EXHIBIT 10.16
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT ("this Amendment") is
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made and entered into as of the 16th day of October, 1995, by and among SHAWMUT
CAPITAL CORPORATION, a Connecticut corporation, successor by assignment to
Barclays Business Credit, Inc. ("Lender"), LOWRANCE ELECTRONICS, INC., a
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Delaware corporation ("Lowrance"), LEI EXTRAS, INC., a Delaware corporation
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("LEI"), LOWRANCE AUSTRALIA PTY LIMITED, a New South Wales, Australia
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corporation ("Lowrance Australia") (ACN 000 000 000), LOWRANCE CONTRACTS, INC.,
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a Delaware corporation ("Lowrance Contracts") and SEA ELECTRONICS, INC., an
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Oklahoma corporation ("Sea Electronics") (Lowrance, LEI, Lowrance Australia and
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Lowrance Contracts are herein individually and collectively called "Original
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Borrower"; Original Borrower and Sea Electronics are herein individually and
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collectively called "Borrower").
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RECITALS
A. Original Borrower and Lender have entered into that certain Loan and
Security Agreement, dated December 15, 1993 (the "Loan Agreement").
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B. Original Borrower and Lender desire to amend the Loan Agreement and
the Other Agreements as hereinafter set forth in order to, among other things,
include Sea Electronics as a borrower thereunder.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
Definitions
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1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
Amendments
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2.01 Amendment to Section 1.1; Amendment of Certain Definitions. Effective
as of the date hereof, the definitions of "Bank", "Base Rate", "Deed of Covenant
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to Pay", "Domestic Borrowers", "Loans", "Notes", "Other Agreements", "Revolving
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Credit Note", "Stock Pledge Agreement" and "Term Note" contained in Section 1.1
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of the Loan Agreement are hereby deleted in their entirety, and the following
shall be substituted therefor:
"Bank - Shawmut Bank Connecticut, N.A."
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"Base Rate - the rate of interest generally announced or quoted by
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Bank from time to time as its base rate for commercial loans, whether or
not such rate is the lowest rate charged by Bank to its most preferred
borrowers; and if such base rate for commercial loans is discontinued by
Bank as a standard, a comparable reference rate designated by Bank as a
substitute therefor shall be the Base Rate."
"Deed of Covenant to Pay - the Deed of Covenant to Pay executed by the
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Domestic Borrowers (other than Sea Electronics) on or about the Closing Date.
"Domestic Borrowers - collectively, Lowrance, LEI, Lowrance Contracts
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and Sea Electronics."
"Loans - all loans and advances made by Lender pursuant to this
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Agreement, including, without limitation, all Revolving Credit Loans, the
Term Loan, the Equipment Loans, each payment made pursuant to a guaranty of
a foreign currency purchase contract, and each payment made pursuant to a
Letter of Credit."
"Notes - the Term Note, the Equipment Notes and the Revolving Credit
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Notes."
"Other Agreements - any and all agreements, instruments and documents
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(other than this Agreement and the Security Documents), heretofore, now or
hereafter executed by Borrower and delivered to Lender in respect to the
transactions contemplated by this Agreement, including, without limitation,
the Term Note, the Equipment Notes, the Revolving Credit Notes and the Deed
of Covenant to Pay."
"Revolving Credit Notes - collectively, the Amended and Restated
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Revolving Credit Notes to be executed on or about the date of the First
Amendment Agreement by Borrower in favor of Lender, each in the principal
amount of $13,250,000 to evidence the Revolving Credit Loans, which shall
be in the form of Exhibit A-2 attached hereto."
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"Stock Pledge Agreement - the Amended and Restated Stock Pledge
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Agreement to be executed by Lowrance on or about the date of the First
Amendment Agreement in favor of Lender by which Lowrance shall grant to
Lender a first priority security interest in all of the issued and
outstanding shares of capital stock of LEI, Lowrance Contracts, Sea
Electronics, Lowrance Electronics Deutschland GmbH and Electronica Lowrance
De Mexico S.A. De C.V. owned by Lowrance as security for the obligations of
Lowrance under this Agreement.
"Term Note - the Amended and Restated Secured Term Note to be executed
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by Borrower in favor of Lender on or about the date of the First Amendment
Agreement to evidence the Term Loan, which shall be in the form of Exhibit
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A-1 attached hereto."
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2.02. Amendment to Section 1.1; Addition of Certain Definitions.
Effective as of the date hereof, Section 1.1 of the Loan Agreement is hereby
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amended by adding the following definitions thereto in alphabetical order:
"Equipment Loan - the Loans to be made by Lender to Borrower pursuant to
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Section 2.2(B) of this Agreement."
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"Equipment Note - each Equipment Promissory Note to be executed by Borrower
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in favor of Lender as provided in Section 2.2(B) of the Agreement, which
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shall be in the form of Exhibit A-3 to this Agreement."
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"First Amendment Agreement - the First Amendment to Loan and Security
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Agreement, dated as of October 16, 1995, by and between Lender and
Borrower."
"Rate Reduction Event - Borrower's Consolidated Tangible Net Worth, at July
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31, 1996, shall be equal to or in excess of $14,215,000 as reflected in the
financial statements required to be delivered by Borrower to Lender in
accordance with Section 9.1(J)(i) of this Agreement."
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"Sea Electronics - Sea Electronics, Inc., an Oklahoma corporation."
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"Termination Amount - at any date means the sum of (a) the amount of the
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Term Loans and Equipment Loans then outstanding, plus (b) the face amount
of all Credit Enhancements then outstanding, plus (c) the Revolving Credit
Commitment at such date."
2.03 Amendment to Section 1.5. Effective as of the date hereof, Section
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1.5 of the Loan Agreement is hereby deleted in its entirety, and the following
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shall be substituted therefor:
"1.5 Borrower. All references to "Borrower" herein shall refer to and
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include each of Lowrance, LEI, Lowrance Australia, Lowrance Contracts and
Sea Electronics. Except as otherwise provided herein, all representations
contained herein shall be deemed individually made by each "Borrower" and
each of the covenants, agreements, and obligations set forth herein shall
be deemed to be the joint and separate covenants, agreements, and
obligations of the Borrowers. For purposes of Section 11.1 of this
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Agreement, references to the "Borrower" shall be deemed to mean and include
each of Lowrance, LEI, Lowrance Australia, Lowrance Contracts and Sea
Electronics or all of them. Any notice, request, consent, report or other
information or agreement delivered to Lender by any Borrower shall be
deemed to be ratified by, consented to, and also delivered by the other
Borrowers. Lowrance, LEI, Lowrance Australia, Lowrance Contracts and Sea
Electronics, each recognize and agree that each covenant and agreement of
"Borrower" or "Borrowers" in this Agreement and in the Other Agreements
shall create a joint and several obligation of such entities, which may be
enforced against such entities jointly, or each entity separately. Without
limiting the terms of this Agreement, and the Other Agreements, the
security interests granted under this
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Agreement and the Security Documents in properties, assets and collateral
of the "Domestic Borrowers" shall include and extend to the properties,
interests, assets, and collateral of such entities, and any of them.
Similarly, the term "Obligations" shall include, without limitation, all or
any of them, to Lender, whether such obligations, limitations, and
indebtedness shall be joint, several, joint and several, or individual."
2.04 Addition to Section 1.6. Effective as of the date hereof, the Loan
Agreement is hereby amended to include a new Section 1.6, which shall read in
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its entirety as follows:
"1.6 Sea Electronics. Notwithstanding any other provision of this
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Agreement, the Revolving Credit Notes or the Term Note to the contrary, it
is hereby agreed that Sea Electronics is not assuming payment of the unpaid
balance of the Obligations arising under the Revolving Credit Notes and the
Term Note which was incurred by Lowrance, LEI, Lowrance Australia and/or
Lowrance Contracts pursuant to Loan Documents prior to the date of the
First Amendment Agreement (collectively, the "Lowrance Obligations").
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However, the parties hereto agree and acknowledge that the preceding
sentence shall not (i) limit any contingent liability of Sea Electronics
for payment of any of the Lowrance Obligations which arises pursuant to
that certain Unconditional Guaranty dated as of the date of the First
Amendment Agreement executed by Sea Electronics for the benefit of Lender
(as amended, the "Sea Electronics Guaranty"), or (ii) limit the liens in
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favor of Lender granted by Sea Electronics against the assets of Sea
Electronics as a result of Sea Electronics becoming an additional named
"Borrower", which liens shall secure payment of all of Sea Electronics'
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Obligations to Lender whether arising in connection with this Agreement,
the Sea Electronics Guaranty or otherwise, whether currently existing or
hereafter arising. Solely for purposes of determining on or after the date
hereof which outstanding Obligations constitute Lowrance Obligations, all
payments received by Lender on account of the Obligations shall be deemed
to be applied first in payment of the Lowrance Obligations which arose
under the Revolving Credit Notes, then to the other Lowrance Obligations
until such time as the Lowrance Obligations shall have been reduced to
zero, and thereafter to the other Obligations as hereinafter set forth."
2.05 Amendment to Section 2.1(B)(i). Effective as of the date hereof,
Section 2.1(B)(i) is hereby deleted in its entirety, and the following shall be
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substituted therefor:
"(i) the aggregate outstanding amount of all Revolving Loans advanced
against Eligible Accounts and Eligible Inventory of LEI, Lowrance Contract
and Sea Electronics shall not exceed $500,000 at any time;".
2.06 Amendment to Section 2.1(B)(v). Effective as of the date hereof,
Section 2.1(B)(v) of the Loan Agreement is hereby amended by deleting therefrom
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the reference to the dollar amount "$1,000,000" and substituting in lieu
thereof the dollar amount "$3,000,000".
2.07 Amendment to Section 2.2. Effective as of the date hereof, Section
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2.2 of the Loan Agreement is hereby deleted in its entirety, and the following
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shall be substituted therefor:
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"2.2 Term Loan and Equipment Loans.
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(A) Term Loan. Borrower hereby represents and warrants that on
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December 15, 1993, Lender made a term loan to Borrower in the principal
amount of $3,500,000 (the "Existing Term Loan"), which Existing Term Loan
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is repayable in accordance with the terms of that certain secured
promissory note dated December 15, 1993, executed by Borrower and payable
to the order of Lender. Borrower further represents and warrants that as
of the date of the First Amendment Agreement, the aggregate unpaid
principal balance of Existing Term Loan is $1,990,326, and such amount is
unconditionally owed by Borrower to Lender without offset, defense or
counterclaim of any kind, nature or description whatsoever. Subject to the
terms and conditions of the First Amendment Agreement, Borrower and Lender
hereby agree that (i) on the date of the First Amendment Agreement, Lender
shall make an additional term loan to Borrower in the amount of $1,509,674,
the proceeds of which shall be used by Borrower solely to finance its
seasonal working capital needs, and (ii) such additional term loan and the
Existing Term Loan shall be combined into a single term loan of $3,500,000
(the "Term Loan"), which shall be repayable in accordance with the terms of
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the Term Note and shall be secured by the Collateral.
(B) Equipment Loans - Lender agrees that it will, from time to time
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during the term hereof so long as no Default or Event of Default exists,
make Loans to Borrower to finance Borrower's purchase of Equipment for use
in Borrower's business; provided, however, that no Equipment Loan may
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exceed 100% of the actual cost (exclusive of taxes, transportation and
shipping charges and installation, make-ready fees or expenses) of such
Equipment. All such Equipment Loans shall be in such amounts as may be
mutually agreed upon, but in no event to be less than $100,000.00 each, or
to exceed in the aggregate during the term hereof $750,000.00. The
Equipment Loans shall be secured by the Collateral, and shall bear interest
at the rate specified in Section 3.1(A) hereof. Prior to funding of an
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Equipment Loan, Borrower will execute and deliver to Lender an Equipment
Note to evidence the applicable Equipment Loan. Each Equipment Loan will
be repayable in monthly principal installments calculated on an five-year
amortization, beginning the month after the funding of such Equipment Loan.
Each Equipment Loan will mature simultaneously with the termination of the
Revolving Credit Loans. Accrued interest on each Equipment Loan will be
payable monthly, beginning the month after the funding of such Equipment
Loan.
(C) Mandatory Prepayments. If Borrower sells any of its Equipment or
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real Property, the proceeds of which exceed $25,000 in the aggregate during
any fiscal year of Borrower, or if any of the Collateral is taken by
condemnation, Borrower shall pay to Lender, unless otherwise agreed by
Lender, as and when received by Borrower and as a mandatory prepayment of
the Term Loan (or, at Lender's option, such of the other Obligations as
Lender may elect), a sum equal to the proceeds received by Borrower from
such sale or condemnation or at Borrower's option, Borrower may use the
proceeds from
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Equipment sales to acquire replacement Equipment in accordance with Section
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7.4 of this Agreement."
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2.08 Amendment to Section 3.1(A). Effective as of the date hereof, Section
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3.1(A) of the Loan Agreement is hereby amended by deleting the first sentence
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thereof in its entirety and substituting the following two sentences in lieu
thereof:
"Outstanding principal on the Loans shall bear interest, calculated
daily, at the following rates per annum (individually called, as
applicable, an "Applicable Annual Rate"): (i) the Term Loan shall bear
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interest at a fluctuating rate per annum equal to 1.50% above the Base
Rate, (ii) the Equipment Loans shall bear interest at a fluctuating rate
per annum equal to 1.50% above the Base Rate and (iii) the Revolving Credit
Loans shall bear interest (a) prior to the occurrence of the Rate Reduction
Event, at a fluctuating rate per annum equal to 0.75% above the Base Rate
and (b) after the occurrence of the Rate Reduction Event (if applicable),
at a fluctuating rate per annum equal to 0.50% above the Base Rate. Each
Applicable Annual Rate shall be increased or decreased, as the case may be,
by an amount equal to any increase or decrease in the Base Rate, with such
adjustments to be effective as of the opening of business on the day that
any such change in the Base Rate becomes effective."
2.09 Amendment to Section 3.1(J)(i)(b). Effective as of the date hereof,
Section 3.1(J)(i)(b) of the Loan Agreement is hereby amended by deleting
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therefrom the reference to the percentage "3.00%" and substituting in lieu
thereof the percentage "2.50%."
2.10 Amendment to Section 3.2. Effective as of the date hereof, Section
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3.2 of the Loan Agreement is hereby deleted in its entirety, and the following
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shall be substituted therefor:
"3.2. Term of Agreement. Subject to Lender's right to cease making
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Loans to Borrower at any time upon or after the occurrence of a Default or
Event of Default, (a) this Agreement shall be in effect, through and
including December 31, 1998 (the "Original Term"), and (b) unless
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terminated by either party upon at least 180 days notice to the other party
prior to the end of the Original Term, this Agreement shall automatically
renew for an additional one year period, through and including December 31,
1999 (the "Renewal Term"). Notwithstanding anything herein to the
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contrary, Lender may terminate this Agreement without notice upon or after
the occurrence of an Event of Default."
2.11 Amendment to Section 3.3(A). Effective as of the date hereof, Section
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3.3(A) of the Loan Agreement is hereby deleted in its entirety, and the
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following shall be substituted therefor:
"(A) Borrower may terminate Lender's agreement to make Equipment
Loans and the Term Loan at any time, without premium or penalty. Further,
Borrower may prepay the Equipment Loans and the Term Loan at any time
during the term of this Agreement, in whole or in part, without premium or
penalty, but any portions so prepaid
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may not be reborrowed. However, if Borrower chooses to terminate the
Revolving Credit Commitment and this Agreement in its entirety, Borrower
shall give Lender at least 30 days prior written notice thereof, and, on
the designated termination date, all of the Obligations shall become due
and payable in immediately available funds. At the effective date of any
such termination of the Revolving Credit Commitment and this Agreement,
Borrower shall pay to Lender (in addition to the then outstanding
principal, accrued interest and other charges owing under the terms of this
Agreement and any of the other Loan Documents), as liquidated damages for
the loss of the bargain and not as a penalty, an amount equal to (i) 1.0%
of the Termination Amount if such termination occurs during the period from
October 16, 1995 through December 31, 1996; and (ii) 0.67% of the
Termination Amount if such termination occurs during the period from
January 1, 1997 through December 31, 1997. If termination occurs after
December 31, 1997, no termination charge shall be payable."
2.12 Amendment to Section 9.3(A). Effective as of the date hereof, Section
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9.3(A) of the Loan Agreement is hereby amended by deleting therefrom the
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reference to the dollar amount "$9,500,000" and substituting in lieu thereof the
dollar amount "$10,300,000."
2.13 Amendments to Other Loan Documents. Effective as of the date hereof,
all references in the Loan Documents to "Barclays Business Credit, Inc." shall
be deemed references to "Shawmut Capital Corporation" and all references therein
to "Barclays" shall be deemed references to "Shawmut".
2.14 Exhibit A-1 - Form of Term Note. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit A-1, which is the form of the Term
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Note, shall be deemed references to the Exhibit A-1 which is attached hereto as
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Annex A.
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2.15 Exhibit A-2 - Form of Revolving Credit Notes. Effective as of the
date hereof, all references in the Loan Agreement to Exhibit A-2, which is the
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form of Revolving Credit Note, shall be deemed references to the Exhibit A-2
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which is attached hereto as Annex B.
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2.16 Exhibit A-3 - Form of Equipment Note. Effective as of the date
hereof, a new Exhibit A-3 is hereby added to the Loan Agreement, which Exhibit
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A-3 shall be the form of the Equipment Note and shall be in the form of Annex C
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attached hereto.
2.17 Exhibit B - Borrower's Business Locations. Effective as of the date
hereof, all references in the Loan Agreement to Exhibit B, which is entitled
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"Borrower's Business Locations", shall be deemed references to the Exhibit B
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which is attached hereto as Annex D.
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2.18 Exhibit D - Jurisdiction of Organization and Qualification. Effective
as of the date hereof, all references in the Loan Agreement to Exhibit D, which
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is entitled "Jurisdiction of Organization and Qualification", shall be deemed
references to the Exhibit D which is attached hereto as Annex E.
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2.19 Exhibit E - Corporate Names. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit E, which is entitled "Corporate
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Names", shall be deemed references to the Exhibit E which is attached hereto as
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Annex F.
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2.20 Exhibit F - Patents, Trademarks, Copyrights, and Licenses. Effective
as of the date hereof, all references in the Loan Agreement to Exhibit F, which
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is entitled "Patents, Trademarks, Copyrights, and Licenses", shall be deemed
references to the Exhibit F which is attached hereto as Annex G.
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2.21 Exhibit G - Capital Structure. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit G, which is entitled "Capital
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Structure", shall be deemed references to the Exhibit G which is attached hereto
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as Annex H.
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2.22 Exhibit I - Litigation. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit F, which is entitled "Litigation",
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shall be deemed references to the Exhibit G which is attached hereto as Annex I.
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2.23 Exhibit J - Property Owned or Leased by Borrower. Effective as of the
date hereof, all references in the Loan Agreement to Exhibit J, which is
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entitled "Property Owned or Leased by Borrower", shall be deemed references to
the Exhibit J which is attached hereto as Annex J.
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2.24 Exhibit L - Taxing Authorities. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit L, which is entitled "Taxing
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Authorities", shall be deemed references to the Exhibit L which is attached
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hereto as Annex K
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2.25 Exhibit O - Capitalized Leases. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit O, which is entitled "Capitalized
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Leases", shall be deemed references to the Exhibit O which is attached hereto as
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Annex L.
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2.26 Exhibit P - Operating Leases. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit P, which is entitled "Operating
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Leases", shall be deemed references to the Exhibit P which is attached hereto as
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Annex M.
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2.27 Exhibit S - Permitted Liens. Effective as of the date hereof, all
references in the Loan Agreement to Exhibit S, which is entitled "Permitted
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Liens", shall be deemed references to the Exhibit S which is attached hereto as
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Annex N.
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ARTICLE III
Conditions Precedent
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3.01 Conditions to Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Lender:
(a) Lender shall have received (i) this Amendment, duly executed by
Borrower, (ii) the Term Note, in the form of Annex A attached hereto, duly
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executed by Borrower, (iii) two (2) Revolving Credit Notes, in the form of Annex
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B attached hereto, duly executed by Borrower, (iv) a good standing certificate
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for each Borrower, issued within 15 days of the date of this Amendment by the
Secretary of State or appropriate official of the jurisdiction of its
incorporation, (v) a closing certificate signed by the Chief Executive Officer
and Chief Financial Officer of Borrower, dated as of the date of this Amendment,
stating that (A) the representations and warranties set forth in Section 8 of
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the Loan Agreement are true and correct as of such date, (B) Borrower is on such
date in compliance with all the terms and provisions set forth in the Loan
Agreement, as amended by this Amendment, and (C) on such date no Default or
Event of Default has occurred or is continuing, except for such Defaults or
Events of Default as have been specifically disclosed in writing by Borrower to
Lender, (vi) written instructions from Borrower directing the application of
proceeds of the Loans to be funded by Lender on the date of this Amendment,
(vii) a company general certificate in the form of Annex O attached hereto
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(hereinafter referred to as the "Company General Certificate") certified by the
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Secretary or Assistant Secretary of each Borrower acknowledging (A) that such
Borrower's Board of Directors has met and has adopted, approved, consented to
and ratified resolutions which authorize the execution, delivery and performance
by such Borrower of this Amendment and all other Loan Documents to which such
Borrower is or is to be a party, and (B) the names of the officers of such
Borrower authorized to sign this Amendment and each of the other Loan Documents
to which such Borrower is or is to be a party hereunder including the
certificates contemplated herein) together with specimen signatures of such
officers, (viii) the Guaranty in the form of Annex P, attached hereto, duly
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executed by Sea Electronics, (ix) the Stock Pledge Agreement in the form of
Annex Q attached hereto, duly executed by Sea Electronics, along with the
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original stock certificates related to such pledge and all applicable stock
powers related thereto, and (x) such additional documents, instruments and
information as Lender or its legal counsel may request;
(b) The representations and warranties contained herein, in the Loan
Agreement and in the Other Agreements, as each is amended hereby, shall be true
and correct as of the date hereof, as if made on the date hereof;
(c) No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been specifically
disclosed in writing by Borrower to Lender; and
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(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments and
other legal matters incident thereto shall be satisfactory to Lender and its
legal counsel.
ARTICLE IV
No Waiver
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Except as specifically provided in this Amendment, nothing contained in
this Amendment shall be construed as a waiver by Lender of any covenant or
provision of the Loan Agreement, the Other Agreements, this Amendment, or of any
other contract or instrument between Borrower and Lender, and the failure of
Lender at any time or times hereafter to require strict performance by Borrower
of any provision thereof shall not waive, affect or diminish any right of Lender
to thereafter demand strict compliance therewith. Lender hereby reserves all
rights granted under the Loan Agreement, the Other Agreements, this Amendment
and any other contract or instrument between Borrower and Lender.
