EX-4.5 9 x88534a2exv4w5.htm EX-4.5 exv4w5
         
Exhibit 4.5
SECOND AMENDMENT AND LIMITED WAIVER TO THE CREDIT AGREEMENT
          SECOND AMENDMENT AND LIMITED WAIVER, dated as of October 29, 2010 (this “Amendment and Waiver”), to the CREDIT AGREEMENT, dated as of November 10, 2009, as amended by the First Amendment dated as of March 11, 2010 (the “Credit Agreement”), among Colt Defense LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial institutions or entities from time to tithe parties to this Agreement (the “Lenders”) and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Administrative Agent”). Unless otherwise defined herein, capitalized terms which are defined in the Credit Agreement are used herein as therein defined.
W I T N E S S E T H:
          WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Credit Agreement;
          WHEREAS, the Borrower has requested an amendment and a waiver with respect to the Credit Agreement as set forth herein; and
          WHEREAS, the Lenders and the Administrative Agent are willing to agree to such amendment and waiver with respect to the Credit Agreement, subject to the terms and conditions set forth herein;
          NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein, the Borrower, the Lenders and the Administrative Agent hereby agree as follows:
          1. Waiver. Notwithstanding anything in the Credit Agreement to the contrary, the Lenders hereby waive compliance with the requirements of Section 7.1 of the Credit Agreement, for all test dates beginning with the fiscal quarter ended September 30, 2010 (the “Waiver Period”).
          2. Amendment to Section 1.1 (Defined Terms). Section 1.1 of the Credit Agreement is hereby amended by replacing the definition of “L/C Commitment” with the following definition:
          “L/C Commitment”: $10,000,000.
          3. Amendment to Section 7.1 (Financial Condition Covenants). Section 7.1 of the Credit Agreement is hereby deleted and replaced in its entirety with the following:
          “7.1. [Reserved].”
          4. Revolving Commitment Reduction. Effective on the Second Amendment Effective Date (as defined below), the aggregate Revolving Commitments shall automatically be permanently reduced to $10,000,000, such reduction to be allocated to the Lenders in the manner described in Section 2.13(a) of the Credit Agreement.

 

 

          5. Conversion of Facilities to $10,000,000 Letter of Credit Facility. Notwithstanding anything to the contrary in the Credit Agreement, unless otherwise agreed by the Required Lenders, (a) the Borrower shall not be permitted to borrow Term Loans or obtain Revolving Commitment Increases pursuant to Section 2.3 of the Credit Agreement, (b) the Borrower shall not be permitted to borrow Revolving Loans for any purpose other than to reimburse the amount of any draft paid under any Letter of Credit in accordance with Section 3.5 of the Credit Agreement and (c) the aggregate outstanding amount of L/C Obligations in respect of Letters of Credit issued to support obligations owing to suppliers or vendors or for similar purposes (“Specified L/C Obligations”) shall not at any time exceed $1,000,000. For the avoidance of doubt, (x) the limitation in clause (c) above shall not apply to Letters of Credit with respect to L/C Obligations other than Specified L/C Obligations and (y) the outstanding L/C Obligations as of the date of this Amendment and Waiver listed on Annex I hereto shall not be deemed Specified L/C Obligations. Concurrently with the delivery of any financial statements pursuant to Section 6.1 of the Credit Agreement, a Responsible Officer of the Borrower shall submit a certificate to the Administrative Agent listing each Letter of Credit outstanding as of the date of such certificate, together with a description in reasonable detail of the amount and purpose of each such Letter of Credit and a calculation of the Specified L/C Obligations. Failure to comply with the provisions of this Section 5 shall constitute an Event of Default for the purposes of the Credit Agreement and the other Loan Documents. The Credit Agreement shall be deemed to be amended to the extent necessary to reflect the provisions of this Section 5.
          6. Effectiveness. This Amendment and Waiver shall become effective on the date (the “Second Amendment Effective Date”) on which (a) the Administrative Agent and the Issuing Lender duly execute a counterpart of this Amendment and Waiver and the Administrative Agent notifies the Borrower that it has received counterparts of this Amendment and Waiver duly executed by the Company and the Required Lenders and (b) the Administrative Agent receives a consent fee for the account of each Lender equal to 0.75% of each Lender’s Revolving Commitment; provided that no Revolving Loans are outstanding on such date.
          7. Continuing Effect of the Credit Agreement. This Amendment and Waiver shall not constitute an amendment of any other provision of the Credit Agreement not expressly referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Borrower that would require a waiver or consent of the Lenders or the Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect.
          8. Counterparts. This Amendment and Waiver may be executed by the parties hereto in any number of separate counterparts (including by email or telecopy), each of which shall be deemed to be an original, and all of which taken together shall be deemed to constitute one and the same instrument.
          9. GOVERNING LAW. THIS AMENDMENT AND WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[signature page follows]

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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.
         
  COLT DEFENSE LLC
 		  
  By:   /s/ Jeffrey G. Grady    
    Name:   Jeffrey G. Grady   
    Title:   Senior Vice President and General Counsel   
 
  JPMORGAN CHASE BANK, NA., as Administrative Agent, as Issuing Lender and as a Lender
 		  
  By:   /s/ Matthew H. Massie    
    Name:   Matthew H. Massie   
    Title:   Managing Director   
 
  MORGAN STANLEY BANK, N.A., as a Lender
 		  
  By:   /s/ S.E. Saxe    
    Name:   S.E. Saxe   
    Title:   Authorized Signatory   

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Annex I
                                                 
JPM       Liab           Expiry /                   Auto   Final
Reference   Liab   Outstanding   Beneficiary   Release   Maturity           Purpose   Notification   Extension   Expiry
Number   Currency   Amount   Consent   Date   Date   Beneficiary Name   Purpose Code   Category   Period   Period   Date
TFTS- 821065
  USD     25,626.63     N   MAR 30, 2010   MAR 29, 2011   INTESA SANPAOLO SPA   OTHER OBLIGATIONS (TRADE)   FINANCIAL   60 DAYS   12 MONTHS   JUL 30, 2012
TFTS- 851474
  USD     211,127.00     N   JUN 07, 2010   JUN 04, 2011   COMMISSIONER, CONNECTICUT   OTHER OBLIGATIONS (TRADE)   FINANCIAL   120 DAYS   12 MONTHS   —
TFTS-
  USD     95,742.00     N   MAR 19, 2010   DEC 14, 2010   BANCO DE CHILE   PERFORMANCE BONDS   PERFORMANCE   —   —   —
TFTS-
  USD     43,616.61     N   SEP 17, 2010   SEP 15, 2011   BANCO PICHINCHA C.A.   PERFORMANCE BONDS   PERFORMANCE   —   —   —
TFTS- 823542
  USD     362,016.90     N   MAR 26, 2010   MAR 25, 2011   BANGKOK BANK PUBLIC COMPANY LIMITED   PERFORMANCE BONDS   PERFORMANCE   60 DAYS   12 MONTHS   —
TFTS-
  USD     12,239.00     N   MAY 12, 2010   MAY 10, 2011   NATIONAL BANK OF EGYPT   PERFORMANCE BONDS   PERFORMANCE   30 DAYS   12 MONTHS   MAY 10, 2012
TFTS-
  USD     9,090.83     N   MAY 19, 2010   MAY 13, 2011   NATIONAL BANK OF EGYPT   PERFORMANCE BONDS   PERFORMANCE   30 DAYS   12 MONTHS   MAY 13, 2012
 
  Total     759,458.97