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Exhibit 4(f)
AMENDMENT NO. 1 AND CONSENT
AMENDMENT NO. 1 AND CONSENT dated as of October 13, 1999 (this
"Amendment") to the Credit Agreement, dated as of December 4, 1998, as amended
by the Waiver, dated as of January 19, 1999 (the "Waiver") and as amended,
supplemented or modified from time to time (the "Credit Agreement") among THE
SCOTTS COMPANY, an Ohio corporation (the "Borrower" or "Scotts"), XX Xxxxx
International Investments Ltd., Miracle Garden Care Limited, Scotts Holdings
Limited, Hyponex Corporation, Scotts' Miracle-Gro Products, Inc., Scotts-Sierra
Horticultural Products Company, Republic Tool & Manufacturing Corp.,
Scotts-Sierra Investments, Inc., Scotts France Holdings SARL, Scotts Holding
GmbH, Scotts Celaflor GmbH & Co. KG, Scotts France SARL, Scotts Belgium 2 BVBA,
The Scotts Company (UK) Ltd., Scotts Canada Ltd., Scotts Europe B.V., ASEF B.V.
and the other subsidiaries of the Borrower who are also borrowers from time to
time hereunder (the "Subsidiary Borrowers"), the several banks and other
financial institutions from time to time parties to this Agreement (the
"Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation (together
with its banking affiliates, "Chase"), as agent for the Lenders hereunder (in
such capacity, the "Administrative Agent"), XXXXXXX XXXXX XXXXXX, INC., as
syndication agent (the "Syndication Agent"), CREDIT LYONNAIS CHICAGO (together
with its banking affiliates, "Credit Lyonnais") and NBD BANK, as
co-documentation agents (the "Co-Documentation Agents"), and Chase Securities
Inc., as lead arranger (the "Lead Arranger") and as the book manager (the "Book
Manager").
W I T N E S S E T H :
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WHEREAS, the Borrower wishes to amend the Credit Agreement in order to
increase the availability of Swing Line Loans and to provide Swing Line
availability in three alternate currencies as described below;
WHEREAS, the Borrower wishes to dissolve certain indirect subsidiaries;
WHEREAS, the Borrower wishes to amend the Credit Agreement as described
herein; and
WHEREAS, the Lenders and the Administrative Agent consent to the
proposed amendments under the following terms and conditions;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
I. Amendments
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1. Defined Terms. Unless otherwise noted, capitalized terms have the
meanings given to them in the Credit Agreement.
2. Amendment of Section 1.1 (Definitions). Section 1.1 is hereby
amended by
(a) deleting the definition of "Obligations" and substituting in
lieu thereof the following:
"Obligations" shall mean the unpaid principal of and interest
on (including, without limitation, interest accruing after the maturity
of the Loans and interest thereon accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower or any
Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Notes and all
other obligations and liabilities (including all obligations in respect
of overdrafts and related liabilities owed to any Lender or affiliate
of a Lender or the Administrative Agent arising from treasury,
depositary and cash management services or in connection with any
automated clearinghouse transfer of funds) of the Borrower or any
Subsidiary Borrower to the Administrative Agent or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, the Notes, the Guarantee and
Collateral Agreement, any Hedge Agreement entered into with a Lender or
an Affiliate thereof or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or any Lender) or otherwise.
(b) deleting the definition of "Swing Line Commitment" and
substituting in lieu thereof the following:
"'Swing Line Commitment' shall mean the obligation of the
Swing Line Lenders, at any date, to make a Swing Line Loan pursuant to
subsection 2.6(a) in the amount referred to therein."
(c) deleting the definition of "Swing Line Lenders" in its
entirety and substituting in lieu thereof the following:
"Swing Line Lenders" shall mean Chase, Credit Lyonnais Chicago
Branch, all Canadian Dollar Swing Line Lenders, all Dutch Guilder Swing
Line Lenders, all Belgian Franc Swing Line Lenders, all Sterling Swing
Line Lenders, and all Australian Dollar Swing Line Lenders.
(d) by adding the following definitions in their proper
alphabetical order:
"'Australian Dollar Swing Line Lenders' shall mean Bank One
and any other Eligible Australian Bank who makes Swing Line Loans
denominated in Australian Dollars; provided that, at no time shall more
than two Lenders have Swing Line Loans denominated in Australian
Dollars outstanding."
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"'Belgian Franc Swing Line Lenders' shall mean Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" and any
other Eligible Belgian Bank who makes Swing Line Loans denominated in
Belgian Francs; provided that at no time shall more than two Lenders
have Swing Line Loans denominated in Belgian Francs outstanding."
"'Canadian Dollar Swing Line Lenders' shall mean the Bank of
Montreal (subject to its having a Revolving Credit Commitment at least
equal to the Swing Line Loans it makes) and any other Eligible Canadian
Bank who makes Swing Line Loans denominated in Canadian Dollars;
provided that at no time shall more than two Lenders have Swing Line
Loans denominated in Canadian Dollars outstanding."
"'Dutch Guilder Swing Line Lenders' shall mean Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland" and any
Eligible Dutch Bank who makes Swing Line Loans in Dutch Guilders;
provided that at no time shall more than two Lenders have Swing Line
Loans denominated in Dutch Guilders outstanding."
"Eligible Australian Bank" shall mean (a) a resident of
Australia which does not make Swing Line Loans or Revolving
Credit Loans as part of carrying on business outside of
Australia at or through a permanent establishment outside of
Australia; or (b) a non-resident of Australia which makes
Swing Line Loans or Revolving Credit Loans as part of carrying
on business in Australia at or through a permanent
establishment of the non-resident in Australia. In this
definition, words and expressions used shall have the meaning
ascribed to them for the purposes of S. 128B of the Australian
Income Tax Assessment Xxx 0000.
"Eligible Canadian Bank" shall mean those banks listed on
Schedule I or Schedule II to the Bank Act (Canada) and which agree to
make Swing Line Loans or Revolving Credit Loans hereunder.
"Eligible Dutch Bank" shall mean any Revolving Credit Lender.
"'Sterling Swing Line Lenders' shall mean Chase and all other
Eligible UK Banks who make Swing Line Loans denominated in Pounds
Sterling."
3. Amendment of Section 2.5 (Procedure for Revolving Credit Borrowing).
Section 2.5(a)(3) is hereby amended by deleting the reference to the term "two
Business Days" and substituting in lieu thereof the term "three Business Days."
4. Amendment of Section 2.6 (Swing Line Commitments). (A) Section 2.6
is hereby amended by deleting such section in its entirety and substituting in
lieu thereof the following:
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"2.6 Swing Line Commitments. (a) Subject to the terms and
conditions hereof, from time to time prior to the Revolving Credit
Termination Date and to the Borrower or any Subsidiary Borrower (i)
each of Chase and Credit Lyonnais severally (but not jointly) agrees to
make swing line loans in Dollars in an aggregate principal amount not
to exceed 50% of $55,000,000 at any one time outstanding, (ii) the
Sterling Swing Line Lenders agree to make swing line loans in Sterling
in an aggregate principal amount not to exceed the Optional Currency
Equivalent in Sterling of $55,000,000 at any one time outstanding,
(iii) the Canadian Dollar Swing Line Lenders agree to make swing line
loans in Canadian Dollars in an aggregate principal amount not to
exceed the Optional Currency Equivalent in Canadian Dollars of
$10,000,000 at any one time outstanding, (iv) the Dutch Guilder Swing
Line Lenders agree to make swing line loans in Dutch Guilders in an
aggregate principal amount not to exceed the Optional Currency
Equivalent in Dutch Guilders of $7,500,000 at any one time outstanding,
(v) the Belgian Franc Swing Line Lenders agree to make swing line loans
in Belgian Francs in an aggregate principal amount not to exceed the
Optional Currency Equivalent in Belgian Francs of $2,500,000 at any one
time outstanding, and (vi) the Australian Dollar Swing Line Lenders
agree to make swing line loans in Australian Dollars in an aggregate
principal amount not to exceed the Optional Currency Equivalent in
Australian Dollars of $5,000,000 at any one time outstanding (each of
the foregoing individually, a "Swing Line Loan"; collectively, the
"Swing Line Loans"); provided that, after giving effect to the making
of such Swing Line Loans, the Aggregate Revolving Extensions of Credit
will not exceed the Revolving Credit Commitments and the aggregate
principal amount of Swing Line Loans at any one time outstanding shall
not exceed $55,000,000 or the Optional Currency Equivalent thereof;
provided, further, that any Swing Line Loan made to a Subsidiary
Borrower which is a resident for taxation purposes in the United
Kingdom, Canada, the Netherlands; Belgium or Australia shall be repaid
within 364 days and shall be made by an Eligible UK Bank, Eligible
Canadian Bank, Eligible Dutch Bank, Eligible Belgian Bank or Eligible
Australian Bank, as the context requires. Amounts borrowed by the
Borrower or a Subsidiary Borrower under this subsection 2.6 may be
repaid and, during the Revolving Credit Commitment Period, reborrowed.
All Swing Line Loans in Dollars shall be made as ABR Loans, and Swing
Line Loans in Sterling, Canadian Dollars, Belgian Francs, Australian
Dollars, and Dutch Guilders shall be made on terms agreed upon by the
relevant Swing Line Lender and the Borrower or applicable Subsidiary
Borrower. The Borrower or applicable Subsidiary Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent, in the case of Swing Line Loans in Dollars
and Canadian Dollars, at or prior to 1:00 P.M., New York City time, and
in the case of Swing Line Loans in Sterling, Belgian Francs, and Dutch
Guilders at or prior to 1:00 P.M., London time, on the requested
Borrowing Date), specifying the amount of each requested Swing Line
Loan, which shall be greater than or equal to a minimum amount to be
agreed upon by the Borrower or applicable Subsidiary Borrower and the
relevant Swing Line Lender. The Borrower or applicable Subsidiary
Borrower shall give the Administrative Agent and the relevant Swing
Line Lender irrevocable notice (which notice must be received by the
Administrative Agent and the relevant Swing Line Lender, in the case of
Australian Dollars, at or prior to 1:00 P.M., Sydney time, on the
requested Borrowing Date), specifying the amount of each requested
Swing Line Loan, which shall be greater than or equal to a minimum
amount to be agreed
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upon by the Borrower or applicable Subsidiary Borrower and the relevant
Swing Line Lender. In giving irrevocable notice, the Borrower or the
applicable Subsidiary Borrower shall designate, at its option, one or
two Swing Line Lenders to make one or more Swing Line Loans in the
relevant currency. Upon such notice, the Administrative Agent shall
promptly notify each applicable Swing Line Lender thereof. Each Swing
Line Lender which has been designated by the Borrower or the applicable
Subsidiary Borrower in its irrevocable notice shall make the amount of
its pro rata share of each borrowing in the currency requested
available to the Borrower or applicable Subsidiary Borrower in the
manner directed by the Administrative Agent on the requested Borrowing
Date.
(b) The Swing Line Lenders or any of them at any time and in
their or its sole and absolute discretion, may, on behalf of the
Borrower or applicable Subsidiary Borrower (which hereby irrevocably
directs the Swing Line Lenders to act on its behalf), request each
Revolving Credit Lender that is an Eligible U.K. Bank, Eligible
Canadian Bank, Eligible Dutch Bank, Eligible Belgian Bank or Eligible
Australian Bank, with respect to Swing Line Loans made to Subsidiary
Borrowers which are resident for taxation purposes in the United
Kingdom, Canada, the Netherlands, Belgium or Australia, respectively,
or each Revolving Credit Lender, including each Swing Line Lender, with
respect to all other Swing Line Loans, to make a Revolving Credit Loan
in the currency of the Swing Line Loan(s) made by such Swing Line
Lender(s) an amount equal to such Lender's Revolving Percentage of the
amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given. Unless any of the events
described in paragraph (f) of Section 8 shall have occurred (in which
event the procedures of paragraph (c) of this subsection 2.6 shall
apply), each Revolving Credit Lender shall make the proceeds of its
Revolving Credit Loan available to the Administrative Agent for the
account of the Swing Line Lenders, at the office of the Administrative
Agent prior to 12:00 Noon (New York City time) in funds immediately
available on the Business Day next succeeding the date such notice is
given. The proceeds of such Revolving Credit Loans shall be immediately
applied to repay the Refunded Swing Line Loans.
(c) If, prior to the making of a Revolving Credit Loan
pursuant to paragraph (b) of subsection 2.6, one of the events
described in paragraph (f) of Section 8 shall have occurred, each
Revolving Credit Lender hereby agrees to and will, on the date such
Revolving Credit Loan was to have been made, purchase an undivided
participating interest in each Refunded Swing Line Loan in an amount
equal to its Revolving Percentage of such Refunded Swing Line Loan.
Each Revolving Credit Lender will immediately transfer to the
Administrative Agent for the account of the Swing Line Lenders, in
immediately available funds denominated in Dollars, the Dollar
Equivalent (if applicable) of the amount of its participations and,
upon its receipt of its pro rata share thereof, each Swing Line Lender
will deliver to such Revolving Credit Lender a Swing Line Loan
Participation Certificate dated the date of receipt of such funds and
in such amount. On such date, any Swing Line Loans not denominated in
Dollars shall, without any further action or notice being required, be
converted to and become denominated in Dollars in an amount equal to
the Dollar Equivalent of the amount thereof on such date.
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(d) Whenever, at any time after any Swing Line Lender has
received from any Revolving Credit Lender such Revolving Credit
Lender's participating interest in a Refunded Swing Line Loan and such
Swing Line Lender receives any payment on account thereof, such Swing
Line Lender will distribute to such Revolving Credit Lender through the
Administrative Agent its participating interest in such Dollar
Equivalent amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving
Credit Lender's participating interest was outstanding and funded) in
funds denominated in Dollars; provided, however, that in the event that
such payment received by such Swing Line Lender is required to be
returned, such Revolving Credit Lender will return to such Swing Line
Lender through the Administrative Agent any portion thereof previously
distributed by such Swing Line Lender to it in like funds as such
payment is required to be returned by such Swing Line Lender.
II. Consent
1. Compliance with Section 7.3 (Limitation on Fundamental Changes).
Pursuant to Section 10.1 of the Credit Agreement, the Required Lenders consent
to the Borrower's dissolution of the following subsidiaries of EG Systems, Inc.
("EGS"), which is itself a direct, partially-owned subsidiary of Scotts: (a)
Xxxxxxx Lawn Service, Inc., (b) Xxxx X. Xxxxxxx Enterprises, Inc. and (c) EG
Transport Inc. The Required Lenders also consent to the transfer of the existing
assets of these three subsidiaries to EGS in conjunction with the dissolution of
the subsidiaries. The Required Lenders hereby waive any Default or Event of
Default occurring solely in connection with the above-described transactions.
III. General Provisions
1. Representations and Warranties. On and as of the date hereof, and
after giving effect to this Amendment, each of the Borrower and each applicable
Subsidiary Borrower hereby confirms, reaffirms and restates the representations
and warranties set forth in Section 4 of the Credit Agreement mutatis mutandis,
and to the extent that such representations and warranties expressly relate to a
specific earlier date in which case each of the Borrower and each applicable
Subsidiary Borrower hereby confirms, reaffirms and restates such representations
and warranties as of such earlier date.
2. Conditions to Effectiveness. This Amendment shall become effective
as of the date hereof upon receipt by the Administrative Agent of counterparts
of this Amendment, duly executed and delivered by the Borrower, each Subsidiary
Borrower, each Subsidiary Borrower, the Administrative Agent and the Required
Lenders.
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3. Continuing Effect; No Other Amendments. Except as expressly amended
or waived hereby, all of the terms and provisions of the Credit Agreement are
and shall remain in full force and effect. The Amendments provided for herein
are limited to the specific subsections of the Credit Agreement specified herein
and shall not constitute an amendment or Amendment of, or an indication of any
Lender's willingness to amend or waive, any other provisions of the Credit
Agreement or the same subsections for any other date or time period (whether or
not such other provisions or compliance with such subsections for another date
or time period are affected by the circumstances addressed in this Amendment).
4. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. Counterparts. This Amendment may be executed by the parties hereto
in any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THE SCOTTS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
XX XXXXX INTERNATIONAL INVESTMENTS LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
MIRACLE GARDEN CARE LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
HYPONEX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
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SCOTTS' MIRACLE-GRO PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS-SIERRA HORTICULTURAL PRODUCTS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
REPUBLIC TOOL & MANUFACTURING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS-SIERRA INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS FRANCE HOLDINGS SARL
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS FRANCE SARL
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President, Corporate Treasurer
SCOTTS HOLDING GMBH
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS CELAFLOR GMBH & CO. KG
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS BELGIUM 2 BVBA
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
THE SCOTTS COMPANY (UK) LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS CANADA LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS EUROPE, B.V.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
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ASEF, B.V.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
SCOTTS AUSTRALIA PTY LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Treasurer
XXXXXXX XXXXX BARNEY INC., as
Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-in-fact
CREDIT LYONNAIS CHICAGO BRANCH, as
Co-Documentation Agent and as a Lender
By: /s/ Xxxx Xxx Xxxxx
---------------------------------------
Name: Xxxx Xxx Xxxxx
Title: Vice President
BANK ONE, MICHIGAN, as successor to
NBD BANK, as Co-Documentation Agent and
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V., Pittsburgh
By:
---------------------------------------
Name:
Title:
AERIES - II FINANCE LTD.
