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EXHIBIT 10.33
AMENDMENT NUMBER FIVE TO SECOND
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amendment Number Five To Second Amended and Restated Loan and
Security Agreement ("Amendment") is entered into as of June 30, 2000, by and
between CONGRESS FINANCIAL CORPORATION (WESTERN), a California corporation
("Congress"), on the one hand, and SENSORY SCIENCE CORPORATION, a Delaware
corporation (fka Go-Video, Inc.) ("Sensory"), and CALIFORNIA AUDIO LABS, LLC, a
California limited liability company ("Cal-Audio", together with Sensory, each a
"Borrower" and collectively the, "Borrowers") on the other hand, in light of the
following:
FACT ONE: Borrowers and Congress have previously entered into that
certain Second Amended and Restated Loan and Security Agreement, dated as of
August 19, 1998, (as amended from time to time, the "Agreement").
FACT TWO: Borrowers and Congress desire to further amend the Agreement
as provided for and on the conditions herein.
NOW, THEREFORE, Borrowers and Congress 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.
2.1 Section 1 of the Agreement is amended by adding the
following additional definitions:
(a) "Collateral Access Agreement" means a landlord waiver,
mortgagee waiver, bailee letter, or acknowledgment agreement of
any Customs Broker, warehouseman, processor, lessor, consignee, or
other Person in possession of, having a lien upon, or having
rights or interest in the Equipment or Inventory, permitting
Lender access to, and the right to remain on, the premises where
any Equipment or Inventory is located, in order to exercise its
rights and remedies and otherwise deal with the Collateral, in
each case in form and substance satisfactory to Lender.
(b) "Customs Broker" shall mean such persons as may be selected by
Borrowers after the date hereof and after written notice by
Borrowers to Lender who are reasonably acceptable to Lender to
perform port of entry services to process Inventory imported by
Borrowers from outside the United States of America and to supply
facilities, labor and materials to a Borrower in connection
therewith, provided, that, as to each such person, (a) Lender
shall have received a Collateral Access Agreement duly authorized,
executed and delivered by such person, (b) such agreement is in
full force and effect and (c) such person shall be in compliance
in all material respects with the terms thereof.
(c) "Eligible In-Transit Inventory" shall mean Inventory outside
the United States of America that is in transit to any of the
premises of a Customs Broker in the United States, or one of
Borrowers' facilities in the United States; provided, that, (a)
Lender has a first priority perfected security interest in and
control and
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possession of originals of all documents of title with respect to
such Inventory, (b) Lender has received (1) a Collateral Access
Agreement, duly authorized, executed and delivered by the Customs
Broker handling the shipping and delivery of such Inventory, by
the owner and lessor of leased premises or by any party that will
hold, store, process or modify any such Inventory, as the case may
be, (2) a copy of the certificate of marine cargo insurance in
connection therewith in which Lender has been named as an
additional insured and loss payee in a manner acceptable to
Lender, and (3) a copy of the invoice and shipping manifest with
respect thereto, (c) such Inventory is not subject to any Letter
of Credit Accommodation, and, (d) bills of lading or other
documents of title with respect to such Inventory name Lender or
other financial institution or person as Lender may specify as
consignee pursuant to Section 7.8 herein."
2.2 The definition of "Eligible Inventory" in Section 1 of the
Agreement is amended by replacing the language in (f) following "provided,
however" to read as follows:
"Eligible Inventory which otherwise satisfies the criteria set
forth herein shall include (i) Inventory at premises of any
Customs Broker if Lender has received a Collateral Access
Agreement from the Customs Broker duly authorized, executed and
delivered by such Customs Broker, and (ii) Eligible In-Transit
Inventory;"
2.3 The Agreement is amended to include Section 7.8 which
shall read as follows:
"7.8 Bills of Lading and Other Documents of Title. Borrowers shall
cause all bills of lading and other documents of title relating to
Eligible Inventory being purchased by Borrowers which are outside
the United States and in transit to the premises of Borrowers as
consignee, unless and until Lender may direct otherwise. At such
time and from time to time as Lender may direct, Borrowers shall
cause Lender or such other financial institution or other person
as Lender may specify to be named as consignee. Without limiting
any other rights of Lender hereunder, at any time on or after an
Event of Default, or act, condition or event which with notice or
passage of time or both would constitute an Event of Default,
Lender shall have the right to endorse and negotiate on behalf of,
and as attorney-in-fact for, Borrowers any bill of lading or other
document of title with respect to such goods naming a Borrower as
consignee to Lender. There shall be three (3) originals of each of
such bill of lading or other document of title which unless and
until Lender shall direct otherwise shall be delivered as follows:
(a) one (1) original to such Customs Broker as Borrowers may
specify (so long as Lender has received a Collateral Access
Agreement duly authorized, executed and delivered by such Customs
Broker), and (b) two (2) originals to Lender or to such other
person as Lender may designate for such purpose. Borrowers shall
obtain a copy (but not the originals) of such bill of lading or
other documents from the Customs Broker. Borrowers shall cause all
bills of lading or other documents of title relating to goods
purchased by Borrowers of the premises of a Customs Broker in the
United States to be issued in a form so as to constitute
negotiable documents as such term is defined in the Uniform
Commercial Code."
3. REPRESENTATIONS AND WARRANTIES. Borrowers hereby affirm to
Congress 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.
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4. NO DEFAULTS. Borrowers hereby affirm to Congress that no
Event of Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon receipt by Congress of an executed copy of this
Amendment.
6. COSTS AND EXPENSES. Borrowers shall pay to Congress all of
Congress'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.
7. 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.
8. 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 as of the date first set forth above.
CONGRESS FINANCIAL CORPORATION (WESTERN),
a California corporation
By: /s/ Bruce Laughton
-----------------------------------
Title: Vice President
SENSORY SCIENCE
CORPORATION, a Delaware
corporation (fka Go-Video, Inc.)
By: /s/ Thomas E. Linnen
-----------------------------------
Title: Executive Vice President & CFO
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By: /s/ Thomas E. Linnen
-----------------------------------
Title: Executive Vice President & CFO
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REAFFIRMATION OF GUARANTEE
Each of the undersigned has executed the Guarantee, dated August 19,
1998 (the "Guarantee") in favor of Congress Financial Corporation (Western), a
California corporation ("Congress") respecting the obligations of Sensory
Science Corporation, a Delaware corporation (fka Go-Video, Inc.) ("Sensory"),
and California Audio Labs, LLC, a California limited liability company ("Cal
Audio" together with Sensory, collectively the "Borrowers") owing to Congress.
Each undersigned acknowledges the terms of Amendment Number Five to Second
Amended and Restated Loan and Security Agreement, dated June 30, 2000, and
reaffirms and agrees that (a) the Guarantee remains in full force and effect,
(b) nothing in such Guarantee obligates Congress to notify the undersigned of
any changes in the financial accommodations made available to Borrowers or to
seek reaffirmations of the Guarantee and (c) no requirement to so notify the
undersigned or to seek reaffirmations in the future shall be implied by the
execution of the reaffirmation.
SENSORY SCIENCE CORPORATION,
a Delaware corporation
By: /s/ Thomas E. Linnen
-----------------------------------
Name: Thomas E. Linnen
Title: Executive Vice President & CFO
CALIFORNIA AUDIO LABS, LLC,
a California limited liability company
By: /s/ Thomas E. Linnen
-----------------------------------
Name: Thomas E. Linnen
Title: Executive Vice President & CFO
Dated: June 30, 2000
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