EXHIBIT 10.29
SIXTH AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT AND LIMITED CONSENT
Sixth Amendment to the Amended and Restated Revolving Credit and Term Loan
Agreement and Limited Consent, dated as of December 19, 2003 (the "Sixth
Amendment"), by and among THE ▇▇▇▇▇▇ GROUP, INC. (FORMERLY KNOWN AS ▇▇▇▇▇▇
PRODUCTS CORP.), a Massachusetts corporation (the "Company"), THE RIVAL COMPANY,
a Delaware corporation ("Rival"), ▇▇▇▇▇▇ PRODUCTS (FAR EAST) LIMITED, an entity
organized under the laws of the Bahamas ("Far East"), ESTEEM INDUSTRIES LIMITED,
an entity organized under the laws of Hong Kong ("Esteem"), RAIDER MOTOR
CORPORATION, an entity organized under the laws of the Bahamas ("Raider"),
▇▇▇▇▇▇ PRODUCTS (EUROPE) LIMITED, an entity organized under the laws of the
United Kingdom ("▇▇▇▇▇▇ UK"), BIONAIRE INTERNATIONAL B.V., a private company
with limited liability incorporated under the laws of the Netherlands ("Bionaire
BV"), ▇▇▇▇▇▇ ELECTRIC (HONG KONG) LTD. a corporation organized under the laws of
Hong Kong ("▇▇▇▇▇▇"), THE ▇▇▇▇▇▇ GROUP CANADA LTD. (THE SURVIVOR OF THE
AMALGAMATION OF THE RIVAL COMPANY OF CANADA AND ▇▇▇▇▇▇ AIR (CANADA) CORP.), a
corporation organized under the laws of Canada ("▇▇▇▇▇▇ Canada" and,
collectively with the Company, Rival, Far East, Esteem, Raider, ▇▇▇▇▇▇ UK,
Bionaire BV and ▇▇▇▇▇▇, the "Borrowers", and each individually a "Borrower"),
and FLEET NATIONAL BANK and the other lending institutions listed on Schedule 1
to the Credit Agreement (as hereinafter defined) (the "Banks"), amending certain
provisions of the Amended and Restated Revolving Credit and Term Loan Agreement
dated as of February 5, 1999 (as amended by the First Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement dated as of August, 1999, the
Second Amendment to Amended and Restated Revolving Credit and Term Loan
Agreement dated as of June 30, 2000, the Forbearance Agreement and Third
Amendment dated as of April 13, 2001, the Fourth Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement and Limited Waiver dated as of
May 7, 2001, the Fifth Amendment to Amended and Restated Revolving Credit and
Term Loan Agreement dated as of March 22, 2002 and as further amended and in
effect from time to time, the "Credit Agreement") by and among the Borrowers,
the Banks, FLEET NATIONAL BANK in its capacity as administrative agent for the
Banks (in such capacity, the "Agent"), ▇▇▇▇▇▇ COMMERCIAL PAPER INC. in its
capacity as documentation agent, FLEET NATIONAL BANK acting through its Hong
Kong and London branches as fronting bank, FLEET SECURITIES, INC. as syndication
agent and arranger and ▇▇▇▇▇▇ BROTHERS INC. as co-arranger. Terms not otherwise
defined herein which are defined in the Credit Agreement shall have the same
respective meanings herein as therein.
WHEREAS, the Borrowers and the Banks have agreed to amend and modify
certain terms and conditions of the Credit Agreement as specifically set forth
in this Sixth Amendment and, in addition, the Borrowers have requested the Banks
consent to certain modifications to the SilverPoint Consent (as hereinafter
defined), and the Banks, subject to the terms and conditions contained herein,
are willing to consent to such modifications as more fully set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. Section 1.1 of
the Credit Agreement is hereby amended as follows:
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(a) The definition of "Maximum Initial Amount" contained in section 1.1 of
the Credit Agreement is hereby amended by deleting the date "June 30, 2004"
which appears in such definition and substituting in place thereof the date
"January 3, 2005"; and
(b) The definition of "Revolving Credit Loan B Maturity Date" contained in
section 1.1 of the Credit Agreement is hereby amended by deleting the date "July
1, 2004" which appears in such definition and substituting in place thereof the
date "January 4, 2005".
SECTION 2. AMENDMENT TO SECTION 2 OF THE CREDIT AGREEMENT. Section 2 of
the Credit Agreement is hereby amended as follows:
(a) Section 2.1.1 of the Credit Agreement is hereby amended by deleting
the date "July 1, 2004" which appears in the second sentence of Section 2.1.1
and substituting in place thereof the date "January 4, 2005"; and
(b) Section 2.12.2.1(c) of the Credit Agreement is hereby amended by (i)
deleting the date "July 1, 2004" which appears in such section and substituting
in place thereof the date "January 4, 2005"; and (ii) deleting the date "June
30, 2004" which appears in such section and substituting in place thereof the
date "January 3, 2005".
