FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is dated as of February 26, 1999 and entered into by and among
UNIONTOOLS, INC., a Delaware corporation ("BORROWER"), ACORN PRODUCTS, INC., a
Delaware corporation ("HOLDINGS"), X.X. XXXXXXX MANUFACTURING COMPANY, a
Missouri corporation ("X.X. XXXXXXX"), UNIONTOOLS IRRIGATION, INC., a Delaware
corporation formerly known as UnionTools Watering Products, Inc. ("IRRIGATION"
and together with Borrower, Holdings and X.X. Xxxxxxx collectively, the "LOAN
PARTIES"), XXXXXX FINANCIAL, INC., in its individual capacity as a Lender and as
Agent for all Lenders ("AGENT"), and the other Lenders.
RECITALS
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 and Third Amendment to Amended and
Restated Credit Agreement dated as of October 29, 1998 (as the same may be
further amended, restated, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), pursuant to which, among other things, Lenders have
agreed, subject to the terms and conditions set forth in the Credit Agreement,
to make loans and financial accommodations to Borrower; and
WHEREAS, the Loan Parties have requested that the Agent and Lenders agree
to modify the Credit Agreement pursuant to the terms and conditions of this
Amendment; and
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Loan Parties, Lenders and Agent
agree as follows:
1. DEFINED TERMS. All capitalized terms used herein but not elsewhere
defined shall have the respective meanings ascribed to such terms in the Credit
Agreement, as amended by this Amendment.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is amended as
follows:
2.1 REVOLVING LOAN COMMITMENT. With respect to subsection
1.1.(A)(1) of the Credit Agreement, the Revolving Loan Commitment for all
Lenders in the aggregate shall be $40,000,000 during the period from January 1
through June 30, inclusive, of each year, and $30,000,000 during the period from
July 1 through December 31, inclusive, of each year.
2.2 ACQUISITIONS BY HOLDINGS. With respect to subsection 1.1(C) of
the Credit Agreement, and subject to the terms and conditions thereof, the
proceeds of an Acquisition Loan may be used to fund the acquisition by Holdings
or its wholly-owned Subsidiaries of all of the issued and outstanding capital
stock of another Person, or the acquisition
by Holdings' wholly-owned Subsidiaries of all or substantially all of the assets
of another Person or of a division of another Person. In the event of any such
acquisition, each wholly-owned Subsidiary of Holdings that either owns or has
rights in any assets or properties or maintains any business operations (other
than Borrower) shall become a co-borrower under the Credit Agreement (and for
the purposes of the Credit Agreement shall thereupon be included in the
definition of "Borrower"), whereby such Subsidiary shall become jointly and
severally liable with Borrower in respect of the Obligations, and shall,
together with the other Loan Parties, duly execute and deliver such documents as
are reasonably requested by Agent to reflect such co-borrowing or guaranty
arrangement. All present and future Subsidiaries of Holdings that either own or
have rights in any assets or properties or maintain any business operations
shall be required to take the actions and duly execute and deliver the documents
as set forth in subsection 2.5(B) of the Credit Agreement, whether or not they
have received a request from Agent or Requisite Lenders to take such actions or
deliver such documents. The references to Borrower in subsections 1.1(C)(3),
(5) and (8) of the Credit Agreement shall mean and be references to Holdings and
its Subsidiaries.
2.3 REBORROWINGS OF ACQUISITION LOANS. With respect to subsection
1.1(C) of the Credit Agreement, the amounts of the Acquisition Loans borrowed
under that subsection and repaid from Excess Cash Flow pursuant to subsection
1.5(B) thereof may be reborrowed subject to the other terms and conditions set
forth in subsection 1.1(C).
2.4 PRO FORMA TOTAL INDEBTEDNESS TO OPERATING CASH FLOW RATIO.
Subsection 1.1(C)(7) of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
"(7) Based upon the financial performance of Holdings, its
Subsidiaries and the subject Target during the twelve (12) months
immediately preceding the acquisition of the subject Target, the Pro
Forma Total Indebtedness to Operating Cash Flow Ratio of Holdings, its
Subsidiaries and the subject Target on a pro forma combined basis
would not be more than 4.00:1 as of the last day of any month in the
first, second or third Loan Year. For the purposes of this subsection
1.1(C)(7), "Pro Forma Total Indebtedness to Operating Cash Flow Ratio"
means the ratio of (i) the sum of (a) the average daily principal
balance of the Revolving Loans during the twelve (12) month period
ending on the last day of the subject month, plus (b) the aggregate
outstanding principal balance of the Acquisition Loans, the Lender
Letters of Credit and Risk Participation Agreements as of the last day
of such month, plus (c) all other Indebtedness for borrowed money of
Holdings, its Subsidiaries and the subject Target on a consolidated
basis as of the last day of such month, to (ii) Operating Cash Flow of
Holdings, its Subsidiaries and the subject Target on a consolidated
basis (calculated as illustrated on Exhibit 4.10(C) with EBIDAT
calculated in accordance with subsection 1.1(C)(4)) for the twelve
(12) month period ending on the last day of such month."
2.5 INTEREST RATE MARGINS. The pricing table in subsection 1.2(A)
of the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
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PRICING TABLE
--------------------------------------------------------------------------------
ADJUSTED TOTAL INDEBTEDNESS TO
OPERATING CASH FLOW RATIO BASE RATE MARGIN LIBOR MARGIN
--------------------------------------------------------------------------------
Greater than 4.50:1 1.00% 3.00%
--------------------------------------------------------------------------------
Equal to or greater than 3.75:1 but equal 0.75% 2.75%
to or less than 4.50:1
--------------------------------------------------------------------------------
Equal to or greater than 3.00:1 but less 0.50% 2.50%
than 3.75:1
--------------------------------------------------------------------------------
Less than 3.00:1 0.25% 2.25%
--------------------------------------------------------------------------------
With respect to clause (i)(c) of the definition of "Adjusted Total Indebtedness
to Operating Cash Flow Ratio", Adjusted Total Indebtedness shall include all
other Indebtedness for borrowed money of Holdings and its Subsidiaries on a
consolidated basis.
2.6 FURTHER ASSURANCES. With respect to subsection 2.5(B) of the
Credit Agreement, all present and future Subsidiaries of Holdings that either
own or have rights in any assets or properties or maintain any business
operations shall be required to take the actions and duly execute and deliver
the documents as set forth therein, whether or not they have received a request
from Agent or Requisite Lenders to take such actions or deliver such documents.
2.7 INVESTMENTS. With respect to subsection 3.3 of the Credit
Agreement, Borrower and its Subsidiaries may make loans and advances to Holdings
to fund a Permitted Acquisition, or for any corporate expenditures made by
Holdings or by any Borrower or a Subsidiary thereof in the ordinary course of
business (it being understood and agreed that such corporate expenditures shall
specifically exclude (i) subject to Paragraph 2.9 of this Amendment, any
Restricted Junior Payment by Holdings, (ii) any Investment by Holdings in a
Person that is not a Borrower or a Subsidiary thereof, except for a Permitted
Acquisition, and (iii) any expenditures related to a Subsidiary of Holdings
other than a Borrower or a Subsidiary thereof, and it being further understood
and agreed that the proceeds of any such loans and advances to Holdings may be
used only for such permitted corporate expenditures); provided, however, that no
Default or Event of Default would exist after giving effect to such loans and
advances; and provided further that the proceeds of such loans and advances, to
the extent not used by Holdings or by a Borrower or a Subsidiary thereof, shall
be pledged by Holdings to Agent in a manner reasonably satisfactory to Agent.
"Permitted Acquisitions" shall mean acquisitions by Holdings or any of its
Subsidiaries of the stock or assets of any Person in a negotiated transaction;
provided that such acquisition either is funded by an Acquisition Loan made
pursuant to subsection 1.1(C) or is consented to in writing by the Requisite
Lenders.
2.8 RESTRICTED JUNIOR PAYMENTS. Subsection 3.5(C) of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
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"(C) Any Borrower may make payments and distributions in
cash to Holdings to fund a Permitted Acquisition, or for any
corporate expenditures made by Holdings or by any Borrower
or a Subsidiary thereof in the ordinary course of business
(it being understood and agreed that such corporate
expenditures shall specifically exclude (i) subject to
Paragraph 2.9 of a certain Fourth Amendment to the
Agreement, any Restricted Junior Payment by Holdings, (ii)
any Investment by Holdings in a Person that is not a
Borrower or a Subsidiary thereof, except for a Permitted
Acquisition, and (iii) any expenditures related to a
Subsidiary of Holdings other than a Borrower or a Subsidiary
thereof, and it being further understood and agreed that any
such payments and distributions to Holdings may be used only
for such permitted corporate expenditures); provided,
however, that such payments and distributions, to the extent
not used by Holdings or by a Borrower or a Subsidiary
thereof, shall be pledged by Holdings to Agent in a manner
reasonably satisfactory to Agent; and"
2.9 STOCK REPURCHASE. With respect to subsection 3.5 of the Credit
Agreement, and that certain Consent by Agent and Lenders dated as of March 3,
1998, Borrower may make Restricted Junior Payments to Holdings for the
repurchase of Holdings' Common Stock issued pursuant to the IPO, provided that
(i) the aggregate sum of such Restricted Junior Payments shall not exceed
$2,500,000, (ii) the Maximum Revolving Loan Balance after giving effect to any
such Restricted Junior Payment must exceed the Revolving Loans then outstanding
by not less than $4,000,000, (iii) any such Restricted Junior Payment shall not
be made from the proceeds of any Loans other than the Revolving Loans, and (iv)
no event shall have occurred and be continuing or would result from any such
Restricted Junior Payment that would constitute an Event of Default or a
Default.
2.10 RESTRICTION ON FUNDAMENTAL CHANGES. With respect to subsection
3.6 of the Credit Agreement, Borrower will not permit Holdings to: (a) enter
into any transaction of merger or consolidation; (b) liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); or (c) acquire,
directly or indirectly, by purchase or otherwise, either the stock, partnership
interest or other equity securities of any other Person or all or any
substantial part of the business or assets of any other Person, except Permitted
Acquisitions by Holdings and its Subsidiaries.
2.11 SALE/LEASEBACK TRANSACTIONS. With respect to subsection 3.7 of
the Credit Agreement, Borrower and its Subsidiaries may sell assets and
concurrently lease those assets back from the purchaser, subject to the
conditions set forth in clauses (b)(ii) through (vi), inclusive, of subsection
3.7 of the Credit Agreement, and provided that the aggregate market value of
assets sold in such sale/leaseback transactions shall not exceed $500,000 during
any of their fiscal years.
2.12 CAPITAL EXPENDITURE LIMITS. With respect to subsection 4.1 of
the Credit
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Agreement, the Capex Limit shall be $4,000,000 for each fiscal year ending on or
after July 31, 1999 for Holdings and its Subsidiaries on a consolidated basis.
2.13 EBIDAT. Subsection 4.3 of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
"4.3 EBIDAT. Borrower shall not permit EBIDAT of Holdings
and its Subsidiaries on a consolidated basis for the twelve
(12) month period ending on the last day of any fiscal
quarter ending on the dates or during the periods set forth
below to be less than the amount set forth below for such
date or period.
Date/Period Amount
----------- ------
January 31, 1999 $7,500,000
April 30, 1999 $9,000,000
July 31, 1999 $9,500,000
On and after
October 31, 1999 $13,100,000
"EBIDAT" will be calculated as illustrated on Exhibit 4.10(C)."
2.14 FIXED CHARGE COVERAGE. Subsection 4.4 of the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"4.4 FIXED CHARGE COVERAGE. Borrower shall not permit Fixed Charge
Coverage of Holdings and its Subsidiaries on a consolidated basis for
the twelve (12) month period ending on the last day of any fiscal
quarter ending on the dates or during the periods set forth below to
be less than the amount set forth below for such date or period.
Date/Period Amount
----------- ------
On and after
January 31, 1999 1.20:1
"Fixed Charge Coverage" will be calculated as illustrated on Exhibit
4.10(C)."
2.15 TOTAL INTEREST COVERAGE. Subsection 4.5 of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
"4.5 TOTAL INTEREST COVERAGE. Borrower shall not permit Total
Interest Coverage of Holdings and its Subsidiaries on a consolidated
basis for the twelve (12) month period ending on the last day of any
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fiscal quarter ending on the dates or during the periods set forth below to
be less than the amount set forth below for such date or period.
Date/Period Amount
----------- ------
January 31, 1999 1.50:1
April 30, 1999 2.50:1
July 31, 1999 2.50:1
October 31, 1999 2.75:1
On and after
January 31, 2000 3.00:1
"Total Interest Coverage" will be calculated as illustrated in Exhibit
4.10(C)."
2.16 TOTAL INDEBTEDNESS TO OPERATING CASH FLOW RATIO. Subsection 4.6
of the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"4.6 TOTAL INDEBTEDNESS TO OPERATING CASH FLOW RATIO.
Borrower shall not permit the ratio of Total Indebtedness to
Operating Cash Flow of Holdings and its Subsidiaries on a
consolidated basis for the twelve (12) month period ending
on the last day of any fiscal quarter ending on the dates or
during the periods set forth below to be greater than the
amount set forth below for such date or period.
Date/Period Amount
----------- ------
January 31, 1999 7.00:1
April 30, 1999 4.65:1
July 31, 1999 4.50:1
On and after
October 31, 1999 3.00:1
"Total Indebtedness" and "Operating Cash Flow" will be
calculated as illustrated on Exhibit 4.10(C)."
2.17 DUE DILIGENCE EXPENSES. The expenses in the sum of $1,200,000.00
incurred in connection with the due diligence on the potential acquisitions
disclosed to the Agent prior to the date hereof shall not be deducted in
calculating EBIDAT for the purposes of determining (i) satisfaction of the
condition to the Acquisition Loans set forth in subsection 1.1(C)(7) of the
Credit Agreement, and (ii) compliance with the financial covenants set forth in
subsections 4.3, 4.4, 4.5 and 4.6 thereof.
2.18 QUARTERLY FINANCIALS. The financial statements and schedules as
required
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in subsection 4.10(A) of the Credit Agreement for any fiscal quarter shall be
delivered within forty-five (45) days after the end of such fiscal quarter.
2.19 YEAR-END FINANCIALS. The financial statements, schedules and
reports as required in subsection 4.10(B) of the Credit Agreement for any fiscal
year shall be delivered within ninety (90) days after the end of such fiscal
year.
2.20 COMPLIANCE CERTIFICATE. Exhibit 4.10(C) to the Credit Agreement
shall be deleted in its entirety and replaced with Exhibit 4.10(C) attached
hereto and incorporated herein by reference.
2.21 YEAR 2000. A new subsection 5.10 is hereby added to the Credit
Agreement as follows:
"5.10 YEAR 2000. Holdings and its Subsidiaries have made an
assessment of the microchip and computer-based systems and
the software used in their business and based upon such
assessment believes that they will be "Year 2000 Compliant"
by January 1, 2000, except where the failure to be Year 2000
Compliant would not have a Material Adverse Effect. For
purposes of this paragraph, "Year 2000 Compliant" means that
all software, embedded microchips and other processing
capabilities utilized by, and material to the business
operations or financial condition of, Holdings and its
Subsidiaries are able to interpret, store, transmit, receive
and manipulate data on and involving all calendar dates
correctly and without causing any abnormal ending scenarios
in relation to dates in and after the Year 2000. From time
to time, at the request of Agent or any Lender, Holdings and
its Subsidiaries shall provide to Lenders such updated
information as is requested regarding the status of their
efforts to become Year 2000 Compliant."
3. ACCOMMODATION FEE. Upon the effectiveness of this Amendment, Borrower
shall pay an accommodation fee in the amount of $100,000 to Agent for the
benefit of all Lenders (based upon their respective Pro Rata Shares).
4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment
shall be subject to the satisfaction of the following conditions in a manner,
form and substance satisfactory to Agent:
4.1 DELIVERY OF DOCUMENTS. This Amendment shall have been delivered
to Agent, duly authorized and executed by the parties hereto, together with
replacement Notes in favor of the respective Lenders for their Pro Rata Shares
of the increased Revolving Loan Commitment, and such other instruments,
documents, certificates, consents, waivers, opinions and financing statements as
Agent may reasonable request.
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4.2 MATERIAL ADVERSE CHANGE. No event shall have occurred since the
Closing Date which has had or reasonably could be expected to have a Material
Adverse Effect.
4.3 PERFORMANCE; NO DEFAULT. Each Loan Party shall have performed
and complied with all agreements and conditions contained in the Loan Documents
to be performed by or complied with by such Loan Party prior to the date hereof,
and no Event of Default shall exist.
5. REPRESENTATIONS AND WARRANTIES. Each Loan Party hereby confirms to
Agent and the Lenders that the representations and warranties set forth in
Section 5 of the Credit Agreement are true and correct in all material respects
as of the date hereof, and shall be deemed to be remade as of the date hereof.
6. NO FURTHER AMENDMENTS; RATIFICATION OF LIABILITY. 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:
(i) as of the date of the Amendment, such Loan Party, to its knowledge, has no
defenses, claims or set-offs to the enforcement by Agent and Lenders of such
liabilities, obligations and agreements; and (ii) 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.
7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same instrument.
8. 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.
9. GOVERNING LAW. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict of
laws principles.
10. SEVERABILITY. In the event that any provision of this Amendment is
deemed to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by
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any court or governmental authority, this Amendment shall be construed as not
containing such provision and the invalidity of such provision shall not affect
the validity of any other provisions hereof, and any and all other provisions
hereof which otherwise are lawful and valid shall remain in full force and
effect.
11. HEADINGS AND RECITALS. The paragraph headings used in this Amendment
are for convenience of reference only and in no way define, describe or limit
the scope or intent of this Amendment. The foregoing recitals are hereby
incorporated herein by this reference thereto.
12. NO STRICT CONSTRUCTION. The language used in this Amendment shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party
hereto.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by each
of the parties hereto on the date first set forth above.
UNIONTOOLS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President and
Chief Financial Officer
--------------------------------------
ACORN PRODUCTS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President and
Chief Financial Officer
--------------------------------------
X.X. XXXXXXX MANUFACTURING COMPANY, a Missouri
corporation
By: /s/ J. Xxxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxxx Xxxxxxx
--------------------------------------
Title: President
--------------------------------------
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UNIONTOOLS IRRIGATION, INC., a Delaware
corporation
By: /s/ J. Xxxxxxxx Xxxxxxx
--------------------------------------
Name: J. Xxxxxxxx Xxxxxxx
--------------------------------------
Title: President
--------------------------------------
XXXXXX FINANCIAL, INC., a Delaware corporation, in
its individual capacity as a Lender and as Agent
for all Lenders
By: /s/ Xxxxxxx Vokevich
--------------------------------------
Name: Xxxxxxx Vokevich
--------------------------------------
Title: A.V.P.
--------------------------------------
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Van Steenhuysr
--------------------------------------
Name: Xxxxxxx X. Van Steenhuysr
--------------------------------------
Title: Senior Vice President
--------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Nielck
--------------------------------------
Name: Xxxx X. Nielck
--------------------------------------
Title: Senior Vice President
--------------------------------------
BANKBOSTON, N.A., (formerly known as The First
National Bank of Boston)
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
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FIRSTAR BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx X. Van Steenhuysr
--------------------------------------
Name: Xxxxxxx X. Van Steenhuysr
--------------------------------------
Title: Senior Vice President
--------------------------------------
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