FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is dated as of June 10, 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 party hereto.
R E C I T A L S
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 and Fourth
Amendment to Amended and Restated Credit Agreement dated as of February 26,
1999 (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 Requisite
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, Requisite
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 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
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
April 30, 1999 2.40:1
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)."
2.2 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
April 30, 1999 5.00:1
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)."
2.3 CLOSING AND CONSOLIDATION EXPENSES. The following
non-recurring expenses in the sum of $805,000.00 shall not be deducted in
calculating EBIDAT for the purposes of determining compliance with the
financial covenants set forth in subsections 4.5 and 4.6 of the Credit
Agreement: expenses of $166,000.00 incurred during the quarter ended October
31, 1998 in connection with the discontinued operations of XxXxxxx-Xxxxxxxx
Company; expenses of $355,000.00 incurred during the quarter ended January
29, 1999 in connection with the consolidation of the operations of
Irrigation; and expenses of $284,000.00 incurred during the quarter ended
April 30, 1999 in connection with the consolidation of Borrower's operations
at Columbus, Ohio into Frankfurt, New York.
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3. 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:
3.1 DELIVERY OF DOCUMENTS. This Amendment shall have been
delivered to Agent, duly authorized and executed by the Loan Parties and
Requisite Lenders, together with such other instruments, documents,
certificates, consents, waivers, opinions and financing statements as Agent
may reasonable request.
3.2 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.
3.3 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.
4. 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.
5. 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.
6. 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.
7. 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,
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negotiation and execution of this Amendment, including, without limitation,
the fees and expenses of counsel for Agent.
8. 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.
9. 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 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.
10. 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.
11. 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/ X.X. Xxxxxxx
-------------------------------------------
Name: X.X. Xxxxxxx
------------------------------------
Title: Senior Vice President, Finance
and Administration
------------------------------------
ACORN PRODUCTS, INC., a Delaware corporation
By: /s/ X.X. Xxxxxxx
-------------------------------------------
Name: X.X. Xxxxxxx
------------------------------------
Title: Senior Vice President, Finance
and Administration
------------------------------------
X.X. XXXXXXX MANUFACTURING COMPANY, a Missouri
corporation
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By: /s/ X.X. Xxxxxxx
-------------------------------------------
Name: X.X. Xxxxxxx
------------------------------------
Title: President
------------------------------------
UNIONTOOLS IRRIGATION, INC., a Delaware
corporation
By: /s/ X.X. Xxxxxxx
-------------------------------------------
Name: X.X. 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: Asst Vice President
------------------------------------
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
------------------------------------
BANKBOSTON, N.A., (formerly known as The First
National Bank of Boston)
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By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
FIRSTAR BANK, N.A.
By:
-------------------------------------------
Name:
------------------------------------
Title:
------------------------------------
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx X. Xxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
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