EXHIBIT 10.1
AMENDMENT NO. 7 TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 7 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment Agreement") is made and entered into as of this 24th day of August,
2001, by and between APPLICA INCORPORATED, f/k/a Windmere-Durable Holdings,
Inc., a Florida corporation (the "Borrower"), BANK OF AMERICA, N.A., as Agent
(the "Agent") and as a lender, and the other lenders party hereto (together with
the Agent, the "Lenders"). Unless the context requires otherwise, all
capitalized terms used herein without definition shall have the respective
meanings assigned thereto in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Lenders and the Borrower have entered into that certain
Amended and Restated Credit Agreement dated as of August 7, 1998 (as heretofore
and hereby amended, and as further amended, supplemented or restated from time
to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement and the Loan Documents; and
WHEREAS, the Lenders are willing to agree to the amendments to the
Credit Agreement as more fully set forth herein; and
NOW, THEREFORE, in consideration of the premises, the terms, covenants
and conditions hereinafter appearing, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound, the parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT.
(a) The definition of "Hedging Obligation" in Section 1.2 of the Credit
Agreement is amended by deleting the following new language at the end thereof:
For purposes of any computation hereunder, each Hedging Obligation
shall be valued at the Hedge Value thereof.
(b) The definition of "Indebtedness" in Section 1.2 of the Credit
Agreement is amended by inserting immediately prior to the words "all Hedging
Obligations" in the tenth line thereof the words "the Hedge Value of".
(c) Section 10.9 of the Credit Agreement is hereby deleted and the
following new Section 10.9 is inserted in replacement thereof.
10.9 HEDGING OBLIGATIONS. Incur or permit to exist any Hedging
Obligations or enter into any agreements, arrangements, devices or
instruments relating to Hedging Obligations, except for Hedging
Obligations with an aggregate notional amount of less than $400,000,000
entered into in the ordinary course of business which are not for
speculative or investment purposes.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) By its execution and delivery hereof, the Borrower certifies that:
(i) all of the representations and warranties made by the
Borrower in the Credit Agreement and in each of the other Loan
Documents are true and correct as of the date hereof as if
each of said representations and warranties were set out in full herein
and made as of the date of execution and delivery hereof, except that
all representations and warranties that refer to the financial
statements of the Borrower shall be deemed to refer to the financial
statements of the Borrower most recently delivered in accordance with
SECTION 9.1 of the Credit Agreement; and
(ii) no event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, will
constitute a Default or an Event of Default on the part of the Borrower
under the Credit Agreement or any other Loan Document either
immediately or with the lapse of time or the giving of notice, or both.
(b) The Borrower further covenants and agrees that the representations
and warranties contained in the Credit Agreement and the other Loan Documents,
as hereby reaffirmed, and the representations and warranties made herein shall
survive the execution and delivery of this Amendment Agreement.
3. EXPENSES. The Borrower agrees to reimburse the Agent for all costs
and out-of-pocket expenses, including, without limitation, attorneys' fees and
disbursements, incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment Agreement.
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. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and none of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as set forth in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any party. 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 preceding or succeeding
breach thereof.
5. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
6. GOVERNING LAW. This Amendment Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the state of New
York.
7. 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.
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
[Signature pages follow.]
2
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders signatory
hereto have caused this Amendment Agreement to be duly executed under seal by
their duly authorized officers, all as of the day and year first above written.
BORROWER:
Applica Incorporated, Formerly Known as
Windmere-durable Holdings, Inc., as
Borrower
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
AGENT:
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
NEW ALLIANCE GLOBAL
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
3
ALLIANCE CAPITAL MANAGEMENT
L.P., as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C.
By: ALLIANCE CAPITAL
MANAGEMENT CORPORATION,
General Partner of Alliance
Capital Management L.P.
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
'
ARES III CLO LTD.
By: ARES CLO Management, LLC
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
ARES IV CLO LTD.
By: ARES CLO Management IV, LP
Its: Investment Manager
By: ARES CLO XX XX, LLC
Its: Managing Member
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
4
BALANCED HIGH-YIELD FUND II LTD
By: BHF (USA) Capital Corporation,
acting through its New York
Branch, as attorney-in-fact
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
BHF (USA) CAPITAL CORPORATION
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
BANKATLANTIC
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
BANK LEUMI LE-ISRAEL B.M.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
5
BARCLAYS BANK PLC
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
CITIZENS BANK OF MASSACHUSETTS
(as successor to US TRUST)
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
DRESDNER BANK LATEINAMERIKA AG,
Miami Agency
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
ERSTE BANK NEW YORK
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
FLEET NATIONAL BANK (successor by
merger to Fleet Bank, N.A.)
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FLEET BUSINESS CREDIT CORPORATION
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
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HARCH CLO I, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
INDOSUEZ CAPITAL FUNDING III,
LIMITED
By: INDOSUEZ CAPITAL,
as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
INTERNATIONAL BANK OF MIAMI
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Tosmihiro Hayashi
-------------------------------------
Name: Tosmihiro Hayashi
Title: Senior Vice President
MONUMENT CAPITAL
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
NATIONAL BANK OF CANADA
By: /s/ Xxxx Page
-------------------------------------
Name: Xxxx Page
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Assistant Vice President
7
NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCOTIABANC INC.
By: /s/ X. X. Xxxxx
-------------------------------------
Name: X. X. Xxxxx
Title: Managing Director
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
BAVARIA TRR
By:
-------------------------------------
Name:
------------------------------------
Title:
----------------------------------
8
THE UNDERSIGNED GUARANTORS HEREBY ACKNOWLEDGE AND CONSENT TO THE CONSENT AND
AMENDMENT NO. 7 TO THE AMENDED AND RESTATED CREDIT AGREEMENT AND REAFFIRM THEIR
OBLIGATIONS UNDER THE FACILITY GUARANTY THIS 24TH DAY OF AUGUST, 2001.
APPLICA CONSUMER PRODUCTS, INC. f/k/a
Windmere Corporation
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
WINDMERE HOLDINGS CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
BAY BOOKS & TAPES, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
HP DELAWARE, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
HP AMERICAS, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
HPG LLC
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
9
HP INTELLECTUAL CORP
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
WD DELAWARE, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
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