SECTION 3. AMENDMENT TO SECTION 4 OF THE CREDIT AGREEMENT. Section 4.1.1
of the Credit Agreement is hereby amended by deleting the date "July 1, 2004"
which appears in the second sentence of section 4.1.1 and substituting in place
thereof the date "January 4, 2005".
SECTION 4. LIMITED CONSENT. Reference is hereby made to that certain
Limited Consent dated as of July 31, 2003 by and among the Borrower and certain
of the Banks (the "SilverPoint Consent"). In connection with the SilverPoint
Consent, the Majority Banks have consented, subject to the terms and conditions
contained in such SilverPoint Consent, to the "Final Silver Point Program" (as
such term is defined in the SilverPoint Consent). The Borrowers have now advised
the Agent and the Banks that the Company is contemplating modifying certain
terms of the Final Silver Point Program such that the Company is contemplating
amending each of the KMart Agreement (as such term is defined in the SilverPoint
Consent) and ▇▇▇ ▇▇▇▇▇▇▇▇/ShopKo Agreement (as such term is defined in the
SilverPoint Consent) to (a) extend the termination dates under each such KMart
Agreement and Dillards/ShopKo Agreement from December 31, 2003 until December
31, 2004 (and, in connection therewith, continue to sell receivables thereunder
for an additional one year period subject to the dollar limits for the aggregate
amount of receivables which can be owing at any one time as set forth in each of
the KMart Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇/ShopKo Agreement, as the case may be, as in
effect on the date of the SilverPoint Consent); and (b) making additional
modifications to each of the KMart Agreement and/or ▇▇▇ ▇▇▇▇▇▇▇▇/ShopKo
Agreement so long as (i) such modifications are no more onerous to the Company
or the rights of the Banks than those that exist in such agreements as of the
date hereof; and (ii) such modifications have been approved in writing in
advance by the Agent in its sole and absolute discretion. Solely to the extent
that each of the KMart Agreement and ▇▇▇ ▇▇▇▇▇▇▇▇/ShopKo Agreement are amended
only as set forth above (including, without limitation, an extension of the
termination date to a date which is not after December 31, 2004 and with no
change to the aggregate amount of receivables which can be owing at any time
thereunder), and the conditions to effectiveness set forth in section 5 have
been satisfied, the Majority Banks hereby consent to such modifications to the
Final Silver Point Program as specifically set forth in paragraphs (a) and (b)
of this section 4.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Sixth Amendment shall become
effective upon satisfaction of the following conditions:
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(a) receipt by the Agent of a counterpart of this Sixth Amendment,
executed by the Borrowers, each Guarantor and the required Banks;
(b) evidence satisfactory to the Agent that all necessary corporate or
other similar action has been taken by the Company and its Subsidiaries to
authorize the transaction contemplated hereby; and
(c) receipt by the Agent of evidence that all consents and approvals
necessary to complete the transactions contemplated herein have been obtained.
SECTION 6. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
repeats, on and as of the date hereof, each of the representations and
warranties made by it in section 7 of the Credit Agreement (except to the extent
of changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse to
the Company and its Subsidiaries taken as a whole, and to the extent that such
representations and warranties relate expressly to an earlier date), provided,
that all references therein to the Credit Agreement shall refer to such Credit
Agreement as amended hereby. In addition, each of the Borrowers hereby
represents and warrants that the execution and delivery by each Borrower of this
Sixth Amendment and the performance by each Borrower of all of their agreements
and obligations under the Credit Agreement as amended hereby are within the
corporate authority of each Borrower and have been duly authorized by all
necessary corporate action on the part of each Borrower.
SECTION 7. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto
or delivered thereunder, including, but not limited to the Security Documents,
are hereby ratified and confirmed in all respects and shall continue in full
force and effect. The Credit Agreement and this Sixth Amendment shall be read
and construed as a single agreement. All references to the Credit Agreement in
the Credit Agreement or any Loan Document shall hereafter refer to the Credit
Agreement as amended hereby.
SECTION 8. NO WAIVER. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrowers or any rights of the Agent, the Documentation Agent or the Banks
consequent thereon.
SECTION 9. COUNTERPARTS. This Sixth Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
SECTION 10. GOVERNING LAW. THIS SIXTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
SECTION 11. EXPENSES. The Borrowers agree to pay to the Agent (a) on
demand by the Agent, an amount equal to any and all reasonable out-of-pocket
costs or expenses (including reasonable legal fees and disbursements of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ LLP and other counsel to the Agent, reasonable fees and expenses of
in-house counsel to the Agent, consulting, accounting, appraisal, investment
banking and similar professional fees and charges) incurred or sustained by the
Agent and the Banks in connection with the negotiation and preparation of this
Sixth Amendment and all related matters and (b) from time to time any and all
reasonable out-of-pocket costs, expenses (including legal fees and
disbursements, consulting, accounting, appraisal, investment banking and similar
professional fees and charges) hereafter
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incurred or sustained by the Agent in connection with the administration of
credit extended by the Agent and the Banks to the Borrowers or the preservation
of or enforcement of the Agent's and the Banks' rights under the Loan Documents
or in respect of the Borrowers' or any of their Subsidiaries' other obligations
to the Agent and the Banks.
SECTION 12. NO CLAIMS. Each of the Borrowers and the Guarantors hereby
acknowledge and agree that (a) neither the Borrowers nor any of their
Subsidiaries has any claim or cause of action against any of the Banks or the
Agent (or any of their directors, officers, employees, agents or Affiliates)
arising on or prior to the date hereof from any transactions under this Sixth
Amendment, under the Credit Agreement or any of the other Loan Documents; (b)
neither the Borrowers nor any of their Subsidiaries has offset rights,
counterclaims or defenses of any kind against any of their Obligations,
indebtedness or liabilities to the Agent or the Banks; and (c) each of the Banks
and the Agent has heretofore properly performed and satisfied in a timely manner
all of its obligations to the Borrowers and their Subsidiaries. The Agent and
the Banks wish (and each Borrower and Guarantor agrees) to eliminate any
possibility that any past conditions, acts, omissions, events, circumstances or
matters would impair or otherwise adversely affect any of the rights, interests,
contracts, collateral security or remedies of the Agent and the Banks.
Therefore, the Borrowers and each of their Subsidiaries unconditionally
releases, waives and forever discharges (i) any and all liabilities,
obligations, duties, promises or indebtedness of any kind of any of the Banks
and the Agent to the Borrowers and each of their Subsidiaries, except the
obligations to be performed by the Banks or the Agent for the Borrowers
hereafter as expressly stated in this Sixth Amendment and the other Loan
Documents, and (ii) all claims, offsets, causes of action, suits or defenses of
any kind whatsoever (if any), whether known or unknown, which the Borrowers or
any Subsidiary might otherwise have against any of the Banks or the Agent or any
of their directors, officers, employees, agents or Affiliates with respect to
the obligations performed or to be performed by the Agent or any Bank for the
Borrowers as set forth in the Loan Documents, in either case (i) or (ii) above,
on account of any condition, act, omission, event, contract, liability,
obligation, indebtedness, claim, cause of action, defense, circumstance or
matter of any kind whatsoever which existed, arose or occurred at any time prior
to the date hereof.
SECTION 13. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS AND THEIR
SUBSIDIARIES HEREBY WAIVES ANY RIGHTS THAT IT MAY HAVE TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH
THIS SIXTH AMENDMENT OR ANY OF THE LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
Except as prohibited by law, each of the Borrowers and their Subsidiaries hereby
waives any right that it may have to claim or recover in any litigation referred
to in the preceding sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages. Each of
the Borrowers and their Subsidiaries hereby (a) certifies that no
representative, agent or attorney of the Agent or any Bank has represented,
expressly or otherwise, that the Agent or any Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and (ii) acknowledges that it
has been induced to enter into this Sixth Amendment by, among other things, the
waivers and certifications herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Sixth Amendment
as a document under seal as of the date first above written.
THE ▇▇▇▇▇▇ GROUP, INC.
By:_____________________________________
Title:
THE RIVAL COMPANY
By:_____________________________________
Title:
▇▇▇▇▇▇ PRODUCTS (FAR EAST) LIMITED
By:_____________________________________
Title:
ESTEEM INDUSTRIES LIMITED
By:_____________________________________
Title:
RAIDER MOTOR CORPORATION
By:_____________________________________
Title:
BIONAIRE INTERNATIONAL B.V.
By:_____________________________________
Title:
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▇▇▇▇▇▇ PRODUCTS (EUROPE) LIMITED
By:_____________________________________
Title:
▇▇▇▇▇▇ ELECTRIC (HONG KONG) LTD.
By:_____________________________________
Title:
THE ▇▇▇▇▇▇ GROUP OF CANADA LTD.
By:_____________________________________
Title:
THE BANKS
FLEET NATIONAL BANK
By:_____________________________________
Title:
ANTARES CAPITAL CORPORATION
By:_____________________________________
Title:
MARINER CDO 2002, LTD.
By:_____________________________________
Title:
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JPMORGANCHASE BANK, AS TRUSTEE OF THE
ANTARES FUNDING TRUST CREATED UNDER THE
TRUST AGREEMENT DATED AS OF NOVEMBER 30,
1999
By:_____________________________________
Title:
CITIZENS BANK OF MASSACHUSETTS
By:_____________________________________
Title:
FIRST MASSACHUSETTS BANK
By:_____________________________________
Title:
▇▇▇▇▇▇ FINANCIAL, INC.
BY: ▇▇▇▇▇▇ FINANCIAL ASSET MANAGEMENT
LLC
AUTHORIZED AGENT
By:_____________________________________
Title:
SHARP HILL CAPITAL LLC
By:_____________________________________
Title:
GLENEAGLES TRADING LLC
By:_____________________________________
Title:
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HIGHLAND LEGACY LIMITED
By:_____________________________________
Title:
LOAN FUNDING IV LLC
By:_____________________________________
Title:
HIGHLAND LOAN FUNDING V LTD
By:_____________________________________
Title:
PAMCO CAYMAN LTD.
By:_____________________________________
Title:
RESTORATION FUNDING CLO, LTD
By:_____________________________________
Title:
INDOSUEZ CAPITAL FUNDING IIA
By:_____________________________________
Title:
ACHIMEDES FUNDING III, LTD
By:_____________________________________
Title:
ACHIMEDES FUNDING IV (CAYMAN), LTD
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By:_____________________________________
Title:
ENDURANCE CLO I, LTD
By:_____________________________________
Title:
NEMEAN CLO, LTD
By:_____________________________________
Title:
ING-ORYX CLO, LTD
By:_____________________________________
Title:
PILGRIM CLO 1999 - 1 LTD.
By:_____________________________________
Title:
PILGRIM PRIME RATE TRUST
By:_____________________________________
Title:
SEQUILS-ING I (HBDGM), LTD
By:_____________________________________
Title:
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SEQUILS-PILGRIM I, LTD.
By:_____________________________________
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:_____________________________________
Title:
MAGNETITE ASSET INVESTORS LLC
By:_____________________________________
Title:
NATIONAL CITY BANK
By:_____________________________________
Title:
ORIX FUNDING LLC
By:_____________________________________
Title:
STAR BANK, NATIONAL ASSOCIATION
By:_____________________________________
Title:
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By:_____________________________________
Title:
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THE TRAVELERS INSURANCE COMPANY
By:_____________________________________
Title:
CITIGROUP INVESTMENTS CORPORATE LOAN
FUND INC. F/K/A TRAVELERS CORPORATE LOAN
FUND INC.
BY: TRAVELERS ASSET MANAGEMENT
INTERNATIONAL COMPANY LLC
By:_____________________________________
Title:
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RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents to the
foregoing Sixth Amendment as of December 19, 2003, and agrees that the Amended
and Restated Guaranty dated as of February 5, 1999 from each of ▇▇▇▇▇▇
Manufacturing Corp., ▇▇▇▇▇▇ Air (Taiwan) Corp., ▇▇▇▇▇▇ Motor Corporation, ▇▇▇▇▇▇
Electric Company, Inc., ▇▇▇▇▇▇ Building Products Inc. and Rival Consumer Sales
Corporation (collectively, the "▇▇▇▇▇▇ Guarantors") in favor of the Agent for
the benefit of the Agent and the Revolving Banks and the Guaranty dated as of
May 7, 2001 from Berkshire Fund IV, Limited Partnership and Berkshire Fund V,
Limited Partnership (collectively, the Berkshire Guarantors" and collectively
with the ▇▇▇▇▇▇ Guarantors, the "Guarantors") in favor of the Agent and each of
the Revolving Credit B Banks (the "Berkshire Guaranty") and all other Loan
Documents to which each of the Guarantors are a party remain in full force and
effect, and each of the Guarantors confirms and ratifies all of its obligations
thereunder. In addition, the Berkshire Guarantors hereby acknowledge and agree
that this ratification of the Berkshire Guaranty shall also be considered, for
purposes of SECTION 10 of the Berkshire Guaranty, as the Berkshire Guarantors
providing the Revolving Credit B Banks with the BerksHIRe Guarantors' prior
written consent to the extension of the Revolving Credit Loan B Maturity Date as
provided for in this Sixth Amendment.
▇▇▇▇▇▇ MANUFACTURING CORP.
By:_____________________________________
Title:
▇▇▇▇▇▇ AIR (TAIWAN) CORP.
By:_____________________________________
Title:
▇▇▇▇▇▇ MOTOR CORPORATION
By:_____________________________________
Title:
RIVAL CONSUMER SALES CORPORATION
By:_____________________________________
Title:
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BERKSHIRE FUND IV, LIMITED PARTNERSHIP
BY: FOURTH BERKSHIRE ASSOCIATES LLC, ITS
GENERAL PARTNER
By: ____________________________________
Title:
BERKSHIRE FUND V, LIMITED PARTNERSHIP
BY: FIFTH BERKSHIRE ASSOCIATES LLC, ITS
GENERAL PARTNER
By: ____________________________________
Title: