SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This SEVENTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("AMENDMENT") is dated as of October 4, 2001, 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 13, 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 and Sixteenth Amendment to Amended and Restated Credit
Agreement dated as of July 13, 2001 ("SIXTEENTH AMENDMENT"; as so amended and
from time to time hereafter amended, supplemented or otherwise modified, the
"CREDIT AGREEMENT"); and
WHEREAS, the Borrower has requested and Lenders have agreed to make
certain additional modifications to the Credit Agreement (specifically, to the
Sixteenth Amendment) 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. The deadline for the sale of the CIM Assets used in
connection with manufacture of products for Third Party Customers is hereby
extended to January 1, 2002. Accordingly, subject to the conditions set forth
below, subsection 3(B) of the Sixteenth Amendment is hereby amended by deleting
the date "December 1, 2001" appearing of such subsection and substituting the
date "January 1, 2002" in lieu thereof.
3. SPECIAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower hereby
agrees with and represents, warrants and covenants, as applicable, to Agent and
Lenders as follows:
A. Borrower has received a letter of intent dated as of June 18,
2001 (the "ORIGINAL SSI LETTER OF INTENT") from, and is
currently negotiating with, SSI Plastics with respect to the
purchase by SSI Plastics of the CIM Assets, notwithstanding
the fact that the Original Letter of Intent has expired. Agent
acknowledges receipt of the Original SSI Letter of Intent.
Borrower hereby agrees with and covenants to Agent and Lenders
that (i) if negotiations with SSI Plastics do not progress and
Borrowers and SSI Plastics are unable to reach a meeting of
the minds with respect to the sale and purchase of the CIM
Assets as aforesaid, and the parties terminate negotiations in
respect thereof, then, in such event (and notwithstanding
anything else contained in the Sixteenth Amendment), Borrower
shall immediately notify Agent in writing of such facts, and
(ii) Borrower shall use its best efforts to procure and
deliver to Agent on or before October 10, 2001, a copy of a
new, current letter of intent from SSI Plastics that extends
the expiration thereof or, in lieu thereof, an acceptable
letter of intent from another prospective buyer, and Borrower
shall promptly deliver a copy of such new letter of intent to
Agent.
B. Borrower's failure to comply with any of the representations
or covenants set forth above in this Section 3 shall result in
the amendment set forth in Section 2 above being null and
void, ab initio.
4. 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. 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
C. No Default or Event of Default shall have occurred and be
continuing.
5. STANDARD 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Seventeenth
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: VP and CFO Title: VP 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: VP and CFO Title: VP 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: Assistant VP Title: Senior VP
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FLEET CAPITAL CORPORATION PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior VP 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 VP 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 Seventeenth 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. 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.
Balance of Page Intentionally Left Blank - Signature Page Follows
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Seventeenth Amendment.
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