EXHIBIT 10.57
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of July 9, 2004 (the "Amendment Closing Date") and
entered into by and between BANK OF AMERICA, N.A., as lender (the "Lender"),
with offices at 00 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, and
Xxxxx Instruments Corp., a Delaware corporation, and Xxxxxxx Outdoor Corp., a
Delaware corporation (such entities being referred to hereinafter each
individually as a "Borrower" and collectively, the "Borrowers").
WHEREAS, the Lender and the Borrowers have entered into that certain
Amended and Restated Credit Agreement dated as of October 25, 2002 (as amended,
restated or modified from time to time, the "Agreement"); and
WHEREAS, the Borrowers have requested that the Lender amend the
Agreement in certain respects, and the Lender is willing to so amend the
Agreement pursuant to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Agreement and this Amendment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
Section 2.01. NEW DEFINITIONS. The following definitions are hereby
added to the Agreement to read as follows:
" `US FIXED CHARGE COVERAGE RATIO' means, with respect to any
fiscal period of the Borrowers, the ratio of US EBITDA to US Fixed
Charges."
" `US FIXED CHARGES' means, with respect to any fiscal period
of the Borrowers, solely with respect to the Borrowers' operations in
the United States and without duplication, the Borrowers' interest
expense, Capital Expenditures (excluding Capital Expenditures funded
with Debt other than Revolving Loans, but including, without
duplication, principal payments with respect to such Debt), scheduled
principal payments of Debt, and income taxes as noted on the Borrowers'
income statement but only to the extent that such taxes are positive."
Section 2.02. AMENDED DEFINITIONS. The following definitions are hereby
amended and now read as follows:
" `APPLICABLE MARGIN' means:
(i) with respect to Base Rate Revolving Loans, and all other
Obligations (other than LIBOR Loans), .25%; and
(ii) with respect to LIBOR Revolving Loans, 2.50%; and
(iii) with respect to LIBOR Term Loans, 3.00%.
IF FIXED CHARGE
COVERAGE RATIO PRICING LEVEL
-------------- -------------
Greater than 2.00 to 1.00 Level I
Greater than 1.75 to 1.00
but equal to or less than
2.00 to 1.00 Level II
Greater than 1.50 to 1.00
but equal to or less than
1.75 to 1.00 Level III
Greater than 1.20 to 1.00
but equal to or less than
1.50 to 1.00 Level IV
APPLICABLE MARGINS
LEVEL I LEVEL II LEVEL III LEVEL IV
------- -------- --------- --------
Base Rate Revolving Loans 0.0% 0.0% 0.0% .25%
LIBOR Revolving Loans 1.75% 2.00% 2.25% 2.50%
Term Loans 3.00% 3.00% 3.00% 3.00%
All adjustments in the Applicable Margins after July 15, 2004, shall be
implemented quarterly on a prospective basis, commencing with the first
day of the first calendar month that occurs more than 5 days after the
required date of delivery to the Lender of quarterly unaudited or
annual draft audited (as applicable) Financial Statements evidencing
the need for an adjustment. In the event the draft audited Financial
Statements are subsequently determined to be in error, then any
resulting change in the Applicable Margin shall be made retroactively
to the date when the incorrect Applicable Margin was utilized.
Concurrently with the delivery of those Financial Statements, Xxxxx
shall deliver to the Lender a certificate, signed by its chief
financial officer, setting forth in reasonable detail the basis for the
continuance of, or any change in, the Applicable Margins. Failure to
timely deliver such Financial Statements shall, in addition to any
other remedy provided for in this Agreement, result in an increase in
the Applicable Margins to the highest level set forth in the foregoing
grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an
increase is not required. If a Default or Event of Default has occurred
and is continuing at the time any reduction in the Applicable Margins
is to be implemented, no reduction may occur until the first day of the
first calendar month following the date on which such Default or Event
of Default is waived or cured."
" `DILUTION ADJUSTMENT RESERVE' means, calculated as of the first day
of each month, eighty-five percent (85%) of the Dilution Reserve."
" `INVENTORY ADVANCE RATE' means fifty-five percent (55%); PROVIDED,
HOWEVER, during the period from June 1 through September 30 of each
year, the Inventory Advance Rate means sixty-five percent (65%)."
" `STATED TERMINATION DATE' means September 30, 2007."
Section 2.03. AMENDMENT TO SECTION 2.5. The first sentence of SECTION
2.5 of the Agreement is hereby amended in its entirety and replaced to read as
follows:
"On the first day of each month after the Amendment Date and on the
Termination Date the Borrowers agree to pay to the Lender an unused
line fee (the "Unused Line Fee") equal to one-quarter of one percent
(0.25%) per annum times the amount by which the Maximum Revolver Amount
exceeded the sum of the average daily outstanding amount of Revolving
Loans and the average daily undrawn face amount of outstanding Letters
of Credit, during the immediately preceding month or shorter period if
calculated on the Termination Date."
