AMENDMENT NO. 11 AND TWELFTH WAIVER UNDER CREDIT AGREEMENT
AMENDMENT NO. 11 AND TWELFTH WAIVER (this "AMENDMENT"),
dated as of July 6, 2000, to and under 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 has advised the Administrative Agent and
the Lenders that the Parent proposes to pursue an "exchange offer" with
respect to the Subordinated Notes by offering to issue to the holders
thereof a combination of shares of common stock of the Parent and senior
secured subordinated Indebtedness of the Parent;
WHEREAS, in order to permit consummation of the "exchange
offer" the Parent has requested that the Lenders agree to amend Section
6.01 (Indebtedness) and Section 6.02 (Liens) of the Credit Agreement and
waive Section 6.06 (Restricted Payments; Voluntary Payments) and Section
6.08 (Restrictive Agreements) of the Credit Agreement; and
WHEREAS, the Administrative Agent and the Lenders are
willing to agree to such requested amendments and waivers, but only upon
the terms and conditions of this Amendment;
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 (after giving effect to this Amendment) 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 after giving effect to this
Amendment. Except as herein specifically amended or waived hereby, all
terms and provisions of the Credit Agreement and the other Loan Documents
shall remain in full force and effect and shall be performed by the parties
thereto according to such 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 other modification,
amendment or waiver of the Credit Agreement or any other Loan Document.
SECTION 2. Defined Terms. Section 1.01 of the Credit
Agreement is amended:
(a) to amend the definition of "CHANGE IN CONTROL": (i) to
delete the word "or" immediately after clause (d) in such
definition, and (ii) to add immediately before the period at the
end of such definition the following "; or (e) the occurrence of a
"Change of Control" (as defined in the Senior Indenture)";
(b) to delete in its entirety the defined term "LOAN
DOCUMENTS" in such Section; and
(c) to add in their appropriate alphabetical order in such
Section the following defined terms:
"AMENDMENT NO. 11" means Amendment No. 11 and Twelfth
Waiver, dated as of July 6, 2000, to and under this Agreement.
"EXCHANGE OFFER" means the exchange offer by the Parent,
pursuant to the Offering Circular prepared by the Parent and the
related Letter of Transmittal , to each holder of the Subordinated
Notes to accept approximately 17 shares of common stock of the
Parent and $150 original principal amount of the Senior
Subordinated Notes for each $1,000 principal amount at maturity of
the Subordinated Notes validly tendered and not withdrawn by such
holder in accordance with the terms and conditions of such exchange
offer.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement,
in the form attached as Exhibit A to Amendment No. 11, to be
executed and delivered by the trustee under the Senior Indenture
and the Administrative Agent, in respect of the Liens permitted
under Section 6.02(h), as amended from time to time in accordance
with the terms thereof.
"LOAN DOCUMENTS" means this Agreement, the Letters of
Credit, the Subsidiary Guarantees, the Collateral Documents, the
Registration Rights Agreement and the Subsidiary Borrowing
Agreement executed by Coleman pursuant to Section 2.19.
"REGISTRATION RIGHTS AGREEMENT" means the Registration
Rights Agreement, in the form attached as Exhibit B to Amendment
No. 11, to be executed and delivered by the Parent and the Lenders,
in respect of the capital stock of the Parent to be issued to the
Lenders pursuant to Amendment No. 11, as amended from time to time
in accordance with the terms thereof.
"SENIOR INDENTURE" means the Indenture, in the form attached
as Exhibit C to Amendment No. 11, to be executed and delivered by
the Parent and the trustee thereunder, in respect of the Senior
Subordinated Notes, as amended from time to time in accordance with
Section 6.09.
"SENIOR SUBORDINATED NOTES" means the 11% Senior Secured
Subordinated Notes Due 2011 issued by the Parent pursuant to the
Senior Indenture.".
SECTION 3. Affirmative Covenants. Section 5 of the Credit
Agreement is hereby amended by adding a new Section 5.15 at the end of such
Section as follows:
"SECTION 5.15. Preferred Stock. If shares of preferred
stock are issued to the Lenders on account of the risk adjustment
fee payable pursuant to Amendment No. 11, the Parent shall use its
best efforts promptly after the expiration of the Exchange Offer to
obtain shareholder approval to exchange such shares of preferred
stock for an equivalent number of shares of common stock of the
Parent, and the Parent shall make such exchange promptly after
obtaining such approval.".
SECTION 4. Indebtedness. Section 6.01 of the Credit
Agreement is amended:
(a) to delete the word "and" immediately after paragraph (g)
in such Section;
(b) to replace the period at the end of paragraph (h) of
such Section with "; and"; and
(c) to add the following new paragraph (i) at the end of
such Section:
"(i) Indebtedness of the Parent under the Senior
Indenture and evidenced by the Senior Subordinated Notes,
provided that (i) the principal amount of such Indebtedness
at the date of issuance thereof pursuant to the Senior
Indenture shall not exceed $150 for each $1,000 principal
amount at maturity of the Subordinated Notes validly
tendered and not withdrawn pursuant to the Exchange Offer
($173 at maturity for each such $1,000) and (ii) such
Indebtedness shall be subordinated, in the manner and to the
extent set forth in the Senior Indenture, to the
Obligations.".
