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Exhibit 10.6
AMENDMENT NO. 6 TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment Agreement") is made and entered into as of this 9th day of November,
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 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 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. AMENDMENT TO CREDIT AGREEMENT.
(a) The definition of "Consolidated Fixed Charge Coverage
Ratio" in Section 1.2 of the Credit Agreement is deleted and the
following new definition is inserted in replacement thereof:
"Consolidated Fixed Charge Ratio" means, with respect
to the Borrower and its Subsidiaries for the Applicable
Period, the ratio of (i) Consolidated EBITDA for such period
to (ii) Consolidated Fixed Charges for such period.
(b) The definition of "Consolidated Net Income" in Section 1.2
of the Credit Agreement is amended by adding the following new proviso
at the end thereof:
; and provided further, however, that there shall be added
back to Consolidated Net Income, through the third fiscal
quarter 2001, the amount of that certain one-time
restructuring charge of up to $40,000,000 incurred in the
fourth fiscal quarter 2000 in connection with the exiting of
certain non-core businesses of the Borrower;
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(c) The definition of "Hedging Obligation" in Section 1.2 of
the Credit Agreement is amended by adding 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.
(d) The definition of "Indebtedness" in Section 1.2 of the
Credit Agreement is amended by adding the following new language at the
end thereof:
or Hedging Obligations with a negative Hedge Value to the
extent included in the calculation of Consolidated Net
Income.
(e) Section 1.2 of the Credit Agreement is amended by adding
the following new definition in alphabetical position:
"Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Hedging Obligation,
the net obligations of the Borrower or any Subsidiary
thereunder equal to the termination value thereof as
determined in accordance with its provisions (if such Hedging
Obligation has been terminated) or the mark to market value
thereof as determined on the basis of available quotations
from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the
applicable Hedging Obligation (if such Hedging Obligation has
not been terminated).
(f) 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 in an aggregate
amount of less than $300,000,000 entered into in the ordinary
course of business which are not for speculative or investment
purposes.
(g) Section 10.22 of the Credit Agreement is hereby deleted
and the following new Section 10.22 is inserted in replacement thereof:
10.22. FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. Permit at any time
Consolidated Net Worth to be less than $295,000,000, such
amount to be increased as at the first day of each fiscal
quarter, beginning with the fiscal quarter beginning January
1, 2001, by an amount equal to (a) seventy-five percent (75%)
of Consolidated Net Income during the immediately preceding
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fiscal quarter, plus (b) one hundred percent (100%) of the Net
Proceeds of any Equity Offering consummated during the
immediately preceding fiscal quarter; PROVIDED, HOWEVER, in no
event shall the Consolidated Net Worth requirement be
decreased as a result of a net loss of the Borrower and its
Subsidiaries (i.e., negative Consolidated Net Income) for any
fiscal quarter. Any increase calculated pursuant hereto shall
be determined based upon financial statements delivered in
accordance with SECTION 9.1(a) AND (b) hereof; PROVIDED,
HOWEVER such increase shall be deemed effective as of the
first day of the fiscal quarter in which such financial
statements are delivered or required to be delivered, if
earlier.
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit
Consolidated Fixed Charge Coverage Ratio to be less than the
ratio indicated below at any time during the period indicated:
Closing Date through
March 30, 2002 1.50 to 1.00
March 31, 2002
and thereafter 1.75 to 1.00
(c) CONSOLIDATED INTEREST COVERAGE RATIO. Permit
Consolidated Interest Coverage Ratio to be less than the ratio
indicated below at any time during the period indicated:
Closing Date through
March 30, 2003 2.50 to 1.00
March 31, 2003
and thereafter 3.00 to 1.00
(d) CONSOLIDATED LEVERAGE RATIO. Permit Consolidated
Leverage Ratio to be greater than the ratio indicated below at
any time during the period indicated:
Closing Date through
March 30, 2002 4.35 to 1.00
March 31, 2002 through
through March 30, 2003 3.75 to 1.00
March 31, 2003
and thereafter 3.25 to 1.00
(e) TOTAL INDEBTEDNESS. Permit the aggregate amount
of Indebtedness owing by the Borrower and its Subsidiaries on
a consolidated basis, less the outstanding amount of the
Subordinated Notes, to exceed $335,000,000 at any time.
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(f) CAPITAL EXPENDITURES. Make or become committed to
make Capital Expenditures, which exceed in the aggregate in
any Fiscal Year of the Borrower described below (on a
noncumulative basis, with the effect that amounts not expended
in any Fiscal Year may not be carried forward to a subsequent
period, provided, however, that amounts not expended in Fiscal
Year 2001 MAY be carried Forward and expended in Fiscal Year
2002 only), the amount set forth opposite each such period:
Fiscal Year Ending: Capital Expenditures Not to Exceed:
------------------- -----------------------------------
December 31, 2000 $28,000,000
December 31, 2001 $50,000,000
December 31, 2002 $30,000,000
December 31, 2003
and each Fiscal Year thereafter $30,000,000
(h) Section 13.9 of the Credit Agreement is hereby deleted and
the following new Section 13.9 is inserted in replacement thereof:
13.9. CONFIDENTIALITY. The Agent and each Lender
(each, a "Lending Party") agrees to keep confidential any
information furnished or made available to it by the Borrower,
any Guarantor or any of their Subsidiaries or Affiliates
(each, a "Disclosing Party) that is marked as confidential or,
with respect to verbal information, explicitly identified as
confidential when furnished ("Confidential Information").
(a) For purposes of this Agreement, the term
"Confidential Information" shall not include information that
(i) is in the Lending Party's possession prior to it being
provided by or on behalf of the Disclosing Party, provided
that such information is not known by the Lending Party to be
subject to another confidentiality agreement with, or other
legal or contractual obligation of confidentiality to, a
Disclosing Party (ii) is or becomes publicly available (other
than through a breach of this Agreement by any Lending Party),
or (iii) becomes available to the Lending Party on a
non-confidential basis, provided that the source of such
information was not known by the Lending Party to be bound by
a confidentiality agreement or other legal or contractual
obligation of confidentiality with respect to such
information.
(b) Notwithstanding the foregoing, a Lending Party
may disclose Confidential Information to:
(1) any governmental agency or regulatory body having
or reasonably claiming to have authority to regulate or
oversee any aspect of the Lending Party's business in
connection with the exercise of such authority or claimed
authority;
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(2) the extent necessary or appropriate to effect or
preserve the Lending Party's security (if any) hereunder or to
enforce any right or remedy provided pursuant to this
Agreement or in connection with any claims asserted by or
against the Lending Party or the Borrower or any other person
or entity involved herewith;
(3) its directors, officers, employees, attorneys,
accountants, and auditors (collectively, the
"REPRESENTATIVES") whom it reasonably determines need to know
such information; and the Lending Party agrees inform the
Representatives to whom it discloses Confidential Information
of the confidential nature of the Confidential Information;
and
(4) any bank or financial institution or other entity
to which the Lending Party has sold or desires to sell an
interest or participation in the Facilities, provided that any
such recipient of such Confidential Information agrees in
writing to keep such Confidential Information confidential as
specified in this Section 13.9;
PROVIDED, HOWEVER, in the event a Lending Party is requested
or required (by interrogatory, court order, subpoena,
administrative proceeding, civil investigatory demand, or any
similar legal process) to disclose any of the Confidential
Information, the Lending Party, in the absence of a protective
order, may disclose such information without liability. The
Lending Party, however, shall, to the extent permitted by law
and as promptly as practicable, notify the Disclosing Party
and the Borrower prior to such disclosure by the Lending Party
so that the Disclosing Party may seek at its sole expense a
protective order or other appropriate remedy.
(c) Each Lending Party acknowledges that, under
certain circumstances, the United States securities laws may
prohibit a person who has received material, non-public
information from an issuer from purchasing or selling
securities of such issuer or from communicating such
information to any other person under circumstances in which
it is reasonably foreseeable that such other person is likely
to purchase or sell such securities. Each Lending Party
further acknowledges that certain Confidential Information
could be considered material non-public information and agrees
that it will not, and it will use reasonable efforts to ensure
that its Representatives will not, trade in the securities of
the Borrower on the basis of such information or communicate
such information to any other person under circumstances in
which it is reasonably foreseeable that such other person is
likely to purchase or sell such securities.
(d) This Section 13.9 shall survive the termination
of this Agreement.
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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. AMENDMENT FEE. The Borrower agrees to pay to the Agent for the
benefit of each Lender signatory hereto on the effective date of this Agreement
an amendment fee (the "Amendment Fee") equal to .20% of the aggregate amount of
the Total Revolving Credit Commitment and the Total Term Loan Commitment which
fee shall be earned as of such date and shall be allocated pro rata among the
Lenders signatory hereto based upon their respective Applicable Commitment
Percentages.
4. 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.
5. 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.
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6. 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.
7. 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.
8. 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.
9. 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:
APPLICA INCORPORATED, FORMERLY KNOWN AS
WINDMERE-DURABLE HOLDINGS, INC., as Borrower
By: /s/ Terry Polistina
-----------------------------------------
Name: Terry Polistina
---------------------------------------
Title: S.V.P. -- Finance and Administration
--------------------------------------
AGENT:
BANK OF AMERICA, N.A., FORMERLY KNOWN AS
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
By: /s/ Adam Kaplan
-----------------------------------------
Name: Adam Kaplan
---------------------------------------
Title: Vice President
--------------------------------------
LENDERS:
BANK OF AMERICA, N.A., FORMERLY KNOWN AS
NATIONSBANK, NATIONAL ASSOCIATION
By: /s/ Adam Kaplan
-----------------------------------------
Name: Adam Kaplan
---------------------------------------
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/ James E. Kennedy, Jr.
-----------------------------------------
Name: James E. Kennedy, Jr.
---------------------------------------
Title: Senior Vice President
--------------------------------------
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
Its: General Partner
By: signature illegible
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES Management II, L.P.
Its: General Partner
By: signature illegible
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ARES III CLO LTD.
By: ARES CLO Management, LLC
Its: General Partner
By: signature illegible
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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BALANCED HIGH-YIELD FUND II LTD
By: BHF (USA) Capital Corporation,
acting through its New York Branch,
as attorney-in-fact
By: /s/ Christopher J. Rivzzi
-----------------------------------------
Name: Christopher J. Rivzzi
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Lisa Moraglia
-----------------------------------------
Name: Lisa Moraglia
---------------------------------------
Title: Portfolio Manager
--------------------------------------
BHF (USA) CAPITAL CORPORATION
By: /s/ Christopher J. Rivzzi
-----------------------------------------
Name: Christopher J. Rivzzi
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Lisa Moraglia
-----------------------------------------
Name: Lisa Moraglia
---------------------------------------
Title: Portfolio Manager
--------------------------------------
BANKATLANTIC
By: /s/ Marcia K. Snyder
-----------------------------------------
Name: Marcia K. Snyder
---------------------------------------
Title: Executive Vice President
--------------------------------------
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/ Scott Kram
-----------------------------------------
Name: Scott Kram
---------------------------------------
Title: SVP
--------------------------------------
By: /s/ Gary Andresen
-----------------------------------------
Name: Gary Andresen
---------------------------------------
Title: VP
--------------------------------------
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BANK LEUMI LE-ISRAEL B.M.
By: /s/ Joseph F. Realini
-----------------------------------------
Name: Joseph F. Realini
---------------------------------------
Title: V.P.
--------------------------------------
BARCLAYS BANK PLC
By: /s/ Gregory Roll
-----------------------------------------
Name: Gregory Roll
---------------------------------------
Title: Associate Director
--------------------------------------
CITIZENS BANK OF MASSACHUSETTS
(AS SUCCESSOR TO US TRUST)
By: /s/ Stephen M. Curran
-----------------------------------------
Name: Stephen M. Curran
---------------------------------------
Title: Vice President
--------------------------------------
DRESDNER BANK LATEINAMERIKA AG,
Miami Agency
By: /s/ Carlos Lamourtte
-----------------------------------------
Name: Carlos Lamourtte
---------------------------------------
Title: Assistant Vice President
--------------------------------------
By: /s/ Frank Huthnance
-----------------------------------------
Name: Frank Huthnance
---------------------------------------
Title: Vice President
--------------------------------------
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ERSTE BANK NEW YORK
By: /s/ Arcinee Hovanessian
-----------------------------------------
Name: Arcinee Hovanessian
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ John S. Runnion
-----------------------------------------
Name: John S. Runnion
---------------------------------------
Title: First Vice President
--------------------------------------
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:
--------------------------------------
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
--------------------------------------
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INTERNATIONAL BANK OF MIAMI
By: /s/ Caridad Errazquin
-----------------------------------------
Name: Caridad Errazquin
---------------------------------------
Title: Vice President
--------------------------------------
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
MONUMENT CAPITAL
By: Alliance Capital Management L.P.,
as Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ James E. Kennedy, Jr.
-----------------------------------------
Name: James E. Kennedy, Jr.
---------------------------------------
Title: Senior Vice President
--------------------------------------
NATIONAL BANK OF CANADA
By: /s/ Jay S. Stein
-----------------------------------------
Name: Jay S. Stein
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Michael Bloomenfeld
-----------------------------------------
Name: Michael Bloomenfeld
---------------------------------------
Title: Vice President and Manager
--------------------------------------
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Peter W. Richer
-----------------------------------------
Name: Peter W. Richer
---------------------------------------
Title: Vice-President
--------------------------------------
SCOTIABANC INC.
By: /s/ Frank Sandler
-----------------------------------------
Name: Frank Sandler
---------------------------------------
Title: Director
--------------------------------------
SUNTRUST BANK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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THE UNDERSIGNED GUARANTORS HEREBY ACKNOWLEDGE AND CONSENT TO THE CONSENT AND
AMENDMENT NO. 6 TO THE AMENDED AND RESTATED CREDIT AGREEMENT AND REAFFIRM THEIR
OBLIGATIONS UNDER THE FACILITY GUARANTY THIS 9TH DAY OF NOVEMBER, 2000.
APPLICA CONSUMER PRODUCTS, INC.
f/k/a WINDMERE CORPORATION
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
WINDMERE HOLDINGS CORPORATION
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
WINDMERE HOLDINGS CORPORATION II
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
BAY BOOKS & TAPES, INC.
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
FORTUNE PRODUCTS, INC.
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
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HP DELAWARE, INC.
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
HP AMERICAS, INC.
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
HPG LLC
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
HP INTELLECTUAL CORP
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
WD DELAWARE, INC.
By: /s/ Cindy Solovei
------------------------------------
Name: Cindy Solovei
------------------------------------
Title: Treasurer
-----------------------------------
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