AMENDMENT NO. 5 TO CREDIT AGREEMENT
AMENDMENT NO. 5, THIRD WAIVER AND AGREEMENT (this "AMENDMENT"),
dated as of April 15, 1999, to and under the Credit Agreement, dated as of
March 30, 1998 (as amended by Amendment No. 1 dated as of May 8, 1998,
Amendment No. 2 dated as of June 30, 1998 and Amendment No. 3 dated as of
October 19, 1998 and Amendment No. 4 dated as of April 10, 1999, as so
amended, the "CREDIT AGREEMENT"), among SUNBEAM CORPORATION (the "PARENT"),
the SUBSIDIARY BORROWERS referred to therein, the LENDERS party thereto,
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Syndication Agent, BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation Agent, and FIRST
UNION NATIONAL BANK, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Parent, the Subsidiary Borrowers, the Lenders and the
Agents are parties to the Credit Agreement;
WHEREAS, the Parent has requested that the Administrative Agent and
the Lenders agree to continue to waive, until April 10, 2000, certain
provisions of the Credit Agreement and, in connection therewith, to amend the
Credit Agreement, all as more fully set forth below;
WHEREAS, the Administrative Agent and the Lenders are willing to agree
to such requested waivers and amendments, but only upon the terms and
conditions of this Amendment; and
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit
Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other
similar reference contained in the Credit Agreement shall, after this
Amendment becomes effective, refer to the Credit Agreement as amended hereby.
Except as herein specifically amended, all terms and provisions of the
Credit Agreement shall remain in full force and effect and shall be performed
by the parties hereto according to its terms and provisions. This Amendment
is limited as specified and shall not constitute a modification, amendment or
waiver of any other provision of the Credit Agreement or any other Loan
Document or indicate the Lenders' willingness to consent to any such other
modification, amendment or waiver.
SECTION 2. DELETION AND ADDITION OF CERTAIN DEFINED TERMS. Section
1.01 of the Credit Agreement is amended:
(a) to delete in their entirety the defined terms "EXISTING
RECEIVABLES PROGRAM", "MARGIN STOCK", "OPERATING UNIT" and "PERMITTED
ACQUISITION" in such Section; and
(b) to add in their appropriate alphabetical order in such
Section the following defined terms:
"AGGREGATE EXPOSURE" means, at any time, the amount equal to the
sum of (i) the Revolving Credit Exposure and unused Revolving
Commitments, (ii) the outstanding principal amount of Tranche A Term
Loans and unused Tranche A Term Commitments and (iii) the outstanding
principal amount of Tranche B Term Loans, in each case of all of the
Lenders at such time.
"BLOCKED ACCOUNT AGREEMENT" means one or more blocked account
agreements to be entered into by the Parent, The Chase Manhattan Bank and
the Administrative Agent, on terms reasonably satisfactory to the Parent,
the Administrative Agent and the Lenders.
"BUSINESS PLAN" means (a) in respect of the 1999 fiscal year of
the Parent, the business plan for such fiscal year delivered to the
Lenders on March 18, 1999 (February 8, 1999 in the case of operating
forecasts) and (b) in respect of the 2000 fiscal year of the Parent, the
business plan for such fiscal year delivered to the Lenders pursuant to
Section 5.02(C).
"CAPITAL INVESTMENT": has the meaning set forth in the Existing
Receivables Program Purchase Agreement.
"XXXXXXX COLLATERAL DOCUMENTS" means the guarantees, pledge
agreements, security agreements, mortgages and any other instruments or
agreements executed pursuant to any of the foregoing, in each case as
reasonably requested by the Administrative Agent, and in form and
substance substantially the same as the existing Loan Documents executed
by the Obligors (or otherwise in form and substance satisfactory to the
Administrative Agent), to be executed by each of Xxxxxxx and its domestic
subsidiaries (other than Kansas Acquisition Corp. and Xxxxxxx
International Holdings, LLC) to guarantee (effective upon the occurrence
of the Xxxxxxx Merger Effective Date) the obligations of each other
Obligor under this Agreement, the Xxxxxxx Collateral Documents and the
other Loan Documents and to provide (effective upon the occurrence of the
Xxxxxxx Merger Effective Date) Liens upon substantially all of the assets
of Xxxxxxx and its domestic subsidiaries (subject to customary
limitations with respect to Kansas Acquisition Corp. and Xxxxxxx
International Holdings, LLC) to secure their respective obligations under
this Agreement, the Xxxxxxx Collateral Documents and the other Loan
Documents.
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"XXXXXXX CONDITIONS" means (i) the execution and delivery on or
before May 25, 1999 of the Xxxxxxx Collateral Documents and (ii) the
filing with the SEC of an amended S-4 Registration Statement (reflecting
the comments received by the Parent in a letter from the SEC dated July
8, 1998) with respect to the registration of the shares of common stock
of the Parent to be issued in connection with consummation of the merger
that will result in Xxxxxxx becoming a Wholly Owned Subsidiary.
"XXXXXXX INTERCOMPANY COLLATERAL DOCUMENTS" means, collectively,
(i) the Intercompany Pledge and Security Agreement dated as of April 15,
1999, between Xxxxxxx and the Parent, (ii) the Intercompany Security
Agreement dated as of April 15, 1999, between Xxxxxxx and the Parent and
(iii) any other instruments or agreements executed to secure the Xxxxxxx
Intercompany Note, as each of the foregoing may be amended, supplemented
or otherwise modified from time to time.
"XXXXXXX INTERCOMPANY NOTE" means the Amended and Restated
Subordinated Intercompany Note, dated April 6, 1998, made by Xxxxxxx in
favor of the Parent, as amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"XXXXXXX MERGER EFFECTIVE DATE" means the first date on which both
of the following conditions have been satisfied: (i) a properly executed
certificate of merger has been filed with the Secretary of State of
Delaware evidencing the merger of Camper Acquisition Corp. with and into
Xxxxxxx and resulting in Xxxxxxx becoming a Wholly Owned Subsidiary and
(ii) the Administrative Agent has received evidence reasonably
satisfactory to it (including such legal opinions, certificates,
evidences of corporate action, subordination agreements or other
documents as the Administrative Agent may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent) that
the Liens created by the Xxxxxxx Collateral Documents constitute valid
and perfected Liens, subject only to any Permitted Liens, on the
collateral granted thereby.
"XXXXXXX REVOLVING COMMITMENT RESERVE" means the $52,500,000
reserve to be established under the Revolving Commitments on August 31,
1999 if the Xxxxxxx Merger Effective Date has not occurred on or before
such date, which reserve shall be utilized solely for the purpose set
forth in Section 5.08(vi).
"CONCENTRATION ACCOUNT" means, collectively, the accounts, account
no. 000-0-000000, established by Sunbeam Products, Inc. and account no.
000-0-00000, established by Xxxxxxx, each maintained at the office of The
Chase Manhattan Bank at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, that
shall be used for the daily concentration of funds received by the Parent
or any of its Subsidiaries from the operation of their businesses or
otherwise.
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"DESIGNATED FOREIGN CURRENCIES" means the currencies set forth on
Schedule B and any other available and freely convertible foreign
currency requested by any Borrower and approved by the Administrative
Agent and all of the Lenders in accordance with Section 10.02(b).
"DOLLAR EQUIVALENT" means with respect to the principal amount of
any Eurocurrency Loan made or outstanding in any Designated Foreign
Currency, at any date of determination thereof, an amount in dollars
equivalent to such principal amount or such other amount calculated on
the basis of the Spot Rate of Exchange.
"EURO" means the single currency of the European Union (i) as
constituted by the Treaty of Rome of March 25, 1957, as amended by the
Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed at
Maastricht on February 7, 1992, and came into force on November 1, 1993),
as amended from time to time, and (ii) as referred to in the legislative
measures of the European Union for the introduction of, changeover to or
operation of the euro in one or more member states.
"EXISTING RECEIVABLES PROGRAM": means the accounts receivable
sales program established pursuant to (i) the Receivables Sale and
Contribution Agreement dated as of December 4, 1997, between Sunbeam
Products, Inc. and Sunbeam Asset Diversification, Inc., (ii) the
Existing Receivables Program Purchase Agreement and (iii) any receivables
sale agreement executed and delivered after the Fifth Amendment Effective
Date in accordance with Section 6.09(b)(y).
"EXISTING RECEIVABLES PROGRAM PURCHASE AGREEMENT" means the
Receivables Purchase and Servicing Agreement dated as of December 4, 1997
(as amended, supplemented or otherwise modified prior to the Fifth
Amendment Effective Date or in accordance with Section 6.09(b)), by and
among Llama Retail Funding, L.P., Capital USA, L.L.C., Sunbeam Asset
Diversification, Inc. and Sunbeam Products, Inc.
"FIFTH AMENDMENT EFFECTIVE DATE" means the Amendment Effective
Date under and as defined in Amendment No. 5, Third Waiver and Agreement,
dated as of April 15, 1999, to and under this Agreement.
"INACTIVE SUBSIDIARY" means any Subsidiary of the Parent which
(and only for so long as such Subsidiary) (i) does not own assets with an
aggregate book value in excess of $500,000 and (ii) is not engaged in any
business.
"INTERNATIONAL GROUP" means the collective reference to the
Strategic Business Units designated as Europe, Japan, Latin America,
Asia/Pacific and Canada.
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"MANDATORY PREPAYMENT AMOUNT" has the meaning set forth in
Section 2.09(b).
"NON-CORE ASSETS" means the non-core assets of the Parent and its
Subsidiaries listed on Schedule C hereto.
"RECEIVABLES PURCHASE LIMIT" means $70,000,000 or such other
amount designated as the "Purchase Limit" pursuant to the Existing
Receivables Program Purchase Agreement.
"SEC" means the United States Securities and Exchange Commission,
or any successor thereto.
"S-4 REGISTRATION STATEMENT" means the Registration Statement on
Form S-4 under the Securities Act of 1933, as amended, with respect to
the registration of the shares of common stock of the Parent to be issued
in connection with the consummation of the merger that will result in
Xxxxxxx becoming a Wholly Owned Subsidiary, including any supplements or
exhibits thereto and any amendments thereof.
"SPOT RATE OF EXCHANGE" means with respect to any Designated
Foreign Currency, at any date of determination thereof, the spot rate of
exchange in London that appears on the display page applicable to such
Designated Foreign Currency on the Telerate System Incorporated Service
(or such other page as may replace such page on such service for the
purpose of displaying the spot rate of exchange in London); PROVIDED that
if there shall at any time no longer exist such a page on such service,
the spot rate of exchange shall be determined by reference to another
similar rate publishing service selected by the Administrative Agent, and
if no such similar rate publishing service is available, the spot rate of
exchange shall be determined by reference to the published rate of the
Administrative Agent in effect at such date for similar commercial
transactions.
