EXHIBIT 10.15
EXECUTION VERSION
- --------------------------------------------------------------------------------
AMENDMENT NO. 2
DATED AS OF MARCH 22, 2002
TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED OF MARCH 8, 2000
------------------------
DOANE PET CARE COMPANY,
AS BORROWER
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
------------------------
WACHOVIA BANK N.A.,
AS CO-AGENT
------------------------
J.P. MORGAN SECURITIES INC.,
AS LEAD ARRANGER
WACHOVIA BANK N.A.
AND
DANSKE BANK A/S,
AS CO-ARRANGERS
- --------------------------------------------------------------------------------
AMENDMENT NO. 2
AMENDMENT NO. 2 dated as of March 22, 2002 to the Credit Agreement
referred to below, among DOANE PET CARE ENTERPRISES, INC., a Delaware
corporation ("Holdings"), DOANE PET CARE COMPANY, a Delaware corporation (the
"Borrower"), DOANE/WINDY HILL JOINT VENTURE L.L.C., a Texas limited liability
company ("Windy Hill"), DPC INVESTMENT CORP., a Delaware corporation ("DPC"),
and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), as
administrative agent (in such capacity, the "Administrative Agent").
Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent are parties to an Amended and Restated Credit Agreement
dated as of May 8, 2000 (as amended by Amendment No. 1 dated as of March 26,
2001 and as otherwise amended, waived or modified and in effect immediately
prior to the effectiveness of this Amendment No. 2, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
to be made by the Lenders to the Borrower in an original aggregate principal or
face amount not exceeding $410,375,000 and (euro)82,000,000.
Holdings, the Borrower, the Administrative Agent and certain of the
Lenders party thereto wish to amend the Credit Agreement in certain respects
and, accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment
No. 2, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments to the Credit Agreement. Subject to the
satisfaction of the conditions precedent specified in Section 5 of this
Amendment No. 2, but effective as of the date hereof, the Credit Agreement shall
be amended as follows:
2.1. References. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.2. Definitions. Section 1.1 of the Credit Agreement shall be amended
by inserting the following definitions (or, in the case of any of the following
terms that are already defined in the Credit Agreement, by amending and
restating in its entirety such term to read as set forth below):
"Additional Senior Subordinated Notes": any senior
subordinated notes the Indebtedness under which is permitted to be
incurred pursuant to Section 7.2(j).
"Agents": the collective reference to the Administrative
Agent, the Co-Agent, the Syndication Agent, the Documentation Agent and
the European Managing Agent.
2
"Amendment No. 2 Effective Date": the effective date of
Amendment No. 2 to this Agreement.
"Applicable Margin": for each type of Loan, the rate per annum
set forth on the Pricing Grid.
"Carat Transaction": the sale by Carat
Tiernahrungsgesellschaft m.b.H. ("Carat") of certain real property
owned on the Amendment No. 2 Effective Date by Carat and located at
Hauptplatz 11, A-8190, Birkfeld, Austria, and the lease thereof by
Carat as lessee.
"Co-Agent": Wachovia Bank N.A.
"Commitment Fee Rate": the rate per annum set forth on the
Pricing Grid.
"Consolidated Senior Debt": all Consolidated Total Debt
(including, without limitation, the Shareholder Notes), other than (a)
the Senior Subordinated Notes, (b) any Additional Senior Subordinated
Notes and (c) any permitted subordinated refinancing of the
Indebtedness described in clauses (a) and (b) hereof.
"Deposit Account": defined in the Guarantee and Collateral
Agreement.
"Excess Leverage Fee": any fee accrued, or accrued, due and
payable (as the case may be) pursuant to Section 2.8(d).
"Financial Advisor": Taura Flynn & Associates, LLC.
"Larkshall Transaction": the sale by Doane Pet Care (UK)
Limited ("Larkshall") of an extruder owned on the Amendment No. 2
Effective Date by Larkshall and located at East Wretham, Thetford,
Norfolk, IP24 1QY England, and the lease thereof by Larkshall as
lessee.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, broker's or finder's fees,
amounts required to be applied to the repayment of Indebtedness secured
by a Lien expressly permitted hereunder on any asset that is the
subject of such Asset Sale or Recovery Event (other than any Lien
pursuant to a Security Document) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking
into account any available tax credits or deductions related to such
Asset Sale or Recovery Event and any tax sharing
3
arrangements) and (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith; provided that, for
purposes of any prepayment of the Term Loans or reduction of Revolving
Commitments required by Section 2.11 (or otherwise), the calculation of
"Net Cash Proceeds" shall also exclude the amount of any payment of the
Excess Leverage Fee required to be made in connection with the event
giving rise to such prepayment obligation or required reduction of the
Revolving Commitments.
"Operating Accounts": defined in the Guarantee and Collateral
Agreement.
"Securities Account": defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages, each control
agreement entered into by the Borrower pursuant to Section 6.10(e) and
all other security documents hereafter delivered to the Administrative
Agent granting a Lien on any property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
2.3. Excess Leverage Fee. Section 2.8 of the Credit Agreement
shall be amended by adding a new Section 2.8(d) to read as follows:
"(d) Except as otherwise agreed in writing by the Required
Lenders, an excess leverage fee shall (i) accrue if the Consolidated
Senior Debt Ratio exceeds 3.25:1.00 as of March 31, 2003, at a rate
equal to 2.5% of the sum of the daily average of the aggregate unpaid
principal amount of the Term Loans and the Revolving Loans of all
Lenders, calculated for each day during the period commencing on March
31, 2002 and ending on March 31, 2003, and (ii) be due and payable by
the Borrower to the Administrative Agent for the account of each Person
which on the date required for payment is a Lender, from the Net Cash
Proceeds of any Asset Sale or Recovery Event or the issuance or
incurrence by Holdings, the Borrower or any Restricted Subsidiary of
any Indebtedness or sale or issuance of equity or Capital Stock
consummated after March 31, 2003, in each case, to the extent such
event requires prepayment of the Term Loans and/or reduction of
Revolving Commitments pursuant to Section 2.11, on the date required
for such prepayment (but in any event, and regardless of whether any
such Net Cash Proceeds shall have been received by any Loan Party, such
fee shall be so due and payable by the Borrower not later than the
earlier to occur of (x) March 31, 2005 and (y) the date on which all
Loans have been repaid in full, including, but not limited to, by way
of refinancing thereof); provided that such fee shall be deemed earned
by the Lenders and accrued hereunder and shall automatically be due and
payable by the Borrower immediately upon the occurrence of any Event of
Default described in Section 8(f)(i) or (ii) with respect to the
Borrower."
Amendment No. 2
4
2.4. Mandatory Prepayments. Section 2.11(d) of the Credit
Agreement shall be amended in its entirety to read as follows:
"(d) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date Holdings, the Borrower or any of its Restricted
Subsidiaries shall receive Net Cash Proceeds from any sale or issuance
of equity or Capital Stock (except any proceeds of equity sold or
issued to the principal equity investors or management or employees and
the exercise of options and warrants held by them), then such Net Cash
Proceeds shall be applied on such date toward the prepayment of the
Term Loans and the reduction of the Revolving Commitments as set forth
in Section 2.11(e)."
2.5. Pro Rata Treatment and Payment. Section 2.17(a) of the
Credit Agreement shall be amended in its entirety to read as follows:
"(a) Each borrowing by the Borrower from the Lenders
hereunder, each payment by the Borrower on account of any commitment
fee or Excess Leverage Fee and any reduction of the Commitments of the
Lenders shall be made pro rata according to the respective Tranche A
Term Percentages, Tranche B Term Percentages, Tranche C Term
Percentages or Revolving Percentages, as the case may be, of the
relevant Lenders."
2.6. March 31, 2003 Financial Statements. The last sentence of
Section 6.1 of the Credit Agreement shall be amended in its entirety to read as
follows:
"Notwithstanding anything herein to the contrary, the Borrower
will, (i) not later than March 31, 2003, furnish to the Administrative
Agent and each Lender the audited financial statements required to be
furnished under clause (a) above for the fiscal year ending on or
nearest to December 31, 2002 (without audit qualification or exception
as provided in such clause), together with the related certificate
required under Section 6.2(a) and (ii) not later than May 8, 2003,
furnish to the Administrative Agent and each Lender the unaudited
financial statements required to be furnished under clause (b) above
for the fiscal quarter ending March 31, 2003, certified by a
Responsible Officer as required in such clause, together with the
related certificates required under Section 6.2(b)."
