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EXHIBIT 10.4
CONSENT AND AMENDMENT NO. 4 TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS CONSENT AND AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment Agreement") is made and entered into as of this 30th
day of June, 2000, by and between APPLICA INCORPORATED f/k/a Windmere-Durable
Holdings, Inc., a Florida corporation (the "Borrower"), BANK OF AMERICA, N.A.,
f/k/a NationsBank, National Association, as Agent (the "Agent") and as a Lender,
and the other Lenders party thereto (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 undertaken certain corporate reorganizational
actions (the "Reorganization") described in the memorandum from Lisa R.
Carstarphen, Vice President - Legal Affairs of the Borrower, dated May 19, 2000
attached hereto as Exhibit A (the "Memorandum") and has requested that the
Lenders consent to the Reorganization and agree to amend certain provisions of
the Credit Agreement and the Loan Documents as a result of the Reorganization;
and
WHEREAS, the Lenders are willing to consent to the Reorganization and
the amendments to the Credit Agreement requested by the Borrower, 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. CONSENT. Subject to the conditions set forth in Section 4 herein,
each Lender signatory hereto hereby consents to the Reorganization.
2. AMENDMENT TO CREDIT AGREEMENT. Subject to the conditions set forth
in Section 4 hereof, the Credit Agreement is hereby amended as follows:
(a) All references to "Windmere-Durable Holdings, Inc." and
"the Borrower" are amended to refer to "Applica Incorporated"; and
(b) All references to "Windmere Corporation" are amended to
refer to "Applica Consumer Products, Inc."
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(c) All references to "HP Americas, Inc." are amended to refer
to "Applica Americas, Inc."
(d) The reference in Schedule 8.4 to the authorized shares of
the Borrower is amended from 40,000,000 to 75,000,000.
(e) The reference to Newtech Electronics Industries, Inc.,
together with all related information, shall be deleted from (1) Schedule I to
Exhibit C to the Opinion Letter by Greenberg Traurig dated August 7, 1998
(Exhibit O to the Credit Agreement), and (2) Schedule 8.4 to the Credit
Agreement.
(f) The definition of "Stock Pledge Agreement" in Section 1.2
is hereby deleted in its entirety and the following is inserted in replacement
thereof:
"Stock Pledge Agreement" means, collectively (or individually
as the context may indicate), (i) that certain Stock Pledge
Agreement dated as of June 26, 1998 among the Borrower,
certain Guarantors and the Agent for the benefit of the
Lenders, as amended and restated by that certain Amended and
Restated Stock Pledge Agreement dated as of June 30, 2000
among the Borrower, certain Guarantors and the Agent for the
benefit of the Lenders, and (ii) any additional Stock Pledge
Agreement delivered to the Agent (whether executed
individually or jointly and severally with other
Subsidiaries), substantially in the form attached hereto as
Exhibit G hereto, as each such Stock Pledge Agreement may be
amended, supplemented or replaced from time to time.
3. 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; and
(iii) set forth on Exhibit A hereto is a correct and
complete corporate organizational chart of the Borrower and its Subsidiaries
after giving effect to the Reorganization (including those actions set forth
under Section 7 of the Memorandum).
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(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.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
shall be subject to the receipt by the Agent of (a) replacement Revolving Notes,
Term Notes and Swing Line Note reflecting the name change of the Borrower from
the Borrower, (b) stock certificates and executed stock powers from the Borrower
reflecting the name changes and new shareholders described in the Memorandum,
(c) an Amended and Restated Stock Pledge Agreement executed by the Borrower and
each Subsidiary owning shares of any Domestic Subsidiary after giving effect to
the Reorganization, (d) Uniform Commercial Code amendments on form UCC-3
amending all existing financing statements naming "Windmere-Durable Holdings,
Inc.", "Windmere Corporation" or "HP Americas, Inc." as Debtors and reflecting
the name changes of those entities described in SECTION 2 herein, (e) twenty-six
(26) counterparts of this Amendment Agreement duly executed by all signatories
hereto, and (f) all fees payable by the Borrower to the Agent and the Lenders on
or before the date hereof.
5. EXPENSES. The Borrower agrees to reimburse the Agent and the Lenders
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.
6. 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.
7. 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.
8. 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.
9. 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.
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10. 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.]
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IN WITNESS WHEREOF, the Borrower and the Lenders 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:
ATTEST: APPLICA INCORPORATED, FORMERLY KNOWN
AS WINDMERE-DURABLE HOLDINGS, INC.,
as Borrower
By: /s/ Cindy Solovei
-------------------- -------------------------------
Name: Cindy Solovei
-------------------- -------------------------------
Title: Asst. Vice President - Finance
------------------------------
(CORPORATE SEAL)
AGENT:
BANK OF AMERICA, N.A., FORMERLY KNOWN
AS NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Richard M. Starke
-------------------------------
Name: Richard M. Starke
-------------------------------
Title: M.D.
------------------------------
LENDERS:
BANK OF AMERICA, N.A., FORMERLY KNOWN
AS NATIONSBANK, NATIONAL ASSOCIATION
By: /s/ Richard M. Starke
-------------------------------
Name: Richard M. Starke
-------------------------------
Title: M.D.
------------------------------
ABN AMRO BANK N.V.
By: /s/ Steven L. Hissman
-------------------------------
Name: Steven L. Hissman
-------------------------------
Title: Vice President
------------------------------
By: /s/ Patrick A. Thom
-------------------------------
Name: Patrick A. Thom
-------------------------------
Title: Vice President
------------------------------
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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: /s/ Joel Serebransky
-------------------------------
Name: Joel Serebransky
-------------------------------
Title: Senior Vice President
------------------------------
OAK MOUNTAIN LIMITED
By: ALLIANCE CAPITAL MANAGEMENT L.P.,
as Investment Manager
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, as General Partner
By: /s/ Joel Serebransky
-------------------------------
Name: Joel Serebransky
-------------------------------
Title: Senior Vice President
------------------------------
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
Its: General Partner
By: /s/ Merritt S. Hooper
-------------------------------
Name:
-------------------------------
Title:
------------------------------
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ARES LEVERAGED INVESTMENT FUND II,
L.P.
By: ARES Management II, L.P.
Its: General Partner
By: /s/ Merritt S. Hooper
-------------------------------
Name:
-------------------------------
Title:
------------------------------
ARES III CLO LTD.
By: ARES CLO Management, LLC
Its: General Partner
By: /s/ Merritt S. Hooper
-------------------------------
Name:
-------------------------------
Title:
------------------------------
BALANCED HIGH-YIELD FUND II LTD
By: BHF (USA) Capital Corporation,
acting through its New York
Branch, as attorney-in-fact
By:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
BHF (USA) CAPITAL CORPORATION
By:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
BANKATLANTIC
By: /s/ Ana C. Bolduc
-------------------------------
Name: Ana C. Bolduc
-------------------------------
Title: Senior Vice President
------------------------------
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BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Robert M. Biringer
-------------------------------
Name: Robert M. Biringer
-------------------------------
Title: Executive Vice President
------------------------------
By: /s/ William E. McCollum, Jr.
---------------------------------
Name: William E. McCollum, Jr.
-------------------------------
Title: Vice President
------------------------------
BANK LEUMI LE-ISRAEL B.M.
