NINETEENTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This NINETEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("AMENDMENT") is dated as of May 21, 2002, and is entered into by and among
UNIONTOOLS, INC., a Delaware corporation ("BORROWER"), ACORN PRODUCTS, INC., a
Delaware corporation ("HOLDINGS"), HAWTHORNE TOOLS, INC., f/k/a ▇.▇. ▇▇▇▇▇▇▇
Manufacturing Company, a Missouri corporation ("▇.▇. ▇▇▇▇▇▇▇"), PINETREE TOOLS,
INC., f/k/a Uniontools Irrigation, Inc., a Delaware corporation formerly known
as UnionTools Watering Products, Inc. ("IRRIGATION" and together with Borrower,
Holdings and ▇.▇. ▇▇▇▇▇▇▇ collectively, the "LOAN PARTIES"), ▇▇▇▇▇▇ FINANCIAL,
INC., in its capacity as Agent for the Lenders party to the Credit Agreement
described below ("AGENT"), and the Lenders which are signatories hereto.
WHEREAS, Borrower, Agent and Lenders have entered into an Amended and
Restated Credit Agreement dated as of May 20, 1997, as amended by that certain
Amendment No. 1 to Credit Agreement dated November 24, 1997, Second Amendment to
Credit Agreement dated as of May 22, 1998, Third Amendment to Amended and
Restated Credit Agreement dated as of October 29, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to
Amended and Restated Credit Agreement dated as of February 26, 1999, Fifth
Amendment to Amended and Restated Credit Agreement dated as of June 10, 1999,
Sixth Amendment to Amended and Restated Credit Agreement dated as of October 28,
1999, Consent and Seventh Amendment to Amended and Restated Credit Agreement
dated as of March 31, 2000, Eighth Amendment to Amended and Restated Credit
Agreement dated as of April 30, 2001, Ninth Amendment to Amended and Restated
Credit Agreement dated as of May 7, 2001, Tenth Amendment to Amended and
Restated Credit Agreement dated as of May 14, 2001, Eleventh Amendment to
Amended and Restated Credit Agreement dated as of May 21, 2001, Twelfth
Amendment to Amended and Restated Credit Agreement dated as of June 4, 2001,
Thirteenth Amendment to Amended and Restated Credit Agreement dated as of June
15, 2001, Fourteenth Amendment to Amended and Restated Credit Agreement dated as
of June 26, 2001, Fifteenth Amendment to Amended and Restated Credit Agreement
dated as of July 6, 2001. Sixteenth Amendment to Amended and Restated Credit
Agreement dated as of July 13, 2001 ("SIXTEENTH AMENDMENT"), Seventeenth
Amendment to Amended and Restated Credit Agreement dated as of October 4, 2001
and Eighteenth Amendment to Amended and Restated Credit Agreement dated as of
December 31, 2001 (all the amendments enumerated above, the "AMENDMENTS"; The
Amended and Restated Credit Agreement, as amended by the Amendments and from
time to time hereafter amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT");
WHEREAS, Events of Default have occurred and continue as a result of
Borrower's breach of (i) subsection 3(C)(f) of the Sixteenth Amendment which
requires that Borrower or Holdings, as applicable, deliver to Agent on or before
the date that is 45 days following the receipt by Borrower of an acceptable
Letter of Intent (as defined therein), a definitive, binding purchase and sale
agreement for the sale and purchase of Borrower or substantially all of
Borrower's assets on terms substantially the same as set forth in such Letter of
Intent, and (ii)
Borrower's failure to repay the Obligations in full on April 30, 2002 in
accordance with the terms of the Credit Agreement (collectively, the "EXISTING
EVENTS OF DEFAULT").
WHEREAS, the Borrower has requested and Lenders have agreed to make
certain additional modifications to the Credit Agreement as hereinafter set
forth, subject to the conditions and terms contained herein.