"YEAR 2000 COMPATIBILITY EXPENDITURES" means costs incurred
(whether capitalized or recognized as an operating expense) in connection
with the testing, reprogramming and, if required, the replacement of non-
compliant information technology systems to permit the proper functioning
in and following the year 2000 of (a) computer systems of the Parent and
its Consolidated Subsidiaries and (b) systems and equipment supplied by
third parties or with which the systems of the Parent or any of its
Consolidated Subsidiaries interface.".
SECTION 3. DEFINITION OF ASSET SALES. The definition of "ASSET SALES"
in Section 1.01 of the Credit Agreement is amended (a) to replace the comma
immediately before the reference to "(iii)" in such definition with the word
"and" and (b) to delete in its entirety the phrase "and (iv) dispositions of
any Margin Stock for fair value" in such definition.
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SECTION 4. DEFINITION OF BUSINESS DAY. The definition of "BUSINESS
DAY" in Section 1.01 of the Credit Agreement is amended (a) to add
immediately after the phrase "a Eurodollar Loan" in such definition the
phrase "in dollars" and (b) to add immediately before the period at the end
of such definition the proviso ", PROVIDED FURTHER that when used in
connection with a Eurocurrency Loan in any Designated Foreign Currency, the
term "Business Day" shall also exclude any day on which banks are not open
for dealings in deposits in such Designated Foreign Currency in London,
England and the principal financial center of such Designated Foreign
Currency, and PROVIDED FURTHER that when such term is used for the purpose of
determining the date on which the LIBO Rate is determined under this
Agreement for any Eurocurrency Loan denominated in euro for any Interest
Period therefor and for purposes of determining the first and last day of any
Interest Period, references in this Agreement to Business Day shall be deemed
to be references to any day that is not (x) a Saturday or Sunday, (y)
Christmas Day or New Year's Day or (z) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative
Agent)".
SECTION 5. DEFINITION OF COLLATERAL DOCUMENTS. The definition of
"COLLATERAL DOCUMENTS" in Section 1.01 of the Credit Agreement is amended:
(a) to add immediately after the term "the Pledge and Security
Agreements," in such definition the phrase "the Xxxxxxx Collateral
Documents, the Xxxxxxx Intercompany Collateral Documents,"; and
(b) to replace the reference to "Section 5.09" in the
parenthetical in such definition with a reference to "Sections 2.19,
5.09 and 5.11".
SECTION 6. DEFINITION OF CONSOLIDATED EBITDA. The definition of
"CONSOLIDATED EBITDA" in Section 1.01 of the Credit Agreement is amended to
add immediately after the phrase "and other similar non-cash charges" in
paragraph (2) of such definition the phrase "not requiring a future cash
expenditure".
SECTION 7. DEFINITION OF ERISA AFFILIATE. The definition of "ERISA
AFFILIATE" in Section 1.01 of the Credit Agreement is amended:
(a) to add immediately after the word "means" in such
definition the following phrase "(i) with respect to the Parent, Xxxxxxx
and"; and
(b) to add immediately before the period at the end of such
definition the phrase and "(ii) any trade or business (whether or not
incorporated) that, together with Xxxxxxx, is treated as a single
employer under the Sections of ERISA or the Code set forth in clause (i)
above".
SECTION 8. DEFINITION OF ERISA EVENT. The definition of "ERISA EVENT"
in Section 1.01 of the Credit Agreement is amended:
(a) to delete the word "or" immediately preceding the reference
to "(g)" in such definition;
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(b) to replace the phrase "or the receipt by" in clause (g) in
such definition with the word "from";
(c) to delete the phrase "from the Parent or any ERISA
Affiliate of any notice," in clause (g) in such definition; and
(d) to add immediately before the period at the end of such
definition the following new clause (h) "or (h) any other event or
condition shall occur after the Fifth Amendment Effective Date with
respect to a Plan or any other U.S. or non-U.S., funded or unfunded,
pension or welfare plan sponsored or maintained by the Parent, Xxxxxxx or
any of their respective ERISA Affiliates which could reasonably be
expected to have a Material Adverse Effect".
SECTION 9. REFERENCES TO EURODOLLAR. All references to "Eurodollar"
and "eurodollar" in the Credit Agreement shall be deemed to be references to
"Eurocurrency" and "eurocurrency", respectively.
SECTION 10. DEFINITION OF EXCESS CASH FLOW. The definition of "EXCESS
CASH FLOW" in Section 1.01 of the Credit Agreement is amended to delete the
proviso at the end of such definition.
SECTION 11. DEFINITION OF EXCLUDED TAXES. The definition of "EXCLUDED
TAXES" in Section 1.01 of the Credit Agreement is amended:
(a) to replace the word "and" immediately preceding the
reference to "(c)" in such definition with a comma;
(b) to replace each reference to the term "Foreign Lender" in
clause (c) in such definition with "Lender";
(c) to replace the phrase "any withholding tax" with the phrase
"any U.S. withholding tax"; and
(d) to replace the phrase "or is attributable to such Foreign
Lender's failure" with the phrase "and (d) any withholding tax that is
attributable to a Foreign Lender's failure".
SECTION 12. DEFINITION OF LEVERAGE RATIO. The definition of "LEVERAGE
RATIO" in Section 1.01 of the Credit Agreement is amended to delete in its
entirety the second sentence in such definition.
SECTION 13. DEFINITION OF LIBO RATE. The definition of "LIBO RATE" in
Section 1.01 of the Credit Agreement is amended:
(a) to replace the words "dollar deposits" in the parenthetical
in the first sentence in such definition with the phrase "deposits in
dollars or in the applicable Designated Foreign Currency";
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(b) to replace the phrase "the rate for dollar deposits" in
the first sentence in such definition with the phrase "the rate for
deposits in dollars or in the applicable Designated Foreign Currency";
and
(c) to add immediately after the phrase "at which dollar
deposits of $5,000,000" in the second sentence in such definition the
phrase ", or the Dollar Equivalent of the applicable Designated Foreign
Currency equal to $3,000,000,".
SECTION 14. DEFINITION OF MAJOR CASUALTY PROCEEDS. The definition of
"MAJOR CASUALTY PROCEEDS" in Section 1.01 of the Credit Agreement is amended
to replace the reference to "$10,000,000" with a reference to "$1,000,000".
SECTION 15. DEFINITION OF REVOLVING CREDIT EXPOSURE. The definition of
"REVOLVING CREDIT EXPOSURE" is amended to add immediately after the phrase
"such Lender's Revolving Loans" in such definition the parenthetical
"(including without limitation, in the case of Revolving Loans then
outstanding in any Designated Foreign Currency, the Dollar Equivalent of the
aggregate principal amount thereof)".
SECTION 16. DEFINITION OF SUBSIDIARY GUARANTORS. The definition of
"SUBSIDIARY GUARANTORS" is amended in its entirety to read as follows:
"SUBSIDIARY GUARANTORS" means each Subsidiary party to the
Subsidiary Guarantee and each other Person who becomes a party to the
Subsidiary Guarantee pursuant to Section 5.09.".
SECTION 17. DEFINITION OF TRANCHE A AVAILABILITY PERIOD. The
definition of "TRANCHE A AVAILABILITY PERIOD" in Section 1.01 of the Credit
Agreement is amended to replace the date "April 10, 1999" with the date
"April 10, 2000".
SECTION 18. REVOLVING CREDIT COMMITMENTS. Paragraph (c) of Section
2.01 of the Credit Agreement is amended to add immediately before the period
at the end of the first sentence in such paragraph the following proviso:
"; PROVIDED, HOWEVER, that no Lender shall make any Revolving Credit Loan
in any Designated Foreign Currency to any Subsidiary Borrower other than
to Xxxxxxx after the occurrence of the Xxxxxxx Merger Effective Date,
PROVIDED FURTHER that no Lender shall make any Revolving Loan in any
Designated Foreign Currency if, after giving effect to the making of such
Revolving Loan, the Dollar Equivalent of the then outstanding Revolving
Loans in any Designated Foreign Currencies would exceed $40,000,000 (it
being understood and agreed that the Administrative Agent shall calculate
the Dollar Equivalent of the then outstanding Revolving Loans in any
Designated Foreign Currency on the date on which the Administrative Agent
receives a notice of Borrowing with respect to any Revolving Loan for
purposes of determining compliance with this paragraph); PROVIDED FURTHER
that if the Xxxxxxx Merger Effective Date shall not have occurred prior
to August 31, 1999, from and after such date until the Xxxxxxx Merger
Effective Date, no Lender shall make any Revolving Loan (other than with
respect to the making of a Revolving Loan for
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the purpose set forth in Section 5.08(vi)) if, after giving effect to
the making of such Revolving Loan, the sum of the Revolving Credit
Exposure of all Lenders, plus the Xxxxxxx Revolving Commitment
Reserve, would exceed the Revolving Commitments".
SECTION 19. REVOLVING CREDIT BORROWINGS. Section 2.02 of the Credit
Agreement is amended:
(a) to add immediately before the first sentence in paragraph
(b) of such Section the following sentence "The Revolving Loans may be
made in dollars or in any Designated Foreign Currency.";
(b) to add immediately after the words "such Borrowing shall
be" in the first sentence in paragraph (c) of such Section the
parenthetical "(or in the case of Eurocurrency Borrowings to be made in
any Designated Foreign Currency, the Dollar Equivalent of the principal
amount that is)"; and
(c) to add immediately before the period at the end of the
first sentence in paragraph (c) of such Section the phrase ", if such
Borrowing is requested to be made in dollars, and $3,000,000, if such
Borrowing is requested to be made in any Designated Foreign Currency".
SECTION 20. REQUESTS FOR ABR BORROWINGS. Section 2.03 of the Credit
Agreement is amended:
(a) to replace the reference to "10:00 a.m., Charlotte, North
Carolina" in clause (b) in such Section with a reference to "1:00 p.m.,
Charlotte, North Carolina time";
(b) to replace the phrase "three Business Days before the date
of the proposed Borrowing" in clause (a) in the first sentence in such
Section with the phrase "(i) three Business Days before the date of the
proposed Eurocurrency Borrowing, if the requested Eurocurrency Borrowing
is to be made in dollars or (ii) four Business Days before the date of
the proposed Eurocurrency Borrowing, if the requested Eurocurrency
Borrowing is to be made in any Designated Foreign Currency"; and
(c) to add immediately before the semicolon in clause (v) in
such Section the phrase "and if such Eurocurrency Borrowing is to be made
in any Designated Foreign Currency, the Designated Foreign Currency
thereof".
