AMENDMENT NO. 6 TO CREDIT AGREEMENT
Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 6
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT (the Amendment) is made as of March 18, 2008 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, Amendment No. 2 thereto dated as of August 24, 2006, Amendment No. 3 thereto dated as of December 8, 2006, Amendment No. 4 thereto dated as of March 15, 2007, Amendment No. 5 thereto dated as of August 27, 2007 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 party hereto 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) Section 1.01 of the Credit Agreement is hereby amended to add the following new definitions in the appropriate alphabetical locations:
Amendment No. 6 Effective Date means March 18, 2008.
(b) Section 6.10(d) of the Credit Agreement is hereby restated in its entirety as follows:
(d) other sales, transfers, leases or other dispositions (including pursuant to a Sale and Leaseback Transaction) of assets for fair value not exceeding 10% of Consolidated Total Assets in aggregate amount during any fiscal year and not exceeding 35% of Consolidated Total Assets in aggregate amount during the term of this Agreement; provided, that (i) such sale, transfer, lease or other disposition is for at least 90% cash consideration; provided that, following the Amendment No. 6 Effective Date, asset sales generating consideration in an aggregate amount not to exceed $10,000,000 (as identified by the Company to the Administrative Agent) shall not be subject to the foregoing 90% cash consideration requirement (it being understood and agreed, for the avoidance of doubt that any non-cash consideration received in connection with any such sale, transfer, lease or other disposition (including, without limitation,
any promissory note or other instrument) shall be pledged to the Administrative Agent for the benefit of the Holders of Secured Obligations in accordance with (and to the extent required by) the terms of this Agreement and the Collateral Documents); and (ii) with respect to any sale, lease or disposition of assets pursuant to this Section 6.10(d), (x) the Net Proceeds of such sale or other disposition of assets are applied as required by Section 2.11(b) and (y) at the time of such sale or other disposition, and immediately after giving effect thereto, no Default shall have occurred and be continuing.
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 and the Required Lenders; (b) executed copies of the Reaffirmation attached hereto in the form of Exhibit A from the existing Subsidiary Guarantors; and (c) all fees and expenses of the Administrative Agent (including, to the extent invoiced, attorneys fees and expenses) in connection with this Amendment.
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
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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/ PAUL WARBURG | |
Name: | Paul Warburg | |
Title: | Vice President and Treasurer |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
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 |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
BANK OF AMERICA, N.A., | ||
as Syndication Agent and a Lender | ||
By: | /s/ J. CASEY COSGROVE | |
Name: | J. Casey Cosgrove | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
CIBC, INC., as a Lender | ||
By: | /s/ GERALD GIRARDI | |
Name: | Gerald Girardi | |
Title: | Authorized Signatory |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
SUNTRUST BANK, as an Issuing Bank with respect to the | ||
Existing Letters of Credit, a Co-Documentation Agent and a | ||
Lender | ||
By: | /s/ JEAN-PAUL PURDY | |
Name: | Jean-Paul Purdy | |
Title: | Director |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
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 |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
WELLS FARGO BANK, N.A., | ||
as a Lender | ||
By: | /s/ RAJENDA SEWAK | |
Name: | Rajenda Sewak | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
HARRIS N.A., | ||
as a Lender | ||
By: | /s/ ROBERT H. WOLOHAN | |
Name: | Robert H. Wolohan | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
EATON VANCE LOAN OPPORTUNITIES FUND, LTD. By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
EATON VANCE CREDIT OPPORTUNITIES FUND By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
EATON VANCE VT FLOATING-RATE INCOME FUND By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
EATON VANCE LIMITED DURATION INCOME FUND By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
EATON VANCE SENIOR FLOATING-RATE TRUST By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
EATON VANCE FLOATING-RATE INCOME TRUST By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
EATON VANCE SENIOR VARIABLE LEVERAGE FUND LTD. By Eaton Vance Management as Investment Advisor
as a Lender | ||
By: | /s/ MICHAEL B. BOTTHOF | |
Name: | Michael B. Botthof | |
Title: | Vice President | |
LIGHTPOINT CLO 2004-1, LTD
as a Lender | ||
By: | /s/ COLIN DONLAN | |
Name: | Colin Donlan | |
Title: | Senior Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
