Exhibit 10.109


 


FIFTEENTH AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

AND LIMITED CONSENT


 


This FIFTEENTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT AND LIMITED CONSENT (this “Amendment”) is dated as of June 12, 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,
California 91101, and MEADE INSTRUMENTS CORP., a Delaware corporation, SIMMONS
OUTDOOR CORPORATION, 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 informed the Lender that they intend to sell certain
trademarks and inventory related to the “Simmons” brands (the “Simmons Transaction”) pursuant to an Asset Purchase
Agreement among Simmons Outdoor Corporation, Meade Instruments Corp. and
Bushnell, Inc. (the “Simmons Asset Purchase
Agreement”); and


 


WHEREAS,
the Borrowers have requested that the Lender consent to the Simmons Transaction
and amend the Agreement in certain respects and the Lender has agreed to such
consent and 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.          New Definitions.  The
following definitions are hereby added to Annex A to the Agreement in proper
alphabetical order to read in their entirety as follows:


 


“‘Simmons Transaction’ has the meaning
set forth in the Fifteenth Amendment.”


 


“‘Simmons Transaction Reserve’ means a
reserve in the amount at all times equal to $500,000.”


 


“‘Fifteenth Amendment’ means that
certain Fifteenth Amendment to Amended and Restated Credit Agreement and
Limited Consent dated as of June 12, 2008 by and among Lender and
Borrowers.”


 

















 


Section 2.02.          Amendment to the Definition of “Borrowing
Base”.  The definition of “Borrowing Base” as set
forth in Annex A to the Agreement is hereby amended and restated in its
entirety to read as follows:


 


“‘Borrowing Base’ means, at any time, an amount equal to the sum
of (a) the Accounts Advance Amount, plus (b) the Inventory
Advance Amount, minus (c) Reserves from time to time established by
the Lender in its reasonable credit judgment, where:


 


‘Accounts Advance Amount’ means, at any time, an amount equal to eighty
percent (80%) of the Net Amount of Eligible Accounts; provided,
however, that the aggregate Revolving
Loans advanced against Approved Foreign Accounts shall not exceed $2,000,000;
and


 


‘Inventory Advance Amount’ means, at any time other than set forth
below, an amount equal to the lesser of (i) $15,000,000, or (ii) the
lesser of (x) sixty percent (60%) of the Net Value of Eligible Inventory
owned by the Borrowers, or (y) eighty-five percent (85%) of the Net
Orderly Liquidation Value of Eligible Inventory owned by the Borrowers.”


 


Section 2.03.          Amendment to the Definition of “Maximum
Revolver Amount”.  The definition of “Maximum Revolver Amount”
as set forth in Annex A to the Agreement is hereby amended and restated in its
entirety to read as follows:


 


“‘Maximum Revolver Amount’ means $15,000,000.”


 


Section 2.04.          Amendment to the Definition of “Reserves”.  The
definition of “Reserves” as set forth in Annex A to the Agreement is hereby
amended and restated in its entirety to read as follows:


 


“‘Reserves’ means reserves that limit
the availability of credit hereunder, consisting of reserves against
Availability, Eligible Accounts or Eligible Inventory, established by Lender
from time to time in Lender’s reasonable credit judgment.  Without limiting the generality of the
foregoing, the following reserves shall be deemed to be a reasonable exercise
of Lender’s credit judgment: (a) Bank Product Reserves; (b) a reserve
for accrued, unpaid interest on the Obligations; (c) reserves for rent at
leased locations subject to statutory or contractual landlord liens; (d) the
Slow Moving Reserve; (e) the Dilution Adjustment Reserve; (f) warehousemen’s
or bailees’ charges; (g) the Working Capital Reserve; (h) the
Availability Reserve; (i) the EBITDA Reserve; (j) the Brand Sales
Reserve; and (k) the Simmons Transaction Reserve.”


 


Section 2.05.          Amendment to Section 1.1.  Section 1.1
of the Agreement is hereby amended and restated to read in its entirety as
follows:


 


“1.1         Total
Facility.  Subject to all of the terms and conditions of
this Agreement, the Lender agrees to make available a total credit facility of
up to $15,000,000 (the ‘Total Facility’) to the Borrowers from time to
time during the term of this Agreement. 
The Total Facility shall be composed of a revolving line of credit
consisting of Revolving Loans and Letters of Credit described herein.”


 


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ARTICLE III


 


LIMITED CONSENT


 


Section 3.01.          Limited Consents. 
Notwithstanding anything contrary in the Agreement or any other
provision set forth in the Loan Documents, and subject to the terms,
conditions, and other restrictions set forth herein, the Lender hereby consents
to the Simmons Transaction.  This consent
is limited to the Simmons Transaction and is not a consent to any other
transaction, whether or not similar to the foregoing.  The consent to the Simmons Transaction is
conditioned upon satisfaction of each of the following conditions precedent
thereto, as well as the conditions precedent set forth in Article V
below:


 


(i)            The Borrowers shall have delivered to the
Lender an executed copy of Simmons Asset Purchase Agreement together with true
and correct copies of all exhibits and schedules thereto and all agreements
executed or delivered in connection therewith, all of which must be in form and
substance satisfactory to the Lender in its sole discretion;


 


(ii)           The Borrowers shall have delivered to the Lender an updated Borrowing
Base Certificate reflecting the consummation of the Simmons Transaction;


 


(iii)          No Default or Event of Default shall have occurred and be continuing or
result from the consummation of the Simmons Transaction, except as previously
disclosed to the Lender in writing; and


 


(iv)          100% of the cash proceeds of the Simmons Transaction to be received by
the Borrowers shall be paid directly to the Lender (to be applied to the
Obligations in accordance with the Agreement) at such account as the Lender may
direct.


 


Upon satisfaction of the foregoing conditions with respect to the
Simmons Transaction (or concurrently therewith), and upon the Borrowers’
request, the Lender will execute and deliver such lien releases (including
UCC-3 financing statement amendments) as may be necessary to effectively
terminate any and all of the Lender’s Liens on the property to be sold pursuant
to the Simmons Transaction, all at Borrowers’ sole cost and expense.


 


ARTICLE IV


 


Amendment Fee


 


Section 4.01.          Amendment Fee.  In
connection with the preparation, negotiation and execution of this Amendment,
the Borrowers shall pay to the Lender an amendment fee (the “Amendment Fee”) in the amount of Fifty Thousand Dollars
($50,000), which, at the Lender’s option, may be charged as an advance and a
Revolving Loan under the Agreement, and which fee is fully earned and payable
as of the Amendment Date.


 


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ARTICLE V


 


Conditions Precedent


 


Section 5.01.          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 the Amendment Fee and all
other 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,
except as previously disclosed to the Lender in writing; 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.


 


ARTICLE VI


 


Miscellaneous


 


Section 6.01.          Inventory.  Each Borrower hereby
represents and warrants that after the consummation of each of the Simmons
Transaction, no Inventory bearing the brands sold in connection therewith will
be held, manufactured or sold by any Borrower.


 


Section 6.02.          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 such 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 6.03.          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,


 


4

















 


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 6.04.          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 6.05.          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 6.06.          Headings.  The headings, captions and
arrangements used in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.


 


Section 6.07.          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 6.08.          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.


 


Section 6.09.          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 6.10.          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.


 


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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]


 


6

















 


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 CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  
				



 


Signature Page


 

















 


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 certain
Fifteenth Amendment to Amended and Restated Credit Agreement and Limited dated
as of June 12, 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.


 


 


Dated
as of June 12, 2008.


 


 


	
   

  	
  MEADE INSTRUMENTS EUROPE CORP.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
  Name:

  	
  Paul E. Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADE INSTRUMENTS HOLDINGS CORP.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
  Name:

  	
  Paul E. Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 

















 


CONSENTS AND REAFFIRMATIONS


 


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 certain Fifteenth Amendment to Amended and Restated Credit Agreement and
Limited Consent dated as of June 12, 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.


 


 


	
  Dated
  as of June 12, 2008.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MTSC HOLDINGS, INC.,

  
	
   

  	
  a California corporation,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
  Name:

  	
  Paul E. Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MC HOLDINGS, INC.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
  Name:

  	
  Paul E. Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MEADE CORONADO HOLDINGS CORP.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/PAUL E. ROSS

  
	
   

  	
  Name:

  	
  Paul E. Ross

  
	
   

  	
  Title:

  	
  Chief Financial Officer