By: /s/ Ofer Koren
-------------------------------
Name: Ofer Koren
-------------------------------
Title: Senior Vice President
------------------------------
BARCLAYS BANK PLC
By: /s/ Gregory Roll
-------------------------------
Name: Gregory Roll
-------------------------------
Title: Vice President
------------------------------
CIBC (F/K/A CANADIAN IMPERIAL BANK)
By:
-------------------------------
Name:
-------------------------------
Title:
------------------------------
CITIZENS BANK OF MASSACHUSETTS
(AS SUCCESSOR TO US TRUST)
By: /s/ Thomas F. Macina
-------------------------------
Name: Thomas F. Macina
-------------------------------
Title: Vice President
------------------------------
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DRESDNER BANK LATEINAMERIKA AG, MIAMI
AGENCY
By: /s/ Alan Hills
-------------------------------
Name: Alan Hills
-------------------------------
Title: VP, CCB-NA
------------------------------
By: /s/ Frank Huthnance
-------------------------------
Name: Frank Huthnance
-------------------------------
Title: VP, CCB-NA
------------------------------
ERSTE BANK NEW YORK
By: /s/ Arcinee Hovanessian
-------------------------------
Name: Arcinee Hovanessian
-------------------------------
Title: Vice President
------------------------------
By: /s/ Rima Terradista
-------------------------------
Name: Rima Terradista
-------------------------------
Title: Vice President
------------------------------
FLEET BANK, N.A.
By: /s/ Thomas J. Levy
-------------------------------
Name: Thomas J. Levy
-------------------------------
Title: Vice President
------------------------------
FLEET BUSINESS CREDIT CORPORATION
By: /s/ Wes Manus
-------------------------------
Name: Wes Manus
-------------------------------
Title: Vice President
------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: * No longer a Lender in the
Facility.
-------------------------------
Name:
-------------------------------
Title:
------------------------------
HARCH CLO I, LTD.
By: /s/ Michael E. Lewitt
-------------------------------
Name: Michael E. Lewitt
-------------------------------
Title: Authorized Signatory
------------------------------
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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/ C. Errazquin
-------------------------------
Name: Caridad C. Errazquin
-------------------------------
Title: Vice President
------------------------------
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ Toshihiro Hayashi
-------------------------------
Name: Toshihiro Hayashi
-------------------------------
Title: Senior Vice President
------------------------------
NATIONAL BANK OF CANADA
By: /s/ Michael Bloomenfeld
-------------------------------
Name: Michael Bloomenfeld
-------------------------------
Title: Vice President & Manager
------------------------------
By: /s/ Jean Page
-------------------------------
Name: Jean Page
-------------------------------
Title: Vice President
------------------------------
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Todd W. Ethington
-------------------------------
Name: Todd W. Ethington
-------------------------------
Title: Vice President
------------------------------
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SCOTIABANC INC.
By: /s/ P.M. Brown
-------------------------------
Name: P.M. Brown
-------------------------------
Title: Director
------------------------------
SUMMIT BANK
By: /s/ Seiji P. Nakamura
-------------------------------
Name: Seiji P. Nakamura
-------------------------------
Title: Vice President
------------------------------
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THE UNDERSIGNED GUARANTORS HEREBY ACKNOWLEDGE AND CONSENT TO THE CONSENT AND
AMENDMENT NO. 4 TO THE AMENDED AND RESTATED CREDIT AGREEMENT AND REAFFIRM THEIR
OBLIGATIONS UNDER THE FACILITY GUARANTY THIS 30TH DAY OF JUNE, 2000.
APPLICA CONSUMER PRODUCTS, INC. F/K/A
WINDMERE CORPORATION
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
WINDMERE HOLDINGS CORPORATION
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
WINDMERE HOLDINGS CORPORATION II
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
BAY BOOKS & TAPES, INC.
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
FORTUNE PRODUCTS, INC.
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
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HP DELAWARE, INC.
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
APPLICA AMERICAS, INC. F/K/A HP
AMERICAS, INC.
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
HPG LLC
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
HP INTELLECTUAL CORP
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
WD DELAWARE, INC.
By: /s/ Cindy Solovei
--------------------------------
Name: Cindy Solovei
--------------------------------
Title: Asst. Vice President - Finance
-------------------------------
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