EXHIBIT 10.18.3
THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
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March 28, 2001, is entered into by and among WEST MARINE FINANCE COMPANY, INC.,
a California corporation (the "Company"), BANK OF AMERICA, N.A., as agent for
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itself and the Banks (the "Agent"), and the several financial institutions party
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to the Credit Agreement (collectively, the "Banks").
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RECITALS
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A. The Company, Banks, and Agent are parties to a Credit Agreement dated
as of January 13, 2000 (the "Credit Agreement") pursuant to which the Banks have
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extended certain credit facilities to the Company.
B. The Company has requested that the Banks agree to certain amendments of
the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
AGREEMENT
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NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendments to Credit Agreement.
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(a) The first sentence of Section 7.13(a) is amended to read as
follows in its entirety:
(a) not permit the ratio of Funded Debt to EBITDA to exceed
the ratio indicated below as of the end of each fiscal quarter set
forth below:
Fiscal Quarters Ratio
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4th Qtr 1999 2.75 to 1.0
1st Qtr 2000 3.00 to 1.0
2nd Qtr 2000 2.20 to 1.0
3rd Qtr 2000 2.00 to 1.0
4th Qtr 2000 2.10 to 1.0
1st Qtr 2001 3.00 to 1.0
2nd Qtr 2001 - 4th Qtr 2001 2.00 to 1.0
1st Qtr 2002 3.00 to 1.0
2nd Qtr 2002 and thereafter 2.00 to 1.0
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(b) The definition of "EBITDA" in Section 7.13(a) is amended to read
as follows in its entirety:
"EBITDA" means the sum of net income before taxes, plus
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interest expense, depreciation, and amortization; provided, however,
that solely for the purpose of calculating EBITDA as of the end of the
fourth fiscal quarter of 2000, net income before taxes shall be
calculated without subtracting a one-time non-cash accounting charge
in the approximate amount of $2,400,000 related to the pre-tax amount
of the write-off of uncollected credit balances in the Parent's
accounts payable.
(c) Section 7.13(b) is amended to read as follows in its entirety:
(b) achieve a Fixed Charge Coverage Ratio of at least the
ratio indicated below as of the end of each fiscal quarter set forth
below:
Fiscal Quarters Ratio
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2nd Qtr 2000 - 3rd Qtr 2001 1.20 to 1.0
4th Qtr 2001 and thereafter 1.25 to 1.0
This ratio shall be calculated quarterly using the results of the most
recently concluded fiscal quarter and each of the three immediately
preceding fiscal quarters.
"Fixed Charge Coverage Ratio" means the ratio obtained by
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dividing the sum of net income after taxes, Rents, and Net Interest
Expense, by the sum of Rents and Net Interest Expense; provided,
however, that solely for the purpose of calculating the Fixed Charge
Coverage Ratio as of the end of the fourth fiscal quarter of 2000, net
income after taxes shall be calculated without subtracting a one-time
non-cash accounting charge in the approximate amount of $1,416,000
related to the after-tax amount of the
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write-off of uncollected credit balances in the Parent's accounts
payable.
"Net Interest Expense" means, for any period of
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determination, interest expense less interest income; provided, that
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in no event shall Net Interest Expense be less than zero.
"Rents" means, for any period of determination, the sum of
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rental payments under building leases (including all supplemental
payments required under store leases based on a percentage of sales
generated from the leased premises), all common area maintenance
payments required under building leases, all payments under equipment
operating leases, all other rental expense, minus all sublease
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revenue.
(d) The first sentence of Section 7.13(d) is amended to read as
follows in its entirety:
(d) maintain Tangible Net Worth at least equal to (i)
$107,500,000; plus (ii) the sum of 75% of net income after taxes
(without subtracting losses) earned in each fiscal quarter commencing
after April 3, 1999 (with the exception of the first fiscal quarter of
2001, in which case 70% of net income after taxes (without subtracting
losses) earned in said fiscal quarter shall be included in the
calculation of Tangible Net Worth); plus (iii) the net proceeds from
any equity securities issued after the date of this Agreement.
(e) Section 8.15 is amended to read as follows in its entirety:
8.15 Capital Expenditures. The Company and the Parent shall not,
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and the Parent shall not suffer or permit any Subsidiary to, make
expenditures for the acquisition of fixed or capital assets (on an
aggregate basis for the Company and its Subsidiaries) in excess of the
amount indicated below for each fiscal quarter set forth below:
Fiscal Year Amount
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2000 $23,500,000
2001 and each fiscal year
thereafter $20,000,000
3. Representations and Warranties. The Company hereby represents and
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warrants to the Agent and the Banks as follows:
(a) No Event of Default has occurred and is continuing.
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(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability, without defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct on and as of the date hereof, except
to the extent such representations and warranties expressly refer to an earlier
date, in which case they are true and correct as of such earlier date.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Banks or any other Person.
4. Effective Date. This Amendment will become effective as of December
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30, 2000 (the "Effective Date"), provided that each of the following conditions
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precedent is satisfied on or before March 28, 2001:
(a) The Agent has received from the Company and each of Banks a duly
executed original (or, if elected by the Agent, an executed facsimile copy) of
this Amendment, together with a duly executed Guarantor Acknowledgment and
Consent in the form attached hereto.
(b) The Agent has received from the Company for the ratable benefit
of the Banks an amendment fee in the amount of $100,000.
5. Reservation of Rights. The Company acknowledges and agrees that the
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execution and delivery by the Agent and the Banks of this Amendment shall not be
deemed to create a course of dealing or otherwise obligate the Agent or the
Banks to enter into amendments under the same, similar, or any other
circumstances in the future.
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6. Miscellaneous.
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(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein and in the other Loan Documents to such Credit
Agreement shall henceforth refer to the Credit Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the
Credit Agreement. This Amendment is a Loan Document.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and to the Credit Agreement and their respective successors
and assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent, and the Agent is hereby authorized to make sufficient photocopies
thereof to assemble complete counterparty documents.
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 11.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent, upon
demand, for all reasonable costs and expenses (including reasonable Attorney
Costs) incurred in connection with the
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development, preparation, negotiation, execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
WEST MARINE FINANCE COMPANY, INC.
By /s/ Russell Solt
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Russell Solt
Senior Vice President and
Chief Financial Officer
BANK OF AMERICA, N.A., as Agent
By /s/ Dora Brown
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Dora Brown
Vice President
BANK OF AMERICA, N.A., as a Bank and an
Issuing Bank
By /s/ Lisa M. Thomas
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Lisa M. Thomas
Senior Vice President
FLEET NATIONAL BANK, as a Bank
By /s/ Jeff Kinney
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Jeff Kinney
Senior Vice President
UNION BANK OF CALIFORNIA, N.A., as a Bank
By /s/ James Goudy
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James Goudy
Vice President
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GUARANTOR ACKNOWLEDGMENT AND CONSENT
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Each of the undersigned Guarantors hereby (i) acknowledges and consents to
the terms of and the execution, delivery and performance of the foregoing Third
Amendment to Credit Agreement (the "Amendment") (without implying the need for
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any such acknowledgement or consent), and (ii) represents and warrants to the
Agent and the Banks that, both before and after giving effect to the Amendment,
its respective Guaranty remains in full force and effect as an enforceable
obligation of the Guarantor, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforceability
of creditors' rights generally or by equitable principles relating to
enforceability, without defense, counterclaim or offset, and that it is in
compliance with all of its covenants contained therein. Each Guarantor further
represents that the execution, delivery and performance by such Person of this
Acknowledgement and Consent have been duly authorized by all necessary
corporate, partnership and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person
(including any Governmental Authority) in order to be effective and enforceable.
Each Guarantor remakes as of the Effective Date (as defined in the Amendment)
all of the representations and warranties made by it pursuant to its respective
Guaranty. Capitalized terms used herein and not otherwise defined have the
respective meanings defined in the Credit Agreement (as defined in the
Amendment).
IN WITNESS WHEREOF, Russell Solt, as Senior Vice President and Chief Financial
Officer of each of the Guarantors, has executed this Acknowledgement and Consent
on each Guarantor as of this 28th day of March, 2001.
WEST MARINE, INC., a Delaware corporation
WEST MARINE PRODUCTS, INC., a California
corporation
E&B MARINE INC., a Delaware corporation
E&B MARINE SUPPLY, INC., a Maryland corporation
E&B MARINE SUPPLY, INC., a New Jersey corporation
E&B MARINE SUPPLY (Florida), Inc., a Delaware
corporation
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GOLDBERGS' MARINE DISTRIBUTORS, INC., a Delaware
corporation
JAMES BLISS & CO., INC., a Massachusetts
corporation
SEA RANGER MARINE INC., a Delaware corporation
KRISTA CORPORATION, a Delaware corporation
CENTRAL MARINE SUPPLY, INC., a New Jersey
corporation
WEST MARINE LBC, INC., a California corporation
WEST MARINE IHC I, INC., a California corporation
WEST MARINE IHC II, INC., a California corporation
E&B MARINE LBC, INC., a California corporation
E&B MARINE IHC I, INC., a California corporation
E&B MARINE IHC II, INC., a California corporation
W MARINE MANAGEMENT COMPANY, INC., a California
corporation
WEST MARINE PUERTO RICO, INC., a California
corporation
By /s/ Russell Solt
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Russell Solt
Senior Vice President and Chief Financial
Officer of each of the foregoing corporations
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