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EXHIBIT 10.1
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FORM* OF
SECOND AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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Second Amendment dated as of June 30, 2000 to the Amended and Restated
Revolving Credit and Term Loan Agreement (the "Second Amendment"), by and among
THE HOLMES GROUP, INC. (FORMERLY KNOWN AS HOLMES PRODUCTS CORP.), a
Massachusetts corporation (the "Company"), THE RIVAL COMPANY, a Delaware
corporation ("Rival"), HOLMES PRODUCTS (FAR EAST) LIMITED, an entity organized
under the laws of the Bahamas ("Far East"), ESTEEM INDUSTRIES LIMITED, an entity
organized under the laws of Hong Kong ("Esteem"), RAIDER MOTOR CORPORATION, an
entity organized under the laws of the Bahamas ("Raider"), HOLMES PRODUCTS
(EUROPE) LIMITED, an entity organized under the laws of the United Kingdom
("Holmes UK"), BIONAIRE INTERNATIONAL B.V., a private company with limited
liability incorporated under the laws of the Netherlands ("Bionaire BV"), PATTON
ELECTRIC (HONG KONG) LTD. a corporation organized under the laws of Hong Kong
("Patton"), THE HOLMES GROUP CANADA LTD. (THE SURVIVOR OF THE AMALGAMATION OF
THE RIVAL COMPANY OF CANADA AND HOLMES AIR (CANADA) CORP.), a corporation
organized under the laws of Canada ("Holmes Canada" and, collectively with the
Company, Rival, Far East, Esteem, Raider, Holmes UK, Bionaire BV and Patton, the
"Borrowers", and each individually a "Borrower"), and FLEET NATIONAL BANK
(FORMERLY KNOWN AS BANKBOSTON, N.A.) and the other lending institutions listed
on SCHEDULE 1 to the Credit Agreement (as hereinafter defined) (the "Banks"),
amending certain provisions of the Amended and Restated Revolving Credit and
Term Loan Agreement dated as of February 5, 1999 (as amended by the First
Amendment to Amended and Restated Revolving Credit and Term Loan Agreement dated
as of August, 1999 and as further amended and in effect from time to time, the
"Credit Agreement") by and among the Borrowers, the Banks, FLEET NATIONAL BANK
(FORMERLY KNOWN AS BANKBOSTON, N.A.) in its capacity as administrative agent
(the "Agent"), LEHMAN COMMERCIAL PAPER INC. in its capacity as documentation
agent, BANKBOSTON, N.A. acting through its Hong Kong and London branches as
fronting bank, FLEETBOSTON ROBERTSON STEPHENS INC. (FORMERLY KNOWN AS BANCBOSTON
ROBERTSTON STEPHENS INC.) as syndication agent and arranger and LEHMAN BROTHERS
INC. as co-arranger. Terms not otherwise defined herein which are defined in the
Credit Agreement shall have the same respective meanings herein as therein.
WHEREAS, the Borrowers and the Banks have agreed to modify certain
terms and conditions of the Credit Agreement as specifically set forth in this
Second Amendment and Waiver;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
[* Note that within this filing, the "Section" sign is represented by the
letters "SS."]
