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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a)
AND AMENDMENT THERETO FILED PURSUANT TO RULE 13d-2(a)
APPLICA INCORPORATED
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(Name of issuer)
COMMON STOCK, $.10 PAR VALUE
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(Title of class of securities)
03815A 10 6
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(CUSIP number)
LISA R. CARSTARPHEN, VICE PRESIDENT - LEGAL AFFAIRS
APPLICA INCORPORATED
5980 MIAMI LAKES DRIVE
MIAMI LAKES, FLORIDA 33014
(305) 816-6025
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(Name, address and telephone number of person
authorized to receive notices and communications)
March 15, 1999
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ]
(Continued on following pages.)
(Page 1 of 14 Pages)
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CUSIP NO. 03815A 10 6 SCHEDULE 13D PAGE 2 OF 14 PAGES
---------------- --- ----
(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
DAVID M. FRIEDSON
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS*
See Item 3.
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ]
IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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(7) SOLE VOTING POWER
NUMBER OF 1,873,584
SHARES --------------------------------------------------------
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH --------------------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH 1,873,584
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(10) SHARED DISPOSITIVE POWER
0
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,873,584
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(12) CHECK BOX IF AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.9%
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(14) TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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1 SECURITY AND ISSUER.
This Statement relates to the Common Stock, par value $.10 per share
(the "Common Stock"), of Applica Incorporated, f/k/a Windmere-Durable
Holdings, Inc. ("Applica"). The executive offices of Applica are
located at 5980 Miami Lakes Drive, Miami Lakes, Florida 33014.
2 IDENTITY AND BACKGROUND.
(a) Name: David M. Friedson
(b) Business Address: 5980 Miami Lakes Drive, Miami Lakes, Florida
33014
(c) Present Principal Occupation: Chairman of the Board, Chief
Executive Officer and President of Applica Incorporated. Applica is
located at 5980 Miami Lakes Drive, Miami Lakes, Florida 33014.
(d) The Reporting Person has not been convicted in a criminal
proceeding in the last five years.
(e) During the last five years, the Reporting Person has not been a
party to a civil proceeding of a judicial or administrative body of
competent jurisdiction which resulted in him being subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or state
securities laws or finding any violation with respect to such laws.
(f) The Reporting Person is a United States citizen.
3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
All shares beneficially owned by the Reporting Person were previously
acquired through gifts from family members, the exercise of stock
options and purchases with personal funds, except as noted below. In
April 1999, the Reporting Person purchased 210,000 shares of Common
Stock from Applica. Applica provided a loan to the Reporting Person in
the amount of $1,496,250, which was used to purchase such shares. Such
loan is secured by 210,000 shares of Common Stock of Applica.
4 PURPOSE OF TRANSACTION.
The Reporting Person acquired the shares of Common Stock for investment
purposes and does not currently have any plans or proposals which
relate to or would result in any of the events or transactions
described in Item 4 (a) - (j) of Schedule 13D; provided, however, that
the Reporting Person may, from time to time, acquire or dispose of
shares of Common Stock in the open market or be granted or exercise
stock options to acquire shares of Common Stock.
5 INTEREST IN SECURITIES OF ISSUER.
(a) The Reporting Person has beneficial ownership of 1,873,584 shares
of Common Stock, or 7.9% of the outstanding Common Stock of Applica
(based on 23,057,566 shares of Common Stock outstanding as of October
6, 2000). Such shares include:
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o 26,358 shares of Common Stock held in a 401(k) Plan for the
Reporting Person; and
o 742,705 shares that the Reporting Person has the right to
acquire upon the exercise of options exercisable within the
next 60 days.
Such shares do not include 379,835 shares that the Reporting Person has
the right to acquire upon the exercise of stock options that are not
exercisable within the next 60 days.
(b) The Reporting Person has sole power to vote, or direct the vote,
and sole power to dispose, or direct the disposition, of 1,873,584
shares of Common Stock and shared power to vote and shared power to
dispose of 0 shares.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Item 3.
7 MATERIAL TO BE FILED AS EXHIBITS.
A. Secured Promissory Note in the amount of $1,496,250 dated April 14,
1999 by David M. Friedson in favor of Applica Incorporated.
B. Pledge and Security Agreement dated April 14, 1999 by and between
David M. Friedson and Applica Incorporated.
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SIGNATURE
After reasonable inquiry and to the best of knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
October 9, 2000
---------------------
(Date)
/s/ David M. Friedson
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David M. Friedson
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EXHIBIT A
SECURED PROMISSORY NOTE
$1,496,250 April 14, 1999
New York, New York
FOR VALUE RECEIVED, David M. Friedson (the "Borrower"), does hereby
promise to pay to Windmere-Durable Holdings, Inc., a Florida corporation (the
"Company"), or order, the principal sum of One Million, Four Hundred and
Ninety-Six Thousand, Two Hundred and Fifty Dollars ($1,496,250) (the "Principal
Balance"), together with interest on the Principal Balance from and after the
date hereof until paid at an annual rate prior to maturity or default equal to
LIBOR plus 2.75% per annum, to be adjusted in accordance with the comparable
change in the borrowing rate on the Company's revolving credit loan with
NationsBank, National Association (the "Rate"), with the Rate in effect on the
first day of a month being applicable to the entire month. All sums payable
hereunder shall be payable at the offices of the Company, 5980 Miami Lakes
Drive, Miami Lakes, Florida 33014, or at such other place or places as the
holder hereof may from time to time otherwise direct in writing, in such coin
and currency as shall be at the time of payment legal tender for the payment of
public and private debts in the United States of America.
The entire Principal Balance of this Note, plus all accrued interest
shall be payable on April 14, 2002 (the "Payment Date"). Interest on this Note
shall be computed on basis of the actual number of days elapsed over a 365-day
year. Any payment of principal or interest under this Note which is not made
within 15 days of the Payment Date shall bear interest from the due date at the
Rate plus two percent (2%).
This Note and the indebtedness evidenced hereby may be prepaid, in
whole or in part, without notice, penalty or premium at any time and from time
to time. Any prepayment shall first be applied to unpaid interest and the
remainder, if any, to the unpaid Principal Balance.
The Company shall have the right to declare the amount of the total
unpaid Principal Balance, together with all accrued and unpaid interest thereon,
immediately due and payable upon the adjudication of the Borrower as bankrupt,
or upon the taking of any voluntary action by the Borrower or 90 days following
the taking of any involuntary action against the Borrower seeking an
adjudication of the Borrower as bankrupt, or seeking relief by or against the
Borrower under any provision of the Bankruptcy Code, which, in the case of an
involuntary action, is not dismissed within such time. Any payment of principal
or interest under this Note which is not made within 30 days of its due date
shall bear interest from the due date at the highest rate of interest permitted
under Florida law.
The Borrower agrees to pay all costs, fees and expenses incurred by a
holder hereof, including attorneys' fees (including those for appellate
proceedings) incurred in connection with the collection or attempted collection
or enforcement hereof, whether or not legal proceedings may have been
instituted. The Borrower shall pay all Florida or applicable state documentary
stamp taxes, if any, due in connection with the execution and delivery of this
Note.
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In the event that the Borrower makes any payment of interest, fees or
other charges, however denominated, pursuant to this Note, which payment causes
the interest paid to the Company to exceed the maximum rate of interest
permitted under Florida law, any excess over such maximum shall be applied in
reduction of the Principal Balance owed to the Company as of the date of such
payment, or if such excess exceeds the amount of the Principal Balance owed to
the Company as of the date of such payment, the difference shall be paid by the
Company to the Borrower.
THE BORROWER HEREBY AND THE COMPANY BY ACCEPTANCE OF THIS NOTE,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREOF, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS NOTE, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE COMPANY MAKING THE LOAN EVIDENCED BY THIS NOTE.
This Note cannot be changed or modified other than pursuant to a
written instrument signed by the parties hereto. This Note cannot be assigned by
the Borrower, in whole or in part, unless the Company shall consent in writing
prior to such assignment. The Company may assign this Note to any direct or
indirect subsidiary or affiliate of the Company.
All past due and delinquent sums hereunder, both principal and
interest, shall bear interest at the rate determined above until such sums have
been paid.
The Borrower hereby waives demand, presentment for payment, protest,
notice of protest, filing of suit and diligence in collecting this Note, and
consents that the time of all payments or any part thereof may be extended,
rearranged, renewed or postponed by the Company. The Borrower shall pay all
amounts owing under this Note without set-off, counterclaim, deduction or
withholding for any reason whatsoever.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or by Federal Express, Express Mail or similar overnight
delivery or courier service or delivered (in person or by telecopy, telex or
similar communications equipment) against receipt to the party to whom it is to
be given, (i) if to the Company, at its address at 5980 Miami Lakes Drive, Miami
Lakes, Florida 33014, Attention: President, (ii) if to the Borrower, to 300
Central Park West, Apt. 21D, New York, New York 10024, or (iii) in either case,
to such other address as the party shall have furnished in writing in accordance
with the provisions of this Section. Any notice or other communication given
hereunder shall be deemed given and received, if given by hand, when a writing
containing such notice is received by the entity or person to whom addressed or,
if given by mail, five business days after a certified or registered letter
containing such notice, with postage prepaid, is deposited in the United States
mail, except for a notice changing a party's address which shall be deemed given
at the time of receipt thereof. Any notice given by other means permitted by
this paragraph shall be deemed given at the time of receipt thereof.
The obligations of the Borrower under this Note are secured by the
grant by the Borrower to the Company of a security interest in and to certain
shares of Common Stock of the Company owned by the Borrower pursuant to the
terms and subject to the conditions of a Pledge and Security Agreement of even
date herewith.
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This Note shall be governed by and construed in accordance with the
laws of the State of Florida without regard to any conflict of law rule or
principle that would give effect to the laws of another jurisdiction.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed as
of the date first above written.
Attest:
/s/ Harry D. Schulman /s/ David M. Friedson
--------------------- ---------------------
David M. Friedson
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EXHIBIT B
PLEDGE AND
SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (the "Agreement") made as of this
14th day of April, 1999 by David M. Friedson (the "Pledgor"), in favor of
Windmere-Durable Holdings, Inc., a Florida corporation, and its successors and
assigns (the "Holder").
W I T N E S S E T H:
Section 1. CERTAIN DEFINED TERMS.
As used in this Agreement:
(1) The term "Loan Documents" shall mean this Agreement and the Secured
Promissory Note dated of even date herewith (each as amended, modified or
supplemented, from time to time), as well any other documents, instruments or
agreements executed in connection with this Agreement or the Obligations.
(2) The term "Obligations" shall mean all obligations and liabilities
(primary, secondary, direct, indirect, contingent, sole, joint or several,
whether similar or dissimilar or related or unrelated) of the Pledgor in favor
of the Holder, due or to become due, now existing or hereafter incurred,
contracted or acquired.
(3) The term "Event of Default" shall mean any one of the following:
(a) a default in respect of any of the terms and conditions set forth in this
Agreement; (b) if any representation or warranty made herein is false or
misleading in any material respect; or (c) if the Pledgor shall fail to make any
payment due to the Holder pursuant to the Loan Documents when due and such
failure to make payment is not cured within 30 days after written notice to the
Pledgor of such failure;
(4) The term "Pledged Collateral" shall have the meaning set forth in
Section 2 of this Agreement.
Section 2. SECURITY.
As collateral security for the payment and performance of the
Obligations, the Pledgor hereby pledges, hypothecates and delivers to the
Holder, and grants to the Holder a security interest in, the following:
(1) 210,000 of the duly authorized, issued and outstanding shares
of common stock of the Holder (the "Pledged Shares"); and
(2) Stock powers duly endorsed in blank covering the Pledged
Shares;
together with all increases and additions, renewals, substitutions, or exchanges
of any of the foregoing,
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including without limitation any proceeds of insurance, indemnity, warranty or
guaranty payable with respect to the foregoing, and all rights incident to,
declared or granted in connection with, any property hereinabove described or
referred to, and all proceeds of any of the foregoing, all of the items
described above being herein collectively referred to as the "Pledged
Collateral."
In the event the Pledgor receives any of the Pledged Collateral or any
proceeds (cash or non-cash) thereof (whether inadvertently or otherwise),
Pledgor acknowledges that same shall have been received in trust for the Holder
and agrees to deliver same to the Holder in the form so received, together with
any stock or bond powers, assignments, endorsements, or other documents as the
Holder may require to establish, perfect or protect the Holder's interest in
respect of such Pledged Collateral.
Section 3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Pledgor hereby represents and warrants as follows:
A. Pledgor is the sole legal and equitable owner of the Pledged
Collateral free and clear of all liens, security interests, charges and
encumbrances of every kind and nature, and has good right and lawful authority
to pledge and deliver the Pledged Collateral in the manner hereby done or
contemplated; the Pledged Shares have been duly and validly issued and are fully
paid and non-assessable; the grant of a security interest in the Pledged
Collateral does not violate any provision of any indenture, agreement or other
instrument to which the Pledgor is a party or by which the Pledgor or any of the
Pledgor's properties or assets are bound, and will not conflict with or result
in a breach that would constitute (with due notice or lapse of time or both) a
default under any provision of such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of Pledgor, other than as
provided herein.
