AMENDMENT NO. 14 TO CREDIT AGREEMENT
AMENDMENT NO. 14, CONSENT AND FOURTEENTH WAIVER (this
"Amendment"), dated as of November 10, 2000, to the Credit Agreement, dated as
of March 30, 1998 (as heretofore amended, supplemented or otherwise modified,
the "Credit Agreement"), among SUNBEAM CORPORATION (the "Parent"), the
SUBSIDIARY BORROWER referred to therein, the LENDERS party thereto, MORGAN
STANLEY SENIOR FUNDING, INC., as Syndication Agent, BANK OF AMERICA, N.A., as
Documentation Agent, and FIRST UNION NATIONAL BANK, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Parent, the Subsidiary Borrower, the Lenders and
the Agents are parties to the Credit Agreement;
WHEREAS, the Parent and the Subsidiary Borrower have requested
that the Administrative Agent and the Lenders agree to amend and to waive
certain provisions of the Credit Agreement and to consent to the sale (the "MCCI
Sale") of the common stock of Mr. Coffee Concepts, Inc. owned by Sunbeam
Products, Inc. ("Sunbeam Products");
WHEREAS, the Administrative Agent and the Lenders are willing
to agree to such requested amendments, consent and waivers, but only upon the
terms and conditions of this Amendment; and
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise
specifically defined herein, each term used herein which is defined in the
Credit Agreement has the meaning assigned to such term in the Credit Agreement.
Each reference to "hereof", "hereunder", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Credit Agreement shall, after this Amendment becomes
effective, refer to the Credit Agreement as amended hereby. Except as herein
specifically waived or amended, all terms and provisions of the Credit Agreement
shall remain in full force and effect and shall be performed by the parties
thereto according to its terms and provisions. This Amendment is limited as
specified and shall not constitute a modification, amendment or waiver of any
other provision of the Credit Agreement or any other Loan Document or indicate
the Lenders' willingness to consent to any such other modification, amendment or
waiver of the Credit Agreement or any other Loan Document, including without
limitation, any modification, amendment or waiver for any other date or time
period or in connection with any other transaction.
SECTION 2. Deletion and Addition of Certain Defined Terms. (a)
Section 1.01 of the Credit Agreement is amended to delete in their entirety the
defined terms "Borrowing Base", "Borrowing Base Certificate", "Eligible
Inventory", "Eligible Raw Materials and Work in Process", "Finished Goods
Inventory", "Maturity Date", "Raw Materials and
"Supplemental Revolving Credit Availability Period" and "Work in Process" in
such Section; and
(b) to add in their appropriate alphabetical order in such
Section the following defined terms:
""Fourteenth Amendment Effective Date" means the
Amendment Effective Date under and as defined in Amendment No.
14, Consent and Fourteenth Waiver, dated as of November 10,
2000, to this Agreement.
"Maturity Date" means (i) with respect to the
Supplemental Revolving Loans, April 10, 2001, (ii) with
respect to the Revolving Loans and the Tranche A Term Loans,
March 30, 2005 and (iii) with respect to the Tranche B Term
Loans, September 30, 2006.
"Supplemental Revolving Credit Availability Period"
means the period from and including the Twelfth Amendment
Effective Date to but excluding the earlier of (i) April 10,
2001 and (ii) the date of termination of the Supplemental
Revolving Commitments.".
SECTION 3. Supplemental Revolving Loans. Section 2.01(d) of
the Credit Agreement is amended to delete in its entirety the proviso in the
first sentence in such Section.
SECTION 4. Termination and Reduction of Commitments. Section
2.07 of the Credit Agreement is amended to replace paragraph (d) in such Section
with the following new paragraph (d):
"(d) The total Supplemental Revolving Commitments of
all Lenders shall be (x) automatically and permanently reduced
to (i) $40,000,000 on August 31, 2000 and (ii) $30,000,000 on
September 30, 2000 (subject to clause (y) below) (each such
date, a "Commitment Reduction Date"), and the Parent shall
prepay the outstanding Supplemental Revolving Loans on the
applicable Commitment Reduction Date in accordance with
Section 2.09(e), provided that in the event that on any
Commitment Reduction Date, the aggregate Supplemental
Revolving Commitments shall have been reduced to an amount
less than the amounts set forth in clauses (i) or (ii) above,
as applicable, the total Supplemental Revolving Commitments on
such Commitment Reduction Date shall be such lesser amount as
so reduced and (y) automatically increased to $50,000,000 on
the Fourteenth Amendment Effective Date.".
SECTION 5. Repayment. Section 2.09(a) of the Credit Agreement
is amended to add at the end of such Section the following proviso:
"provided that, effective upon the Fourteenth Amendment
Effective Date, the date of payment shall be extended to April
10, 2001 for the $19,051,250 payment of the Tranche A Term
Loans scheduled to be paid on November 30, 2000 pursuant to
the amortization schedule set forth above.".
2
SECTION 6. Prepayment and Reduction. Section 2.09(b) of the
Credit Agreement is amended to replace paragraph (iv) in such Section with a new
paragraph (iv) as follows:
"(iv) Except to the extent otherwise set forth in any
amendment, waiver or consent in respect of any Asset Sale,
Indebtedness Incurrence, issuance of stock or other
transaction not permitted under Article 6 hereof, the amount
of any repayment of the Loans made pursuant to clauses (i) and
(ii) of this paragraph shall be applied (A) first, to the
$19,051,250 scheduled repayment of the Tranche A Term Loans
originally due on November 30, 2000, and deferred until April
10, 2001, to be made by the Borrowers pursuant to paragraph
(a) of this Section, (B) second, to the amount of the Fifth
Amendment Fee due on April 10, 2001 pursuant to Section
2.11(d), (C) third, in the case of any prepayment made
pursuant to clause (i)(x)(1) of this paragraph only, to prepay
the Revolving Loans (but not reduce the Revolving Commitments)
in an amount up to the Net Cash Proceeds of any such Asset
Sale, (D) fourth, to the prepayment of all outstanding
Supplemental Revolving Loans, and the corresponding permanent
reduction of the Supplemental Revolving Commitments to the
extent of such prepayment, until paid in full; provided that
if after giving effect to any repayment, and permanent
reduction of the Supplemental Revolving Commitments, required
under this clause (D), there remains unused Supplemental
Revolving Commitments, the amount of such unused Supplemental
Revolving Commitments shall remain in effect and any
additional amounts available for application pursuant hereto
shall be applied in accordance with clause (E) below, (E)
fifth, (I) first, to the scheduled repayment of the Tranche A
Term Loans due on April 10, 2001 to be made by the Borrowers
pursuant to paragraph (a) of this Section until paid in full
and (II) second, to the scheduled repayment of the Tranche B
Term Loans due on April 10, 2001 to be made by the Borrowers
pursuant to paragraph (a) of this Section until paid in full,
(F) sixth, to the Tranche A Term Loans to reduce ratably the
amount of all remaining scheduled repayments thereof due after
April 10, 2001 to be made by the Borrowers pursuant to
paragraph (a) of this Section until paid in full, (G) seventh,
(I) first, to the prepayment of all outstanding Revolving
Loans, and the corresponding permanent reduction of the
Revolving Commitments to the extent of such prepayment, until
paid in full, (II) second, to the repayment of all
unreimbursed LC Disbursements, plus any accrued and unpaid
interest thereon, and the corresponding permanent reduction of
the Revolving Commitments to the extent of such repayment,
until paid in full, and (III) third, to the deposit in the LC
Reimbursement Account, in the manner set forth in Section
2.04(j), of an amount in cash equal to any remaining LC
Exposure then outstanding, and the corresponding permanent
reduction of the Revolving Commitments to the extent of such
cash deposit, until such cash deposit equals the amount of
such remaining LC Exposure outstanding; provided that if after
giving effect to any repayment, and permanent reduction of the
Revolving Commitments, required under this clause (G), there
remains unused Revolving Commitments, the amount of such
unused Revolving Commitments shall remain in effect and any
additional amounts available for application pursuant hereto
shall be applied in accordance with clauses (H) and (I) below,
as applicable, (H) ninth, to the
3
Tranche B Term Loans in the direct order of maturity of each
subsequent scheduled repayment thereof through and including
the repayment due on March 31, 2005 to be made by the
Borrowers pursuant to paragraph (a) of this Section until paid
in full, and (I) tenth, to the Tranche B Term Loans to reduce
ratably the amount of all remaining scheduled repayments
thereof due after March 31, 2005 to be made by the Borrowers
pursuant to paragraph (a) of this Section until paid in
full.".
SECTION 7. Prepayments of Revolving Loans. Section 2.09 of the
Credit Agreement is amended to:
(a) replace paragraph (d) in such Section with a new paragraph
(d) as follows:
"(d) Prepayments of Revolving Loans. The Parent shall
repay or cause the Subsidiary Borrower to repay (i) first, the
Supplemental Revolving Loans and second, the Revolving Loans
(but shall not be required to reduce the Supplemental
Revolving Commitments or the Revolving Commitments, as the
case may be) on each Business Day to the extent that funds on
deposit in the Concentration Account exceed $15,000,000 and
(ii) the Supplemental Revolving Loans and the Revolving Loans
as set forth in Section 2.09(b)(iv) above.";
(b) delete the phrases "or the Borrowing Base in effect at
such time" and ", in either case," in paragraph (e) in such Section; and
(c) adding at the end of such Section a new paragraph as
follows:
"This Section 2.09 shall not constitute a consent by
the Lenders, or indicate their willingness at any time (and
the Lenders shall have no obligation whatsoever, express or
implied) to consent to the consummation of any Asset Sale,
Indebtedness Incurrence, issuance of stock or other
transaction for which the consent of the Required Lenders or
the Lenders, as applicable, is required pursuant to this
Agreement, and shall not in any way limit the terms and
conditions upon which any such consent may be granted.".
4
SECTION 8. Fees. Section 2.11(d) of the Credit Agreement is
amended to replace the reference to "November 30, 2000" in clause (i) in the
second proviso in such Section with a reference to "April 10, 2001".
SECTION 9. Representations and Warranties. Section 3.04(b) of
the Credit Agreement is amended to replace the parenthetical in such Section
with the parenthetical (or December 31, 1998 from and after such date until
September 30, 2000, and September 30, 2000 from and after such date)".
SECTION 10. Each Credit Event. Section 4.04 of the Credit
Agreement is hereby amended to:
(a) reletter paragraph (k) in such Section as paragraph (l);
(b) insert a new paragraph (k) in such Section as follows:
"(k) At the time of any Borrowing, the Parent shall
continue to retain a restructuring advisor reasonably
satisfactory to the Required Lenders."; and
(c) replace the reference to "paragraphs (b) through (h)" in
new paragraph (l) in such Section (after giving effect to paragraph (a) above)
with a reference to "paragraphs (b) through (k)".
SECTION 11. Additional Information Requirements. Section 5.02
of the Credit Agreement is amended to replace paragraph (L) in such Section with
new paragraphs (L) and (M) as follows:
"(L) On or before December 15, 2000, a business plan
for the 2001 fiscal year of the Parent, in form and substance
reasonably satisfactory to the Required Lenders, setting forth
for each Strategic Business Unit and on a consolidated and
consolidating basis monthly forecasted income statements, cash
flow statements and balance sheets, and containing such other
information reasonably requested by the Required Lenders.
Delivery of the business plan pursuant to this clause (L)
shall satisfy the Parent's obligations pursuant to clause (C)
above for the 2001 fiscal year of the Parent.
(M) (1) On Monday of each calendar week, commencing
with November 13, 2000 until such time as the Parent delivers
cash flows in accordance with clause (2) below, a cash flow
forecast, in form reasonably satisfactory to the Required
Lenders, showing on a weekly basis through December 31, 2000
and on a monthly basis for January 2001 beginning and ending
liquidity (with detail of existing and forecasted liquidity
under all financing and securitization arrangements) and
weekly receipts and disbursements through December 31, 2000
and monthly receipts and disbursements for January 2001,
together with a written explanation of any significant changes
for any week or month, as applicable, contained in such
forecast from the forecast for such week or month, as
applicable, contained in the most recently delivered cash flow
5
forecast pursuant to this clause (1), (2) on Monday of each
calendar week, commencing with the first Monday to occur after
December 1, 2000 until such time as the Parent delivers cash
flows in accordance with clause (3) below, a cash flow
forecast, in form reasonably satisfactory to the Required
Lenders, showing on a weekly basis for the succeeding thirteen
weeks beginning and ending liquidity (with detail of existing
and forecasted liquidity under all financing and
securitization arrangements) and weekly receipts and
disbursements for the succeeding thirteen weeks, together with
a written explanation of any significant changes for any week
contained in such forecast from the forecast for such week
contained in the most recently delivered cash flow forecast
pursuant to this clause (2), (3) on Friday of each calendar
week, commencing with the first Friday to occur after January
1, 2001, a consolidated cash flow forecast and a cash flow
forecast for each operating unit, each in form reasonably
satisfactory to the Required Lenders, showing on a weekly
basis for the succeeding thirteen weeks beginning with the
next succeeding Monday beginning and ending liquidity on a
consolidated basis and for each operating unit (with detail of
existing and forecasted liquidity under all financing and
securitization arrangements) and weekly receipts and
disbursements for the succeeding thirteen weeks on a
consolidated basis and for each operating unit, together with
a written explanation of any significant changes for any week
contained in such forecast from the forecast for such week
contained in the most recently delivered cash flow forecast
pursuant to this clause (3), and (4) on Monday of each
calendar week, in the case of the forecasts delivered pursuant
to the foregoing clauses (1) and (2), and on Wednesday of each
calendar week, in the case of forecasts delivered pursuant to
the foregoing clause (3), a comparison of actual weekly cash
flows for the preceding week to the forecasted weekly cash
flows for such week as set forth in the most recently
delivered forecast covering such week delivered pursuant to
the foregoing clauses (1), (2) or (3), as applicable, together
with a written explanation of any significant variances.".
SECTION 12. Deletion of Exhibit. The Credit Agreement is
amended to delete Exhibit M thereto.
SECTION 13. Consent.
(a) The Lenders hereby consent (i) under Section 6.03(c)
(Fundamental Changes; Asset Sales) of the Credit Agreement solely to the extent
necessary to permit Sunbeam Products to consummate the MCCI Sale pursuant to the
Stock Purchase Agreement, dated as of November 6, 2000 (in draft form dated
11/01/00 and delivered to the Administrative Agent, the "MCCI Purchase
Agreement"), by and between MCCI Acquisition Co., Inc. ("Acquisition Co.") and
Sunbeam Products, provided that the foregoing consent is conditioned upon the
following: (x) the cash consideration received by Sunbeam Products pursuant to
the MCCI Sale shall be in an amount not less than $2,000,000, (y) at the time of
consummation of the MCCI Sale no Default or Event of Default shall have occurred
and be continuing or would result therefrom and (z) the Purchase Agreement shall
not have been amended or modified in any material respect or in any manner that
could reasonably be expected to have an adverse effect on the Lenders, in either
case without the prior written consent of the Required Lenders, (ii) under
6
Section 6.01 (Indebtedness) of the Credit Agreement solely to the extent
necessary to permit Sunbeam Products to incur Indebtedness in an amount not to
exceed $500,000 pursuant to a guarantee of certain financing obtained by
Acquisition Co. in connection with the MCCI Sale and the $5,000,000 of
Indebtedness permitted under Section 6.01(h) of the Credit Agreement shall not
be reduced on account of such guarantee and (iii) under Section 6.04
(Investments, Loans, Advances, Guarantees and Acquisitions) of the Credit
Agreement solely to the extent necessary to permit Sunbeam Products to make an
Investment in Acquisition Co. in a principal amount not to exceed $1,000,000
consisting of a promissory note representing a portion of the purchase price of
the MCCI Sale.
