1
Exhibit 4(i)
CONFORMED COPY
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AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of June 9, 2000 (the "SECOND AMENDMENT")
to the Credit Agreement, dated as of December 4, 1998, as amended by the Waiver,
dated as of January 19, 1999, the Amendment No. 1 and Consent, dated as of
October 13, 1999, and the Waiver No. 2, dated as of February 14, 2000 (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 Asef BVBA, f/k/a Scotts Belgium 2 BVBA, The Scotts Company (UK) Ltd.,
Scotts Canada Ltd., Scotts Europe B.V., ASEF B.V., Scotts Australia PTY Ltd.,
and the other subsidiaries of the Borrower who are also borrowers from time to
time under the Credit Agreement (the "SUBSIDIARY BORROWERS"), the several banks
and other financial institutions from time to time parties to the Credit
Agreement (the "LENDERS"), THE CHASE MANHATTAN BANK, a New York banking
corporation (together with its banking affiliates, "Chase"), as agent for the
Lenders (in such capacity, the "ADMINISTRATIVE AGENT"), XXXXXXX XXXXX XXXXXX,
INC., as syndication agent (the "SYNDICATION AGENT"), CREDIT LYONNAIS NEW YORK
BRANCH (together with its banking affiliates, "CREDIT LYONNAIS") and BANK ONE,
MICHIGAN, as successor to 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:
- - - - - - - - - -
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
A. DEFINED TERMS. Unless otherwise noted, capitalized terms have
the meanings given to them in the Credit Agreement.
B. AMENDMENT OF SUBSECTION 1.1 (DEFINED TERMS).
1. Subsection 1.1 of the Credit Agreement is hereby amended
by adding the following definitions in their proper alphabetical order:
"MAXIMUM NON-STERLING OPTIONAL CURRENCY AMOUNT" shall have the
meaning specified in subsection 2.4(i).
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"MAXIMUM OPTIONAL CURRENCY AMOUNT" shall have the meaning
specified in subsection 2.4(ii).
"`SUBSTRAL ACQUISITION' means the proposed acquisition by OMS
Investments, Inc. and certain Foreign Subsidiaries of certain assets of
Xxxxxx KGaA and its affiliates related to their consumer home and garden
plant care business under the Substral, Blomin, Simontrop or other brand
names."
"`WHOLLY OWNED SUBSIDIARY' or `WHOLLY-OWNED SUBSIDIARY' means any
subsidiary of any Person all of the Capital Stock of which (other than
directors' qualifying shares required by law) is owned by such Person
directly and/or through other wholly owned Subsidiaries."
2. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting in the definition of "Permitted Acquisition" clause (c)(v)
thereof and substituting, in lieu thereof, the following new clause (c)(v):
"(v) after giving effect to the consummation thereof, the
aggregate amount of consideration (whether cash or property, as valued in
good faith by the Board of Directors of the Borrower) for all Permitted
Acquisitions other than the ASEF Acquisition and the Ortho Acquisition
shall not exceed in the aggregate: (A) $100,000,000 if such acquisition
or acquisitions shall occur prior to or during fiscal year 2000; (B)
$175,000,000 (representing an incremental $75,000,000) if such
acquisition or acquisitions shall occur prior to or during fiscal year
2001; (C) $200,000,000 (representing an incremental $25,000,000) if such
acquisition or acquisitions shall occur prior to or during fiscal year
2002; and (D) $225,000,000 (representing an incremental $25,000,000)
thereafter."
C. AMENDMENT OF SUBSECTION 2.4 (REVOLVING CREDIT COMMITMENT).
Subsection 2.4 of the Credit Agreement is hereby amended by deleting the second
proviso to the first sentence therein in its entirety and by substituting, in
lieu thereof, the following:
"PROVIDED further that the Revolving Credit Lenders shall not make any
Revolving Credit Loans in Optional Currencies if, after giving effect to
the making of any such Revolving Credit Loan:
(i) the sum of the Dollar Equivalent of the then
outstanding Revolving Credit Loans in Optional Currencies other
than Sterling and the then outstanding L/C Obligations in
Optional Currencies other than Sterling would exceed the Optional
Currency Equivalent of the product of (p) $120,000,000 and (q)
the ratio of (1) the sum of the Total Revolving Credit
Commitments as of the Closing Date and the aggregate amount of
increases in the Total Revolving Credit Commitments pursuant to
subsection 2.28 since the Closing Date over (2) the Total
Revolving Credit Commitments as of the Closing Date (such
Optional Currency Equivalent the "MAXIMUM NON-STERLING OPTIONAL
CURRENCY AMOUNT"); or
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(ii) the sum of the Dollar Equivalent of the then
outstanding Revolving Credit Loans in Optional Currencies
including Sterling and the then outstanding L/C Obligations in
Optional Currencies including Sterling would exceed the Optional
Currency Equivalent of the product of (p) $225,000,000 and (q)
the ratio of (1) the sum of the Total Revolving Credit
Commitments as of the Closing Date and the aggregate amount of
increases in the Total Revolving Credit Commitments pursuant to
subsection 2.28 since the Closing Date over (2) the Total
Revolving Credit Commitments as of the Closing Date (such
Optional Currency Equivalent the "MAXIMUM OPTIONAL CURRENCY
AMOUNT") and"