2.7. Certificates; Other Information. Section 6.2(b) of the
Credit Agreement shall be amended by adding the following proviso at the end
thereof:
"provided that the Compliance Certificate relating to the
fiscal quarter of the Borrower ending March 31, 2003 shall include all
information and calculations necessary for determining whether the
Consolidated Senior Debt Ratio exceeds 3.25:1.00 as of March 31, 2003,
for purposes of determining whether the Excess Leverage Fee will accrue
pursuant to Section 2.8(d);"
Amendment No. 2
5
2.8. Monthly Financial Information. Section 6.2(g) of the
Credit Agreement shall be amended by replacing the words "December 31, 2002"
appearing therein with the words "March 31, 2003".
2.9. Interest Rate Protection. Section 6.9 of the Credit
Agreement shall be amended by replacing the parenthetical therein with the
following parenthetical: "(including the Senior Subordinated Notes, any
Additional Senior Subordinated Notes and other fixed rate indebtedness)".
2.10. Additional Collateral, Etc. Section 6.10 of the Credit
Agreement shall be amended by adding a new Section 6.10(e) to read as follows:
"(e) Use its best efforts (i) with respect to each Operating
Account and (ii) with respect to each other Deposit Account and each
other Securities Account in existence after the Amendment No. 2
Effective Date (other than any account the credit balance of which
shall not exceed $500,000), to enter into control agreements (x) within
45 days of the Amendment No. 2 Effective Date (in the case of the
accounts referred to in clause (i) above) and (y) within 45 days of the
date which is the later of the date such account shall have come into
existence or exceeds the minimum amount set forth above with respect
thereto (in the case of the accounts referred to in clause (ii) above),
in each case, with the Administrative Agent and the financial
institution at which such account is held, in form and substance
reasonably satisfactory to the Administrative Agent (and the
Administrative Agent shall be authorized for and on behalf of the
Lenders to enter into each such agreement)."
2.11. Accounts. A new Section 6.11 shall be added to the
Credit Agreement to read as follows:
"6.11. Accounts. Maintain each Deposit Account and each
Securities Account of any Loan Party (other than any account the credit
balance of which shall not exceed $500,000) with one or more of the
Lenders."
2.12. Financial Condition Covenants. Section 7.1 of the Credit
Agreement shall be amended in its entirety to read as follows:
Amendment No. 2
6
"7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Fiscal Quarter Consolidated Leverage Ratio
-------------- ---------------------------
3/31/02 6.35:1.00
6/30/02 6.35:1.00
9/30/02 6.25:1.00
12/31/02 6.25:1.00
3/31/03 5.85:1.00
6/30/03 - 9/30/03 3.25:1.00
12/31/03 - 3/31/04 3.00:1.00
6/30/04 and thereafter 2.75:1.00
(b) Consolidated Senior Debt Ratio. Permit the Consolidated
Senior Debt Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to exceed the ratio set forth below opposite such fiscal
quarter:
Fiscal Quarter Consolidated Senior Debt Ratio
-------------- ------------------------------
3/31/02 4.70:1.00
6/30/02 4.70:1.00
9/30/02 4.65:1.00
12/31/02 4.65:1.00
3/31/03 4.30:1.00
6/30/03 - 9/30/03 2.25:1.00
12/31/03 - 6/30/04 2.00:1.00
9/30/04 and thereafter 1.75:1.00
Amendment No. 2
7
(c) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio as at the last day of any period
of four consecutive fiscal quarters of the Borrower ending with any
fiscal quarter set forth below to be less than the ratio set forth
below opposite such fiscal quarter:
Fiscal Quarter Consolidated Interest Coverage Ratio
-------------- ------------------------------------
3/31/02 1.80:1.00
6/30/02 1.80:1.00
9/30/02 1.80:1.00
12/31/02 1.80:1.00
3/31/03 1.85:1.00
6/30/03 - 9/30/03 2.60:1.00
12/31/03 - 3/31/04 2.70:1.00
6/30/04 and thereafter 2.75:1.00
(d) Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal
quarter set forth below to be less than the ratio set forth below
opposite such fiscal quarter:
Fiscal Quarter Consolidated Fixed Charge Coverage Ratio
