EXHIBIT 10.27.1
AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
(NUMBER ONE)
This AMENDMENT TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (NUMBER ONE)
dated as of November 7, 2003 (the "Amendment"), amends that certain Revolving
Credit and Term Loan Agreement dated as of June 28, 2002 (the "Loan Agreement")
by and among EMERSON RADIO CORP. ("ERC US"), a Delaware corporation, MAJEXCO
IMPORTS, INC. ("MI"), a California corporation, EMERSON RADIO (HONG KONG)
LIMITED ("ER HONG KONG") a Hong Kong corporation, and EMERSON RADIO
INTERNATIONAL LTD. ("ER BVI"), a British Virgin Islands company, jointly and
severally as co-borrowers and co-obligors, except as expressly set forth herein
in Section 10.8 hereof (individually and collectively, the "Borrower"), PNC
BANK, NATIONAL ASSOCIATION and each other lender signatory hereto or which
becomes a Lender pursuant to Section 9.1 (each a "Lender" and, collectively, the
"Lenders") and PNC BANK, NATIONAL ASSOCIATION as agent for the Lenders (in such
capacity, the "Agent").
WITNESSETH:
A. Pursuant to the Loan Agreement, the Lenders provided the Borrower a
revolving credit facility and a term loan as described in the Loan Agreement.
B. The Borrower has requested the Agent and the Lenders clarify the
reporting requirements set forth in Section 5.1 (a)(ii) of the Loan Agreement to
assure the Borrower's ability to comply with said reporting requirement now and
in the future.
C. The Agent and the Lenders are willing to provide said clarifications
subject to, and in accordance with, the terms and conditions set forth herein.
D. The Borrower has further requested various other modifications to
certain of the other terms and conditions set forth in the Loan Agreement (in
each case as more fully described below) and the Agent and the Lenders are
willing to so modify the Loan Agreement subject to, and in accordance with, the
terms and conditions set forth herein.
E. The Agent, and the Lenders and the Borrower further desire to amend
the Loan Agreement to reflect the assumption of the Revolving Loan Commitment
and Term Loan Commitment of LaSalle Business Credit, LLC (the "Exiting Lender")
by PNC Bank, National Association and Sovereign Bank (together, the "Assuming
Lenders"), and the related adjustments to the Commitments and Percentages of the
Assuming Lenders.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein, and for value received by each party, the parties
hereto agree as follows:
1. Definitions. Unless otherwise defined or modified herein, capitalized
terms used herein shall have the meanings set forth in the Loan Agreement.
2. Amendments to Loan Agreement. Subject to the satisfaction of the
conditions to effectiveness set forth in Section 8 below, the Loan Agreement
shall be amended as follows:
(a) The following additional defined terms shall be inserted into
Section 1.1 of the Loan Agreement in their respective appropriate alphabetical
order:
""Permitted ERC US Stock Repurchases" means the
purchase by ERC US of up to 2,000,000 shares of its publicly traded
stock from Persons other than Affiliates of the Borrower for an
aggregate consideration not to exceed $10,000,000."
""Permitted SSG Stock Repurchases" means the purchase
by ERC US of up to 500,000 shares of the publicly traded stock of SSG
from Persons other than Affiliates of the Borrower or SSG for an
aggregate consideration not to exceed $1,000,000."
(b) The first sentence of Section 2.19(a) of the Loan
Agreement is hereby amended in its entirety to read as follows:
"(a) The proceeds of the Revolving Credit Loans shall be used
for working capital needs of the Borrower and for general corporate
purposes and to fund Permitted ERC US Stock Repurchases and to fund
Permitted SSG Stock Repurchases."