Section 2.04. AMENDMENT TO SECTION 3.2. The table set forth in SECTION
3.2 of the Agreement is hereby amended in its entirety and replaced to read as
follows:
"PERIOD DURING WHICH EARLY
TERMINATION OCCURS EARLY TERMINATION FEE
----------------------------------- --------------------------------
After the first Anniversary Date 0% of the Total Facility"
Section 2.05. AMENDMENT TO SECTION 5.2. SECTION 5.2(K) of the Agreement
is hereby amended in its entirety and replaced to read as follows:
" k. As soon as available, semi-monthly Borrowing Base Certificates
supporting information in accordance with Section 9 of the Security
Agreement, delivered as follows: (i) on or before the 20th day of each
month as of the 15th day of such month; and (ii) on or before the 10th
day of each month as of the last day of the prior month; PROVIDED,
however, that if the Aggregate Revolver Outstandings are zero, the
Borrowing Base Certificate may be provided within ten (10) Business
Days after the end of each month; PROVIDED FURTHER, however, that if
the Borrowing Base Certificate is delivered on a monthly basis, no
Borrowings will be permitted until a current semi-monthly Borrowing
Base Certificate is provided by Xxxxx. Notwithstanding the forgoing, if
at any time average monthly Availability is less than $3,000,000, then
the Borrowing Base Certificate shall be delivered on a weekly basis no
later than Wednesday for the prior week. With the delivery of each
Borrowing Base Certificate required by this SECTION 5.2(K), the
Borrowers will provide separate backup reports reflecting each
Borrower's borrowing base."
Section 2.06 AMENDMENT TO SECTION 7.22. SECTION 7.22 of the Agreement
is hereby amended in its entirety and replaced to read as follows:
" 7.22 FIXED CHARGE COVERAGE RATIO. Xxxxx and its consolidated
Subsidiaries will maintain a Fixed Charge Coverage Ratio for each
period of four consecutive fiscal quarters ending on the last day of
each fiscal quarter of not less than 1.2 to 1.00."
Section 2.07. AMENDMENT TO SECTION 7.24. SECTION 7.24 of the Agreement
is hereby amended in its entirety and replaced to read as follows:
" 7.24 US FIXED CHARGE COVERAGE RATIO. Xxxxx and its consolidated
Subsidiaries will maintain a US Fixed Charge Coverage Ratio (a) for the
period of four consecutive fiscal quarters ending August 31, 2004, of
not less than 1.00 to 1.00, and (b) for each period of four consecutive
fiscal quarters ending on the last day of each fiscal quarter
thereafter of not less than 1.20 to 1.00."
Section 2.08. AMENDMENT TO SECTION 12.7. CLAUSE (F) of the first
sentence of SECTION 12.7 of the Agreement is hereby amended in its entirety and
replaced to read as follows:
"(f) costs of appraisals, inspections, and verifications of the
Collateral, including travel, lodging, and meals for inspections of the
Collateral and the Borrowers' operations by the Lender plus the
Lender's then customary charge for field examinations and audits and
the preparation of reports thereof (such charge is currently $850 per
day (or portion thereof) for each Person retained or employed by the
Lender with respect to each field examination or audit)."
ARTICLE III
Section 3.01. CONDITIONS PRECEDENT. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent:
(i) The representations and warranties contained herein and in
the Agreement, as amended hereby, shall be true and correct in all
material respects as of the date hereof as if made on the date hereof,
except for such representations and warranties limited by their terms
to a specific date;
(ii) The Borrowers shall have delivered to the Lender an
executed original copy of this Amendment;
(iii) The Borrowers shall have delivered to the Lender
executed original copies of each of the Consents and Reaffirmations
attached to this Amendment;
(iv) No Default or Event of Default shall have occurred and be
continuing; and
(v) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal
matters incident thereto shall be satisfactory to the Lender in its
sole and absolute discretion.
ARTICLE IV
Section 4.01. ACKNOWLEDGMENT. Each Borrower hereby represents and
warrants that the execution and delivery of this Amendment and compliance by
such Borrower with all of the provisions of this Amendment, (i) are within its
powers and purposes, (ii) have been duly authorized or approved by such
Borrower, and (iii) when executed and delivered by or on behalf of such
Borrower, will constitute valid and binding obligations of the Borrower,
enforceable in accordance with their terms. Each Borrower reaffirms its
obligation to pay all amounts due the Lender under the Loan Documents in
accordance with the terms thereof, as modified hereby.
Section 4.02. LOAN DOCUMENTS UNMODIFIED. Except as otherwise
specifically modified by this Amendment, all terms and provisions of the
Agreement and all other Loan Documents, as modified hereby, shall remain in full
force and effect. Nothing contained in this Amendment shall in any way impair
the validity or enforceability of the Loan Documents, as modified hereby or
alter, waive, annul, vary, affect, or impair any provisions, conditions, or
covenants contained therein or any rights, powers, or remedies granted therein.
Any lien and/or security interest granted to the Lender in the Collateral set
forth in the Agreement or any other Loan Document are and shall remain unchanged
and in full force and effect and the Agreement and the other Loan Documents
shall continue to secure the payment and performance of all of the Obligations
thereunder, as modified hereby, and the Borrowers' obligations hereunder.
Section 4.03. PARTIES, SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and shall inure to the benefit of each of the Borrowers, the
Lender, and their respective successors and assigns.
Section 4.04. 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.
Section 4.05. HEADINGS. The headings, captions and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 4.06. EXPENSES OF THE LENDER. The Borrowers agree to pay on
demand (i) all reasonable costs and expenses incurred by the Lender in
connection with the preparation, negotiation and execution of this Amendment and
the other Loan Documents executed pursuant hereto and any and all subsequent
amendments, modifications, and supplements hereto or thereto, including, without
limitation, the costs and fees of the Lender's legal counsel and the allocated
cost of staff counsel and (ii) all costs and expenses reasonably incurred by the
Lender in connection with the enforcement or preservation of any rights under
the Agreement, this Amendment and/or other Loan Documents, including, without
limitation, the reasonable costs and fees of the Lender's legal counsel, the
allocated cost of staff counsel, and the costs and fees associated with any
environmental due diligence conducted in relation hereto.
Section 4.07. TOTAL AGREEMENT. This Amendment, the Agreement, and all
other Loan Documents shall constitute the entire agreement between the parties
relating to the subject matter hereof, and shall rescind all prior agreements
and understandings between the parties hereto relating to the subject matter
hereof, and shall not be changed or terminated orally.
IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the day and year first above written.
"BORROWERS":
XXXXX INSTRUMENTS CORP.
XXXXXXX OUTDOOR CORP.
Dated as of July 9, 2004 By: /S/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President - Finance
and Chief Financial Officer
"LENDER":
BANK OF AMERICA, N.A.
Dated as of July 9, 2004 By: /S/ XXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
CONSENTS AND REAFFIRMATIONS
Each of XXXXX INSTRUMENTS EUROPE CORP., a California corporation and
XXXXX INSTRUMENTS HOLDINGS CORP., a California corporation hereby acknowledge
the execution of, and consent to, the terms and conditions of that Second
Amendment to Amended and Restated Credit Agreement dated as of July 9, 2004,
between XXXXX INSTRUMENTS CORP., XXXXXXX OUTDOOR CORP. and BANK OF AMERICA, N.A.
("CREDITOR"), and reaffirms its obligations under (a) that certain Continuing
Guaranty (the "GUARANTY") dated as of September 24, 2001, made by the
undersigned in favor of the Creditor, and (b) that certain Security Agreement
(the "SECURITY AGREEMENT") dated as of September, 2001, by and between the
undersigned and the Creditor. Each of the undersigned acknowledges and agrees
that each of the Guaranty and the Security Agreement remain in full force and
effect and are hereby ratified and confirmed.
Dated as of July 9, 2004.
XXXXX INSTRUMENTS EUROPE CORP., a
California corporation
By: /S/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President - Finance
and Chief Financial Officer
XXXXX INSTRUMENTS HOLDINGS CORP., a
California corporation
By: /S/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President - Finance
and Chief Financial Officer
CONSENTS AND REAFFIRMATIONS
Each of MTSC HOLDINGS, INC., a California corporation and MC HOLDINGS,
INC., a California corporation, hereby acknowledge the execution of, and consent
to, the terms and conditions of that Second Amendment to Amended and Restated
Credit Agreement dated as of July 9, 2004, between XXXXX INSTRUMENTS CORP.,
XXXXXXX OUTDOOR CORP. and BANK OF AMERICA, N.A. ("CREDITOR"), and reaffirms its
obligations under that certain Continuing Guaranty (the "GUARANTY") dated as of
September 24, 2001 executed in favor of the Creditor and joined by each of the
undersigned pursuant to an Instrument of Joinder (the "INSTRUMENT") dated as of
October 25, 2002. Each of the undersigned acknowledges and agrees that each of
the Guaranty and Instrument remain in full force and effect and are hereby
ratified and confirmed.
Dated as of July 9, 2004.
MTSC HOLDINGS, INC., a California
corporation,
By: /S/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President - Finance
and Chief Financial Officer
MC HOLDINGS, INC., a California
corporation
By: /S/ XXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President - Finance
and Chief Financial Officer
