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Exhibit 10.28  


 
 

TENTH AMENDMENT TO FINANCING AGREEMENT    
  


        This TENTH AMENDMENT TO FINANCING AGREEMENT (this "Amendment"), dated as of March 3, 2003, is entered into
by and among SHARPER IMAGE CORPORATION, a Delaware corporation (the "Borrower"), and the CIT GROUP/BUSINESS CREDIT, INC., a New York corporation
("CITBC"), and amends that certain Financing Agreement, dated September 21, 1994 (as the same is in effect immediately prior to the effectiveness
of this Amendment, the "Existing Financing Agreement" and as the same may be amended, supplemented or modified and in effect from time to time, the
"Financing Agreement"), by and between the Borrower and CITBC. Capitalized terms used and not otherwise defined in this Amendment shall have the same
meanings in this Amendment as set forth in the Financing Agreement. 


RECITAL 


        The
Borrower has requested that CITBC amend various provisions of the Existing Financing Agreement, and CITBC is willing to agree to so amend the Existing Financing Agreement on the
terms and subject to the conditions set forth below. 


AGREEMENT 


        NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth below and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows: 


        SECTION
1.    Amendments.    On the terms of this Amendment and subject to the satisfaction of the conditions
precedent set forth below in Section 2, CITBC and the Borrower hereby agree as follows: 



        (a)  Section
6, Paragraph 12 of the Existing Financing Agreement is hereby amended and restated in its entirety to read as follows: 



        "Without
the prior written consent of CITBC, the Company will not contract for, purchase, make expenditures for, lease pursuant to a Capital Lease or otherwise incur obligations with
respect to Capital Expenditures (whether subject to a security interest or otherwise) during the Company's fiscal year ending January 31, 2003 in an aggregate amount in excess of $24,000,000." 




        (b)  Section
6, Paragraph 9 (H) of the Existing Financing Agreement is hereby amended temporarily to add the following to the end of Paragraph 9 (H): 



        "Notwithstanding
the foregoing in this clause G, during the period commencing on this date and ending six months from the date hereof, Company may purchase the common stock of
Kronos Advanced Technologies, Inc. provided that the aggregate amount of the purchase price thereof does not exceed $300,000.00 during such period and provided
further that no Default or Event of Default is then in existence or would be in existence after giving effect to any such purchase." 





        SECTION
2.    Conditions to Effectiveness.    The amendments set forth in Section 1 of this Amendment shall
become effective only going forward upon the satisfaction of all of the following conditions precedent (the date of satisfaction of all such conditions being referred to as the
"Amendment Effective Date"): 



        (a)  On
or before the Amendment Effective Date, CITBC shall have received this Amendment, duly executed and delivered by the Borrower. 



        (b)  On
or before the Amendment Effective Date, all corporate and other proceedings taken or to be taken in connection with the transactions contemplated by this Amendment,
and all 






 





documents incidental thereto, shall be reasonably satisfactory in form and substance to CITBC and its counsel, and CITBC and such counsel shall have received all such counterpart originals or
certified copies of such documents as they may reasonably request. 


        (c)  On
or before the Amendment Effective Date, CITBC shall have received a legal documentation fee of $10,000.00, which fee shall be fully earned as of the date hereof. 


        (d)  Each
of the representations and warranties set forth in this Amendment shall be true and correct as of the Amendment Effective Date. 




        SECTION
3.    Representations and Warranties.    In order to induce CITBC to enter into this Amendment and to amend
the Existing Financing Agreement in the manner provided in this Amendment, the Borrower represents and warrants to CITBC as of the Amendment Effective Date as follows: 



        (a)  Power and Authority.    The Borrower has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Existing Financing Agreement as amended by this Amendment (hereafter referred to as the
"Amended Financing Agreement"). 


        (b)  Authorization of Agreements.    The execution and delivery of this Amendment by the Borrower and the
performance of the Amended Financing Agreement by the Borrower have been duly authorized by all necessary action, and this Amendment has been duly executed and delivered by the Borrower. 


        (c)  Enforceability.    The Amended Financing Agreement constitutes the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights in
general. The enforceability of the obligations of the Borrower hereunder is subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law). 


        (d)  No Conflict.    The execution and delivery by the Borrower of this Amendment and the performance by the
Borrower of the Amended Financing Agreement do not and will not (i) contravene, in any material respect, any provision of any law, regulation, decree, ruling, judgment or order that is
applicable to the Borrower or its properties or other assets, (ii) result in a breach of or constitute a default under the charter, bylaws or other organizational documents of the Borrower, or
any material agreement, indenture, lease or instrument binding upon the Borrower or its properties or other assets or (iii) result in the creation or imposition of any liens on its properties
other than as permitted under the Financing Agreement. 


        (e)  Governmental Consents.    No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Amendment. 


        (f)    Representations and Warranties in the Financing Agreement.    The Borrower confirms that as of the Amendment
Effective Date the representations and warranties contained in Section 6 of the Financing Agreement are (before and after giving effect to this Amendment) true and correct in all material
respects (except to the extent any such representation and warranty is expressly stated to have been made as of a specific date, in which case it shall be true and correct as of such specific date)
and that no Default or Event of Default has occurred and is continuing. 



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        SECTION
4.    Miscellaneous.    



        (a)  Reference to and Effect on the Existing Financing Agreement.



          (i)  Except
as specifically amended by this Amendment and the documents executed and delivered in connection herewith, the Existing Financing Agreement shall remain in full
force and effect and is hereby ratified and confirmed. 


        (ii)  The
execution and delivery of this Amendment and performance of the Amended Financing Agreement shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of CITBC under, the Existing Financing Agreement or any agreement or document executed in connection therewith. 


        (iii)  Upon
the conditions precedent set forth herein being satisfied, this Amendment shall be construed as one with the Existing Financing Agreement, and the Existing
Financing Agreement shall, where the context requires, be read and construed throughout so as to incorporate this Amendment. 




        (b)  Fees and Expenses.    The Borrower acknowledges that all costs, fees and expenses incurred in connection with
this Amendment will be paid in accordance with Section 7, Paragraph 4 of the Existing Financing Agreement. 


        (c)  Headings.    Section and subsection headings in this Amendment are included for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose or be given any substantive effect. 


        (d)  Counterparts.    This Amendment may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument. 


        (e)  Governing Law.    This Amendment shall be governed by and construed according to the laws of the State of
California. 




        IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written. 



	

 	
 	

SHARPER IMAGE CORPORATION, a Delaware corporation
	



	
 	

 	

 
	 	 	By:	/s/  JEFFREY P. FORGAN      

	 	 	Name:	Jeffrey P. Forgan
	 	 	Title:	EVP, CFO
	

 	
 	

By:	

/s/  KAREN LUEY-SUI      

	 	 	Name:	Karen Luey-Sui
	 	 	Title:	VP, Finance Controller
	



	
 	

 	

 
	 	 	THE CIT GROUP/BUSINESS CREDIT, INC., a New York Corporation
	



	
 	

 	

 
	 	 	By:	/s/  ADRIAN AVALOS      

	 	 	Name:	Adrian Avalos
	 	 	Title:	Vice President




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TENTH AMENDMENT TO FINANCING AGREEMENT