EXHIBIT 10.3
FOURTH AMENDMENT TO
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AMENDED AND RESTATED TERM LOAN AGREEMENT
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AND WAIVER AGREEMENT
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THIS FOURTH AMENDMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT AND
WAIVER AGREEMENT (this "Amendment"), dated as of November 15, 2002, is entered
into by and between SVI SOLUTIONS, INC., a Delaware corporation ("Borrower"),
and UNION BANK OF CALIFORNIA, N.A., a California banking corporation ("Lender"),
with reference to the following facts:
RECITALS
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A. Borrower and Lender are parties to an Amended and Restated Term Loan
Agreement, dated as of June 29, 2001, as amended by that First Amendment to
Amended and Restated Term Loan Agreement, dated as of March 18, 2002 and that
certain Third Amendment to Amended and Restated Term Loan Agreement and Waiver
Agreement, dated as of July 15, 2002, (collectively, the "Loan Agreement"),
pursuant to which the Lender has provided the Term Loan to Borrower.
B. Borrower has requested that Lender waive compliance with certain
requirements of the Loan Agreement as set forth below.
C. Lender is willing to provide Borrower with the foregoing
accommodations on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINED TERMS. All initially capitalized terms used in this
Amendment (including, without limitation, in the Recitals hereto) shall have the
respective meanings specified in the Loan Agreement.
2. WAIVER. Lender hereby waives, on a one-time basis, Borrower's
obligation prior to the date hereof, to comply with (and hereby waives, on a
one-time basis, any Default or Event of Default arising prior to the date hereof
from):
(a) Section 6.18 of the Loan Agreement regarding maintenance
of a Minimum Monthly EBITDA for the Fiscal Quarter ending September 30,
2002.
This waiver shall not constitute a waiver of (i) any future breach of
Section 6.18 or (ii) any other term or condition of the Loan Agreement or any
future breach thereof.
3. CONDITIONS PRECEDENT. The effectiveness of this Amendment shall be
subject to the prior satisfaction of each of the following conditions:
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(i) THIS AMENDMENT. Lender shall have received this Amendment,
duly executed by Borrower; and
(ii) ACKNOWLEDGEMENT OF SUBSIDIARY GUARANTORS. The Subsidiary
Guarantors shall have executed the Acknowledgement of Subsidiary
Guarantors form attached to the end of this Amendment.
4. RELEASE. In consideration of the execution and delivery of this
Amendment, Borrower hereby releases, remises and forever discharges Lender, its
respective officers, directors, employees, agents, affiliates and attorneys,
without conditions precedent to effectiveness, from all actions and causes of
action heretofore arising out of or related to the Loan Agreement and the Loan
Documents, or the relationship of Borrower and Lender, in each case whether
known or unknown to Borrower as of the date hereof. Borrower acknowledges that
it has been advised by legal counsel, to the extent that it has seen fit, and is
familiar with and waives the provision of California Civil Code Section 1542,
which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
5. NO OTHER AMENDMENTS; REAFFIRMATION OF LOAN DOCUMENTS; NO DEFENSES.
Except as expressly amended hereby, the Loan Agreement shall remain unaltered
and in full force and effect. Borrower hereby reaffirms the Loan Agreement and
the other Loan Documents and its obligations to Lender thereunder. Borrower
acknowledges that Lender has fully complied with its obligations under the Loan
Agreement and the other Loan Documents and that Borrower has no defenses to the
validity, enforceability or binding effect of the Loan Agreement or any other
Loan Document or of any of the respective amendments thereto.
6. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, and all of which taken
together, shall constitute but one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective duly authorized officers as of the date first above written.
SVI SOLUTIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chairman and CEO
UNION BANK OF CALIFORNIA, N.A.,
a California banking corporation
By: /s/ Xxxx-Xxxxxx Xxxxxx
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Name: Xxxx-Xxxxxx Xxxxxx
Title: VP
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ACKNOWLEDGEMENT OF SUBSIDIARY GUARANTORS
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The undersigned hereby (a) ratify and reaffirm all of their
obligations to Lender under the Subsidiary Guaranty, (b) consent to the
execution and delivery by Borrower of the Amendment to which this
Acknowledgement of Subsidiary Guarantors is attached and (c) confirm that the
Subsidiary Guaranty remains in full force and effect. The undersigned agree that
the execution of this acknowledgement of Subsidiary Guarantors is not necessary
for the continued validity and enforceability of the Subsidiary Guaranty, but is
executed to induce Lender to enter into the Amendment.
Dated: As of November 15, 2002
SABICA VENTURES, INC.,
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: CEO
SVI RETAIL, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: CEO
SVI TRAINING PRODUCTS, INC.
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Board Director
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