AMENDMENT NO. 1 TO
AMENDED AND RESTATED LETTER AGREEMENT
AND AMENDED AND RESTATED NOTE
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED LETTER AGREEMENT
AND AMENDED AND RESTATED NOTE (the "Amendment") dated March 1,
1996, is made by and between WINDMERE CORPORATION, a Florida
corporation (the "Borrower"), and NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) (successor by merger of NationsBank of Florida, National
Association), a national banking association, (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank by an Amended and Restated Letter Agreement
dated as of July 28, 1995 (the "Agreement"), has agreed to make
available and has made available to Borrower a working capital loan
of up to $20,000,000, reducing at December 31, 1995 to $10,000,000,
and a letter of credit facility of up to $5,000,000; and
WHEREAS, the Borrower has requested that the Bank reinstate
the additional $10,000,000 of the working capital facility which
reduced at December 31, 1995 upon the same terms and conditions
existing prior to December 31, 1995 and the Bank is willing to
reinstate such amount;
NOW, THEREFORE, in consideration of the mutual covenants,
promises and conditions herein set forth, it is hereby agreed as
follows:
1. The terms "Agreement" and "Note" as used herein and in
the Agreement, the Note and the other Loan Documents (as defined in
the "Agreement") shall mean the Agreement and the Note as hereby
amended and modified. Unless the context otherwise requires, all
capitalized terms used herein and in the other Loan Documents
without definition shall have the respective meanings provided
therefor in the Agreement, as hereby amended.
2. Subject to the conditions set forth in paragraph 5
hereof, the Agreement shall be and hereby is amended, effective as
of March 1, 1996, as follows:
(a) The second sentence of the first paragraph of the
Agreement is amended to read as follows:
"The Borrower has requested that the Bank increase the
amount of the revolving loan to the principal amount of
$20,000,000 and that the Bank increase the letter of
credit facility to $10,000,000 to the Borrower."
(b) Paragraph 5 of the Agreement is hereby amended in
its entirety so that as amended it shall read as follows:
"5. Reinstatement. The Committed Amount shall
automatically be increased, effective March 1, 1996, from
$10,000,000 to $20,000,000 and the Note shall be deemed
amended to reflect a Maximum Amount of $20,000,000 from
and after March 1, 1996."
(c) Paragraph 6 of the Agreement is hereby amended in
its entirety so that as amended it shall read as follows:
"6. Unused Fee. For the period beginning on the
date hereof and ending on the Termination Date (excluding
however the period from January 1, 1996 through February
29, 1996), the Borrower will pay to the Bank an unused
fee equal to one quarter of a percent (1/4%) per annum
multiplied by the amount by which the Committed Amount
exceeds the greater of (i) $10,000,000 or (ii) the daily
amount of (A) the aggregate undrawn amount of Standby
Letters of Credit and (B) Loans outstanding. The unused
fee shall be calculated on a basis of a year of 360 days
for actual days elapsed and shall be payable quarterly in
arrears on the last day of each September, December,
March and June."
(d) Exhibit E to the Agreement is amended in its
entirety so that as amended it reads as attached hereto.
3. The Note shall be and hereby is amended, effective as of
March, 1996 in order to define on page one the term "Maximum
Amount" to read as follows:
"Maximum Amount: $20,000,000"
4. Each of the Domestic Subsidiaries of the Borrower who has
previously delivered a Guaranty to the Bank has joined in the
execution of this Amendment Agreement for the purpose of consenting
to this Amendment Agreement and affirming its respective guaranty
of the obligations of Borrower arising under the Agreement as
amended by this Amendment Agreement.
5. The Borrower hereby represents and warrants to the Agent
and the Bank that as of the date hereof the Agreement has been re-
examined by the Borrower and:
(i) The representations and warranties made by the
Borrower therein and in the other Loan Documents are true,
complete and correct in all material respects on and as of the
date hereof, are hereby reaffirmed, and shall survive the
execution and delivery of the Amendment Agreement;
(ii) The execution, delivery and performance of this
Amendment Agreement will not conflict with or result in the
breach of any of the provisions of, or cause a default under,
the Articles of Incorporation or Bylaws of the Borrower, or
any applicable law, rule or regulation, or any judgment,
order, writ, injunction or decree of any court, administrative
agency or other government instrumentality to which the
Borrower or any Subsidiary is subject or any agreement or
instrument to which the Borrower or any Subsidiary is a party,
the effect of which would have any material adverse effect on
the ability of the Borrower or any Guarantor to observe the
covenants and agreements contained in the Agreement, as
amended hereby, or in any other Loan Document or to pay the
obligations arising under the Agreement and the Guaranty, and
will not result in the creation or imposition of any security
interest, lien, charge or encumbrance on any of the assets of
the Borrower or any Subsidiary.
6. As conditions to the effectiveness of this Amendment
Agreement there shall not have occurred either (i) any Default or
Event of Default which shall not have been waived or (ii) any
material adverse change in the business, financial condition or
operations of the Borrower or any Subsidiary since September 30,
1995.
7. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter. No
promise, condition, representation or warranty, express or implied,
not herein set forth shall bind any party hereto, and none of them
has relied on any such promise, condition, representation or
warranty. Each of the parties hereto acknowledges that, except as
in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied,
have been made by any party to the other.
8. Except as specifically amended, modified or supplemented
by this Amendment Agreement, all of the other documents delivered
in connection with the Loans, as heretofore amended, are hereby
confirmed and ratified in all respects and shall remain in full
force and effect according to their respective terms.
9. Should any stamp or excise tax become payable under the
laws of the United States or of any state or any subdivision
thereof or municipality therein in respect of the Amendment
Agreement, the Borrower shall pay the same (including interest
penalties, if any) and shall hold the Bank and the Agent harmless
with respect thereto.
10. This Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
WINDMERE CORPORATION
WITNESS:
__________________________ By :________________________________
Name: Xxxx Xxxxxxxx
__________________________ Title: Treasurer
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH)
By:________________________________
Name: Xxxxxx X. Duck, Jr.
Title: Vice President
The undersigned hereby acknowledge, agree to and consent to
the terms and provisions hereof, as of this 1st day of March, 1996.
WITNESS: WINDMERE HOLDINGS CORPORATION
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Secretary
WITNESS: WINDMERE FAN PRODUCTS, INC.
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Treasurer
WITNESS: JERDON PRODUCTS, INC.
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Secretary
WITNESS: CONSUMER PRODUCTS AMERICAS, INC.
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Secretary
WITNESS: FORTUNE PRODUCTS, INC.
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Treasurer
WITNESS: EDI MASTERS, INC.
_________________________ By: ________________________________
Name: Xxxx Xxxxxxxx
_________________________ Title: Vice President
EXHIBIT E
Indebtedness
(a) Dade County Industrial Development Authority Variable Rate
Demand Industrial Development Revenue Bonds (Windmere
Corporation Project) Series 1985 ($7,500,000), and related
documents thereto, including, but not limited to, (i) Guaranty
Agreement, dated as of May 1, 1985, between Windmere
Corporation and Bankers Trust Company, and (ii) Letter of
Credit Agreement, dated as of July 31, 1992, between Windmere
Corporation and NationsBank of Florida, N.A.
(b) Banking Facility or Facilities in an aggregate principal
amount not to exceed $8,000,000 granted by the Bank of East
Asia, Limited or other financial institution to Durable
Electrical Metal Factory, Ltd. and/or other Subsidiaries.
(c) Guarantee by Windmere Corporation of the Indebtedness
described in (b) above.
(d) Equipment leases existing at July 28, 1995.
(e) $5,000,000 Standby Letter of Credit from Bank of Tokyo
Limited-Hong Kong (through Miami office) to provide working
capital.
(f) Subordinated Note in the amount of $10,847,620 payable to
Salton/Maxim Housewares, Inc.
