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Exhibit 10.18
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CTB, INC.
CHORE-TIME XXXXX HOLDING B. V.
as Borrowers
And
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as Lenders
And
(Logo)
KeyBank National Association
as Administrative Agent
_____________________
AMENDMENT NO. 3
dated as of
November 19, 1998
to
CREDIT AGREEMENT
dated as of
August 15, 1997
_____________________
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AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of November 19, 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, dated as of August
15, 1997, as amended by Amendment No. 1 thereto, dated as of March 1, 1998, and
Amendment No. 2 thereto, dated as of June 1, 1998, with the Lenders named
therein and KeyBank National Association, as Administrative Agent for the
Lenders under the Credit Agreement (as so amended, the "Credit Agreement").
(2) Capitalized terms used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement.
(3) The Borrowers have requested the Lenders and the Administrative
Agent to increase the Total General Revolving Commitment under the Credit
Agreement from $90,000,000 to $135,000,000 and to amend certain of the other
terms of the Credit Agreement, and the Lenders and the Administrative Agent are
willing to amend the Credit Agreement, all as more fully set forth below.
(4) The amendments to the Credit Agreement provided for in this
Amendment shall not be or become effective unless and until the conditions
specified in section 4 hereof have been satisfied on or before the Effective
Date provided for therein.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.
Subject to satisfaction of the conditions specified in section 4.2 hereof,
the Credit Agreement is amended, as of the Effective Date (as defined in section
4.2 hereof), as follows:
1.1. Increase in Commitments, etc. The Total General Revolving
Commitment is increased from $90,000,000 to $135,000,000, and Annex I to the
Credit Agreement is replaced by Annex I hereto, reflecting the changes in the
General Revolving Commitments of the Lenders. Any Lender under the Credit
Agreement which is not a Lender party to this Amendment shall cease to have any
Commitment or rights or obligations under the Credit Agreement as amended
hereby.
1.2. Alternative Currency Sublimits. (a) Clause (i) of section
2.1(a) of the Credit Agreement is amended to change the maximum aggregate amount
of General Revolving Loans of all Foreign Borrowing Subsidiaries from
$25,000,000 to $50,000,000.
(b) Clause (iii) of section 2.1(a) of the Credit Agreement is amended
to change the maximum aggregate amount of all General Revolving Loans
denominated in Alternative Currencies from $25,000,000 to $50,000,000.
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(c) The following provision is added at the end of section 5.2a) of
the Credit Agreement:
If on any date when the Interest Period of any General Revolving Loans
of any Foreign Borrowing Subsidiary is scheduled to expire (after giving
effect to any other payments on such date), the aggregate outstanding
principal amount of General Revolving Loans of all Foreign Borrowing
Subsidiaries (determined at the equivalent amount in Dollars, if any of
such Loans are denominated in an Alternative Currency) exceeds $50,000,000,
the Foreign Borrowing Subsidiaries shall prepay on such date General
Revolving Loans in an aggregate principal amount at least equal to such
excess. If on any date when the Interest Period of any General Revolving
Loans denominated in an Alternative Currency is scheduled to expire (after
giving effect to any other payments on such date) the aggregate outstanding
principal amount of all General Revolving Loans denominated in any
Alternative Currency (determined at the equivalent amount in Dollars)
exceeds $50,000,000, the Borrowers shall prepay on such date such General
Revolving Loans in an aggregate principal amount at least equal to such
excess.
1.3. PRICING CHANGES. The Pricing Grid Table which appears in
section 2.8(g) of the Credit Agreement is replaced with the following:
PRICING GRID TABLE
(Expressed in Basis Points)
Total Indebtedness/Consolidated EBITDA Applicable Applicable
Ratio Eurocurrency Facility
Margin Fee Rate
-------------------------------------- ------------ ----------
> 3.25 to 1.00 122.50 40.00
> or = 3.00 to 1.00 and < 3.25 to 1.00 102.50 35.00
> or = 2.50 to 1.00 and < 3.00 to 1.00 90.00 30.00
> or = 2.00 to 1.00 and < 2.50 to 1.00 80.00 25.00
> or = 1.50 to 1.00 and < 2.00 to 1.00 65.00 25.00
< 1.50 to 1.00 55.00 20.00
1.4. EFFECTIVENESS OF PRICING CHANGES. Notwithstanding anything to the
contrary contained in sections 2.8(g) or 4.1(a) of the Credit Agreement:
(a) the Applicable Eurocurrency Margin applicable to all
Eurocurrency Loans shall be 102.50 basis points per annum, effective as of
the Amendment No. 3 Effective Date, as to all such Eurocurrency Loans then
or thereafter outstanding, until changed in accordance with the provisions
of section 2.8(g) of the Credit Agreement on the basis of the Borrower's
ratio of Total Indebtedness to Consolidated EBITDA, determined on the basis
of the Borrower's consolidated financial statements for the first fiscal
quarter ended after the Amendment No. 3 Effective Date; and
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(b) the Applicable Facility Fee Rate shall be 35.00 basis points per
annum, effective as of the Amendment No. 3 Effective Date, until changed in
accordance with the provisions of section 4.1(a) of the Credit Agreement on
the basis of the Borrower's ratio of Total Indebtedness to Consolidated
EBITDA, determined on the basis of the Borrower's consolidated financial
statements for the first fiscal quarter ended after the Amendment No. 3
Effective Date.
