EXHIBIT 10.4
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (this "Amendment"), dated as
of March 31, 1999, is entered into among PETCO ANIMAL SUPPLIES, INC., a
Delaware corporation (the "Borrower"), the Lenders referred to below, and
UNION BANK OF CALIFORNIA, N.A., as administrative agent, arranger and
syndication agent for such Lenders (the "Agent").
RECITALS
A. The Borrower, the financial institutions party thereto (the
"Lenders") and the Agent previously entered into that certain Credit
Agreement dated as of January 30, 1998, as amended by a First Amendment to
Credit Agreement dated as of February 26, 1998 and a Second Amendment to
Credit Agreement dated as of October 30, 1998 (as so amended, the "Credit
Agreement"). Capitalized terms used herein and not defined shall have the
meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lenders and the Agent amend
the Credit Agreement to permit certain additional investments. The Lenders
and the Agent have agreed to such changes, subject to the terms and
conditions set forth herein.
Accordingly, the parties hereto agree as follows:
AGREEMENT
Section 1. Amendment to the Credit Agreement. The Credit Agreement
shall be amended as follows:
(a) Section 6.23 of the Credit Agreement is, effective as of the date
first set forth above, amended in its entirety to read as follows:
"6.23 Loans, Advances and Guaranties. The Borrower will not,
and will not permit any Subsidiary to, except in the ordinary course
of business as currently conducted and subject to Section 6.28, make
any loans or advances, become a guarantor or surety, pledge its credit
or properties in any manner or extend credit; provided that the
foregoing shall not be construed as a limitation on guaranties or any
Liens permitted hereunder.
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Notwithstanding the foregoing, the Borrower may (i) make loans
(collectively, "OHR Loans") to X'Xxxxx Hotels and Resorts in an
aggregate principal amount not to exceed $7,000,000 and (ii) make
equity investments as a limited partner in Petcetera L.P.; provided
that the aggregate principal amount of OHR Loans (less any prepayments
of interest) plus the amount of any equity investments under clause
(ii) shall not exceed an aggregate amount of $14,000,000 at any time."
Section 2. Conditions Precedent to Effectiveness of This Amendment.
This Amendment shall become effective as of the date first set forth above
upon receipt by the Agent of the following, each in form and substance
satisfactory to the Agent:
(a) this Amendment executed by the Borrower, the Agent and the
Required Lenders; and
(b) a Consent and Acknowledgement executed by each Guarantor.
Section 3. Representations and Warranties. The Borrower represents
and warrants to the Agent and the Lenders (and for the benefit of any other
lender from time to time party to the Credit Agreement) as follows:
(a) the execution, delivery and performance of this Amendment
have been duly authorized and approved by all necessary action;
(b) this Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally;
(c) the representations and warranties contained in Article 5 of
the Credit Agreement are true and correct on and as of the date hereof as
though made on and as of the date hereof, except to the extent any such
representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty shall be true and correct on
and as of such earlier date; and
(d) no Event of Default, and no event which, with the giving of
notice or lapse of time or both, would constitute an Event of Default has
occurred and is continuing.
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Section 4. Miscellaneous.
(a) Except as expressly set forth herein, all provisions of the
Credit Agreement and the other Loan Documents shall continue in full force
and effect except that each reference to "the Credit Agreement" or words of
like import in any Loan Document shall mean and be a reference to the
Credit Agreement, as amended hereby.
(b) This Amendment may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts so executed and delivered shall be deemed to be an original,
and all of which counterparts, taken together, shall constitute but one and
the same Amendment.
(c) This Amendment and the rights and obligations of the parties
under this Amendment shall be governed by, and construed and interpreted in
accordance with, the law of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective duly authorized representatives as of
the date first above written.
PETCO ANIMAL SUPPLIES, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President and
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Chief Financial Officer
UNION BANK OF CALIFORNIA, N.A.,
as Agent and as a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Vice President
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U.S. NATIONAL BANK OF OREGON
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Vice President
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LASALLE NATIONAL BANK
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: First Vice President
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CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: First Vice President and Manager
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PACIFIC CENTURY BANK, N.A. (formerly known
as California United Bank)
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Title: AVP
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CALIFORNIA BANK AND TRUST (formerly known as
Sumitomo Bank of California)
By:
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Name:
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Title:
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