SECTION 21. NOTICE OF ISSUANCE OF LETTERS OF CREDIT. Paragraph (b) of
Section 2.04 of the Credit Agreement is amended to add immediately after the
words "at least three Business Days" in the third parenthetical in such
paragraph the phrase ", or in the case of Trade Letters of Credit, one
Business Day,".
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SECTION 22. FUNDING OF BORROWINGS. Section 2.05 of the Credit
Agreement is amended:
(a) to add immediately before the words "wire transfer" in
paragraph (a) of such Section the phrase "in dollars or the applicable
Designated Foreign Currency, as requested by the Borrower in its notice
of Borrowing,";
(b) to add immediately after the phrase "12:00 noon, Charlotte,
North Carolina time," in paragraph (a) of such Section the parenthetical
"(or by 3:00 p.m., Charlotte, North Carolina time, in the case of an ABR
Borrowing for which a notice has been given on the same Business Day of
the proposed Borrowing in compliance with Section 2.03)";
(c) to replace "at (i)" in the second sentence in paragraph (b)
of such Section with the phrase "(y) in the case of Loans to be made in
dollars, at (i)";
(d) to add immediately before the period at the end of the
second sentence in paragraph (b) of such Section the phrase "and (z) in
the case of Eurocurrency Loans to be made in any Designated Foreign
Currency, at (i) in the case of such Lender, the rate customary in such
Designated Foreign Currency for settlement of similar inter-bank
obligations, as quoted by the Administrative Agent or (ii) in the case of
the Borrower, the interest rate applicable to the Eurocurrency Loans";
and
(e) to add immediately after paragraph (b) at the end of such
Section the following new paragraph (c):
"(c) Notwithstanding any other provision contained
herein, in the event that any Lender gives notice to the
Administrative Agent that it is unable to fund Revolving Loans in
any Designated Foreign Currency at a reasonable cost to it, the
Administrative Agent shall, until such notice is withdrawn and to
the extent necessary in order to excuse such Lender from making
any Revolving Loans in such Designated Foreign Currency and to
continue to make available to the Borrowers the full aggregate
amount of the Revolving Commitments, reallocate from time to time
among the Lenders the outstanding Revolving Loans denominated in
dollars and the Revolving Loans in such Designated Foreign
Currency; PROVIDED that, in the event that the Lenders the
Applicable Percentages of which aggregate 51% of the Revolving
Commitments of all Lenders give such notice to the Administrative
Agent, the Lenders shall not be required to make any Revolving
Loans in such Designated Foreign Currency until any such notice
has been withdrawn so that the Lenders the Applicable Percentages
of which aggregate 51% of the Revolving Commitments of all Lenders
have either not given any such notice or have withdrawn any such
notice.".
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SECTION 23. INTEREST ELECTIONS. Section 2.06 of the Credit Agreement
is amended:
(a) to add immediately after the phrase "convert such
Borrowing" in the second sentence in paragraph (a) of such Section the
phrase "(if such Borrowing was made in dollars)";
(b) to add immediately after the phrase "the affected
Borrowing" in the third sentence in paragraph (a) of such Section the
phrase "(if such Borrowing was made in dollars)";
(c) to add immediately after the phrase "Interest Election
Request applies" in clause (i) in paragraph (c) of such Section the
phrase ", whether such Borrowing was made in dollars or in any Designated
Foreign Currency";
(d) to replace the phrase "such Borrowing shall" in the first
sentence in paragraph (e) of such Section with the phrase "(a) such
Borrowing, if such Borrowing was made in dollars, shall";
(e) to add immediately before the period at the end of the
first sentence in paragraph (e) of such Section the phrase "or (b) such
Borrowing, if such Borrowing was made in any Designated Foreign Currency,
shall be continued for the shortest available Interest Period as
determined by the Administrative Agent"; and
(f) to add in clause (ii) in the second sentence in paragraph
(e) of such Section (i) immediately after the words "each Eurodollar
Borrowing" in such clause the words "made in dollars" and (ii)
immediately before the period at the end of such sentence the phrase "and
each Eurocurrency Borrowing made in any Designated Foreign Currency shall
be continued for the shortest available Interest Period as determined by
the Administrative Agent".
SECTION 24. REPAYMENT OF TERM LOANS. (a) Paragraph (a) of Section 2.09
of the Credit Agreement is amended to add at the end thereof the following
proviso:
"PROVIDED that, effective upon the date of satisfaction of the
Xxxxxxx Conditions (or on the first such date to occur thereafter
on which no Default or Event of Default shall have occurred and be
continuing), the date of payment of (y) the $66,750,000
installment of the Tranche A Term Loans scheduled to be paid on
each of September 30, 1999 and March 31, 2000 and (z) the
$2,500,000 installment of the Tranche B Term Loans scheduled to be
paid on each of September 30, 1999 and March 31, 2000, in each
case, shall be extended to April 10, 2000."
(b) Paragraph (b) of Section 2.09 of the Credit Agreement is amended:
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(i) to add immediately before clause (i)(x) in such paragraph
the following new clause (i)(w):
"(w)(1) on September 30, 1999 with the amount, if any, by which
the sum (the "MANDATORY PREPAYMENT AMOUNT") of funds on deposit in
the Concentration Account on such date, after giving effect to
Section 2.09(d)(ii), PLUS the aggregate amount of the unused
Revolving Commitments (calculated in the case of September 30,
1999 only, exclusive of the Xxxxxxx Revolving Commitment Reserve)
on such date exceeds $115,000,000 and (2) on December 31, 1999
with the amount, if any, by which the Mandatory Prepayment Amount
exceeds $125,000,000; PROVIDED that the amount prepaid on
September 30, 1999, when added to the amount prepaid on December
31, 1999, in each case in accordance with this clause (w), shall
not exceed $69,250,000.";
(ii) to add immediately after the reference to "(x)" in clause
(i)(x) in such paragraph the phrase "except as otherwise set forth in
Section 2.09(d)(i)";
(iii) to replace the phrase ", exceeds $15,000,000" in clause
(i)(x)(1) in such paragraph with the phrase "(or in the case of the 1999
fiscal year of the Parent, made from and after the Fifth Amendment
Effective Date during such fiscal year), exceeds $1,000,000";
(iv) to delete in their entirety clauses (A) and (B) in the
proviso in clause (i)(x) in such paragraph;
(v) to delete "and (C)" in the proviso in clause (i)(x) in such
paragraph;
(vi) to delete the words "whether" and "or otherwise" in the
proviso in clause (i)(x) in such paragraph; and
(vii) to add immediately after the words "reduction under this
paragraph" in the first sentence of clause (iii) in such paragraph the
parenthetical "(other than with respect to prepayments under clause
(i)(w) of this paragraph)".
(c) Paragraph (b)(iv) of Section 2.09 of the Credit Agreement is
amended in its entirety to read as follows:
"(iv) The amount of any repayment of the Term Loans made pursuant
to clauses (i) or (ii) of this paragraph shall be applied (A) in the
direct order of maturity of each subsequent scheduled repayment of the
Term Loans, through and including the repayment due on September 30,
2000, to be made by the Borrowers pursuant to paragraph (a) of this
Section and (B) to reduce ratably the amount of all remaining scheduled
repayments of the Term Loans due after September 30, 2000.".
12
SECTION 25. MANDATORY REPAYMENT OF REVOLVING LOANS. Section 2.09 of
the Credit Agreement is amended to add immediately after paragraph (c) at the
end of such Section the following new paragraph (d):
"(d) The Parent shall repay or cause a Subsidiary Borrower to
repay the Revolving Loans (but shall not be required to reduce the
Revolving Commitments) (i) on the date on which the Parent or any of its
Subsidiaries shall receive any Net Cash Proceeds with respect to any
Asset Sale of Non-Core Assets consummated prior to April 10, 2000, but
solely if, and solely to the extent that, the aggregate Net Cash Proceeds
from such Asset Sale, when combined with all other Asset Sales of Non-
Core Assets consummated prior to April 10, 2000, shall be equal to or
less than $50,000,000 (the amount of any such Net Cash Proceeds in excess
of $50,000,000 shall be applied to the prepayment of the Term Loans in
accordance with Section 2.09 (b)(i)(x)), (ii) on each Business Day to the
extent that funds on deposit in the Concentration Account exceed
$15,000,000 and (iii) on August 31, 1999 if the Xxxxxxx Merger Effective
Date shall not have occurred prior to such date, to the extent necessary
to establish the Xxxxxxx Revolving Commitment Reserve under the Revolving
Commitments.".
SECTION 26. OPTIONAL PREPAYMENT OF LOANS. Section 2.10 of the Credit
Agreement is amended:
(a) to replace the phrase "a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date
of prepayment" in paragraph (b)(i) of such Section with the phrase "a
Eurocurrency Borrowing (A) made in dollars, not later than 11:00 a.m.,
Charlotte, North Carolina time, three Business Days before the date of
prepayment and (B) made in any Designated Foreign Currency, not later
than 11:00 a.m., Charlotte, North Carolina time, four Business Days
before the date of prepayment"; and
(b) to replace the reference to "New York City time" in
paragraph (b)(ii) of such Section with a reference to "Charlotte, North
Carolina time".
SECTION 27. FEES. Section 2.11 of the Credit Agreement is amended:
(a) to replace the phrase "at the rate of 1% per annum" in
clause (i)(A) in paragraph (b) of such Section with "(y) prior to the
Xxxxxxx Merger Effective Date, at the rate of .75% per annum and (z) on
or after the Xxxxxxx Merger Effective Date, at the rate of .50% per
annum; PROVIDED that upon the occurrence and during the continuance of an
Event of Default, such rate shall in each case be changed to 1.00% per
annum";
(b) to change the reference to paragraph "(d)" in such Section
to a reference to paragraph "(e)"; and
(c) to add to such Section the following new paragraph (d):
13
"(d) The Parent agrees that on the Fifth Amendment
Effective Date the Lenders shall have earned a fee in an amount
equal to .25% of the Commitments as of the Fifth Amendment
Effective Date; PROVIDED that the Parent shall have until the
earlier of (i) September 30, 2000 and (ii) the date on which the
Commitments shall have terminated and the principal of and
interest on the Loans and all other amounts payable by the
Obligors under this Agreement and the other Loan Documents shall
have been paid in full, to pay such fee to the Administrative
Agent, for the account of each Lender; PROVIDED FURTHER that (x)
if the Aggregate Exposure shall have been reduced, on or before
September 30, 2000, to $1,000,000,000 or less, such fee shall be
in an amount equal to .25% of such Commitments, (y) if the
Aggregate Exposure shall have been reduced, on or before
September 30, 2000, to $1,200,000,000 or less (but not reduced to
$1,000,000,000 or less), such fee shall be increased and fully
earned in an amount equal to .50% of such Commitments and (z) if
the Aggregate Exposure shall not have been reduced to
$1,200,000,000 or less on or before September 30, 2000, such fee
shall be increased and fully earned in an amount equal to 1.00% of
such Commitments.".
SECTION 28. INTEREST. (a) Paragraph (a) of Section 2.12 of the Credit
Agreement is amended to replace the second and third sentences in such
paragraph with the following:
"The "APPLICABLE ABR MARGIN" means (i) for each day prior to the
satisfaction of the Xxxxxxx Conditions, 2.50%; (ii) on and after
the date of satisfaction of the Xxxxxxx Conditions, for each day
for the period (A) prior to the earlier of the Xxxxxxx Merger
Effective Date and September 1, 1999, 2.00%; (B) on and after
September 1, 1999 and prior to the earlier of the Xxxxxxx Merger
Effective Date and October 1, 1999, 2.25%; (C) on and after
October 1, 1999 and prior to the Xxxxxxx Merger Effective Date,
2.50%; (D) from and including the Xxxxxxx Merger Effective Date to
the date of the occurrence of the event described in clause (E)
below, 1.75%; (E) from and including any date after the Xxxxxxx
Merger Effective Date on which the Aggregate Exposure is less than
or equal to $1,500,000,000 to the date of the occurrence of the
event described in clause (F) below, 1.50%; and (F) from and
including any date after the Xxxxxxx Merger Effective Date on
which the Aggregate Exposure is less than or equal to
$1,200,000,000, 1.25%; PROVIDED that the Applicable ABR Margin
shall not be reduced on the date set forth for such reduction in
clause (A), (D), (E) or (F) above if any Default or Event of
Default shall have occurred and be continuing on such date, but
such reduction shall become effective on the first date thereafter
on which no Default or Event of Default shall have occurred and be
continuing.
(b) Paragraph (b) of Section 2.12 of the Credit Agreement is amended
to replace the second and third sentences in such paragraph with the following:
14
"The "APPLICABLE EUROCURRENCY MARGIN" means (i) for each day prior
to the satisfaction of the Xxxxxxx Conditions, 3.75%; (ii) on and
after the date of satisfaction of the Xxxxxxx Conditions for each
day for the period (A) prior to the earlier of the Xxxxxxx Merger
Effective Date and September 1, 1999, 3.25%; (B) on and after
September 1, 1999, and prior to the earlier of the Xxxxxxx Merger
Effective Date and October 1, 1999, 3.50%; (C) on and after
October 1, 1999 and prior to the Xxxxxxx Merger Effective Date,
4.00%; (D) from and including the Xxxxxxx Merger Effective Date to
the date of the occurrence of the event described in clause (E)
below, 3.00%; (E) from and including any date after the Xxxxxxx
Merger Effective Date on which the Aggregate Exposure is less than
or equal to $1,500,000,000 to the date of the occurrence of the
event described in clause (F) below, 2.75%; and (F) from and
including any date after the Xxxxxxx Merger Effective Date on
which the Aggregate Exposure is less than or equal to
$1,200,000,000, 2.50%"; PROVIDED that the Applicable Eurocurrency
Margin shall not be reduced on the date set forth for such
reduction in clause (A), (D), (E) or (F) above if any Default or
Event of Default shall have occurred and be continuing on such
date, but such reduction shall become effective on the first date
thereafter on which no Default or Event of Default shall have
occurred and be continuing." .
(c) Paragraph (c) of Section 2.12 of the Credit Agreement is amended
in its entirety to read as follows:
"(c) Notwithstanding the foregoing, (i) from the date of
the occurrence and during the continuance of an Event of Default,
the Loans shall bear interest, after as well as before judgment,
at a rate per annum equal to 2% plus the rate otherwise applicable
to the Loans as provided in the preceding paragraphs of this
Section and (ii) if any overdue interest on any Loan or any fee or
other amount payable hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a
rate per annum equal to 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section, from the date of
such non-payment until such overdue interest, fee or other amount
is paid in full (after as well as before judgment).".
SECTION 29. BREAK FUNDING PAYMENTS. Section 2.15 is amended to add
immediately before the comma at the end of clause (a) in such Section the
phrase "and other than with respect to prepayments pursuant to Section
2.09(d)(ii)".
SECTION 30. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. Paragraph (a) of Section 2.17 of the Credit Agreement is amended to
add immediately after the phrase "on the date when due," in such paragraph
the phrase "in dollars or, in the case of Eurocurrency Loans outstanding in
any Designated Foreign Currency, such Designated Foreign Currency and whether
in dollars or any Designated Foreign Currency,".
15
SECTION 31. SUBSIDIARY BORROWINGS. Section 2.19 of the Credit
Agreement is amended:
(a) to add immediately after the phrase "a Subsidiary Borrower
Pledge and Security Agreement" in paragraph (b) of such Section the
phrase ", a security agreement, substantially in the form of the Parent
Security Agreement, dated as of July 10, 1998, by the Parent in favor of
the Administrative Agent, and any other security agreements or other
documents requested by the Administrative Agent pursuant to Section 5.11,
in each case"; and
(b) to delete the phrase "of Xxxxx Xxxx & Xxxxxxxx, special
counsel for the Agents, substantially in the form of Exhibit J, and each"
in paragraph (c) of such Section.
SECTION 32. ADDITIONAL MULTICURRENCY PROVISIONS. Article 2 is amended
to add immediately after Section 2.20 at the end of such Article the
following new Section 2.21:
"SECTION 2.21. CONTROLS; CURRENCY EXCHANGE RATE FLUCTUATIONS. (a)
In the event that at any time the Parent determines that by reason of
currency exchange rates any aggregate or individual limits or sublimits
set forth in Section 2.01(c) have been breached, in each case, by more
than 5%, the Parent shall immediately notify the Administrative Agent
(which notice shall promptly be confirmed in writing).
(b) The Administrative Agent will calculate the Revolving
Credit Exposure (including any portion made in any Designated Foreign
Currency) with respect to all of the Lenders from time to time, and in
any event on each date of receipt of a notice of Borrowing and otherwise
not less frequently than once each calendar month.
(c) In the event that on any date the Administrative Agent
calculates that any of such limits or sublimits shall have been breached,
in each case, by more than 5%, the Administrative Agent shall give notice
to such effect to the Parent and the Lenders.
(d) Within five Business Days after notification to the
Administrative Agent pursuant to clause (a) above or receipt of notice
pursuant to paragraph (c) above, the Parent will, or will cause the
Borrowers to, make such repayments or prepayments of Revolving Loans
(together with interest accrued to the date of such repayment or
prepayment) as shall be necessary to eliminate any excess above any such
limit or sublimit, unless by the time such repayment or prepayment is
required to be made, such limit or sublimit is no longer breached by
reason of currency exchange rate fluctuations. If any such repayment or
prepayment of a Eurocurrency Loan pursuant to this Section occurs on a
day which is not the last day of the then current Interest Period with
respect thereto, the Parent shall pay to the Lenders such amounts, if
any, as may be required pursuant to Section 2.15.".
16
SECTION 33. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE
REPRESENTATION AND WARRANTY. Section 3.04 of the Credit Agreement is amended:
(a) to add immediately before the phrase "reported on by Xxxxxx
Xxxxxxxx LLP" in paragraph (a) of such Section the words "restated and";
and
(b) to add immediately after the phrase "Since December 28,
1997" in paragraph (b) of such Section the parenthetical "(or December
31, 1998 from and after such date)".
SECTION 34. LITIGATION REPRESENTATION AND WARRANTY. Paragraph (c) of
Section 3.06 of the Credit Agreement is amended (after giving effect to
Section 65 below) to replace the phrase "the date of this Agreement" in such
paragraph with the term "the Fifth Amendment Effective Date".
SECTION 35. ERISA. Section 3.10 of the Credit Agreement is amended to
replace each reference to "$25,000,000" in such Section with a reference to
"$40,000,000".
SECTION 36. DISCLOSURE REPRESENTATION AND WARRANTY. Section 3.11 of
the Credit Agreement is amended to add the phrase "on or after September 30,
1998 (in the case of any determination of the truth and correctness of this
representation on or after the Fifth Amendment Effective Date)" in the second
sentence of such Section (a) immediately before the phrase "by or on behalf
of any Obligor" and (b) immediately after the phrase "or delivered".
SECTION 37. GUARANTORS REPRESENTATION AND WARRANTY. Section 3.12 of
the Credit Agreement is amended to add immediately after the phrase "the
United States of America" in the parenthetical in such Section the phrase
"and prior to the Xxxxxxx Merger Effective Date, Xxxxxxx and its
subsidiaries".
SECTION 38. PLEDGED ASSETS REPRESENTATION AND WARRANTY. Article 3 of
the Credit Agreement is amended to add immediately after Section 3.16 at the
end of such Article the following new Section 3.17:
"SECTION 3.17. PLEDGED ASSETS. Except as set forth on Schedule
3.17, as of the Fifth Amendment Effective Date all of the material assets
of the Parent and the Subsidiary Guarantors have been pledged as
Collateral to the Administrative Agent, for the benefit of the Lenders,
pursuant to the Collateral Documents.".
SECTION 39. CONDITIONS TO EACH CREDIT EVENT. Section 4.04 of the
Credit Agreement is amended:
(a) to add immediately after clause (c) of such Section the
following new clauses (d), (e) and (f):
"(d) At the time of and immediately after giving effect
to such Borrowing (and the proposed use of such Borrowing on such
date of
17
Borrowing), the funds on deposit in the Concentration Account
shall not exceed $15,000,000.
(e) At the time of and immediately after giving effect
to such Borrowing, the aggregate Capital Investment shall not be
less than 85% of the Receivables Purchase Limit, PROVIDED that, if
the aggregate Capital Investment is less than 85% of the
Receivables Purchase Limit at such time, this condition shall
nonetheless be deemed satisfied so long as at the time of and
immediately after giving effect to such Borrowing, no less than
85% of the aggregate Outstanding Balance of all Receivables of
Designated Obligors owned by Sunbeam Products, Inc. shall be
Eligible Receivables (as each such term is defined in the Existing
Receivables Program Purchase Agreement);
(f) At the time of and immediately after giving effect
to such Borrowing, if such Borrowing is in a Designated Foreign
Currency, there shall be no unused borrowing availability under
any foreign lines of credit providing borrowings in such
Designated Foreign Currency.";
(b) to replace the phrase "paragraphs (b) and (c)" in the
penultimate paragraph of such Section with the phrase "paragraphs (b)
through (f)"; and
(c) to delete in its entirety the last paragraph of such
SECTION 40. FINANCIAL STATEMENTS. Section 5.01 is amended:
(a) to add immediately after the phrase "each of the first
three fiscal quarters of each fiscal year of the parent" in paragraph (b)
of such Section the phrase "(and within 90 days after the end of the
fourth fiscal quarter of each fiscal year of the Parent after 1998)";
(b) to replace the phrase "its consolidated balance sheet and
related statements of operations, stockholders' equity" in paragraph (b)
of such Section with the phrase "its consolidated and consolidating
balance sheet and related consolidated and consolidating statements of
operations";
(c) to add immediately after the phrase "the previous fiscal
year," in paragraph (b) of such Section the phrase "and, as it relates to
the consolidated financial statements,";
(d) to add immediately after the phrase "clause (a) or (b)
above" in paragraph (c) of such Section the phrase "and clauses (A) and
(J) of Section 5.02";
(e) to replace the phrase "Sections 6.01 and 6.11 through 6.15"
in paragraph (c) of such Section with the phrase "Sections 6.01 and 6.11
through 6.17";
18
(f) to amend paragraph (f) of such Section in its entirety as
follows:
"(f) [Intentionally Omitted]."; and
(g) to delete the phrase "that notes a "reportable condition""
at the end of paragraph (g) of such Section.
SECTION 41. ADDITIONAL INFORMATIONAL REQUIREMENTS. Section 5.02 of the
Credit Agreement is amended:
(a) to replace the reference to "$25,000,000" in paragraph (c)
of such Section with a reference to "$40,000,000";
(b) (i) to delete the word "and" at the end of paragraph (c) of
such Section, (ii) to replace the period at the end of paragraph (d) of
such Section with "; and", and (iii) to add immediately after paragraph
(d) of such Section the following new paragraph (e):
"(e) any development, event, or condition that, alone or
together with any other like developments, events or conditions,
could reasonably be expected to result in the payment by or
liability of the Parent or any of its Subsidiaries under or
pursuant to or as a result of Environmental Laws in an aggregate
amount exceeding $2,500,000.";
(c) to replace paragraphs (A) through (K) with the following
new paragraphs (A) through (K):
"(A) As soon as available, but no later than 35 days
after the end of March and April, 1999 and no later than 30 days
after the end of each month thereafter, a copy of the following
financial statements (on a preliminary basis in the case of March,
April and June, 1999):
(1) consolidated statement of operations for the
Parent and its Consolidated Subsidiaries for the month then ended
and year-to-date;
(2) consolidated balance sheet for the Parent and
its Consolidated Subsidiaries for the month then ended;
(3) consolidated statement of cash flow for the
Parent and its Consolidated Subsidiaries for the month then ended;
(4) operating statements for each Strategic
Business Unit for the month then ended and year-to-date (except
the Special Markets Strategic Business Unit, which is reported as
part of the operations of other Strategic Business Units);
19
(5) balance sheets for the Parent, Signature,
First Alert, and the International Group, PROVIDED that as soon as
available, but not later than 30 days after each month beginning
with October, 1999, the Borrower will provide balance sheets for
each Strategic Business Unit (except the Special Markets Strategic
Business Unit, which is reported as part of the operations of
other Strategic Business Units);
(6) as soon as available, but not later than 30
days after each month beginning with October, 1999, cash flow
statements for each Strategic Business Unit (except the Special
Markets Strategic Business Unit, which is reported as part of the
operations of other Strategic Business Units), in each case for
the month then ended and year-to-date;
setting forth, in the case of the consolidated balance sheets, in
comparative form the projected figures set forth in the Business
Plan covering such month and the figures as of the end of the
corresponding month of the prior year and December 31, 1998 and,
in the case of the consolidated operating statements and cash
flows, in comparative form the projected figures set forth in the
Business Plan covering such month and the figures for the
corresponding month of the prior year, certified by a responsible
officer of the Borrower as being fairly stated in all material
respects (subject to certain accounts which are adjusted to GAAP
on a quarterly basis). Operating statements for each Strategic
Business Unit are to be presented in comparative form with the
projected figures in the Business Plan covering such month.
Concurrent with these reports, the Borrower will provide
commentary explaining significant variances from the Business Plan
covering such month and, where relevant, prior periods.
(B) On or before the 15th day and the last Business Day
of each month, cash forecasts, showing weekly cash needs (and
existing and forecasted liquidity under all financing and
securitization arrangements) for the succeeding 13 weeks from the
date of preparation of such forecasts.
(C) On or before December 31, 1999, a Business Plan for
the 2000 fiscal year of the Parent setting forth for each
Strategic Business Unit and on a consolidated basis monthly
forecasted results from operations, cash flows and balance sheets.
(D) On or before December 31, 1999, projections for the
fiscal years 2001 and 2002 of the Parent setting forth for each
Strategic Business Unit and on a consolidated basis projected
results from operations, cash flows and balance sheets.
(E) On or before September 30, 1999, the Parent shall
present to the Lenders its written plan for meeting the
amortization payments due April 10, 2000.
20
(F) Biweekly, a report summarizing the status of the
Parent's Year 2000 Computer Compatibility Project until such time
as a Financial Officer delivers a certificate to the
Administrative Agent certifying that such project is materially
complete.
(G) On or before the last day of each month, (i) a
report summarizing the status of all consummated and pending
Non-Core Asset Sales, (ii) a report summarizing the status of any
other Asset Sale involving realized or projected Net Cash Proceeds
in excess of $1,000,000 and (iii) a report of the acquisition by
the Parent or any Subsidiary of any material unencumbered assets
during such month.
(H) On or before the last day of each month, a report
summarizing the status of all litigation described in Section 6.19
(and any other litigation commenced after the Fifth Amendment
Effective Date if such other litigation involves potential
liability and/or projected costs in excess of $2,500,000),
including all fees and expenses incurred by the Parent or any of
its Subsidiaries to the extent such amounts have been reported to
the Parent.
(I) On or before the last day of each month, a report
summarizing available "point of sale" information with respect to
retail "sell through" and retailer inventories.
(J) No later than 30 days after the end of each month, a
report of (i) the amounts of all intercompany loans and advances
made by the Parent to Xxxxxxx, and any repayments made by Xxxxxxx
under the Xxxxxxx Intercompany Note during such month, (ii) the
outstanding principal amount (including capitalized interest
thereon) of the Xxxxxxx Intercompany Note as of the end of such
month and (iii) the amount of accrued and capitalized interest for
such month with respect to the Xxxxxxx Intercompany Note.
(K) Biweekly, a report with respect to the status of the
S-4 Registration Statement, and within one Business Day after the
receipt thereof, a copy of any comments provided by the SEC to the
Parent or Xxxxxxx on the S-4 Registration Statement."; and
(d) to delete the clause "and each Operating Unit; provided
that as soon as possible, such review shall be with respect to the
Parent" at the end of the last paragraph in such Section.
SECTION 42. INSURANCE. Section 5.05 of the Credit Agreement is amended
to add immediately before the period at the end of such Section the phrase ",
which insurance shall, within 30 days after the Fifth Amendment Effective
Date, name the Administrative Agent as the loss payee for the proceeds of any
policy relating to such insurance covering damage to tangible
21
property of the Parent and its Subsidiaries; and furnish to the
Administrative Agent upon written request, full information as to the
insurance carried".
SECTION 43. COMPLIANCE WITH ENVIRONMENTAL LAWS. Section 5.07 of the
Credit Agreement is amended to amend paragraph (c) in its entirety to read as
follows:
"(c) The Parent will, and will cause each of its Subsidiaries
to, (i) comply with all applicable Environmental Laws, and obtain, comply
with and maintain any and all permits required under applicable
Environmental Laws; and (ii) take reasonable efforts to ensure that all
of its tenants, subtenants, contractors, subcontractors, and invitees
comply with all Environmental Laws, and obtain, comply with and maintain
all Environmental Permits, applicable to any of them, PROVIDED that the
failure of the Parent or any of its Subsidiaries to so obtain, comply or
maintain shall not be deemed to constitute a violation of this covenant
so long as (i) upon learning of any failure, the Parent or the applicable
Subsidiary, as the case may be, shall undertake all reasonable efforts to
remedy such failure, and (ii) such failure and any other failure to
obtain, comply with or maintain the obligations imposed by the foregoing
sentence, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect."
SECTION 44. USE OF PROCEEDS. Section 5.08 of the Credit Agreement is
amended:
(a) to delete the phrase "and Permitted Acquisitions" from
clause (iv) of the first sentence of such Section;
(b) to delete the word "and" immediately preceding the
reference to "(v)" in the first sentence of such Section; and
(c) to add immediately before the period at the end of the
first sentence of such Section the phrase "and (vi) in the case of the
Xxxxxxx Revolving Commitment Reserve if the Xxxxxxx Merger Effective Date
shall not have occurred prior to August 31, 1999, only to pay cash
consideration for common stock of Xxxxxxx required in connection with the
consummation of the merger that will result in Xxxxxxx becoming a Wholly
Owned Subsidiary".
SECTION 45. FURTHER ASSURANCES. Section 5.09 of the Credit Agreement
is amended:
(a) to add immediately after the words "the United States" in
the second parenthetical in clause (i) in paragraph (b) in such Section
the parenthetical "(or a Subsidiary engaged in no business other than the
ownership of the capital stock or other equity interests in one or more
Subsidiaries)";
(b) to add immediately after the words "the United States" in
the second parenthetical in clause (ii) in paragraph (b) in such Section
the parenthetical
22
"(or a Material Subsidiary engaged in no business other than ownership
of the capital stock or other equity interests in one or more Material
Subsidiaries";
(c) to add the following new paragraph at the end of Section
5.09(b):
"Notwithstanding anything to the contrary contained
in this Section 5.09(b), the Xxxxxxx Collateral Documents
will govern with respect to the timing and extent of
guarantees to be executed and Liens to be granted by
Xxxxxxx and its subsidiaries."; and
(d) to add immediately after paragraph (d) at the end of such
Section the following new paragraph (e):
"(e) In addition to the Parent's obligations under this
Section 5.09, the Required Lenders shall have the right from time
to time after the Fifth Amendment Effective Date in the good faith
exercise of their discretion to require the Parent (and the Parent
shall in any event have the right) to (i) cause each Subsidiary or
Person which becomes a Subsidiary (other then Xxxxxxx and its
subsidiaries prior to the Xxxxxxx Merger Effective Date, any
Inactive Subsidiary, any Subsidiary organized under the laws of
any jurisdiction outside of the United States, or any Subsidiary
engaged in no business other than the ownership of the capital
stock or other equity interests of one or more entities organized
under the laws of any jurisdiction outside of the United States)
to become a party to the Subsidiary Guarantee as guarantor in the
manner set forth in clause (i) of Section 5.09(b), (ii) pledge or
cause to be pledged the capital stock or other equity interests of
such Subsidiary in the manner and subject to the limitations
contained in clause (ii) of Section 5.09(b) and (iii) cause any
such Subsidiary to take the actions as contemplated by the second
paragraph of clause (ii) of Section 5.09(b) and by Section
5.09(d).".
SECTION 46. LIENS ON ASSETS. Section 5.11 of the Credit Agreement is
amended:
(a) to add immediately after the phrase "require the Parent" in
the first sentence of such Section the phrase "or any Subsidiary Borrower
(other than Xxxxxxx prior to the Xxxxxxx Merger Effective Date)";
(b) to add immediately after the phrase "obligations of the
Parent" in the first sentence of such Section the phrase ", the
Subsidiary Borrowers";
(c) to add immediately after the phrase "Within 30 days after
any such request, the Parent" in the third sentence of such Section the
phrase "and the applicable Subsidiary Borrower";
(d) to delete the phrase "of the Parent" immediately after the
phrase "appropriate Subsidiary Guarantor" in the third sentence of such
Section;
23
(e) to add immediately after the phrase "Within 45 days after a
request for security pursuant hereto, the Parent" in the fourth sentence
of such Section the phrase "and the applicable Subsidiary Borrower";
(f) to delete the phrase "of the Parent" immediately after the
phrase "appropriate Subsidiary Guarantor" in the fourth sentence of such
Section; and
(g) to add immediately after the phrase "satisfaction of the
Parent's" in the fourth sentence of such Section the phrase "or the
appropriate Subsidiary Borrower's".
SECTION 47. S-4 REGISTRATION STATEMENT. Article 5 of the Credit
Agreement is amended to add immediately after Section 5.13 at the end of such
Article the following new Section 5.14:
"SECTION 5.14. S-4 REGISTRATION STATEMENT. The Parent and
Xxxxxxx will at all times use their respective reasonable best efforts to
expedite the filing of the S-4 Registration Statement with the SEC and to
expedite the process pursuant to which the SEC will declare the S-4
Registration Statement effective.".
SECTION 48. LIENS. Section 6.02 of the Credit Agreement is amended:
(a) to amend paragraph (e) of such Section in its entirety as
follows:
"(e) [Intentionally Omitted];"; and
(b) to amend paragraph (f) of such Section to replace the
phrase "agreements for limited recourse sales by the Parent or any of its
Subsidiaries for cash of such accounts receivable" in such paragraph with
the phrase "the Existing Receivables Program".
SECTION 49. FUNDAMENTAL CHANGES. Section 6.03 of the Credit Agreement
is amended:
(a) to delete in its entirety the parenthetical "(other than
Margin Stock that is disposed of for fair value)" in paragraph (a) of
such Section; and
(b) to delete the words "whether" and "or otherwise" in clause
(i) in paragraph (c) of such Section.
24
SECTION 50. PERMITTED INVESTMENTS. Section 6.04 of the Credit
Agreement is amended:
(a) to add at the end of clause (b) in such Section immediately
before the semicolon the following proviso "; PROVIDED that, prior to the
Xxxxxxx Merger Effective Date, the Parent and its Subsidiaries (other
than Xxxxxxx and its subsidiaries) will not make Investments in the
capital stock of, or make capital contributions to, Xxxxxxx or any
subsidiary of Xxxxxxx (other than to consummate the merger (after the S-4
Registration Statement is declared effective by the SEC) that will result
in Xxxxxxx becoming a Wholly Owned Subsidiary)";
(b) to add at the end of clause (c) in such Section immediately
before the semicolon the following proviso:
"; PROVIDED that the Parent and its Subsidiaries will not make any
loans and advances to (x) Xxxxxxx or any of its subsidiaries,
except that the Parent may make loans and advances to Xxxxxxx
under the Xxxxxxx Intercompany Note or (y) any Inactive Subsidiary
in an amount in excess of $100,000, except loans and advances
related to environmental remediation, litigation and product
liability issues;";
(c) to delete the word "and" at the end of clause (e);
(d) to amend clause (f) in such Section in its entirety to read
as follows:
"(f) capital contributions, or deemed capital
contributions, by Sunbeam Products, Inc. in Sunbeam Asset
Diversification, Inc. pursuant to the Existing Receivables
Program; and"; and
(e) to add immediately after clause (f) in such Section the
following new clause (g):
"(g) Investments as of the Effective Date by the Parent
in any Subsidiary and made by any Subsidiary in the Parent or any
other Subsidiary.".
SECTION 51. RESTRICTED PAYMENTS; VOLUNTARY PAYMENTS. Section 6.06 of
the Credit Agreement is amended:
(a) (i) to delete in their entirety clauses (ii), (v), (vi) and
(vii) in paragraph (a) of such Section, (ii) to renumber clauses (iii)
and (iv) in paragraph (a) of such Section as clauses (ii) and (iii),
respectively, and (iii) to insert at the end of new clause (ii) in
paragraph (a) of such Section the following proviso "PROVIDED that prior
to the Xxxxxxx Merger Effective Date, Xxxxxxx may only declare and pay
dividends ratably with respect to its capital stock which are payable
solely in additional shares of its capital stock, and"; and
25
(b) (i) to add a reference to "(i)" immediately after the
phrase "retire, purchase, acquire, defease or" in paragraph (b) of such
Section and (ii) to add immediately before the period at the end of such
Section the phrase "or (ii) otherwise make any optional prepayment in
respect of the principal of any Indebtedness other than Indebtedness
under this Agreement and any intercompany Indebtedness permitted under
this Agreement".
SECTION 52. TRANSACTIONS WITH AFFILIATES. Section 6.07 of the Credit
Agreement is amended:
(a) to replace the word "and" immediately preceding the
reference to "(d)" in such Section with a comma; and
(b) to add immediately before the period at the end of such
Section the phrase "and (e) the transactions contemplated by the Xxxxxxx
Intercompany Note".
SECTION 53. MODIFICATION OF CERTAIN DOCUMENTS. Section 6.09 of the
Credit Agreement is amended:
(a) to add immediately before the first sentence of such
Section a reference to "(a)";
(b) to replace the word "or" immediately before the reference
to "(ii)" in new paragraph (a) of such Section with a semicolon;
(c) to delete the phrase "which by its terms is expressly
subordinated in right of payment to the Loans and the reimbursement
obligations with respect to LC Disbursements" from clause (ii) in such
Section;
(d) to add immediately before the period at the end of new
paragraph (a) of such Section the following new clause (iii) "or (iii)
except as permitted under the Collateral Documents, consent to or solicit
or enter into any amendment or supplement to, or any waiver or other
modification of any Pledged Instrument (as defined in the Parent Pledge
and Security Agreement) or any document or instrument evidencing the
grant of any collateral securing any Collateral under (and as defined in)
any of the Collateral Documents, including without limitation, any
Pledged Instrument evidencing Indebtedness owed by Xxxxxxx to the
Parent."; and
(e) to add immediately after the first paragraph of such
Section the following new paragraph (b):
"(b) From and after the Fifth Amendment Effective Date,
without the consent of the Required Lenders, (x) the Parent will
not, and will not permit any of its Subsidiaries to, consent to or
solicit or enter into
26
any amendment or supplement to, or any waiver or other
modification of, the Existing Receivables Program Purchase
Agreement, the Receivables Sale and Contribution Agreement
dated as of December 4, 1997 between Sunbeam Products, Inc. and
Sunbeam Asset Diversification, Inc. or any receivables sale
agreements of the type described in clause (y) below if such
amendment, supplement, waiver or other modification (i) would
result in a reduction of the Receivables Purchase Limit, (ii)
would result in an amendment, supplement, waiver or other or
modification of the definitions of the terms "Capital
Investment", "Eligible Receivable", "Applicable Margin
Reserve", "Dilution Reserve", "Fee Reserve" or "Yield Reserve"
if any such amendment, supplement, waiver or modification would
have the effect set forth in clause (iii) below or (iii) would
otherwise reduce the financing available to the Parent or any
of its Subsidiaries pursuant to the Existing Receivables
Program or have an adverse effect on the interests of the
Lenders or the Administrative Agent and (y) the Parent will
not, and will not permit any of its Subsidiaries to, enter into
any receivables sale agreement relating to the Existing
Receivables Program other than a receivables sale agreement
intended to provide for the inclusion of certain accounts
receivable of the Parent or such Subsidiary in the Existing
Receivables Program, which receivables sale agreement shall be
in form and substance reasonably satisfactory to the Required
Lenders.".
SECTION 54. CAPITAL EXPENDITURES. Section 6.11 is amended to add at
the end of such Section the following new paragraph:
"Notwithstanding the foregoing, Consolidated Capital Expenditures
at any time during each of the periods set forth below will not exceed
the amount set forth below opposite such period (in each case excluding
Year 2000 Compatibility Expenditures which would otherwise have been
included in Consolidated Capital Expenditures for such period):
Period Amount
------ ------
January 1, 1999 - June 30, 1999 $40,000,000
January 1, 1999 - September 30, 1999 $50,000,000
January 1, 1999 - December 31, 1999 $55,000,000
January 1, 1999 - March 31, 2000
SECTION 55. LEVERAGE RATIO. Section 6.12 of the Credit Agreement is
amended to delete the proviso in such Section.
SECTION 56. INTEREST COVERAGE RATIO. Section 6.13 of the Credit
Agreement is amended to delete the proviso in such Section.
27
SECTION 57. FIXED CHARGE COVERAGE RATIO. Section 6.14 of the Credit
Agreement is amended to delete the proviso in such Section.
SECTION 58. CONSOLIDATED EBITDA. Section 6.15 is amended in its
entirety to read as follows:
"SECTION 6.15. CONSOLIDATED EBITDA. At the last day of each
month set forth below, Consolidated EBITDA (excluding Year 2000
Compatibility Expenditures, bank amendment expenditures and expenditures
for the Lenders' advisors, in each case to the extent deducted in
determining Consolidated EBITDA) for the period from January 1, 1999
through the last day of such month will not be less than the amount set
forth below opposite such month:
Month Consolidated EBITDA
----- -------------------
April, 1999 $6,300,000
May, 1999 $18,000,000
June, 1999 $31,400,000
July, 1999 $46,200,000
August, 1999 $55,250,000
September, 1999 $74,000,000
October, 1999 $89,900,000
November, 1999 $107,950,000
December, 1999 $113,500,000
January, 2000 $110,000,000
February, 2000 $110,000,000
March, 2000 $121,000,000".
SECTION 59. ADDITIONAL NEGATIVE COVENANTS. Article 6 is amended to add
immediately after Section 6.15 at the end of such Article the following new
Sections 6.16, 6.17, 6.18, 6.19, 6.20 and 6.21:
"SECTION 6.16. OUTSTANDING REVOLVING LOANS. At the last day of
each month set forth below, the aggregate outstanding amount of Revolving
Loans (without giving effect to (x) any reduction of the Revolving Loans
pursuant to Section 2.09(d)(i) in excess of $20,000,000 or (y) any use of
Revolving Loans, including under the Xxxxxxx Revolving Commitment
Reserve, to consummate the merger that will result in Xxxxxxx becoming a
Wholly Owned Subsidiary) will not exceed the amount set forth below
opposite such month:
28
Month Outstanding Revolving Loans
----- ---------------------------
April, 1999 $290,400,000
May, 1999 $303,700,000
June, 1999 $279,100,000
July, 1999 $281,400,000
August, 1999 $264,200,000
September, 1999 $257,300,000
October, 1999 $277,000,000
November, 1999 $224,200,000
December, 1999 $185,200,000
January, 2000 $201,500,000
February, 2000 $217,800,000
March, 2000 $234,100,000
SECTION 6.17. YEAR 2000 COMPATIBILITY EXPENDITURES. At the last
day of each fiscal quarter of the Parent set forth below, Year 2000
Compatibility Expenditures (on an aggregate basis for the Parent and its
Consolidated Subsidiaries) for the period, on a cumulative basis, from
January 1, 1999 through the last day of such fiscal quarter will not be
more than the amount set forth below opposite such fiscal quarter:
Year 2000
Fiscal Quarter Compatibility Expenditures
-------------- --------------------------
June 30, 1999 $37,500,000
September 30, 1999 $45,000,000
December 31, 1999 $50,000,000
SECTION 6.18. CASH MANAGEMENT. The Parent will not, and will not
permit any Subsidiary to fail to maintain a system of cash management
that concentrates in the Concentration Account (a) on a daily basis all
available funds from the domestic operations of the Parent and its
Subsidiaries (except that in connection with certain retail operations,
the related regional store bank accounts will be swept a minimum of once
each week) and (b) within two Business Days after receipt thereof in the
United States by the Parent or any Subsidiary, all funds
29
from the foreign operations of the Parent and its Subsidiaries (which
funds shall be remitted to the Unites States in a manner consistent with
past practices), which Concentration Account shall at all times on and
after May 25, 1999 be subject to the Blocked Account Agreement.
SECTION 6.19. LITIGATION SETTLEMENT. Without the consent of the
Required Lenders (which consent shall not be unreasonably withheld or
delayed), the Parent will not settle any litigation relating to the
restatement in October, 1998 of the financial statements of the Parent
and its Consolidated Subsidiaries for the 1996 and 1997 fiscal years of
the Parent and for the fiscal quarter of the Parent ended March 31, 1998,
requiring the payment of money (not paid by insurance carriers or other
third parties) on an aggregate basis for all such litigation in excess of
$1,000,000.
SECTION 6.20. FOREIGN CREDIT FACILITIES. The Parent will not,
and will not permit any Subsidiary to, fail to use its reasonable best
efforts to maximize utilization of and maintain any foreign credit
facilities in existence on the Fifth Amendment Effective Date which
provide for borrowings in foreign currencies.
SECTION 6.21. EXISTING RECEIVABLES PROGRAM. The Parent will not,
and will not permit any Subsidiary to, fail to use its reasonable best
efforts (a) to maintain the Existing Receivables Program and comply with
the terms and provisions thereof, (b) to maximize the aggregate Capital
Investment up to the Receivables Purchase Limit and (c) if the Capital
Investment falls below the level of Capital Investment assumed in the
Business Plan in respect of the 1999 fiscal year of the Parent (or in
respect of the 2000 fiscal year of the Parent, $30,000,000 for January
and February and $35,000,000 for March) for any period of 30 consecutive
days, to supplement or replace the Existing Receivables Program with an
alternative accounts receivables program, which alternative accounts
receivables program shall be on terms and conditions reasonably
satisfactory to the Required Lenders, such that the aggregate financing
received by the Parent and its Subsidiaries from all such accounts
receivables programs is at least equal to such assumed level of Capital
Investment.".
SECTION 60. EVENTS OF DEFAULT. Article 7 of the Credit Agreement is
amended:
(a) to delete the parenthetical "(with respect to the Parent's
existence)" in paragraph (d) of such Article;
(b) to replace the reference to "$25,000,000" in paragraph (l)
of such Section with a reference to "$40,000,000";
(c) to add immediately after the semicolon at the end of
paragraph (o) of such Article the word "or"; and
30
(d) to add (in order to supersede Section 5.09(c)) immediately
after paragraph (o) at the end of such Article the following new
paragraphs (p) and (q);
"(p) (i) the S-4 Registration Statement has not been
declared effective by the SEC on or before October 30, 1999, (ii)
the Xxxxxxx Merger Effective Date shall not have occurred within
25 Business Days after the SEC declares the S-4 Registration
Statement effective or (iii) the cash consideration (including
without limitation, payments on account of the exercise of any
appraisal rights, but excluding related legal, accounting and
other customary fees and expenses) to consummate the merger that
will result in Xxxxxxx becoming a Wholly Owned Subsidiary exceeds
$87,500,000; or
(q) Xxxxxxx and each of its applicable subsidiaries
shall fail to execute and deliver by May 25, 1999 the Xxxxxxx
Collateral Documents, or the Parent (and to the extent applicable,
the Subsidiaries) shall fail to execute and deliver by May 25,
1999 the Blocked Account Agreement".
SECTION 61. NOTICES. Paragraph (a) of Section 10.01 of the Credit
Agreement is amended in its entirety to read as follows:
"(a) if to a Borrower, to it at Sunbeam Corporation, 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xx.
Xxxxx Xxxxxxx (Telecopy No. (000) 000-0000);".
SECTION 62. WAIVERS; AMENDMENTS. Section 10.02 of the Credit Agreement
is amended:
(a) to add the phrase ", the Subsidiary Borrowers" immediately
following the phrase "entered into by the Parent" and the phrase "or by
the Parent"; and
(b) to add immediately following the phrase "with Revolving
Commitments," in paragraph (b)(iii) of such Section the phrase ", amend
or otherwise modify Schedule B or".
SECTION 63. ASSIGNMENTS. Paragraph (b) of Section 10.04 of the Credit
Agreement is amended (a) to delete the phrase "and, after the Agents have
notified the Parent that primary syndication has been completed, the Parent"
in the parenthetical in clause (i) in the first proviso in such paragraph,
(b) to replace the phrase "each of the Parent and the Administrative Agent
otherwise consent" in clause (ii) in such paragraph with the phrase "the
Administrative Agent otherwise consents" and (c) to delete the second proviso
in such paragraph.
31
SECTION 64. RIGHT OF SETOFF. Section 10.08 of the Credit Agreement is
amended to delete the phrase "held by such Lender or any of its Affiliates"
in the first sentence of such Section.
SECTION 65. ADDITION OF SCHEDULES AND NEW EXHIBIT. The Credit
Agreement is amended:
(a) to replace Schedule 2.01 (Commitments), Schedule 3.01(a)
(Material Domestic Subsidiaries), Schedule 3.01(b) (Material Foreign
Subsidiaries), Schedule 3.06 (Litigation and Environmental Matters) and
Schedule A (Strategic Business Units) thereto with new Schedules in the
forms attached to this Amendment as Exhibits A, B, C, D and E,
respectively,
(b) to amend Schedule 3.16 (Outstanding Principal Indebtedness)
to the Credit Agreement to add immediately after Section I.A.5. in such
Schedule a reference to "C. Subordinated Notes";
(c) to amend Schedule 6.01 to the Credit Agreement (Outstanding
Indebtedness) to the Credit Agreement to add immediately after Section
I.5. in such Schedule a reference to "6. Subordinated Notes at maturity
-- $2,014,000,000"; and
(d) to add new a Schedule 3.17 (Material Unencumbered Assets),
Schedule B (Designated Foreign Currencies) and Schedule C (Non-Core
Assets) thereto (and a corresponding reference in the table of contents
of the Credit Agreement) in the forms attached to this Amendment as
Exhibits F, G and H, respectively.
SECTION 66. CONSENT WITH RESPECT TO XXXXXXX AS SUBSIDIARY BORROWER.
Pursuant to the Second Waiver, dated as of February 12, 1999, under the
Credit Agreement and the Subsidiary Borrowing Agreement, dated as of February
12, 1999 (the "XXXXXXX BORROWING AGREEMENT"), among the Parent, Xxxxxxx and
the Administrative Agent, Xxxxxxx became a Subsidiary Borrower under the
Credit Agreement, PROVIDED, HOWEVER, such Second Waiver provided that without
the prior written consent of the Administrative Agent and the Required
Lenders, Xxxxxxx would not be permitted to borrow Loans in its capacity as a
Subsidiary Borrower and could only request the issuance of Letters of Credit
for its account in accordance with the terms contained in the Xxxxxxx
Borrowing Agreement. The Administrative Agent and the Lenders hereby consent
to permit Xxxxxxx, in its capacity as a Subsidiary Borrower, on and after the
Xxxxxxx Merger Effective Date, to borrow Loans and to request Letters of
Credit in accordance with Article 2 of the Credit Agreement.
SECTION 67. WAIVERS OF FINANCIAL STATEMENT DELIVERY, HEDGING
OBLIGATIONS, FINANCIAL COVENANTS AND REPRESENTATIONS. (a) The Lenders hereby
waive, until April 10, 2000, any Default or Event of Default arising by
reason of the representations and warranties contained in Sections 3.04
(FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE), 3.06 (LITIGATION AND
ENVIRONMENTAL MATTERS) and 3.07 (COMPLIANCE WITH LAWS AND AGREEMENTS) of the
Credit
32
Agreement to have proven to have been materially incorrect when made or
deemed made at any time prior to the Fifth Amendment Effective Date;
(b) The Lenders hereby waive, until April 10, 2000, any Default or
Event of Default arising by reason of the representation and warranty
contained in Section 3.11 (DISCLOSURE) of the Credit Agreement to have proven
to have been materially incorrect when made or deemed made at any time prior
to the Fifth Amendment Effective Date; PROVIDED that such waiver is
conditioned upon the representation and warranty contained in the second
sentence of such Section 3.11 on and after the Fifth Amendment Effective Date
to be true and correct (for purposes of Section 4.04(b), and not materially
incorrect, for purposes of paragraph (c) of Article 7) in respect of all
reports, financial statements, certificates or other information (taken as a
whole) furnished on or after September 30, 1998 by or on behalf of any
Obligor to the Administrative Agent or any Lender.
(c) The Lenders hereby waive, until April 10, 2000, (i) any Default or
Event of Default arising by reason of the representation and warranty contained
in Section 3.04(c) or Section 3.14 (ACQUISITION DOCUMENTS) of the Credit
Agreement to have proven to have been materially incorrect when made or deemed
made and (ii) the condition under Section 4.04(b) that each representation and
warranty referenced in clause (i) be true and correct when made or deemed made.
(d) The Lenders hereby waive any Default or the Event of Default
arising by reason of the failure by the Parent to comply with the requirement
contained in Section 5.01(a) (FINANCIAL STATEMENTS) of the Credit Agreement to
furnish, by March 31, 1999, its audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end of
and for the 1998 fiscal year of the Parent (the "1998 FINANCIAL STATEMENTS");
PROVIDED that such waiver is conditioned upon the 1998 Financial Statements
being furnished to the Administrative Agent (and compliance with Section 5.01(a)
being achieved) on or before April 30, 1999.
(e) The Lenders hereby waive, until April 10, 2000, any Default or
Event of Default arising by reason of the failure by the Parent to comply with
Section 5.10 (APPROVED HEDGING AGREEMENTS) of the Credit Agreement.
(f) The Lenders hereby waive, until April 10, 2000, (i) any Events
of Default arising by reason of the failure by the Parent to comply with
Section 6.12 (LEVERAGE RATIO), Section 6.13 (INTEREST COVERAGE RATIO) and
Section 6.14 (FIXED CHARGE COVERAGE RATIO) of the Credit Agreement at the
last day of the fiscal quarters of the Parent ending June 30, 1998, September
30, 1998 and December 31, 1998 and (ii) any Event of Default arising by
reason of any failure by the Parent to comply with Section 6.12 (LEVERAGE
RATIO), Section 6.13 (INTEREST COVERAGE RATIO) and Section 6.14 (FIXED CHARGE
COVERAGE RATIO) of the Credit Agreement at the last day of any fiscal quarter
of the Parent during the 1999 fiscal year of the Parent and at the last day
of the fiscal quarter of the Parent ending March 31, 2000.
33
(g) The Lenders hereby waive, until April 10, 2000, any Default or
Event of Default that existed on June 30, 1998. This waiver shall not
constitute a waiver of any Default or Event of Default existing on or after
July 1, 1998 after giving effect to this Amendment.
SECTION 68. AGREEMENTS.
(a) In addition to the Lenders' inspection and meeting rights under
Section 5.02 and 5.06 of the Credit Agreement, and the right of the Parent to at
any time request a meeting with the Lenders, if the Parent determines that the
S-4 Registration Statement may not be declared effective by the SEC on or before
October 30, 1999 or that the Coleman merger may not be consummated within 25
Business Days after the S-4 Registration Statement is declared effective by the
SEC, and if the Parent so requests, the Lenders will meet with the Parent on or
about September 30, 1999 and will consider and discuss in good faith any
proposal that the Parent determines to make to amend or waive paragraph (p) of
Article 7 of the Credit Agreement.
(b) Subject to paragraph (c) below, if paragraph (p) of Article 7
is amended at the request of the Parent after the Amendment Effective Date,
including without limitation, to extend the October 30, 1999 date and/or the
25-Business Day time period set forth therein, or the Lenders agree to waive
the occurrence of any Event of Default under such paragraph (p) of Article 7,
the Lenders agree that no fee (including without limitation, any extension,
waiver or amendment fee) will be payable to the Lenders in connection with
any such amendment or waiver, PROVIDED that (i) as of the effective date of
any such amendment or waiver, no other Default or Event of Default shall have
occurred and be continuing and (ii) the Parent has demonstrated to the
reasonable satisfaction of the Lenders that the Parent and its Subsidiaries
were at all times in compliance with Section 5.14 of the Credit Agreement.
(c) (i) The agreement of the Lenders to meet at the request of the
Parent (and to consider and discuss any proposal) as set forth in paragraph (a)
above, and to forego the payment of a fee as set forth in paragraph (b) above,
shall not constitute the Lenders' consent or indicate their willingness to at
any time consent to any amendment or waiver of paragraph (p) of Article 7, (ii)
the Lenders shall have no obligation whatsoever, express or implied, to agree or
consent to any proposed amendment or waiver of paragraph (p) of Article 7, (iii)
the decision whether to agree to any such amendment or waiver shall be at the
sole discretion of the Lenders and (iv) the Lenders expressly reserve all of
their rights and remedies upon the occurrence and during the continuance of any
Default or Event of Default. The reservation of rights set forth in clauses (i)
through (iv) of this paragraph (c) shall remain in effect regardless of (A)
whether any such amendment or waiver request is made before or after the
occurrence of an Event of Default under such paragraph (p) of Article 7, (B) any
fact or circumstance, including the circumstances giving rise to any such
potential request for an amendment or waiver or any such Event of Default, (C)
the fact that the Parent and its Subsidiaries may at all times have complied
with Section 5.14 or (D) whether the Parent determines to propose the payment of
a fee in connection with any such proposed amendment or waiver.
SECTION 69. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
34
SECTION 70. COUNTERPARTS. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
SECTION 71. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. After giving
effect to this Amendment, the Parent and the Subsidiary Borrower (to the
extent applicable to it thereunder) hereby represent and warrant that all
representations and warranties contained in the Credit Agreement are true and
correct on and as of the Amendment Effective Date (unless stated to relate to
a specific earlier date, in which case, such representations and warranties
shall be true and correct as of such earlier date) and that no Default or
Event of Default shall have occurred and be continuing or would result from
the execution and delivery of this Amendment.
SECTION 72. EFFECTIVENESS. This Amendment shall become effective on
the date (the "AMENDMENT EFFECTIVE DATE") on which:
(a) the Administrative Agent shall have received from each of the
Parent, the Subsidiary Borrower and the Lenders, a counterpart hereof signed by
such party or facsimile or other written confirmation (in form satisfactory to
the Administrative Agent) that such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received from each party
thereto a counterpart to an omnibus amendment to the Collateral Documents,
substantially in the form attached to this Amendment as Exhibit I, signed on
behalf of such party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has signed a
counterpart thereof;
(c) the Administrative Agent shall have received from the Parent the
amended and restated intercompany note, substantially in the form attached to
this Amendment as Exhibit J (the "COLEMAN INTERCOMPANY NOTE"), signed on behalf
of Coleman and indorsed to the order of the Administrative Agent;
(d) the Parent shall have received, with a copy for the Administrative
Agent, counterparts to the following documents (collectively with the Coleman
Intercompany Note, the "COLEMAN INTERCOMPANY DOCUMENTS"): (i) a pledge and
security agreement, substantially in the form attached to this Amendment as
Exhibit K, signed on behalf of each party thereto, (ii) a security agreement,
substantially in the form attached to this Amendment as Exhibit L, signed on
behalf of each party thereto, and (iii) a patent security agreement, a trademark
security agreement and a copyright security agreement, substantially in the
forms attached as Exhibits B, C and D, respectively, to Exhibit L to this
Amendment, in each case, signed on behalf of each party thereto;
(e) the Administrative Agent shall have received all certificates,
notes, instruments and other documents required to be delivered to it as
collateral pursuant to the Collateral Documents (after giving effect to the
omnibus amendment referenced in clause (b) above) and the Coleman Intercompany
Documents;
35
(f) the Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders and
dated the Amendment Effective Date) of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, special counsel for the Obligors and of Xxxxx Xxxxxx, Esq., associate
general counsel for the Obligors, and general counsel to Coleman,
collectively covering such matters relating to the Obligors, the Loan
Documents or the Coleman Intercompany Documents as the Required Lenders shall
reasonably request;
(g) the Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Parent, the authorization of the transactions contemplated by the Coleman
Intercompany Documents and any other legal matters relating to any of the
foregoing, all in form and substance satisfactory to the Administrative Agent
and its counsel;
(h) the Lenders shall be (and by their execution hereof, hereby
confirm that they are) satisfied with (a) all of their legal, regulatory and
financial due diligence and (b) the cash flow and other projections and other
financial information provided by the Parent for the period through March 31,
2000; and
(i) the Administrative Agent shall have received payment of all
fees and other amounts due and payable pursuant to the Credit Agreement,
including reimbursement or payment of all out-of-pocket expenses of the
Administrative Agent and the Lenders invoiced to the Parent and required to
be reimbursed or paid by the Parent under the Credit Agreement.
36
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SUNBEAM CORPORATION
By /s/ X.X. Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Chairman, President and CEO
THE XXXXXXX COMPANY, INC.
By /s/ X.X. Xxxxx
---------------------------
Name: Xxxxx Xxxxx
Title: Chairman and CEO
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
individually and as Syndication Agent
By /s/ Xxxxxxx Xxxx
---------------------------
Name: Xxxxxxx Xxxx
Title: Principal
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, individually and as
Documentation Agent
By /s/ X.X. Xxxxxxxx
---------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By /s/ X.X. Xxxxxxx
---------------------------
Name: X.X. Xxxxxxx
Title: SVP