-------------- ----------------------------------------
3/31/02 0.80:1.00
6/30/02 0.80:1.00
9/30/02 0.80:1.00
12/31/02 0.80:1.00
3/31/03 0.85:1.00
6/30/03 - 9/30/05 1.00:1.00
12/31/05 and thereafter 0.50:1.00
(e) Minimum Consolidated EBITDA. Permit Consolidated EBITDA
for any period of four consecutive fiscal quarters of the Borrower
ending with any fiscal quarter set forth below to be less than the
amount set forth below opposite such fiscal quarter:
Amendment No. 2
8
Fiscal Quarter Consolidated EBITDA
-------------- -------------------
3/31/02 $92,500,000
6/30/02 $90,500,000
9/30/02 $91,500,000
12/31/02 $92,000,000
3/31/03 $95,500,000"
2.13. Indebtedness. Section 7.2 of the Credit Agreement shall
be amended by (a) deleting the word "and" at the end of clause (h) thereof; (b)
replacing the period at the end of clause (i) thereof with "; and"; and (c)
adding a new Section 7.2(j) to read as follows:
"(j) Indebtedness under senior subordinated notes of the
Borrower (including subordinated guarantees thereof by any Restricted
Subsidiary that is a Guarantor) issued after the Amendment No. 2
Effective Date, on terms not less favorable to the Borrower than the
terms of the Senior Subordinated Notes (other than the coupon, which
shall be reasonably satisfactory to the Administrative Agent and the
Co-Agent) or otherwise acceptable to the Administrative Agent and the
Co-Agent, and any refinancings, refundings, renewals or extensions
thereof (without increasing the principal amount, or shortening the
maturity, thereof and on other terms not less favorable to the Borrower
than the terms of such senior subordinated notes (other than the
coupon, which shall be reasonably satisfactory to the Administrative
Agent and the Co-Agent) or otherwise acceptable to the Administrative
Agent and the Co-Agent; provided that, notwithstanding anything herein
to the contrary, upon receipt of the Net Cash Proceeds thereof, such
Net Cash Proceeds shall be applied to the prepayment of the Term Loans
and the reduction of Revolving Commitments as set forth in Section
2.11(e)."
2.14. Restricted Payments. Section 7.6(e) of the Credit
Agreement shall be amended in its entirety to read as follows:
"(e) the Borrower may repay or redeem the Senior Subordinated
Notes or any Additional Senior Subordinated Notes, pursuant to any
refinancing thereof permitted under Section 7.2(f) or 7.2(j) (as
applicable)."
2.15. Capital Expenditures. The last sentence of Section 7.7
of the Credit Agreement shall be amended in its entirety to read as follows:
"Notwithstanding anything herein to the contrary, (x) there
shall no carryover of any unexpended amounts from the fiscal year
ending on or nearest to December 31, 2001 to the next succeeding fiscal
year or from the fiscal year ending on or nearest to December 31, 2002
to the next succeeding fiscal year, in either case, under the proviso
in
Amendment No. 2
9
clause (a) above and (y) the amount of Capital Expenditures permitted
to be made under said clause (a) for each of the periods of the
Borrower set forth below shall be reduced to the amount set forth below
opposite such period (or its equivalent in other currencies):
Period Capital Expenditures
------ --------------------
01/01/02 to 3/31/02 $ 7,000,000
01/01/02 to 6/30/02 $15,000,000
01/01/02 to 9/30/02 $20,000,000
01/01/02 to 12/31/02 $25,000,000
01/01/03 to 3/31/03 $7,000,000"
2.16. Investments.
(a) Section 7.8(e) of the Credit Agreement shall be amended in
its entirety to read as follows: "[intentionally deleted];".
(b) The last sentence of Section 7.8 of the Credit Agreement
shall be amended by replacing the words "December 31, 2002" appearing therein
with the words "March 31, 2003".
2.17. Optional Payments and Modifications of Certain Debt
Instruments. Section 7.9(a) of the Credit Agreement shall be amended in its
entirety to read as follows:
"(a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or
voluntarily defease or segregate funds with respect to the Senior
Subordinated Notes or any Additional Senior Subordinated Notes, except
as permitted under Section 7.2(f) or 7.2(j) (as applicable),".