D. AMENDMENT OF SUBSECTION 2.12 (MANDATORY PREPAYMENTS).
Subsection 2.12(d) of the Credit Agreement is hereby amended by deleting such
subsection in its entirety and by substituting, in lieu thereof, the following:
"(d) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale (including any Asset Sale
permitted under clause (c) of subsection 7.9) or Recovery Event then,
unless a Reinvestment Notice shall be delivered in respect thereof, an
amount equal to such Net Cash Proceeds shall be paid by the Borrower or
any of its Subsidiaries, and shall be applied on such date toward the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in subsection 2.12(f); PROVIDED, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of
Asset Sales and Recovery Events that may be excluded from the foregoing
requirement pursuant to a Reinvestment Notice shall not exceed (x) if the
Net Cash Proceeds are of Asset Sales of (1) assets of Phostrogen Limited
or (2) assets of the Borrower or OMS Investments, Inc. and used in the
Borrower's "Professional Turf" line of business, $50,000,000 in the
aggregate, (y) if the Net Cash Proceeds are of the sale and leaseback of
the Borrower's North American headquarters in Marysville, Ohio,
$10,000,000 in the aggregate, and (z) otherwise, $25,000,000 in any
fiscal year of the Borrower or $100,000,000 in the aggregate, and (ii) on
each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall
be applied toward the prepayment of the Term Loans and the reduction of
the Revolving Credit Commitments as set forth in subsection 2.12(f)."
E. AMENDMENT OF SUBSECTION 2.18 (PRO RATA TREATMENT AND
PAYMENTS).
1. Subsection 2.18(c)(i)(A) of the Credit Agreement is hereby
amended by deleting such subsection in its entirety and by substituting, in lieu
thereof, the following:
"(A) if such Asset Sale is of the Capital Stock of a Subsidiary
Borrower that is the borrower of the Tranche A French Subtranche Term
Loans, the Tranche A German Subtranche Term Loans or the Tranche A
British Subtranche Term Loans or of any assets of such Subsidiary
Borrower or any Subsidiary thereof, to the extent that such subtranche of
Tranche A Term Loans are then outstanding, to such Tranche A French
Subtranche Term Loans, to such Tranche A German Subtranche Term Loans or
to the Tranche A British Subtranche Term Loans, as the case may be, in
each case PRO RATA to the remaining
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installments thereof, and thereafter as provided above; provided that any
such application to the Tranche A British Subtranche Term Loans may, at
the option of such Subsidiary Borrower, first be applied to the Tranche A
British Subtranche Term Loans made by Lenders that are not Eligible U.K.
Banks and thereafter to the Tranche A British Subtranche Term Loans made
by Eligible U.K. Banks; and"
2. Subsection 2.18(c)(i)(B) of the Credit Agreement is hereby
amended by deleting therefrom the phrase "the other Tranche A British Subtranche
Term Loans and".
F. AMENDMENT OF SECTION 2 (AMOUNT AND TERMS OF LOANS). Section 2
of the Credit Agreement is hereby amended by adding the following new subsection
2.28 to the end thereof:
"2.28 COMMITMENT INCREASES. (a) From time to time the Borrower
may, with the consent of the Administrative Agent and one or more of the
Revolving Credit Lenders, increase the Revolving Credit Commitments of
such Revolving Credit Lenders by an aggregate amount of not less than
$25,000,000. Any such increase in the Revolving Credit Commitment of any
Revolving Credit Lender shall be evidenced by the execution and delivery
by the Borrower, the Subsidiary Borrowers, the Administrative Agent and
such Revolving Credit Lender of a Commitment Increase Supplement,
substantially in the form of Exhibit N (a "COMMITMENT INCREASE
SUPPLEMENT"), and shall be effective as of the date specified for
effectiveness in such Commitment Increase Supplement, whereupon such
Revolving Credit Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Revolving Credit
Commitment as so increased, and Schedule 1 shall be deemed to be amended
to so increase the Revolving Credit Commitment of such Lender.
(b) If, on the date upon which the Revolving Credit Commitment of
any Revolving Credit Lender is increased pursuant to subsection 2.28(a),
there is an unpaid principal amount of Revolving Credit Loans in any
currency to the Borrower or any Subsidiary Borrower in which such
Revolving Credit Lender has agreed to participate, the principal
outstanding amount of all such Revolving Credit Loans shall (A) in the
case of such Revolving Credit Loans which are ABR Loans, be immediately
prepaid by the Borrower or Subsidiary Borrower (but all such Revolving
Credit Loans may, on the terms and conditions hereof, be reborrowed on
such date on a pro rata basis, based on the revised Revolving Credit
Commitments as then in effect) and (B) in the case of such Revolving
Credit Loans which are LIBOR Loans, continue to remain outstanding
(notwithstanding any other requirement in this Agreement that such
Revolving Credit Loans be held on a pro rata basis based on the revised
Revolving Credit Commitments as then in effect) until the end of the then
current Interest Period therefor, at which time such LIBOR Loans shall be
paid by the Borrower or Subsidiary Borrower (but all such Revolving
Credit Loans may, on the terms and conditions hereof, be reborrowed on
such date on a pro rata basis, based on the Revolving Credit Commitments
as then in effect).
(c) Notwithstanding anything to the contrary in this subsection
2.28, (i) in no event shall any transaction effected pursuant to this
subsection 2.28 cause the aggregate Revolving Credit Commitments to
exceed $575,000,000, less the aggregate amount of any
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reduction in the Revolving Credit Commitments pursuant to subsection 2.10
or 2.12, and (ii) no Lender shall have any obligation to increase its
Revolving Credit Commitment unless it agrees to do so in its sole
discretion. Each Commitment Increase Supplement shall be deemed to be a
supplement to this Agreement."
