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EXHIBIT 10.2
SEVENTH AMENDMENT TO
CREDIT AGREEMENT AND CONSENT TO ACQUISITION
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT TO ACQUISITION
(the "Amendment and Consent") is made and dated as of the 23rd day of July,
1998, by and among SANWA BANK CALIFORNIA ("Sanwa") and IMPERIAL BANK, as the
current Lenders under the Credit Agreement referred to below (and as the term
"Lenders" and capitalized terms not otherwise defined herein are used in the
Credit Agreement), SANWA, in its capacity as Agent for the Lenders, and EQUITY
MARKETING, INC., a Delaware corporation (the "Company").
RECITALS
A.Pursuant to that certain Credit Agreement dated as of January 26,
1996, by and among the Agent, the Lenders and the Company (as amended from time
to time, the "Credit Agreement"), the Lenders agreed to extend credit to the
Company on the terms and subject to the conditions set forth therein.
B.The Company desires to acquire substantially all of the assets of
Contract Marketing, Inc., a Massachusetts corporation ("CMI"), and U.S. Import &
Promotions Co., a Florida corporation ("USIP"), used in the operation of each
such corporation's promotional products business (the "CMI/USIP Acquisitions")
on the terms and subject to the conditions set forth in those certain Asset
Purchase Agreements, each dated as of July 23, 1998 by and among the Company and
the respective seller and the sole shareholders of each of CMI and USIP (the
"Acquisition Agreements") and has requested the Agent and the Lenders to consent
to the Acquisitions as required pursuant to the Credit Agreement.
C.The Agent and the Lenders desire to set forth herein the terms and
conditions of such consent and, with the agreement of the Company, to amend the
Credit Agreement in certain respects as set forth more particularly below.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Consent to CMI/USIP Acquisitions. On the terms and subject to the
conditions set forth herein, effective as of the Effective Date (as defined in
Paragraph 8 below) the Agent and each of the Lenders hereby consent to the
CMI/USIP Acquisitions on the terms set forth in the Acquisition Agreements.
2. Modification of Maturity Date. To reflect the agreement of the
parties hereto to modify the current Maturity Date, effective as of the
Effective Date the definition of "Maturity Date" set forth in Paragraph 12 of
the Credit Agreement is hereby amended to read in its entirety as follows:
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"'Maturity Date' shall mean the earlier of: (a) December 31, 1999, and
(b) the date the Lenders terminate their obligation to make further Loans
hereunder pursuant to Paragraph 9 above."
3. Pricing Modification. To reflect the agreement of the parties to
modify the pricing applicable to Loans outstanding under the Credit Agreement,
effective as of the Effective Date:
(a)The definition of "Applicable COF Rate" as set forth in
Paragraph 12 of the Credit Agreement is hereby amended in its entirety to read
as follows:
"'Applicable COF Rate' shall mean with respect to any Interest Period
for any COF Loan, the COF Rate for such Interest Period plus the Applicable COF
Spread."
(b) Subparagraph (2) of Paragraph 1(b) of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(2) with respect to each Loan which is a Reference Rate Loan, at
the Applicable Reference Rate during the applicable computation period."
(c) The following new definitions are hereby added, in correct
alphabetical order, to Paragraph 12 of the Credit Agreement to read in their
entirety as follows:
"'Applicable Reference Rate' shall mean for any interest
calculation period for any Reference Rate Loan, the daily average Reference Rate
in effect during such calculation period plus the Applicable Reference Rate
Spread."
"'Applicable COF Spread' shall mean: (a) to but not
including July 23, 1998, one and three quarters percent (1.75%),
(b) from and including July 23, 1998 to and including the date of
receipt by the Agent of the covenant compliance certificate
required to be delivered pursuant to Paragraph 7(a)(3) above in
connection with the delivery of the Company's annual financial
statements pursuant to Paragraph 7(a)(1) above for the fiscal
year ending December 31, 1998, two and one quarter of one percent
(2.25%), and (c) thereafter, two percent (2.00%)."
"'Applicable Reference Rate Spread' shall mean: (a) to but
not including July 23, 1998, zero percent (0.00%), (b) from and
including July 23, 1998 to and including the date of receipt by
the Agent of the covenant compliance certificate required to be
delivered pursuant to Paragraph 7(a)(3) above in connection with
the delivery of the Company's annual financial statements
pursuant to Paragraph 7(a)(1) above for the fiscal year ending
December 31, 1998, one quarter of one percent (0.25%), and (c)
thereafter, zero percent (0.00%)."
4. New Leased Premises. To reflect the agreement of the Agent and the
Lenders to permit the Company to enter into a new lease and to consolidate its
existing facilities, effective as of the Effective Date:
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(a) Paragraph 6(b) is hereby amended to add the phrase "and
subsequent replacement leases entered into consistent with the terms of this
Agreement" immediately prior to the period at the end thereof.
(b) Subparagraph (8) of Paragraph 8(b) is hereby amended to read
in its entirety as follows:
"(8) Indebtedness incurred in connection with occupancy
leases requiring rental and other payments in an amount not to exceed
$2,500,000.00 in the aggregate during any fiscal year;"
5. Financial Covenants. To reflect the agreement of the parties to
modify certain of the financial covenants contained in the Credit Agreement and
to add an additional financial covenant thereto, effective as of the Effective
Date:
(a) Paragraph 8(i) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"8(i) Minimum Tangible Net Worth. Permit: (1) the Company's tangible net
worth as of the last day of any calendar quarter to be less than the sum
of: (i) for each calendar quarter ending prior to the consummation of the
CMI/USIP Acquisitions, $20,000,000.00 and for each calendar quarter
thereafter $9,700,000.00, plus, in each case (ii) on a cumulative basis
(with no deduction for losses) for each calendar quarter after September
30, 1998, (y) seventy-five percent (75%) of the Company's net profit after
taxes during such calendar quarter plus (z) seventy-five percent (75%) of
the net proceeds of any additional equity shares or subordinated debt
issued by the Company; or (2) the Company's consolidated tangible net worth
as of the last day of any calendar quarter to be less than the sum of (i)
for each calendar quarter ending prior to the consummation of the CMI/USIP
Acquisitions, $20,000,000.00 and for each calendar quarter thereafter
$9,700,000.00, plus, in each case (ii) on a cumulative basis (with no
deduction for losses) for each calendar quarter after September 30, 1998,
(y) seventy five percent (75%) of the Company's consolidated net profit
after taxes during such calendar quarter plus (z) seventy five percent
(75%) of the net proceeds of any additional equity shares or subordinated
debt issued by the Company or its subsidiaries."
(b) Paragraph 8(j) is hereby amended to read in its entirety as
follows:
"8(j) Ratio of Total Liabilities to Net Worth. (1) Permit the Company's
ratio of total liabilities (including outstanding letters of credit) to
tangible net worth or the Company's ratio of consolidated total liabilities
(including outstanding letters of credit) to consolidated tangible net
worth to be more than: (i) as of the last day of each calendar quarter
ending prior to the consummation of the CMI/USIP Acquisitions, 3.00:1.00,
(ii) if the consummation of the CMI/USIP Acquisitions shall have occurred
prior to such date, as of September 30, 1998, 6.50:1.00, (iii) if the
Consummation of the CMI/USIP Acquisitions shall have occurred prior to such
date, as of December 31, 1998, 3.70:1.00, and (iv) if the consummation of
the CMI/USIP Acquisition shall have occurred, as of the last day of each
calendar quarter commencing March 31, 1999, 3.00:1.00; or
(2) permit the Company's ratio of total liabilities (excluding outstanding
letters of credit) to tangible net worth or the Company's ratio of
consolidated total liabilities (excluding outstanding letters of credit) to
consolidated tangible net worth to be more than: (i) as
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of the last day of each calendar quarter ending prior to the consummation
of the CMI/USIP Acquisitions, 2.25:1.00, (ii) if the consummation of the
CMI/USIP acquisitions shall have occurred prior to such date, as of
September 30, 1998, 6.20:1.00, (iii) if the consummation of the CMI/USIP
Acquisitions shall have occurred prior to such date, as of December 31,
1998, 3.50:1.00, and (iv) if the consummation of the CMI/USIP Acquisition
shall have occurred, as of the last day of each calendar quarter commencing
March 31, 1999, 2.75:1.00."
(c) Paragraph 8(k) is hereby amended to read in its entirety as
follows:
"8(k) Minimum Current Ratio. Permit the Company's ratio of current assets
to current liabilities (excluding indebtedness permitted under paragraph
8(b)(7) above), or the Company's ratio of consolidated current assets to
consolidated current liabilities (excluding indebtedness permitted under
paragraph 8(b)(7) above), to be less than: (1) as of the last day of each
calendar quarter ending prior to the consummation of the CMI/USIP
Acquisitions, 1.25:1.00, (2) if the consummation of the CMI/USIP
Acquisitions shall have occurred prior to such date, as of September 30,
1998, 1.00:1.00, (3) if the consummation of the CMI/USIP Acquisitions shall
have occurred prior to such date, as of December 31, 1998, 1.00:1.00, and
(4) if the consummation of the CMI/USIP Acquisition shall have occurred, as
of the last day of each calendar quarter commencing March 31, 1999,l
1.15:1.00."
(d) Paragraph 8(l) is hereby amended to read in its entirety as
follows:
"8(l) Minimum Coverage Ratios. Permit as of the last day of any
calendar quarter:
(1) The ratio of: (i) EBITDA of the Company during such
quarter and the immediately preceding three calendar quarters to
(ii) interest expense of the Company during such four calendar
quarters, to be less than 3.00:1.00, or
(2) The ratio of (i) EBITDA of the Company and its
consolidated subsidiaries during such quarter and the immediately
preceding three calendar quarters to (ii) interest expense of the
Company and its consolidated subsidiaries during such four
calendar quarters to be less than 3.00:1.00, or
(3) The ratio of (i) funded debt of the Company during such
quarter to (ii) EBITDA of the Company during such quarter and the
immediately preceding three calendar quarters to be less than (y)
2.00:1.00 for the calendar quarter ending September 30, 1998, or
(z) 1.75:1.00 for any calendar quarter thereafter, or
(4) The ratio of (i) funded debt of the Company and its
consolidated subsidiaries during such quarter to (ii) EBITDA of
the Company and its consolidated subsidiaries during such quarter
and the immediately preceding three calendar quarters to be less
than (y) 2.00:1.00 for the calendar quarter ending September 30,
1998, or (z) 1.75:1.00 for any calendar quarter thereafter."
(e) The following new definitions are hereby added, in correct
alphabetical order, to Paragraph 12 of the Credit Agreement to read in their
entirety as follows:
"'CMI/USIP Acquisitions' shall mean the acquisition by the
Company of substantially of the assets of Contract Marketing, Inc., a
Massachusetts corporation, and U.S. Import & Promotions Co., a Florida
corporation, used in the operation of each such corporation's promotional
products business on the terms and subject to the conditions set forth in those
certain asset purchase agreements, each dated as of July 23, 1998 by and among
the Company and the respective seller and the sole shareholders of each of the
sellers."
"'Funded Debt' shall mean for any person for any period all
indebtedness for borrowed money outstanding during such period.
6. Reaffirmation of Security Agreement. The Company hereby affirms and
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agrees that (a) the execution and delivery by the Company of and the performance
of its obligations under this Amendment and Consent shall not in any way amend,
impair, invalidate or otherwise affect any of the obligations of the Company or
the rights of the Secured Parties under the Security Agreement or any other
document or instrument made or given by the Company in connection therewith, (b)
the term "Obligations" as used in the Security Agreement includes, without
limitation, the Obligations of the Company under the Credit Agreement as amended
hereby and (c) the Security Agreement remains in full force and effect.
7. Reaffirmation of Guaranty. By executing this Amendment and Consent
as provided below, Corinthian Marketing, Inc. ("Corinthian") affirms and agrees
that (a) the execution and delivery by the Company of and the performance of its
obligations under this Amendment and Consent shall not in any way amend, impair,
invalidate or otherwise affect any of the obligations of the Corinthian or the
rights of the Agent and the Lenders under that certain Continuing Guaranty and
under that certain Subsidiary Security Agreement, each dated as of April 24,
1998, executed by Corinthian or any other document or instrument made or given
by the Corinthian in connection therewith, (b) the term "Obligations" as used in
the Loan Documents includes, without limitation, the Obligations of the Company
under the Credit Agreement as amended hereby and (c) such Continuing Guaranty
and Subsidiary Security Agreement remain in full force and effect.
8. Effective Date. This Amendment and Consent shall be effective as of
the date (the "Effective Date") that the Agent receives each of the following:
(a) A duly executed copy of this Amendment and Consent, which may
be a counterpart copy, from each party hereto;
(b) A copy of each of the final form of the Acquisition
Agreements, certified by an Approved Financial Officer as complete and correct;
(c) From the Company, such corporate resolutions, incumbency
certificates and other authorizations as the Agent may request; and
(d) For distribution to the Lenders in accordance with their
respective Percentage Shares, in immediately available funds, an amendment fee
of $25,000.00.
If the CMI/USIP Acquisitions shall not have been consummated and the Effective
Date occurred on or before August 15, 1998, then this Amendment and Consent
shall, at the option of the Agent and the Lenders as evidenced by a notice to
such effect given by the Agent to the Company, terminate and be of no further
force or effect.
9. Representations and Warranties. Each of the Company and Corinthian,
as to itself, hereby represents and warrants to the Agent and the Lenders as
follows:
(a) Such Person has the corporate power and authority and the
legal right to execute, deliver and perform this Amendment and Consent and has
taken all necessary corporate action to authorize such execution, delivery and
performance.
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(b) This Amendment and Consent has been duly executed and
delivered on behalf of such Person and constitutes the legal, valid and binding
obligation of such Person, enforceable against such Person in accordance with
its respective terms.
(c) At and as of the date of execution hereof and at and as of
the Effective Date and both prior to and after giving effect hereto: (1) the
representations and warranties of such Person contained in the Credit Agreement
and the other Loan Documents to which such Person is party are accurate and
complete in all respects, and (2) there has not occurred an Event of Default or
Potential Default.
(d) Upon consummation of the closing of the CMI/USIP
Acquisitions, the Company will have acquired and will own free and clear of any
right, title, claim or interest, by way of security interest or otherwise all
registered patents, trademarks and copyrights included in the "Intellectual
Property" (as defined n the Acquisition Agreements), which registered patents,
trademarks and copyrights are accurately and completely described on Exhibit A
attached hereto (the "Registered Intellectual Property") and, with respect to
all Registered Intellectual Property registered in the United States and such
other Registered Intellectual Property as the Lenders may request, will promptly
take such actions as are necessary to: (1) reflect such ownership interest in
all applicable filing offices, including, without limitation, the U.S. Patent
and Trademark Office, and (2) record in such offices such documents, instruments
and agreements as are necessary to reflect the first priority, perfected
security interest of the Agent for the benefit of the Lenders therein.
10. No Other Amendment. Except as expressly amended hereby, the Loan
Documents shall remain in full force and effect as written and amended to date.
11. Counterparts. This Amendment and Consent may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Consent to be executed as of the day and year first above written.
EQUITY MARKETING, INC.,
a Delaware corporation
By /s/ X.X. Xxxxxx
-------------------------
Name X.X. Xxxxxx
-------------------------
Title Chairman, Co-CEO
-------------------------
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SANWA BANK CALIFORNIA, as Agent and
as a Lender
By /s/ X.X. Xxxxxxx
_________________________________
Name X.X. Xxxxxxx
_______________________________
Title VP
______________________________
IMPERIAL BANK, as a Lender
By /s/ Xxxx Xxxxxx
_________________________________
Name Xxxx Xxxxxx
_______________________________
Title SVP
______________________________
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ACKNOWLEDGED AND AGREED TO as of the day and year first above written:
CORINTHIAN MARKETING, INC.
a Delaware corporation
By /s/ X.X. Xxxxxx
_______________________________
Name X.X. Xxxxxx
_____________________________
Title Chairman, Co-CEO
____________________________
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