By:
---------------------------------------
Name:
Title:
ALLIANCE INVESTMENT OPPORTUNITIES
By:
---------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE CO.
By:
---------------------------------------
Name:
Title:
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ARES LEVERAGED INVESTMENT FUND II, L.P.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ATHENA CDO, LIMITED
By: Pacific Investment Management Company as
its investment advisor
By: PIMCO Management Inc., a general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
BHF (USA) CAPITAL CORPORATION
By:
---------------------------------------
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
By:
---------------------------------------
Name:
Title:
BW CAPITAL MARKETS, INC.
By: /s/ Xxx Xxxx and /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxx Xxxx and Xxxxxx X. Xxxx
Title: Treasurer and Vice President
BALANCED HIGH YIELD FUND II LTD.
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By:
---------------------------------------
Name:
Title:
BANK AUSTRIA
By:
---------------------------------------
Name:
Title:
BANK OF AMERICA
By:
---------------------------------------
Name:
Title:
BANK OF HAWAII
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx III
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
---------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
15
By:
---------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By: /s/ Xxxxxx Xxxxxx du Bocage
---------------------------------------
Name: Xxxxxx Xxxxxx du Xxxxxx
Title: Executive Vice President &
General Manager
BANQUE WORMS CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President & General Counsel
BLACK DIAMOND CLO 1998-1 LTD.
By:
---------------------------------------
Name:
Title:
BOEING CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Special Credits Officer
CIT GROUP/EQUIPMENT FINANCING, INC.
By:
---------------------------------------
Name:
Title:
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CAPTIVA III FINANCE LTD.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
CARAVELLE INVESTMENT FUND, L.L.C.
By:
---------------------------------------
Name:
Title:
CERES FINANCE, LTD.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Director
CITICORP USA, INC.
By: /s/ Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney In Fact
COMERICA BANK, Detroit
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Account Officer
CREDIT AGRICOLE INDOSUEZ, Chicago
By:/s/ Xxxxxxxx X. Xxxx /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx and
Xxxxxxxxx Xxxxxx
Title: Vice President and
First Vice President
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CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
DELANO COMPANY
By: Pacific Investment Management
Company as its investment advisor
By: PIMCO Management Inc., a general partner
By: /s/ Xxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
DRESDNER BANK, AG
By:
---------------------------------------
Name:
Title:
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XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
Title: Vice President
ERSTE BANK
By:
---------------------------------------
Name:
Title:
FIFTH THIRD BANK OF COLUMBUS
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK N.C.
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ G. Xxxxxx Xxxxx
---------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Vice President
FOOTHILL INCOME TRUST, L.P.
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Member
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FRANKLIN FLOATING RATE TRUST
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
FREEMONT INVESTMENT & LOAN
By:
---------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORP.
By:
---------------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By: /s/ X. Xxxxx Place
---------------------------------------
Name: X. Xxxxx Place
Title: Vice President
XXXXXX FINANCIAL INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Vice President
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IKB DEUTSCHE INDUSTRIEBANK AG
LUXEMBOURG BRANCH
By: /s/ Xxxxx Xxxxxxxxx /s/ Xxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx and Xxx Xxxxxxxxx
Title: Vice President and Manager
INDOSUEZ CAPITAL
By:
---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA, LTD.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
KZH APPALOOSA LLC
By:
---------------------------------------
Name:
Title:
KZH BDC LLC
By:
---------------------------------------
Name:
Title:
XXX XXXXXXXX 0 LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name:
Title: Authorized agent
21
KZH III LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized agent
KZH ING-3 LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized agent:
KZH PAMCO LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized agent
KZH RIVERSIDE LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized agent
KZH WATERSIDE LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized agent
KZH CNC LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
22
KZH-CYPRESSTREE-1 LLC
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
KZH-ING-2 LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KZH-SOLEIL-2 LLC
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
KEY BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.