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Credit Agreement and this Amendment, the Recitals set forth
above (which are incorporated herein by this reference thereto) and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. AMENDMENTS. Effective upon satisfaction of the conditions precedent
set forth in Section 3 below, and in reliance upon the representations and
warranties of Borrower and Subsidiaries set forth in the Loan Documents and in
this Agreement, the Credit Agreement is hereby amended and Borrower, Agent and
the Lenders agree as follows:
(A) The parties hereto agree to extend the Expiry Date to June 30, 2002
from April 30, 2002 and, accordingly, Section 10.1 of the Credit Agreement is
hereby amended by deleting the date "April 30, 2002" appearing in the definition
of "Expiry Date" and replacing it with the date "June 30, 2002".
(B) Borrower acknowledges and agrees that the success fee set forth in
section 3 of the Sixteenth Amendment (the "SUCCESS FEE") has, as of the date
hereof, been fully earned by Lenders in accordance with the terms thereof and
that, notwithstanding the foregoing, the parties hereto desire to amend, clarify
and confirm the amount and the terms of the payment of the Success Fee.
Specifically, Agent and Lenders have agreed to accept the immediate payment of
$2,000,000 in full, complete and final payment of the Success Fee. Accordingly,
notwithstanding subsection 3(D) of the Sixteenth Amendment to the contrary,
Borrower hereby agrees and covenants to Agent and Lenders to pay to Agent for
the ratable benefit of the Lenders a non-refundable success fee equal to
$2,000,000 which Success Fee shall be due and payable in full, in cash upon
execution and delivery of this Amendment. Borrower agrees and acknowledges that
said Success Fee is fully earned, due and payable as of the date hereof. The
provisions of this subsection 2(B) supercede and replace, in their entirety, the
provisions of Section 3(D) of the Sixteenth Amendment, which provisions shall
have no further force or effect.
(C) The parties hereto hereby agree to eliminate the $500,000 Borrowing
Base Reserve Amount. Accordingly, the definition of "Borrowing Base Reserve
Amount" appearing in Section 10.1 is hereby amended by deleting said definition
in its entirety and substituting the following new definition therefor:
"Borrowing Base Reserve Amount" means zero dollars ($0.00)."
(D) Subsection 1.1(C) of the Credit Agreement is hereby amended by
deleting the last date, "April 30, 2002", appearing in the table of Scheduled
Loan Installments thereof and substituting the date "June 30, 2002" therefor.
(E) Section 4.1 of the Credit Agreement is hereby deleted in its
entirety and the following new section 4.1 is hereby substituted therefore:
"4.1 CAPITAL EXPENDITURE LIMITS. Borrower shall not permit the
aggregate amount of all Capital Expenditures of Holdings and its
Subsidiaries on a consolidated basis to exceed (i) $1,500,000 in
the Borrower's fiscal year ending December 31, 2001, and (ii)
$750,000 from January 1, 2002 to the June 30, 2002 (the "Capex
Limit"). "Capital Expenditures" will be calculated as illustrated
on Exhibit 4.10(C)."
(F) Upon effectiveness of this Amendment, interest on the Loans and
other Obligations shall no longer accrue at the default rate of interest
pursuant to subsection 1.2(D) of the Credit Agreement.
3. CONDITIONS. The effectiveness of this Amendment is subject to the
following conditions precedent (unless specifically waived in writing by Agent):
A. Each Loan Party shall have executed and delivered this
Amendment, and such other documents and instruments as Agent may
require shall have been executed and/or delivered to Agent;
B. Borrowers shall (i) within ten (10) Business Days of demand
by Agent, pay to Agent the reasonable fees and expenses of Agent
incurred in connection with the negotiation and documentation of this
Amendment, including, without limitation, all reasonable attorneys'
fees, and (ii) concurrently with the delivery and execution by the
Borrower of this Amendment, pay to Agent for the ratable benefit of the
Lenders, the Success Fee.
C. All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other
legal matters incident thereto shall be satisfactory to Agent and its
legal counsel; and
D. No Default or Event of Default shall have occurred and be
continuing.
