lyons | |
Name: | Marcy Lyons | |
Title: | Director |
US BANK NATIONAL ASSOCIATION as a Lender | ||
By: | /s/ Janet Jordan | |
Name: | Janet Jordan | |
Title: | Vice President |
COBANK, ACB, as a Lender | ||
By: | /s/ S. Richard Dill | |
Name: | S. Richard Dill | |
Title: | Vice President |
HSBC BANK USA, NATIONAL ASSOCIATION as a Lender | ||
By: | /s/ Robert P. Reynolds | |
Name: | Robert P. Reynolds | |
Title: | First Vice President & Senior Relationship Manager |
CALYON NEW YORK BRANCH, as a Lender | ||
By: | /s/ F. Frank Herrara | |
Name: | F. Frank Herrara | |
Title: | Director | |
By: | /s/ Richard Laborie | |
Name: | Richard Laborie | |
Title: | Director |
FARM CREDIT SERVICES OF AMERICA, PCA, as a Lender | ||
By: | /s/ Steve L. Moore | |
Name: | Steve L. Moore | |
Title: | Vice-President |
GREENSTONE FARM CREDIT SERVICES, ACA/FLCA, as a Lender | ||
By: | /s/ Jeff Pavlik | |
Name: | Jeff Pavlik | |
Title: | AVP/Lending Officer |
AGFIRST FARM CREDIT BANK, as a Lender | ||
By: | /s/ Curtis D. Carlson | |
Name: | Curtis D. Carlson | |
Title: | Vice President |
Humboldt Woods Segregated Portfolio By: Tall Tree Investment Management, LLC as Collateral Manager | ||
as a Lender | ||
By: | /s/ Michael J. Starshak Jr. | |
Name: | Michael J. Starshak Jr. | |
Title: | Officer |
Founders Grove CLO, Ltd. By: Tall Tree Investment Management, LLC as Collateral Manager | ||
as a Lender | ||
By: | /s/ Michael J. Starshak Jr. | |
Name: | Michael J. Starshak Jr. | |
Title: | Officer |
WELLS CAPITAL MANAGEMENT 16496500 as a Lender | ||
By: | /s/ Christopher Lee | |
Name: | Christopher Lee | |
Title: | Senior Analyst |
WELLS CAPITAL MANAGEMENT 18866500, as a Lender | ||
By: | /s/ Christopher Lee | |
Name: | Christopher Lee | |
Title: | Senior Analyst |
De Meer Middle Market CLO 2006-1, Ltd., as a Lender | ||
De Meer Asset Management, a division of LaSalle Financial Services, Inc., as Collateral Manager | ||
By: | /s/ Will S. Bloom | |
Name: | Will S. Bloom | |
Title: | Assistant Vice President |
NACM CLO I, as a Lender | ||
By: | /s/ Joanna Willars | |
Name: | Joanna Willars | |
Title: | Authorized Signatory |
LightPoint CLO 2004-1, Ltd. Marquette US/European CLO p.l.c. as a Lender | ||
By: | /s/ Colin Donlan | |
Name: | Colin Donlan | |
Title: | Director |
General Electric Capital Corporation, as Administrator for, GE CFS Loan Holding 2006-2 LLC, | ||
as a Lender | ||
By: | /s/ Dwayne Coker | |
Name: | Dwayne Coker | |
Title: | Duly Authorized Signatory |
Stanfield AZURE CLO, Ltd By: Stanfield Capital Partners, LLC as its Collateral Manager | ||
as a Lender | ||
By: | /s/ Christopher E. Jansen | |
Name: | Christopher E. Jansen | |
Title: | Managing Partner |
Stanfield Vantage CLO, Ltd By: Stanfield Capital Partners, LLC as its Asset Manager | ||
as a Lender | ||
By: | /s/ Christopher E. Jansen | |
Name: | Christopher E. Jansen | |
Title: | Managing Partner |
EXHIBIT A
Reaffirmation
Each of the undersigned hereby acknowledges receipt of a copy of Amendment No. 3, dated as of December 8, 2006 (the Amendment), to the Credit Agreement, dated as of February 28, 2006, by and among Central Garden & Pet Company, a Delaware corporation (the Company), the Subsidiary Borrowers from time to time parties thereto, the financial institutions from time to time parties thereto (the Lenders) and JPMorgan Chase Bank, National Association, as the administrative agent for the Lenders (the Administrative Agent) (as amended by Amendment No. 1 thereto dated as of May 16, 2006, further amended by Amendment No. 2 thereto dated as of August 24, 2006, and further amended by the Amendment, and as the same may from time to time hereafter be amended, restated, supplemented or otherwise modified, the Credit Agreement). Capitalized terms used in this Reaffirmation and not defined herein shall have the meanings given to them in the Credit Agreement.
Each of the undersigned, by its signature below, hereby (a) acknowledges and consents to the execution and delivery of the Amendment by the parties thereto, (b) agrees that the Amendment and the transactions contemplated thereby shall not limit or diminish the obligations of such Person arising under or pursuant to the Collateral Documents and the other Loan Documents to which it is a party, (c) reaffirms all of its obligations under the Loan Documents to which it is a party, (d) reaffirms all Liens on the Collateral which have been granted by it in favor of the Administrative Agent (for itself and the other Holders of Secured Obligations) pursuant to any of the Loan Documents, and (e) acknowledges and agrees that each Loan Document executed by it remains in full force and effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement contained in any Loan Document shall be a reference to the Credit Agreement as so modified by the Amendment and as the same may from time to time hereafter be amended, restated, supplemented or otherwise modified. The Amendment is a Loan Document pursuant to the Credit Agreement and shall (unless expressly indicated therein) be construed, administered, and applied, in accordance with all of the terms and provisions of the Credit Agreement.
Dated as of December 8, 2006
IN WITNESS WHEREOF, this Reaffirmation has been duly executed as of the date first written above.
FARNAM COMPANIES, INC. | ||
FOUR PAWS PRODUCTS, LTD. | ||
KAYTEE PRODUCTS INCORPORATED | ||
PENNINGTON SEED, INC. | ||
T.F.H. PUBLICATIONS, INC. | ||
WELLMARK INTERNATIONAL | ||
ALL-GLASS AQUARIUM CO., INC. | ||
CEDAR WORKS, LLC | ||
GRANT LABORATORIES, INC. | ||
GRO TEC, INC. | ||
GULFSTREAM HOME & GARDEN, INC. | ||
INTERPRET USA, LLC | ||
MATTHEWS REDWOOD AND NURSERY SUPPLY, INC. | ||
NEW ENGLAND POTTERY, LLC | ||
NORCAL POTTERY PRODUCTS, INC. | ||
OCEANIC SYSTEMS, INC. | ||
PENNINGTON SEED, INC. OF NEBRASKA | ||
PETS INTERNATIONAL, LTD | ||
PHAETON CORPORATION | ||
SEEDS WEST, INC. | ||
THOMPSONS VETERINARY SUPPLIES, INC. | ||
For each of the foregoing entities | ||
By: | /s/ Stuart W. Booth | |
Name: | Stuart W. Booth | |
Its Authorized Signatory |