EXHIBIT 10.47
NOVEMBER 2002 AMENDMENT TO
LOAN AND SECURITY AGREEMENT
AND AMENDMENT TO CERTAIN OTHER LOAN DOCUMENTS
THIS NOVEMBER 2002 AMENDMENT TO LOAN AND SECURITY AGREEMENT AND
AMENDMENT TO CERTAIN OTHER LOAN DOCUMENTS (the "Amendment") is made and entered
into on this 26th day of November, 2002, to be effective (unless otherwise
specified herein) as of November 1, 2002 (the "Effective Date"), by and among
FLEET CAPITAL CORPORATION, a Rhode Island corporation, successor in interest by
merger to FLEET CAPITAL CORPORATION, a Connecticut corporation, formerly known
as SHAWMUT CAPITAL CORPORATION, successor in interest by assignment to BARCLAYS
BUSINESS CREDIT, INC. ("Lender"), LOWRANCE ELECTRONICS, INC., a Delaware
corporation ("Lowrance"), LEI EXTRAS, INC., a Delaware corporation ("LEI"),
LOWRANCE CONTRACTS, INC., a Delaware corporation ("Lowrance Contracts"), and SEA
ELECTRONICS, INC., an Oklahoma corporation ("Sea Electronics") (Lowrance, LEI,
Lowrance Contracts and Sea Electronics are herein individually and collectively
called "Borrower").
RECITALS
(A) Borrower, Lowrance Australia Pty Limited ("Lowrance Australia") and
Lender have entered into that certain Loan and Security Agreement, dated
December 15, 1993, as such Loan and Security Agreement has been amended,
including, without limitation, as amended by (i) that certain First Amendment to
Loan and Security Agreement, dated October 16, 1995, by and among Lender,
Borrower and Lowrance Australia, (ii) that certain Second Amendment to Loan and
Security Agreement, dated November 1, 1996 by and among Lender and Borrower,
(iii) that certain Third Amendment to Loan and Security Agreement, dated
December 30, 1996, by and among Lender and Borrower, (iv) that certain Fourth
Amendment to Loan and Security Agreement, entered into effective as of April 1,
1997, by and among Lender and Borrower, (v) that certain Fifth Amendment to Loan
and Security Agreement, entered into effective as of August 25, 1997, by and
between Lender and Borrower, (vi) that certain Sixth Amendment to Loan and
Security Agreement and Certain Other Loan Documents, entered into effective as
of August 28, 1997, by and between Lender and Borrower, (vii) that certain
Seventh Amendment to Loan and Security Agreement, entered into effective as of
November 1, 1997, by and between Lender and Borrower, (viii) that certain Eighth
Amendment to Loan and Security Agreement, made and entered into as of December
9, 1997, by and between Lender and Borrower, (ix) that certain Ninth Amendment
to Loan and Security Agreement made and entered into as of September 14, 1998,
by and between Lender and Borrower, (x) that certain Tenth Amendment to Loan and
Security Agreement and Amendment to Certain Other Loan Documents, executed in
November of 1998, by Lender and Borrower; (xi) that certain Eleventh Amendment
to Loan and Security Agreement and Amendment to Certain Other Loan Documents,
executed March 14, 2000, by Lender and Borrower, (xii) that certain Twelfth
Amendment to Loan and Security Agreement and Amendment to Certain Other Loan
Documents, executed October 15, 2000, by
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Lender and Borrower, (xiii) that certain Thirteenth Amendment to Loan and
Security Agreement and Amendment to Certain Other Loan Documents and Limited
Waiver entered into on October 19, 2001, by Lender and Borrower, (xiv) that
certain letter agreement, dated December 14, 2001, by and between Lender and
Borrower, and (xv) that certain Fourteenth Amendment to Loan and Security
Agreement and Amendment to Certain Other Loan Documents, entered into on March
11, 2002, by Lender and Borrower (as amended, the "Loan Agreement").
(B) Borrower and Lender desire to amend the Loan Agreement and certain
of the other Loan Documents as hereinafter set forth.
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
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; ADDITION OF NEW
DEFINITIONS. Section 1.1 of the Loan Agreement is hereby amended by adding the
following new definitions thereto to be inserted in their proper alphabetical
order and to read as follows:
"Base Rate Loans - all Loans other than LIBOR Loans.
Banking Relationship Indebtedness - Indebtedness or other obligations
of Borrower or any Affiliate of Borrower relating to or arising out of
(i) checking and operating account relationships between Borrower or
any Affiliate of Borrower and Lender or any Affiliate of Lender
(including Bank), including any obligations under Cash Management
Agreements, and (ii) Hedging Agreements with Lender or any Affiliate of
Lender (including Bank).
Cash Management Agreements - any agreement entered into from time to
time between Borrower or any Affiliate of Borrower, on the one hand,
and Bank or any of its Affiliates or any other banking or financial
institution, on the other, in connection with cash management services
for operating, collections, payroll and trust accounts of Borrower or
any Affiliate of Borrower provided by such banking or financial
institution, including automatic clearinghouse services, controlled
disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services and wire
transfer services.
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Hedging Agreement - any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
LIBOR Base Rate - as applicable to any LIBOR Loan, the rate per annum
(rounded upward, if necessary, to the nearest 1/32 of one percent) as
determined on the basis of the offered rates for deposits in U.S.
dollars, for a period of time comparable to such LIBOR Loan which
appears on the Telerate page 3750 as of 11:00 a.m. (London time) on the
day that is two (2) London Banking Days preceding the first day of such
LIBOR Loan; provided, however, if the rate described above does not
appear on the Telerate System on any applicable interest determination
date, the LIBOR Base Rate shall be the rate (rounded upwards as
described above, if necessary) for deposits in U.S. dollars for a
period substantially equal to the interest period on the Reuters Page
'LIBO' (or such other page as may replace the LIBO Page on that service
for the purpose of displaying such rates), as of 11:00 a.m. (London
Time), on the day that is two (2) London Banking Days prior to the
beginning of such interest period. If both the Telerate and Reuters
systems are unavailable, then the rate for that date will be determined
on the basis of the offered rates for deposits in U.S. dollars for a
period of time comparable to such LIBOR Loan which are offered by four
(4) major banks in the London interbank market at approximately 11:00
a.m. (London time), on the day that is two (2) London Banking Days
preceding the first day of such LIBOR Loan as selected by Lender. The
principal London office of each of the major London Banks so selected
will be requested to provide a quotation of its U.S. dollar deposit
offered rate. If at least two (2) such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If
fewer than two quotations are provided as requested, the rate for that
date will be determined on the basis of the rates quoted for loans in
U.S. dollars to leading European banks for a period of time comparable
to such LIBOR Loan offered by major banks in New York City at
approximately 11:00 a.m. (New York City time), on the day that is two
(2) London Banking Days preceding the first day of such LIBOR Loan. In
the event that Lender is unable to obtain any such quotation as
provided above, it will be determined that LIBOR Base Rate pursuant to
a LIBOR Loan cannot be determined. In the event that the Board of
Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Bank then for any period
during which such Reserve Percentage shall apply, LIBOR Base Rate shall
be equal to the amount determined above divided by an amount equal to 1
minus the Reserve Percentage.
LIBOR Borrowing Notice - as defined in Section 3.8(A) of this
Agreement.
LIBOR Interest Period - as applicable to any LIBOR Loan, a period
commencing on the date a LIBOR Loan is made, and ending on the date
which is one (1) month, two (2) months, or three (3) months later, as
may then be requested by Borrower; provided that (i) any LIBOR Interest
Period which would otherwise end on a day which is not a Business Day
shall end on the next preceding or succeeding Business Day as is
Lender's custom in the market to which such LIBOR Loan relates; (ii)
there remains a minimum
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of one (1) month, two (2) months, or three (3) months (depending upon
which LIBOR Interest Period Borrower selects) in the Original Term; and
(iii) all LIBOR Interest Periods of the same duration which commence on
the same date shall end on the same date.
LIBOR Loan - any Loan which bears interest at a LIBOR Base Rate.
London Banking Day - any date on which commercial banks are open for
business in London, England.
Reserve Percentage - the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which
is imposed on member banks of the Federal Reserve System against
'Eurocurrency Liabilities' as defined in Regulation D."
2.02 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "OBLIGATIONS." Effective as of the Effective Date, the definition
of "Obligations" contained in Section 1.1 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"Obligations - all Loans and all other advances, debts, liabilities,
obligations, covenants and duties (including, without limitation,
Banking Relationship Indebtedness) owing, arising, due or payable from
Borrower or any Affiliate of Borrower to Lender (including Bank), of
any kind or nature, present or future, whether or not evidenced by any
note, guaranty or other instrument, whether arising under this
Agreement or any of the other Loan Documents or otherwise, whether
direct or indirect (including those acquired by assignment), absolute
or contingent, primary or secondary, due or to become due, now existing
or hereafter arising and however acquired. The term includes, without
limitation, the obligations of Borrower under Section 2.5 of this
Agreement in connection with the foreign currency purchase contracts
described therein, and all other interest, charges, expenses, fees,
attorneys' fees and any other sums chargeable to Borrower under any of
the Loan Documents."
2.03 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "PERMITTED RAW MATERIALS LOAN AMOUNT." Effective as of the
Effective Date, the definition of "Permitted Raw Materials Loan Amount"
contained in Section 1.1 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"Permitted Raw Materials Loan Amount" -$575,000."
2.04 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "SEASONAL DATING ACCOUNTS LOAN AMOUNT". Effective as of the
Effective Date, the definition of "Seasonal Dating Accounts Loan Amount"
contained in Section 1.1 of the Loan Agreement is hereby amended and restated to
read in its entirety as follows:
"Seasonal Dating Accounts Loan Amount" - the amount indicated below for
the periods indicated below:
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Applicable Period Seasonal Dating Accounts Loan Amount
----------------- ------------------------------------
(a) December 1 through May 31 (a) $10,000,000
(b) June 1 through November 30 (b) $ 5.000,000"
2.05 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "TEMPORARY FINISHED GOODS ELIGIBLE INVENTORY INCREASED AMOUNT."
Effective as of the Effective Date, the definition of "Temporary Finished Goods
Eligible Inventory Increased Amount" contained in Section 1.1 of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"Temporary Finished Goods Eligible Inventory Increased Amount - the
amount indicated below, during the time period indicated below:
Time Period Maximum Amount
----------- --------------
(a) First Use during a Specific Calendar (a) the lesser of (i) $1,500,000 or
Year through the earlier to occur of (ii) 20% of the value of Finished
the 68th day after the First Use during Goods Eligible Inventory at the
a Specific Calendar Year or January 18 relevant calculation date
of the immediately succeeding calendar
year
(b) Seven day period beginning on the day (b) the lesser of (i) $1,125,000 or
immediately succeeding the end of the (ii) 20% of the value of Finished
period described in (a) above Goods Eligible Inventory at the
relevant calculation date
(c) Seven day period beginning on the day (c) the lesser of (i) $750,000 or
immediately succeeding the end of the (ii) 20% of the value of
period described in (b) above Finished Goods Eligible
Inventory at the relevant
calculation date
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(d) Seven day period beginning on the day (d) the lesser of (i) $375,000 or
immediately succeeding the end of the (ii) 20% of the value of
period described in (c) above Finished Goods Eligible
Inventory at the relevant
calculation date
(e) Earlier to occur of (i) February 12 of the (e) $0.00"
immediately succeeding calendar year or
(ii) the day immediately succeeding the
end of the period described in (d) above,
and at all times thereafter until the next
occurring First Use during a Specific
Calendar Year
2.06 AMENDMENT TO SECTION 1.1 OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "TEMPORARY FINISHED GOODS ELIGIBLE INVENTORY INCREASED AMOUNT
PERIOD." Effective as of the Effective Date, the definition of "Temporary
Finished Goods Eligible Inventory Increased Amount Period" contained in Section
1.1 of the Loan Agreement is hereby amended and restated to read in its entirety
as follows:
"Temporary Finished Goods Eligible Inventory Increased Amount Period -
the period of time beginning on (i) the first day after October 15 of
any calendar year, that the Borrower requests that the Temporary
Finished Goods Eligible Inventory Increased Amount be included in the
calculation of the Borrowing Base (the 'First Use during a Specific
Calendar Year') and ending on (ii) the earlier to occur of February 12
of the immediately succeeding calendar year or the ninetieth day after
the First Use during a Specific Calendar Year."
2.07 AMENDMENT TO SECTION 2.1(B) OF THE LOAN AGREEMENT. Effective as of
the Effective Date, Section 2.1(B) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(B) Notwithstanding the foregoing provisions of Section 2.1(A), it is
expressly agreed and understood that (i) the aggregate outstanding
amount of all Revolving Credit Loans advanced against Eligible Accounts
and Eligible Inventory of LEI, Lowrance Contracts and Sea Electronics
shall not exceed $500,000 at any time; (ii) the aggregate outstanding
amount of Revolving Credit Loans advanced against Eligible Accounts of
Lowrance arising from sales to Account Debtors located in Australia and
Australian Finished Goods Eligible Inventory shall not exceed
$1,000,000 at any time; (iii) the aggregate outstanding amount of all
Revolving Credit Loans advanced against Raw Materials Eligible
Inventory shall not exceed the Permitted Raw Materials Loan Amount at
any time; (iv) the aggregate outstanding amount of all Revolving Credit
Loans advanced against Seasonal Dating Accounts shall not exceed the
Seasonal Dating Accounts Loan Amount at any time and the aggregate
outstanding amount of all Revolving Credit Loans
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advanced against Seasonal Dating Accounts arising from sales to Persons
who in the sole judgment of Lender are part of the 'Big Rock Sports
Group' shall not exceed $4,000,000 at any time; and (v) the aggregate
outstanding amount of all Revolving Credit Loans advanced against
Mexican Raw Materials Eligible Inventory shall not exceed $1,000,000 at
any time."
2.08 INCREASE IN APPLICABLE ANNUAL RATE AS TO CERTAIN REVOLVING CREDIT
LOANS DURING TEMPORARY FINISHED GOODS ELIGIBLE INVENTORY INCREASED AMOUNT
PERIOD. Effective as of the Effective Date, the parties hereto agree that
notwithstanding anything to the contrary in the Loan Agreement or any other Loan
Document, during the Temporary Finished Goods Eligible Inventory Increased
Amount Period, the Applicable Annual Rate relating to the Revolving Credit Loans
advanced against the Temporary Finished Goods Eligibility Inventory Increased
Amount shall be one and one half percent (1.50%) above the Base Rate.
2.09 AMENDMENT TO SECTION 3.1(A) OF THE LOAN AGREEMENT. Effective as of
the Effective Date, Section 3.1(A) of the Loan Agreement is hereby deleted in
its entirety and the following substituted 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) (a) each Term Loan which
is a LIBOR Loan shall bear interest at a rate per annum equal to 3.00%
above the LIBOR Base Rate and (b) each Term Loan which is a Base Rate
Loan shall bear interest at a rate per annum equal to 0.50% above the
Base Rate, (ii) (a) each Equipment Loan which is a LIBOR Loan shall
bear interest at a rate per annum equal to 3.00% above the LIBOR Base
Rate and (b) each Equipment Loan which is a Base Rate Loan shall bear
interest at a fluctuating rate per annum equal to 0.50% above the Base
Rate and (iii) (a) each Revolving Credit Loan which is a LIBOR Loan
shall bear interest at a rate per annum equal to 2.75% above the LIBOR
Base Rate and (b) each Revolving Credit Loan which is a Base Rate Loan
shall bear interest at a fluctuating rate per annum equal to 0.50%
above the Base Rate. Interest rate on each Base Rate Loan 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. The Base Rate in effect on the date
hereof shall be the Base Rate effective as of the opening of business
on the date hereof, but if this Agreement is executed on a day that is
not a Business Day, the Base Rate on the date hereof shall be the Base
Rate effective as of the opening of business on the last Business Day
immediately preceding the date hereof. The interest rate on each Loan
shall be calculated daily, based on the actual days elapsed over a 360
day year. Further, for the purpose of computing interest, all items of
payment received by Lender shall be applied by Lender (subject to final
payment of all drafts and other items received in form other than
immediately available funds) against the Obligations on the first
Business Day after receipt. The determination of when a payment is
received by Lender will be made in accordance with Section 3.6."
2.10 AMENDMENT TO SECTION 3.1(D) OF THE LOAN AGREEMENT. Effective as
of the
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Effective Date, the fourth sentence of Section 3.1(D) of the Loan Agreement is
hereby deleted in its entirety and the following is hereby substituted therefor:
"Borrower recognizes that, with fluctuations in the Base Rate, the
Eurodollar Base Rate and the Maximum Legal Rate, such a result could
inadvertently occur."
2.11 AMENDMENT TO SECTION 3.2 OF THE LOAN AGREEMENT. Effective as of
the Effective Date, Section 3.2 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"3.2 Term of Agreement. Subject to Lender's right to cease making Loans
to Borrower at any time upon or after the occurrence of a Default or an
Event of Default, this Agreement shall be in effect through and
including December 31, 2005 (the 'Original Term'). Notwithstanding
anything herein to the contrary, Lender may terminate this Agreement
without notice upon or after the occurrence of an Event of Default."
2.12 AMENDMENT TO ARTICLE III; ADDITION OF NEW SECTIONS. Article III of
the Loan Agreement is hereby amended by adding new Sections 3.8 and 3.9 thereto
which shall read as follows:
"3.8 Additional Provisions Regarding LIBOR Loans.
(A) Manner of Borrowing a LIBOR Loan. In the event Borrower
desires to obtain a LIBOR Loan, Borrower shall give Lender
prior, written irrevocable notice no later than 11:00 a.m. New
York City time on the 2nd Business Day prior to the requested
borrowing date specifying (w) Borrower's election to obtain a
LIBOR Loan, (x) the date of the proposed borrowing (which
shall be a Business Day), (y) the amount to be borrowed, which
amount shall be in a minimum principal amount of $100,000 and
any increase in integral multiples of $100,000 and (z) the
LIBOR Interest Period applicable thereto ('LIBOR Borrowing
Notice'). In no event shall Borrower be permitted to have
outstanding at any one time LIBOR Loans with more than five
(5) different LIBOR Interest Periods.
(B) Interest on LIBOR Loans. Each LIBOR Loan shall bear
interest from and including the first day of the LIBOR
Interest Period applicable thereto (but not including the last
day of such LIBOR Interest Period) at the interest rate
determined as applicable to such LIBOR Loan, but interest on
such LIBOR Loan shall be payable as provided in Section 3.5 of
this Agreement.
(C) Conversion of Base Rate Loans. Provided that no Default
has occurred which is then continuing, Borrower may, on any
Business Day, convert any Base Rate Loan into a LIBOR Loan. If
Borrower desires to convert a Base Rate Loan, Borrower shall
give Lender not less than two (2) Business Days' prior written
notice (prior to 11:00 a.m. New York City time on such
Business Day), specifying the date of such conversion and the
amount to be converted. Each
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conversion into or conversion of a LIBOR Loan shall be in a
minimum principal amount of $100,000 and may increase in
integral multiples of $100,000 in excess thereof. After giving
effect to any conversion of Base Rate Loans to LIBOR Loans,
Borrower shall not be permitted to have outstanding at any one
time LIBOR Loans with more than five (5) different Interest
Periods.
(D) Continuation of LIBOR Loans. Borrower shall have the right
on two (2) Business Days' prior irrevocable written notice
given to Lender by Borrower (prior to 11:00 a.m. New York City
time on such Business Day), subject to the provisions hereof,
to continue any LIBOR Loan into a subsequent LIBOR Interest
Period of the same or a different permitted duration, in each
case subject to the satisfaction of the following conditions:
(i) in the case of a continuation of less than all
LIBOR Loans, the LIBOR Loans continued shall each be
in a minimum principal amount of $100,000 and may
increase in integral multiples of $100,000; and
(ii) no LIBOR Loan (or portion thereof) may be
continued as a LIBOR Loan if a Default has occurred
which is then continuing or if, after giving effect
to such continuation, Borrower shall have outstanding
more than five (5) separate LIBOR Loans in the
aggregate.
If Borrower shall fail to give timely notice of its
election to continue any LIBOR Loan or portion thereof as
provided above, or if such continuation shall not be
permitted, such LIBOR Loan or portion thereof, unless such
LIBOR Loan shall be repaid, shall automatically be converted
into a Base Rate Loan at the end of the LIBOR Interest Period
then in effect with respect to such LIBOR Loan.
(E) Inability to Make LIBOR Loans. Notwithstanding any other
provision hereof, if any applicable law, treaty, regulation or
directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for Lender (for
purposes of this Section 3.8(E), the term 'Lender' shall
include the office or branch where Lender or any corporation
or bank then controlling Lender makes or maintains any LIBOR
Loans) to make or maintain its LIBOR Loans, or if with respect
to any LIBOR Interest Period, Lender is unable to determine
the LIBOR Base Rate relating thereto, or adverse or unusual
conditions in, or changes in applicable law relating to, the
London interbank market make it, in the reasonable judgment of
Lender, impracticable to fund therein any of the LIBOR Loans,
or make the projected LIBOR Base Rate unreflective of the
actual costs of funds therefor to Lender, the obligation of
Lender to make LIBOR Loans hereunder shall forthwith be
suspended during the pendency of such circumstances and
Borrower shall, if any affected LIBOR Loans are then
outstanding, promptly upon request from Lender, convert such
affected LIBOR Loans into Base Rate Loans.
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(F) Prepayment of LIBOR Loans. Borrower may prepay a LIBOR
Loan only upon at least three (3) Business Days prior written
notice to Lender (which notice shall be irrevocable), and any
such prepayment shall occur only on the last day of the LIBOR
Interest Period for such LIBOR Loan. Borrower shall pay to
Lender, upon request of Lender, such amount or amounts as
shall be sufficient (in the reasonable opinion of Lender) to
compensate Lender for any loss, cost, or expense incurred as a
result of: (i) any payment of a LIBOR Loan on a date other
than the last day of the LIBOR Interest Period for such LIBOR
Loan; (ii) any failure by Borrower to borrow a LIBOR Loan on
the date specified by Borrower's written notice; or (iii) any
failure by Borrower to pay a LIBOR Loan on the date for
payment specified in Borrower's written notice. Without
limiting the foregoing, Borrower shall pay to Lender a 'yield
maintenance fee' in an amount computed as follows: the current
rate for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent) with
a maturity date closest to the LIBOR Interest Period chosen
pursuant to the LIBOR Loan as to which the prepayment is made,
shall be subtracted from the LIBOR Base Rate in effect at the
time of prepayment. If the result is zero or a negative
number, there shall be no yield maintenance fee. If the result
is a positive number, then the resulting percentage shall be
multiplied by the amount of the principal balance being
prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the LIBOR
Interest Period chosen pursuant to the LIBOR Loan as to which
prepayment is made. Said amount shall be reduced to present
value calculated by using the above referenced United States
Treasury securities rate and the number of days remaining in
the term chosen pursuant to the LIBOR Loan as to which
prepayment is made. The resulting amount shall be the yield
maintenance fee due to Lender upon the prepayment of a LIBOR
Loan. If by reason of an Event of Default, Lender elects to
declare the Obligations to be immediately due and payable,
then any yield maintenance fee with respect to a LIBOR Loan
shall become due and payable in the same manner as though the
Borrower exercised such right of prepayment.
(G) Basis for Determining Interest Rate Inadequate or Unfair.
