EXHIBIT 10.16
This Instrument was prepared by,
and when recorded, return to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT (this "AMENDMENT")
is made as of the 8th day of November, 2006, by
XXXXX & WESSON CORP., a Delaware corporation having a principal place of
business at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx ("GRANTOR"); and
TD BANKNORTH, N.A. (as successor-by-merger to Banknorth, N.A.), a national
banking association with an office at 0000 Xxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx ("GRANTEE").
WITNESSETH THAT:
WHEREAS, Grantor executed and delivered a certain Mortgage and Security
Agreement dated as of January 11, 2005 (as may have been amended from time to
time, the "MORTGAGE") in favor of Grantee, which Mortgage was recorded with the
Southern Aroostook County, Maine Registry of Deeds in Book 4074, Page 60 (all
capitalized terms used in this Amendment without definition shall have the
identical meanings given to such terms in the Mortgage); and
WHEREAS, pursuant to the Mortgage, Grantor gave, granted, bargained, sold
and conveyed to Grantee, the Real Property and Collateral described therein
(collectively referred to herein as the "MORTGAGED PROPERTY");
WHEREAS the Real Property is more particularly described on Schedule A
attached hereto and made a part hereof; and
WHEREAS, the Mortgage was executed for the purpose of securing, inter alia,
the payment of the following promissory notes by Grantor in favor of Grantee (i)
Revolving Line of Credit Note in the original principal amount of Seventeen
Million and 00/100 Dollars ($17,000,000.00) (the "ORIGINAL REVOLVING NOTE"),
(ii) Commercial Term Promissory Note in the original principal amount of Twelve
Million One Hundred and Four Thousand and 00/100 Dollars ($12,104,000.00), (iii)
Equipment Line of Credit Note in the original principal amount of Five Million
and 00/100 Dollars ($5,000,000.00) (individually, the "ORIGINAL EQUIPMENT LINE
NOTE") and (iv) Commercial Real Estate Term Promissory Note in the original
principal amount of Five Million Eight Hundred Ninety-Six Thousand and 00/100
Dollars ($5,896,000.00), each dated as of January 11, 2005, and each as may be
amended from time to time (collectively, the
"ORIGINAL NOTES") with respect to certain indebtedness, obligations and
liabilities of Grantor under a certain Loan and Security Agreement dated as of
January 11, 2005, among Grantor and Grantee, as the same may have been amended
from time to time (the "ORIGINAL LOAN AGREEMENT"); and
WHEREAS, contemporaneously herewith, the Original Loan Agreement is being
amended and restated in its entirety pursuant to the terms of a certain Amended
and Restated Loan and Security Agreement by and among Grantor, Grantee, and
Xxxxx & Wesson Holding Corporation, a Nevada corporation ("HOLDINGS") (as such
Amended and Restated Loan and Security Agreement may be further amended,
restated and supplemented from time to time, the "AMENDED LOAN AGREEMENT"); and
WHEREAS, pursuant to the Amended Loan Agreement, (a) Grantee has amended
and restated the Original Equipment Line Note by executing that certain Amended
and Restated Equipment Line of Credit Note dated as of November 8, 2006 (as the
same may be further amended, extended, supplemented, reissued, restated or
otherwise modified, the "RESTATED EQUIPMENT LINE NOTE "), (b) Grantee has
amended and restated the Original Revolving Note by executing that certain
Amended and Restated Revolving Line of Credit Note dated as of November 8, 2006
(as the same be further amended, extended, supplemented, reissued, restated or
otherwise modified, the "RESTATED REVOLVING NOTE"), and (c) Grantee has agreed
to make an acquisition line of credit loan to Grantor contemporaneously herewith
in the aggregate principal amount of up to Thirty Million Dollars ($30,000,000)
and the Grantor has issued to the Grantee to evidence its indebtedness in
respect to such acquisition line of credit loan its Acquisition Line Note dated
as of November 8, 2006 in the aggregate principal amount of Thirty Million
Dollars and 00/100 ($30,000,000.00) (as the same may be amended, extended,
supplemented, reissued, restated or otherwise modified from time to time, the
"ACQUISITION NOTE"); and
WHEREAS, the Original Notes (other than the Restated Equipment Line Note
and the Restated Revolving Note) will continue to evidence the outstanding
unpaid principal balance of the Original Notes; and
WHEREAS, the Restated Equipment Line Note and the Restated Revolving Note
will evidence the outstanding unpaid principal balance of the Original Equipment
Line Note and the Original Revolving Note, respectively; and
WHEREAS, the Acquisition Note will evidence certain additional indebtedness
incurred by the Grantor, pursuant to the Amended Loan Agreement; and
WHEREAS, the Mortgage provides that the Mortgage was given to secure, not
only Grantor's obligations which existed as of the date of execution of the
Mortgage, but also the payment of any and all future obligations which Grantor
might thereafter owe to the Grantee; and
WHEREAS, the parties desire to enter into this Amendment for the purposes
of evidencing their agreement and understanding that the Mortgage, as amended
hereby, is intended to secure and benefit all indebtedness, obligations and
liabilities of Grantor under the Original
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Loan Agreement, as amended and restated by the Amended Loan Agreement, and of
the Grantor under the Original Notes, the Restated Equipment Line Note, the
Restated Revolving Note, and under the Acquisition Line Note, and any and all
promissory notes which may hereafter be executed from time to time to evidence
such indebtedness;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby enter into this Amendment and hereby
amend the Mortgage as follows:
1. Amendment to Definitions.
(a) The defined terms set forth in the Preamble and Recitals to this
Amendment are hereby added to the Mortgage with the respective meanings given to
such terms in such Preamble.
(b) The definitions of "Loan Agreement" and "Notes", are hereby amended to
read in their entirety, respectively, as follows:
"Loan Agreement" shall mean the Original Loan Agreement as amended and
restated by the Amended Loan Agreement (i.e., that certain Amended and
Restated Loan and Security Agreement dated November 8, 2006 by and among
Grantor, as borrower, Holdings, as guarantor, and Grantee), and as the same
may be further amended, restated, extended, supplemented or otherwise
modified from time to time.
"Notes" shall mean (a) the Commercial Term Promissory Note dated
January 11, 2005 in the original principal amount of Twelve Million One
Hundred and Four Thousand and 00/100 Dollars ($12,104,000.00), (b) the
Commercial Real Estate Term Promissory Note dated January 11, 2005 in the
original principal amount of Five Million Eight Hundred Ninety-Six Thousand
and 00/100 Dollars ($5,896,000.00), (c) the Amended and Restated Equipment
Line of Credit Note dated November 8, 2006 in the original principal amount
of Five Million and 00/100 Dollars ($5,000,000.00), (d) the Amended and
Restated Revolving Line of Credit Note dated November 8, 2006 in the
original principal amount of Seventeen Million and 00/100 Dollars
($17,000,000,00), and (e) the Acquisition Line of Credit Note dated
November 8, 2006 in the original principal amount of Thirty Million and
00/100 Dollars ($30,000,000.00) made by Grantor to Grantor pursuant to the
Amended Loan Agreement), each as may be amended, restated, extended,
supplemented or otherwise modified from time to time, and as the same may
be reissued from time to time to successors and assigns of the Grantee.
2. Definition of Obligations Secured. The parties hereto hereby acknowledge
and agree that all indebtedness, obligations and liabilities of Grantor and
Holdings under the Amended Loan Agreement (including, without limitation, the
Cash Management Obligations, the Foreign Exchange Obligations, and the Swap
Obligations, all as defined in the Amended Loan Agreement), the Original Notes,
the Restated Equipment Line Note, the Restated Revolving Note and the
Acquisition Line Note, constitute "Obligations" of Grantor as defined in and for
the purposes of the Mortgage, and any and all future advances made by Grantee to
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Grantor or Holdings or as evidenced by notes executed or to be executed by
Grantor as maker or co-maker shall constitute "future advances" or "future
loans" as defined in and for the purposes of the Mortgage.
3. Representations and Warranties. Grantor hereby represents and warrants
to Grantee that:
A. Each representation and warranty of Grantor set forth in the
Mortgage, as amended hereby, is hereby restated and affirmed as true and correct
as of the date hereof;
B. Grantor has the power and authority to enter into this Amendment
and all other agreements contemplated hereby, and to do all acts and things as
are required or contemplated hereunder to be done, observed and performed by
Grantor;
C. Each of this Amendment and all other agreements to be executed by
Grantor and contemplated hereby has been duly authorized (by all necessary
company action and otherwise), validly executed and delivered by Grantor and
constitutes the legal, valid and binding obligation of Grantor enforceable
against it in accordance with its terms;
D. The execution and delivery of this Amendment and all other
agreements to be executed by Grantor and contemplated hereby and Grantor's
performance hereunder and thereunder do not and will not require the consent or
approval of any governmental authority, nor be in contravention of or in
conflict with the Grantor's articles or certificate of incorporation or bylaws
or operating agreement, or the provisions of any statute, or any judgment,
order, or indenture, instrument, agreement, or undertaking, to which Grantor is
a party or by which Grantor or its assets or properties are or may become bound.
4. Reaffirmation. Except as amended hereby, the Mortgage shall remain in
full force and effect and is in all respects hereby ratified and affirmed.
(The next page is the signature page)
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IN WITNESS WHEREOF, this First Amendment to Mortgage and Security Agreement
has been duly executed by Grantor and Grantee by their respective duly
authorized representatives as an instrument under seal as of the day and year
first above written.
Grantor:
XXXXX & WESSON CORP.
/s/ Xxxxxxx X. Xxx By /s/ Xxxx X. Xxxxx
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Witness Xxxx X. Xxxxx
Vice President and Chief Financial
Officer
COMMONWEALTH OF MASSACHUSETTS
Hampden County, ss.
On this 8th day of November, 2006, before me, the undersigned Notary
Public, personally appeared the above-named Xxxx X. Xxxxx, proved to me by
satisfactory evidence of identification, being (check whichever applies): [ ]
driver's license or other state or federal governmental document bearing a
photographic image, [ ] oath or affirmation of a credible witness known to me
who knows the above signatory, or [X] my own personal knowledge of the identity
of the signatory, to be the person whose name is signed above, and acknowledged
the foregoing to be signed by him voluntarily for its stated purpose, as the
duly-authorized Vice President and Chief Financial Officer of Xxxxx & Wesson
Corp.
/s/ Xxxxxxx Xxx Xxx
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(Print Name of Notary Public): Xxxxxxx Xxx Xxx
My commission expires: 03/27/09
Qualified in the Commonwealth of Massachusetts
Grantee:
TD BANKNORTH, N.A. (as
successor-my-merger to Banknorth, N.A.)
/s/ Xxxxxx Xxxxxx By /s/ Xxxxx X. Xxxxxxxxx
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Witness Xxxxx X. Xxxxxxxxx
Senior Vice President
COMMONWEALTH OF MASSACHUSETTS
Hampden County, ss.
On this 6 day of November, 2006, before me, the undersigned Notary Public,
personally appeared the above-named Xxxxx X. Xxxxxxxxx, proved to me by
satisfactory evidence of identification, being (check whichever applies): [ ]
driver's license or other state or federal governmental document bearing a
photographic image, [ ] oath or affirmation of a credible witness known to me
who knows the above signatory, or [X] my own personal knowledge of the identity
of the signatory, to be the person whose name is signed above, and acknowledged
the foregoing to be signed by her voluntarily for its stated purpose, as the
duly-authorized Senior Vice President of TD Banknorth, N.A. (as
successor-by-merger to Banknorth, N.A.).
/s/ Xxxx Xxxxx
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(Print Name of Notary Public): Xxxx Xxxxx
My commission expires: Dec 22, 2006
Qualified in the Commonwealth of Massachusetts
