Exhibit 10.93


 


LIMITED WAIVER AGREEMENT


 


This LIMITED WAIVER AGREEMENT (this
“Waiver Agreement”) is dated as of October 11,
2007 (the “Agreement Closing 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 CORP., 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 “Credit Agreement”);


 


WHEREAS,
the Borrowers have informed the Lender that they are in violation of the
Minimum EBITDA covenant set forth in Section 7.23 of the Credit Agreement
as of August 31, 2007 (the “Covenant Violation”),
which Covenant Violation constitutes an Event of Default under the Credit Agreement;
and


 


WHEREAS,
the Borrowers have requested that the Lender waive the Covenant Violation and amend
the Credit Agreement in certain other respects and the Lender has agreed to such
waiver 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 Credit Agreement and this Waiver Agreement, 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 Waiver
Agreement have the respective meanings set forth in the Credit Agreement, as
amended hereby.


 


ARTICLE II


 


Amendments


 


Section 2.01.          New Definition. A new definition of “Availability Reserve”
is hereby added to Annex A to the Credit Agreement to read in its entirety as
follows:


 


“‘Availability Reserve’ means a reserve in the amount of $250,000
at all times.”


 


Section 2.02.          Amendment to the Definition of “Applicable
Margin”. Clauses (a)
and (b) of the definition of “Applicable Margin” set forth in Annex A to
the Credit Agreement are hereby amended and restated in their entirety to read
as follows:


 


“(a)         with respect to Base Rate Revolving Loans and
all other Obligations (other than LIBOR Loans), 2.00%; and


 


(b)           with respect to LIBOR Loans, 4.25%;”


 





















 


Section 2.03.          Amendment to the Definition of “Reserves”. A new clause (h) is hereby added to
the definition of “Reserves” set forth in Annex A to the Credit Agreement to
read in its entirety as follows:


 


“(h) the Availability
Reserve.”


 


ARTICLE III


 


Limited Waiver


 


Section 3.01.          Waiver. The Lender hereby waives the Covenant Violation for a period of 30 days
from the date hereof and agrees not to exercise any default, rights or remedies
available as a result of the occurrence thereof for such 30 day period so long
as (a) no new Default or Event of Default occurs and is continuing and (b) the
Borrowers deliver to Lender financial projections on or before October 25, 2007
in form and substance satisfactory to Lender.


 


Section 3.02.          Limitation of Waiver. The waiver granted in Section 3.01
of this Waiver Agreement shall be limited strictly as written and shall not be
deemed to constitute a waiver of, or any consent to noncompliance with, any
term or provision of this Waiver Agreement, the Credit Agreement or any other
Loan Document except as expressly set forth herein. Further, the waiver granted
in Section 3.01 of this Waiver Agreement shall not constitute a waiver
of any Default or Event of Default arising as a result of any future violation
of Section 7.23 or any other term or provision of the Credit Agreement,
or any rights or remedies as a result of an Event of Default, or the violation
of any other term or provision of this Waiver Agreement.


 


ARTICLE IV


 


Amendment Fee


 


Section 4.01.          Amendment Fee. The Borrowers shall pay to the Lender, in
addition to all other fees and charges set forth herein and the other Loan
Documents, a non-refundable amendment fee equal to $25,000 (the “Amendment Fee”), which Amendment Fee will be charged to the
Loan Account. The Amendment Fee shall be in addition to any other fees, costs,
or expenses payable pursuant to the Credit Agreement and other Loan Documents
(including legal fees and expenses), is fully-earned as of the date hereof, and
shall be non-refundable for any reason whatsoever.


 


ARTICLE V


 


Conditions Precedent


 


Section 5.01.          Conditions Precedent. This Waiver Agreement 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 Borrowers shall have delivered to the
Lender a fully executed original copy of this Waiver Agreement;


 


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(ii)           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 Waiver Agreement;


 


(iii)          No Default or Event of Default, except for the Covenant Violation,
shall have occurred and be continuing; and


 


(iv)          All proceedings taken in connection with the transactions contemplated by
this Waiver Agreement 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.          Acknowledgment. Each Borrower hereby represents and warrants
that the execution and delivery of this Waiver Agreement and compliance by such
Borrower with all of the provisions of this Waiver Agreement:  (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 the 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 6.02.          Representations and Warranties. The representations and warranties
contained herein and in the Credit 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.


 


Section 6.03.          Loan Documents Unmodified. Except as otherwise specifically modified
by this Waiver Agreement, all terms and provisions of the Credit Agreement and
all other Loan Documents, as modified hereby, shall remain in full force and
effect. Nothing contained in this Waiver Agreement shall in any way impair the
validity or enforceability of the Loan Documents, as modified hereby or alter,
waive, annul, 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 Credit Agreement or any other Loan Document is and shall remain unchanged
and in full force and effect and the Credit 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 Waiver Agreement 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 Waiver Agreement 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 Waiver Agreement
are for convenience only and shall not affect the interpretation of this Waiver
Agreement.


 


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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 Waiver Agreement 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 Credit Agreement, this Waiver Agreement 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 Waiver Agreement, the Credit 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 WAIVER AGREEMENT, THE CREDIT 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 CREDIT AGREEMENT, THE
TERMS OF SECTION 12.3 OF THE CREDIT AGREEMENT SHALL APPLY TO THIS WAIVER
AGREEMENT.


 


Section 6.10.          RELEASE. THE BORROWERS EACH HEREBY REPRESENT AND WARRANT THAT AS OF THE DATE
OF THIS WAIVER AGREEMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR
COUNTERCLAIMS TO THE BORROWERS’ OBLIGATIONS UNDER THE CREDIT AGREEMENT OR ANY
OTHER LOAN DOCUMENT, INCLUDING THIS WAIVER AGREEMENT. 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 WAIVER AGREEMENT.


 


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 WAIVER AGREEMENT AND THE ABOVE RELEASE
ARE AND WILL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING ANY SUCH
DIFFERENCES OR ADDITIONAL FACTS.


 


[Signature
Pages Follow]


 


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IN
WITNESS WHEREOF, the parties have executed and delivered this Waiver Agreement
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 CORP.

  
	
   

  	
   

  
	
   

  	
  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

  
				



 

















 


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 Limited Waiver
Agreement dated as of October       , 2007, 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 October 11, 2007.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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 Limited Waiver Agreement dated as of October
11, 2007, 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 October 11, 2007.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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