2.18. Transactions With Affiliates. The proviso to Section
7.10 of the Credit Agreement shall be amended by replacing the words "December
31, 2002" appearing therein with the words "March 31, 2003".
2.19. Sales and Leasebacks. Section 7.11 of the Credit
Agreement shall be amended in its entirety to read as follows:
"7.11 Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by Holdings, the Borrower or any
Restricted Subsidiary of real or personal property that has been or is
to be sold or transferred by Holdings, the Borrower or such Subsidiary
to such Person or to any other Person to whom funds have been or are to
be advanced by such Person on the security of such property or rental
Amendment No. 2
10
obligations of Holdings, the Borrower or such Subsidiary other than:
(i) Liens pursuant to the MDFC Operating Lease (only on property
subject to the MDFC Operating Lease); and (ii) the Larkshall
Transaction and the Carat Transaction, together with Liens pursuant
thereto otherwise permitted hereunder (only on property which is the
subject of such transactions, and only with respect to rental
obligations in respect of such property), provided that (x) the Carat
Transaction shall constitute an "Asset Sale" for purposes of Section
2.11(b) to the extent the definition of "Asset Sale" shall otherwise
apply with respect to such transaction and (y) the Larkshall
Transaction shall not constitute an "Asset Sale" for such purpose."
2.20. Events of Default. Section 8(l) of the Credit Agreement
shall be amended in its entirety to read as follows:
"(l) the Senior Subordinated Notes, any Additional Senior
Subordinated Notes or any guarantees thereof shall cease, for any
reason, to be validly subordinated to the Obligations or the
obligations of the Restricted Subsidiaries under the Guarantee and
Collateral Agreement, as the case may be, as provided in the indenture
therefore, or any Loan Party, any Affiliate of any Loan Party, the
trustee in respect of the Senior Subordinated Notes or any Additional
Senior Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes or any Additional
Senior Subordinated Notes shall so assert; or"
2.21. Expenses. Section 10.5(b) of the Credit Agreement shall
be amended in its entirety to read as follows:
"(b) to pay the fees and expenses of the Financial Advisor specified in
its engagement letter dated February 14, 2002 and to pay or reimburse
each Lender and the Agents for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under
this Agreement (including, without limitation, this Section 10.5 or any
other similar provision in the other Loan Documents), the other Loan
Documents and any such other documents or in connection with any
work-out, restructuring or negotiations in respect thereof or in
connection with the bankruptcy, insolvency or reorganization with
respect to the Borrower or any Restricted Subsidiary, including the
reasonable fees and disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Lender and of counsel to
the Administrative Agent,".
2.22. Annex A (Pricing Grid). Annex A to the Credit Agreement
shall be amended and restated in its entirety to read as set forth in Annex A to
this Amendment No. 2.
2.23. Schedule 7.5 (Permitted Dispositions). Schedule 7.5 to
the Credit Agreement shall be amended and restated to read in its entirety as
set forth in Schedule 7.5 to this Amendment No. 2.
Amendment No. 2
11
Section 3. Waivers. Subject to the satisfaction of the
conditions specified in Section 5 of this Amendment No. 2, but with effect on
and after the date hereof, each of the Required Lenders and the Majority
Revolving Facility Lenders waive any Default or Event of Default that has
occurred and is continuing under the Credit Agreement on the date hereof as a
result of the Borrower's failure to comply, as of December 31, 2001, with
Sections 7.1(a) and (b) of the Credit Agreement.
Section 4. Representations and Warranties. Each of Holdings
and the Borrower jointly and severally represents and warrants to the
Administrative Agent and the Lenders that, after giving effect to this Amendment
No. 2, (a) no Default or Event of Default shall have occurred and be continuing
and (b) the representations and warranties set forth in Section 4 of the Credit
Agreement (as amended hereby) are true and complete on the date hereof as if
made on and as of the date hereof (or, if any such representations and
warranties expressly relate to any earlier date, as of such earlier date) and as
if each reference in said Section 4 to "this Agreement" and the "Loan Documents"
included reference to this Amendment No. 2.