1.5. EXTENSION OF MATURITY DATE. The date which appears in the definition
of the term Maturity Date in section 1.1 of the Credit Agreement is changed to
the fifth anniversary of the Amendment No. 3 Effective Date.
1.6. MAXIMUM NUMBER OF BORROWINGS OF EUROCURRENCY LOANS. Section 2.2(b)
of the Credit Agreement is amended to change from 10 to 12 the maximum number of
Borrowings under the General Revolving Facility consisting of Eurocurrency Loans
which may be outstanding at any time under the Credit Agreement
1.7. ADDITIONAL DEFINITION. The following definition is added to section
1.1 of the Credit Agreement in appropriate alphabetic order:
"AMENDMENT NO. 3 EFFECTIVE DATE" shall mean the "Effective Date" as
defined and determined pursuant to Amendment No. 3, dated as of November
19, 1998, to this Agreement.
1.8. TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA RATIO. Section 9.7 of the
Credit is amended to read in its entirety as follows:
9.7. TOTAL INDEBTEDNESS/CONSOLIDATED EBITDA RATIO. The Company will
not permit the ratio of (i) the amount of Total Indebtedness at the end of
any fiscal quarter to (ii) Consolidated EBITDA for the Testing Period then
ended, to exceed (x) 3.50 to 1.00 in the case of any Testing Period ended
prior to December 31, 2000, or (y) 3.25 to 1.00 in the case of the Testing
Period ended December 31, 2000 or any subsequent Testing Period.
1.9. TOTAL INDEBTEDNESS/TOTAL CAPITALIZATION RATIO. Section 9.8 of the
Credit is amended to read in its entirety as follows:
9.8. TOTAL INDEBTEDNESS/TOTAL CAPITALIZATION RATIO. The Company
will not at any time permit the ratio, expressed as a percentage, of (i)
the amount of Total Indebtedness to (ii) the amount of Total
Capitalization, to exceed (x) 65.00% as of the end of any fiscal quarter
ended prior to December 31, 2000, or (y) 60.00% as of the end of the fiscal
quarter ended December 31, 2000 or any subsequent fiscal quarter.
1.10. Continuation of Roxell Holding N.V. as a Foreign Borrowing
Subsidiary. Section 8.13 of the Credit Agreement is amended by adding the
following at the end thereof:
Notwithstanding the foregoing, if within 60 days following the date Roxell
Holding N.V. becomes a Foreign Borrowing Subsidiary hereunder, it fails to
provide a pledge agreement covering all of the shares owned by it in its
principal operating Subsidiary, as security for Roxell Holding N.V.'s Loans
hereunder, and an opinion of local counsel as to the validity and
effectiveness of such pledge agreement, all of such documentation to be in
form and substance reasonably satisfactory to the Administrative Agent,
then no further Borrowings by Roxell Holding N.V. shall be made hereunder,
it shall immediately prepay in full its Loans hereunder and it no longer
shall be considered a Foreign Borrowing Subsidiary.
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1.11. ADDITIONAL REPRESENTATION. A new section 7.20 is added to the
Credit Agreement, reading in its entirety as follows:
7.20. YEAR 2000 COMPUTER MATTERS. The Company and its Subsidiaries
are reviewing the areas within their business and operations which could be
adversely affected by, and have developed or are in the process of developing a
program to address on a timely basis the "Year 2000 Problem" (that is, the risk
that computer applications used by the Company and its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999). Based upon the
current status of such review and program, the Company reasonably believes that
the "Year 2000 Problem" will not have a Material Adverse Effect.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrowers jointly and severally represent and warrant that:
2.1. AUTHORIZATION OF AMENDMENT, ETC. 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.
2.2. REPRESENTATIONS AND WARRANTIES. 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.
2.3. NO EVENT OF DEFAULT, ETC. No condition or event has occurred or
exists which constitutes or which, after notice or lapse of time or both,
would constitute an Event of Default.
