Exhibit 10.4
FIRST AMENDMENT TO
------------------
AMENDED AND RESTATED TERM LOAN AGREEMENT
----------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT (this
"Agreement"), dated as of March 18, 2002, is entered into by and between SVI
SOLUTIONS, INC., a Delaware corporation ("Borrower"), and UNION BANK OF
CALIFORNIA, N.A., a California banking corporation ("Lender"), with reference to
the following facts:
RECITALS
--------
A. Borrower and Lender are parties an Amended and Restated Term Loan
Agreement, dated as of June 30, 2001 (the "Loan Agreement"), pursuant to which
the Lender has provided the Term Loan to Borrower.
B. The payment performance of Borrower's Obligations to Lender under
the Loan Agreement are secured by certain personal property Collateral of
Borrower under the Collateral Documents entered into in connection with the Loan
Agreement.
C. To facilitate the Softline Transaction, Borrower has requested that
Lender agree to release Lender's Lien on each of (i) Borrower's holdings of
shares of the capital stock of Divergent (collectively, the "Divergent Shares")
and (ii) the IBIS Note and the Integrity Shares (the Divergent Shares, the IBIS
Note and the Integrity Shares hereinafter being referred to collectively as the
"Released Collateral"), so that Borrower can sell the Released Collateral to
Softline free and clear of Lender's Lien.
D. Lender is willing to release its Lien on the Released
Collateral on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINED TERMS. All initially capitalized terms used in this
Amendment (including, without limitation, in the Recitals hereto) shall have the
respective meanings specified in the Loan Agreement.
2. RELEASE OF LIEN ON RELEASED COLLATERAL. Lender hereby releases its
Lien on all of the Released Collateral. In furtherance of such agreement, Lender
hereby agrees to deliver to Borrower the original certificates evidencing the
Divergent Shares, the original IBIS Note and the certificates evidencing the
Integrity Shares to Borrower, in each case together with all endorsements
necessary to negotiate such documents to Borrower or its order.
3. CONDITIONS PRECEDENT. The effectiveness of Lender's agreement
hereunder to release its lien on the Released Collateral shall be subject to the
prior satisfaction of each of the following conditions:
(i) THIS AMENDMENT. Lender shall have received this Amendment,
duly executed by Borrower;
(ii) ACKNOWLEDGEMENT OF SUBSIDIARY GUARANTORS. The Subsidiary
Guarantors shall have executed the Acknowledgement of Subsidiary
Guarantors form attached to the end of this Amendment;
(iii) EVIDENCE OF CONSUMMATION OF SOFTLINE TRANSACTION. Lender
shall have received satisfactory evidence of Borrower's consummation of
the Softline Transaction.
(iv) PLEDGE OF BORROWER SHARES. Borrower shall enter into an
amendment to the Pledge Agreement, in form and substance satisfactory
to Lender, by which Borrower shall pledge to Lender, and grant Lender a
Lien on all of Borrower's right, title and interest in and to the
Softline Pledged Shares; and
(v) CANCELLATION OF SOFTLINE NOTE. Lender shall have received
satisfactory evidence that Softline has cancelled the Softline Note and
excused Borrower from its obligation to repay the Indebtedness of
Borrower to Softline evidenced by the Softline Note.
4. NO OTHER AMENDMENTS. Except as expressly amended hereby, the Loan
Agreement shall remain unaltered and in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, and all of which,
taken together, shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly authorized officers as of the date first above written.
SVI SOLUTIONS, INC.,
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
UNION BANK OF CALIFORNIA, N.A.,
a California banking corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
2
ACKNOWLEDGEMENT OF SUBSIDIARY GUARANTORS
----------------------------------------
The undersigned hereby (a) ratify and reaffirm all of their obligations
to Lender under the Subsidiary Guaranty, (b) consent to the execution and
delivery by Borrower of the Amendment to which this Acknowledgement of
Subsidiary Guarantors is attached and (c) confirm that the Subsidiary Guaranty
remains in full force and effect. The undersigned agree that the execution of
this Acknowledgement of Subsidiary Guarantors is not necessary for the continued
validity and enforceability of the Subsidiary Guaranty, but is executed to
induce Lender to enter into the Amendment.
Dated: As of March 18, 2002.
SABICA VENTURES, INC.,
a California corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SVI RETAIL, INC.,
a Delaware corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SVI TRAINING PRODUCTS, INC.,
a California corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
3
FIRST AMENDMENT TO AMENDED AND RESTATED PLEDGE AGREEMENT
--------------------------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED PLEDGE AGREEMENT (this
"Agreement"), dated as of March 18, 2002, is entered into by and between the
corporations listed on the signature pages hereto (each a "Grantor" and
collectively, "Grantors"), jointly and severally, and UNION BANK OF CALIFORNIA,
N.A., a California banking corporation ("Secured Party"), with reference to the
following facts:
RECITALS
--------
A. Grantors and Secured Party are parties an Amended and Restated
Pledge Agreement, dated as of July 10, 2001 (the "Pledge Agreement"), pursuant
to which Grantors pledged to Secured Party, and granted Secured Party a
continuing first-priority security interest in, the Pledged Collateral as
security for the payment and performance of the Obligations.
B. Borrower and Secured Party are entering into a First Amendment to
Amended and Restated Term Loan Agreement of even date herewith (the "Loan
Agreement Amendment"), pursuant to which Secured Party shall release its Lien on
the Divergent Shares and certain other assets of Borrower.
C. It is a condition precedent to the effectiveness of the Loan
Agreement Amendment that Grantors enter into this Agreement with Lender, by
which the parties shall amend SCHEDULE 1 to remove the Divergent Shares from the
list of Pledged Securities and to add the Softline Pledged Shares to the list of
Pledged Securities and as part of the Pledged Collateral.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINED TERMS. All initially capitalized terms used in this
Amendment (including, without limitation, in the Recitals to this Amendment)
without definition shall have the respective meanings specified in the Pledge
Agreement.
2. AMENDMENT TO DEFINITION OF "PLEDGED SECURITIES". SECTION 1 of the
Pledge Agreement is hereby amended such that the definition of "Pledged
Securities" shall read in full as follows:
"PLEDGED SECURITIES" means: (a) all shares of capital stock of
Borrower identified on SCHEDULE 1 hereto; (b) any and all shares of
capital stock of all existing and future Domestic Subsidiaries of any
Grantor, nor or hereafter owned by any Grantor (the existing Domestic
Subsidiaries of each Grantor, existing on the date hereof, are listed
below such Grantor's name on SCHEDULE 1 hereto); (c) 65% of the shares
of capital stock of all existing and future Foreign Subsidiaries of any
Grantor, (OTHER THAN the Divergent Shares) now or hereafter owned by
such Grantor (the existing Foreign Subsidiaries of each Grantor other
than Divergent are listed below such Grantor's name on SCHEDULE 1
hereto); (d) any and all securities now or hereafter issued in
substitution, exchange or replacement for any of the foregoing shares,
or with respect thereto; (e) any and all warrants, options or other
rights to subscribe to or acquire any additional capital stock of the
existing Subsidiaries listed on SCHEDULE 1 hereto, PROVIDED that, in
the case of any Foreign Subsidiary of any Grantor, OTHER THAN
divergent, such warrants, options or other rights would not cause more
than 65% of the shares of capital stock of such Foreign Subsidiary to
be Pledged Collateral; and (f) subject to the percentage limitation
applicable under clause (c) above to the pledge and security interest
granted hereunder in the shares of capital stock of Foreign
Subsidiaries of any Grantor, OTHER THAN Divergent, any and all equity
interests and the Certificates or other written evidences representing
such equity interests and any interest of such Grantor in the entries
on the books of any financial intermediary pertaining thereto now or
hereafter acquired by such Grantor in any existing or future Subsidiary
of such Grantor.
3. AMENDMENT TO SCHEDULE 1. SCHEDULE 1 to the Pledge Agreement is
hereby amended to read in full as set forth on SCHEDULE 1 to this Amendment.
4. NO OTHER AMENDMENTS. Except as expressly amended hereby, the Pledge
Agreement shall remain unaltered and in full force and effect.
5. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, and all of which,
taken together, shall constitute but one and the same agreement.
2
IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly authorized officers as of the date first above written.
"Grantors"
SVI SOLUTIONS, INC.,
a Delaware corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SABICA VENTURES, INC.,
a California corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SVI RETAIL, INC.,
a Delaware corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SVI TRAINING PRODUCTS, INC.,
a California corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
ACCEPTED AND AGREED TO:
UNION BANK OF CALIFORNIA, N.A.,
a California banking corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
3
SCHEDULE 1 TO AMENDED AND RESTATED PLEDGE AGREEMENT
---------------------------------------------------
PLEDGE SECURITIES
-----------------
GRANTOR: SVI SOLUTIONS, INC.
-------
Stock
Stock Certificate Percentage of
Issuer Class of Stock No(s) Number of Shares Ownership
------ -------------- ----- ---------------- ---------
SVI Solutions, Inc. Common 10,700,000
Sabica Ventures, Inc. Common 12 125,000 100%
SVI Retail, Inc. Common 1 1,500 100%
GRANTOR: SABICA VENTURES, INC.
-------
Stock
Stock Certificate Percentage of
Issuer Class of Stock No(s) Number of Shares Ownership
------ -------------- ----- ---------------- ---------
SVI Training Products, Inc. Common 1 100 100%
4