Section 5. Conditions Precedent. As provided in Sections 2 and
3 of this Amendment No. 2, the amendments to the Loan Documents set forth in
said Section 2 and the waivers set forth in said Section 3 shall become
effective as of the date hereof upon:
(i) Counterparts. Receipt by the Administrative Agent of one
or more counterparts of this Amendment No. 2 duly executed and
delivered by the Borrower, Holdings, Windy Hill, DPC and the
Administrative Agent (with the written consent of each of the Required
Lenders and the Majority Revolving Facility Lenders provided in the
form of the Lender Consent attached hereto as Exhibit A) and of
Amendment No. 1 dated as of the date hereof to the Guarantee and
Collateral Agreement, substantially in the form attached hereto as
Exhibit B, duly executed and delivered by Holdings, the Borrower, Windy
Hill, DPC and the Administrative Agent;
(ii) Opinion of Borrower's Counsel. Receipt by the
Administrative Agent of an opinion of counsel to Holdings, the Borrower
and its Restricted Subsidiaries in form and substance reasonably
satisfactory to the Administrative Agent (and the Borrower hereby
instructs each such counsel to deliver such opinion to the Lenders and
the Administrative Agent);
(iii) Amendment Fee. Payment by the Borrower of an amendment
fee to the Administrative Agent for the account of each Lender that has
executed a Lender Consent in the form attached hereto as Exhibit A on
or before 5:00 p.m., New York City time, on March 22, 2002, such fee to
be in an amount equal to 0.25% of the sum of the aggregate unpaid
principal amount of the Term Loans held by such Lender and the
Revolving Commitment then in effect of such Lender;
Amendment No. 2
12
(iv) Expenses, Etc. Payment by the Borrower of all other fees
and expenses required to be paid, including the fees and expenses of
the Financial Advisor specified in its engagement letter dated February
14, 2002, and all expenses for which invoices have been presented
(including, without limitation, reasonable fees and disbursements and
other charges of counsel to the Administrative Agent and of the
Co-Agent) in connection with this Amendment No. 2; and
(v) Other Additional Matters. All required corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Amendment No. 2
being reasonably satisfactory in form and substance to the
Administrative Agent, and receipt by the Administrative Agent of such
other documents in respect of the transactions contemplated hereby as
it shall reasonably request.
Section 6. Ratification of Obligations, Etc. By its execution
of this Amendment No. 2, each of the Loan Parties (a) ratifies and reaffirms its
obligations under the Credit Agreement (as modified by this Amendment No. 2) to
the extent such Loan Party is a party thereto, and under the other Loan
Documents (including, without limitation, the Guarantee and Collateral Agreement
as amended by Amendment No. 1 thereto dated as of the date hereof) to which it
is a party, in all respects, and confirms that each such agreement to which it
is a party is valid and enforceable against such Loan Party as set forth in
Section 4.4 of the Credit Agreement, (b) waives any defense, right of set-off or
claim against the Administrative Agent, the Co-Agent, any Lender or their
respective affiliates, directors, officers, employees, agents, attorneys and
representatives to or arising under the Credit Agreement or the other Loan
Documents and hereby releases the Administrative Agent, the Co-Agent, each
Lender and their respective affiliates, directors, officers, employees, agents,
attorneys and representatives from any liability thereunder or related thereto
and (c) agrees that there are no oral agreements or understandings among such
Loan Party and the Administrative Agent, the Co-Agent or any Lender relating to
this Amendment No. 2, the Credit Agreement, the Guarantee and Collateral
Agreement, Amendment No. 1 thereto or any other Loan Document.
Section 7. Miscellaneous. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. This
Amendment No. 2 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 2 by signing any such
counterpart. Delivery of an executed signature page of this Amendment No. 2 by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 2
13
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed and delivered as of the day and year first
above written.
DOANE PET CARE ENTERPRISES, INC.
By /s/ Philip K. Woodlief
-----------------------------
Name: Philip K. Woodlief
Title: Vice President and CFO
DOANE PET CARE COMPANY
By /s/ Philip K. Woodlief
-----------------------------
Name: Philip K. Woodlief
Title: Vice President and CFO
DOANE/WINDY HILL JOINT VENTURE L.L.C.
