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EXHIBIT 10.10
AMENDMENT NO. 1
TO CREDIT AGREEMENT
This Amendment dated as of February 28, 1997 (this "Amendment"), is
entered into by and among UnionTools, Inc., a Delaware corporation ("Borrower"),
Xxxxxx Financial, Inc., a Delaware corporation, in its capacity as Agent
("Agent"), and each of the Lenders under the Credit Agreement (as defined
below), with reference to the following facts:
RECITALS
A. Lenders are extending various secured financial accommodations to
Borrower upon the terms of that certain Credit Agreement dated as of December
27, 1996 among Borrower, Agent and Lenders (the "Credit Agreement").
B. Borrower, Agent and Lenders desire to amend the Credit Agreement
upon the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for the other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged by each party hereto, Borrower, Agent and Lenders hereby agree as
follows:
1. Defined Terms. Unless otherwise specified herein, any capitalized
terms defined in the Credit Agreement shall have the same respective meanings as
used herein.
2. Set Off. With respect to subsection 8.4 of the Credit Agreement,
any Lender may exercise its set off rights as provided therein without the prior
written consent of Agent, provided that such Lender shall give reasonably prompt
subsequent written notice thereof to both Borrower and Agent.
3. Environmental and Other Regulatory Matters. With respect to the
environmental and other regulatory matters identified in the reports prepared by
GaiaTech, Borrower shall, in a timely manner, provide such information and
obtain such reports as may be reasonably required by Agent, and otherwise comply
with the provisions of subsection 2.1 of the Credit Agreement.
4. LIBOR Loan Request. With respect to any LIBOR Loan request received
by Agent from Borrower pursuant to subsection 1.2(G) of the Credit Agreement,
Agent shall provide a copy of such request to each Lender at least two (2)
Business Days prior to the commencement of the subject Interest Period.
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5. Assignments and Participations. In the event that Xxxxxx assigns
all or a portion of its Pro Rata Share of the Revolving Loan Commitment, the
Acquisition Loan Commitment and Term Loan, or sells participation(s) therein,
pursuant to subsection 8.1 of the Credit Agreement, where the effect of such
assignment(s) or participation(s) is to reduce Xxxxxx'x Pro Rata Share (less the
aggregate amount of any percentage participation interests held therein by
another Person) to less than twenty-three percent (23%), Xxxxxx shall give
reasonably prompt subsequent notice thereof to each Lender.
6. Events of Default, Etc. In the event that Agent receives a written
notice or certificate from Borrower pursuant to subsection 4.10(L) of the Credit
Agreement, Agent shall provide a copy thereof to each Lender in a reasonably
prompt manner.
7. Amendments and Waivers. Agent shall provide a copy of any written
amendments, modifications, terminations and waivers as provided in subsection
9.2 of the Credit Agreement to each Lender in a reasonably prompt manner.
8. Rubbermaid Product. With respect to the definition of "Permitted
Encumbrances" in subsection 3.2 of the Credit Agreement, the interests of
Rubbermaid Incorporated in the product it has delivered or may hereafter deliver
to Borrower for processing, together with the products and proceeds thereof, and
increases, substitutions, replacements, additions and accessions thereto, shall
be deemed to be Permitted Encumbrances.
9. Representations and Warranties. Borrower reaffirms that the
representations and warranties made to Agent or Lenders in the Credit Agreement
and other Loan Documents are true and correct in all material respects as of the
date of this Amendment as though made as of such date and after giving effect to
this Amendment. In addition, Borrower makes the following representations and
warranties to Agent and Lenders, which shall survive the execution of this
Amendment:
a. The execution, delivery and performance of this Amendment
are within Borrower's powers, have been duly authorized by all necessary
actions, have received all necessary governmental approvals, if any, and do not
contravene any law or any contractual restrictions binding on Borrower.
b. This Amendment is the legal, valid and binding obligation
of Borrower enforceable against Borrower in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium and other
similar laws affecting the rights of creditors generally.
c. No event has occurred and is continuing, or would result
from the execution, delivery and/or performance of this Amendment, which
constitutes a Default or Event of Default under the Credit Agreement or any
other of the Loan Documents, or would constitute
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such a Default or Event of Default but for the requirement that notice be given
or time elapse or both, after giving effect to this Amendment.
10. Continuing Effect of Loan Documents. To the extent of any
inconsistencies between the terms of this Amendment and the Credit Agreement,
this Amendment shall govern. In all other respects, the Credit Agreement and
other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
11. References. Upon the effectiveness of this Amendment, each
reference in any Loan Document to "the Agreement", "hereunder," "herein,"
"hereof," or of like import referring to the Credit Agreement shall mean and be
a reference to the Credit Agreement as amended hereby.
12. Governing Laws. This Amendment, upon becoming effective, shall be
deemed to be a contract made under, governed by, and subject to, and shall be
construed in accordance with, the internal laws of the State of Illinois.
13. Effectiveness. This Amendment shall become effective upon its due
execution and delivery by the parties hereto and the due execution and delivery
of the following Consent of Guarantor to Agent.
14. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Amendment as of the date first set forth above, to
become effective in the manner set forth above.
UNIONTOOLS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name:
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Title:
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XXXXXX FINANCIAL, INC., as Agent
By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
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Title: Vice President
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XXXXXX FINANCIAL, INC., as a Lender
By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
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Title: Vice President
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SANWA BUSINESS CREDIT CORPORATION,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Vice President
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FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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PNC BANK, OHIO, NATIONAL
ASSOCIATION, as a Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: AVP
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THE FIRST NATIONAL BANK OF BOSTON, as
a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Division Executive
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STAR BANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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CONSENT OF GUARANTOR
The undersigned, as guarantor of the Obligations of Borrower to Agent
and Lenders pursuant to that certain Guaranty dated as of December 27, 1996 (the
"Guaranty") hereby acknowledges receipt of a copy of the foregoing Amendment No.
1 and acknowledges, consents and agrees that (i) the Guaranty remains in full
force and effect and is hereby reaffirmed, and (ii) the execution and delivery
of the foregoing Amendment No. 1 and any and all documents executed in
connection therewith shall not alter, amend, reduce or modify its obligations
and liability under the Guaranty.
Dated: As of February 28, 1997 VISION HARDWARE GROUP, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
____________________________________
Name:___________________________________
Title:__________________________________
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