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SS.1. AMENDMENT TO SS.1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended as follows:
(a) The definition of "Applicable Margin" is hereby amended on August
15, 2000 by replacing the table contained in the definition of Applicable Margin
on August 15, 2000 with the following table:
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BASE RATE EUROCURRENCY COMMITMENT FEE
LEVEL LEVERAGE RATIO LOANS RATE LOANS RATE
================================================================================
I Greater than or equal to
4.75:1.00 1.50% 3.25% 0.500%
================================================================================
II Less than 4.75:1.00 but
greater
than or equal to
4.25:1.00 1.00% 2.75% 0.500%
================================================================================
III Less than 4.25:1.00 but
greater
than or equal to
3.75:1.00 0.75% 2.50% 0.500%
================================================================================
IV Less than 3.75:1.00 but
greater
than or equal to
3.25:1.00 0.50% 2.25% 0.375%
================================================================================
V Less than 3.25:1.00 0.50% 2.00% 0.375%
================================================================================
(b) The definition of "EBITDA" is hereby amended by deleting such
definition in its entirety and restating it as follows:
EBITDA. With respect to the Company and its Subsidiaries and
any fiscal period, an amount equal to Consolidated Net Income for such
period, PLUS, to the extent deducted in the calculation of Consolidated
Net Income and without duplication, (a) depreciation and amortization
for such period, PLUS, (b) the charges (both cash and non-cash) taken
in the 1999 fiscal year in connection with the closing of Rival's
Fayetteville and New Haven plants, up to an aggregate amount not to
exceed $2,200,000 for such fiscal year, PLUS (c) for purposes of
calculating compliance with the financial covenants set forth in ss.10
hereof only, any deductions to Consolidated Net Income in the December
31, 1999 and June 30, 2000 fiscal quarters arising from the costs and
lost profits associated with the 314/316 heater issue previously
disclosed to the Agent and the Banks, up to an aggregate amount not to
exceed $5,300,000, PLUS (d) other non-cash charges for such period,
PLUS (e) income tax expense for such period, PLUS (f) Consolidated
Total Interest Expense paid or accrued during such period, PLUS (g)
Integration Expenses paid or accrued during such period, PROVIDED,
HOWEVER, such Integration Expenses shall be included to the extent such
Integration Expenses are paid or accrued prior to the second
anniversary of the
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Closing Date, all as determined on a Pro Forma Basis and in accordance
with generally accepted accounting principles.
SS.2. AMENDMENT TO SS.3 OF THE CREDIT AGREEMENT. Section 3.5 of the
Credit Agreement is hereby amended as follows:
(a) Section 3.5.1(c) of the Credit Agreement is hereby amended by
deleting the words "the Base Rate PLUS one and three quarters percent (1.75%)"
which appear in ss.3.5.1(c) and substituting in place thereof the words "(i)
from the Closing Date through August 14, 2000, the Base Rate PLUS one and three
quarters percent (1.75%) and (ii) thereafter, the Base Rate PLUS two percent
(2.00%)"; and
(b) Section 3.5.1(d) of the Credit Agreement is hereby amended by
deleting the words "the Eurocurrency Rate PLUS three and one half percent (3
1/2%)" which appears in ss.3.5.1(d) and substituting in place thereof the words
"(i) from the Closing Date through August 14, 2000, the Eurocurrency Rate PLUS
three and one half percent (3 1/2%) and (ii) thereafter, the Eurocurrency Rate
PLUS three and three quarters percent (3 3/4%)".
SS.3. AMENDMENT TO SS.7 OF THE CREDIT AGREEMENT. Section 7.27 of the
Credit Agreement is hereby amended by deleting ss.7.27 in its entirety and
restating it as follows:
7.27. CHIEF EXECUTIVE OFFICE. The Company's chief executive
office is at 233 Fortune Boulevard, Milford, Massachusetts 01757, at
which location its books and records are kept. Each of the Guarantors'
chief executive office is as set forth in the Security Agreement to
which it is a party. Notwithstanding the foregoing, the Company intends
to move its chief executive offices to 1 Holmes Way, Milford,
Massachusetts 01757 following the completion of the construction of a
newly leased facility and upon such move (and notice to the Agent), the
Company's and its Domestic Subsidiaries' chief executive office will be
1 Holmes Way, Milford, Massachusetts 01757.
SS.4. AMENDMENT TO SS.8 OF THE CREDIT AGREEMENT. Section 8 of the
Credit Agreement is hereby amended as follows:
(a) Section 8.4(h) of the Credit Agreement is hereby amended by
deletingss.8.4(h) in its entirety and restating it as follows:
(h) not later than the beginning of each fiscal year of the
Borrowers and their Subsidiaries, the annual budget of the Borrowers
and their Subsidiaries for such fiscal year (prepared on a monthly
basis); PROVIDED, HOWEVER, notwithstanding the foregoing, the Borrowers
shall be required to deliver the annual budget for the 2001 fiscal year
by not later than November 30, 2000.