2.4. COMPLIANCE. 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.
2.5. FINANCIAL STATEMENTS. (a) At the date hereof the Parent Financial
Statement Conditions are satisfied.
(b) The Borrowers have delivered to the Lenders prior to the execution
and delivery hereof by any party: (i) the consolidated financial statements of
the Parent and its consolidated subsidiaries as of the end of and for its fiscal
year ended December 31, 1997, 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 is unqualified, and (ii) the condensed consolidated
financial statements of the Parent and its consolidated subsidiaries as at the
end of and for its fiscal quarter (or the portion of the fiscal year elapsed to
date) ended September 30, 1998, 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) All such financial statements have been prepared in accordance with
GAAP, consistently applied (except as stated therein), and fairly present,
in all material respects, the financial position of the Parent and its
consolidated subsidiaries as of the respective dates indicated and the
consolidated results of
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their operations and cash flows for the respective periods indicated, subject
in the case of any such financial statements which are unaudited, to normal
audit adjustments, none of which will involve a Material Adverse Effect.
2.6. PROPOSED ACQUISITION. All of the information provided by the
Company to the Lenders prior to the execution and delivery hereof by any party
with respect to the proposed acquisition by the Company of Roxell, N.V., a
Belgian joint stock company, is (to the extent of the actual knowledge of the
Company) true and correct in all material respects, taking into account the fact
that the Company is not intimately familiar with the properties and business of
Roxell, N.V. and that the Company's knowledge is limited to the information
disclosed to it by Roxell, N.V. and its shareholders.
SECTION 3. RATIFICATIONS.
From and after the date the amendments to the Credit Agreement provided for in
section 1 of this Amendment become effective as provided in section 4.2 hereof,
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.
4.1. Effectiveness of this Amendment, etc. (a) This Amendment shall
become effective and shall be binding on the parties hereto and their successors
and assigns, if and when, on or before November 20, 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; and
(iii) the Administrative Agent shall have been notified by all of
the Lenders that such Lenders have executed this Amendment (which
notification may be by facsimile or other written confirmation of such
execution);
Provided, However, that (A) the amendments to the Credit Agreement provided for
in section 1 of this Amendment shall not become effective unless and until the
conditions specified in section 4.2 hereof are satisfied on the Effective Date
provided for therein; and (B) in the event that such amendments to the Credit
Agreement do not become effective during the period in which the Effective Date
may occur as provided in section 4.2, this Amendment shall automatically be
deemed void and of no force or effect except as to the payment of expenses as
provided in section 5.3 hereof. The right of any party to assign its rights or
obligations hereunder shall be subject to the limitations provided in section
13.4 of the Credit Agreement.
(b) Each Lender severally represents and warrants that (i) it has duly
authorized the execution, delivery and performance of this Amendment; (ii) it
has duly executed and delivered this Amendment; (iii) this Amendment constitutes
its valid and binding agreement; and (iv) it will fund its proportionate share
of Borrowings under the Total General Revolving Commitment, as increased by this
Amendment, provided that the conditions specified in section 4.2 of this
Amendment are met and the other conditions to any such Borrowing contained in
the Credit Agreement are also met.
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(c) The obligations of the Lenders hereunder are several, and not joint
nor joint and several. No Lender shall be responsible for any breach or default
by any other Lender hereunder.
(d) No party hereto shall be responsible for any damages for any breach or
default in its performance of its obligations hereunder, other than compensatory
damages which are the reasonably foreseeable consequence of such party's breach
or default, and any and all claims for punitive or other damages (other than
compensatory damages as aforesaid), whenever arising, and whether based on
breach of contract or any other actionable basis whatsoever, are hereby forever
waived and released.
