Exhibit 10.19
CONFIRMATION OF ASSUMPTION, RATIFICATION
AND AMENDMENT AGREEMENT
THIS CONFIRMATION OF ASSUMPTION, RATIFICATION AND AMENDMENT AGREEMENT
(this "Agreement") is entered into as of October 18, 2001, between TECHNICAL
CONSUMER PRODUCTS, INC., a Delaware corporation (with its successors,
"TCP-Delaware"), and BANK ONE, MICHIGAN, a bank chartered under the laws of the
State of Michigan ("Bank One").
RECITALS:
A. Technical Consumer Products, Inc., an Ohio corporation ("TCP-Ohio"),
and Bank One entered into that certain Credit and Security Agreement dated as of
August 10, 2001, as amended (the "Credit Agreement").
B. TCP-Ohio created TCP-Delaware as its wholly-owned subsidiary; and
effective October 15, 2001, TCP-Ohio was merged with and into TCP-Delaware (the
"Merger"), with TCP-Delaware being the surviving corporation of the Merger.
Attached as Exhibit A to this Agreement is a copy of the Certificate of
Ownership and Merger evidencing the Merger, certified by the Secretary of State
of Delaware.
C. The Merger was consented to by Bank One; however, such consent was
conditioned upon, among other things, TCP-Delaware's execution and delivery of
this Agreement.
C. Capitalized terms used, but not defined, in this Agreement, will
have the meanings given such terms in the respective Credit Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing Recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, TCP-Delaware and Bank One hereby agree as follows:
1. RATIFICATION OF CREDIT DOCUMENTS. TCP-Delaware is the surviving
corporation of the Merger and is liable for (and by operation of law has assumed
and succeeded to) the obligations of TCP-Ohio under and pursuant to the Credit
Agreement, the Revolving Note and the other Other Agreements (collectively, the
"Credit Documents"). The Merger (a) does not in any way release, diminish,
impair, reduce, or otherwise adversely affect the Bank Debt or other obligations
and liabilities of TCP-Delaware under and pursuant to the Credit Documents, and
(b) does not in any way affect or release the Liens created by the Credit
Documents. Without limiting the generality of the foregoing, all such Bank Debt,
obligations and liabilities are, and shall continue to be, in full force and
effect as indebtedness, obligations and liabilities of TCP-Delaware; and all the
Liens created by the Credit Documents constitute valid, existing and
continuing Liens on the Collateral (which includes the assets passing to
TCP-Delaware by operation of law pursuant to the Merger) and shall remain in
full force and effect to secure payment and performance by TCP-Delaware of the
Bank Debt, obligations and liabilities under the Credit Documents. TCP-Delaware,
as the current owner and holder of all of the interests and assets formerly
owned by TCP-Ohio, does hereby adopt, ratify, and confirm each of the Credit
Documents, and all Bank Debt, obligations, liabilities, evidenced, secured or
governed thereby, and does hereby assume all of the indebtedness, obligations
and liabilities originally undertaken by TCP-Ohio thereunder. TCP-Delaware
further ratifies and confirms the UCC-1 financing statements heretofore filed by
Bank One with TCP-Delaware as "debtor" thereunder and hereby authorizes Bank One
to file such additional UCC-1 financing statements and UCC-3 amendments as Bank
One may deem necessary or useful as a result of the Merger.
2. CERTAIN CONFORMING AMENDMENTS. TCP-Delaware and Bank One hereby
agree that (i) the first sentence of the last paragraph of Article 1 of the
Credit Agreement is hereby modified to delete therefrom the word "Ohio" and to
insert the word "Delaware" in its stead, (ii) Section 6.1(A) of the Credit
Agreement is hereby modified to delete therefrom the word "Ohio" and to insert
the word "Delaware" in its stead, and (iii) the first sentence of Section 9.9 of
the Credit Agreement is amended and restated in its entirety to provide as
follows:
THIS AGREEMENT IS EXECUTED AND DELIVERED IN THE STATE OF OHIO, THE LAWS
OF WHICH SHALL GOVERN THE VALIDITY, ENFORCEMENT, AND INTERPRETATION
HEREOF AND OF THE OTHER AGREEMENTS, EXCEPT THAT THE PERFECTION AND
PRIORITY OF THE LIENS IN COLLATERAL THAT CONSTITUTES PERSONAL PROPERTY
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
3. AUTHORIZATION. TCP-Delaware represents and warrants to Bank One that
(a) the execution and delivery of this Agreement have been authorized by all
requisite corporate action on its part and will not violate its charter or
by-laws, (b) the representations and warranties in the Credit Agreement, as
modified pursuant to Section 2, above, are true and correct in all material
respects on and as of the date of this Agreement as though made on this date,
and (c) it is in full compliance with all covenants and agreements contained in
each of the Credit Documents to which it is a party.
4. SUCCESSORS AND ASSIGNS. This Agreement binds and inures to the
benefit of TCP-Delaware, Bank One and their respective successors and assigns.
5. GOVERNING LAW. This Agreement shall be construed, and its
performance enforced, under Ohio law.
6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, each of which when executed shall be deemed an original but all such
counterparts taken together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective authorized officers as of the date set out in the
Preamble.
BANK BORROWER
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BANK ONE, MICHIGAN, a bank chartered TECHNICAL CONSUMER PRODUCTS,
under the laws of the State of Michigan INC., a Delaware corporation
By:/s/Xxxxx X. Xxxxx By:/s/Xxxxxxx X. Xxxx
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Xxxxx X. Xxxxx, Vice President Xxxxxxx X. Xxxx, Vice President -
Finance and Operations and
Treasurer
WARNING -- BY SIGNING THIS PAPER
YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON
TIME A COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR
KNOWLEDGE AND THE POWERS OF A COURT
CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE
AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE
ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
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