(b) Section 8.9 of the Credit Agreement is hereby amended by inserting
immediately after the text of ss.8.9.2. the following:
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8.9.3. COLLATERAL REPORTS. By not later than September 30,
2000, the Borrowers will obtain and deliver to the Agent, or, if the
Agent so elects, will cooperate with the Agent in the Agent's
obtaining, a report of an independent collateral auditor and/or
commercial finance examiner satisfactory to the Agent (which may be
affiliated with one of the Banks), which report shall be in form and
substance satisfactory to the Agent. All such collateral value reports
and/or commercial finance examinations shall be conducted and made at
the expense of the Borrowers.
SS.5. AMENDMENT TO SS.10 OF THE CREDIT AGREEMENT. Section 10 of the
Credit Agreement is hereby amended as follows:
(a) Section 10.1 of the Credit Agreement is hereby amended by replacing
the ratio "5.25:1" appearing in the table therein opposite the period "October
1, 2000 to December 31, 2000" with the ratio "5.40:1".
(b) Section 10.2 of the Credit Agreement is hereby amended by replacing
the ratio "1.95:1" appearing in the table therein opposite the period "October
1, 2000 to December 31, 2000", with the ratio "1.80:1".
SS.6. AMENDMENT TO THE CREDIT AGREEMENT. The Credit Agreement is
further amended by amending SCHEDULES 7.7, 7.19 and 7.20 to the Credit Agreement
by supplementing each such Schedule with the information set forth on SCHEDULE A
hereto.
SS.7. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this Second Amendment, executed by the Borrowers,
each Guarantor and the required Banks; and
(b) an amendment fee for each Bank that consents to this Second
Amendment on or prior to 12:00 noon (Boston time) on August 11, 2000 in an
amount equal to twenty-five basis points on each such consenting Bank's
Commitment plus the outstanding amount of such consenting Bank's Term Loans.
SS.8. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
repeats, on and as of the date hereof, each of the representations and
warranties made by it in ss.7 of the Credit Agreement (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse to
the Company and its Subsidiaries taken as a whole, and to the extent that such
representations and warranties relate expressly to an earlier date), PROVIDED,
that all references therein to the Credit Agreement shall refer to such Credit
Agreement as amended hereby. In addition, each of the Borrowers hereby
represents and warrants that the execution and delivery by each Borrower of this
Second Amendment and the performance by each Borrower of all of their agreements
and obligations under the Credit Agreement as amended hereby are
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within the corporate authority of each Borrower and have been duly authorized by
all necessary corporate action on the part of each Borrower.
SS.9. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto or
delivered thereunder, including, but not limited to the Security Documents, are
hereby ratified and confirmed in all respects and shall continue in full force
and effect. The Credit Agreement and this Second Amendment shall be read and
construed as a single agreement. All references to the Credit Agreement in the
Credit Agreement or any Loan Document shall hereafter refer to the Credit
Agreement as amended hereby.
SS.10. NO WAIVER. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrowers or any rights of the Agent, the Documentation Agent or the Banks
consequent thereon.
SS.11. COUNTERPARTS. This Second Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
SS.12. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a document under seal as of the date first above written.
THE HOLMES GROUP, INC.
By:
---------------------------------
Title:
THE RIVAL COMPANY
By:
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Title:
HOLMES PRODUCTS (FAR EAST) LIMITED
By:
---------------------------------
Title:
ESTEEM INDUSTRIES LIMITED
By:
---------------------------------
Title:
RAIDER MOTOR CORPORATION
By:
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Title:
BIONAIRE INTERNATIONAL B.V.
By:
---------------------------------
Title:
HOLMES PRODUCTS (EUROPE) LIMITED
By:
---------------------------------
Title:
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PATTON ELECTRIC (HONG KONG) LTD.
By:
---------------------------------
Title:
THE HOLMES GROUP OF CANADA LTD.
By:
---------------------------------
Title:
FLEET NATIONAL BANK (F/K/A BANKBOSTON, N.A.)
By:
---------------------------------
Title:
SYNDICATED LOAN FUNDING TRUST
BY: LEHMAN COMMERCIAL PAPER INC., NOT IN ITS
INDIVIDUAL CAPACITY, BUT
SOLELY AS ASSET MANAGER
By:
---------------------------------
Title:
HELLER FINANCIAL, INC.
By:
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Title:
LASALLE BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Title:
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COMERICA BANK
By:
---------------------------------
Title:
KEY CORPORATE CAPITAL INC.
By:
---------------------------------
Title:
CITIZENS BANK OF MASSACHUSETTS, A
MASSACHUSETTS BANK
By:
---------------------------------
Title:
STAR BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Title:
ANTARES CAPITAL CORPORATION
By:
---------------------------------
Title:
NATIONAL CITY BANK
By:
---------------------------------
Title:
THE PROVIDENT BANK
By:
---------------------------------
Title:
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FRANKLIN FLOATING RATE TRUST
By:
---------------------------------
Title:
THE TRAVELERS INSURANCE COMPANY
By:
---------------------------------
Title:
TRAVELERS CORPORATE LOAN FUND INC.
BY: TRAVELERS ASSET MANAGEMENT
INTERNATIONAL COMPANY LLC
By:
---------------------------------
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By:
---------------------------------
Title:
MAGNETITE ASSET INVESTORS LLC
By:
---------------------------------
Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
By:
---------------------------------
Title:
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PILGRIM PRIME RATE TRUST
By:
---------------------------------
Title:
PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD.
By:
---------------------------------
Title:
SEQUILS-PILGRIM I, LTD.
By:
---------------------------------
Title:
CAPTIVA IV FINANCE LTD.
AS ADVISED BY PACIFIC INVESTMENT
MANAGEMENT COMPANY LLC
By:
---------------------------------
Title:
PILGRIM CLO 1999 - 1 LTD.
By:
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Title:
GREAT POINT CLO 1999 - 1 LTD.
By:
---------------------------------
Title:
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FIRST MASSACHUSETTS BANK
By:
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Title:
SUMMIT BANK
By:
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Title:
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
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Title:
CHASE BANK OF TEXAS, N.A.
By:
---------------------------------
Title:
VAN KAMPEN SENIOR INCOME TRUST
By:
---------------------------------
Title:
VAN KAMPEN PRIME RATE INCOME TRUST
By:
---------------------------------
Title:
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RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents to
the foregoing Second Amendment as of June 30, 2000, and agrees that the Amended
and Restated Guaranty dated as of February 5, 1999 from each of Holmes
Manufacturing Corp., Holmes Air (Taiwan) Corp., Holmes Motor Corporation, Patton
Electric Company, Inc., Patton Building Products Inc. and Rival Consumer Sales
Corporation (collectively, the "Guarantors") in favor of the Agent for the
benefit of the Agent and the Banks and all other Loan Documents to which each of
the Guarantors are a party remain in full force and effect, and each of the
Guarantors confirms and ratifies all of its obligations thereunder.
HOLMES MANUFACTURING CORP.
By:
---------------------------------
Title:
HOLMES AIR (TAIWAN) CORP.
By:
---------------------------------
Title:
HOLMES MOTOR CORPORATION
By:
---------------------------------
Title:
PATTON ELECTRIC COMPANY, INC.
By:
---------------------------------
Title:
PATTON BUILDING PRODUCTS, INC.
By:
---------------------------------
Title:
RIVAL CONSUMER SALES CORPORATION
By:
---------------------------------
Title:
