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Exhibit 2.1
AMENDMENT AGREEMENT NO. 3
TO THE CREDIT AGREEMENT
This AMENDMENT AGREEMENT NO. 3 TO THE CREDIT AGREEMENT (the "Amendment
Agreement"), dated as of July 27, 1997 is made by and among WINDMERE
CORPORATION, a Florida corporation having its principal place of business in
Miami Lakes, Florida (the "Borrower"), NATIONSBANK, NATIONAL ASSOCIATION (as
successor by merger to NationsBank, National Association (South)), a national
banking association organized and existing under the laws of the United States,
and NATIONAL BANK OF CANADA, as Lenders (such financial institutions are
hereinafter referred to individually as a "Lender" or collectively as the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (as successor by merger to
NationsBank, National Association (South)), in its capacity as agent for the
Lenders (in such capacity, the "Agent");
W I T N E S S E T H:
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WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of October 11, 1996, as amended by Amendment
Agreement No. 1 to the Credit Agreement dated as of January 31, 1997, and by
Amendment Agreement No. 2 to the Credit Agreement dated as of May 15, 1997 (as
so amended, the "Credit Agreement"); and
WHEREAS, the Agent, the Lenders and each of the Affiliates and
Subsidiaries of the Borrower party thereto have entered into a Guaranty and
Suretyship Agreement dated as of October 11, 1996, pursuant to which such
Affiliates and Subsidiaries of the Borrower have guaranteed the Borrower's
Obligations under the Credit Agreement; and
WHEREAS, the Borrower has requested that the Agent and the Lenders
amend the Credit Agreement; and
WHEREAS, upon the terms and conditions contained herein, the Agent and
the Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date hereof by deleting
the definition of "Stated Termination Date" appearing in SECTION 1.1 and
inserting in lieu thereof the following:
"'Stated Termination Date' means August 26, 1997 or such later
date as the parties may agree pursuant to SECTION 2.13."
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2. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrower hereby represents
and warrants that the Credit Agreement has been re-examined by the Borrower and
that except as disclosed by the Borrower in writing to the Lenders as of the
date hereof except:
(a) The representations and warranties made by the Borrower in
ARTICLE VII thereof are true on and as of the date hereof except that
the financial statements referred to in SECTION 7.6 shall be those most
recently furnished to the Agent pursuant to SECTION 8.1;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the Borrower
delivered to the Agent under SECTION 8.1 thereof, other than changes in
the ordinary course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent financial
reports of the Borrower delivered to the Agent under SECTION 8.1
thereof, have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation
or loss of any major contracts; and
(d) After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrower under the Credit Agreement or the Notes,
either immediately or with the lapse of time or the giving of notice,
or both.
3. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(a) six counterparts of this Amendment Agreement duly executed
by all signatories hereto; and
(b) copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
4. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter.
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No promise, condition, representation or warranty, express or implied, not
herein set forth shall bind any party hereto, and no one of them has relied on
any such promise, condition, representation or warranty. Each of the parties
hereto acknowledges that, except as in this Amendment Agreement otherwise
expressly stated, no representations, warranties or commitments, express or
implied, have been made by any party to the other. None of the terms or
conditions of this Amendment Agreement may be changed, modified, waived or
canceled orally or otherwise, except by writing, signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any proceeding or succeeding breach thereof.
5. CONSENT OF GUARANTORS. The Guarantors have joined in the execution
of this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of Obligations of Borrower as
provided in the Guaranty.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
7. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (I) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (II) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
9. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
11. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders, the Agent
and their respective successors, assigns and legal representatives; PROVIDED,
HOWEVER, that the Borrower, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
WINDMERE CORPORATION
By:
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Name:
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Title:
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GUARANTORS:
WINDMERE-DURABLE HOLDINGS, INC.
By:
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Name:
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Title:
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WINDMERE HOLDINGS CORPORATION
By:
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Name:
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Title:
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WINDMERE HOLDINGS CORPORATION II
By:
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Name:
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Title:
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WINDMERE FAN PRODUCTS, INC.
By:
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Name:
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Title:
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LITTER MAID, INC.
By:
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Name:
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Title:
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BAY BOOKS & TAPES, INC.
By:
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Name:
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Title:
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JERDON PRODUCTS, INC.
By:
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Name:
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Title:
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CONSUMER PRODUCTS AMERICAS, INC.
By:
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Name:
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Title:
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FORTUNE PRODUCTS, INC.
By:
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Name:
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Title:
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EDI MASTERS, INC.
By:
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Name:
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Title:
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NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and Lender
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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NATIONAL BANK OF CANADA, as Lender
By:
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Name:
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Title:
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