G. AMENDMENT OF SUBSECTION 6.13 (ADDITIONAL COLLATERAL, ETC.).
1. Subsection 6.13(c) of the Credit Agreement is hereby amended
by adding at the end thereof immediately prior to the period the following:
", PROVIDED that, if the initial investment in or purchase price
of such new Domestic Subsidiary is less than $1,000,000, the obligations
of the Borrower discussed in clauses (i) through (iv) of this subsection
6.13(c) shall not take effect unless and until the financial statements
delivered to the Administrative Agent following the end of each fiscal
year of the Borrower pursuant to subsection 6.1(a) show the tangible net
worth of such new Domestic Subsidiary to be more than $1,000,000"
2. Subsection 6.13(d) of the Credit Agreement is hereby amended
by (a) deleting the word "Subsidiaries" that appears before clause (i) thereof,
(b) adding in lieu thereof the words "Domestic Subsidiaries or any Foreign
Subsidiary Borrower", and (c) adding at the end of the first sentence thereof
immediately prior to the period the following:
", PROVIDED that, if the initial investment in or purchase price
of such new Foreign Subsidiary or Foreign Subsidiary Borrower (as
applicable) is less than $1,000,000, the obligations of the Borrower
discussed in clauses (i) through (iv) of this subsection 6.13(d) shall
not take effect unless and until the financial statements delivered to
the Administrative Agent following the end of each fiscal year of the
Borrower pursuant to subsection 6.1(a) show the tangible net worth of
such new Foreign Subsidiary or Foreign Subsidiary Borrower (as
applicable) to be more than $1,000,000"
3. Subsection 6.13(e) of the Credit Agreement is hereby amended
by adding at the end thereof immediately prior to the period the following:
", PROVIDED that, if the initial investment in or purchase price
of such new Excluded Foreign Subsidiary is less than $1,000,000, the
obligations of the Borrower discussed in clauses (i) through (iii) of
this subsection 6.13(e) shall not take effect unless and until the
financial statements delivered to the Administrative Agent following the
end of each fiscal year of the Borrower pursuant to subsection 6.1(a)
show the tangible net worth of such new Excluded Foreign Subsidiary to be
more than $1,000,000"
H. AMENDMENT OF SUBSECTION 7.1 (LIMITATION ON LIENS). Subsection
7.1 of the Credit Agreement is hereby amended by deleting the word "and" at the
end of clause (m) thereof, deleting the period at the end of clause (n) thereof,
inserting in lieu thereof "; and", and adding immediately thereafter the
following:
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"(o) Purchase money Liens on assets acquired with seller-financed
Indebtedness permitted pursuant to subsection 7.6(m), so long as such
Liens encumber only assets (and proceeds thereof) acquired with such
Indebtedness and do not secure any other Indebtedness."
I. AMENDMENT OF SUBSECTION 7.2 (LIMITATION ON CONTINGENT
OBLIGATIONS). Subsection 7.2 of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and by substituting, in lieu thereof,
the following:
"7.2 LIMITATION ON CONTINGENT OBLIGATIONS. Agree to or assume,
guarantee, indorse or otherwise in any way be or become responsible or
liable for, directly or indirectly, any Contingent Obligation except for
(i) the guarantees contemplated by the Guarantee and Collateral
Agreements, (ii)(x) guarantees by the Borrower of Indebtedness of Foreign
Subsidiary Borrowers in an aggregate amount not to exceed $25,000,000 at
any one time outstanding, (y) guarantees by the Borrower of Permitted
Foreign Debt of any Foreign Subsidiary, PROVIDED that such Permitted
Foreign Debt is not secured by any Liens, and (z) guarantees by Foreign
Subsidiaries of Permitted Foreign Debt and other obligations of other
Foreign Subsidiaries, the Dollar Equivalent of which Permitted Foreign
Debt and other such obligations shall not exceed $50,000,000 in aggregate
principal outstanding at any time, (iii) guarantees in existence on the
Closing Date as described in Schedule 7.2(iii), (iv) Contingent
Obligations in an aggregate amount not to exceed $20,000,000 at any one
time outstanding, (v) Contingent Obligations of any Subsidiary Guarantor
in respect of Indebtedness permitted under subsection 7.6(e), PROVIDED
that such Contingent Obligations are subordinated to the same extent as
the obligations of the Borrower in respect of the related Indebtedness,
(vi) to the extent that any of the obligations of the Borrower under the
Roundup Agreement may constitute Contingent Obligations, such
obligations, (vii) any guarantees of the Borrower or any of its
Subsidiaries under clause (ii) of subsection 5.1(d), (viii) any guarantee
of the obligations of the Borrower by its Subsidiaries of Indebtedness
under the Senior Subordinated Notes and the Bridge Subordinated Debt
Documents (if any) PROVIDED that such Contingent Obligations are
subordinated to the same extent as the obligations of the Borrower in
respect of the related Indebtedness, or (ix) any guarantee by the
Borrower of Indebtedness incurred by OMS Investments, Inc. in connection
with the Substral Acquisition."
J. AMENDMENT OF SUBSECTION 7.4 (LIMITATION ON CAPITAL
EXPENDITURES). Subsection 7.4 of the Credit Agreement is hereby amended by
deleting in each instance "$70,000,000" and by replacing it with "$90,000,000".
K. AMENDMENT OF SUBSECTION 7.6 (LIMITATION ON INDEBTEDNESS).
1. Subsection 7.6 of the Credit Agreement is hereby amended by
deleting in clause (f) thereof "$10,000,000" and inserting in lieu thereof
"$20,000,000".
