EXHIBIT 10.158
THIRTEENTH AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(the "Thirteenth Amendment") dated as of March 31, 1998, by and among CATALINA
LIGHTING, INC., a Florida corporation (the "Borrower"), the corporations listed
on ANNEX I thereto (the "Guarantors"), the Banks signatories to the Credit
Agreement (as hereinafter defined) (the "Banks") and SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, a national banking association, as Agent (the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent have
entered into that certain Third Amended and Restated Credit Agreement dated as
of May 12, 1994, as amended by that certain First Amendment to Third Amended and
Restated Credit Agreement, Second Amended and Restated Security Agreement, Third
Amended and Restated Stock and Notes Pledge, Third Amended and Restated
Agreement Regarding Factoring Proceeds, Consent and Waiver dated as of August
12, 1994, as further amended by that Second Amendment to Third Amended and
Restated Credit Agreement and Third Amended and Restated Stock and Notes Pledge,
dated as of February 23, 1995, as further amended by that Third Amendment to
Third Amended and Restated Credit Agreement and Consent, dated as of May 1,
1995, as further amended by that Fourth Amendment to the Third Amended and
Restated Credit Agreement, dated as of June 30, 1995, as further amended by that
Fifth Amendment to Third Amended and Restated Credit Agreement, dated as of
December 4, 1995, as further amended by that Sixth Amendment to Third Amended
and Restated Credit Agreement, Second Amendment to Second Amended and Restated
Security Agreement and Second Amendment to Third Amended and Restated Stock and
Notes Pledge, dated as of December 28, 1995, as further amended by that Seventh
Amendment to Third Amended and Restated Credit Agreement, dated as of March 18,
1996, as further amended by that Eighth Amendment to Third Amended and Restated
Credit Agreement, Third Amendment to Second Amended and Restated Security
Agreement, and Fourth Amendment to Third Amended and Restated Stock and Notes
Pledge, dated as of October 4, 1996, as further amended by that Ninth Amendment
to Third Amended and Restated Credit Agreement, dated as of December 30, 1996,
as further amended by that Tenth Amendment to Third Amended and Restated Credit
Agreement, dated as of March 31, 1997, as further amended by that Eleventh
Amendment to Third Amended and Restated Credit Agreement, dated as of September
30, 1997, and as further amended by that Twelfth
Amendment to Third Amended and Restated Credit Agreement, dated as of December
31, 1997 (as so amended, the "Credit Agreement"); and
WHEREAS, the Borrower and the Guarantors have requested that the Credit
Agreement be amended to extend the availability of advances under the Credit
Agreement and to revise certain financial covenants.
WHEREAS, the Banks and the Agent have agreed to amend the Credit Agreement
to provide for the foregoing, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended as
follows:
a. Section 5.12 of the Credit Agreement is hereby deleted, and in lieu
thereof, there is substituted the following:
"Section 5.12. MINIMUM CONSOLIDATED TANGIBLE NET WORTH
PLUS SUBORDINATED DEBT. Permit its Minimum Consolidated
Tangible Net Worth Plus Subordinated Debt to be less than
$36,000,000.00 from the date hereof until September 29,
1996; $39,000,000.00 from September 30, 1996 until March
30, 1997; $34,500,000.00 from March 31, 1997 until June
29, 1997; $35,000,000.00 from June 30, 1997 until
September 29, 1997; $35,500,000.00 from September 30,
1997 until December 30, 1997; $35,750,000.00 from
December 31, 1997 until March 30, 1997; 36,250,000.00
from March 31, 1998 until June 29, 1998; $37,250,000.00
from June 30, 1998 until September 29, 1998; $38,250,000
from September 30, 1998 until December 30, 1998;
$38,750,000.00 from December 31, 1998 until March 30, 1999;
$39,250,000.00 from March 31, 1999 until June 29, 1999;
$40,250,000.00 from June 30, 1999 until September 29, 1999;
$41,250,000.00 from September 30, 1999 until December 30,
1999; $41,750,000.00 from December 31, 1999 until March 30,
2000; and
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$2,250,000.00 as of March 31, 2000 and at all times
thereafter.
b. Section 5.14 of the Credit Agreement is hereby deleted, and in lieu
thereof, there is substituted the following:
"Section 5.14. INTEREST COVERAGE RATIO. Permit the ratio
of (a) the sum of (i) Consolidated Pre-tax Income PLUS
(ii) Consolidated Interest Charges to (b) Consolidated
Interest Charges, to be less than 1.0:1 for the one (1)
calendar quarterly period ending December 31, 1995; less
than 0.60:1 for the immediately preceding two (2)
calendar quarterly periods ending March 31, 1996; less
than 1.25:1 for the immediately preceding three (3)
calendar quarterly periods ending June 30, 1996; less
than 1.75:1 for the immediately preceding four (4)
calendar quarterly period ending September 30, 1996; less
than 1.25:1 for the immediately preceding four (4)
calendar quarterly periods ending December 31, 1996;
excluding the effect of the actual pretax charge to
earnings previously disclosed to the Agent and the Banks
not to exceed $9,859,826.00 incurred during the quarterly
period ending March 31, 1997, less than 1.00:1 for the
immediately preceding four (4) calendar quarterly periods
ending March 31, 1997; excluding the effect of the actual
pretax charge to earnings not to exceed $432,000.00
incurred during the quarterly period ending June 30,
1997 for all calculations for which said quarterly period
is included, less than 1.50:1 for the one (1) calendar
quarterly period ending June 30, 1997; less than 1.75:1
for the immediately preceding two (2) calendar quarterly
periods ending September 30, 1997; less than 1.40:1 for
the immediately preceding three (3) calendar quarterly
periods ending December 31, 1997; less than 1.30:1 for the
immediately preceding four (4) calendar quarterly periods
ending March 31, 1998; less than 1.35:1 for the
immediately preceding four (4) calendar quarterly periods
ending June 30, 1998; less than 1.50:1 for the
immediately preceding four (4) calendar quarterly periods
ending September 30, 1998; less than 1.75:1 for the
immediately preceding four (4) calendar quarterly periods
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ending December 31, 1998; and less than 2.00:1 for the
immediately preceding four (4) calendar quarterly
periods ending on the last day of each calendar quarter
thereafter."
c. The definition of "Termination Date" as defined in Section 11.1(a) of
the Credit Agreement is hereby deleted and, in lieu thereof, there is
substituted the following:
"'TERMINATION DATE' means the earlier of (i) September
30, 1999, as extended from time to time pursuant to
Section 1.4, and (ii) the date of termination in whole
of the Bank's Commitments pursuant to Section 1.2 or 7.2."
2. COUNTERPARTS. The Thirteenth Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and permitted assigns.
3. CAPITALIZED TERMS. All capitalized terms contained herein shall have the
meanings assigned to them in the Credit Agreement unless the context herein
otherwise dictates or unless different meanings are specifically assigned to
such terms herein.
4. RATIFICATION OF LOAN DOCUMENTS; MISCELLANEOUS. The Credit Agreement as
amended hereby, and all other Loan Documents shall remain in full force and
effect in this Thirteenth Amendment to Credit Agreement shall not be deemed a
novation. Each and every reference to the Credit Agreement and any other
Loan Documents shall be deemed to refer to the Credit Agreement as amended by
the Thirteenth Amendment. The Borrower and the Guarantors hereby acknowledge
and represent that the Loan Documents, as amended, are, as of the date hereof,
valid and enforceable in accordance with their respective terms and are not
subject to any defenses, counterclaims or right of set-offs whatsoever.
5. GOVERNING LAW. THIS THIRTEENTH AMENDMENT SHALL BE EFFECTIVE UPON
ACCEPTANCE BY THE BANKS IN FLORIDA AND SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
IN WITNESS WHEREOF, the parties have executed this Thirteenth Amendment as
of the day and year first above written.
(BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK)
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BORROWER:
CATALINA LIGHTING, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Vice President, Secretary,
Treasurer
GUARANTORS:
EACH OF THE CORPORATIONS LISTED
ON ANNEX I HERETO
CATALINA INDUSTRIES, INC.
d/b/a Dana Lighting
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
CATALINA REAL ESTATE TRUST, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
ANGEL STATION, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
MERIDIAN LAMPS, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
MERIDIAN LAMPS DEVELOPMENT, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
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SIGNATURE PAGE TO THIRTEENTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT BY AND BETWEEN SUNTRUST,
AS AGENT, THE CATALINA ENTITIES
AND THE BANKS
CATALINA ADMINISTRATIVE CORPORATION
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Assistant Secretary
CATALINA MERCHANDISING, INC.
By: /s/ THOMAS M. BLUTH
-------------------------------------
Thomas M. Bluth
Secretary, Treasurer
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ACKNOWLEDGEMENT
STATE OF GEORGIA
COUNTY OF SUTTON
On this the 30th day of March, 1998, personally appeared Thomas M. Bluth, a
Vice President of Catalina Lighting, Inc., and the Secretary-Treasurer of
Catalina Industries, Inc., Catalina Real Estate Trust, Inc., Angel Station,
Inc., Meridian Lamps, Inc., Meridian Lamps Development, Inc., Catalina
Administrative Corporation and Catalina Merchandising, Inc., and before me,
executed this Thirteenth Amendment to Third Amended and Restated Credit
Agreement dated as of March 31, 1998.
In witness whereof, I have hereunto set my hand and official seal.
/s/ CATHERINE R. SMITH
-------------------------------------
NOTARY PUBLIC - STATE OF GEORGIA
Catherine R. Smith
-------------------------------------
(Type name of notary public)
Personally known: [X]
or produced identification:
Type of identification produced:
My commission expires: Notary Public,
Cobb County,
Georgia
My Commission
Expires Jan. 5,
1999
(NOTARIAL SEAL)
7
SIGNATURE PAGE TO THIRTEENTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT BY AND BETWEEN SUNTRUST,
AS AGENT, THE CATALINA ENTITIES
AND THE BANKS
AGENT:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ RONALD K. RUEVE
-------------------------------------
Name: Ronald K. Rueve
Title: Vice President
BANK:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ RONALD K. RUEVE
-------------------------------------
Name: Ronald K. Rueve
Title: Vice President
ACKNOWLEDGEMENT
STATE OF GEORGIA
COUNTY OF SUTTON
On this the 30th day of March, 1998, personally appeared Ronald K. Rueve,
a Vice President of SunTrust Bank, Central Florida, National Association, a
national banking association, and before me, executed this Thirteenth Amendment
to Third Amended and Restated Credit Agreement as Agent and as a Bank.
In witness whereof, I have hereunto set my hand and official seal.
/s/ CHRISTINE B. ALFORD
-------------------------------------
NOTARY PUBLIC - STATE OF GEORGIA
Christine B. Alford
-------------------------------------
(Type name of notary public)
Personally known: [X]
or produced identification:
Type of identification produced:
My commission expires: Notary Public,
DeKolb County,
Georgia
My Commission
Expires June
29, 2001
(NOTARIAL SEAL)
8
SIGNATURE PAGE TO THIRTEENTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT BY AND BETWEEN SUNTRUST,
AS AGENT, THE CATALINA ENTITIES
AND THE BANKS
BANK:
NATIONAL BANK OF CANADA,
a Canadian chartered bank
By: /s/ J. MICHAEL SMITH
-------------------------------------
Name: J. Michael Smith
Title: Vice President
ACKNOWLEDGEMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
On this the 30th day of March, 1998, personally appeared J. Michael Smith,
a Vice President of National Bank of Canada, a Canadian Charter Bank, and before
me, executed this Thirteenth Amendment to Third Amended and Restated Credit
Agreement as a Bank.
In witness whereof, I have hereunto set my hand and official seal.
/s/ UNA TERESA FINN
-------------------------------------
NOTARY PUBLIC - STATE OF NEW YORK
Una Teresa Finn
-------------------------------------
(Type name of notary public)
UNA TERESA FINN Personally known: [ ]
Notary Public, State of New York or produced identification:
No. 01-F16058871 Type of identification produced:
Qualified in Queens County My commission expires:
Commission Expires March 11, 1999 (NOTARIAL SEAL)
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SIGNATURE PAGE TO THIRTEENTH AMENDMENT
TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT BY AND BETWEEN SUNTRUST,
AS AGENT, THE CATALINA ENTITIES
AND THE BANKS
BANK:
FIRST UNION NATIONAL BANK, f/k/a
First Union National Bank of Florida
By: /s/ CHARLES T. KLENK
-------------------------------------
Name: Charles T. Klenk
Title: Vice President
ACKNOWLEDGEMENT
NASSAU
BAHAMAS
On this the 31st day of March, 1998, personally appeared Charles T. Klenk,
a Vice President of First Union National Bank, a national banking association,
and before me, executed this Thirteenth Amendment to Third Amended and Restated
Credit Agreement as a Bank.
In witness whereof, I have hereunto set my hand and official seal.
/s/ ARTHUR SELIGMAN
-------------------------------------
NOTARY PUBLIC
Arthur Seligman
-------------------------------------
(Type name of notary public)
Personally known: [ ]
or produced identification: [X]
Type of identification produced:
Driver's License
My commission expires: 31st December
1998
(NOTARIAL SEAL)
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AFFIDAVIT OF OUT-OF-STATE DELIVERY
STATE OF GEORGIA
COUNTY OF FULTON
I, Christine B. Alford, being first duly sworn, upon my oath, depose and
say:
1. That I am an Admin. Assistant of SunTrust Banks, Inc. ("SunTrust").
2. That on the 30th day of March, 1997, I received via Federal Express
that certain Thirteenth Amendment to Third Amended and Restated Credit
Agreement (the "Thirteenth Amendment") dated as of March 31, 1998 by and
among Catalina Lighting, Inc. as the Borrower (the " Borrower"), the Guarantors
listed thereon, and SunTrust, individually and as Agent, National Bank of
Canada, and First Union National Bank, f/k/a First Union National Bank of
Florida (collectively, the "Lenders"), as the Lenders.
3. That I accepted delivery of the Thirteenth Amendment on behalf of the
Lenders in Atlanta, Georgia.
/s/ CHRISTINE B. ALFORD
-------------------------------------
Name: Christine B. Alford
Title: Administrative Assistant
Sworn to and subscribed before me this 1 day of April, 1998
/s/ MARY W. HARRELL
-------------------------------------
Signature of Notary Public, State of
Georgia
Mary W. Harrell
-------------------------------------
Stamp, Type or Print Commissioned
Name of Notary Public Personally
Known: [X]; or Produced Identification:
Type of Identification:
(NOTARIAL SEAL)
Notary Public [ILLEGIBLE] County, Georgia
My Commission Expires May 12, 2001