(b) Notwithstanding anything to the contrary contained in
Section 2.09(b)(iv) of the Credit Agreement (after giving effect to this
Amendment), the Net Cash Proceeds of the MCCI Sale shall be applied to repay the
outstanding Revolving Loans without a corresponding reduction of the Revolving
Commitments.
SECTION 14. Waiver; Agreement. The Lenders hereby waive any
Default or Event of Default arising by reason of any failure by the Parent to
comply with Section 6.15 (Consolidated EBITDA) of the Credit Agreement for any
period ending on or before December 31, 2000. On or before December 31, 2000,
the Parent and the Lenders shall amend Section 6.15 (Consolidated EBITDA) of the
Credit Agreement to establish Consolidated EBITDA covenants on a monthly basis
for the 2001 calendar year, which covenants shall be reasonably satisfactory to
the Required Lenders and which shall, in any event, equal at least 90% of the
Consolidated EBITDA for each calendar month in 2001 as set forth in the business
plan to be delivered to the Administrative Agent in compliance with Section
5.02(L) of the Credit Agreement (after giving effect to this Amendment).
SECTION 15. Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 16. Counterparts This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 17. Representations and Warranties; No Default. After
giving effect to this Amendment, the Parent and the Subsidiary Borrower (to the
extent applicable to it thereunder) hereby represent and warrant that all
representations and warranties contained in the Credit Agreement are true and
correct on and as of the Amendment Effective Date (unless stated to relate to a
specific earlier date, in which case, such representations and warranties shall
be true and correct as of such earlier date) and that no Default or Event of
Default shall have occurred and be continuing or would result from the execution
and delivery of this Amendment.
7
SECTION 18. Effectiveness. This Amendment shall become
effective on the date on (the "Amendment Effective Date") which the
Administrative Agent shall have received:
(a) from each of the Parent, the Subsidiary Borrower and the
Lenders, a counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Administrative Agent) that such party
has signed a counterpart hereof;
(b) from the Parent, evidence reasonably satisfactory to the
Administrative Agent, of the retention by the Parent of a restructuring advisor
reasonably satisfactory to the Required Lenders;
(c) from Thalia Products, Inc., a counterpart to a Supplement
to each of the Subsidiary Guarantee, the Subsidiary Pledge and Security
Agreement and the Subsidiary Security Agreement, in each case in form and
substance reasonably satisfactory to the Administrative Agent, signed by such
party or facsimile or other written confirmation (in form satisfactory to the
Administrative Agent) that such party has signed a counterpart thereof, together
with such other documents and certificates relating thereto as the
Administrative Agent or its counsel may reasonably request; and
(d) payment of all fees and other amounts due and payable
pursuant to the Credit Agreement, including reimbursement or payment of all
out-of-pocket expenses of the Administrative Agent and the Lenders invoiced to
the Parent and required to be reimbursed or paid by the Parent under the Credit
Agreement.
8
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
SUNBEAM CORPORATION
By ___________________________________________
Name:
Title:
THE COLEMAN COMPANY, INC.
By ___________________________________________
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
individually and as Syndication Agent
By ___________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Documentation Agent
By ___________________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
individually and as Administrative Agent
By ___________________________________________
Name:
Title: