EXHIBIT 10.177
ELEVENTH AMENDMENT TO
LETTER OF CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO LETTER OF CREDIT AGREEMENT (the "Eleventh
Amendment") dated as of September 30, 1999 by and among CATALINA INDUSTRIES,
INC. D/B/A DANA LIGHTING, a Florida corporation (the "Company"), the
corporations designated as guarantors (collectively, the "Guarantors") and
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION F/K/A SUN BANK, NATIONAL
ASSOCIATION, a national banking association (the "Bank").
WITNESSETH:
WHEREAS, the Company, Guarantors and the Bank have entered into that
certain Letter of Credit Agreement dated as of May 1, 1995, as amended by that
certain First Amendment to Letter of Credit Agreement dated as of June 30, 1995,
as further amended by that certain Second Amendment to Letter of Credit
Agreement and First Amendment to Security Agreement dated as of December 28,
1995, as further amended by that certain Third Amendment to Letter of Credit
Agreement dated as of March 27, 1996, as further amended by that certain Fourth
Amendment to Letter of Credit Agreement dated as of December 30, 1996, as
further amended by that certain Fifth Amendment to Letter of Credit Agreement
dated as of March 31, 1997, as further amended by that certain Sixth Amendment
to Letter of Credit Agreement dated as of September 30, 1997, as further amended
by that certain Seventh Amendment to Letter of Credit Agreement dated as of
December 31, 1997, as further amended by that certain Eighth Amendment to Letter
of Credit Agreement dated as of March 31, 1998, as further amended by that
certain Ninth Amendment to Letter of Credit Agreement dated as of September 30,
1998, and as further amended by that certain Tenth Amendment to Letter of Credit
Agreement dated as of March 31, 1999 (as amended, the "Letter of Credit
Agreement"); and
WHEREAS, the Company and the Guarantors have requested that the Letter
of Credit Agreement be amended to revise certain financial and other covenants
contained in Annex VI attached to said Letter of Credit Agreement and
incorporated therein by reference; and
WHEREAS, the Bank has agreed to amend the Letter of 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 LETTER OF CREDIT AGREEMENT. The Letter of Credit Agreement is
amended as follows:
a. Section 5.3, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
"Section 5.3. USE OF PROCEEDS. Except as otherwise provided in Section
5.6, use any Extension of Credit only (a) for the manufacture,
purchase, importation or shipment of inventory, (b) for refinancing
certain Existing Debt, and (c) for working capital purposes. None of
the proceeds of any of the Extensions of Credit shall be used to
purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meeting of
Regulation U and X) or to extend credit or otherwise for the purpose of
purchasing or carrying any margin stock. If requested by the Agent, the
Borrower will furnish to the Agent statements in conformity with the
requirements of Federal Reserve Form U-1 referred to in Regulation U."
b. Section 5.14, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
"Section 5.6. MERGER CONSOLIDATION. ACQUISITIONS AND DISPOSITION OF
ASSETS. Without the Required Banks' prior written consent, (a) merge or
consolidate with any Person, except that, if after giving effect
thereto no Default would exist, this Section 5.6 shall not apply to (i)
any merger or consolidation of the Borrower with any Subsidiary,
provided that the Borrower shall be the continuing entity, or (ii) any
merger or consolidation of any Subsidiary with any other Subsidiary if,
after giving effect thereto, the continuing entity is a Wholly-Owned
Subsidiary of the Borrower that has no Liabilities other than Permitted
Debt, (b) except as provided in Section 5.18(g), purchase, lease or
otherwise acquire for cash or other consideration (not including the
Capital Securities of Borrower) all or any substantial portion of the
assets of any other Person (which for the purposes of this
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Section shall mean more than 10% of the gross assets of such Person or
any business unit) provided, however, that no prior written consent
shall be required if (i) the operation of such Person to be required is
predominately in the same or related business as the Borrower; (ii) the
combination of cash consideration and assumed debt in conjunction with
such acquisition does not exceed $5,000,000.00; and (iii) after giving
effect to such acquisition, the Borrower shall be in compliance, on a
proforma historical basis, with all provisions and covenants contained
in this Agreement, or (c) except as provided in Section 5.10(b), sell,
lease, transfer or otherwise dispose of any assets, except that this
Section 5.6 shall not apply to any creation of a Permitted Lien or any
disposition (i) of assets in the ordinary course of business or (ii) of
any retired property not used or useful in its business, PROVIDED,
HOWEVER, that prior to taking any action as provided in this Section
5.6 which does not require the prior written consent of the Required
Banks, the Agent shall be furnished written notice thereof by the
Borrower or Guarantor."
c. Section 5.11, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
Section 5.11. PERMITTED DEBT. Without the Required Banks' prior written
consent, create, incur, assume or suffer to exist any Debt, other than:
(a) Debt arising under this Agreement or the other Loan Documents,
(b) Existing Debt,
(c) Purchase Money Debt and Capitalized Lease Obligations incurred in
the ordinary course of business after the Agreement Date which does not
exceed $1,000,000 in the aggregate for all such entities at any time
outstanding,
(d) Debt evidenced by an Intercompany Note pledged to the Agent under
the Pledge Agreement,
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(e) Subordinated Debt in form and substance acceptable in all respects
to the Agent and the Required Banks and evidenced by their written
consent thereto, and
(f) in the case of the Borrower, any other unsecured Debt which does
not exceed $200,000 in the aggregate for the Borrower at any time
outstanding.
(g) mortgage loan of Borrower in an amount not to exceed One Million
Five Hundred Thousand Dollars ($1,500,000.00) payable to the Agent in
conjunction with the refinancing of Borrower's headquarters facility in
Dade County, Florida.
(h) mortgage loan of Dana Lighting, Inc. in conjunction with the
issuance of taxable variable rate industrial development revenue bonds
by the Mississippi Business Finance Corporation in an amount not to
exceed Ten Million Five Hundred Thousand Dollars ($10,500,000.00),
payable to the Agent as issuer of a direct pay letter of credit to
secure said bonds.
d. Section 5.13, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
"Section 5.13 MINIMUM FIXED CHARGE COVERAGE RATIO. As at the last day
of each fiscal quarter, commencing with the fiscal quarter ending
September 30, 1999, the Borrower's Fixed Charge Coverage Ratio shall
equal at least 1.5:1.0, computed on a rolling four-quarter basis, based
on information contained in the Borrower's current financial statements
and its financial statements for the preceding three quarters."
e. Section 5.14, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
"Section 5.14 MAXIMUM FUNDED DEBT TO EBITDA RATIO. As at the last day
of each fiscal quarter, commencing with the fiscal quarter ending
September 30, 1999, the Borrower's Funded Debt to EBITDA Ratio shall
not exceed 3.25:1.00, computed on a rolling four-quarter basis, based
on information contained in the Borrower's current financial statements
and its financial statements for the preceding three quarters."
f. Section 5.15, contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
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"Section 5.15 MAXIMUM SENIOR FUNDED DEBT TO EBITDA RATIO. As at the
last day of each fiscal quarter, commencing with the fiscal quarter
ending September 30, 1999, the Borrower's Senior Funded Debt to EBITDA
Ratio shall not exceed 2.50:1.00, computed on a rolling four-quarter
basis, based on information contained in the Borrower's current
financial statements and its financial statements for the preceding
three quarters."
g. Section 5.18(g), contained in Annex VI attached to the Letter of Credit
Agreement, is hereby deleted and, in lieu thereof, there is substituted the
following:
"(g) the Borrower and any of its Subsidiaries may make other
investments, loans and advances in addition to those permitted by the
foregoing provisions of this Section 5.18 from time to time, provided
that the aggregate amount of such investments, loans and advances shall
not exceed $25,000,000.00 without the prior written consent of all
Banks and, further provided that not more than $5,000,000.00 of said
aggregate amount shall represent the aggregate amount of investments,
loans and advances made to Catalina Lighting Mexico, S.A. DE C.V. For
the purpose of this subsection, the $25,000,000.00 limitation referred
to above shall not include the net note receivable from Catalina Asia
in the amount not to exceed $1,000,000.00."
2. COUNTERPARTS. The Eleventh 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 Letter of 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 Letter of Credit Agreement
as amended hereby shall remain in full force and effect and this Eleventh
Amendment to Letter of Credit Agreement shall not be deemed a novation. Each and
every reference to the Letter of Credit Agreement and any other Operative
Documents shall be deemed to refer to the Letter of
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Credit Agreement as amended by the Eleventh Amendment. The Company and the
Guarantors hereby acknowledge and represent that the Operative 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 ELEVENTH AMENDMENT SHALL BE EFFECTIVE UPON ACCEPTANCE BY
THE BANK 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.
(BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties have executed this Eleventh Amendment
as of the day and year first above written.
COMPANY:
CATALINA INDUSTRIES, INC.
d/b/a Dana Lighting
By: /s/ THOMAS M. BLUTH
---------------------------------
Thomas M. Bluth
Secretary/Treasurer
GUARANTORS:
CATALINA LIGHTING, INC.
By: /s/ THOMAS M. BLUTH
---------------------------------
Thomas M. Bluth
Vice President,
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
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CATALINA LIGHTING ARGENTINA, INC.,
f/k/a
MERIDIAN LAMPS DEVELOPMENT, INC.
By: /s/ THOMAS M. BLUTH
---------------------------------
Thomas M. Bluth
Secretary/Treasurer
CATALINA ADMINISTRATIVE CORPORATION
By: /s/ THOMAS M. BLUTH
---------------------------------
Thomas M. Bluth
Assistant Secretary
BANK:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION f/k/a Sun Bank,
National Association
By: /s/ RANDY P. CHESAK
---------------------------------
Randy P. Chesak
Vice President
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