1st Amend to 2nd Amended & Restated Credit Agrmt



 






Exhibit 10.1




FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT




     THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) dated as of January 31, 2006, is by and among APPLICA INCORPORATED (the
“Borrower”), a Florida corporation, each of its Subsidiaries identified on the signature
pages hereof, the Lenders identified on the signature pages hereof and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, the “Agent”). Terms used herein but
not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement
(as hereinafter defined).



W I T N E S S E T H




     WHEREAS, the Borrower, the Subsidiaries, the Lenders and the Agent are parties to that certain
Second Amended and Restated Credit Agreement, dated as of December 23, 2005 (as further amended,
modified, supplemented, extended or restated from time to time, the “Credit Agreement”);



     WHEREAS, the parties hereto desire to amend certain terms of the Credit Agreement as set forth
in this Amendment;



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. The Credit Agreement is hereby amended as follows:



          (a) by amending and restating the clause in Section 3.9 of the Credit Agreement which
provides “second, to pay any fees or expense reimbursements then due to the
Lenders from the Borrower;” as follows:





     “second, to pay any fees, indemnities or expense reimbursements then
due to the Lenders from the Borrower;”



          (b) by amending and restating clause (b) of Section 7.35 of the Credit Agreement as
follows:




          (b) Not later than February 28, 2006, the Applica Asia Documents;




          (c) by amending and restating clause (d) of Section 7.35 of the Credit Agreement as
follows:





     (d) Promptly upon the Agent’s request, the execution of the Applica Americas
Blocked Account Agreement with Bank to establish the Applica
Americas Blocked Account for deposit of payments from Applica Americas
customers; and



 









 





          (d) by amending and restating the clauses (vii) and (viii) of Section 11.1(a) of the
Credit Agreement as follows:





     (vii) release any Loan Parties from their obligations under this Agreement or any of
the other Loan Documents, release any Guaranties of the Obligations, contractually
subordinate the priority of Administrative Agent’s Liens or release Collateral other than as
permitted by Section 12.11;




     (viii) amend the definition of “Required Lenders” or “Pro Rata Share”;



          (e) by amending and restating the definition of “Fixed Charge Availability
Requirements” in Annex A to the Credit Agreement as follows:





     “Fixed Charge Availability Requirements” means, for any month, (i)
Average Monthly Excess Availability for such month of not less than $13,000,000, or
(ii) on each day during such month the Aggregate Revolver Outstandings does not
exceed the lesser of the Borrowing Base on such day or the Maximum Revolver Amount
on such day.



     2. The effectiveness of this Amendment is subject to the satisfaction of each of the following
conditions (in form and substance satisfactory to the Agent):




     (a) The Agent shall have received original counterparts of this Amendment duly executed by the
Loan Parties, the Agent and the Lenders;




     (b) The Agent shall have received such additional agreements, certificates or documents
as it may reasonably request in connection with this Amendment.



     3. The Borrower and the Guarantors represent and warrant to the Agent and the Lenders that (i)
the representations and warranties of the Loan Parties set out in the Credit Agreement and in the
Security Agreement, each as amended by this Amendment, are true and correct as of the date hereof
(except those which expressly relate to an earlier period), (ii) no event has occurred and is
continuing which constitutes a Default or Event of Default and (iii) no Loan Party has any
counterclaims, offsets, credits or defenses to the Loan Documents and the performance of its
obligations thereunder, or if any Loan Party has any such claims, counterclaims, offsets, credits
or defenses to the Loan Documents or any transaction related to the Loan Documents, same are hereby
waived, relinquished and released in consideration of the Agent’s and the Lenders’ execution and
delivery of this Amendment.



     4. The Guarantors (i) acknowledge and consent to all of the terms and conditions of this
Amendment, (ii) affirm all of their obligations under the Loan Documents and (iii) agree that this
Amendment and all documents executed in connection herewith do not operate to reduce or discharge
the Guarantors’ obligations under the Credit Agreement or the other Loan Documents.



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     5. The Borrower and the Guarantors hereby represent and warrant to the Agent and the Lenders
as follows:




     (i) Each Loan Party has taken all necessary action to authorize the execution, delivery
and performance of this Amendment.




     (ii) This Amendment has been duly executed and delivered by the Loan Parties and
constitutes each of the Loan Parties’ legal, valid and binding obligations, enforceable in
accordance with its terms, except as such enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors’ rights generally and (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity).




     (iii) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is required in
connection with the execution, delivery or performance by any Loan Party of this Amendment.



     6. Except as modified hereby, all of the terms and provisions of the Credit Agreement
(including Schedules and Exhibits), the Security Agreement (including Schedules and Exhibits) and
the other Loan Documents, and the obligations of the Loan Parties under the Credit Agreement, the
Security Agreement and the other Loan Documents, are hereby ratified and confirmed and shall remain
in full force and effect.



     7. This Amendment shall be deemed part of the Credit Agreement and a breach of any
representation, warranty or covenant herein shall constitute an Event of Default under the Credit
Agreement.



     8. This Amendment may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed an original and it shall not be necessary in making proof of
this Amendment to produce or account for more than one such counterpart.



     9. This Amendment shall be deemed to be a contract made under, and for all purposes shall be
construed in accordance with, the laws of the State of New York.



     10. To the fullest extent permitted by applicable law, the parties hereto each hereby waives
the right to trial by jury in any action, suit, counterclaim or proceeding arising out of or
related to this Amendment.



[Remainder of page intentionally left blank]




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     IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered as of the date first above written.



	 	 	 	 	 
	 	“BORROWER”





APPLICA INCORPORATED, a Florida corporation

 	 
	 	By:  	/s/ Terry Polistina
 	 
	 	 	Name:  	Terry Polistina 	 
	 	 	Title:  	Senior Vice Pres. and Chief Financial Officer 	 
	 
	 	“GUARANTORS”





APPLICA CONSUMER PRODUCTS, INC., a Florida

corporation

 	 
	 	By:  	/s/ Terry Polistina
 	 
	 	 	Name:  	Terry Polistina 	 
	 	 	Title:  	Senior Vice Pres. and Chief Financial Officer 	 
	 
	 	APPLICA CANADA CORPORATION, a

Nova Scotia corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	WD DELAWARE, INC., a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 



[Signatures continued on following page]




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	 	HP INTELLECTUAL CORP., a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	WINDMERE HOLDINGS CORPORATION, a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	HP DELAWARE, INC., a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	HPG LLC, a Delaware limited liability company

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	APPLICA AMERICAS, INC., a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 
	 	APPLICA MEXICO HOLDINGS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Lisa R. Carstarphen
 	 
	 	 	Name:  	Lisa R. Carstarphen 	 
	 	 	Title:  	Secretary 	 
	 



[Signatures continued on following page]




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	 	“AGENT”

BANK OF AMERICA, N.A., as the Agent

 	 
	 	By:  	/s/ Sherry Lail
 	 
	 	 	Name:  	Sherry Lail 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	“LENDERS”


BANK OF AMERICA, N.A., as a Lender

 	 
	 	By:  	/s/ Sherry Lail
 	 
	 	 	Name:  	Sherry Lail 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Gary Dixon
 	 
	 	 	Name:  	Gary Dixon 	 
	 	 	Title:  	Director 	 
	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender

 	 
	 	By:  	/s/ Brian P. Schwinn
 	 
	 	 	Name:  	Brian P. Schwinn 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 




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