By: Doane Pet Care Company,
its sole member
By /s/ Philip K. Woodlief
-----------------------------
Name: Philip K. Woodlief
Title: Vice President and CFO
DPC INVESTMENT CORP.
By /s/ Philip K. Woodlief
-----------------------------
Name: Philip K. Woodlief
Title: Vice President and CFO
JPMORGAN CHASE BANK,
as Administrative Agent
By /s/ Kathryn A. Duncan
-----------------------------
Name: Kathryn A. Duncan
Title: Vice President
Amendment No. 2
Schedule 7.5
PERMITTED DISPOSITIONS
The Deep Run Plant properties located in Dublin, Pennsylvania
Capital Stock of any of the Unrestricted Subsidiaries
Amendment No. 2
ANNEX A
PRICING GRID
REVOLVING CREDIT LOANS
AND TRANCHE A DOLLAR TERM LOANS:
ABR Loans 3.75%
Eurodollar Loans 4.75%
TRANCHE A EURO TERM LOANS: 4.75%
TRANCHE B TERM LOANS:
ABR Loans 3.75%
Eurodollar Loans 4.75%
TRANCHE C TERM LOANS:
ABR Loans 3.75%
Eurodollar Loans 4.75%
COMMITMENT FEE RATE: 1.00%
EXHIBIT A
LENDER CONSENT
Reference is made to the Amended and Restated Credit Agreement dated as
of May 8, 2000 (as amended and in effect from time to time, the "Credit
Agreement") among DOANE PET CARE ENTERPRISES, INC., a Delaware corporation
("Holdings"), DOANE PET CARE COMPANY, a Delaware corporation (the "Borrower"),
the several banks and other financial institutions or entities from time to time
parties thereto (the "Lenders") and JPMORGAN CHASE BANK (formerly named The
Chase Manhattan Bank), as administrative agent (in such capacity, the
"Administrative Agent"), providing, subject to the terms and conditions thereof,
for extensions of credit to be made by the Lenders to the Borrower in an
original aggregate principal or face amount not exceeding $410,375,000 and
(pound sterling)82,000,000. Capitalized terms used and not otherwise defined
herein are deemed to have the respective meanings assigned to such terms in the
Credit Agreement.
The undersigned Lender party to the Credit Agreement hereby (i)
consents to Amendment No. 2 to the Credit Agreement, dated as of March 22, 2002
and effective as of the date thereof, substantially in the form to which this
Lender Consent is attached ("Amendment No. 2") and (ii) authorizes and directs
the Administrative Agent to execute and deliver Amendment No. 2 on behalf of
such Lender and Amendment No. 1 to the Guarantee and Collateral Agreement
referred to in Section 5(i) of Amendment No. 2.
Full Name of Lender: _____________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
Date: March __, 2002
EXHIBIT B
AMENDMENT NO. 1
TO
GUARANTEE AND COLLATERAL AGREEMENT
AMENDMENT NO. 1 dated as of March 22, 2002 to the Guarantee
and Collateral Agreement referred to below, among DOANE PET CARE ENTERPRISES,
INC., a Delaware corporation ("Holdings"), DOANE PET CARE COMPANY, a Delaware
corporation (the "Borrower"), DOANE/WINDY HILL JOINT VENTURE L.L.C., a Texas
limited liability company ("Windy Hill"), DPC INVESTMENT CORP., a Delaware
corporation ("DPC"), and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as administrative agent (in such capacity, the "Administrative
Agent").
Holdings, the Borrower, the Lenders party thereto and the
Administrative Agent are parties to an Amended and Restated Credit Agreement
dated as of May 8, 2000 (as amended by Amendment No. 1 dated as of March 26,
2001 and Amendment No. 2 dated as of March 22, 2002 and as otherwise amended,
waived or modified, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for extensions of credit to be made by the Lenders to the
Borrower in an original aggregate principal or face amount not exceeding
$410,375,000 and (pound sterling)82,000,000.
The Grantors party thereto and the Administrative Agent are
parties to an Amended and Restated Guarantee and Collateral Agreement dated as
of May 10, 2000 (as amended, waived or modified and in effect immediately prior
to the effectiveness of this Amendment No. 1, the "Guarantee and Collateral
Agreement"), pursuant to which, inter alia, the Grantors party thereto have
granted to the Administrative Agent for the ratable benefit of the Lenders a
security interest in certain assets of such Grantors.
