Exhibit 10.3
FOURTH AMENDMENT TO FINANCING
AGREEMENT
AND WAIVER
THIS FOURTH AMENDMENT TO FINANCING
AGREEMENT AND WAIVER, dated as of May 27, 2005 (this “
Amendment ”), is made between CYBEX INTERNATIONAL,
INC., a New York corporation (the “ Borrower ”),
and THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation
(“ CIT ”).
RECITALS :
A. The Borrower and CIT are parties
to that certain Financing Agreement, dated as of July 16, 2003, as
amended (as amended, modified, restated or supplemented from time
to time, the “ Financing Agreement ”), pursuant
to which, among other things, CIT extended to the Borrower a
revolving credit and term loan facility.
B. The Borrower has requested: (i)
that the Financing Agreement be amended, (ii) that the Term Loan be
increased and (iii) CIT waive compliance with Paragraph 4.6 of the
Financing Agreement with respect to the Fiscal Year ended December
31, 2004.
C. CIT has agreed to such request,
upon the terms and subject to the conditions and limitations set
forth herein, and, to accomplish the foregoing, the Borrower and
CIT have agreed to execute this Amendment.
D. All capitalized terms used herein
without definition shall have the meanings ascribed to such terms
in the Financing Agreement as amended hereby, unless otherwise
defined herein.
AGREEMENTS
:
Accordingly, in consideration of the
premises and the mutual covenants contained herein, and for other
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENTS
1.1 The definitions of
“Anniversary Date”, “Domestic Letter of Credit
Sub-Line”, “Early Termination Fee”, “Line
of Credit”, “Standby Letter of Credit Sub-Line”
and “Term Loan” in Section 1 of the Financing
Agreement, Definitions , are hereby amended in their
entirety to read as follows:
“ Anniversary
Date shall mean June 30, 2008 and the same date in every
year thereafter.”
“ Documentary Letter of
Credit Sub-Line shall mean the commitment of CIT to assist
the Company in obtaining documentary Letters of Credit, pursuant to
Section 5 hereof, in an aggregate amount of
$6,000,000.00.”
“ Early Termination
Fee shall: (a) mean the fee CIT is entitled to charge the
Company in the event the Company terminates the Revolving Line of
Credit or this Financing Agreement on a date prior to an
Anniversary Date; and (b) be determined by multiplying the
Revolving Line of Credit by (x) one percent (1%) if the Early
Termination Date occurs on or before June 30, 2007; and (y) zero
percent (0%) if the Early Termination Date occurs
thereafter.”
“ Line of Credit
shall mean the aggregate commitment of CIT to (a) make Revolving
Loans pursuant to Section 3 of this Financing Agreement (b) assist
the Company in opening Letters of Credit pursuant to Section 5 of
this Financing Agreement and (c) make the Term Loan pursuant to
Section 4 of this Financing Agreement, in the aggregate amount
equal to $20,250,000.00.”
“ Standby Letter of
Credit Sub-Line shall mean the commitment of CIT to assist
the Company in obtaining standby Letters of Credit, pursuant to
Section 5 hereof, in an aggregate amount of
$6,000,000.00.”
“ Term Loan
shall mean the term loan in the principal amount of $6,250,000.00
made by CIT pursuant to, and repayable in accordance with, the
provisions of Section 4 of this Financing
Agreement.”
1.2 The following new definitions of
“Fourth Amendment” and “Fourth Amendment
Effective Date” are hereby inserted in Section 1 of the
Financing Agreement, Definitions , in the appropriate
alphabetical order:
“ Fourth
Amendment shall mean the Fourth Amendment to Financing
Agreement and Waiver, dated as of May 27, 2005, between the Company
and CIT.”
“ Fourth Amendment
Effective Date shall mean the meaning set forth in the
Fourth Amendment.”
1.3 Exhibit A to the Financing Agreement
is hereby deleted in its entirety and Exhibit A attached
hereto is inserted in lieu thereof
1.4 Paragraphs 4.2 and 4.3 of Section 4 of the
Financing Agreement, Term Loan , are hereby deleted in their
entirety and the following inserted in lieu thereof:
“ 4.2 Upon receipt of
such Term Loan Promissory Note on the Fourth Amendment Effective
Date, CIT hereby agrees to extend to the Company the Term Loan in
the principal amount of $6,250,000.00.
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4.3 The principal amount of the Term Loan shall be
repaid to CIT by the Company by: (i) eleven (11) equal quarterly
principal installments of $390,625.00 each, followed by (ii) one
(1) installment of $1,953,125.00, whereof the first installment
shall be due and payable on September 30, 2005 and the subsequent
installments shall be due and payable on the last day of each
calendar quarter thereafter until paid in full.”
1.5 The following new sentence is
hereby added at the end of Paragraph 6.8 of Section 6,
Collateral :
“Except that which may have
occurred on or prior to the Fourth Amendment Effective Date, the
Company agrees that it will not without CIT’s prior written
consent: (i) sell, license, assign, transfer or otherwise dispose
of any of the Company’s Patents, Trademarks, tradenames,
service marks, Copyrights, brand names, trade names, logos and
other trade designations, (ii) enter into any agreement which is
inconsistent with the Company’s duties under this Financing
Agreement, and (iii) take any action, or permit any action to be
taken by others subject to its control, including licensees, or
fail to take any action, which would affect the validity and
enforcement of the rights granted to CIT under this Financing
Agreement.”
1.6 Paragraph 7.9(g) of Section 7 of
the Financing Agreement, Representations, Warranties and
Covenants , is hereby deleted in its entirety and the following
inserted in lieu thereof:
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“(a)
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Declare or pay
any dividend or distributions of any kind on, or purchase, acquire,
redeem or retire, any of the capital stock or equity interest, of
any class whatsoever, whether now or hereafter outstanding (other
than the payment of accrued dividends and interest to UM Holdings
Ltd. upon the conversion of the Preferred Stock held by UM Holdings
Ltd. required in connection with the Common Stock Issuance;
provided, that such dividends and interest shall not exceed
$900,000 in the aggregate and shall be paid solely from the
proceeds of the Common Stock Issuance);”
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1.7 Paragraph 12.6(A) of Section 12
of the Financing Agreement, Miscellaneous , is hereby
deleted in its entirety and the following inserted in lieu
thereof:
“(A) if to CIT, at:
The CIT Group/Business Credit,
Inc.
900 Ashwood Parkway, Suite
610
Atlanta, Georgia 30338
Attn: Regional Credit
Manager
Fax No.: (770)
522-7673”
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1.8 The Financing Agreement and each
of the other Loan Documents are amended to provide that any
reference to the Financing Agreement in the Loan Documents or any
of the other Loan Documents shall mean the Financing Agreement as
previously amended and as amended