(c) Clause (ii) of Section 5.1(a) of the Loan Agreement is
hereby amended in its entirety to read as follows:
"(ii) as soon as available but in any event within 105 days of
the end of each other fiscal year of ERC US ending after March 31,
2002, (1) a copy of the consolidated and consolidating balance sheet of
ERC US and its consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated and consolidating statements of
income and retained earnings and of cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, prepared internally by a Responsible Person, (2)
a copy of the consolidated balance sheet of ERC US and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash
flows for such fiscal year, certified by and reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Ernst & Young, LLP or other
independent certified public accountants of nationally recognized
standing reasonably acceptable to the Agent; together with
consolidating schedules which set forth columnar information for each
of ERC US and its consolidated Subsidiaries (other than SSG) and SSG,
an elimination column and the consolidated results for ERC US and its
consolidated Subsidiaries, and in any event in substantially the same
format as presented to the Agent by Ernst & Young for the fiscal year
ended March 31, 2003, and (3) a compliance certificate by a Responsible
Officer as to such financial statements being fairly stated in all
material respects when considered in relation to the consolidated
financial statements of ERC US and its consolidated Subsidiaries; and"
(d) Clause (b) of Section 6.6 of the Loan Agreement is hereby
amended in its entirety to read as follows:
"(b) So long as no Event of Default shall have occurred and be
continued, ERC US may (i) acquire Capital Stock in SSG (provided such
Capital Stock of SSG is acquired only with Capital Stock of ERC US and
provided giving effect to any such acquisition shall not cause any
Person who holds less than 10% (or such greater percentage as the
Required
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Lenders may agree to in writing) of any class of Capital Stock of ERC
US on the date hereof to hold more than 10% (or such greater percentage
as the Required Lenders may agree to in writing) of any such class of
Capital Stock of ERC US, (ii) acquire additional Capital Stock in SSG
in connection with Permitted SSG Stock Repurchases and (iii) beginning
on the first anniversary of the Closing Date, in accordance with the
strategic objectives of its business plan, acquire Capital Stock in
other Persons (other than Inactive Subsidiaries) in businesses related
to that of ERC US; provided, however, that in the cases described in
clauses (i) and (iii), taken together in an aggregate amount for each
12 month period beginning on an anniversary of the Closing Date and
ending on the next succeeding anniversary of the Closing Date (each
such period, an "Acquisition Period") not exceeding the lesser of (x)
$500,000 and (y) the principal amount of the Term Loan repaid pursuant
to Section 2.9(e) during the twelve month period immediately preceding
the then current Acquisition Period;"
For the avoidance of doubt, notwithstanding the date of this Amendment,
the Permitted ERC US Stock Repurchases and Permitted SSG Stock Repurchase that
may have been consummated on or after September 2, 2003 but prior to the
Effective Date (as defined in Section 8 below) shall be deemed to be in
compliance with Section 6.6(b) of the Loan Agreement (as amended hereby) without
any further action required of the Agent, the Lenders or the Borrower.
(e) Section 6.12 of the Loan Agreement is hereby amended in
its entirety to read as follows:
"Section 6.12 Fixed Charge Coverage Ratio. Permit the Fixed
Charge Coverage Ratio for the period of four consecutive fiscal
quarters preceding any date of determination to be less than 1.25 to 1,
except in the case of the four consecutive fiscal quarters preceding
March 31, 2004, in which case, said ratio shall not be permitted to be
less than 1.10 to 1."
(f) Section 6.14 of the Loan Agreement is hereby amended in
its entirety to read as follows:
"Section 6.14 Minimum Post-Repurchase Availability. At all
times during the Repurchase Period permit the Undrawn Availability to
be less than $2,000,000. As used herein, "Repurchase Period" means the
period commencing upon the commencement of either the Permitted ERC US
Stock Repurchases or the Permitted SSG Stock Repurchases (whether or
not funded in whole or in pan with the proceeds of the Revolving Credit
Loans) and ending upon the earlier to occur of (i) the consummation
of both the Permitted ERC US Stock Repurchases and Permitted SSG Stock
Repurchases or (ii) the date that the Borrower furnishes to the Agent
written notice certifying that (y) no further Permitted ERG US Stock
Repurchases or Permitted SSG Stock Repurchases shall be made and (z)
the benefits of Section 6.6 (b)(ii) of this Agreement shall no longer
be available to the Borrower."
(g) For the purpose of adjusting the Commitments and
Percentages of the Assuming Lenders, SCHEDULE I to the Loan Agreement
is hereby deleted in its entirety and SCHEDULE I attached hereto is
hereby substituted in its place and made a part of the Loan Agreement.
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3. Assumption of Exiting Lender's Obligations; New Notes. (a) Pursuant to
that certain Commitment Transfer Supplement dated on or before the Effective
Date, each Assuming Lender shall have taken by assignment and purchased from the
Exiting Lender, without recourse to, or representation or warranty, by the
Exiting Lender of any kind or description, an interest in the Revolving Credit
Loans and Term Loans owing to the Exiting Lender as of the Effective Date (but
excluding accrued interest and fees up to but excluding the Effective Date)
equal to Percentage of such Assuming Lender (after giving effect to this
Amendment) of said outstanding obligations. On or before the Effective Date, the
Borrower shall pay to the Exiting Lender all accrued and unpaid interest on the
outstanding principal amount of the Loans owing to the Exiting Lender, together
with the Exiting Lender's pro rata share of any accrued and unpaid fees under
the Loan Agreement, in each case through but excluding the Effective Date.
(b) To evidence the obligations of the Borrower owing to the Assuming
Lenders, as of the Effective Date, the Borrower shall issue to each Assuming
Lender a new Revolving Credit Note and a new Term Note substantially in the form
attached hereto. Each such note shall be (i) dated the Effective Date, and (ii)
in an original principal amount of up to the respective Commitment of the
applicable Assuming Lender in the Loan evidenced by such Note, in each case,
after giving effect to this Amendment.
4. Effects of Clarification. The Borrower acknowledges and agrees the
amendments made pursuant to clause (c) of Section 2 above have been made to
clarify the reporting requirements set forth therein and in no event shall be
construed as the establishment of a custom or course of dealing among the
Borrower, the Agent or the Lenders with respect to any current or future issue
of the Borrower's non-compliance with any term, condition or covenant set forth
in this Loan Agreement or the other Loan Documents.
5. References to Loan Agreement. This Amendment is an amendment to the
Loan Agreement. Unless the context of this Amendment otherwise requires, the
Loan Agreement and this Amendment shall be read together and shall have effect
as if the provisions of the Loan Agreement and this Amendment were contained in
one agreement.
6. Full Force and Effect. Except as expressly modified by this Amendment,
all of the terms and conditions of the Loan Agreement and the other Loan
Documents shall continue in full force and effect, and all parties hereto shall
be entitled to the benefits thereof. This Amendment is limited as written and
shall not be deemed (a) to be an amendment of or a consent under or waiver of
any other term or condition of the Loan Agreement, or (b) to prejudice any right
or rights which the Lender now has or may have in the future under or in
connection with the Loan Agreement or the other Loan Documents.
7. Post-Closing Undertakings. In consideration of the modifications to the
Loan Agreement set forth herein, the Borrower covenants and agrees that it shall
furnish to the Agent each of the items specified in SCHEDULE "A", in each case
in form and substance satisfactory to the Agent and the Lenders on or before (i)
November 14, 2003 in the case of Item 1 on said Schedule and (ii) November 26,
2003 in the case of Item 2 on said Schedule. The Borrower further acknowledges
that this Amendment is a Loan Document as defined in the Loan Agreement and
consequently the failure to comply with the foregoing post-closing undertaking
will constitute an Event of Default under the Loan Agreement entitling the Agent
and the Lenders to exercise the rights and remedies afforded such parties under
the Loan Agreement and Loan Documents.
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8. Conditions. This Amendment shall not be effective until the following
conditions precedent have been fulfilled to the satisfaction of the Agent and
the Lenders: (i) the Agent shall have received counterparts of this Amendment
duly executed by each of the parties hereto, (ii) the Borrower shall have paid
the Agent (for ratable distribution to the Assuming Lenders) a modification fee
of $15,000 in consideration of the modification to the Loan Agreement set forth
herein and (iii) the assignment and purchase of the Exiting Lender's Loans as
contemplated in Section 3(a) above shall have been consummated. In addition, the
Borrower agrees to pay upon execution of this Amendment, all reasonable costs
and expenses of the Agent and each Lender, including, without limitation, the
legal fees and expenses in the amount of $9,600 incurred by the Agent's counsel
in connection with the preparation, negotiation, execution and delivery and
review of this Amendment. In the event Borrower does not remit such payment
together with this executed Amendment, the Borrower hereby authorizes the Agent,
without notice to the Borrower, to charge any account of the Borrower maintained
by the Agent or its Affiliates in payment of the amounts due under this Section
8. The date on which all of the aforementioned conditions have been satisfied is
herein referred to as the "Effective Date".
9. Estoppel; Representations and Warranties. In order to induce the Lenders
to enter into this Amendment, the Borrower makes the following representations
and warranties, which representations and warranties shall survive the execution
and delivery hereof:
(a) each of the Loan Agreement, the Notes, the Security Documents and
the other Loan Documents are in full force and effect;
(b) as amended hereby, each of the Loan Agreement, the Notes, the
Security Documents, the other Loan Documents and this Amendment have been duly
authorized, executed and delivered by the Borrower and constitute legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms;
(c) the Borrower has no offset, defense or counterclaim with respect to
any of their obligations under the Loan Agreement, the Notes, the Security
Documents and the other Loan Documents (any such offset, defense or counterclaim
as may now exist being hereby irrevocably waived by the Borrower);
(d) no material adverse change in the financial condition of the
Borrower has occurred since the date of its most recent financial statements
delivered to the Lender;
(e) no Event of Default has occurred and is continuing under the Loan
Agreement or the other Loan Documents, and no event has occurred which, with
notice, lapse of time or both, would constitute such an Event of Default;
(f) except as discussed on SCHEDULE "B", all of the representations
made by or on behalf of the Borrower in the Loan Agreement and the other Loan
Documents are true and correct on and as of the date hereof;
(g) neither the execution and delivery of this Amendment by the
Borrower, nor consummation by the Borrower of the transactions contemplated
herein, nor compliance by the Borrower with the terms, conditions and provisions
hereof will conflict with or result in a breach of any of the terms, conditions
or provisions of (i) any Borrower's Certificate of Incorporation and By-Laws or
other organizational or governing document, (ii) any agreement or instrument to
which any Borrower is a party or by which the property of the Borrower is or may
be bound, (iii) any judgment or order, writ, injunction or decree of any court,
or (iv) any applicable law or governmental regulation; and
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(h) no action of, or filing with, any governmental or public body or
authority is required to authorize, or is otherwise required in connection with
the execution, delivery and performance of this Amendment by the Borrower.
