Exhibit 10.23
EIGHTEENTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT
This EIGHTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
("AMENDMENT") is dated as of December 31, 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 H.B. Sherman
Manufacturing Company, a Missouri corporation ("H.B. SHERMAN"), 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 H.B. Sherman collectively, the "LOAN PARTIES"), HELLER 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, 1998, Fourth Amendment 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"), and Seventeenth
Amendment to Amended and Restated Credit Agreement dated as of October 4, 2001
("SEVENTEENTH AMENDMENT", which together with 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"); and
WHEREAS, the Borrower has requested and Lenders have agreed to make
certain additional modifications to the Credit Agreement (specifically, to the
Sixteenth Amendment and the Seventeenth 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. Borrower has met or exceeded all requirements under
Section 3(C) of the Sixteenth Amendment in connection with the sale of Borrower
and has requested, and Agent and Lenders have agreed, to remove the restrictions
and requirements imposed on Borrower pursuant to the Amendments with respect to
any disposition or sale of the CIM Assets, PROVIDED, however, that (i) any such
disposition or sale (other than in connection with a sale of all or
substantially all of the assets or capital stock of Borrower and any
requirements associated therewith) shall continue to be subject to the consent
of Agent and Lenders in accordance with the terms of the Loan Documents and (ii)
the Net Proceeds of any such disposition or sale of CIM Assets shall be for an
amount not less than $3,100,000. Accordingly, the provisions of the Credit
Agreement relating to the sale of the CIM Assets appearing in the Section 3(B)
of the Sixteenth Amendment and Sections 2 and 3(A) of Seventeenth Amendment are
hereby stricken and deleted in their entirety.
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. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
Balance of Page Intentionally Left Blank
Signature Page Follows
IN WITNESS WHEREOF, the parties hereto have caused this Eighteenth
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
/s/ John G. Jacob /s/ John G. Jacob
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By: John G. Jacob By: John G. Jacob
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Title: Vice President and Chief Financial Officer Title: Vice President and Chief Financial Officer
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HAWTHORNE TOOLS, INC., a Missouri corporation PINETREE TOOLS, INC., a Delaware corporation
/s/ John G. Jacob /s/ John G. Jacob
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By: John G. Jacob By: John G. Jacob
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Title: Vice President and Chief Financial Officer Title: Vice President and Chief Financial Officer
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HELLER FINANCIAL, INC., as Agent and a Lender FLEET BUSINESS CREDIT CORP., formerly known as
Sanwa Business Credit Corporation
/s/ Greg Reynolds /s/ Mark D. Newlun
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By: Greg Reynolds By: Mark D. Newlun
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Title: Assistant Vice President Title: Senior Vice President
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FLEET CAPITAL CORPORATION PNC BANK, NATIONAL ASSOCIATION
/s/ Mark D. Newlun /s/ William C. Miles
- ------------------------------------------------ -------------------------------------------------
By: Mark D. Newlun By: William C. Miles
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Title: Senior 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
/s/ Douglas W. Worden /s/ Dennis Dolan
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By: Douglas W. Worden By: Dennis Dolan
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Title: Assistant Vice President Title: Authorized Signatory
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CONSENT AND REAFFIRMATION
The undersigned hereby (i) acknowledges receipt of a copy of the
foregoing Eighteenth 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
Heller Financial, Inc. in its individual capacity ("Heller") and (if applicable
pursuant to Section 11.17 thereof) certain other "Lender(s)" under the Credit
Agreement (each, individually (including Heller), a "Seller" and collectively,
the "Sellers") and Heller 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 Eighteenth Amendment.
OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: Oaktree Capital Management, LLC
Its: General Partner
By: /s/ Kenneth Liang
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Kenneth Liang
Managing Director
By: /s/ Vincent J. Cebula
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Vincent J. Cebula
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/ Richard Masson
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Richard Masson
Authorized Signatory
By: /s/ Kenneth Liang
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Kenneth Liang
Authorized Signatory
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