4. WAIVER. Effective as of the date hereof, upon satisfaction of the conditions
precedent set forth in Section 3 above, and in reliance upon the representations
and warranties of Borrower set forth in the Credit Agreement and in this
Amendment, Agent and Lenders hereby waive the Existing Events of Default. The
execution and delivery of this Amendment does not constitute a waiver by Agent
or any Lender of any Default or Event of Default other than the Existing Events
of Default, whether such Defaults or Events of Default now exist or hereafter
occur. This Amendment does not (i) constitute a waiver of any term or provision
of the Credit
Agreement or the other Loan Documents, except with respect to the Existing
Events of Default, or (ii) constitute a waiver by Agent or any Lender of any of
its other rights or remedies under the Loan Documents (all such rights and
remedies being expressly reserved), or (iii) establish a custom or a course of
dealing or conduct between Agent, any Lender and Borrower.
5. RELEASE In consideration of Agent's and Lenders' execution of this
Amendment and for other good and valuable consideration, receipt of which is
hereby acknowledged, (a) each Loan Party hereby acknowledges that it has no
defense, counterclaim, offset, cross-complaint, claim, or demand of any kind or
nature whatsoever that can be asserted to reduce or eliminate all or any part of
its liability to pay or perform any of the Obligations, or to pay or perform any
of its other obligations with respect to any other loans or other extensions of
credit or financial accommodations made available to or for its account by
Lenders or Agent, or to seek affirmative relief or damages of any kind or nature
from Lenders or Agent, and (b) each Loan Party, on its own behalf and on behalf
of its employees, agents, officers, directors, successors, and assigns, does
hereby fully, unconditionally, and irrevocably forever relieve, relinquish,
release, waive, discharge, and hold harmless the Agent and each Lender and its
current and former shareholders, directors, officers, employees, agents,
attorneys, successors, and assigns of and from any and all claims, debts,
actions, causes of action, liabilities, demands, obligations, promises, acts,
agreements, costs, expenses (including but not limited to reasonably attorneys'
fees) and damages of whatsoever kind and nature, whether now known or unknown,
based upon, resulting from, arising out of, or in connection with the Credit
Agreement, the Agent's and each Lender's administration of the Loans or the
Credit Agreement (including, without limitation, the actions or inactions, taken
by the Agent or any Lender in connection therewith), the Loans or other
extensions of credit or financial accommodations made by the Lenders from time
to time to or for the account of the Borrower or any Subsidiary thereof,
including, without limitation, any Loans made under the Credit Agreement or in
any way connected with or relating to any other instrument or document executed
or delivered in connection therewith and/or the administration or collection
thereof and/or collateral therefor or guaranties thereof.
6. REPRESENTATIONS AND WARRANTIES. To induce Agent and Lenders to enter
into this Amendment, each Loan Party represents and warrants to Agent and
Lenders as follows:
A. The execution, delivery and performance of this Amendment
has been duly authorized by all requisite corporate action on the part
of each Loan Party and that this Amendment has been duly executed and
delivered by each Loan Party; and
B. Each of the representations and warranties set forth in
Section 5 of the Credit Agreement (other than those which, by their
terms, specifically are made as of certain date prior to the date
hereof) are true and correct in all material respects as of the date
hereof.
7. SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
8. REFERENCES. Any reference to the Credit Agreement contained in any
document, instrument or agreement executed in connection with the Credit
Agreement shall be deemed to be a reference to the Credit Agreement as modified
by this Amendment.
9. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.
10. RATIFICATION. Each Loan Party hereby consents to the execution and
delivery of this Amendment. Each Loan Party hereby agrees that except as amended
hereby, the Credit Agreement and each of the other Loan Documents shall remain
in full force and effect in accordance with their respective terms. Each Loan
Party hereby ratifies and confirms its liabilities, obligations and agreements
under the Credit Agreement and each other Loan Document, all as amended by this
Amendment, and acknowledges that other than as specifically set forth herein,
Agent and Lenders do not waive, diminish or limit any term or condition
contained in the Credit Agreement or any of the other Loan Documents. Agent's
and each Lender's agreement to the terms of this Amendment or any other
amendment shall not be deemed to establish or create a custom or course of
dealing between Agent or Lenders, on the one hand, and any Loan Party, on the
other hand.
