This THIRTEENTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is dated as of April 9, 2008 (the “Amendment Date”) and entered into by and among BANK OF AMERICA, N.A., as lender (the “Lender”), with offices at 55 South Lake Avenue, Suite 900, Pasadena,
California91101, and MEADE INSTRUMENTS CORP., a Delaware corporation, SIMMONS
OUTDOOR CORP., a Delaware corporation, and CORONADO INSTRUMENTS, INC., a California
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”);
WHEREAS,
the Borrowers have requested that the Lender amend the Agreement in certain
respects and the Lender has agreed to such amendments pursuant to the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual conditions and agreements set forth
in the Agreement and this Amendment, and other 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. Initially capitalized terms used but not
defined in this Amendment have the respective meanings set forth in the Agreement,
as amended hereby.
ARTICLE II
Amendments
Section 2.01. Amendment to Section 7.13. Clause (f) of Section 7.13
of the Agreement is hereby amended and restated to read in its entirety as
follows:
“(f) intercompany unsecured loans from Meade Instruments Europe
GmbH & Co., KG in an aggregate principal amount not to exceed $5,000,000;
provided that (i) no Default or
Event of Default has occurred or is continuing; and (ii) Meade Instruments
Europe GmbH & Co., KG enters into a written subordination agreement with
Lender in form and substance reasonably acceptable to the Lender.”
Section 2.02. Amendment to Section 7.15. Section 7.15 of the Agreement is
hereby amended and restated to read in its entirety as follows:
“Except as permitted by Sections 7.10, 7.12 and 7.13,
neither the Borrower nor any of its Subsidiaries shall sell, transfer,
distribute, or pay any money or property, including, but not limited to, any
fees or expenses of any nature (including, but not limited to, any fees or
expenses for management services), to any Affiliate, or lend or advance money
or property to any Affiliate, or invest in (by capital contribution or
otherwise) or purchase or repurchase any stock or
indebtedness, or any property, of any Affiliate, or become liable on
any guaranty of the indebtedness, dividends, or other obligations of any
Affiliate. Notwithstanding the
foregoing, the Borrower and its Subsidiaries, subject to the limitations set
forth in Section 7.10, may (a) engage in transactions with
Affiliates in the ordinary course of business, on terms and amounts and with
respect to activities consistent with past practices as have been disclosed to
the Lender so long as no Event of Default has occurred and is continuing and (b) repay
unsecured loans from Meade Instruments Europe GmbH & Co., KG in an
aggregate amount not to exceed $5,000,000, so long as (i) no Default or
Event of Default has occurred or is continuing; and (ii) unused Availability
after giving effect to such repayment is equal to or greater than the greater
of (x) $1,000,000 or (y) 10% of the total Borrowing Base. For purposes of determining unused
Availability under Clause (b)(ii), accounts payable 30 days or greater past
due according to their written terms, other than accounts payable subject to a
bona fide dispute up to a maximum aggregate amount of $500,000, will be deducted
from unused Availability for purposes of this calculation. Furthermore, the unused Availability
requirement of $1,000,000 under Clause (b)(ii)(x) shall be
increased by an amount equal to any reductions in the Availability
Reserve. By way of example, if the
Availability Reserve is reduced to $250,000, the minimum requirement under Clause
(b)(ii)(x) shall be increased to $1,250,000. If the Availability Reserve is reduced to
zero, the minimum requirement under Clause (b)(ii)(x) shall be
increased to $1,500,000.”
ARTICLE III
Conditions Precedent
Section 3.01. Conditions Precedent. This Amendment shall not be binding upon the
Lender until each of the following conditions precedent have been satisfied in form
and substance satisfactory to the Lender:
(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) The Borrowers shall have paid to the
Lender all fees, costs, and expenses owed to and/or incurred by the Lender in
connection with this Amendment;
(v) No Default or Event of Default shall
have occurred and be continuing; and
(vi) 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.
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ARTICLE IV
Miscellaneous
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: (a) are within its powers and purposes; (b) have
been duly authorized or approved by such Borrower; and (c) 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 is 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. A facsimile signature shall
be deemed effective as an original.
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 (a) 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 (b) 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.
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Section 4.08. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
LAW, EACH OF THE BORROWERS AND THE LENDER IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AMENDMENT, THE AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING
OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY LENDER-RELATED PERSON OR PARTICIPANT, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. WITHOUT LIMITING THE APPLICABILITY
OF ANY OTHER PROVISION OF THE AGREEMENT, THE TERMS OF SECTION 12.3
OF THE AGREEMENT SHALL APPLY TO THIS AMENDMENT.
Section 4.09. RELEASE. THE BORROWERS EACH HEREBY REPRESENT AND
WARRANT THAT AS OF THE DATE OF THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR DEFENSES OR COUNTERCLAIMS TO THE BORROWERS’ OBLIGATIONS UNDER THE
AGREEMENT OR ANY OTHER LOAN DOCUMENT, INCLUDING THIS AMENDMENT. THE BORROWERS WAIVE AND RELEASE ANY AND ALL
SUCH CLAIMS, OFFSETS, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN,
ARISING PRIOR TO THE DATE OF THIS AMENDMENT.
THE BORROWERS INTEND THE
ABOVE RELEASE TO COVER, ENCOMPASS, RELEASE, AND EXTINGUISH, INTER ALIA, ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION THAT
MIGHT OTHERWISE BE RESERVED BY THE CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.”
THE BORROWERS ACKNOWLEDGE
THAT THEY MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO
THOSE NOW KNOWN OR BELIEVED TO BE TRUE WITH RESPECT TO SUCH CLAIMS, DEMANDS, OR
CAUSES OF ACTION, AND AGREE THAT THIS AMENDMENT AND THE ABOVE RELEASE ARE AND
WILL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING ANY SUCH DIFFERENCES OR
ADDITIONAL FACTS.
[Signature
Pages Follow]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the day and year first above written.
“BORROWERS”:
MEADE
INSTRUMENTS CORP.
By:
/s/
Paul E. Ross
Name:
Paul
E. Ross
Title:
Chief
Financial Officer
SIMMONS
OUTDOOR CORP.
By:
/s/
Paul E. Ross
Name:
Paul
E. Ross
Title:
Chief
Financial Officer
CORONADO
INSTRUMENTS, INC.
By:
/s/
Paul E. Ross
Name:
Paul
E. Ross
Title:
Chief
Financial Officer
“LENDER”:
BANK
OF AMERICA, N.A.
By:
/s/
Robert M. Dalton
Name:
Robert
M. Dalton
Title:
Vice
President
CONSENTS AND REAFFIRMATIONS
Each
of MEADE INSTRUMENTS EUROPE CORP., a California corporation, and MEADE
INSTRUMENTS HOLDINGS CORP., a California corporation, hereby acknowledges the
execution of, and consents to, the terms and conditions of that Thirteenth Amendment
to Amended and Restated Credit Agreement dated as of April 9, 2008, among
MEADE INSTRUMENTS CORP., SIMMONS OUTDOOR CORP., CORONADO INSTRUMENTS, INC. and
BANK OF AMERICA, N.A. (the “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.
Each
of MTSC HOLDINGS, INC., a California corporation (“MTSC”),
MC HOLDINGS, INC., a California corporation (“MC HOLDINGS”),
and MEADE CORONADO HOLDINGS CORP., a California corporation (“MCHC”), hereby acknowledges the execution of, and consents
to, the terms and conditions of that Thirteenth Amendment to Amended and
Restated Credit Agreement dated as of April 9, 2008, among MEADE
INSTRUMENTS CORP., SIMMONS OUTDOOR CORP., CORONADO INSTRUMENTS, INC. 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, dated as of (i) October 25, 2002 with respect
to MTSC and MC HOLDINGS, and (ii) December 1, 2004 with respect to
MCHC (respectively, the “Instrument”). 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.