By:
---------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By:
---------------------------------------
Name:
Title:
23
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MSDW PRIME INCOME TRUST
By:
---------------------------------------
Name:
Title:
MEESPIERSON N.V.
By: /s/ Xxxxx Harraty /s/ X. Xxxxxx
---------------------------------------
Name: Xxxxx Harraty and X. Xxxxxx
Title: Head of Acquisition Firm and
Manager
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:
---------------------------------------
Name:
Title:
24
XXXXXXX XXXXX SENIOR FLOATING RATE FUND
By:
---------------------------------------
Name:
Title:
METROPOLITAN LIFE INSURANCE CO.
By:
---------------------------------------
Name:
Title:
MONUMENTAL LIFE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
MOUNTAIN CLO TRUST
By:
---------------------------------------
Name:
Title:
MOUNTAIN CAPITAL CLO I, LTD.
By:
---------------------------------------
Name:
Title:
BANK ONE, MICHIGAN, as successor to
NBD BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
25
NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NATIONAL WESTMINSTER BANK, PLC
By:
---------------------------------------
Name:
Title:
NORSE CBO, LTD.
By:
---------------------------------------
Name:
Title:
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Principal
ORIX USA CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.
its General Partner
By: Oak Hill Securities MGP, Inc.
its General Partner
26
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OASIS COLLATERALIZED HIGH INCOME
By:
---------------------------------------
Name:
Title:
OCTAGON LOAN TRUST
By:
---------------------------------------
Name:
Title:
OSPREY INVESTMENTS PORTFOLIO
By:
---------------------------------------
Name:
Title:
Oxford Strategic Income Fund
By: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: /s/ Xxx Xxxxxxx
---------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
27
PARIBAS
By: /s/ Xxxxx X. Xxxxx /s/ Xxx X. XxXxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx and Xxx X. XxXxxx
Title: Vice President and Vice President
PINEHURST TRADING, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch
By: /s/ Michiel V.M. Van der Voort
---------------------------------------
Name: Michiel V.M. Van der Voort
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", Utrecht Branch
By: /s/ C. de Vries /s/ S.M.F. Xxxxxxxx
---------------------------------------
Name: C. de Vries & S.M.F. Xxxxxxxx
Title: Proxy category A/B and Proxy
Category B
SKM LIBERTYVIEW CBO I LTD.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
28
SANKATY HIGH YIELD ASSET PARTNERS
By:
---------------------------------------
Name:
Title:
SCOTIABANC, INC.
By:
---------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Xxxxx X. Page
---------------------------------------
Name: Xxxxx X. Page
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS) INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TRAVELERS INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
29
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc.,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGEMENT AND CONSENT
---------------------------
In consideration of each Agent's and the Lenders' execution, delivery
and performance of the foregoing Amendment No. 1 and Consent (the "Amendment"),
each of the undersigned hereby (i) acknowledges the terms and provisions of the
Amendment and consents thereto and (ii) confirms and agrees that (x) the
Borrower and Domestic Subsidiary Guarantee and Collateral Agreement (the
"Guarantee and Collateral Agreement) is, and shall continue to be, in full force
and effect and is hereby ratified and confirmed in all respects and shall apply
to the Credit Agreement as amended by the Amendment and (y) the guarantees and
all of the Collateral (as defined in the Guarantee and Collateral Agreement) do,
and shall continue to, secure the payment of all of the Obligations (as defined
in the Guarantee and Collateral Agreement) pursuant to the terms of the
Guarantee and Collateral Agreement. Capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement referred
to in the Amendment to which this Acknowledgment and Consent is attached.
SCOTTS-SIERRA INVESTMENTS, INC.
SCOTTS PROFESSIONAL PRODUCTS CO.
SCOTTS PRODUCTS CO.
OMS INVESTMENTS, INC.
MIRACLE-GRO LAWN PRODUCTS, INC.
MIRACLE-GRO PRODUCTS LTD.
SCOTTS-SIERRA CROP PROTECTION
COMPANY
OLD FORT FINANCIAL CORP.
EARTHGRO, INC.
XXXXXXX SCIENTIFIC, INC.
EG SYSTEMS, INC.
SWISS FARMS PRODUCTS, INC.
30
By:
----------------------------------
Title:
