EXHIBIT 10.11
SECOND AMENDMENT AND AGREEMENT TO AMEND AND RESTATE
SECOND AMENDMENT AND AGREEMENT TO AMEND AND RESTATE (this
"Agreement"), dated as of February 17, 1999, among Labtec Inc. (formerly known
as Labtec Enterprises, Inc.) (the "Borrower"), the lending institutions party to
the Credit Agreement referred to below (each a "Bank" and, collectively, the
"Banks"), and Bankers Trust Company, as Agent (the "Agent"). All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent are party to a
Credit Agreement, dated as of October 7, 1997 (as amended, modified and
supplemented prior to the date hereof, the "Credit Agreement");
WHEREAS, the Borrower and the Banks have agreed to certain
amendments and consents in connection with the Credit Agreement, the terms and
conditions of which are provided herein; and
WHEREAS, the Borrower and the Banks have agreed that if and
when the Merger referred to below is consummated, the Credit Agreement will be
amended and restated as provided herein;
NOW, THEREFORE, it is agreed:
I. Consent to Merger; Agreement to Amend and Restate.
1. Notwithstanding anything to the contrary contained in the
Credit Agreement, the Banks hereby agree that the Borrower may merge (the
"Merger") with SIMC Acquisition Corporation ("SIMC"), a newly-formed, direct
Wholly-Owned Subsidiary of Spacetec IMC Corporation ("Spacetec"), on the
following terms and conditions:
(a) the Borrower is the surviving corporation of the Merger,
and at all times after the Merger the Borrower is a direct Wholly-Owned
Subsidiary of Spacetec;
(b) the Merger is consummated substantially in accordance with
the Amended and Restated Agreement and Plan of Merger, dated as of
October 21, 1998 and amended and restated as of November 13, 1998,
among Spacetec, SIMC and the Borrower, and in accordance with all
applicable laws;
(c) prior to the consummation of the Merger, the Banks shall
have received (i) an unaudited pro forma balance sheet of each of
Spacetec and of the Borrower, in each case as of the fiscal quarter
ended September 30, 1998 (but giving effect to the Merger), and (ii)
financial projections for Spacetec and the Borrower and their
respective Subsidiaries after giving effect to the Merger, which pro
forma balance sheets and financial projections shall be
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satisfactory to the Agent and the Required Banks (it being understood
and agreed that the pro forma balance sheets and financial projections
delivered to the Banks prior to the Agreement Effective Date are
satisfactory);
(d) the Merger is permitted under the terms of the
Subordinated Financing Documents; and
(e) immediately following the consummation of the Merger:
(i) Spacetec shall transfer all of its assets (other
than cash, Cash Equivalents and capital stock of its
Subsidiaries) and all of its liabilities (other than pursuant
to the Merger Notes) to a newly-formed, direct Wholly-Owned
Subsidiary of Spacetec other than SIMC (such direct
Wholly-Owned Subsidiary, "Spacetec Sub");
(ii) Spacetec shall execute and deliver to the Agent an
Acknowledgment in the form of Annex A attached hereto;
(iii) Spacetec Sub shall execute and deliver to the Agent
a Subsidiary Guaranty in the form of Exhibit H to the Credit
Agreement;
(iv) Spacetec and Spacetec Sub shall execute and deliver
to the Agent counterparts of the Pledge Agreement and Security
Agreement in the form of Exhibits F and G, respectively, to
the Credit Agreement;
(v) all actions shall be taken, to the satisfaction of
the Agent, to perfect the security interests in the assets of
Spacetec and Spacetec Sub created under the Pledge Agreement
and the Security Agreement;
(vi) the Agent shall receive an opinion from counsel to
Spacetec and Spacetec Sub in form and substance satisfactory
to the Agent;
(vii) Spacetec and Spacetec Sub shall deliver to the Agent
Officers' Certificates in the form of Exhibit E to the Credit
Agreement, with appropriate insertions and attachments,
together with any other documents of the type referred to in
Section 5.05(b) of the Credit Agreement requested by the
Agent; and
(viii)the Borrower shall make a prepayment of the
principal of the Term Loans of at least $7,000,000.
2. Effective concurrently with the consummation of the Merger,
the Borrower, the Banks and the Agent hereby agree that the Credit Agreement
will be amended and restated to appear in its entirety as set forth in Annex B
hereto as shall be deemed to be so amended and restated
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without any further action by the parties hereto.
3. Effective concurrently with the consummation of the Merger,
Exhibits F, G and H to the Credit Agreement are hereby amended and restated to
appear in their entirety as set forth in Exhibits F, G and H hereto.
4. Effective concurrently with the consummation of the Merger,
the Credit Agreement is hereby further amended by adding a new Annex XIII
thereto in the form of Annex XIII hereto.
5. Notwithstanding anything to the contrary contained in the
Credit Agreement, the Banks hereby agree that monthly financial statements
required to be delivered to the Banks pursuant to Section 7.01(a) of the Credit
Agreement for the month of December, 1998, and the quarterly financial
statements required to be delivered to the Banks pursuant to Section 7.01(b) of
the Credit Agreement for the quarter ended December 31, 1998, shall not be
required to be delivered until February 26, 1999.
II. Miscellaneous.
1. In order to induce the Banks to enter into this Agreement,
the Borrower hereby represents and warrants that (i) no Default or Event of
Default exists as of the Agreement Effective Date (as defined below) after
giving effect to this Agreement and (ii) on the Agreement Effective Date, both
before and after giving effect to this Agreement, all representations and
warranties contained in the Credit Agreement or in the other Credit Documents
are true and correct in all material respects, unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date.
2. This Agreement shall become effective on the date (the
"Agreement Effective Date") when the Borrower, the Agent and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent at its Notice Office.
3. This Agreement is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
4. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Agent.
5. All references in the Credit Agreement and each of the
Credit Documents to the Credit Agreement shall be deemed to be references to the
Credit Agreement after giving effect
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to this Agreement.
6. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
hereof.
LABTEC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
BANKERS TRUST COMPANY, individually
and as Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director
LASALLE NATIONAL BANK
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
ARCHIMEDES FUNDING L.L.C
By: ING CAPITAL ADVISORS INC.,
as Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Portfolio Manager
▇▇▇ ▇▇▇▇▇▇
PRIME RATE INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
ANNEX XIII
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Charges to be excluded in computing Consolidated EBIT
----------------------------------------------------------|-------------------------------------------|
| |
Amount/Description | Period in which taken |
------------------ | --------------------- |
| |
1. $210,000 - Addition to Bad Debt Reserve | Quarters ending 12/31/98 and/or |
| 3/31/99 |
2. $500,000 - Addition to Inventory Reserve | Quarters ending 12/31/98 and/or |
| 3/31/99 |
3. $290,000 - Addition to Reserve for Credits and | Quarters ending 12/31/98 and/or |
Allowances | 3/31/99 |
| |
4. $1,000,000 - Restructuring Reserves in connection | Quarters ending 12/31/98, 3/31/99, |
with the SIMC Merger | 6/30/99, 9/30/99 and/or 12/31/99 |
----------------------------------------------------------|-------------------------------------------|
ANNEX A
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ACKNOWLEDGMENT
ACKNOWLEDGMENT (the "Acknowledgment"), dated as of February
17, 1999 between Spacetec IMC Corporation ("Spacetec"), a Massachusetts
corporation, and Bankers Trust Company, as Agent for the Banks. Unless otherwise
defined herein, all capitalized terms used herein and defined in the Amended and
Restated Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H:
WHEREAS, Labtec Inc. (formerly known as Labtec Enterprises,
Inc.), a Delaware corporation (the "Borrower"), the lending institutions from
time to time party thereto (the "Banks"), and Bankers Trust Company, as Agent
(the "Agent") have entered into a Credit Agreement, dated as of October 7, 1997
(as amended, modified or supplemented from time to time, the "Credit Agreement")
providing for the making of Loans to the Borrower and the issuance of, and
participation in, Letters of Credit for the account of the Borrower, all as
contemplated therein;
WHEREAS, on the date hereof, (i) the Borrower is merging with
a Wholly-Owned Subsidiary of Spacetec and (ii) the Credit Agreement is being
amended and restated to, among other things, include Spacetec as a party thereto
(the Credit Agreement, as so amended and restated, the "Amended and Restated
Credit Agreement");
WHEREAS, subject to the terms and conditions set forth below,
the parties hereto desire that Spacetec become a party to the Amended and
Restated Credit Agreement as "Holdings" referred to therein;
NOW, THEREFORE, it is agreed:
1. Holdings hereby expressly assumes all rights, obligations,
duties and liabilities of Holdings under the Credit Agreement.
2. Upon the effectiveness of this Acknowledgment, all
references in the Credit Agreement to "Holdings" shall be deemed to be
references to Spacetec.
3. To induce the Agent to enter into this Acknowledgment,
Spacetec hereby represents, warrants and agrees as follows:
(a) on the date hereof and after giving effect to Spacetec's
execution and delivery of this Acknowledgment, all representations and
warranties contained in each of the Credit Documents are true and
correct in all material respects and no Default or Event of Default is
in existence; and
ANNEX A
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(b) on and after the date hereof, Spacetec will fully and
faithfully perform all obligations (including payment obligations and
compliance with all covenants) of "Holdings" under the Credit
Agreement.
4. This Acknowledgment shall become effective as of the date
first above written, when each of the parties hereto shall have executed a copy
hereof and shall have delivered the same to the Agent.
5. This Acknowledgment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. A complete set of counterparts
shall be lodged with Spacetec and the Agent.
6. THIS ACKNOWLEDGMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Acknowledgment to be duly executed and delivered as of the
date first above written.
SPACETEC IMC CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name:
Title:
BANKERS TRUST COMPANY,
as Agent
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Title: Managing Director