Exhibit 10.1
AMENDMENT NUMBER NINE TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amendment Number Nine to Second Amended and Restated Loan and
Security Agreement ("Amendment") is entered into as of September 30, 2002, by
and among CONGRESS FINANCIAL CORPORATION (WESTERN), a California corporation
("Lender"), on the one hand, and SENSORY SCIENCE CORPORATION, a Delaware
corporation ("Sensory"), and CALIFORNIA AUDIO LABS, LLC, a California limited
liability company ("Cal-Audio", and collectively, jointly and severally, with
Sensory, "Borrowers"), on the other hand, in light of the following:
A. Borrowers and Lender have previously entered into that certain Second
Amended and Restated Loan and Security Agreement, dated as of August 19, 1998
(as amended and modified, from time to time, the "Agreement").
B. It has come to Lender's attention that Parent's ownership interest in
United Microelectronics Corp. was less than $40,000,000 for the period ended
August 30, 2002 as required under Section 9.18 of the Agreement, and thus
constitutes an Event of Default under Section 10.1(a) of the Agreement (the "UMC
Default").
C. Borrowers have requested, and Lender has agreed, to waive the UMC
Default and amend the Agreement as provided for and on the conditions herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers and Lender hereby amend
and supplement the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
(a) The definition of "Availability Block" in Section 1 is
hereby amended to read as follows:
"Availability Block" shall mean the greater of: (i)
$2,500,000; or (ii) $5,000,000 minus the positive amount (if any) by
which Borrowers' Revolving Loan availability under Section 2.1(a)
(without deducting the Availability Block) exceeds $40,000,000.
(b) The definition of "Maximum Credit" in Section 1 of the
Agreement is hereby amended to read as follows:
"Maximum Credit" shall mean the amount of
$40,000,000 minus the Availability Block.
3. REPRESENTATIONS AND WARRANTIES. Borrowers hereby affirm to Lender
that all of Borrowers' representations and warranties set forth in the Agreement
are true, complete and accurate in all respects as of the date hereof.
4. NO DEFAULTS. Borrowers hereby affirm to Lender that, other than the
UMC Default, no Event of Default has occurred and is continuing as of the date
hereof.
5. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the following:
(a) Payment by Borrowers to Lender of an amendment fee in the
aggregate amount of $150,000, such fee to be charged to Borrowers' loan account
pursuant to the Agreement; and
(b) Receipt by Lender of an executed copy of this Amendment.
6. LIMITED WAIVER. Lender hereby waives the UMC Default for the period
ended August 30, 2002. The limited waiver set forth herein shall be limited
precisely as written and shall not be deemed to (a) be a waiver or modification
(i) of any other term or condition of the Agreement or (ii) of any other period
other than the period specifically prescribed herein, or (b) prejudice any right
or remedy which Lender may now or in the future have under or in connection with
the Agreement.
7. COSTS AND EXPENSES. Borrowers shall pay to Lender all of Lender's
out-of-pocket costs and expenses (including, without limitation, the fees and
expenses of its counsel, which counsel may include any local counsel deemed
necessary, search fees, filing and recording fees, documentation fees, appraisal
fees, travel expenses, and other fees) arising in connection with the
preparation, execution, and delivery of this Amendment and all related
documents.
8. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended and supplemented hereby, shall remain in full force and
effect.
9. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Number Nine to Second Amended and Restated Loan and Security Agreement as of the
date first set forth above.
CONGRESS FINANCIAL CORPORATION
(WESTERN),
a California corporation
By: /s/ Jeff Scott
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Name: Jeff Scott
---------------------------------
Title: Vice President
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SENSORY SCIENCE CORPORATION,
a Delaware corporation
By: /s/ Marcus Smith
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Number Nine to Second Amended and Restated Loan and Security Agreement as of the
date first set forth above.
CONGRESS FINANCIAL CORPORATION
(WESTERN),
a California corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SENSORY SCIENCE CORPORATION,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By: /s/ Roger Hackett
-----------------------------------
Name: ROGER HACKETT
---------------------------------
Title:
--------------------------------
Each of the undersigned has executed a continuing guaranty (each,
individually, a "Guaranty") in favor of CONGRESS FINANCIAL CORPORATION
(WESTERN), a California corporation ("Lender"), respecting the obligations of
SENSORY SCIENCE CORPORATION, a Delaware corporation ("Sensory"), and CALIFORNIA
AUDIO LABS, LLC, a California limited liability company ("Cal-Audio", and
collectively, jointly and severally, with Sensory, the "Borrowers") owing to
Lender. Each of the undersigned acknowledges the terms of the above Amendment
and reaffirms and agrees that: its Guaranty remains in full force and effect;
nothing in such Guaranty obligates Lender to notify the undersigned of any
changes in the financial accommodations made available to the Borrowers or to
seek reaffirmations of the Guaranty; and no requirement to so notify the
undersigned or to seek reaffirmations in the future shall be implied by the
execution of this reaffirmation.
SONICBLUE INCORPORATED,
a Delaware corporation
By: /s/ Marcus Smith
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SENSORY SCIENCE CORPORATION,
a Delaware corporation
By: /s/ Marcus Smith
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Each of the undersigned has executed a continuing guaranty (each,
individually, a "Guaranty") in favor of CONGRESS FINANCIAL CORPORATION
(WESTERN), a California corporation ("Lender"), respecting the obligations of
SENSORY SCIENCE CORPORATION, a Delaware corporation ("Sensory"), and CALIFORNIA
AUDIO LABS, LLC, a California limited liability company ("Cal-Audio", and
collectively, jointly and severally, with Sensory, the "Borrowers") owing to
Lender. Each of the undersigned acknowledges the terms of the above Amendment
and reaffirms and agrees that: its Guaranty remains in full force and effect;
nothing in such Guaranty obligates Lender to notify the undersigned of any
changes in the financial accommodations made available to the Borrowers or to
seek reaffirmations of the Guaranty; and no requirement to so notify the
undersigned or to seek reaffirmations in the future shall be implied by the
execution of this reaffirmation.
SONICBLUE INCORPORATED,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SENSORY SCIENCE CORPORATION,
a Delaware corporation
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By: /s/ Roger Hackett
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------