11. FURTHER ASSURANCES AND FEES AND EXPENSES. Each Loan Party covenants
and agrees that it will at any time and from time to time do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, documents and instruments as reasonably may be
required by Agent in order to effectuate fully the intent of this Amendment. The
Borrower shall pay all fees and expenses incurred in the preparation,
negotiation and execution of this Amendment, including, without limitation, the
fees and expenses of counsel for Agent and the Lenders.
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Signature Page Follows
IN WITNESS WHEREOF, the parties hereto have caused this Nineteenth
Amendment to be duly executed under seal and delivered by their respective duly
authorized officers on the date first written above.
UNIONTOOLS, INC., a Delaware corporation ACORN PRODUCTS, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President and CFO Title: Vice President and CFO
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HAWTHORNE TOOLS, INC., a Missouri corporation PINETREE TOOLS, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President and CFO Title: Vice President and CFO
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▇▇▇▇▇▇ FINANCIAL, INC., as Agent and a Lender FLEET BUSINESS CREDIT CORP.,
formerly known as Sanwa Business Credit
Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Duly Authorized Signatory Title: Vice President
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FLEET CAPITAL CORPORATION PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President Title: Vice President
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FIRSTAR BANK, N.A. ARK CLO 2000-1 LIMITED
By: Patriarch Partners, LLC
Its: Attorney-in-fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Assistant Vice President Title: Authorized Signatory
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CONSENT AND REAFFIRMATION
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The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Nineteenth Amendment to Amended and Restated Credit Agreement; (ii)
agrees to be bound thereby, as a participant under the credit facility evidenced
by said Amended and Restated Credit Agreement, and (iii) affirms that nothing
contained therein shall modify in any respect whatsoever the obligations of
undersigned to, or rights and remedies of, Agent and Lenders pursuant to the
terms of that certain Subordinated Participation Agreement (the "Subordination
Agreement") entered into as of the 28th day of October, 1999, by and among
▇▇▇▇▇▇ Financial, Inc. in its individual capacity ("▇▇▇▇▇▇") and (if applicable
pursuant to Section 11.17 thereof) certain other "Lender(s)" under the Credit
Agreement (each, individually (including ▇▇▇▇▇▇), a "Seller" and collectively,
the "Sellers") and ▇▇▇▇▇▇ Financial, Inc. in its capacity as Agent under the
Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Agent") and OCM Principal Opportunities Fund,
L.P. and TCW Special Credits, as general partner and/or investment manager of
the funds and accounts set forth on Schedule IA hereof (collectively, the
"Purchasers") and reaffirms that the Subordination Agreement is and shall
continue to remain in full force and effect. Without limiting the generality of
the foregoing, Purchasers hereby consent and agree to the subordination of their
interests in and under the Term Loan to the payment of the Success Fee to the
Lenders (other than the undersigned). Although Purchasers have been informed of
the matters set forth herein and have acknowledged and agreed to same, the
execution and delivery by Purchasers of this Consent and Reaffirmation does not
create any obligation on the part of Agent and Lenders to inform Purchasers of
such matters in the future or to seek Purchaser's acknowledgment or agreement to
future amendments or waivers, and nothing herein shall create such a duty.
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IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Nineteenth Amendment, and by their
execution hereof agree and consent to the provisions set forth above.
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Principal
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Managing Director
TCW SPECIAL CREDITS, as general partner
and investment manager of the funds and
accounts set forth on Schedule I
By: TCW Asset Management Company
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Authorized Signator
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Authorized Signator
SCHEDULE IA TO CONSENT AND REAFFIRMATION
TCW SPECIAL CREDITS FUND IIIB
TCW SPECIAL CREDITS TRUST IIIB
THE COMMON FUND FOR BOND INVESTMENTS, INC.
DELAWARE STATE EMPLOYEES' RETIREMENT FUND
WEYERHAEUSER COMPANY MASTER RETIREMENT TRUST (TCW)
TCW SPECIAL CREDITS TRUST
TCW SPECIAL CREDITS TRUST IV
TCW SPECIAL CREDITS TRUST IV-A
TCW SPECIAL CREDITS FUND IV
TCW SPECIAL CREDITS PLUS FUND