4.2. CONDITIONS TO EFFECTIVENESS OF AMENDMENTS TO CREDIT AGREEMENT. The
amendments to the Credit Agreement provided for in section 1 of this Amendment
shall become effective if and when, on a date (the "Effective Date"), on or
prior to January 15, 1999, the following conditions shall be satisfied:
(a) REALLOCATION OF OUTSTANDING LOANS, ETC.: contemporaneously with
the Effective Date, the Company and the other Borrowers shall have made
Borrowings under the Credit Agreement as amended hereby and utilized the
proceeds thereof, together with available cash (as necessary), to prepay in
full all Loans outstanding under the Credit Agreement as in effect
immediately prior to the Effective Date (subject to appropriate netting of
amounts for transactions with Lenders who are continuing hereunder), with
the result that no Lender which is not a party to this Amendment shall
thereafter have any outstanding Loans or Commitments under the Credit
Agreement as amended hereby;
(b) AMENDMENT FEES: the Company shall have paid to the
Administrative Agent, for distribution to the Lenders, the amendment fees
heretofore agreed between the Company and the Administrative Agent;
(c) NEW NOTES: the Company and the other Borrowers shall have duly
executed and delivered to the Administrative Agent, for the accounts of the
Lenders, new General Revolving Notes, conforming to the requirements of the
Credit Agreement as amended hereby;
(d) CORPORATE RESOLUTIONS AND APPROVALS: the Administrative Agent
shall have received, in sufficient quantity for the Administrative Agent
and the Lenders, certified copies of the resolutions of the Board of
Directors of each Borrower and each other Credit Party, approving this
Amendment and each of the other Credit Documents to which such Borrower or
any such other Credit Party, as the case may be, is or may become a party,
and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to the execution, delivery and
performance by such Borrower or any such other Credit Party of this
Amendment or any other Credit Documents to which it is or may become a
party;
(e) INCUMBENCY CERTIFICATES: the Administrative Agent shall have
received, in sufficient quantity for the Administrative Agent and the
Lenders, a certificate of the Secretary or an Assistant Secretary of each
Borrower and of each other Credit Party, certifying the names and true
signatures of the officers of such Borrower or such other Credit Party, as
the case may be, authorized to sign this Amendment and the other Credit
Documents to which such Borrower or such other Credit Party is a party and
any other documents to which such Borrower or any such other Credit Party
is a party which may be executed and delivered in connection herewith;
(f) OPINION OF GENERAL COUNSEL OF THE COMPANY: the Administrative
Agent shall have received an opinion, addressed to the Administrative Agent
and each of the Lenders and dated
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the Effective Date or prior thereto, from the General Counsel of the
Company, substantially in the form of Exhibit A hereto and covering such other
matters incident to the transactions contemplated hereby as the Administrative
Agent may reasonably request, such opinion to be in form and substance
satisfactory to the Administrative Agent;
(g) ROXELL ACQUISITION: contemporaneously with the Effective Date and
any Borrowing on the Effective Date by the Company or any of the other Borrowers
of General Revolving Loans the proceeds of which are being used for such
purpose, the Company and its Subsidiary, Roxell Holding N.V., a Belgian joint
stock company, shall have completed the acquisition of Roxell, N. V.,
substantially as contemplated by section 2.6 hereof; and the Company shall have
notified the Administrative Agent that such acquisition has been so completed;
(h) ADDITION OF ROXELL HOLDING N.V. as a Foreign Borrowing Subsidiary:
an Election to Participate, substantially in the form attached as Exhibit B
hereto, shall have been duly executed and delivered by the Company and Roxell
Holding N.V. to the Administrative Agent; and
(i) NOTIFICATION OF EFFECTIVENESS: the Administrative Agent shall have
notified the Company and each Lender in writing that the conditions specified in
the foregoing clauses have been satisfied.
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. From and after the date the
amendments to the Credit Agreement provided for in section 1 of this Amendment
become effective as provided in section 4.2 hereof, 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 the amendments to the Credit Agreement
provided for in section 1 hereof become effective in accordance with section 4.2
hereof.
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.
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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 Account Officer
& Chief Financial Officer
CHORE-TIME XXXXX HOLDING B. V. LaSALLE NATIONAL BANK
By: CTB, Inc., By:___________________________________
one of its Managing Directors Commercial Lending Officer
By:____________________________________
Vice President
& Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION,
individually and as COOPERATIEVE CENTRALE
Administrative Agent RAIFFEISEN-BOERENLEEBANK B.A.,
"RABOBANK NEDERLAND",
By:____________________________________ NEW YORK BRANCH
Senior Vice President
By:__________________________________
Title:
By:__________________________________
Title:
BANK ONE, NA
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. 3 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 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
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ANNEX I
INFORMATION AS TO LENDERS
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Name of Lender Commitments Domestic Lending Office Eurocurrency
Lending Office
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KeyBank National General Revolving Key Center Key Center
Association Commitment: 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000 Xxxxxxxxx, Xxxx 00000-0000
$35,000,000
Notices: Eurocurrency Lending Offices and
Swing Line Revolving [use above address] Payment Offices for Eurocurrency
Commitment: Attention: Large Corporate Group Loans denominated in an
Facsimile: (000) 000-0000 Alternative Currency:
$5,000,000
Deutsche Marks:
Primary Contact: Dresdner Bank A.G.
Xxxxxxx X. Xxxxx Xxxxxxx Xxxxx Xxxxx 0
Senior Vice President D-6000 Xxxxxxxxx 00, Xxxxxxx
Telephone: (000) 000-0000 Account No. 499 08 184 227
Swift Address: XXXXXXXX
Contact for Borrowings, Payments, etc Account Name: KEYBANK NATIONAL
Xxxxx Xxx ASSOCIATION, CLEVELAND, OH
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 French Francs:
Banque Nationale de Paris S.A.
Wiring Information: Xxxxxxxxx xxx Xxxxxxxx 00
00000 Xxxxx Xxxxx 00 Xxxxxx
XXX # 041 001 039 Centre d'Operations Avec
Account of CTB, Inc. L'Etranger
Bank Code 30004
Branch Code 00897
Account No. 040033610
Swift Address: XXXXXXXX
Account Name: KEYBANK NATIONAL
ASSOCIATION, CLEVELAND, OH
Pounds Sterling:
Royal Bank of Scotland
Correspondent Banking Branch
P.O. box 450
0-00 Xxxxx Xxxxx Xxxxxx
Xxxxxx xx0X 0XX Xxxxxxx
Sort Code: 160034
Account No. 00000000
Swift Address: XXXXXX0X
Account Name: KEYBANK NATIONAL
ASSOCIATION, CLEVELAND, OH
Dutch Guilders:
ABN AMRO Bank N. X.
Xxxxxxxxxxxx 00
0000XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
Account No. 540433845
Swift Address: XXXXXX0X
Account Name: KEYBANK NATIONAL
ASSOCIATION, CLEVELAND, OH
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Bank One, NA General Revolving Bank One, Indiana, Bank One, Indiana,
Commitment: National Association National Association
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
$25,000,000 Xxxxx 0000 Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000 Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Notices: Eurocurrency Lending Offices and
[use above address] Payment Offices for Eurocurrency
Facsimile: (000) 000-0000 Loans denominated in an
Alternative
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Eurocurrency
Name of Lender Commitments Domestic Lending Offices Lending Office
----------------------------------------------------------------------------------------------------------------
Primary Contacts: Currency:
D. Xxxxx Xxxxxxxx
Vice President French Francs (FRF):
Telephone: (000) 000-0000 Societe Generale
SWIFT CODE: XXXXXXXX
Back-up Contact: For account of Bank One, Indiana
Xxxxx Xxxxxxxx Account No. 001014420860
Portfolio Manager
Telephone: (000) 000-0000 Deutsche Marks (DEM):
Dresdner Bank
Contact for Borrowings,
Payments, etc.:
SWIFT CODE: XXXXXXXX
Xxxxxx Xxxxxxx For account of Bank One, Indiana
Telephone: (000) 000-0000 Account No. 8.183.478.00
Facsimile: (000) 000-0000
Dutch Guilders (NLG):
Wiring Information: ABN-AMRO BANK
ABA # 074 0000 10 SWIFT CODE: XXXXXX0X
Reference: CTB, Inc. For account of Bank One, Indiana
Account Xx. 000000000
Xxxxxxx Xxxxxx (XXX):
Lloyd's Bank
SWIFT CODE: XXXXXX0X
For account of Bank One, Indiana
Account No. 00000000
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Comerica Bank General Revolving Comerica Bank Comerica Bank
Commitment: Comerica Tower at Detroit Center Comerica Tower at Detroit Center
000 Xxxxxxxx 000 Xxxxxxxx
$25,000,000 0xx Xxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxx 00000-0000
Notices: Eurocurrency Lending Offices and
[use above address] Payment Offices for Eurocurrency
Facsimile: (000) 000-0000 Loans denominated in an Alternative
Currency:
Primary Contacts:
Xxxxxxxx X. Xxxxxxxx Dutch Guilders - NLG:
Account Officer ABN-AMRO Bank, Amsterdam
Telephone: (000) 000-0000 SWIFT Code - XXXXXX0X
Account # 540434299
Contact for Borrowings,
Payments, etc.: German Marks - DEM:
Xxxxxxx Xxxxx Deutsche Bank AG-Frankfurt
Telephone: (000) 000-0000 SWIFT Code - XXXXXXXX
Facsimile: (000) 000-0000 Account # 100.0000000.0000
Wiring Information: English Pounds - GBP:
Comerica Bank Barclays Bank
ABA # 072 000 096 SWIFT Code - XXXXXX00
Reference: CTB, Inc. Account # 00000000
French Francs - FRF:
Banque Nationale de Paris, Xxxxx
XXXXX Code - XXXXXXXX
Account # 00000000
--------------------------------------------------------------------------------------------------------------
LaSalle National Bank General Revolving LaSalle National Bank LaSalle National Bank
Commitment: One American Square One American Square
Suite 2215 Suite 2215
$25,000,000 Xxxxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxx 00000
Notices: Eurocurrency Lending Offices and
[use above address] Payment Offices for Eurocurrency
Facsimile: (000) 000-0000 Loans denominated in an Alternative
Currency:
14
----------------------------------------------------------------------------------------------------------------
Eurocurrency
Name of Lender Commitments Domestic Lending Offices Lending Office
----------------------------------------------------------------------------------------------------------------
Primary Contacts: Dutch Guilders (NLG):
Xxxxxx Xxxx ABN AMRO Bank, Amsterdam
Commercial Loan Officer SWIFT CODE: XXXXXX0X
Telephone: (000) 000-0000 For account of LaSalle National Bank
Account No. 540433918
Contact for Borrowings,
Payments, etc.: German Marks (DEM):
ABN AMRO Bank, Frankfurt
Wiring Information: SWIFT CODE: XXXXXXXXXXX
For account of LaSalle National Bank
ABA # 07 1000 505 Account No. 56.01.992/002
Reference: CTB, Inc.
English Pounds (GBP):
ABN AMRO Bank, London
SWIFT CODE: XXXXXX0X
For account of LaSalle National Bank
Account Xx. 000000
Xxxxxx Xxxxxx (XXX):
Banque de Neuflize, Schlumberger
Mallet, Xxxxx
XXXXX CODE: XXXXXXXX
For account of LaSalle National Bank
Account No. 00-12040-12882-00
----------------------------------------------------------------------------------------------------------------
Rabobank Nederland, General Revolving Rabobank Nederland, Rabobank Nederland,
New York Branch Commitment: New York Branch New York Branch
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
$25,000,000 Xxx Xxxx, Xxx Xxxx 00000-0000 Xxx Xxxx, Xxx Xxxx 00000-0000
Tax ID No. 00-0000000 Eurocurrency Lending Offices and
Payment Offices for Eurocurrency
Notices: Loans denominated in an Alternative
Rabobank Nederland Currency:
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Dutch Guilders (NLG):
Facsimile: (000) 000-0000 Rabobank Nederland, Utrecht
SWIFT CODE: XXXXXX0X
Primary Contacts: Account No. 3908.17.333
Xxxxxxx X. Xxxx
Vice President German Marks (DEM):
Telephone: (000) 000-0000 Rabobank Deutscheland, Frankfurt
SWIFT CODE: XXXXXXXX
Legal Documents to: Account No. 603-93775
Xxxxxx X. Xxxxxxx
Counsel English Pounds (GBP):
Rabobank UK London Office
Legal and Tax Department SWIFT CODE: XXXXXX0X
Rabobank Nederland, Account Xx. 0000000000
Xxx Xxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx Xxxxxx (FRF):
Xxx Xxxx, Xxx Xxxx 00000-0000 Xxxxxxxx Xxxxxx, Paris
Telephone: (000) 000-0000 SWIFT CODE: XXXXXXXX
Facsimile: (000) 000-0000 Account No. 1019230100
Contact for Borrowings,
Payments, etc.:
Xxxxx Xxxxxx
Telephone: (000) 000-00000
Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Rabo Support Services
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Wiring Information:
Xxx Xxxx xx Xxx Xxxx
Xxx Xxxx, XX 00000
ABA # 000 0000 00
Xxx x/x Xxxxxxxx Xxxxxxxxx
a/c no. 802 6002 533
Reference: CTB, Inc.
Attn.: Xxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------
15
EXHIBIT A
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
________ __, 19__
The Administrative Agent
and each of the Lenders party to the
Credit Agreement referred to below
c/o KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Re: U.S.$135,000,000 Amendment No.3, dated as of
November 19, 1998, to Credit Agreement,
dated as of August 15, 1997, as amended,
with CTB, Inc. and the other Borrowers named therein
Ladies and Gentlemen:
I am the Vice President, General Counsel and Secretary of CTB, Inc., an
Indiana corporation (the "Company"), and have acted as counsel to the Company in
connection with (i) the execution and delivery of the Credit Agreement, dated as
of August 15, 1997, as amended by Amendment No. 1 thereto, dated as of March 1,
1998, Amendment No. 2 thereto, dated as of June 1, 1998, and Amendment Xx. 0
xxxxxxx "Xxxxxxxxx Xx. 0"), dated as of November 19, 1998 (as so amended, the
"Credit Agreement"), among the Company, the other Borrowers named therein, the
financial institutions party thereto (the "Lenders"), and KeyBank National
Association, as Administrative Agent, and (ii) the transactions contemplated
thereby. Unless otherwise indicated, capitalized terms used herein but not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement. This opinion letter is delivered by me to you at the request
of the Company in accordance with the requirements of section 4.2(f) of
Amendment No. 3.
I have examined and relied upon originals or copies, certified or otherwise
identified to my satisfaction as being true copies, of all such records of the
Company and its Subsidiaries, all such agreements, certificates of officers of
the Company, its Subsidiaries and others, and such other documents, certificates
and corporate or other records as I have deemed necessary as a basis for the
opinions expressed in this letter.
In my examination, I have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to me as originals and the conformity to authentic original documents
of all documents submitted to me as certified or photostatic copies. As to
facts material to the opinions expressed in this letter, I have relied upon
statements and certificates of officers of the Company and of state authorities
and on the representations, warranties and statements contained in the Credit
Documents. I have assumed that the Credit Documents, together with the other
documents referred to therein, reflect the complete understanding and agreement
of the parties thereto.
I have assumed that each entity that is a party to any of the documents
referred to herein (other than the Company and its Subsidiaries) has been duly
organized or formed and is validly existing and (if applicable) in good standing
as a corporate or similar organization under the laws of its jurisdiction of
organization, and is qualified to do business and is in good standing as a
foreign corporation or other organization in each jurisdiction where by law it
is required to be so qualified; that each such document
16
has been duly authorized, executed and delivered by each such entity; that
each such entity has the requisite corporate or other organizational power and
authority to perform such party's obligations under each such document to which
it is a party; and that each such entity has performed and will perform such
party's obligations thereunder.
I have investigated such questions of law for the purpose of rendering the
opinions in this letter as I have deemed necessary. I express no opinion in
this letter concerning any law other than the laws of the State of Indiana and
the federal laws of the United States of America. I assume, with your permission
and without independent review, that insofar as the law of any other states may
be applicable to any matters opined to herein, such law is identical to the laws
of the State of Indiana, but I express no opinion as to the extent to which the
law of the State of Indiana or the law of any other jurisdiction may apply.
On the basis of and in reliance on the foregoing, and subject to the
limitations, qualifications and exceptions set forth below, I am of the opinion
that:
1 CORPORATE STATUS, ETC. The Company and each of its Subsidiaries which
is a Credit Party (i) is a validly existing corporation under the laws of the
jurisdiction of its formation and has the corporate power and authority to own
its property and assets and to transact the business in which it is engaged and
presently proposed to engage and (ii) to my knowledge, is duly qualified and is
authorized to do business and is in good standing (if applicable) in each
jurisdiction where it is required to be so qualified except where the failure to
be so qualified would not have a Material Adverse Effect.
2 CORPORATE POWER AND AUTHORITY, ETC. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party.
3 CREDIT DOCUMENTS. Each Credit Party has duly executed and delivered
each Credit Document to which it is a party and each such Credit Document to
which it is a party constitutes the legal, valid and binding agreement or
obligation of such Credit Party enforceable against such Credit Party in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or similar laws, and related judicial doctrines,
from time to time in effect affecting creditors' rights and remedies generally,
(ii) general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable defenses and
limits on the availability of equitable remedies), whether such principles are
considered in a proceeding at law or in equity, and (iii) the qualification that
certain other provisions of such Credit Documents may be unenforceable in whole
or in part under the laws (including judicial decisions) of the State of Indiana
or other applicable jurisdictions, but the inclusion of such provisions does not
affect the validity as against any Credit Party of any of such Credit Documents
as a whole, and such Credit Documents contain adequate provisions for enforcing
payment of the obligations governed or secured thereby and for the realization
of the principal rights and benefits afforded thereby, subject to the other
qualifications and limitations contained in this opinion letter.
4 NO VIOLATION. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party nor compliance with
the terms and provisions thereof, (i) will contravene any current provision of
any State of Indiana or United States federal law, statute, rule, regulation
(including, without limitation, Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System), or, to my knowledge, any order, writ,
injunction or decree of any court or governmental instrumentality applicable to
the Company or its properties and assets, (ii) will conflict or result in any
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any
17
of the property or assets of any Credit Party pursuant to the terms of any
promissory note, bond, debenture, indenture, mortgage, deed of trust, credit or
loan agreement, or any other material agreement or other instrument, of which I
have knowledge to which any Credit Party is a party or by which it or any of its
property or assets are bound or to which it may be subject or (iii) will violate
any provision of the charter, by-laws or code of regulations of any Credit
Party.
5 GOVERNMENTAL APPROVALS. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Ohio or United States federal governmental or public body or
authority, or any subdivision thereof, is required to authorize or is required
as a condition to (i) the execution, delivery and performance by any Credit
Party of any Credit Document to which it is a party, or (ii) the legality,
validity, binding effect or enforceability of any such Credit Document.
6 LITIGATION. To my knowledge, there are no actions, suits or
proceedings pending or, to, my knowledge, threatened with respect to the Company
or any other Credit Party (i) that have, or could reasonably be expected to
have, a Material Adverse Effect, or (ii) which question the validity or
enforceability of any of the Credit Documents, or of any action to be taken by
any Credit Party pursuant to any of the Credit Documents to which it is a party.
7 INVESTMENT COMPANY ACT, ETC. Neither the Company nor any of the other
Credit Parties is subject to regulation with respect to the creation or
incurrence of Indebtedness under the Investment Company Act of 1940, as amended,
the Interstate Commerce Act, as amended, the Federal Power Act, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any applicable state
public utility law.
This opinion letter is being furnished only to the addresses and is solely
for their benefit and the benefit of their participants and assigns in
connection with the transactions contemplated by the Credit Documents. This
opinion letter may not be relied upon for any other purpose, or relied upon by
any other person, firm or corporation for any purpose, without my prior written
consent.
Very truly yours,
Xxxxxxx X. Xxxxxxx
Vice President, General Counsel
and Secretary
18
EXHIBIT B
FORM OF ELECTION TO PARTICIPATE
19
[Date]
KeyBank National Association,
as Administrative Agent for the Lenders party
to the Credit Agreement referred to below
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Large Corporate Group
Re: Election to Participate as a Foreign Borrowing Subsidiary
under the Credit Agreement, dated as of August 15, 1997,
as amended, to which CTB, Inc. is a party
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of August 15, 1997, as
amended by Amendment No. 1 thereto, dated as of March 1, 1998, Amendment No. 2
thereto, dated as of June 1, 1998, and Amendment No.3 thereto, dated as of
November 19, 1998 (as amended from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), among CTB, Inc.
(the "Company"), the other Borrowers named therein, the financial institutions
from time to time party thereto (the "Lenders"), and KeyBank National
Association, as Administrative Agent for such Lenders.
1. The undersigned, ROXELL HOLDING N. V., a Belgian joint stock company,
hereby elects to be a Foreign Borrowing Subsidiary for purposes of the Credit
Agreement effective from the date hereof until an Election to Terminate shall
have been delivered on behalf of the undersigned in accordance with the Credit
Agreement. The undersigned confirms that the representations and warranties set
forth in the Credit Agreement insofar as they apply to the undersigned are true
and correct as to the undersigned as of the date hereof, and the undersigned
hereby agrees to perform all the obligations of a Foreign Borrowing Subsidiary
under, and to be bound in all respects by the terms of, the Credit Agreement, to
the extent applicable to a Foreign Borrowing Subsidiary, as if the undersigned
had been an original signatory party thereto.
2. The address to which all notices to the undersigned under the Credit
Agreement should be directed is c/o the Company at its address specified in or
pursuant to the Credit Agreement.
3. There is no income, stamp or other tax of Belgium, or any taxing
authority thereof or therein, imposed by or in the nature of withholding or
otherwise, which is imposed on any payment to be made by the undersigned
pursuant to the Credit Agreement or its Notes, other than a 15% withholding tax
on payments of interest which is applicable except in the case of registered
bonds, or is imposed on or by virtue of the execution, delivery or enforcement
of its Election to Participate or of its Notes.
4. This instrument shall be construed in accordance with and governed by
the laws of the State of Ohio, United States of America.
20
5. This instrument may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Very truly yours,
ROXELL HOLDING N. V.
By: ___________________________
Name:
Title:
The undersigned hereby confirms that (i) ROXELL HOLDING N. V. is a Foreign
Borrowing Subsidiary for purposes of the Credit Agreement described above and
(ii) the representations and warranties set forth in the Credit Agreement are
true and correct as to ROXELL HOLDING N. V. as of the date hereof.
CTB, INC.
By: ___________________________
Vice President
& Chief Financial Officer
Receipt of the above Election to Participate
is hereby acknowledged on and as of
the date set forth above.
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent
By _________________________________
Senior Vice President
