EXHIBIT 10.q
THIRD AMENDMENT dated as of November 6, 1997 (this
"Amendment") to the Credit Agreement dated as of
September 16, 1996 (as amended, the "Credit
Agreement"), among SUNBEAM CORPORATION (the
"Company"), the BORROWING SUBSIDIARIES (as defined
therein), - the LENDERS (as defined therein), and THE
CHASE MANHATTAN BANK, as Administrative Agent.
A. Pursuant to the Credit Agreement, the Lenders have agreed to extend
credit to the Borrowers, in each case pursuant to the terms and subject to the
conditions set forth therein.
B. The Company has requested that certain provisions contained in the
Credit Agreement be amended as set forth herein.
C. The Lenders are willing to so amend the Credit Agreement pursuant to
the terms and subject to the conditions set forth herein.
D. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Credit Agreement.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto hereby agree, on the terms and
subject to the conditions set forth herein, as follows:
SECTION 1. AMENDMENT TO SECTION 1.01 OF THE CREDIT AGREEMENT. The
following definition is hereby added to Section 1.01 of the Credit Agreement:
"PERMITTED RECEIVABLES PROGRAM" shall mean one or more receivables
securitization programs pursuant to which
the Company or any of its Subsidiaries sells accounts receivable in "true sale"
transactions (rather than financing transactions) to a bankruptcy remote special
purpose subsidiary of Sunbeam Products Inc. that will own no other assets and
will conduct no business other than the purchase and sale of such receivables,
and the transfer of such accounts receivable by such special purpose subsidiary
in transactions recorded as sales for accounting purposes to one or more third
party purchasers; PROVIDED, that (a) it is the intention of the parties that no
such program will result in the recording of indebtedness on a consolidated
balance sheet of the Company in accordance with GAAP and applicable regulations
of the Securities and Exchange Commission and (b) the amount of such receivables
programs will at no point in time exceed $100,000,000 in the aggregate for all
such programs.
SECTION 2. AMENDMENT TO DEFINITION OF INDEBTEDNESS. The definition of
"Indebtedness" in Section 1.01 of the Credit Agreement is hereby amended and
restated as follows:
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, and
(i) all obligations, contingent or otherwise, of such Person as an account party
in respect of letters of credit, letters of guaranty and bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor;
PROVIDED, HOWEVER, that when used in connection with the Company or any
Subsidiary, Indebtedness shall not include any obligation of the Company or any
Subsidiary in connection with any Permitted Receivables Program.
SECTION 3. AMENDMENT TO SECTION 6.02 OF THE CREDIT AGREEMENT. Section
6.02 of the Credit Agreement is hereby amended to add a new subsection (f) at
the end thereof as follows:
(f) sales of accounts receivable pursuant to Permitted
Receivables Programs, and Liens arising in connection with Permitted
Receivables Programs (to the extent the sale by the Company or any
Subsidiary of accounts receivable pursuant to any such program is
deemed to give rise to a Lien in favor of the purchaser thereof).
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each of the Lenders and the Agent that:
(a) Before and after giving effect to this Amendment, the
representations and warranties set forth in Article 3 of the Credit
Agreement are true and correct in all material respects with the same
effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate to an earlier date
(specifically excluding herefrom representations and warranties made
only as of the date of the Credit Agreement).
(b) After giving effect to this Amendment, no Event of Default
or Default has occurred and is continuing.
SECTION 5. CONDITION TO EFFECTIVENESS. This Amendment shall become
effective as of the date when the Agent shall have received counterparts of this
Amendment
that, when taken together, bear the signatures of the Company and the Required
Lenders.
SECTION 6. CREDIT AGREEMENT. Except as specifically stated herein, the
provisions of the Credit Agreement are and shall remain in full force and
effect. As used therein, the terms "Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as amended hereby.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract.
SECTION 9. EXPENSES. The Company agrees to reimburse the Agent for its
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel
for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
SUNBEAM CORPORATION,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director of Treasury
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ ▇. ▇. ▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NT & SA,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
NATIONSBANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA,
by
/s/ ▇. ▇. ▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice
President/ Authorized
Agent
FIRST UNION NATIONAL BANK OF
FLORIDA,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
NORTHERN TRUST COMPANY,
by
/s/ ▇▇▇▇▇ F.T. Marhart
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Name: ▇▇▇▇▇ F.T. Marhart
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: AVP
THE BANK OF TOKYO-MITSUBISHI,
by
/s/ R. Glass
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Name: R. Glass
Title: Vice President
CREDIT SUISSE,
by
/s/ ▇. ▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇
Title: Managing Director
by
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
THE FUJI BANK LIMITED,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President & Manager
SAKURA BANK, LIMITED,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: V.P. & Senior Manager