EX-10.1 3 g72498ex10-1.txt AMEND.#7 TO AMEND. & RESTATED CREDIT AGREEMENT 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/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer AGENT: BANK OF AMERICA, N.A., as Agent By: /s/ Kathryn W. Robinson ------------------------------------- Name: Kathryn W. Robinson Title: Managing Director LENDERS: BANK OF AMERICA, N.A. By: /s/ Kathryn W. Robinson ------------------------------------- Name: Kathryn W. Robinson 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/ Patricia M. Navis ------------------------------------- Name: Patricia M. Navis Title: Vice President ARES LEVERAGED INVESTMENT FUND II, L.P. By: ARES Management II, L.P. Its: General Partner By: /s/ Patricia M. Navis ------------------------------------- Name: Patricia M. Navis Title: Vice President ' ARES III CLO LTD. By: ARES CLO Management, LLC Its: General Partner By: /s/ Patricia M. Navis ------------------------------------- Name: Patricia M. Navis Title: Vice President ARES IV CLO LTD. By: ARES CLO Management IV, LP Its: Investment Manager By: ARES CLO GP IV, LLC Its: Managing Member By: /s/ Patricia M. Navis ------------------------------------- Name: Patricia M. Navis 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/ Jeffrey Bilus ------------------------------------- Name: Jeffrey Bilus Title: Senior Vice President BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC. By: ------------------------------------- Name: ------------------------------------ Title: ---------------------------------- BANK LEUMI LE-ISRAEL B.M. By: /s/ Joseph F. Realini ------------------------------------- Name: Joseph F. Realini Title: Vice President 5 BARCLAYS BANK PLC By: ------------------------------------- Name: ------------------------------------ Title: ---------------------------------- CITIZENS BANK OF MASSACHUSETTS (as successor to US TRUST) By: /s/ Daniel G. Eastman ------------------------------------- Name: Daniel G. Eastman Title: Senior Vice President DRESDNER BANK LATEINAMERIKA AG, Miami Agency By: /s/ Frank Huthnance ------------------------------------- Name: Frank Huthnance Title: Vice President By: /s/ Carlos Lamourtte ------------------------------------- Name: Carlos Lamourtte Title: Assistant Vice President ERSTE BANK NEW YORK By: /s/ Paul Judicke ------------------------------------- Name: Paul Judicke Title: Vice President By: /s/ John Runnion ------------------------------------- Name: John Runnion Title: Managing Director FLEET NATIONAL BANK (successor by merger to Fleet Bank, N.A.) By: /s/ Thomas J. Levy ------------------------------------- Name: Thomas J. Levy Title: Vice President FLEET BUSINESS CREDIT CORPORATION By: ------------------------------------- Name: ------------------------------------ Title: ---------------------------------- 6 HARCH CLO I, LTD. By: /s/ Michael E. Lewitt ------------------------------------- Name: Michael E. Lewitt Title: Authorized Signatory INDOSUEZ CAPITAL FUNDING III, LIMITED By: INDOSUEZ CAPITAL, as Portfolio Advisor By: /s/ Melissa Marano ------------------------------------- Name: Melissa Marano Title: Vice President INTERNATIONAL BANK OF MIAMI By: /s/ Caridad Errazquin ------------------------------------- Name: Caridad Errazquin 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/ Jean Page ------------------------------------- Name: Jean Page Title: Vice President By: /s/ Stephen J. Jeziorowski ------------------------------------- Name: Stephen J. Jeziorowski Title: Assistant Vice President 7 NATIONAL CITY BANK By: /s/ Peter W. Richer ------------------------------------- Name: Peter W. Richer Title: Vice President SCOTIABANC INC. By: /s/ W. J. Brown ------------------------------------- Name: W. J. Brown Title: Managing Director SUNTRUST BANK By: /s/ David G. Jones ------------------------------------- Name: David G. Jones 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/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer WINDMERE HOLDINGS CORPORATION By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer BAY BOOKS & TAPES, INC. By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer HP DELAWARE, INC. By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer HP AMERICAS, INC. By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer HPG LLC By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer 9 HP INTELLECTUAL CORP By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer WD DELAWARE, INC. By: /s/ Adam Kaplan ------------------------------------- Name: Adam Kaplan Title: Treasurer 10