Exhibit 10.18
[Bank One Letterhead]
October 15, 2001
Technical Consumer Products, Inc.
000 Xxxx Xxxxx
Xxxxxx, Xxxx 00000
Attn: President
RE: CREDIT AND SECURITY AGREEMENT DATED AUGUST 10, 2001 (THE "CREDIT
AGREEMENT") BETWEEN TECHNICAL CONSUMER PRODUCTS, INC. (THE "BORROWER")
AND BANK ONE, MICHIGAN (THE "BANK")
Ladies and Gentlemen:
By way of background, Sections 7.1(C) and 7.2 (D), (I) and (N),
respectively, of the Credit Agreement prohibit the Borrower from, among other
things, merging with any other Person (as this and other capitalized terms used
herein and not defined herein are defined in the Credit Agreement), making
certain payments to Affiliates, and changing the state of its formation. You
have advised us that, on advice of counsel, you desire to merge (the "Merger")
into Technical Consumer Products, Inc., which is your wholly owned Subsidiary
incorporated under the laws of the State of Delaware (the "Delaware
Subsidiary"), with the Delaware Subsidiary being the surviving corporation of
the Merger. In connection with the Merger, you have indicated that, effective
contemporaneously with the Merger (i) the charter and by-laws of the Delaware
Subsidiary will be modified to be in the form of Exhibits A and B, respectively,
hereto and (ii) the Delaware Subsidiary intends to commence to pay to the
directors, and therefore Affiliates, of the Delaware Subsidiary directors' fees.
Subject to the requirements set forth below in this letter, the Bank
hereby consents to (i) the Merger, in connection with which the state of
formation of the Borrower will change from Ohio to Delaware, and (ii)
notwithstanding Section 7.2(I) of the Credit Agreement, the payment of fees to
the directors of the Delaware Subsidiary, the award of equity incentives,
including stock options and the reimbursement to such directors of travel and
other out-of-pocket expenses incurred in attending meetings of the board of
directors, so long as such cash fees to all directors taken together do not
exceed $100,000 in the aggregate per fiscal year of the Delaware Subsidiary,
excluding awards of equity incentives, such as stock options, to and excluding
the reimbursement of travel and their related out-of-pocket expenses incurred in
attending meetings of the board of directors.
The foregoing consents are subject to the satisfaction of the following
conditions precedent: (a) the Delaware Subsidiary shall have executed and
delivered to the Bank a ratification and amendment
Technical Consumer Products, Inc.
October 15, 2001
Page 2
agreement, in form and substance satisfactory to the Bank, confirming its
assumption, by operation of law and as successor by merger to you, of the
indebtedness and other obligations of the Borrower under, and amending certain
provisions of, the Credit Agreement, the Revolving Note and the other Other
Agreements and ratifying those agreements and documents, (b) the Delaware
Subsidiary shall have delivered to the Bank a copy of its charter in the form of
Exhibit A hereto, certified by the Secretary of State of Delaware, (c) the
Delaware Subsidiary shall have delivered to the Bank a true and complete copy of
its by-laws in the form of Exhibit B hereto, certified by the Secretary of the
Delaware Subsidiary, (d) the Delaware Subsidiary shall have delivered to the
Bank a true and complete copy of resolutions of the board of directors of the
Delaware Subsidiary authorizing its execution and delivery of such ratification
and assumption of the Credit Agreement, the Revolving Note and the other Other
Agreements, which resolutions shall be certified by the Secretary of the
Delaware Subsidiary, (e) the Delaware Subsidiary shall have delivered to the
Bank the opinion of its counsel, Xxxxx, Day, Xxxxxx & Xxxxx, in the form of
Exhibit C hereto, and (f) the Delaware Subsidiary shall have executed, delivered
and, if appropriate caused to be filed for record, such financing statements and
other documents, and shall have taken such other actions in connection with such
ratification and assumption, as the Bank shall reasonably request.
Xxxxxx Xxxxxxxx is not now a director of the Borrower, and it is not
expected that Xxxxxx Xxxxxxxx will serve as a director of the Delaware
Subsidiary. However, until recently Xx. Xxxxxxxx was a director and, therefore,
an Affiliate of the Borrower. While Xx. Xxxxxxxx was a director of the Borrower,
the Borrower made certain residual sales commission payments to him in respect
of sales by the Borrower to customers introduced to the Borrower by Xx.
Xxxxxxxx. The Borrower has advised the Bank that such payments were made
pursuant to an agreement between the Borrower and Xx. Xxxxxxxx entered into in
the ordinary course of the Borrower's business and before Xx. Xxxxxxxx became a
director of the Borrower. To the extent that such payments constitute an Event
of Default (under Section 8.1(B) of the Credit Agreement, by reference to
Section 7.2(I) thereof), the Bank hereby waives such Event of Default.
In Section 6.1(G) of the Credit Agreement, as reformed and amended on
September 10, 2001, the Borrower represented and warranted to the Bank that
"100% of all outstanding shares of Stock of Borrower are owned by Yan, Xxxxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxxxx Xxxxxx [sic] and Xxxxxxxx Xxxxxx." The Borrower has
informed the Bank that the Borrower repurchased all of the shares of Stock owned
by Xx. Xxxxx, and that Xx. Xxxxxx does not own any Stock of the Borrower. By
this letter, the Bank hereby waives any and all Events of Default under Section
8.1(C) of the Credit Agreement that may have occurred prior to this issuance of
this letter by reference to the Borrower's breach of warranty contained in
Section 6.1(G) with respect to the repurchase of Xx. Xxxxx'x shares of Stock or
the fact that Xx. Xxxxxx does not own any Stock of the Borrower. In addition, by
this letter, the Borrower and the Bank shall be deemed to have reformed and
amended the provisions of the Credit Agreement as of the date of this letter to
exclude both Xx. Xxxxx and Xx. Xxxxxx as holders of Stock of the Borrower.