ARTICLE V
Ratifications, Representations and Warranties
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5.01 Ratifications. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the Other Agreements, and, except as expressly modified
and superseded by this Amendment, the terms and provisions of the Loan Agreement
and the Other Agreements are ratified and confirmed and shall continue in full
force and effect. Borrower and Lender agree that the Loan Agreement and the
Other Agreements, as amended hereby, shall continue to be legal, valid, binding
and enforceable in accordance with their respective terms.
5.02 Representations and Warranties. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all Other Agreements executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the Certificate/Articles of
Incorporation or Bylaws of Borrower; (b) the representations and warranties
contained in the Loan Agreement, as amended hereby, and any Other Agreement are
true and correct on and as of the date hereof and on and as of the date of
execution hereof as though made on and as of each such date; (c) no Default or
Event of Default under the Loan Agreement, as amended hereby, has occurred and
is continuing; and (d) Borrower is in full compliance with all covenants and
agreements contained in the Loan Agreement and the Other Agreements, as amended
hereby.
ARTICLE VI
Miscellaneous Provisions
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6.01 Survival of Representations and Warranties. All representations and
warranties made in the Loan Agreement or any Other Agreement, including, without
limitation, any document furnished in connection with this Amendment, shall
survive the execution and delivery
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of this Amendment and the Other Agreements, and no investigation by Lender or
any closing shall affect the representations and warranties or the right of
Lender to rely upon them.
6.02 Reference to Loan Agreement. Each of the Loan Agreement and the Other
Agreements, and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Loan Agreement, as amended hereby, are hereby amended so that any
reference in the Loan Agreement and such Other Agreements to the Loan Agreement
shall mean a reference to the Loan Agreement as amended hereby.
6.03 Expenses of Lender. As provided in the Loan Agreement, Borrower
agrees to pay on demand all costs and expenses incurred by Lender in connection
with the preparation, negotiation and execution of this Amendment and the Other
Agreements executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the costs and fees of
Lender's legal counsel, and all costs and expenses incurred by Lender in
connection with the enforcement or preservation of any rights under the Loan
Agreement, as amended hereby, or any Other Agreements, including, without,
limitation, the costs and fees of Lender's legal counsel.
6.04 Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of Lender and Borrower and their respective successors and
assigns, except that Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
6.06 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 Effect of Waiver. No consent or waiver, express or implied, by Lender
to or for any breach of or deviation from any covenant or condition by Borrower
shall be deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
6.08 Headings. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 Applicable Law. THIS AMENDMENT AND ALL OTHER AGREEMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
11
6.10 Final Agreement. THE LOAN AGREEMENT AND THE OTHER AGREEMENTS, EACH AS
AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN
AGREEMENT AND THE OTHER AGREEMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND
LENDER.
6.11 Release. BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM LENDER. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES LENDER, ITS PREDECESSORS, OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER,
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART
ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR
HEREAFTER HAVE AGAINST LENDER, ITS PREDECESSORS, OFFICERS, DIRECTORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR OTHER AGREEMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AMENDMENT.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been executed and is effective as of
the date first above-written.
"LENDER"
SHAWMUT CAPITAL CORPORATION
By: /s/ Xxxxx XxxXxxxx
------------------------------------
Xxxxx XxxXxxxx, Vice President
"BORROWER"
LOWRANCE ELECTRONICS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, President
LEI EXTRAS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, President
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The Common Seal of
LOWRANCE AUSTRALIA PTY LIMITED
was affixed in accordance with
its Articles of Association
in the presence of:
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx, Director
[SEAL]
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, Director
LOWRANCE CONTRACTS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Vice President
SEA ELECTRONICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxxx, President
14