In the event that Lender shall have determined that:
(i) reasonable means do not exist for ascertaining
the LIBOR Base Rate for any LIBOR Interest Period; or
(ii) Dollar deposits in the relevant amount and for
the relevant maturity are not available in the London
interbank market with respect to a proposed LIBOR
Loan, or a proposed conversion of a Base Rate Loan
into a LIBOR Loan; then
Lender shall give Borrower prompt written, telephonic or
electronic notice of the determination of such effect. If such
notice is given, (i) any such requested
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LIBOR Loan shall be made as a Base Rate Loan, unless Borrower
shall notify Lender no later than 10:00 a.m. (New York City
time) two (2) Business Days prior to the date of such proposed
borrowing that the request for such borrowing shall be
canceled or made as an unaffected type of LIBOR Loan, and (ii)
any Base Rate Loan which was to have been converted to an
affected type of LIBOR Loan shall be continued as or converted
into a Base Rate Loan, or, if Borrower shall notify Lender, no
later than 10:00 a.m. (New York City time) two (2) Business
Days prior to the proposed conversion, shall be maintained as
an unaffected type of LIBOR Loan.
(H) Lender Statements; Survival of Indemnity. Within sixty
(60) days of the date upon which Lender suspends the
availability of LIBOR Loans under Section 3.8(E) hereof or
learns of any loss or cost or expenses for which Borrower is
to pay Lender under Section 3.8(F) hereof, Lender shall
deliver a written statement as to the amount due under Section
3.8(E) or Section 3.8(F). Such written statement shall set
forth in reasonable detail the calculations and basis therefor
upon which Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest
error. Unless otherwise provided herein, the amount specified
in the written statement shall be payable on demand after
receipt by Borrower of the written statement.
3.9 Yield Protection. If either (i) the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Lender with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall subject Lender to
any tax (including without limitation any United States interest
equalization or similar tax, however named), duty or other charge with
respect to any LIBOR Loan or Lender's obligation to compute interest on
the principal balance of any LIBOR Loan at a rate based upon the LIBOR
Base Rate, or shall change the basis of taxation of payments to Lender
of the principal of or interest on any LIBOR Loan or any other amounts
due under this Agreement in respect of any LIBOR Loan or Lender's
obligation to compute the interest on the principal balance of any
LIBOR Loan at a rate based upon the LIBOR Base Rate, or (ii) any
governmental authority, central bank or other comparable authority
shall at any time impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, Lender, or shall impose on Lender (or its LIBOR lending
office) or any relevant interbank LIBOR market any other condition
affecting any LIBOR Loan or Lender's obligation to compute the interest
on the principal balance of any LIBOR Loan at a rate based upon the
LIBOR Base Rate; and the result of any of the foregoing is to increase
the cost to Lender of maintaining any LIBOR Loans, or to reduce the
amount of any sum received or receivable by Lender under this Agreement
by an amount deemed by Lender to be material, then upon demand by
Lender, Borrower shall pay to Lender such additional
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amount or amounts as will compensate Lender for such increased cost or
reduction. Lender will promptly notify Borrower of any event of which
it has knowledge, occurring after the date hereof, which will entitle
Lender to compensation pursuant to this Section 3.9. A certificate of
Lender claiming compensation under this Section 3.9 and setting forth
the additional amount or amounts to be paid to Lender hereunder shall
be conclusive in the absence of manifest error."
2.13 AMENDMENT TO SECTION 9.2(M) OF THE LOAN AGREEMENT. Effective as of
the Effective Date, Section 9.2(M) Capital Lease Obligations of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
"(M) Capital Lease Obligations. Incur Capital Lease Obligations which,
in the aggregate, as to Borrower and its Subsidiaries exceed $3,500,000
during any fiscal year of Borrower."
2.14 AMENDMENT TO SECTION 9.3 OF THE LOAN AGREEMENT. Effective as of
the Effective Date, Section 9.3 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"9.3 Specific Financial Covenants. During the term of this Agreement
and thereafter for so long as there are any Obligations, Borrower
covenants that, unless otherwise consented to by Lender in writing,
Borrower shall:
(A) [Internationally Omitted]
(B) [Internationally Omitted]
(C) Fixed Charge Ratio. Maintain, on a Consolidated basis, a
Fixed Charge Ratio of not less than 1.1 to 1.0 for the twelve
calendar month period ending on the last day of each October,
January, April and July, beginning with October 31, 2002.
(D) Minimum EBITDA. Maintain, on a Consolidated basis, EBITDA
of not less than $3,174,000 for the twelve calendar month
ending on the last day of each October, January, April and
July, beginning with October 31, 2002.
(E) Maximum Inventory. Maintain, on a Consolidated basis,
Inventory with an aggregate value (calculated on the basis of
the higher of cost or market with cost calculated on a
first-in, first-out basis) of not more than the amount shown
below as of the date indicated below:
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Date Amount
---- ------
(i) Last day of each October, beginning (i) $16,000,000
October 31, 2002
(ii) Last day of each January, beginning (ii) $22,500,000
January 31, 2003
(iii) Last day of each April beginning (iii) $16,750,000
April 30, 2003
(iv) Last day of each July, beginning (iv) $14,000,000"
July 31, 2003
2.15 AMENDMENT TO REVOLVING CREDIT NOTES. Effective as of the Effective
Date, each Revolving Credit Note is amended by deleting therefrom the date
"December 31, 2002" and substituting therefor the date "December 31, 2005".
2.16 AMENDMENT FEE. In consideration for the agreements of Lender
contained herein but subject to Section 3.1(D) of the Loan Agreement, Borrower
agrees to pay Lender a fee of $50,000. Such fee shall be due and payable and
shall be fully earned as of the date of execution of this Amendment.
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS PRECEDENT. 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 each of the following, each in
form and substance satisfactory to Lender: (i) this Amendment, duly
executed by Borrower; (ii) Sixth Amendment to Mortgage, Security
Agreement, Financing Statement and Assignment of Rents, duly executed
by Lowrance regarding the existing Mortgage, in favor of Lender,
covering Lowrance's Tulsa, Oklahoma real property; and (iii) 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 Loan Documents, as each is amended
hereby, shall be true and correct as of the date hereof, as if made on
the date hereof;
(c) After giving effect to this Amendment, no Default or Event
of Default shall have occurred and be continuing, unless such Default
or Event of Default has been specifically waived in writing by Lender;
(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; and
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(e) Lender shall have received, in immediately available
funds, payment of the fee described in Section 2.16 of this Amendment.
ARTICLE IV
NO WAIVER
Nothing contained in this Amendment shall be construed as a waiver by
Lender of any covenant or provision of the Loan Agreement, the other Loan
Documents, 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 Loan Documents, this Amendment and any other contract or instrument
between Borrower and Lender.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
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 Loan Documents, and, except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Loan Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. Borrower and Lender agree that the Loan
Agreement and the other Loan Documents, 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 Loan Documents 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 of Incorporation or
Bylaws of Borrower; (b) the representations and warranties contained in the Loan
Agreement, as amended hereby, and any other Loan Documents 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; (d)
Borrower is in full compliance with all covenants and agreements contained in
the Loan Agreement and the other Loan Documents, as amended hereby; (e) the
Borrower's Certificate of Incorporation and Bylaws are in full force and effect
on and as of the date hereof without modification or amendment in any respect
since November 1, 1996; (f) as of the date hereof, (i) Borrower is in existence
and in corporate and tax good standing in the State of its organization, (ii)
the Borrower is qualified to do business as a foreign corporation and is in
corporate and tax good standing in each jurisdiction where Borrower is doing
business and is required to be so qualified, (iii) Borrower does not owe
franchise taxes or other taxes required to maintain its corporate existence and
no franchise tax reports are due, and (iv) no proceedings are pending for
forfeiture of the Borrower's charter or for its dissolution either voluntarily
or involuntarily; and (g) the officer of Borrower executing this Amendment has
been duly elected and is, at present, qualified and acting in the office
indicated below such officer's name and is duly authorized to execute this
Amendment on behalf of Borrower.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in the Loan Agreement or any other Loan Document, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, 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 Loan Documents, 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 Loan Documents 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
Loan Documents 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 Loan Documents, 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.
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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 LOAN DOCUMENTS
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.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
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 LOAN DOCUMENTS, 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 LOAN DOCUMENTS, AND THE NEGOTIATION
OF AND EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date first above-written.
"LENDER"
FLEET CAPITAL CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
"BORROWER"
LOWRANCE ELECTRONICS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LEI EXTRAS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LOWRANCE CONTRACTS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SEA ELECTRONICS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