The Borrower has also informed the Bank that:
Technical Consumer Products, Inc.
October 15, 2001
Page 3
Xxxxxxx Xxxxx is not now a shareholder of the Borrower, however,
until September 30, 2001, Xx. Xxxxx owned 5% (10 shares) of the
Borrower's outstanding common shares and, therefore, was an
Affiliate of the Borrower. Effective as of September 30, 2001,
the Borrower repurchased all 10 of its common shares owned by
Xx. Xxxxx for an aggregate cash purchase price of $500.
Additionally, the Borrower, Xx. Xxxxx and Xx. Xxxxx'x company,
Practical Innovations, Inc., have been parties to a number of
related license agreements pursuant to which the Borrower was
granted licenses to use Practical Innovation's electronic
ballast technology in exchange for a license fee and royalty
payments. During the period from August 10, 2001 until September
30, 2001 the Borrower's licensing arrangement with Xx. Xxxxx and
Practical Innovations was governed by a license agreement that
was entered into in May 2001 and that incorporated the terms of
certain prior license agreements. Under the terms of the May
2001 agreement, the Borrower paid Practical Innovations an
aggregate of $108,334 of royalties during the period from August
10, 2001 until September 30, 2001. Effective simultaneously with
the repurchase of the Borrower's common shares owned by Xx.
Xxxxx, the Borrower, Xx. Xxxxx and Practical Innovations entered
into an amended and restated license agreement. Under the terms
of this agreement, the Borrower agreed to, among other things,
satisfy all of its obligations under the agreement by making a
$2,160,000 non-refundable payment to Practical Innovations
payable over four years and six months. The Borrower also agreed
under this agreement to pay $200,000 to Practical Innovations on
October 10, 2001 as consideration for releasing it and certain
other parties, including Shanghai Zhenxin Electronic Engineering
Co., Ltd. ("Shanghai Zhenxin") and Shanghai Jensing Electron
Electrical Equipment Co., Ltd ("Shanghai Jensing," together with
Shanghai Zhenxin, "Suppliers"), from any liabilities arising on
or prior to September 30, 2001 under certain agreements that the
Borrower and/or Suppliers are a party to with Xx. Xxxxx and/or
Practical Innovations as well as in exchange for terminating
certain agreements that the Borrower or Suppliers were a party
to with Xx. Xxxxx and/or Practical Innovations.
To the extent that such payments constitute an Event of Default, (under Section
8.1(B) of the Credit Agreement, by reference to Section 7.2(I) thereof), the
Bank hereby waives such Event of Default.
Finally, the Borrower has also informed the Bank that:
The Borrower purchases substantially all of its products from
Suppliers, Affiliates of the Borrower. In addition, effective
December 31, 1998, the Borrower refinanced $931,328 of its trade
accounts payable to Suppliers outstanding at December 31, 1998
with a promissory note to Shanghai Zhenxin in the amount of
$164,571 and a promissory note to Shanghai Jensing in the amount
of $766,757. Both notes are due on January 9, 2009 and bear
interest at 6% per annum. The interest due on these notes has
been offset against certain fees that the Borrower charges to
these companies for management and advisory services that the
Borrower provided related to expansion, quality control,
production,
Technical Consumer Products, Inc.
October 15, 2001
Page 4
component sourcing, accounting, freight and logistics. The
Borrower has represented to the Bank that (i) such product
purchases are in the ordinary course of the Borrower's business
and that it intends to continue to purchase products from
Suppliers and (ii) the providing of such services to Suppliers
and the compensation received by the Borrower therefor (in the
form of such offsets) is on a basis that is at least as fair to
the Borrower as would be the case if the transactions between the
Borrower and Supplier were arms-length and not between
Affiliates. In addition, the Borrower has advised the Bank that,
subject to the restrictions set forth in a separate Intercreditor
and Subordination Agreement of even date with the Credit
Agreement among the Borrower, the Bank and each Supplier, it may
pay interest on, and/or repay the outstanding principal due with
respect to, such notes in cash.
To the extent that such payments constitute an Event of Default, (under Section
8.1(B) of the Credit Agreement, by reference to Section 7.2(I) thereof), the
Bank hereby waives such Event of Default and, notwithstanding Section 7.2(I) of
the Credit Agreement, consents to the Borrower's continuing to make such
payments in the future but only so long as any such payment is made pursuant to
the terms and conditions of the Intercreditor and Subordination Agreement to
which the Supplier receiving such payment is a party.
The foregoing consents and waivers are limited to their express terms
and shall not be construed to consent to any other action taken or proposed by
the Borrower or the Delaware Subsidiary, or to waive any other Event of Default
that may heretofore have occurred or hereafter may occur, and shall not be
construed as a commitment or undertaking by the Bank to grant additional
consents or waivers in the future.
Kindly confirm the Borrower's receipt of this letter and its agreement
to the terms of this letter by signing a copy hereof on the space provided.
Very truly yours,
BANK ONE, MICHIGAN
By:/s/Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Vice President
Technical Consumer Products, Inc.
October 15, 2001
Page 5
CONFIRMATION
The Borrower hereby confirms its receipt of the foregoing letter and
the Borrower's agreement to the terms thereof this 16th day of October, 2001.
TECHNICAL CONSUMER PRODUCTS, INC.
By:/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Vice President, Secretary, Treasurer
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