2. Subsection 7.6 of the Credit Agreement is hereby further
amended by deleting the word "and" at the end of clause (k) thereof, deleting
the period at the end of clause (l), inserting in lieu thereof "; and", and
adding immediately thereafter the following:
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"(m) seller-financed Indebtedness (i) incurred by OMS
Investments, Inc. in connection with its acquiring trademarks and trade
names as part of the Substral Acquisition or (ii) incurred by the
Borrower or any of its Subsidiaries in an aggregate principal amount not
to exceed $40,000,000 at any one time outstanding."
L. FORM OF COMMITMENT INCREASE SUPPLEMENT. The Credit Agreement
is hereby amended by adding a new Exhibit N in the form attached to this Second
Amendment as Annex A.
M. AMENDMENT OF CERTAIN AMOUNTS. Subsections 2.12, 2.14, 2.25 and
3.1 of the Credit Agreement are hereby amended by deleting the amounts
"$120,000,000" and "$225,000,000" whereever they appear therein and by
substituting in lieu thereof the phrases "Maximum Non-Sterling Optional Currency
Amount" and "Maximum Optional Currency Amount" respectively.
II. GENERAL PROVISIONS
A. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof,
and after giving effect to this Second 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.
B. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall
become effective as of the date (the "ACCEPTANCE DATE") the Administrative Agent
receives counterparts of this Second Amendment, duly executed and delivered by
the Borrower, each Subsidiary Borrower, the Administrative Agent and the
Required Lenders, PROVIDED that the amendments described in Sections I.D and I.E
hereof shall become effective as of the date (the "SECOND ACCEPTANCE DATE") the
Administrative Agent receives counterparts of this Second Amendment, duly
executed and delivered by the Borrower, each Subsidiary Borrower, the
Administrative Agent and the Required Prepayment Lenders.
C. 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 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 Second
Amendment).
D. 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 Second Amendment,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
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E. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
F. COUNTERPARTS. This Second 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 Second
Amendment 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: Power of Attorney
MIRACLE GARDEN CARE LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
SCOTTS HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
HYPONEX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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SCOTTS' MIRACLE-GRO PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SCOTTS-SIERRA HORTICULTURAL PRODUCTS
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
REPUBLIC TOOL & MANUFACTURING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SCOTTS-SIERRA INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SCOTTS FRANCE HOLDINGS SARL
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
SCOTTS FRANCE SARL
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
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SCOTTS HOLDING GMBH
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
SCOTTS CELAFLOR GMBH & CO. KG
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
SCOTTS ASEF BVBA
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President of Scotts-Sierra
Investments, Inc., as shareholder
THE SCOTTS COMPANY (UK) LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Xxxxxxxx
00
XXXXXX XXXXXX 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: Power of Attorney
ASEF B.V.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
SCOTTS AUSTRALIA PTY LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Power of Attorney
XXXXXXX XXXXX XXXXXX, INC., as Syndication
Agent
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney In Fact
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CREDIT LYONNAIS NEW YORK BRANCH, as
Co-Documentation Agent and as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
BANK ONE, MICHIGAN, as successor to
NBD BANK, as Co-Documentation Agent and as a
Lender
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
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: /s/ Xxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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AMMC CDO I, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ Xxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
AERIES - II FINANCE LTD.
By: INVESCO Senior Secured Management, Inc., as
Sub-Managing Agent
By: /s/ Xxxxxx X.X. Xxxxx
------------------------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE CO.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Signatory
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P., its General Partner
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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ATHENA CDO, LIMITED
By: Pacific Investment Management Company as its
investment advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
BHF (USA) CAPITAL CORPORATION
By: /s/ Xxxx Xxxx
------------------------------------------------
Name: Xxxx Xxxx
Title: Associate
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BW CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx X. Vrfer
------------------------------------------------
Name: Xxxxxxx X. Vrfer
Title: President
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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BALANCED HIGH YIELD FUND II LTD.
By: BHF (USA) Capital Corporation, as Attorney-
in-Fact
By: /s/ Xxxx Xxxx
------------------------------------------------
Name: Xxxx Xxxx
Title: Associate
By: /s/ Xxxxx Xxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ G. Xxxxxx Xxxxx
------------------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxxx Xxxx
------------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
BANK OF HAWAII
By: /s/ Xxxx Xxx
------------------------------------------------
Name: Xxxx Xxx
Title: Vice President
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BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------------------
Name: Xxxxxx X. XxXxxxxx
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
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Jo Xxxxx Xxxxxx
------------------------------------------------
Name: Jo Xxxxx Xxxxxx
Title: Senior Vice President
18
BLACK DIAMOND CLO 1998-1 LTD.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
CAPTIVA III FINANCE LTD.
By: /s/ Xxxxx Xxxx
------------------------------------------------
Name: Xxxxx Xxxx
Title: Director
CERES FINANCE, LTD.
By: INVESCO Senior Secured Management, Inc., as
Sub-Managing Agent
By: /s/ Xxxxxx X.X. Xxxxx
------------------------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
CITICORP USA, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
COMERICA BANK, Detroit
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
19
CREDIT AGRICOLE INDOSUEZ, Chicago
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Senior Relationship Manager
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Senior Relationship Manager
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: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
20
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Xxx Xxxxxxxx
-------------------------------------------------
Name: Xxx Xxxxxxxx
Title: Senior Vice President
By: /s/ Xinyue Xxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xinyue Xxxxxxx Xxxxxxx
Title: Assistant Vice President
ELC (CAYMAN) 2000-I LTD.
By: /s/ X.X. Xxxxxxxx, III
-------------------------------------------------
Name: X.X. Xxxxxxxx, III
Title: Managing Director
IDM
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment
Advisor
By: /s/ Xxxxx X. Page
-------------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
FIFTH THIRD BANK OF COLUMBUS
By: /s/ Xxx Xxxx
-------------------------------------------------
Name: Xxx Xxxx
Title: Vice President
21
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxx
-------------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
FOOTHILL INCOME TRUST, L.P.
By: FIT GP LLC, its general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Member
GENERAL ELECTRIC CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Duly Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK
By: /s/ X. Xxxxx Place
-------------------------------------------------
Name: X. Xxxxx Place
Title: Vice President
XXXXXX FINANCIAL INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
22
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING IIA, LTD.
By: Indosuez Capital, as Portfolio Advisor
By: /s/ Xxxxxxx Xxxx
-------------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
KZH CRESCENT 3 LLC
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Agent
KZH ING-3 LLC
By: /s/ Xxxxx Xxx
-------------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH RIVERSIDE LLC
By: /s/ Xxxxx Xxx
-------------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
23
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
-------------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CNC LLC
By: /s/ Xxxxx Xxx
-------------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH-CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxx
-------------------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH-ING-2 LLC
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Agent
KZH-SOLEIL-2 LLC
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Agent
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
24
MONUMENTAL LIFE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK ONE, MICHIGAN, as successor to
NBD BANK
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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
NUVEEN SENIOR INCOME FUND
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Managing Director
00
XXX XXXX SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P. its General
Partner
By: Oak Hill Securities MGP, Inc. its General
Partner
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OASIS COLLATERALIZED HIGH INCOME
By: INVESCO Senior Secured Management, Inc., as
Sub-Managing Agent
By: /s/ Xxxxxx X.X. Xxxxx
-------------------------------------------------
Name: Xxxxxx X.X. Xxxxx
Title: Authorized Signatory
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
OSPREY INVESTMENTS PORTFOLIO
By: Citibank Global Asset Management
By: /s/ Xxxx Xxxxx
-------------------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
-------------------------------------------------
Name: Xxxxx X. Page
Title: Vice President
26
PINEHURST TRADING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
SKM LIBERTYVIEW CBO I LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
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
By: /s/ Xxxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Managing Director
00
XXXXXXX XXXXXXXX (XXXXX) INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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
28
ACKNOWLEDGMENT AND CONSENT
--------------------------
In consideration of each Agent's and the Lenders' execution,
delivery and performance of the foregoing Amendment No. 2 (the "SECOND
AMENDMENT"), each of the undersigned hereby (i) acknowledges the terms and
provisions of the Second 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 Second
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 Second Amendment to which
this Acknowledgment and Consent is attached.
SCOTTS' MIRACLE-GRO PRODUCTS, INC.
SCOTTS-SIERRA HORTICULTURAL
PRODUCTS COMPANY
REPUBLIC TOOL & MANUFACTURING CORP.
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
EARTHGRO, INC.
XXXXXXX SCIENTIFIC, INC.
EG SYSTEMS, INC.
SWISS FARMS PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Treasurer
OLD FORT FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
29
Annex A
to Second Amendment
-------------------
EXHIBIT N
TO SCOTTS CREDIT AGREEMENT
--------------------------
[FORM OF COMMITMENT INCREASE SUPPLEMENT]
SUPPLEMENT, dated __________, to the Credit Agreement dated as of
December 4, 1998 as amended by the Waiver, dated as of January 19, 1999, the
Amendment No. 1 and Consent, dated as of October 13, 1999, the Waiver No. 2,
dated as of February 14, 2000, and the Amendment No. 2 (the "Second Amendment")
dated as of June __, 2000, 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 Asef BVBA, f/k/a Scotts Belgium 2 BVBA, The Scotts Company (UK) Ltd.,
Scotts Canada Ltd., Scotts Europe B.V., ASEF B.V., Scotts Australia PTY Ltd. and
the other subsidiaries of the Borrower who are also borrowers from time to time
under the Credit Agreement (the "SUBSIDIARY BORROWERS"), the several banks and
other financial institutions from time to time parties to the Credit Agreement
(the "LENDERS"), THE CHASE MANHATTAN BANK, a New York banking corporation
(together with its banking affiliates, "CHASE"), as agent for the Lenders (in
such capacity, the "ADMINISTRATIVE AGENT"), XXXXXXX XXXXX XXXXXX, INC., as
syndication agent (the "SYNDICATION AGENT"), CREDIT LYONNAIS NEW YORK BRANCH
(together with its banking affiliates, "CREDIT LYONNAIS") and BANK ONE,
MICHIGAN, as successor to 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:
WHEREAS, the Credit Agreement provides in subsection 2.28(a)
thereof that any Lender to which a Commitment Increase Offer is addressed may
increase the amount of its Revolving Credit Commitment by executing and
delivering to the Borrower, the Subsidiary Borrowers and the Administrative
Agent a supplement to the Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned now desires to increase the amount of its
Revolving Credit Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
30
2
1. The undersigned agrees, subject to the terms and conditions of the
Credit Agreement, that on the date this Supplement is accepted by the Borrower,
the Subsidiary Borrowers and the Administrative Agent (a) it shall have its
Revolving Credit Commitment increased by $____________, thereby making the
amount of its Revolving Credit Commitment $___________, and (b) it shall have
its maximum commitments to make Revolving Credit Loans in each of the Optional
Currencies increased (if at all) to the amounts specified in Schedule N-1
hereto.
2. Terms defined in the Credit Agreement shall have their defined
meanings when used herein.
31
IN WITNESS WHEREOF, the undersigned has caused this Supplement to
be executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By
------------------------------------
Name:
Title:
Accepted this _____ day of
____________________, ________________.
THE SCOTTS COMPANY
By:
------------------------------------
Name:
Title:
XX XXXXX INTERNATIONAL INVESTMENTS LTD.
By:
------------------------------------
Name:
Title:
MIRACLE GARDEN CARE LIMITED
By:
------------------------------------
Name:
Title:
32
SCOTTS HOLDINGS LIMITED
By:
------------------------------------
Name:
Title:
HYPONEX CORPORATION
By:
------------------------------------
Name:
Title:
SCOTTS' MIRACLE-GRO PRODUCTS, INC.
By:
------------------------------------
Name:
Title:
SCOTTS-SIERRA HORTICULTURAL PRODUCTS COMPANY
By:
------------------------------------
Name:
Title:
REPUBLIC TOOL & MANUFACTURING CORP.
By:
------------------------------------
Name:
Title:
SCOTTS-SIERRA INVESTMENTS, INC.
By:
------------------------------------
Name:
Title:
00
XXXXXX XXXXXX HOLDINGS SARL
By:
------------------------------------
Name:
Title:
SCOTTS FRANCE SARL
By:
------------------------------------
Name:
Title:
SCOTTS HOLDING GMBH
By:
------------------------------------
Name:
Title:
SCOTTS CELAFLOR GMBH & CO. KG
By:
------------------------------------
Name:
Title:
SCOTTS ASEF BVBA
By:
------------------------------------
Name:
Title:
THE SCOTTS COMPANY (UK) LTD.
By:
------------------------------------
Name:
Title:
00
XXXXXX XXXXXX LTD.
By:
------------------------------------
Name:
Title:
SCOTTS EUROPE B.V.
By:
------------------------------------
Name:
Title:
ASEF B.V.
By:
------------------------------------
Name:
Title:
SCOTTS AUSTRALIA PTY LTD.
By:
------------------------------------
Name:
Title:
Accepted this ____ day of
____________________, ________________.
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
------------------------------------
Name:
Title:
35
SCHEDULE N-1
[FORM OF SCHEDULE REGARDING
OPTIONAL CURRENCY MAXIMUM COMMITMENT INCREASE]
[LENDER]
OPTIONAL MAXIMUM COMMITMENT
CURRENCY
[] []
36
CONFORMED COPY
WAIVER XX. 0
XXXXXX XX. 0, dated as of February 14, 2000 (the "Second Waiver"), to
the Credit Agreement, dated as of December 4, 1998, as amended by the Waiver,
dated as of January 19, 1999, and the Amendment No. 1 and Consent, dated as of
October 13, 1999, 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 Asef BVBA, f/k/a Scotts Belgium 2 BVBA, The Scotts Company (UK) Ltd.,
Scotts Canada Ltd., Scotts Europe B.V., ASEF B.V., Scotts Australia PTY Ltd.,
and the other subsidiaries of the Borrower who are also borrowers from time to
time under the Credit Agreement (the "Subsidiary Borrowers"), the several banks
and other financial institutions from time to time parties to the Credit
Agreement (the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking
corporation (together with its banking affiliates, "Chase"), as agent for the
Lenders (in such capacity, the "Administrative Agent"), XXXXXXX XXXXX XXXXXX,
INC., as syndication agent (the "Syndication Agent"), CREDIT LYONNAIS CHICAGO
BRANCH (together with its banking affiliates, "Credit Lyonnais") and BANK ONE,
MICHIGAN, as successor to 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 :
WHEREAS, subsection 6.11 of the Credit Agreement, Maintenance of
Consolidated Net Worth, sets forth a formula which required that Borrower's
Consolidated Net Worth (as defined in the Credit Agreement) be in an amount of
not less than $385,500,000 as of the last day of Borrower's fiscal quarter
ending January 1, 2000. Borrower reports that its Consolidated Net Worth as of
the last day of such fiscal quarter was $383,100,000;
WHEREAS, the Borrower has requested that the Required Lenders waive,
with respect to the fiscal quarter ending January 1, 2000, the requirement under
subsection 6.11 of the Credit Agreement that the Borrower maintain its
Consolidated Net Worth above the amount described herein; and
WHEREAS, the Required Lenders have agreed to waive such requirement
with respect to such period but only on the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise noted, capitalized terms have the
meanings given to them in the Credit Agreement.
2
2. Compliance with Subsection 6.11 (Maintenance of Consolidated Net
Worth). The Required Lenders hereby waive the requirements of subsection 6.11 of
the Credit Agreement with respect to the fiscal quarter ending January 1, 2000;
provided that the Borrower's Consolidated Net Worth as of the last day of such
fiscal quarter was not less than $383,000,000.
3. Representations and Warranties. On and as of the date hereof, and
after giving effect to this Second Waiver, the 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 the Borrower hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date.
4. Conditions to Effectiveness. This Second Waiver shall become
effective as of the date the Administrative Agent receives counterparts of this
Second Waiver, duly executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders.
37
5. Continuing Effect; No Other Waiver. Except as expressly waived
hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The waiver provided for herein is limited to
the specific subsections of the Credit Agreement specified herein and shall not
constitute an waiver of, or an indication of any Lender's willingness to 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 Second Waiver).
6. 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 Second Waiver, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
7. GOVERNING LAW. THIS SECOND WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts. This Second Waiver 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.
2
38
IN WITNESS WHEREOF, the parties hereto have caused this Second 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
-----------------------------------------------------
Title: Vice President, Corporate Treasurer
XXXXXXX XXXXX BARNEY, INC., as Syndication
Agent and as a Lender
By: /s/ X. XXXXX
-----------------------------------------------------
Title: Managing Director
CREDIT LYONNAIS CHICAGO BRANCH, as Co-Documentation Agent
and as a Lender
By: /s/ XXXX XXX XXXXX
-----------------------------------------------------
Title: Vice President
BANK ONE, MICHIGAN, as successor to
NBD BANK, as Co-Documentation Agent and as a Lender
By: /s/ XXXXXX X. XXXXXXX
-----------------------------------------------------
Title: Managing Director
THE CHASE MANHATTAN BANK, as Administrative
Agent and as a Lender
By: /s/ XXXXXXXX XXXXX
-----------------------------------------------------
Title: Vice President
39
ABN AMRO BANK N.V., Pittsburgh
By: /s/ XXXXXXX XXXXXXX /s/ XXXXXXX XXXXXXX
-----------------------------------------------------
Title: Vice President Senior Vice President
AERIES - II FINANCE LTD.
By: /s/ XXXX XXXXXXXX
-----------------------------------------------------
Title: Authorized Signatory
ALLIANCE INVESTMENT OPPORTUNITIES
By:
-----------------------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE CO.
By:
-----------------------------------------------------
Name:
Title:
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: /s/ XXXX XXXXXXX
-----------------------------------------------------
Title: Vice President
ATHENA CDO, LIMITED
By: Pacific Investment Management Company as
its investment advisor
By: PIMCO Management Inc., a general partner
By:
-----------------------------------------------------
Name:
Title:
40
BHF (USA) CAPITAL CORPORATION
By:
-----------------------------------------------------
Name:
Title:
BHF BANK AKTIENGESELLSCHAFT
By:
-----------------------------------------------------
Name:
Title:
BW CAPITAL MARKETS, INC.
By: /s/ XXXXXX XXXXXXX XXXXXXX X. XXXXX
-----------------------------------------------------
Title: Vice President President
BALANCED HIGH YIELD FUND II LTD.
By:
-----------------------------------------------------
Name:
Title:
BANK AUSTRIA
By:
-----------------------------------------------------
Name:
Title:
BANK OF AMERICA
By: /s/ XXXXXXXX XXXX
-----------------------------------------------------
Title: Vice President
BANK OF HAWAII
By:
-----------------------------------------------------
Name:
Title:
41
BANK OF MONTREAL
By: /s/ XXXXX X. XXXXX
----------------------------------------------------
Title: Director
THE BANK OF NEW YORK
By: /s/ XXXXXX XXXXXXXX
----------------------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. XXXXX
----------------------------------------------------
Title: Senior Manager Loan Operations
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
----------------------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By: /s/ ARNAUD XXXXXX XX XXXXXX
----------------------------------------------------
Title: Executive Vice President & General
Manager
BANQUE WORMS CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX X. XXXXX
----------------------------------------------------
Title: Vice President & General Counsel
Senior Vice President
BLACK DIAMOND CLO 1998-1 LTD.
By:
----------------------------------------------------
Name:
Title:
42
BOEING CAPITAL CORPORATION
By: /s/ XXXXX X. XXXXXXXXXXX
---------------------------------------------------
Title: Senior Documentation Officer
CIT GROUP/EQUIPMENT FINANCING, INC.
By:
---------------------------------------------------
Name:
Title:
CAPTIVA III FINANCE LTD.
By:
---------------------------------------------------
Name:
Title:
CARAVELLE INVESTMENT FUND, L.L.C.
By:
---------------------------------------------------
Name:
Title:
CERES FINANCE, LTD.
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------------------
Title: Authorized Signatory
CITICORP USA, INC.
By: /s/ XXXXXXXX X. XXXX
---------------------------------------------------
Title: Attorney in Fact
COMERICA BANK, Detroit
By: /s/ XXXXXXX X. XXXXX
---------------------------------------------------
Title: Assistant Vice President
43
CREDIT AGRICOLE INDOSUEZ, Chicago
By:
---------------------------------------------------
Name:
Title:
CREDIT LYONNAIS
By:
---------------------------------------------------
Name:
Title:
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management Company,
Inc. its Managing Member
By:
---------------------------------------------------
Name:
Title:
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management Company,
Inc. its Managing Member
By:
---------------------------------------------------
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management Company as its
investment advisor
By: PIMCO Management Inc., a general partner
By:
---------------------------------------------------
Name:
Title:
44
DRESDNER BANK, AG
By: /s/ A. XXXXXXX XXXXXX XXX XXXXXXXX
------------------------------------------------
Title: First Vice President Senior Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: /s/ PAYSON X. XXXXXXXXX
------------------------------------------------
Title: Vice President
ERSTE BANK
By:
------------------------------------------------
Name:
Title:
FIFTH THIRD BANK OF COLUMBUS
By: /s/ XXXX XXXXXX
------------------------------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ XXXXXX XXXXX
------------------------------------------------
Title: Vice President
FLEET NATIONAL BANK
By:
------------------------------------------------
Name:
Title:
45
FOOTHILL INCOME TRUST, L.P.
By: /s/ XXXXXX XXXXXX
------------------------------------------------
Title: Managing Member
FRANKLIN FLOATING RATE TRUST
By:
------------------------------------------------
Name:
Title:
FREEMONT INVESTMENT & LOAN
By:
------------------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORP.
By:
------------------------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By: /s/ X. XXXXX PLACE
------------------------------------------------
Title: Vice President
XXXXXX FINANCIAL INC.
By: /s/ XXXXX X. XXXX
------------------------------------------------
Title: Senior Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ J. XXXXXXX XXXXXXX
------------------------------------------------
Title: Vice President
46
IKB DEUTSCHE INDUSTRIEBANK
By: /s/ MANFORD ZIWEY
------------------------------------------------
Title: Director
INDOSUEZ CAPITAL
By: /s/ XXXXXXX XXXXXX
------------------------------------------------
Title: Vice President
INDOSUEZ CAPITAL FUNDING IIA, LTD.
By:
------------------------------------------------
Name:
Title:
KZH APPALOOSA LLC
By:
------------------------------------------------
Name:
Title:
KZH BDC LLC
By:
------------------------------------------------
Name:
Title:
47
KZH CRESCENT 3 LLC
By:
------------------------------------------------
Name:
Title:
KZH III LLC
By:
------------------------------------------------
Name:
Title:
KZH ING-3 LLC
By: /s/ XXXXX XXX
------------------------------------------------
Title: Authorized Agent
KZH PAMCO LLC
By:
------------------------------------------------
Name:
Title:
KZH RIVERSIDE LLC
By: /s/ XXXXX XXX
------------------------------------------------
Title: Authorized Agent
KZH WATERSIDE LLC
By: /s/ XXXXX XXX
------------------------------------------------
Title: Authorized Agent
KZH CNC LLC
By: /s/ XXXXX XXX
------------------------------------------------
Title: Authorized Agent
KZH-CYPRESSTREE-1 LLC
By:
------------------------------------------------
Name:
Title:
48
KZH-ING-2 LLC
By:
------------------------------------------------
Name:
Title:
KZH-SOLEIL-2 LLC
By:
------------------------------------------------
Name:
Title:
KEY BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX XXXXXX
------------------------------------------------
Title: Vice President
LANDESBANK RHEINLAND-PFALZ GIR
By: /s/ XXXXXXXX XXXXXX KREJOI
------------------------------------------------
Title: Assistant Vice President Manager
XXXXXX COMMERCIAL PAPER INC.
By:
------------------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By:
------------------------------------------------
Name:
Title:
49
ML CLO XII PILGRIM AMERICA
By: Pilgrim Investments, Inc., as its investment
manager
By:
------------------------------------------------
Name:
Title:
ML CLO XX PILGRIM AMERICA
By: Pilgrim Investments, Inc., as its investment
manager
By:
------------------------------------------------
Name:
Title:
MSDW PRIME INCOME TRUST
By:
------------------------------------------------
Name:
Title:
MEESPIERSON N.V.
By: /s/ X. XXXXXX X. XXXXXXXX
------------------------------------------------
Title: Manager Head of Acquisition & Finance
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By:
------------------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND
By:
------------------------------------------------
Name:
Title:
50
METROPOLITAN LIFE INSURANCE CO.
By: /s/ XXXXX X. XXXXXXX
------------------------------------------------
Title: Director
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/ XXXXXX X. XXXXXXX
------------------------------------------------
Title: Managing Director
NATIONAL CITY BANK
By: /s/ XXXXX X. XXXXX
------------------------------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK, PLC
By:
------------------------------------------------
Name:
Title:
51
NORSE CBO, LTD.
By:
-------------------------------------------------
Name:
Title:
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By:
-------------------------------------------------
Name:
Title:
ORIX USA CORPORATION
By: /s/ HIROYUKI MIYAUCKHI
-------------------------------------------------
Title: EVP, Corporate Finance Group
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
By: /s/ XXXXX XXXXX
-------------------------------------------------
Title: Vice President
OASIS COLLATERALIZED HIGH INCOME
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------------------
Title: Authorized Signatory
52
OCTAGON LOAN TRUST
By:
-------------------------------------------------
Name:
Title:
OLYMPIC FUNDING TRUST, SERIES 1999-1
By: /s/ XXXXX XXXXXX
-------------------------------------------------
Title: Authorized Agent
OSPREY INVESTMENTS PORTFOLIO
By: /s/ XXXX XXXXX
-------------------------------------------------
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: XXXXX XXXXX MANAGEMENT AS INVESTMENT ADVISOR
By: /s/ PAYSON X. XXXXXXXXX
-------------------------------------------------
Title: Vice President
PACIFICA PARTNERS I, L.P.
By: /s/ XXXXXX XXXXXXX
-------------------------------------------------
Title: Vice President
PARIBAS
By:
-------------------------------------------------
Name:
Title:
PINEHURST TRADING, INC.
By: /s/ XXXXX XXXXXX
-------------------------------------------------
Title: Vice President
53
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", Utrecht Branch
By: /s/ XXXXXXX XXXX XXXXX X'XXXXXX
--------------------------------------------------
Title: Vice President
Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", Utrecht Branch
By:
-------------------------------------------------
Name:
Title:
SKM LIBERTYVIEW CBO I LTD.
By: /s/ XXXXXXX XXXXXX
-------------------------------------------------
Title: Authorized Signatory
SANKATY HIGH YIELD ASSET PARTNERS
By: /s/ XXXXX XXXXX
-------------------------------------------------
Title: Executive Vice President & Portfolio Manager
SCOTIABANC, INC.
By:
-------------------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ XXXXXX XXXXXXXXX
-------------------------------------------------
Title: Vice President
54
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ XXXXXXX XXXXXXX
Title: Vice President
TORONTO DOMINION (TEXAS) INC.
By:
-------------------------------------------------
Name:
Title:
TRAVELERS INSURANCE COMPANY
By:
-------------------------------------------------
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as Collateral Manager
By: /s/ XXXXXX X. XXXXXX
-------------------------------------------------
Title: Vice President
55
ACKNOWLEDGEMENT AND CONSENT
In consideration of each Agent's and the Lenders' execution, delivery and
performance of the foregoing Waiver No. 2 (the "Second Waiver"), each of the
undersigned hereby (i) acknowledges the terms and provisions of the Second
Waiver 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 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 Second Waiver 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.
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------
Title: Vice President