LASALLE BANK, NATIONAL ASSOCIATION, | ||
as a Lender | ||
By: | /s/ J. CASEY COSGROVE | |
Name: | J. Casey Cosgrove | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
GENERAL ELECTRIC CAPITAL CORPORATION, | ||
as a Lender | ||
By: | /s/ DWAYNE L. COKER | |
Name: | Dwayne L. Coker | |
Title: | Duly Authorized Signatory |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
THE NORINCHUKIN BANK, NEW YORK BRANCH, through State Street Bank and Trust Company N.A. as Fiduciary Custodian By Eaton Vance Management, Attorney-in-Fact as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President |
BIG SKY III SENIOR LOAN TRUST By Eaton Vance Management, as Investment Advisor as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
MARQUETTE US/EUROPE CLO PLC | ||
as a Lender | ||
By: | /s/ Colin Donlan | |
Name: Colin Donlan | ||
Title: Senior Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
EATON VANCE CDO IX LTD. | ||
By: | Eaton Vance Management as Investment Advisor | |
as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President | ||
GRAYSON & CO. | ||
By: | Boston Management and Research as Investment Advisor | |
as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
COBANK, ACB, | ||
as a Lender | ||
By: | /s/ S. Richard Dill | |
Name: S. Richard Dill | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
BlackRock Limited Duration Income Trust BlackRock Senior Income Series III BlackRock Senior Income Series V (f/k/a Granite Finance Limited) | ||
as a Lender | ||
By: | /s/ Anthony Heyman | |
Name: Anthony Heyman | ||
Title: Authorized Signatory |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
CALYON NEW YORK BRANCH, | ||
as a Lender | ||
By: | /s/ Dianne M. Scott | |
Name: Dianne M. Scott | ||
Title: Managing Director | ||
By: | /s/ Denise Nakamura | |
Name: Denise Nakamura | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
FARM CREDIT SERVICES OF AMERICA, PCA, | ||
as a Lender | ||
By: | /s/ Steven L. Moore | |
Name: Steven L. Moore | ||
Title: Vice President | ||
EATON VANCE CDO VIII, Ltd. | ||
By: Eaton Vance Management, as Investment Advisor as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President | ||
EATON VANCE SENIOR INCOME TRUST | ||
By: Eaton Vance Management as Investment Advisor, as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President | ||
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND | ||
By: Eaton Vance Management as Investment Advisor, as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
GREENSTONE FARM CREDIT SERVICES, ACA/FLCA, | ||
as a Lender | ||
By: | /s/ Curtis Flammini | |
Name: Curtis Flammini | ||
Title: Vice President | ||
NACM CLO I, | ||
as a Lender | ||
By: | /s/ Joanna Willars | |
Name: Joanna Willars | ||
Title: Authorized Signatory | ||
ERSTE BANK DER DESTERREICHISCHEN SPARKASSEN AG, | ||
as a Lender | ||
By: | /s/ Paul Judicke | |
Name: Paul Judicke | ||
Title: Executive Director | ||
By: | /s/ Bryan Lynch | |
Name: Bryan Lynch | ||
Title: Managing Director |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
Del Mar CLO I, Ltd. | ||
By: Caywood-Scholl Capital Management, as Collateral Manager | ||
as a Lender | ||
By: | /s/ Tom Saake | |
Name: Tom Saake | ||
Title: President | ||
SENIOR DEBT PORTFOLIO | ||
By: Boston Management and Research as Investment Advisor | ||
as a Lender | ||
By: | /s/ Michael B. Botthof | |
Name: Michael B. Botthof | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
EXHIBIT A
Reaffirmation
Each of the undersigned hereby acknowledges receipt of a copy of Amendment No. 6, dated as of March 18, 2008 (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, Amendment No. 2 thereto dated as of August 24, 2006, Amendment No. 3 thereto dated as of December 8, 2006, Amendment No. 4 thereto dated as of March 15, 2007, Amendment No. 5 thereto dated as of August 27, 2007 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 March 18, 2008
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. | ||
INTERPET 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. | ||
B2E CORPORATION | ||
B2E BIOTECH, LLC | ||
For each of the foregoing entities | ||
By: | /s/ Stuart W. Booth | |
Name: Stuart W. Booth | ||
Its Authorized Signatory |
Signature Page to Reaffirmation
Muir Grove CLO, Ltd. | ||
By: | Tail Tree Investment Management LLC, as Collateral Manager | |
as a Lender | ||
By: | ||
Name: Michael Starshak, Jr. | ||
Title: Officer |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
AGFIRST FARM CREDIT BANK as a Lender | ||
By: | /s/ STEVEN J. OSHEA | |
Name: | Steven J. OShea | |
Title: | Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
MUIR GROVE CLO, LTD. | ||
By: | Tail Tree Investment Management, LLC as Collateral Manager | |
as a Lender | ||
By: | ||
Name: Michael Starshak, Jr. | ||
Title: Officer |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement
AGFIRST FARM CREDIT BANK | ||
as a Lender | ||
By: | /s/ Steven J. OShea | |
Name: Steven J. OShea | ||
Title: Vice President |
Signature Page to Amendment No. 6
to Central Garden & Pet Company Credit Agreement