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_______________________________________________________________________________
_______________________________________________________________________________
CTB, INC.
CHORE-TIME XXXXX HOLDING B. V.
AS BORROWERS
AND
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS LENDERS
AND
KEYBANK NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT
_____________________
AMENDMENT NO. 1
DATED AS OF
MARCH 1, 1998
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 15, 1997
_____________________
_______________________________________________________________________________
_______________________________________________________________________________
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AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of March 1, 1998 ("THIS
AMENDMENT"), among the following:
(i) CTB, INC., an Indiana corporation (herein, together with its
successors and assigns, the "COMPANY" or a "BORROWER");
(ii) CHORE-TIME XXXXX HOLDING B. V., a private limited liability
company formed under the laws of The Netherlands (herein, together with
its successors and assigns, "CHORE-TIME NETHERLANDS" or a "BORROWER"),
which is a Wholly-Owned Subsidiary of the Company;
(iii) the financial institutions which are signatories hereto, each
of which is one of the Lenders (the "LENDERS") party to the Credit
Agreement; and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking association,
as Administrative Agent (the "ADMINISTRATIVE AGENT") for the Lenders
under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrowers entered into the Credit Agreement (the "CREDIT
AGREEMENT"), dated as of August 15, 1997, with the Lenders named therein and
KeyBank National Association, as Administrative Agent for the Lenders under the
Credit Agreement.
(2) Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement.
(3) The Borrower is a Subsidiary of CTB International Corp., a Delaware
corporation (herein, together with its successors and assigns, the "PARENT")
which is subject to the public reporting requirements of the 1934 Act.
(4) The Borrowers have requested the Lenders and the Administrative Agent
to amend certain of the financial reporting requirements of the Credit Agreement
in order to avoid the necessity of obtaining audited financial statements for
the Company under circumstances where the Company represents substantially all
of the assets of the Parent and contributes substantially all of the earnings
before interest, taxes, depreciation and amortization of the Parent, and the
Lenders and the Administrative Agent are willing to amend the Credit Agreement,
all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
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SECTION 1. AMENDMENTS.
1.1. ADDITIONAL DEFINITIONS. Effective on the Effective Date provided in
section 4 hereof, the following definitions are added to section 1.1 of the
Credit Agreement in appropriate alphabetic order:
"PARENT" shall mean CTB International Corp., a Delaware corporation,
and its successors and assigns.
"PARENT FINANCIAL STATEMENT CONDITIONS" shall mean the following:
(i) as of the end of any applicable fiscal period the Company
is a Wholly-Owned Subsidiary of the Parent;
(ii) the Parent and the Company have the same fiscal year,
(iii) the consolidated total assets of the Company represent
at least 95% of the consolidated total assets of the Parent,
(iv) the Company's Consolidated EBITDA for such fiscal year
represents at least 95% of the consolidated earnings before
interest, taxes, depreciation and amortization of the Parent for
such fiscal year, and
(v) the Company contemporaneously delivers to the Lenders and
the Administrative Agent a certificate of the Chief Financial
Officer or other responsible financial officer of the Parent
demonstrating, in reasonable detail, satisfaction of the conditions
specified in clauses (iii) and (iv) above.
1.2. FINANCIAL REPORTING REQUIREMENTS. Effective on the Effective Date
provided in section 4 hereof, (i) PROVISOS are added to sections 8.1(a) and (b)
of the Credit Agreement, and (ii) section 8.1(c) of the Credit Agreement is
amended to include complementary changes, so that, after giving effect thereto,
sections 8.1(a), (b) and (c) of the Credit Agreement read in their entirety as
follows:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within 90 days after the close of each fiscal year of the Company,
the consolidated balance sheets of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, of stockholder's equity and of cash
flows for such fiscal year, in each case setting forth comparative figures
for the preceding fiscal year, all in reasonable detail and accompanied by
the opinion with respect to such consolidated financial statements of
independent public accountants of recognized national standing selected by
the Company, which opinion shall be unqualified and shall (i) state that
such accountants audited such consolidated financial statements in
accordance with generally accepted auditing standards, that such
accountants believe that such audit provides a reasonable basis for their
opinion, and that in their opinion such consolidated financial statements
present fairly, in all material respects, the consolidated financial
position of the Company and its consolidated subsidiaries as at the end of
such fiscal year and the consolidated results of their operations and cash
flows for such fiscal year in conformity with generally accepted
accounting principles, or (ii) contain such statements as are customarily
included in unqualified reports of independent accountants in conformity
with the recommendations and requirements of the American Institute of
Certified Public Accountants (or any successor
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organization); PROVIDED that if the Parent Financial Statement Conditions
are satisfied at such time, the Company may, in lieu of delivering such
financial statements, deliver instead the consolidated financial
statements of the Parent and its consolidated subsidiaries as at the end
of and for such fiscal year, in the form filed with the SEC under the 1934
Act as part of the Parent's Report on Form 10-K for such fiscal year,
accompanied by the opinion with respect to such consolidated financial
statements of independent public accountants of recognized national
standing selected by the Parent, which opinion shall be unqualified.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Company, the unaudited
condensed consolidated balance sheets of the Company and its consolidated
Subsidiaries as at the end of such quarterly period and the related
unaudited condensed consolidated statements of income and of cash flows
for such quarterly period, and setting forth, in the case of such
unaudited consolidated statements of income and of cash flows, comparative
figures for the related periods in the prior fiscal year, and which
consolidated financial statements shall be certified on behalf of the
Company by the Chief Financial Officer or other Authorized Officer of the
Company, subject to changes resulting from normal year-end audit
adjustments; PROVIDED that if the Parent Financial Statement Conditions
are satisfied at such time, the Company may, in lieu of delivering such
financial statements, deliver instead the condensed consolidated
financial statements of the Parent and its consolidated subsidiaries as at
the end of and for such fiscal quarter (or the portion of the fiscal year
elapsed to date), in the form filed with the SEC under the 1934 Act as
part of the Parent's Report on Form 10-Q for such fiscal quarter.
(c) OFFICER'S COMPLIANCE CERTIFICATES. At the time of the delivery
of the financial statements provided for in sections 8.1(a) and (b), a
certificate on behalf of the Company of the Chief Financial Officer or
other Authorized Officer of the Company to the effect that, to the best
knowledge of the Company, no Default or Event of Default exists or, if any
Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth (x) the calculations required
to establish compliance with the provisions of sections 9.7 through 9.10,
inclusive, of this Agreement, including an identification of the amounts
of any financial items of persons or business units acquired by the
Company for any periods prior to the date of acquisition which are used in
making such calculations, and (y) if the Parent's financial statements are
being delivered instead of the Company's financial statements as provided
above, the calculations, in reasonable detail, of any adjustments to the
items reflected in such financial statements pertinent to establishing
compliance with the provisions of sections 9.7 through 9.10, inclusive, of
this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant that (i) this
Amendment has been duly authorized by all necessary corporate action on the part
of the Borrowers, has been duly executed and delivered by a duly authorized
officer or officers of the Borrowers, and constitutes the valid and binding
agreement of the Borrowers, enforceable against the Borrowers in accordance with
its terms; (ii) the representations and warranties of the Borrowers contained in
the Credit Agreement, as amended hereby, 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
that such representations and warranties expressly relate to a specified date,
in which case such representations and warranties are hereby reaffirmed as true
and correct when made; (iii) no condition or
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event has occurred or exists which constitutes or which, after notice or lapse
of time or both, would constitute an Event of Default; and (iv) the Borrowers
are in full compliance with all covenants and agreements contained in the Credit
Agreement, as amended hereby, and the other Credit Documents to which any
Borrower is a party.
