EXHIBIT 10.1
AMENDMENT NO. 2
This Agreement, dated as of August 12, 1998, is among Color Spot
Nurseries, Inc., a Delaware corporation (the "Borrower"), Credit Agricole
Indosuez (formerly the New York branch of Banque Indosuez) ("Indosuez"), IBJ
Xxxxxxxx Bank & Trust Company ("IBJS"), BankBoston, N.A. ("BKOB") and the
other lending institutions listed in Schedule A to the Credit Agreement (each
a "Bank"), Indosuez, as the administrative agent (the "Administrative Agent")
for itself and the other Banks, IBJS as the syndication agent (the
"Syndication Agent") for itself and the other Banks, and BKOB as the
documentation agent (the "Documentation Agent") for itself and the other Banks
and, together with the Administrative Agent and the Syndication Agent, the
"Agents"). The parties hereto hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT; DEFINITIONS. Reference is made to the
Second Amended and Restated Credit Agreement dated as of December 24, 1997, as
amended by Amendment No. 1 dated as of May 7, 1998 and as in effect on the
date hereof (the "Credit Agreement"), among the Borrower, the Agents and the
Banks. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to all the terms and conditions
hereof, the Credit Agreement is hereby amended as follows, effective as of the
date hereof.
2.1. AMENDMENT TO SECTION 1.12. Section 1.12 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"1.12 TOTAL LOAN COMMITMENTS: LIMITATIONS ON OUTSTANDING LOAN AMOUNTS.
The amount of (a) the Total Commitment is $150,000,000, (b) the Total
Revolving Loan Commitment is $40,000,000, (c) the Total Acquisition Term
Loan Commitment is $75,000,000, and (d) the Total Supplemental Loan
Commitment is $35,000,000; provided, however, that commencing August 1,
1998 and continuing until such date as the Administrative Agent shall
have notified the Borrower in writing that each of the Banks has
determined to reinstate all or any portion of such Bank's portion of the
Total Commitments on terms mutually agreeable to the Banks and the
Borrower, the amounts of the Total Commitments shall be as follows: (a)
the Total Commitment is $40,000,000, (b) the Total Revolving Loan
Commitment is $40,000,000, (c) the Total Acquisition Term Loan Commitment
is zero, and (d) the Total Supplemental Loan Commitment is zero.
Anything contained in this
Agreement to the contrary notwithstanding, (i) in no event shall the sum
of the aggregate principal amount of all outstanding Revolving Loans,
Acquisition Term Loans, Supplemental Revolving Loans and Supplemental
Term Loans of any Bank at any time exceed such Bank's portion of the
Total Commitment, (ii) in no event shall the sum of the aggregate
principal amount of all Revolving Loans, Acquisition Term Loans,
Supplemental Revolving Loans and Supplemental Term Loans from all Banks
at any time exceed the Total Commitment, (iii) in no event shall the
Total Revolver Utilization exceed the Total Revolving Loan Commitment,
(iv) in no event shall the Total Acquisition Utilization exceed the Total
Acquisition Term Loan Commitment, and (v) in no event shall the Total
Supplemental Utilization exceed the Total Supplemental Loan Commitment."
2.2. AMENDMENT TO SECTION 9. The definition of "Borrowing Base"
appearing in Section 9 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"'BORROWING BASE' means, at any date of determination, an amount equal to
the sum of (x) 85% of Eligible Accounts Receivable plus (y) 45% of
Eligible Inventory, in each case as shown on the most recent Borrowing
Base Certificate delivered prior to such date of determination; provided
that during any Clean-down Period, the Borrowing Base shall be the lesser
of (x) the amount derived from the foregoing calculation and (y) the
Clean-down Amount."
2.3. AMENDMENT OF SCHEDULE A. Schedule A to the Credit Agreement is
hereby amended to reduce to zero the Acquisition Term Loan Commitment and the
Supplemental Loan Commitment of each Bank, and attached to this Amendment No.
2 as Exhibit 1A is Schedule A to the Credit Agreement as so amended. Schedule
A shall be revised to reflect any reinstatement of all or any portion of the
Total Commitments effective with the delivery of the written notice from the
Administrative Agent referred to in Section 1.12 of the Credit Agreement as
amended by this Amendment No. 2.
2.4. CERTAIN BORROWINGS. The Borrower hereby agrees that, until such
date as the Administrative Agent shall have notified the Borrower in writing
that all of the Banks have determined to reinstate their respective
Commitments, the Borrower shall not be entitled to request Acquisition Term
Loans, Supplemental Terms Loans or Supplemental Revolving Loans.
3. WAIVERS.
3.1. FINANCIAL COVENANTS. Notwithstanding anything to the contrary
contained in the Credit Agreement, the Banks hereby waive, as of June 30,
1998, any Default or Event of Default caused by the Borrower's failure to meet
the covenants set forth in Sections 7.02 (Total Interest Coverage Ratio), 7.03
(Fixed Charge Coverage Ratio) and 7.04 (Leverage Ratio) of the Credit
Agreement with respect to the Test Period ending June 30, 1998.
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3.2. INFORMATION COVENANT. Notwithstanding anything to the contrary
contained in the Credit Agreement, the Banks hereby waive, as of June 30,
1998, any Default or Event of Default arising under Section 6.01(f) of the
Credit Agreement as a result of the Borrower's failure to deliver before July
1, 1998 the annual budget for the Borrower's fiscal year ending June 30, 1999.
3.3. CLEAN-DOWN PERIOD. Notwithstanding anything to the contrary
contained in the Credit Agreement, the Banks hereby waive the requirement that
the outstanding principal amount of Revolving Loans during the Clean-down
Period ending September 30, 1998 not exceed the Clean-down Amount.
4. ADDITIONAL COVENANTS. The Borrower hereby covenants and agrees with the
Banks and the Agents as follows:
4.1. DELIVERY OF 1999 BUDGET. On or before September 15, 1998, the
Borrower will furnish to each Bank the annual budget of the Borrower and its
Subsidiaries in reasonable detail for each month of its 1999 fiscal year, as
customarily prepared by management for its internal use, setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based.
4.2. BANK MEETING. The Borrower will participate in a meeting of the
Banks not later than September 15, 1998 at a location and time selected by the
Administrative Agent and reasonably acceptable to the Borrower.
5. AMENDMENT FEE. Concurrently with the execution and delivery of this
Amendment No. 2, the Borrower hereby agrees to pay (a) to each Bank other
than the Banks which are affiliates of ING Capital Advisors, Inc.
(collectively, "ING"), a fee in an amount equal to one-half percent (0.50%) of
such Bank's Revolving Loan Commitment and (b) to ING a fee in the amount of
$26,600.
6. NO DEFAULT. In order to induce the Banks to enter into this Amendment No.
2 and to continue to extend credit to the Borrower under the Credit Agreement
as amended hereby, the Borrower hereby represents and warrants that, after
giving effect to this Amendment No. 2 and the waivers contained in Section 3
of this Amendment No. 2, no Default or Event of Default has occurred and is
continuing under the Credit Agreement as amended by this Amendment No. 2.
7. RELEASES. In consideration of the Banks' entering into this Amendment No.
2, (and without limiting the generality of the indemnities and other
sections of the Credit Agreement), the Borrower hereby knowingly and
intentionally releases each Bank and each of the Agents from any liability,
and waive any claim or right of action (for breach of contract or any other
theory of liability) against any Bank for liabilities, damages, claims, costs,
losses and expenses
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(whether or not accrued and whether or not known or suspected to exist), if
any, arising out of, resulting from or in any manner connected with, any
action, omission or other event occurring on or before the date hereof,
whether or not related to the execution, delivery, performance or enforcement
of this Amendment No. 2, the Credit Documents, or any related agreement or any
action, omission or other event related to or in any manner connected with any
of the foregoing including, without limitation, any action or omission by or
on behalf of, and any course of conduct of or course of dealing with, any Bank
or any of the Agents.
8. MISCELLANEOUS. Except to the extent expressly set forth herein, the
provisions of the Credit Agreement shall remain unmodified, and the Credit
Agreement is hereby confirmed as being in full force and effect. This
Amendment No. 2 is a Credit Document and may be executed in any number of
counterparts which together shall constitute one instrument, shall be governed
by and construed in accordance with the laws of the State of New York (other
than conflict of laws rules), and shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns, including as such
successors and assigns all holders of Obligations.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to be
executed and delivered by their duly authorized officers as of the date first
above written.
COLOR SPOT NURSERIES, INC.
By: /s/ Xxxxxx X. Plaza
--------------------------------
Title: Chief Financial Officer
CREDIT AGRICOLE INDOSUEZ
(formerly Banque Indosuez,
New York Branch)
as a Bank and as Administrative Agent
By: /s/ Xxxxxxx Araugholt
--------------------------------
Name: Xxxxxxx Araugholt
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: First Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY,
as a Bank and as Syndication Agent
By: /s/ Xxxxxxxx X. XxXxxxxxx
--------------------------------
Name: Xxxxxxxx X.
XxXxxxxxx Title: Director
BANKBOSTON, N.A.
as a Bank and as Documentation Agent
By: /s/ Xxxxxxx X. X. Xxxxx
--------------------------------
Name: Xxxxxxx X. X. Xxxxx
Title: Managing Director
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FIRST SOURCE FINANCIAL LLP,
an Illinois registered limited liability
partnership
By: First Source Financial, Inc.,
its manager
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. XxXxxx
--------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By ING Capital Advisors, Inc.
as Investment Advisor
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio
Manager
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COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper, Inc.,
not in its individual capacity but as
Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
THE ING HIGH INCOME PRINCIPAL
PRESERVATION OFFERING, L.P.
By: ING Capital Advisers, Inc.,
its Investment Advisor
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President & Portfolio
Manager
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EXHIBIT 1A
to Amendment No. 2
SCHEDULE A
to
COLOR SPOT NURSERIES, INC.
CREDIT AGREEMENT
COMMITMENTS
Revolving Acquisition Term Supplemental
Loan Loan Loan
--------- ---------------- ------------
Credit Agricole $ 7,666,667 zero zero
Indosuez
IBJ Xxxxxxxx Bank & $ 7,666,667 zero zero
Trust Co.
BankBoston, N.A. $ 7,666,667 zero zero
First Source $ 5,333,333 zero zero
Financial, LLP
Creditanstalt- $ 4,000,000 zero zero
Bankverein
The ING Capital zero zero
Senior Secured
High Income Fund,
L.P.
Commercial Loan $ 7,666,667 zero zero
Funding Trust I
ING High Income zero zero
Principal
Preservation
Offering, L.P.
----------- ---- ----
TOTAL: $40,000,000 zero zero
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