EXHIBIT 10.44
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT
As of May 23, 2001
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT dated as of May 23, 2001 (this
"Amendment") to the Credit Agreement dated as of May 26, 1999 (as amended by
Amendment No. 1 to the Credit Agreement dated as of July 28, 2000 and Amendment
No. 2 to the Credit Agreement dated as of January 16, 2001, and as further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") between Desa International, Inc., a Delaware corporation (the
"Borrower"), and Bank of America, N.A. (formerly NationsBank, N.A.), as Lender
(the "Lender"). Capitalized terms not otherwise defined herein shall have the
same meanings as specified therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender agree to amend the
Credit Agreement in order to extend the maturity date under the Credit Agreement
to November 26, 2003.
(2) The Lender has indicated its willingness to agree, among other
things, to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Amendments of Certain Provisions of the Credit Agreement.
The Credit Agreement is, upon the occurrence of the Effective Date (as
hereinafter defined), hereby amended by amending the definition of "Termination
Date" set forth in Section 1.01 of the Credit Agreement to replace the date "May
31, 2002" with the date "November 26, 2003".
SECTION 2. Conditions of Effectiveness of this Amendment. Section 1 of
this Amendment shall become effective as of the first date (the "Effective
Date") on which each of the following conditions precedent shall have been
satisfied:
(a) The Lender shall have received a counterpart of this
Amendment duly executed by the Borrower and acknowledged by the
Guarantor.
(b) All of the consents, approvals and authorizations of, and
notices and filings to or with, and other actions by, any governmental
or regulatory authority or any other Person necessary in connection
with any aspect of this Amendment or any of the other transactions
contemplated hereby shall have been obtained (without the imposition of
any conditions that are not reasonably acceptable to the Lender) and
shall remain in full force and effect; and no law, rule or regulation
shall be applicable in the reasonable judgment of the Lender that
restrains, prevents or imposes materially adverse conditions upon any
aspect of this Amendment or any of the other transactions contemplated
hereby.
(c) The representations and warranties contained in the Credit
Agreement and in the Guaranty shall be correct in all material respects
on and as of the Effective Date, as though made on and as of such date
(other than any such representations or warranties that, by their
terms, refer to a specific date other than the Effective Date, in which
case as of such specific date).
(d) No event shall have occurred and be continuing, that
constitutes a Default.
(e) All of the accrued fees and expenses of the Lender
(including the accrued fees and expenses of counsel for the Lender)
shall have been paid in full.
(f) The Lender shall have received on or before the Effective
Date the following, each dated such date (unless otherwise specified),
in form and substance satisfactory to the Lender:
(i) Certified copies of the resolutions of the Board
of Directors of the Borrower approving this Amendment and the
transactions contemplated hereby, and of all documents
evidencing other necessary corporate action and governmental
and third party approvals and consents, if any, with respect
to this Amendment and the transactions contemplated hereby and
thereby.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Amendment and the other documents to be delivered
hereunder.
(iii) Such other opinions, certificates, documents
and information as the Lender may reasonably request.
The effectiveness of this Amendment is further conditioned
upon the accuracy of all of the factual matters described herein. This
Amendment is subject to the provisions of Section 6.01 of the Credit
Agreement.
SECTION 3. Reference to and Effect on the LOC Documents. (a) On and
after the Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other LOC Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended and otherwise modified hereby.
(b) The Credit Agreement, the Note and each of the other LOC Documents,
except to the extent of the amendments and other modifications specifically
provided above, are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lender under any of the LOC Documents, nor constitute a
waiver of any provision of any of the LOC Documents.
SECTION 4. Costs and Expenses. The Borrower hereby agrees to pay, upon
demand, all costs and expenses of the Lender (including, without limitation, the
reasonable fees and expenses of counsel for the Lender) in connection with the
preparation, execution, delivery, administration, syndication, modification and
amendment of this Amendment and the other documents, instruments and agreements
to be delivered hereunder, all in accordance with the terms of Section 6.04 of
the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the
2
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
The Borrower
DESA INTERNATIONAL, INC.
By /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Treasurer
The Lender
BANK OF AMERICA, N.A.
By /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
3
Acknowledged by:
The Guarantor
UBS CAPITAL LLC
By /s/
-----------------------------------
Name:
Title:
By /s/
-----------------------------------
Name:
Title:
4
