Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THAT SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of February 23, 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 by that certain
First Amendment to Credit Agreement dated as of January 1, 2001 and 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shall be deemed superseded hereby.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 $1,125,000 to $625,000 through the
earlier of July 31, 2001 or the dates set forth below. The Availability
Covenant shall increase as follows:
(a) To $1,125,000 on March 9, 2001 if by such date a third
party acceptable to Agent has not purchased a $1 million subordinated
participation in the Loans to Company (pursuant to the terms of a
Subordinated Participation Agreement in form and substance acceptable
to Agent in its sole discretion).
(b) At a rate of $75,000 per month commencing August 1, 2001
and continuing on the first day of each month thereafter until the
Availability Covenant is $1,500,000.00.
(c) In an amount as called for by Section 4 below.
3. New Section 10.28. The following is added as Section 10.28
of the Agreement:
10.28 Subordinated Participation. (a) On or before March 1,
2001, Company shall cause GTI (the "Subordinated Participant") to
purchase a $1,000,000 subordinated participation in the Loans pursuant
to a Subordinated Participation Agreement in form and substance
acceptable to Agent (the "Subordinated Participation") and $450,000 of
the equity contributed by GTI in January, 2001 will be converted to
debt and treated as part of the subordinated participation owned by
Subordinated Participant. One million dollars of the Subordinated
Participation will be advanced by Agent to Company in the form of a
term loan to be memorialized by a promissory note in form and substance
satisfactory to Agent ("Term Loan C"). Term Loan C shall be part of the
Loans for all purposes.
(b) As between Lenders and the Subordinated Participant, Term
Loan C shall be treated as subordinate to all other Loans and the
principal balance of Term Loan C may not be repaid prior to the
repayment of all other Loans unless either of the following sets of
conditions are satisfied:
1. (i) No Event of Default has occurred and is
continuing, (ii) the Availability Covenant
is $1,500,000, (iii) at least 95% of
Company's accounts payable are less than 60
days from invoice date for 2 consecutive
calendar months, (iv) Agent completes a
field examination and is satisfied with the
results thereof in its sole discretion, and
(v) excess Availability is at least
$2,500,000 after the payment in question.
2. (i) No Event of Default has occurred and is
continuing, and (ii) Company obtains cash
equity infusion(s) or additional
subordinated debt on terms satisfactory to
Agent (including, without limitation,
pricing and terms of subordination and
repayment) (the "Infusions"). Provided,
however, that Term Loan C may only be repaid
out of Infusions to the extent provided in
Section 10.29.
4. New Section 10.29. The following is added as Section 10.29
of the Agreement:
10.29 Use of Infusions. Any Infusions received by Company
after the date of the Second Amendment to Credit Agreement shall be
used as follows:
(a) the first $500,000 will be applied against the Revolving
Outstandings, with a simultaneous increase in the Availability Covenant
equal to the lesser of (i) $500,000, or (ii) the amount necessary to
increase the Availability Covenant to $1,500,000;
(b) the next $1,000,000 received will be applied to repay Term
Loan C; and
(c) any additional funds will be applied 50% to reduce the
Revolving Outstandings (with a simultaneous increase in the
Availability Covenant to the extent the same is less than $1,500,000)
and 50% to repay Term Loan C.
5. Term Loan B Amortization. Schedule 3.1 to the Agreement is
amended and restated as Schedule 3.1 attached hereto.
6. Prohibition of Certain Payments. Notwithstanding anything to the
contrary in the Loan Documents or in any subordination agreements executed in
favor of Lenders by any of Company's creditors, until the following conditions
are satisfied to Agent's reasonable satisfaction, Company shall not pay the
following (collectively, "Non-Senior Payments"): (i) interest or fees on any
Subordinated Debt, (ii) Management Fee Payments, or (iii) any trade payable or
royalty payments owing to Onkyo Corporation:
(a) The Fixed Charge Coverage Ratio exceeds 1.15:1, after giving effect
to any proposed Non-Senior Payments;
(b) The Senior Debt to EBITDA Ratio is less than 3.0:1, after giving
effect to any proposed Non-Senior Payments;
(c) Company will be in compliance with all material financial covenants in
the Agreement after giving effect to the proposed Non-Senior Payments;
(d) No Event of Default has occurred or is continuing; and
(e) Excess Availability is $1.5 million after giving effect to the
proposed Non-Senior Payments.
7. Fixed Charge Coverage Ratio. Section 10.6.1 of the Agreement is
hereby amended in its entirety to read as follows:
10.6.1 Fixed Charge Coverage Ratio. Not permit the Fixed
Charge Coverage Ratio for any Coverage Ratio Computation Period
(measured at each month end) to be less than the applicable ratio set
forth below for such Coverage Ratio Computation Period:
Coverage Ratio Fixed Charge
Computation Period Coverage Ratio
January, 2001 through March, 2001 (each month end) 0.25:1 April, 2001 through
June, 2001 (each month end) 0.50:1 July, 2001 through September, 2001 (each
month end) 0.75:1 October, 2001 and November, 2001 (each month end) 1.00:1
December, 2001 and each month thereafter 1.25:1
8. Senior Debt to EBITDA Ratio Section 10.6.2 of the Agreement is
hereby amended in its entirety to read as follows:
10.6.2 Senior Debt to EBITDA Ratio. Not permit the Senior Debt
to EBITDA Ratio as of the last day of any (i) Coverage Ratio
Computation Period multiplied by the Annualized Multiplier of such
period (for all such periods ending on or before August 31, 2001), and
(ii) Computation Period commencing September 1, 2001, to exceed the
applicable ratio set forth below for such Coverage Ratio Computation
Period or Computation Period (as applicable):
Senior Debt to Computation Period EBITDA Ratio
January, 2001 through March, 2001 (each month end) 7.50:1
April, 2001 through June, 2001 (each month end) 5.75:1
July, 2001 through September, 2001 (each
month end) 4.00:1
October, 2001 through December, 2001 (each month end) 3.75:1
January, 2002 and each month end thereafter 2.50:1
9. T otal Debt to EBITDA Ratio. Section 10.6.3 of the Agreement is
hereby amended and restated in its entirety to read as follows:
10.6.3 Total Debt to EBITDA Ratio. Not permit the Total Debt
to EBITDA Ratio as of the last day of any (i) Coverage Ratio
Computation Period multiplied by the Annualized Multiplier of such
period (for all periods ending on or before August 31, 2001), and (ii)
Computation Period commencing September 1, 2001, to exceed the
applicable ratio set forth below for such Coverage Ratio Computation
Period or Computation Period (as applicable):
Total Debt to
Computation Period EBITDA Ratio
January, 2001 through March, 2001 (each month end) 11.00:1
April, 2001 through June, 2001 (each month end) 8.50:1
July, 2001 through September, 2001 (each month end) 6.25:1
October, 2001 through December, 2001 (each month end) 5.50:1
January, 2002 and each month end thereafter 4.00:1
10. Limited Waiver of Certain Financial Covenants. Agent and Lenders
hereby waive Company's compliance with the financial covenants set forth in
Section 10.6.1, Section 10.6.2 and Section 10.6.3 of the Agreement for the
period ending December 31, 2000. Nothing in this Amendment shall be construed to
mean that any such waiver of the financial covenants specified above for such
period will extend to any other period.
11. 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. After giving effect to
the waiver described in Section 10 of this Amendment, 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.
12. 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. In addition, in
consideration of the accommodations set forth herein, the Company hereby agrees
to pay to the Agent on the date hereof, an amendment fee in the amount
$100,000.00 which shall be fully earned on the date hereof but payable on the
earlier of (i) termination or expiration of the Agreement, (ii) the Termination
Date, or (iii) payment in full of all Loans.
13. 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.
14. Continuing Effect. Except as otherwise specifically set
forth herein, the provision of the Agreement shall remain in full force and
effect.
15. 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:
--------------------------------------------------
Name:
------------------------------------------------
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 Second Amendment to Credit Agreement dated as of February __, 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: February ___, 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 Second 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:
----------------------------------------------
REAFFIRMATION OF SUBORDINATION AGREEMENT AND
LOAN DOCUMENTS
The undersigned (the "Subordinated Creditor") hereby acknowledges and
consents to the amendment of the Agreement contained in the foregoing Second
Amendment to Credit Agreement, acknowledges and reaffirms their obligations
owing to Agent and Lenders under that certain Subordination Agreement dated as
of August 31, 2000 with Xxxxxx X. Xxxxxx FBO Xxxx Xxxxx Xxxxxx (the
"Subordination Agreement") and any other Loan Documents to which it is a party,
and agrees that such Subordination Agreement and Loan Documents are and shall
remain in full force and effect. Although Subordinated Creditor has been
informed of the matters set forth herein and has acknowledged and agreed to the
same, Subordinated Creditor understands that Lenders have no obligation to
inform Subordinated Creditor of such matters in the future or to seek
Subordinated Creditor's acknowledgment or agreement to future amendments or
waivers, and nothing herein shall create such a duty.
WILMINGTON TRUST COMPANY AND XXXXXX XXXX XXXXXX,
CO-TRUSTEES U/A DATED 11/25/70 WITH XXXXXX X.
XXXXXX FBO XXXX XXXXX XXXXXX
By: Wilmington Trust Company, Co-Trustee
By:
-------------------------------------------------
Its:
------------------------------------------------
By: Xxxxxx Xxxx Xxxxxx, Co-trustee
Schedule 3.1
Term Loan B Amortization
Date $ Amount
October 1, 2000 $100.000.00
November 1, 2000 $100.000.00
December 1, 2000 $100.000.00
January 1, 2001 $100.000.00
February 1, 2001 $100.000.00
March 1, 2001 $100.000.00
April 1, 2001 $100.000.00
May 1, 2001 $100.000.00
June 1, 2001 $100.000.00
July 1, 2001 $100.000.00
August 1, 2001 $100.000.00
September 1, 2001 $100.000.00
October 1, 2001 $100.000.00
November 1, 2001 $100.000.00
December 1, 2001 $100.000.00
January 1, 2002 $100.000.00
February 1, 2002 $100.000.00
March 1, 2002 $100.000.00
April 1, 2002 $100.000.00
May 1, 2002 $100.000.00
June 1, 2002 $100.000.00
July 1, 2002 $100.000.00
August 1, 2002 $100.000.00
September 1, 2002 $100.000.00
October 1, 2002 $250,000.00
November 1, 2002 $250,000.00
December 1, 2002 $250,000.00
January 1, 2003 $250,000.00
February 1, 2003 $250,000.00
March 1, 2003 $250,000.00
April 1, 2003 $250,000.00
May 1, 2003 $250,000.00
June 1, 2003 $250,000.00
July 1, 2003 $250,000.00
August 1, 2003 $250,000.00
August 31, 2003 $600,000.00