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"EFFECTIVE DATE"), on or prior to April 15, 1998, (i) this Amendment shall have
been executed by the Borrowers and the Administrative Agent, and counterparts
hereof as so executed shall have been delivered to the Administrative Agent,
(ii) the Acknowledgment and Consent appended hereto shall have been executed by
the Credit Parties named therein, and counterparts thereof as so executed shall
have been delivered to the Administrative Agent, (iii) the Administrative Agent
shall have been notified by the Required Lenders that such Lenders have executed
this Amendment (which notification may be by facsimile or other written
confirmation of such execution), and (iv) the Administrative Agent shall have
notified the Company and each Lender in writing that the conditions specified in
the foregoing clauses have been satisfied; and thereafter this Amendment shall
be binding upon and inure to the benefit of the Borrowers, each Lender and the
Administrative Agent and their respective permitted successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or
any interest herein without the prior written consent of all of the Lenders.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by the Administrative Agent or any Lender
or any subsequent Loan or issuance of a Letter of Credit shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3. EXPENSES. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Company agrees to pay on demand all
reasonable costs and expenses incurred by the Administrative Agent in connection
with the preparation, negotiation, and execution of this Amendment, including
without limitation the costs and fees of the Administrative Agent's special
legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof,
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and all costs and expenses incurred by the Administrative Agent or any Lender in
connection with the enforcement or preservation of any rights under the Credit
Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
CTB, INC. COMERICA BANK
By:____________________________________ By:____________________________________
Vice President & Chief Financial Officer Vice President
CHORE-TIME XXXXX HOLDING B. V. LaSALLE NATIONAL BANK
By: CTB, Inc.,
one of its Managing Directors By:____________________________________
Commercial Lending Officer
By:____________________________________
Vice President & Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION, NBD BANK, N. A.
individually and as Administrative Agent
By:____________________________________
Vice President
By:____________________________________
Vice President
BANK ONE, INDIANA, NATIONAL COOPERATIEVE CENTRALE
ASSOCIATION RAIFFEISEN-BOERENLEEBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By:____________________________________
Vice President
By:____________________________________
Title:
By:____________________________________
Vice President
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ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of the intent and effect
of sections 5 and 6 of the Subsidiary Guaranty and sections 6 and 7 of the
Foreign Subsidiary Guaranty (as such terms are defined in the Credit Agreement
referred to in the Amendment No. 1 to Credit Agreement (the "AMENDMENT"), to
which this Acknowledgment and Consent is appended), the undersigned hereby
unconditionally and irrevocably (i) acknowledges receipt of a copy of the Credit
Agreement, as in effect prior to the Amendment, and the Amendment, and (ii)
consents to all of the terms and provisions of the Credit Agreement, as in
effect prior to the Amendment, as amended by the Amendment.
Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement referred to herein.
This Acknowledgment and Consent is for the benefit of the Lenders and the
Administrative Agent, any other person who is a third party beneficiary of the
Subsidiary Guaranty and/or the Foreign Subsidiary Guaranty, and their respective
successors and assigns. No term or provision of this Acknowledgment and Consent
may be modified or otherwise changed without the prior written consent of the
Administrative Agent, given as provided in the Credit Agreement. This
Acknowledgment and Consent shall be binding upon the successors and assigns of
the undersigned. This Acknowledgment and Consent may be executed by the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Acknowledgment and Consent as of the date of the Amendment referred to herein.
CTB CREDIT CORPORATION CHORE-TIME TEXAS, INC.
By:_________________________________ By:_________________________________
Title: Title:
CTB CREDIT CORPORATION FANCOM HOLDING B. V.
By:_________________________________ By:_________________________________
Title: Jan X. X. Xxxxxxx
Managing Director
CTB SALES CORPORATION FANCOM B. V.
By:_________________________________ By:_________________________________
Title: Jan X. X. Xxxxxxx
Managing Director
By:_________________________________
Har H. W. Gootzen
Managing Director
