Exhibit 10.5
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of July __, 2001, by and among ONKYO AMERICA, INC., an Indiana
corporation, as successor by merger to Onkyo Acquisition Corporation, an Indiana
corporation (the "Company"), the financial institutions that are or may from
time to time become parties to the Credit Agreement (as defined below) (together
with their respective successors and assigns, the "Lenders"), and GMAC BUSINESS
CREDIT, LLC, a Delaware limited liability company, as agent ("Agent") for the
Lenders.
BACKGROUND
A. Company, Agent and Lenders entered into a Credit Agreement dated as
of August 31, 2000 (as amended from time to time, including as amended by this
Amendment, the "Agreement").
B. The parties wish to amend the Agreement as set forth herein.
THEREFORE, in consideration of the mutual promises and agreements of
the parties hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is acknowledged, the parties agree as
follows:
TERMS AND CONDITIONS
1. Incorporation of the Agreement. All capitalized terms which are not defined
hereunder shall have the same meanings as set forth in the Agreement, and the
Agreement, to the extent not inconsistent with this Amendment, is incorporated
into this Amendment by this reference as though the same were set forth in its
entirety. To the extent any terms and provisions of the Agreement are
inconsistent with this Amendment, such terms and provisions in the Agreement
shall be deemed superseded hereby. Except as specifically set forth in this
Amendment, the Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto.
2. Excess Availability. The excess Availability requirement as set forth in
Section 10.6.5 of the Agreement (the "Availability Covenant"), is temporarily
reduced from $625,000 to $375,000 through the earlier of September 30, 2001 or
the dates set forth below. Through September 30, 2001, the Availability Covenant
shall increase as follows:
(a) At a rate of $75,000 per month commencing August 1, 2001;
(b) By an amount equal to the Company's fiscal 2000 federal income tax
refund on the first business day after Company's receipt
of such refund; and
(c) By an amount of the net sale proceeds received by the
Company from the sale of the Company's residential
real estate located in Columbus, Indiana, on the
first business day after Company's receipt of such
proceeds;
provided, however, that the increase in the Availability Covenant from items (b)
and (c) above shall not exceed $250,000 in the aggregate. From and after October
1, 2001, the Availability Covenant shall be $850,000, increasing by $75,000 per
month commencing November 1, 2001 and continuing on the first day of each month
thereafter until the Availability Covenant is $1,500,000.00.
3. Condition Precedent. This Amendment shall be ineffective unless and
until Company receives $275,000 of additional equity or _____________________
subordinated debt on terms acceptable to Agent.
4. Representations, Covenants and Warranties; No Default. Except for the
representations and warranties of Company made as of a particular date, the
representations, covenants and warranties set forth in Section 9 of the
Agreement shall be deemed remade as of the date hereof by Company; provided,
however, that any and all references to the Agreement in such representations
and warranties shall be deemed to include this Amendment. Except for financial
covenant defaults referenced in Agents' April 10, 2001 letter to Company, no
Event of Default has occurred and is continuing and no event has occurred and is
continuing which, with the lapse of time, the giving of notice, or both, would
constitute such an Event of Default under the Agreement.
5. Fees and Expenses. The Company agrees to pay on demand all costs and expenses
of or incurred by Agent and Lenders in connection with the evaluation,
negotiation, preparation, execution and deliver of this Amendment and the other
instruments and documents executed and delivered in connection with the
transactions described herein (including the filing or recording thereof),
including, but not limited to, the fees and expenses of counsel for the Agent
and any future amendments to the Agreement.
6. Effectuation. The amendments to the Agreement contemplated by this Amendment
shall be deemed effective immediately upon the full execution of this Amendment
and without any further action required by the parties hereto. There are no
conditions precedent or subsequent to the effectiveness of this Amendment.
7. Continuing Effect. Except as otherwise specifically set forth herein, the
provision of the Agreement shall remain in full ------------------ force and
effect.
8. Counterparts. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, and ____________________ all of
which together shall constitute one and the same instrument.
ONKYO AMERICA, INC. f/k/a
Onkyo Acquisition Corporation
By: -----------------------------------------------
Name: -----------------------------------------------
Title: -----------------------------------------------
GMAC BUSINESS CREDIT, LLC
as Agent
By: -----------------------------------------------
0ame: -----------------------------------------------
Title: -----------------------------------------------
GMAC BUSINESS CREDIT, LLC
as Lender
By: --------------------------------------------------
Name: --------------------------------------------------
Title: --------------------------------------------------
NATIONAL CITY BANK OF INDIANA
as Lender
By: --------------------------------------------------
Name: --------------------------------------------------
Title: --------------------------------------------------
OFFICERS' CERTIFICATE
The undersigned, a duly authorized officer of ONKYO AMERICA, INC. f/k/a Onkyo
Acquisition Corporation, INC. ("Company"), certifies to GMAC Business Credit,
LLC ("Agent") as follows:
1. Company has requested that Agent and Lenders amend the Credit
Agreement dated August 31, 2000 (as amended, the " Agreement") as provided in
the Fourth Amendment to Credit Agreement dated as of July __, 2001 (the
"Amendment").
2. No further approvals or authorizations are necessary for Company to
execute the Amendment or any notes, agreements or documents executed or
delivered in connection with the Amendment.
---------------,
Title: _________________________
Dated: July ___, 2001
REAFFIRMATION OF GUARANTIES AND LOAN DOCUMENTS
The undersigned (the "Guarantors") hereby acknowledge and consent to the
amendment of the Agreement contained in the foregoing Fourth Amendment to Credit
Agreement, acknowledge and reaffirm their obligations owing to Agent and Lenders
under those certain Guaranties dated August 31, 2000 (the "Guaranties) and any
other Loan Documents to which they are a party, and agree that such Guaranties
and Loan Documents are and shall remain in full force and effect. Although
Guarantors have been informed of the matters set forth herein and have
acknowledged and agreed to the same, Guarantors understand that Lenders have no
obligation to inform Guarantors of such matters in the future or to seek the
Guarantors' acknowledgment or agreement to future amendments or waivers, and
nothing herein shall create such a duty.
GLOBAL TECHNOVATIONS, INC.
By:
Title:
ONKYO AMERICA SPECIALTY PRODUCTS, INC.
By:
Title:
