Exhibit 10.43
SEVENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This Seventh Amendment is made as of this 9th day of October,
1996, by and among K-TEL INTERNATIONAL (USA), INC., a Minnesota corporation,
having its principal place of business in Plymouth, Minnesota ("K-Tel USA"),
DOMINION ENTERTAINMENT, INC., a Minnesota corporation, having its principal
place of business in Plymouth, Minnesota ("Dominion"; K-Tel USA and Dominion are
sometimes herein collectively referred to as the "Borrowers" and each is
sometimes individually referred to as a "Borrower"), and TCF BANK MINNESOTA FSB,
a federally chartered stock savings bank (the "Bank").
RECITALS
A. The Borrowers and the Bank have entered into a Revolving
Credit Agreement dated as of July 22, 1994, as amended by a First Amendment to
Revolving Credit Agreement dated as of January 30, 1995, by a Second Amendment
to Revolving Credit Agreement and to Revolving Note dated as of July 20, 1995,
by a Third Amendment to Revolving Credit Agreement dated as of October 2, 1995,
by a Fourth Amendment to Revolving Credit Agreement and to Revolving Note dated
as of November 28, 1995, by a Fifth Amendment to Revolving Credit Agreement and
to Revolving Note dated as of December 28, 1995 and by a Sixth Amendment to
Revolving Credit Agreement dated as of August 23, 1996 (as amended, the "Credit
Agreement"), pursuant to which the Bank, subject to the terms and conditions set
forth therein, agreed to make revolving advances to the Borrowers in the
aggregate amount of up to $2,750,000.
B. The Borrowers' joint and several obligation to repay the
revolving advances made by the Bank under the Credit Agreement is evidenced by
the Borrowers' Revolving Note dated August 23, 1996, payable to the Bank's order
in the original principal amount of $5,000,000 (the "Note").
C. The Borrowers have requested, among other things, that the
Bank waive certain Events of Default on the part of K-Tel USA and Dominion.
D. The Bank is willing to grant the Borrowers' requests
subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used in this Seventh Amendment,
unless specifically defined herein, shall have the meanings given to such terms
in the Credit Agreement.
2. Events of Default have occurred under Section 7.1(c) of the
Credit Agreement because (i) K-Tel USA did not have the required minimum Capital
Base of at least $1,500,000 during certain periods through the date of this
Amendment as required by Section 5.10 of the Credit Agreement, (ii) Dominion did
not have the required minimum Capital Base of at least $1,800,000 during certain
periods through the date of this Amendment as required by Section 5.11 of the
Credit Agreement, (iii) K-Tel USA did not have the required Debt to Capital Base
Ratio of not more than 13.0 to 1.0 during certain periods through the date of
this Amendment as required by Section 5.8 of the Credit Agreement and (iv)
Dominion did not have the required minimum Debt to Capital Base Ratio of not
less than 0.50 to 1.0 during certain periods through the date of this Amendment
as required by Section 5.9 of the Credit Agreement. Upon the terms and subject
to the conditions set forth in this Seventh Amendment, the Bank hereby waives
the foregoing Events of Default and the Bank hereby prospectively waives future
Events of Default arising from the Borrowers failure to comply with the
requirements of Sections 5.8, 5.9, 5.10 and 5.11 through November 30, 1996. This
waiver shall be effective only in this specific instance and for the specific
purpose for which it is given, and this waiver shall not entitle the Borrower to
any other or further waiver in any similar or other circumstances.
3. Section 1.1 of the Credit Agreement is hereby amended by
deleting the existing definition of "Interest Rate Spread" and by substituting
therefor the following new definition:
"'Interest Rate Spread' means (i) one and three-quarters of
one percent (1.75%) through and including October 31, 1996 and (ii) two
percent (2.00%) from and after November 1, 1996."
4. Section 1.1 of the Credit Agreement is hereby amended by
adding the following new definition of "Seventh Amendment" in the appropriate
alphabetical location:
"'Seventh Amendment' means that certain Seventh Amendment to
Revolving Credit Agreement dated as of October 9, 1996, between the
Bank and the Borrowers."
5. This Seventh Amendment shall not become effective until the
Bank shall have received each of the following in form and substance acceptable
to the Bank:
(a) The Acknowledgment and Agreement of Guarantor attached
below.
(b) A copy of the Articles of Merger, certified by the
Minnesota Secretary of State, pursuant to which K-Tel, Inc. was merged
into K-Tel USA, with K-Tel USA as the surviving corporation.
(c) Such other items as the Bank may require.
6. References. From and after the date of this Seventh
Amendment all references in the Credit Agreement to "this Agreement" shall be
deemed to refer to the Credit Agreement as amended by this Seventh Amendment.
7. No Other Changes. Except as explicitly amended by this
Seventh Amendment, all of the original terms and conditions of the Credit
Agreement shall remain in full force and effect.
8. No Other Waiver. Except as explicitly set forth in
paragraph 2 of this Seventh Amendment, the execution of this Seventh Amendment
and acceptance of any documents related thereto shall not be deemed to be a
waiver of any existing or future Default or Event of Default under the Credit
Agreement or any other Loan Document, whether or not known to the Bank and
whether or not such Default or Event of Default exists on the date of this
Seventh Amendment.
9. Release. The Borrowers and K-Tel International, Inc. by
signing the Acknowledgment and Agreement of Guarantor set forth below, each
hereby absolutely and unconditionally releases and forever discharges the Bank,
and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof,
together with all of the present and former directors, officers, agents and
employees of any of the foregoing, from any and all claims, demands or causes of
action of any kind, nature or description, whether arising in law or equity or
upon contract or tort or under any state or federal law or otherwise, which the
Borrowers or any Guarantor has had, now has or has made claim to have against
any such person for or by reason of any act, omission, matter, cause or thing
whatsoever arising from the beginning of time to and including the date of this
Seventh Amendment, whether such claims, demands and causes of action are matured
or unmatured or known or unknown.
10. Expenses. The Borrowers hereby reaffirm their agreement
under Section 8.5 of the Credit Agreement. Without limiting the generality of
the foregoing, the Borrowers specifically agree to pay all fees and
disbursements of counsel to the Bank for the services performed by such counsel
in connection with the preparation of this Seventh Amendment and the documents
and instruments incidental thereto.
11. Counterparts. This Seventh Amendment and the
Acknowledgment and Agreement of Guarantor may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Seventh Amendment to be duly executed as of the date first above written.
K-TEL INTERNATIONAL (USA), INC.
By /S/ Mark Dixon
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Its V.P.
DOMINION ENTERTAINMENT, INC.
By /S/ Mark Dixon
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Its V.P.
TCF BANK MINNESOTA fsb
By /S/ Richard D. Larson
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Its Vice President
And
By /S/ Milli A. Navara
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Its Assistant Vice President
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTOR
The undersigned, K-Tel International, Inc., a guarantor of the
indebtedness of K-Tel International (USA), Inc. and Dominion Entertainment, Inc.
(together, the "Borrowers") to the Bank pursuant to its Guaranty dated as of
July 22, 1994 (the "Guaranty), hereby (i) acknowledges receipt of the foregoing
Seventh Amendment; (ii) consents to the terms (including without limitation the
release set forth in paragraph 9 of the foregoing Seventh Amendment) and
execution thereof; (iii) reaffirms its obligations to the Bank pursuant to the
terms of its Guaranty, its Amended and Restated Collateral Pledge Agreement (the
"Pledge Agreement") dated as of January 30, 1995 and its Amended and Restated
Security Agreement dated as of January 30, 1995 (the "Security Agreement"); and
(iv) acknowledges and agrees that the Bank may amend, restate, extend, renew or
otherwise modify the Credit Agreement and any indebtedness or agreement of the
Borrowers, or enter into any agreement or extend additional or other credit
accommodations, without notifying or obtaining the consent of the undersigned
and without impairing the liability of the undersigned under its Guaranty,
Pledge Agreement and/or its Security Agreement for all of the present and future
indebtedness of the Borrowers to the Bank.
K-TEL INTERNATIONAL, INC.
By /S/ Mark Dixon
-------------------------------------
Its V.P.