Holdings, the Borrower, Windy Hill, DPC and the Administrative
Agent wish to amend the Guarantee and Collateral Agreement in certain respects
and, accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined this
Amendment No. 1, terms defined in the Guarantee and Collateral Agreement are
used herein as defined therein.
Section 2. Amendments to Guarantee and Collateral Agreement.
Effective as of the date hereof, the Guarantee and Collateral Agreement shall be
amended as follows:
2.1. References. References in the Guarantee and Collateral
Agreement (including references to the Guarantee and Collateral Agreement as
amended hereby) to "this Agreement" (and indirect references such as
"hereunder", "hereby", "herein" and "hereof") shall be deemed to be references
to the Guarantee and Collateral Agreement as amended hereby.
2
2.2. Definitions. Section 1.1 of the Credit Agreement shall be
amended by inserting the following definitions:
"Deposit Account": the meaning ascribed thereto in Article 9
of the New York UCC.
"Operating Accounts": the Deposit Accounts listed on Schedule
9 to this Agreement.
"Securities Account": the meaning ascribed thereto in Article
8 of the New York UCC.
2.3. Grant of Security Interest. Section 3.1 of the Guarantee
and Collateral Agreement shall be amended by (a) deleting the word "and" at the
end of clause (k) thereof; and (b) adding a new clause (l) thereto (and renaming
existing clause (l) as clause (m)) to read as follows:
"(l) all Deposit Accounts and Securities Accounts (including,
without limitation, the Operating Accounts), all financial assets
(within the meaning of Section 8-102(a)(9) of the New York UCC), all
other property from time to time credited thereto or carried therein
and all security entitlements with respect thereto; and".
2.4. Schedule 9 (Operating Accounts): A new Schedule 9 shall
be added to the Guarantee and Collateral Agreement to read as set forth in
Schedule 9 to this Amendment No. 1.
Section 3. Confirmation. By its execution of this Amendment
No. 1, each of the Loan Parties jointly and severally represents and warrants to
the Administrative Agent and each Lender that, as of the date of effectiveness
of this Amendment No. 1, (a) such Loan Party has no Securities Accounts and (b)
such Loan Party has no Deposit Accounts held with Bank of America N.A. other
than the Operating Accounts.
Section 4. Miscellaneous. Except as herein provided, the
Guarantee and Collateral Agreement shall remain unchanged and in full force and
effect. This Amendment No. 1 may be executed in any number of counterparts, all
of which taken together shall constitute one and the same amendatory instrument
and any of the parties hereto may execute this Amendment No. 1 by signing any
such counterpart. Delivery of an executed signature page of this Amendment No. 1
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
DOANE PET CARE ENTERPRISES, INC.
By _________________________
Name:
Title:
DOANE PET CARE COMPANY
By _________________________
Name:
Title:
DOANE/WINDY HILL JOINT VENTURE L.L.C.
By: Doane Pet Care Company,
its sole member
By: __________________________
Name:
Title:
DPC INVESTMENT CORP.
By: __________________________
Name:
Title:
JPMORGAN CHASE BANK,
as Administrative Agent
By _________________________
Name:
Title:
Amendment No. 1
Schedule 9
ACCOUNTS
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Name of Loan Party Account Number Account Name Address Where Account is
Located
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Doane Pet Care Company 003299816597 Doane Pet Care Company A/P Bank of America N.A.
Account-GA 101 North Tryon St.
NC1-001-13-26
Charlotte, NC 28255
(ABA#061000052)
- -------------------------------------------------------------------------------------------------------------------
Doane Pet Care Company 003299816605 Doane Pet Care Company Bank of America N.A.
Payroll Account-GA 101 North Tryon St.
NC1-001-13-26
Charlotte, NC 28255
(ABA#061000052)
- -------------------------------------------------------------------------------------------------------------------
Doane Pet Care Company 003784755403 Doane Pet Care Company Bank of America N.A.
Operating Account-TN 101 North Tryon St.
NC1-001-13-26
Charlotte, NC 28255
(ABA#064000020)
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