10. Security Interests. The Borrower confirms the validity and
effectiveness of the Security Documents made by the Borrower in favor of the
Agent (for the benefit of the Lenders) and confirms that the Security Documents
secures payment of the Obligations (as defined in the Security Documents).
11. Governing Law. This Amendment, including the validity thereof and the
rights and obligations of the parties hereunder, shall be construed in
accordance with and governed by, the laws of the State of New Jersey.
12. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all which when taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
BORROWERS:
EMERSON RADIO CORP.
By: /s/ KENNETH A. CORBY
-------------------------
Name: Kenneth A. Corby
Title: EVP & CFO
MAJEXCO IMPORTS, INC.
By: /s/ KENNETH A. CORBY
-------------------------
Name: Kenneth A. Corby
Title: EVP & CFO
EMERSON RADIO (HONG KONG)
LIMITED
By: /s/ JOHN J. RAAB
-------------------------
Name:
Title:
EMERSON RADIO INTERNATIONAL
LTD.
By: /s/ KENNETH A. CORBY
-------------------------
Name: Kenneth A. Corby
Title: EVP & CFO
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AGENT:
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ PAUL E. KELLEMAN
---------------------------
Name:
Title:
LENDERS:
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ PAUL E. KELLEMAN
---------------------------
Name:
Title:
SOVEREIGN BANK
By: /s/ CHRIS D. WOLFSLAYER
---------------------------
Name: Chris D. Wolfslayer
Title: Vice President
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SCHEDULE "A"
POST-CLOSING ISSUES OUTSTANDING
1. LANDLORD WAIVERS: The Borrower shall furnish a certificate of a
Responsible Person certifying that the copies of the waivers and
consents received from the following landlords comport with the
originals and the same have not been altered, amended or otherwise
modified through the date hereof: (i) Gilbert West, Inc.; (ii) Team
Ocean Services; and (iii) Pride Products.
2. UCC TERMINATION STATEMENTS: The Borrower shall furnish evidence of
termination of all UCC Financing Statements filed against it in favor
of Congress Financial.
A-1
SCHEDULE "B"
The following class action complaints have been filed in the US
District Court for the District of New Jersey:
1.) Kaplan v. Emerson Radio Corn., et al., 03-cv-4202 (JLL)
2.) Pelone v. Emerson Radio Corp., et al., 03-cv-4201 (JLL)
3.) Howard v. Jurick, et al., 03-cv-4330 (WGB)
4.) Glascoff V. Emerson Radio Corp., et al., 03-cv-4506 (JLL)
5.) Stromer v. Emerson Radio Corp, at al., 03-cv-4647 (JLL)
6.) Kaplan v. Emerson Radio Corp., et al., 03-cv-4856
7.) Freitag v. Emerson Radio Corp., et al., 03-cv-5140
The complaints allege violations of federal securities laws including
1) against all defendants: Section 10(b) of the Exchange Act Against and Rule
10-b-5 promulgated thereunder, and 2) against all individual defendants: Section
20(a) of the Exchange Act.
B-1
SCHEDULE I
(AMENDED AND RESTATED AS OF 11/7/03)
Commitments
LENDER FACILITY PERCENTAGE COMMITMENT
PNC Revolving Credit 65% $16,250,000
Term Loan 65% $ 1,673,750*
TOTAL $17,923,750
LENDER FACILITY PERCENTAGE COMMITMENT
Sovereign Bank Revolving Credit 35% $ 8,750,000
Term Loan 35% $ 901,250*
TOTAL $ 9,651,250
-----------
Aggregate 100% Aggregate $27,575,000
Percentage Commitment
The Percentage of any Lender as of any date shall be equal to a
fraction (expressed as a decimal) the numerator of which shall be, in the case
of outstanding Loans, the outstanding principal amount of Loans held by such
Lender and the denominator of which shall be the aggregate outstanding principal
amount of all Loans held by all Lenders. If no Loans are outstanding, the
Percentage of any Lender as of any date shall be equal to a fraction (expressed
as a decimal) the numerator of which shall be the aggregate principal amount of
Loans such Lender is committed to fund and the denominator of which shall be the
aggregate principal amount of Loans all Lenders are committed to fund.
- ----------
* indicates Percentage of the applicable
Lender in the outstanding principal
balance of Term Loan as of 11/7/03
$(2,575,000)
S-1