B. Pledgor hereby covenants with the Holder as follows:
(i) The Pledgor at its expense will warrant and defend title
to the Pledged Collateral against the claims of all third parties;
(ii) The Pledgor will not assign, transfer or otherwise
dispose of the Pledged Collateral or create or suffer to be created or
to exist any lien, security interest, encumbrance, charge or equity in
or on the Pledged Collateral or any part thereof, or upon the income or
profit thereof, other than the security interest herein granted; and
(iii) The Pledgor will, from time to time, promptly pay and
discharge all taxes, assessments and other governmental charges imposed
upon the Pledged Collateral or upon the proceeds, income or profits
therefrom.
Section 4. APPOINTMENT OF AGENTS; REGISTRATION; NOMINEE NAME.
Immediately upon an Event of Default, the Holder shall have the right
to appoint one or more agents for the purpose of retaining physical possession
of the certificate or instruments representing or evidencing the Pledged
Collateral, which may be held (in the discretion of the Holder) in the name of
the Pledgor, endorsed or assigned in blank or in favor of the Holder, or in the
name of the Holder or any nominee or nominees of the Holder or an agent
appointed by the Holder. In addition, immediately upon
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an Event of Default, the Holder shall have the right to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations for any purpose consistent with
its performance of this Agreement.
Section 5. VOTING RIGHTS; DIVIDENDS, ETC.
A. So long as no Event of Default shall have occurred and be
continuing:
The Pledgor shall be entitled to exercise any and all voting and
consensual rights and powers relating or pertaining to the Pledged Collateral or
any part thereof for any purpose not inconsistent with the terms of this
Agreement.
B. Upon the occurrence and continuance of an Event of Default, all
rights of the Pledgor to exercise the voting and consensual rights and powers
which they are entitled to exercise pursuant to Section 5(A) shall cease, and
all such rights shall thereupon become vested in the Holder, which shall have
the sole and exclusive right and authority to exercise such voting and/or
consensual rights and powers.
Section 6. REMEDIES UPON DEFAULT.
If any Event of Default shall have occurred and be continuing, then the
Holder may, without written notice, exercise its rights and remedies, at the
same or different times, permitted under the Loan Documents and under applicable
law. In exercising such rights and remedies, the Holder may, in its sole
discretion;
A. apply the cash (if any) then held by it hereunder to the payment of
the Obligations then outstanding in such order as the Holder may elect in its
sole discretion, and
B. if there shall be no such cash or the cash so applied shall be
insufficient to pay all of the Obligations, sell the Pledged Collateral, or any
part thereof, at any public or private sale, for cash, upon credit or for future
delivery, as the Holder shall reasonably deem appropriate. The Holder shall be
authorized at any such sale (to the extent it deems it advisable to do so, in
its sole discretion) to restrict the prospective bidders or purchasers to
persons who will represent and agree that they conform to all relevant criteria
under any applicable federal or state securities or other laws, and upon
consummation of any such sale the Holder shall have the right to assign,
transfer and deliver to the purchaser or purchasers thereof the Pledged
Collateral so sold. The Holder shall give the Pledgor at least ten days' written
notice of the Holder's intention to make any such public or private sale. At any
such sale, the Pledged Collateral, or portion thereof, may be sold in one lot as
an entirety or in separate lots, as the Holder may determine, and the Holder may
bid (in the form of cancellation of indebtedness for which bid may be in whole
or in part) and purchase for its own account all or any part of the Pledged
Collateral. The Holder shall not be obligated to make any sale of Pledged
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of Pledged Collateral may have been given. The Holder may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was, so adjourned. In case sale of all or any part
of the Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Holder until the sale price is paid by
the purchaser or purchasers thereof, but the Holder shall incur no liability in
case any such purchaser or purchasers shall fail to take up and pay for the
Pledged
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Collateral so sold and, in case of any such failure, such Pledged Collateral may
be sold again upon like notice.
Section 7. AUTHORITY OF THE HOLDER, ETC.
The Pledgor agrees that the Holder's recovery against the Pledgor under
this Agreement shall not be limited to recourse against the Pledged Collateral.
The Pledgor agrees to indemnify and hold harmless the Holder and any of its
agents from and against any and all liability incurred by the Holder (or any
such agent) hereunder or in connection herewith, unless such liability shall be
due to willful misconduct or gross negligence on the part of the Holder or such
agent. The Holder shall have and be entitled to exercise all such powers
hereunder as are specifically delegated to the Holder by the terms hereof,
together with such powers as are reasonably incidental thereto. The Holder may
execute any of its duties hereunder by or through agents or employees and shall
be entitled to retain counsel and to act in reliance upon the advice of such
counsel concerning all matters pertaining to its rights and duties hereunder.
Neither the Holder (except as provided in this Section 7 with respect to willful
misconduct or gross negligence), nor any director, officer or employee of the
Holder, except as otherwise provided under applicable law, shall be liable for
any action taken or omitted to be taken by it or them hereunder in connection
herewith (including, without limitation, the failure to sell the Pledged
Collateral to preserve or maximize the value thereof), nor shall the Holder be
responsible for the validity, effectiveness or sufficiency hereof or in
connection herewith. The Holder shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons.
Section 8. HOLDER APPOINTED ATTORNEY-IN-FACT.
Pledgor hereby appoints the Holder as the Pledgor's attorney-in-fact
for the purposes of carrying out the provisions of this Agreement and taking any
action and executing any instrument which the Holder may reasonably deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, upon the occurrence and continuance of an Event of Default, the
Holder shall have the right and power to receive, endorse and collect all checks
and other orders for the payment of money made payable to the Pledgor
representing any payment payable or distributable in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same and may
sign in its own capacity or on behalf of the Pledgor any shares of stock, or
other documents, in order to sell or otherwise dispose of the Pledged
Collateral.
Section 9. TERMINATION.
This Agreement shall terminate upon the repayment in full of the
Obligations if all other obligations under this Agreement have been fully
performed, at which time the Holder shall reassign and redeliver, without
recourse upon or warranty by the Holder and at the expense of the Pledgor (or
cause to be so reassigned and redelivered), to the Pledgor, or to such person or
persons as the Pledgor shall designate, against receipt, such of the Pledged
Collateral (if any) having been delivered to the Holder by the Pledgor as shall
not have been sold or otherwise applied by the Holder pursuant to the terms
hereof and shall still be held by it hereunder.
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Section 10. FURTHER ASSURANCES.
The Pledgor agrees to do such further acts and things, and to execute
and deliver such additional conveyances, assignments, agreements and
instruments, as the Holder may at any time reasonably request, whether to
continue, preserve, renew, record or perfect interests in the Pledged
Collateral, as well as the priority thereof or otherwise in order to give effect
to the transactions contemplated by the Loan Documents and the administration or
enforcement of this Agreement, and to better assure and confirm unto the Holder
its rights, powers and remedies hereunder.
Section 11. BINDING AGREEMENT; ASSIGNMENT.
This Agreement, and the terms, covenants and conditions hereof, shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Pledgor shall not be
permitted to assign this Agreement or any interest herein or in the Pledged
Collateral, or any part thereof, or otherwise pledge, encumber or grant any
option with respect to the Pledged Collateral, or any part thereof, or any cash
or property hold by the Holder as collateral under this Agreement.
Section 12. NOTICES.
All notices, requests, demands or other communications to or from the
parties hereto shall be deemed to have been duly given and made (a) in the case
of a letter sent other then by mail including by hand), when the letter is
delivered to the party to whom it is addressed, (b) in the case of a telegram or
a telecopied document, when the telegram or telecopy is sent (c) in the case of
a letter sent by mail, when the letter is received, and addressed as follows:
If to the Pledgor: David M. Friedson
300 Central Park West
Apt. 21 D
New York, New York 10024
If to the Holder: Windmere-Durable Holdings, Inc.
5980 Miami Lakes Drive
Miami Lakes, Florida 33014
Notice of change of address shall be effective only upon receipt.
Notwithstanding anything contained herein to the contrary, the effectiveness of
any notice or the time when notice is deemed given or received shall not be
affected by the failure to deliver or mail any copy referred to in this Section
12.
Section 13. MODIFICATION OF AGREEMENT.
Neither this Agreement nor any provisions hereof may be amended,
modified, waived, discharged or terminated orally nor may any of the Pledged
Collateral be released, except by an instrument in writing duly signed by the
Holder.
Section 14. NO WAIVER OF RIGHTS BY THE HOLDER.
Any forbearance or failure or delay by the Holder in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any right, power
or remedy hereunder shall not preclude the further exercise thereof; and every
right, power and remedy of the Holder shall continue in full force and effect
until such right, power or remedy is specifically waived by an instrument in
writing executed by the Holder.
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Section 15. APPLICABLE LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICT OF LAWS.
Section 16. SEVERABILITY.
In case any one or more of the provisions contained herein should be
invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 17. HEADINGS.
The section headings used herein are for convenience of reference only
and shall not define or limit the provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
/s/ David M. Friedson
------------------------------
David M. Friedson, individually
Windmere-Durable Holdings, Inc.
By: /s/ Harry D. Schulman
--------------------------
Name: Harry D. Schulman
Its: Chief Operating Officer