SECTION 5. Liens. Section 6.02 of the Credit Agreement is
amended:
(a) to delete the word "and" immediately after paragraph (f)
in such Section;
(b) to replace the period at the end of paragraph (g) of
such Section with "; and"; and
(c) to add the following new paragraph (h) at the end of
such Section:
"(h) Liens on the capital stock of Laser Acquisition
Corp., Sunbeam Americas Holdings, Ltd. and DDG I, Inc.
(including Liens on proceeds thereof consisting of cash or
equity interests) to secure Indebtedness permitted under
Section 6.01(i), provided that such Liens shall be (i)
granted by the Parent pursuant to a junior pledge and
security agreement in the form attached as Exhibit E to
Amendment No. 11 and (ii) subordinated, in the manner and to
the extent set forth in the Intercreditor Agreement and the
Senior Indenture, to the Liens on such capital stock granted
by the Parent pursuant to the Parent Pledge and Security
Agreement.".
SECTION 6. Restricted Payments; Voluntary Payments.
Paragraph (b) of Section 6.06 of the Credit Agreement is amended by adding
the phrase "the Senior Subordinated Notes or" immediately after the phrase
"(including, without limitation," contained in such paragraph.
SECTION 7. Modification of Certain Documents. Paragraph (a)
of Section 6.09 of the Credit Agreement is amended by replacing the phrase
"or the Indenture or any other agreement or instrument governing the terms
of the Subordinated Notes or of any other Indebtedness" in clause (ii) of
such paragraph with the phrase "or the Senior Indenture, the Indenture or
any other agreement or instrument governing the terms of the Senior
Subordinated Notes, the Subordinated Notes or of any other Indebtedness".
SECTION 8. Waiver. The Lenders hereby waive Section 6.06
(Restricted Payments; Voluntary Payments) and Section 6.08 (Restrictive
Agreements) of the Credit Agreement, but solely to the extent necessary to
permit the Parent to consummate the Exchange Offer, provided that the
foregoing waiver is subject to the following terms and conditions: (a) at
the time of commencement of the Exchange Offer no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
(b) the issuance of the common stock of the Parent pursuant to the Exchange
Offer is not subject to shareholder approval, (c) the Exchange Offer is
commenced within 180 days after the Amendment Effective Date (as defined in
Section 13 below), (d) the Indebtedness to be issued pursuant to the
Exchange Offer (i) shall not exceed the amount permitted under Section
6.01(i) of the Credit Agreement (after giving effect to this Amendment),
(ii) shall be governed by an Indenture in the form attached hereto as
Exhibit C and (iii) shall be secured only by the junior Liens permitted
under Section 6.02(h) of the Credit Agreement (after giving effect to this
Amendment), which Liens shall be (A) granted by the Parent pursuant to a
junior pledge and security agreement in the form attached hereto as Exhibit
E and (B) subordinated, pursuant to an Intercreditor Agreement in the form
attached hereto as Exhibit A, to the Liens granted by the Parent pursuant
to the Parent Pledge and Security Agreement and (e) the Parent shall pay to
the Lenders the risk adjustment fee set forth in Section 9 below within
five Business Days after the expiration of the Exchange Offer and, on or
before such date, the Parent shall (i) execute and deliver a Registration
Rights Agreement in the form attached hereto as Exhibit B with respect to
the shares of common stock (and preferred stock, if applicable) to be
issued to the Lenders pursuant to Section 9 below, (ii) certify to the
Lenders in a certificate of a Financial Officer that the representations
and warranties set forth in Section 12(b) below are true and correct at and
as of the date of issuance of such shares of stock of the Parent and (iii)
cause to be delivered to the Administrative Agent a favorable written
opinion (addressed to the Administrative Agent and the Lenders) of counsel
to the Parent, together with certificates and resolutions, covering such
matters relating to the Parent and the capital stock of the Parent to be
issued to the Lenders pursuant to Section 9 below as the Required Lenders
shall reasonably request.
SECTION 9. Risk Adjustment Fee; Registration Rights. In
consideration of the amendments and waivers set forth in this Amendment,
the Parent shall pay to the Lenders, pro rata based upon their respective
Commitments, a risk adjustment fee payable in shares of the common stock of
the Parent within five Business Days after the expiration of the Exchange
Offer as follows: a minimum of 2,500,000 shares of common stock of the
Parent if any Senior Subordinated Notes are issued pursuant to the Exchange
Offer, which number of shares shall increase on a straight line basis to a
maximum of 4,500,000 shares of common stock of the Parent for each $1,000
(i.e., increase 14.545 shares per $1,000) original principal amount of
Senior Subordinated Notes issued pursuant to the Exchange Offer in excess
of $162,500,000, provided that if the aggregate number of shares of common
stock to be issued to the Lenders would exceed the number of such shares
which could at such time be issued to the Lenders without requiring
shareholder approval under the applicable rules of the New York Stock
Exchange, the Parent shall issue to the Lenders the number of shares of
common stock of the Parent that could then be issued in compliance with
such rules, together with shares of preferred stock of the Parent equal to
the amount of such excess. Any shares of preferred stock issued to the
Lenders shall have the terms set forth in the Certificate of Designation of
Preferred Stock attached hereto as Exhibit D.
SECTION 10. Governing Law. This Waiver shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 11. Counterparts. This Waiver 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 12. Representations and Warranties; No Default. (a)
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 and the other Loan Documents are true and correct on and as of
the date hereof (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 or the consummation of the transactions contemplated
hereby.
(b) As of the date of issuance to the Lenders of the shares
of capital stock of the Parent pursuant to Section 9 above, the Parent
shall represent and warrant to each Lender that (i) the Parent is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware, (ii) the Parent has the corporate power
and authority to issue such shares, (iii) the issuance of such shares has
been duly authorized by all necessary corporate action and does not and
will not violate, or result in a breach of, or constitute a default under,
or require any consent under, or result in the creation of any Lien upon
the Parent's assets pursuant to, any law, rule, regulation or contractual
obligation binding upon the Parent and (iv) when such shares have been
issued by the Parent they will be duly authorized, validly issued, fully
paid and nonassessable shares of the common stock and preferred stock, as
applicable, of the Parent with no personal liability attaching to the
ownership thereof.
SECTION 13. Effectiveness. This Amendment shall become
effective on the date (the "AMENDMENT EFFECTIVE DATE") on which:
(a) the Administrative Agent shall have received 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) the Required Lenders shall be satisfied (and by their
execution hereof, the Lenders hereby confirm that such Lenders are
satisfied) that each of the following documents (including after giving
effect to any nonmaterial modifications thereof which do not change in any
manner the terms of the Senior Subordinated Notes) are in form and
substance satisfactory to such Lenders: (i) the Intercreditor Agreement, in
the form attached to this Amendment as Exhibit A, (ii) the Registration
Rights Agreement, in the form attached to this Amendment as Exhibit B,
(iii) the Senior Indenture, in the form attached to this Amendment as
Exhibit C, (iv) the Certificate of Designation of Preferred Stock of the
Parent, in the form attached to this Amendment as Exhibit D and (v) the
junior pledge and security agreement, in the form attached to this
Amendment as Exhibit E (each such Exhibit shall be deemed amended to give
effect to any such nonmaterial modification); and
(c) the Administrative Agent shall have received 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
SUNBEAM CORPORATION
By /s/ Jerry W. Levin
----------------------------------
Name: Jerry W. Levin
Title: Chairman, President and
Chief Executive Officer
THE COLEMAN COMPANY, INC.
By /s/ Jerry W. Levin
----------------------------------
Name: Jerry W. Levin
Title: Chairman, President and
Chief Executive Officer
MORGAN STANLEY SENIOR FUNDING, INC.,
individually and as Syndication Agent
By /s/ Simon Rankin
----------------------------------
Name: Simon Rankin
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Documentation
Agent
By /s/ H.G. Wheelock
----------------------------------
Name: H.G. Wheelock
Title: Managing Director
FIRST UNION NATIONAL BANK,
individually and as Administrative
Agent
By /s/ Thomas M. Molitor
----------------------------------
Name: Thomas M. Molitor
Title: Senior Vice President
EXHIBIT A
[INTERCREDITOR AGREEMENT]1
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1 Omitted - Filed as Exhibit (d)(2) to the Tender Offer Statement on
Schedule TO of Sunbeam Corporation.
EXHIBIT B
[REGISTRATION RIGHTS AGREEMENT]2
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2 Omitted - Filed as Exhibit (d)(4) to the Tender Offer Statement on
Schedule TO of Sunbeam Corporation.
EXHIBIT C
[SENIOR INDENTURE]3
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3 Omitted - Filed as Exhibit (d)(1) to the Tender Offer Statement on
Schedule TO of Sunbeam Corporation.
EXHIBIT D
[CERTIFICATE OF DESIGNATION OF PREFERRED STOCK]4
- -------------------
4 Omitted - Filed as Exhibit (d)(5) to the Tender Offer Statement on
Schedule TO of Sunbeam Corporation.
EXHIBIT E
[JUNIOR PLEDGE AND SECURITY AGREEMENT]5
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5 Omitted - Filed as Exhibit (d)(3) to the Tender Offer Statement on
Schedule TO of Sunbeam Corporation.