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EXHIBIT 1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT, dated as of December 15, 1998, among WEST COAST
ENTERTAINMENT CORPORATION (the "Company"), certain direct and indirect
subsidiaries thereof which are signatory hereto (together with the Company,
individually, a "Borrower"; collectively, the "Borrowers"), the several banks
and other financial institutions parties to the Existing Credit Agreement (as
hereinafter defined) (individually, a "Bank"; collectively, the "Banks") and PNC
BANK, NATIONAL ASSOCIATION, as agent (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Borrowers, the Banks and the Agent are parties to a Credit
Agreement, dated as of December 15, 1997 (as heretofore amended, supplemented or
otherwise modified, the "Existing Credit Agreement");
WHEREAS, Borrowers have informed the Banks that certain Defaults and Events
of Default exist and are continuing under the Existing Credit Agreement which
Defaults and Events of Default are set forth below;
WHEREAS, the Borrowers have requested the Banks to (i) make available to
the Borrowers additional loans and credit commitments to enable the Borrowers to
pay certain expenses and for general working capital which loans and
commitments, when added to the Loans to the Company currently outstanding under
the Existing Credit Agreement, would exceed the Total Commitments under the
Agreement, (ii) waive the existing Defaults and Events of Default, and (iii)
make certain other amendments to the Existing Credit Agreement; and
WHEREAS, the Banks have agreed to certain of the Borrowers' requests
pursuant to the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
SECTION I
ACKNOWLEDGMENTS
1.1 Terms Defined in the Existing Credit Agreement. Unless otherwise
amended or defined herein, the capitalized terms used in this Third Amendment
shall have the same definitions as are contained in the Existing Credit
Agreement.
1.2 Acknowledgment of Events of Default; Enforceability of Credit
Agreement; Waiver of Defenses. The Borrowers acknowledge that: (i) certain
Defaults and Events of Default have occurred and/or currently exist under the
Existing Credit Agreement, which Defaults or
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Events of Default are described on Schedule I attached hereto (the "Existing
Defaults"), (ii) as a result of the Existing Defaults and but for the waiver of
the Existing Defaults as set forth in this Third Amendment, the Agent, on
behalf of the Banks, without the need for further notice or declaration to the
Borrowers or any other entity, would be entitled to exercise its rights and
remedies under the Existing Credit Agreement and the other Loan Documents;
(iii) the Existing Credit Agreement and the other Loan Documents are
enforceable against the Borrowers in every respect, and all of the terms and
conditions thereof, as amended by this Third Amendment, are binding upon the
Borrowers; (iv) the Loans and other indebtedness owing to the Banks under the
Existing Credit Agreement and the other Loan Documents are absolutely and
unconditionally owing without defense, offset or counterclaim, and (v) no
defenses, set-offs or counterclaims exist with respect to the enforcement by
the Agent or the Banks of their respective rights under the Existing Credit
Agreement and the Loan Documents.
1.3 Acknowledgment of Indebtedness. The Borrowers acknowledge that as of
the date hereof, the Borrowers are indebted to the Banks in the principal
amount of $65,000,000, together with unpaid, accrued interest through the date
of this Third Amendment and together with the Agent's and the Banks' costs of
collection of the aforesaid amount which costs of collection include, without
limitation, the Agent's and the Banks' attorneys' and consultant fees incurred
in connection with the preparation, negotiation, execution and recordation of
this Third Amendment and the various other documents executed in connection
with this Third Amendment and the verification of information provided to the
Banks by the Borrowers prior to the execution of this Third Amendment.
1.4 Acknowledgment of Liens and Priority/Grant of Security Interest. The
Borrowers acknowledge that the Agent holds, for the benefit of the Banks,
perfected security interests in and liens upon the Collateral pursuant to the
Security Documents, which security interests and liens are of the first
priority and which security interests and liens secure the Borrowers'
obligations to the Banks under the Loan Documents, as amended hereby. The
Borrowers further acknowledge the prior execution and delivery to the Agent for
the benefit of the Banks of the Security Documents and that, notwithstanding
the execution and delivery of this Third Amendment, the Security Documents
remain in full force and effect and the rights and remedies of the Agent and
the Banks thereunder, the obligations of the Borrowers thereunder, and the
liens and security interests created and provided for thereunder remain in full
force and effect and shall not be affected, impaired or discharged hereby.
Except as specifically set forth in this Third Amendment, nothing contained
herein shall in any manner affect or impair the priority of the liens and
security interests created and provided for by the Security Documents as to the
indebtedness which would be secured thereby prior to giving effect to this
Third Amendment. Without limiting the foregoing, the Borrowers, the Agent and
each of the Banks acknowledge and agree that all of the indebtedness,
obligations and liabilities to the Agent and the Banks pursuant to the Existing
Credit Agreement as amended hereby, including, without limitation, the
indebtedness and obligations of the Borrowers to the Overadvance Banks
(hereinafter defined) with respect to the Overadvance Loans (hereinafter
defined) and the fees and costs associated therewith, shall constitute
indebtedness secured by each of the Security Documents and shall be secured by,
and entitled to all of the benefits of, the liens and security interests
created and
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provided for under each of the Security Documents. In furtherance of the
foregoing, the Borrowers hereby grant to the Agent for the benefit of the Banks
and the Borrowers hereby acknowledge the previous grant to the Agent for the
benefit of the Banks and agree that the Agent for the benefit of the Banks shall
continue to hold a continuing security interest in all of the Borrowers'
property, both real and personal, presently existing or hereinafter created,
tangible and intangible, including without limitation, all of the Borrowers'
accounts, accounts receivable, inventory, equipment, furniture, general
intangibles, contracts, contract rights, leases, chattel paper and all
accessions and additions thereto, together with all products, rents, offspring,
profits and proceeds of each of the foregoing, and all proceeds from the
collection of any of the foregoing (which proceeds are further acknowledged to
include all rents, rental payments, charges, fees and/or all other consideration
whenever and in whatever form received by Borrowers or any of them for the lease
or rental of rental video cassettes, rental digital video discs and rental game
inventory in the ordinary course of Borrowers' business) and in all other
property described or referred to in the granting clauses of the Security
Documents as same have been or may hereafter or herewith be amended, each and
all of which granting clauses are hereby incorporated by reference herein in
their entirety. The foregoing grant shall be in addition to and supplemental of
and not in substitution for the grant by the Borrowers under the Security
Documents, and except as specifically set forth in this Third Amendment, shall
not affect or impair the lien or priority of the Security Documents in the
Collateral subject thereto or the indebtedness secured thereby.
SECTION II
WAIVER OF EXISTING DEFAULTS
2.1 Waiver of Existing Defaults. On and as of the Third Amendment
Effective Date (hereinafter defined), the Agent and the Banks waive the
Existing Defaults.
2.2 Limitations. Except as specifically set forth in Section 2.1 above,
nothing contained in this Third Amendment nor any communication between the
Agent and/or the Banks and any Borrower or any officer, agent, employee, or
representative of any Borrower shall be deemed to constitute a waiver of (i) any
Defaults or Events of Default existing under the Existing Credit Agreement other
than the Existing Defaults; (ii) the ongoing obligation of the Borrowers to
comply with the Existing Credit Agreement, as amended hereby; or (iii) any
rights or remedies which the Agent and/or the Banks have against the Borrowers
under the Agreement, the Loan Documents and/or applicable law, other than rights
and remedies which directly result from the occurrence and existence of the
Existing Defaults. The Agent and the Banks hereby reserve and preserve all of
their rights and remedies against the Borrowers under the Agreement, the Loan
Documents and under applicable law, other than the right to declare an Event or
Default or exercise remedies based upon the occurrence and existence of the
Existing Defaults, including, without limitation, the right to declare a Default
or Event of Default and exercise remedies should an Event of Default presently
exist which has not been disclosed to the Agent and the Banks by the Borrowers
and which is not part of the defined "Existing Defaults" or should an Event of
Default occur after the date of this Third Amendment.
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SECTION III
AMENDMENTS TO SECTION 1. OF EXISTING CREDIT
AGREEMENT/DEFINITIONS
3.1 Amendments to Defined Terms. (a) The definitions of the following terms
contained in Section 1.1 of the Existing Credit Agreement shall be amended and
restated as follows as of the date of this Third Amendment:
"Applicable Margin": shall mean (i) 2.0% with respect to Base Rate
Tranche A Loans and Base Rate Tranche B Loans, (ii) 2.5% with respect to
Tranche A Overadvance Loans, and (iii) 3.5% with respect to Tranche B
Overadvance Loans.
"Base Rate": shall mean for any day, a rate per annum equal to the
Prime Rate in effect on such day. Any change in the Base Rate due to a
change in the Prime Rate shall be effective on the effective date of such
change in the Prime Rate.
"Commitments": shall mean collectively the Tranche A Commitments, the
Tranche B Commitments and the Overadvance Commitments.
"Letters of Credit": shall have the meaning set forth in Section
2.20(f) of the Agreement.
"L/C Participant": shall mean, in respect of each Letter of Credit,
each Overadvance Bank (other than the Issuing Bank in respect of such
Letter of Credit) in its capacity as the holder of a participating interest
in such Letter of Credit.
"Loans": shall mean collectively the Tranche A Loans, Tranche B Loans
and the Overadvance Loans.
"Notes": shall mean collectively the Tranche A Notes, the Tranche B
Notes and the Overadvance Notes.
"Termination Date": shall mean the earlier of (a) February 14, 2000,
or (b) the date the Commitments are terminated as provided herein.
(b) The definition of the term "Permitted Liens" is amended as follows: in
subsection (h) of that definition the dollar amount "$2,000,000" is deleted and
the dollar amount of "$3,500,000" is inserted in its place.
3.2 Additions to Defined Terms. Subsection 1.1 of the Existing Credit
Agreement shall be supplemented and amended by inserting the following defined
terms and definitions therein in their correct alphabetical order:
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"Available Overadvance Commitments": shall mean, at any particular time, an
amount equal to the excess, if any, of the (a) Overadvance Commitments at such
time over (b) the sum of the aggregate unpaid principal amount of the
Overadvance Loans outstanding at such time which shall include, without
limitation, amounts available to be drawn but not yet drawn under Letters of
Credit.
"Bank Debt": shall mean the unpaid principal amount of and interest on the
Notes and all other obligations and liabilities of the Borrowers to the Agent or
any Bank, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Agreement, the Notes, the Letters of Credit, the other Loan
Documents and any other document made, delivered or given in connection
therewith or herewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise.
"Budget": shall mean the budget and Cash Flow forecast for the Budgeted
Period prepared and proposed by the Borrowers and updated and provided to the
Banks biweekly during the period commencing on the Third Amendment Effective
Date through the Termination Date and approved as to form and content by the
Required Overadvance Banks, in their reasonable discretion, for so long as the
Overadvance Commitments exist or any Overadvance Loans are outstanding and
thereafter by the Required Banks, in their reasonable discretion.
"Budgeted Expenses": shall refer to line items contained on the Budget
indicating categories of expenditures anticipated to be made by the Borrowers
during the Budgeted Period.
"Budgeted Period": shall mean the period of time covered by a Budget. Each
Budgeted Period shall be thirteen weeks. The initial Budgeted Period shall
commence on December 14, 1998 and shall end March 15, 1999.
"Existing Commitment Percentage": shall mean, as to any Bank, at any time,
the percentage which such Bank's Tranche A Commitment and Tranche B Commitment
then constitutes of the total Tranche A Commitments and Tranche B Commitments of
all Banks at such time (or at any time after the Tranche A Commitments and the
Tranche B Commitments shall have expired or terminated, the percentage which the
amount of such Bank's Existing Exposure constitutes of the Existing Exposure of
all Banks at such time).
"Existing Exposure": shall mean as to any Bank, at any time, an amount
equal to the sum of the aggregate principal amount of Tranche A Loans and
Tranche B Loans made by such Bank then outstanding.
"Overadvance Banks": shall mean those Banks making Overadvance Loans in
accordance with their Overadvance Commitments hereunder.
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"Overadvance Commitments": shall mean, as to any Bank, the Tranche A
Overadvance Commitment and the Tranche B Overadvance Commitment of such Bank as
set forth on Schedule II attached to the Third Amendment.
"Overadvance Commitment Percentage" as to any Overadvance Bank at any time,
the percentage which such Overadvance Bank's Overadvance Commitment then
constitutes of the Total Overadvance Commitments at such time (or, at any time
after the Total Overadvance Commitments shall have expired or terminated, the
percentage which the amount of such Overadvance Bank's Overadvance Exposure
constitutes of the total Overadvance Exposure of all of the Overadvance Banks at
such time).
"Overadvance Commitment Period": shall mean the period from and including
the Third Amendment Effective Date to, but not including, the Termination Date.
"Overadvance Exposure": as to any Overadvance Bank, at any time, the
sum of such Bank's Tranche A Overadvance Exposure and Tranche B Overadvance
Exposure.
"Overadvance Loans": shall mean collectively the Tranche A Overadvance
Loans and Tranche B Overadvance Loans.
"Overadvance Notes": shall mean collectively the Tranche A Overadvance
Notes and Tranche B Overadvance Notes.
"Required Overadvance Banks": at any time, Overadvance Banks the
Overadvance Commitment Percentages of which at such time aggregate at least
66-2/3%.
"Third Amendment": shall mean the Third Amendment to the Agreement dated as
of December 15, 1998 among the Borrowers, the Banks and the Agent.
"Third Amendment Effective Date": shall mean the date on which all the
conditions set forth in Section XI of the Third Amendment have been duly
satisfied in the sole and absolute discretion of the Agent and the Banks as
evidenced by their execution of the Third Amendment.
"Total Overadvance Commitments": shall mean $5,000,000 which is the
aggregate amount of the Overadvance Banks' Overadvance Commitments.
"Tranche A Overadvance Commitment": shall mean, as to any Overadvance Bank,
the obligation of such Bank to make Tranche A Overadvance Loans and to acquire
participating interests in Letters of Credit hereunder in an aggregate amount at
any one time outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule II hereto under the Caption "Tranche A Overadvance
Commitments," as such amount may be changed from time to time in accordance with
the provisions of the Agreement and/or any applicable Assignment and Acceptance.
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"Tranche B Overadvance Commitment": shall mean, as to any Overadvance Bank,
the obligation of such Bank to make Tranche B Overadvance Loans in an aggregate
amount at any one time outstanding not to exceed the amount set forth opposite
such Bank's name on Schedule II hereto under the Caption "Tranche B Overadvance
Commitment," as such amount may be changed from time to time in accordance with
the provisions of the Agreement and/or any applicable Assignment and Acceptance.
"Tranche A Overadvance Loan": shall have the meaning ascribed thereto in
Section 2.20(a) of the Agreement.
"Tranche B Overadvance Loan": shall have the meaning ascribed thereto in
Section 2.20(b) of the Agreement.
"Tranche A Overadvance Exposure": shall mean, as to any Overadvance Bank at
any time, an amount equal to the sum of (a) the aggregate principal amounts of
Tranche A Overadvance Loans made by such bank then outstanding and (b) such
Overadvance Bank's share of the L/C Obligations then outstanding.
"Tranche A Overadvance Notes": shall have the meaning ascribed thereto in
Section 2.20(d) of the Agreement.
"Tranche B Overadvance Exposure": shall mean as to any Overadvance Bank at
any time the aggregate principal amounts of Tranche B Overadvance Loans made by
such Bank then outstanding.
"Tranche B Overadvance Notes": shall have the meaning ascribed thereto in
Section 2.20(e) of the Agreement.
SECTION IV
AMENDMENTS TO SECTION 2. OF EXISTING CREDIT AGREEMENTS/LOANS AND
TERMS OF COMMITMENTS
4.1 Amendments to Section 2.1 of the Existing Credit Agreement. Subsections
2.1(a) and (b) of the Existing Credit Agreement are hereby amended to provide
that, from and after the Third Amendment Effective Date, the Tranche A Loans and
the Tranche B Loans will no longer revolve and all principal repayments of the
Tranche A loans and/or the Tranche B Loans made by the Borrowers following the
Third Amendment Effective Date shall permanently reduce the principal balance
outstanding thereunder and shall not be available for reborrowing. Except as set
forth in Section 2.16(d), no payments made by the Borrowers to the Banks shall
be applied by the Banks to reduce the principal amounts outstanding under the
Tranche A Loans or Tranche B Loans until and unless the Overadvance Loans have
been paid in full and there is no further Overadvance Commitment. Subsection
2.1(c) and (d) are hereby deleted from the Agreement.
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4.2 Amendments to Section 2.2 of the Existing Credit Agreement. Section
2.2(a) of the Existing Credit Agreement shall be amended by inserting in the
parenthesis immediately before the term "Tranche A Note" where it first appears
the following words: "as it may be amended, modified or supplemented from time
to time". Section 2.2(b) of the Existing Credit Agreement shall be amended by
inserting in the parenthesis immediately before the term "Tranche B Note" where
it first appears the following words: "as it may be amended, modified or
supplemented from time to time".
4.3 Amendments to Section 2.3 of the Existing Credit Agreement/Procedure
for Loans. Section 2.3 of the Existing Credit Agreement and all references
thereto are hereby deleted as there is no further ability by the Borrowers to
borrow under the Tranche A Commitments or the Tranche B Commitments.
4.4 Amendments to Section 2.4 of the Existing Credit Agreement/L/C
Commitment. As of the Third Amendment Effective Date, Section 2.4 of the
Existing Credit Agreement is deleted in that as of the Third Amendment Effective
Date, the L/C Commitment under the Tranche A Commitment has expired and is no
longer available.
4.5 Amendment to Section 2.12 of the Existing Credit Agreement/Fees.
Section 2.12 of the Existing Credit Agreement is deleted in its entirety.
4.6 Amendment to Section 2.13 of the Existing Credit Agreement/Interest
Rates and Payment Dates.
(a) Section 2.13(a) of the Existing Loan Agreement is amended and restated
as follows:
Until the Third Amendment Effective Date and subject to the provisions of
subsection 2.14 hereof, each Base Rate Tranche A Loan shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Base Rate plus
the Applicable Margin applicable to Base Rate Tranche A Loans. Until the Third
Amendment Effective Date and subject to the provisions of subsection 2.14, each
Base Rate Tranche B Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be) at a rate per annum equal to the Base Rate plus the Applicable Margin
applicable to Base Rate Tranche B Loans. Upon and following the Third Amendment
Effective Date, each Base Rate Tranche A Loan and each Base Rate Tranche B Loan
shall accrue interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) at a rate equal to
the Default Rate (the "Interest Accrual Rate"). Notwithstanding the foregoing,
upon and following the Third Amendment Effective Date until the earlier of (i)
June 30, 1999 or (ii) payment of the Bank Debt in full, the Borrowers shall pay
interest to the Agent, for the ratable benefit of the Banks, in arrears in
accordance with the Tranche A Loans and Tranche B Loans then outstanding and,
with respect to each Base Rate Tranche A Loan and each Base Rate Tranche B Loan,
at the Base Rate plus the Applicable Margin applicable to such Loans
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(the "Interest Pay Rate"). Subject to the provisions of subsection (c) of
this Section 2.13, the amount equal to the difference between the interest
that accrued at the Interest Accrual Rate and the Interest Pay Rate (the
"Interest Differential") between the Third Amendment Effective Date and the
earlier of (i) June 30, 1999 or (ii) payment of the Bank Debt in full,
shall be due and payable by the Borrowers to the Agent for the ratable
benefit of the Banks of the earlier to occur of (i) July 1, 1999 or (ii)
the date on which the Bank Debt is fully paid.
(b) Subsection 2.13(b) of the Existing Credit Agreement is amended by
adding to it the following language:
"Notwithstanding the foregoing, upon and following the Third Amendment
Effective Date, as to all Eurodollar Loans which are outstanding on the
Third Amendment Effective Date, such Loans shall continue to bear interest
at the rate in effect on the day immediately preceding the Third Amendment
Effective Date and the Borrowers shall continue to pay such interest on the
Interest Payment Date applicable to such Loans, provided, however, that
(i) as and when the Interest Periods of any Eurodollar Loans outstanding on
the Third Amendment Effective Date expire, such Eurodollar Loans shall
cease to be Eurodollar Loans and shall be immediately converted to Base
Rate Loans which shall accrue interest at the rate set forth in subsection
(a) above, and the Borrowers shall have no further right under the
Agreement to convert Base Rate Loans to Eurodollar Loans or to continue
Eurodollar Loans when they expire.
(c) Subsection (c) of Section 2.13(c) is amended by adding the following
language to the end of that section:
"Notwithstanding the foregoing, upon and following the Third Amendment
Effective Date through the earliest of (i) an Event of Default, (ii) June
30, 1999 or (iii) the date on which the Bank Debt is repaid in full and no
further Commitments exist, the Borrowers shall pay on the Interest Payment
Date (x) with respect to each Base Rate Tranche A Loan and each Base Rate
Tranche B Loan, interest at the Interest Pay Rate and (y) with respect to
any Eurodollar Loan that still exists as of that date, interest at the rate
applicable to such Eurodollar Loan on the day immediately preceding the
Third Amendment Effective Date. If there exist any Bank Debt outstanding
after June 30, 1999, then the Borrowers shall be obligated to pay to the
Banks on July 1, 1999 the Interest Differential that has accrued through
June 30, 1999. If all Bank Debt has been repaid on or prior to June 30,
1999, then the Borrowers shall be relieved of the obligation to pay the
Interest Differential. If there is Bank Debt outstanding after June 30,
1999, interest on the Tranche A Loans and Tranche B Loans shall accrue and
be payable at the Interest Accrual Rate on each Interest Payment Date."
4.7 Amendment to Section 2.14 of the Existing Credit Agreement/Default
Interest. Subsections 2.14(a) and 2.14(b) of the Existing Credit Agreement are
hereby amended to provide a single default rate of interest applicable to all
Loans following the occurrence of any Default
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or Event of Default under the Loan Documents, as amended by the Third
Amendment. Such default rate of interest (the "Default Rate") shall be an
annual rate of interest and (i) with respect to Base Rate Loans and Overadvance
Loans, shall equal the Base Rate plus the Applicable Margin plus 3% and (ii)
with respect to Eurodollar Loans, shall equal the Eurodollar Rate plus the
Applicable Margin in effect on the day immediately preceding the Third
Amendment Effective Date plus 3%. Except as expressly provided in Section 2.13
of the Agreement, as amended hereby, interest accruing at the Default Rate
shall be due and payable on demand.
4.8 Amendments to Section 2.16/Termination, Reduction, Extension and
Increase of Commitments. Section 2.16 is amended as follows:
(a) Subsection 2.16(b) is amended to provide that the Commitments may
be permanently reduced by the Borrowers at any time in any increments. Except
as set forth in subsection (d) of this Section, all payments received from the
Borrowers on and following the Third Amendment Effective Date shall first be
used to pay interest and fees then due and owing to the Agent or the Banks, as
the case may be, and thereafter to repay the Overadvance Loans and thereafter,
to permanently repay the Tranche B Loans then outstanding and thereafter to
permanently repay the Tranche A Loans then outstanding. All payments against
Tranche B Loans or Tranche A Loans shall be applied by the Agent to first repay
Base Rate Loans, with the excess, if any, applied to repay any remaining
Eurodollar Loans in the order of next maturing Interest Periods. Each reduction
in the Commitments hereunder shall be made ratably among the Banks in
accordance with amounts outstanding under their respective Tranche A Loans,
Tranche B Loans and Overadvance Loans, as appropriate.
(b) Subsection 2.16(d) of the Existing Credit Agreement is hereby
amended and restated in its entirety as follows:
"The Tranche B Commitments, or if no Tranche B Commitments then exist,
the Tranche A Commitments shall be automatically and permanently reduced by
the amounts and on the dates set forth below:
Commitment Reduction Date Amount of Reduction
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August 1, 1999 $3,000,000
November 1, 1999 $2,500,000
February 1, 2000 $2,500,000
February 15, 2000 Remaining Amount"
(c) Subsection 2.16(e) is hereby deleted from the Existing Credit
Agreement in its entirety. In addition, the Tranche A Commitments and Tranche B
Commitments are no longer subject to extension or increase and Subsections
2.16(f) and 2.16(g) are hereby deleted from the Existing Credit Agreement in
their entirety and are of no further force and effect.
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4.9 Amendment to Section 2.17 of the Existing Credit Agreement/Optional
Prepayments of Loans. Section 2.17 of the Existing Credit Agreement is deleted
in its entirety.
4.10 Amendment to Section 2.18 of the Existing Credit Agreement/Mandatory
Prepayments.
Section 2.18 of the Existing Credit Agreement is amended and restated in
its entirety as follows:
"Promptly upon receipt by the Company or any of its Subsidiaries of any Net
Proceeds from an Asset Sale, the Borrowers shall pay to the Agent 100% of
such Net Proceeds which Net Proceeds shall be applied to the outstandings
under the Loans in the following order: first to interest (other than the
Interest Differential) and fees then due and owing under the Agreement,
second to amounts outstanding under the Overadvance Loans, third to the
Interest Differential, if any is then payable, fourth to amounts
outstanding under the Tranche B Loans and fifth to amounts outstanding
under the Tranche A Loans."
4.11 Renumbering of Sections 2.19 Through 2.25 of the Existing Credit
Agreement.
(a) Sections 2.19, 2.20, 2.21, 2.22, 2.23, 2.24 and 2.25 of the Existing
Credit Agreement are amended by renumbering such sections which sections shall
now have the numbers set forth below:
Section Number-Existing Credit Agreement Section Number-Agreement
2.19 2.22
2.20 2.23
2.21 2.24
2.22 2.25
2.23 2.26
2.24 2.27
2.25 2.28
Any references in the Existing Credit Agreement to the section numbers set forth
in the left hand column above shall, after the Third Amendment Effective Date,
be deemed to refer to the applicable section number set forth in the right hand
column above.
(b) Sections 2.26, 2.27 and 2.28 of the Existing Credit Agreement are
hereby deleted therefrom.
4.12 New Section 2.19. The following new Section 2.19 shall be inserted in
the Agreement:
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2.19 Amendment Fee. An Amendment Fee of $300,000 shall be paid by the
Borrowers to the Agent for the ratable benefit of the Banks and in
accordance with each Bank's Commitment Percentage as follows: (i) $50,000
on the Third Amendment Effective Date; and (ii) $250,000 on the earlier to
occur of the Termination Date or the date on which the Bank Debt is paid in
full. The foregoing $250,000 fee is earned on the Third Amendment Effective
Date.
4.13 New Section 2.20 of the Credit Agreement. The following new Section
2.20 shall be inserted in the Agreement:
2.20 Overadvance Commitments.
(a) Tranche A Overadvance Loans. Subject to the terms and conditions
hereof, each Overadvance Bank severally agrees to make revolving credit
loans (the "Tranche A Overadvance Loans") to the Borrowers on a joint and
several basis from time to time during the Overadvance Commitment Period
which Tranche A Overadvance Loans may be borrowed, repaid and reborrowed in
accordance with the terms of this Agreement. The Tranche A Overadvance
Loans shall not, at any time, exceed $4,000,000 in the aggregate and each
Overadvance Bank's obligation to make Tranche A Overadvance Loans shall be
limited by the amount of such Bank's Tranche A Overadvance Commitment,
provided, however, that no Tranche A Overadvance Loan shall be made if,
after giving effect to the making of such Loan, the aggregate amount of the
Tranche A Overadvance Exposure of all Overadvance Banks would exceed the
aggregate amount of the Tranche A Overadvance Commitments of all the
Overadvance Banks. The Tranche A Overadvance Loans are being made to enable
the Borrowers to make payments as set forth in the Budget. The Borrowers
shall not utilize the Tranche A Overadvance Loans to make any expenditure
which is not a Budgeted Expense as set forth in the Budget, or which is not
set forth on a revised and updated Budget that has been preapproved by the
Required Overadvance Banks in their reasonable discretion. The Tranche A
Overadvance Commitments may be terminated or reduced by the Borrowers from
time to time, without penalty or premium.
(b) Tranche B Overadvance Loans. Subject to the terms and conditions
hereof, each Overadvance Bank severally agrees to make revolving credit
loans (the "Tranche B Overadvance Loans") to the Borrowers on a joint and
several basis from time to time during the Overadvance Commitment Period
which Tranche B Overadvance Loans may be repaid and reborrowed in
accordance with the terms of this Agreement. The Tranche B Overadvance
Loans shall not, at any time, exceed $1 million in the aggregate and each
Overadvance Bank's obligation to make Tranche B Overadvance Loans shall be
limited by the amount of such Bank's Tranche B Overadvance Commitment,
provided, however, that no Tranche B Overadvance Loan shall be made if,
after giving effect to the making of such Loan, the aggregate outstanding
amount of the Tranche B Overadvance Loans of all the Overadvance Banks
would exceed the aggregate amount of the Tranche B Overadvance Commitments
of all the Overadvance Banks, and provided, further, that
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notwithstanding anything to the contrary contained herein, the Borrowers may not
borrow Tranche B Overadvance Loans unless at such time there remains no further
availability under the Tranche A Overadvance Commitments. Further, the Tranche B
Overadvance Loans are being made to enable the Borrowers to make payments as set
forth in the Budget. The Borrowers shall not utilize the proceeds from Tranche B
Overadvance Loans to make any expenditure which is not set forth in the Budget,
or which is not set forth on an updated and revised Budget that has been
approved by the Required Overadvance Banks in their reasonable discretion. The
Tranche B Overadvance Commitments may be terminated or reduced by the Borrowers
from time to time, without penalty or premium.
(c) Interest. Subject to the provisions of subsection 2.14 hereof, each
Tranche A Overadvance Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be) at a rate per annum equal to the Base Rate plus the Applicable Margin
applicable to Tranche A Overadvance Loans. Subject to the provisions of
subsection 2.14 hereof, each Tranche B Overadvance Loan shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Base Rate plus
the Applicable Margin applicable to Tranche B Overadvance Loans. Interest on all
Overadvance Loans shall be due and payable monthly by the Borrowers to the Banks
on the last day of each month and shall be automatically withdrawn by the Agent
from the Borrowers' account with the Agent and thereafter distributed by Agent
to Overadvance Banks in accordance with their respective Overadvance Commitment
Percentages.
(d) Tranche A Overadvance Notes. The Tranche A Overadvance Loans made by
each Overadvance Bank shall be evidenced by a promissory note of the Borrowers,
substantially in the same form as Exhibit "A-1" attached hereto, with
appropriate insertions as to payee, date and principal amount (each a "Tranche A
Overadvance Note"), payable to the order of such Overadvance Bank in the
principal amount equal to the amount of the Tranche A Overadvance Commitment of
such Bank. Each Overadvance Bank is hereby authorized to record the date and
amount of each Tranche A Overadvance Loan made by such Bank and the date and
amount of each payment of principal thereof on a schedule annexed to and
constituting part of its Tranche A Overadvance Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure of any Overadvance Bank to make such
recordation (or any error in such recordation) shall not affect the obligations
of the Borrowers hereunder or under such Tranche A Overadvance Note. Each
Tranche A Overadvance Note shall (i) be dated the date of the Third Amendment
Effective Date, (ii) be stated to mature on the Termination Date, (iii) provide
for the payment of interest in accordance with this Agreement and (iv) provide
such other terms as deemed necessary by the Overadvance Banks.
(e) Tranche B Overadvance Notes. The Tranche B Overadvance Loans made by
each Overadvance Bank shall be evidenced by a promissory note of the Borrowers,
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substantially in the same form as Exhibit "A-2" attached hereto, with
appropriate insertions as to payee, date and principal amount (a "Tranche B
Overadvance Note"), payable to the order of such Bank in the principal amount
equal to the amount of the Tranche B Overadvance Commitment of such Bank. Each
Overadvance Bank is hereby authorized to record the date and amount of each
Tranche B Overadvance Loan made by such Bank and the date and amount of each
payment or prepayment of principal thereof on a schedule annexed to and
constituting part of its Tranche B Overadvance Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that the failure of any Overadvance Bank to make such
recordation (or any error in such recordation) shall not affect the obligations
of the Borrowers hereunder or under such Tranche B Overadvance Note. Each
Tranche B Overadvance Note shall (i) be dated the date of the Third Amendment
Effective Date, (ii) be stated to mature on the Termination Date, (iii) provide
for the payment of interest in accordance with this Agreement and (iv) contain
such other provisions deemed necessary by the Overadvance Banks.
(f) Issuance of Letters of Credit under Tranche A Overadvance Commitments.
Subject to the terms and limitations of this Agreement, an Issuing Bank, in
reliance upon the agreements of the Overadvance Banks set forth in subsection
2.7(a) of this Agreement, shall issue letters of credit ("Letters of Credit")
for the account of Borrowers in such form as may be approved from time to time
by such Issuing Bank, provided, that the amounts available to be drawn under
Letters of Credit shall reduce the availability under the Tranche A Overadvance
Commitments on a dollar for dollar basis and further provided that the face
amount of all Letters of Credit shall not exceed, in the aggregate, $1,500,000
and no Letter of Credit shall be issued if, after giving effect thereto, the
amount of Tranche A Overadvance Exposure would exceed the aggregate amount of
Tranche A Overadvance Commitments in effect at such time. Any such Letter of
Credit issued by an Issuing Bank shall (i) be denominated in Dollars and shall
be a standby letter of credit, (ii) expire no later than three days prior to the
Termination Date, (iii) be subject to the Uniform Customs and Practices Act, and
to the extent not inconsistent therewith, the laws of the Commonwealth of
Pennsylvania. An Issuing Bank shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Bank or any L/C Participant to exceed any limits imposed by any
applicable Requirement of Law.
(g) Fees in respect of Letters of Credit. The Borrowers shall pay to the
Agent, for the account of the Overadvance Banks (including the Issuing Banks)
pro rata according to their respective Overadvance Commitment Percentages, a
letter of credit commission with respect to each Letter of Credit, at the rate
of 2% per annum on the daily average undrawn face amount of such Letter of
Credit (computed on the basis of the actual number of days such Letter of Credit
is outstanding in a year of 360 days). Such commissions shall be payable in
arrears on the last Business Day of each March, June, September and December to
occur after the date of issuance of each Letter of Credit, and on the
Termination Date or such earlier date as the Overadvance Commitment is
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terminated, and shall be nonrefundable. The Borrowers shall also pay to each
Issuing Bank, in respect of each Letter of Credit issued by such Issuing Bank, a
fronting fee for the period from and including the date of issuance of such
Letter of Credit to and including the date of termination of such Letter of
Credit computed at the rate of 1/8% per annum on the daily average undrawn face
amount of such Letter of Credit (computed on the basis of the actual number of
days such Letter of Credit is outstanding in a year of 360 days). The fees
described in the preceding sentence shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December of
each year and on the Termination Date or such earlier date as the Overadvance
Commitment is terminated, and shall be nonrefundable. In addition to the
foregoing fees and expenses, the Borrowers shall pay the Issuing Bank for such
normal and customary costs and expenses as are incurred or charged by such
Issuing Bank in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
(h) Other Provisions Pertaining to Letters of Credit Issued Under Tranche
A Overadvance Commitment. Section 2.5 of this Agreement shall pertain to all
Letters of Credit issued under the Tranche A Overadvance Commitment, except that
the reference therein to Section 2.4(a) is amended and restated to refer to
Section 2.20(f) and (g). Section 2.6 of the Agreement shall be deleted. Section
2.7 of this Agreement shall pertain to all Letters of Credit issued under the
Tranche A Overadvance Commitment, except that the term "Commitment Percentage"
shall be deleted where it appears and shall be replaced by the term "Overadvance
Commitment Percentage". Sections 2.8, 2.9, 2.10 and 2.11 of this Agreement shall
pertain to all Letters of Credit issued under the Tranche A Overadvance
Commitment except that the reference in Section 2.9 to Section 2.6 shall be
deleted.
(i) Overadvance Commitment Fee. An Overadvance Commitment Fee of $50,000
shall be paid by the Borrowers to the Overadvance Banks in accordance with their
Overadvance Commitment Percentages on the Third Amendment Effective Date.
(j) Making of Overadvance Loans/Compliance with Budget. The initial amount
advanced under the Tranche A Overadvance Commitment by the Overadvance Banks
shall be the lesser of (i) $2,500,000 million or (ii) the cash needs of the
Borrowers during the initial four week period covered by and as shown on the
Borrowers' initial Budget. Each Overadvance Loan shall be made by the Agent to
the Borrowers for the ratable benefit of each Overadvance Bank (an "Agent Loan")
and each Overadvance Bank agrees to reimburse the Agent a dollar amount equal to
its Overadvance Commitment Percentage with respect to any Agent Loan in
accordance with subsection 2.20(l) hereof. With respect to all Overadvance Loans
following the initial Overadvance Loan, the Borrowers shall make a written
borrowing request therefore (a "Borrowing Request") by giving the Agent (with a
copy to each Overadvance Bank) irrevocable notice (which notice must be received
by the Agent prior to 10:00 a.m., Philadelphia time, one Business Day prior to
the requested Borrowing Date) specifying in the Borrowing Request: (a) the
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amount requested to be borrowed, (ii) the requested Borrowing Date, (c) whether
the borrowing is a Tranche A Overadvance Loan or a Tranche B Overadvance Loan or
a combination thereof, and the amount allocated to each. The Borrowing Request
shall also contain a certification by the Borrowers' chief financial officer
that the Borrowers are in compliance with all of the terms and conditions of
this Agreement and that the amount requested in the Borrowing Request will be
spent on Budgeted Expenses in accordance with the Budget then in effect.
Overadvance Loans shall be made, and the proceeds of the Overadvance Loans shall
be used by the Borrowers, solely to pay Budgeted Expenses in accordance with the
Budget. So long as there exists Available Overadvance Commitments and the
Borrowers are otherwise in compliance with the terms of the Agreement and are in
compliance with the revenue side of their Cash Flow projections, the Borrowers
may deviate with respect to any single Budgeted Expense by an amount up to 10%
of the amount shown on the Budget for that Budgeted Expense, and may deviate as
to all Budgeted Expenses, in the aggregate, in an amount up to 10% of such total
Budgeted Expenses. Notwithstanding the foregoing, the Borrowers may deviate with
respect to inventory purchase amounts by an amount up to 25% of the amount shown
on the Budget for those types of Budgeted Expenses as a result of the effect of
revenue sharing arrangements to which the Borrowers become a party after the
date of the Budget.
(k) Repayment of Overadvance Loans/Borrowers' Cash Management. Each day the
Borrowers shall deposit all cash and other amounts received in the operation of
their businesses in their operating accounts. To the extent practicable, the
Borrowers shall maintain their operating accounts at branches of either the
Agent or one of the other Banks. A complete list of the Borrowers' operating
accounts is set forth on Schedule "III" attached hereto and made a part hereof.
Any change in the Borrowers' operating accounts shall occur only after notice by
the Borrowers to the Banks. Except for minimal amounts not to exceed $1000 per
operating account, commencing on the Third Amendment Effective Date and at all
times thereafter, the Borrowers shall transfer or cause the transfer each
Business Day, of all cash and receipts received by any Borrower on the preceding
Business Day into account no. 8611138793 located at the Agent (the
"Concentration Account"). The Agent may, and the Borrowers hereby authorize the
Agent to "sweep" the aforesaid Concentration Account each Business Day and to
apply the "swept" funds to reduce the Overadvance Loans then outstanding. In the
event that any fees or interest is due by the Borrowers to the Banks, the Agent
and the Banks shall apply such funds first to the payment of such fees and
interest and thereafter to the principal balance of the Overadvance Loans. In
the event that the Concentration Account contains funds at a time when there are
no Overadvance Loans outstanding and no other fees or interest is due and owing
to the Banks hereunder, the Agent shall transfer the funds in the Concentration
Account to the Borrowers' operating account at the Agent and the Borrowers may
use such funds to pay their ordinary business expenses as set forth on the
Budget.
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(l) Settlement. Each Agent Loan made hereunder shall be deemed an
Overadvance Loan. The Agent shall not make any Agent Loan if the Agent
shall have actual knowledge of the existence and continuation of an Event
of Default. The Agent shall be deemed to have actual knowledge of an Event
of Default only if it has received written notice from a Borrower or a Bank
regarding the existence and continuation of an Event of Default. The Agent
and each Overadvance Bank agrees (which agreement shall not be for the
benefit of or enforceable by the Borrowers) to the following procedure
regarding a settlement of the Agent Loans. The Agent shall notify the
Overadvance Banks of each Agent Loan following the making of such Agent
Loan. The Agent shall maintain a daily accounting of the Available
Overadvance Commitments and the Overadvance Loans funded by each
Overadvance Bank. On each Friday, or if any such Friday is not a Business
Day, on the immediately succeeding Business Day (hereinafter a "Reporting
Day"), during the Overadvance Commitment Period, the Agent shall report to
each of the Overadvance Banks as to the amount of Agent Loans made during
the week ending on such Reporting Day and the amount of the Borrowers'
funds swept from the Concentration Account and applied to the Overadvance
Loans during the week ending on such Reporting Day and the amount, if any,
of the Agent Loans which remain unfunded or underfunded by the Overadvance
Banks (the "Underfunded Amount"). With respect to any Underfunded Amount
existing on a Reporting Day, each Overadvance Bank agrees to immediately
transfer to the Agent an amount equal to such Bank's Overadvance Commitment
Percentage multiplied by such Underfunded Amount. In the event that there
exists no Underfunded Amount because collected funds of the Borrowers for
the week at issue were sufficient to pay down such Underfunded Amount and
were also sufficient to reduce the funded portion of the Overadvance Loans
(hereinafter, an "Overfunded Portion of the Overadvance Loans"), the Agent
shall make payment to each of the Overadvance Banks of an amount equal to
such Overadvance Bank's Overadvance Commitment Percentage multiplied by the
Overfunded Portion of the Overadvance Loans. If and to the extent the Agent
or any Overadvance Bank shall not have made payment as provided for in this
Section, both the Agent and such Bank agree to repay the other forthwith on
demand the amount to be paid together with interest thereon for each day
past due at the Federal Funds Effective Rate, provided, that if such Bank
shall not repay such amount within three Business Days from the due date,
the interest rate on such overdue amount shall, at the expiration of such
three Business Day period, be the rate per annum applicable to all Base
Rate Tranche A Loans.
4.14 New Section 2.21 of the Credit Agreement. The following new Section
2.21 shall be inserted in the Agreement:
2.21 Priority of Overadvance Loans.
(a) Payment Priority. The Borrowers, the Agent and the Banks
all agree that obligations of the Borrowers with respect to the Tranche A
Loans and the Tranche B Loans (hereinafter in this Section 2.21, the
"Existing Loans") shall be subordinate and subject in right of payment to
the prior payment in full of all obligations of the Borrowers
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to the Overadvance Banks under the Overadvance Loans made pursuant to this
Agreement, including, without limitation, all obligations of the Borrowers under
the Overadvance Loans in respect of interest accruing before or after the
commencement of any bankruptcy, insolvency, or similar proceedings with respect
to any of the Borrowers, Each Bank, including those Banks that are not
Overadvance Banks (hereinafter in this Section 2.21, an "NonOveradvance Bank")
hereby expressly agrees that, except as and to the extent hereinafter provided,
such Bank will not ask, demand, ▇▇▇ for, take or receive from the Borrowers or
from any guarantor or surety of the Existing Loans or any portion thereof, by
set-off or, or from the Collateral, or in any other manner, payment of, (and the
Borrowers hereby agree that, except as, and to the extent hereinafter provided,
they will not pay) the whole or any part of the Existing Loans, or any security
therefor, unless or until all of the Overadvance Loans shall have been fully
paid.
(b) Mandatory Commitment Reductions, Interest Payments and Fees Permitted
on Existing Loans. Anything in Subsection 2.21(a) to the contrary
notwithstanding, the Borrowers may make (i) scheduled payments of interest and
fees on the Existing Loans as provided in Sections 2.13 and 2.19, (ii) payments
resulting from the application of tax refunds received by the Agent pursuant to
that certain Assignment of Tax Refunds dated as of the Third Amendment Effective
Date and (iii) scheduled principal reductions of the Tranche A Commitments
and/or the Tranche B Commitments as set forth in Section 2.16(d), provided that,
with respect to the payments described in clauses (i) and (iii) above, at the
time of such payment and after giving effect to such payment no Default or Event
of Default shall exist under the Agreement and the other Loan Documents.
(c) Distributions. In furtherance of, and to make effective, the
subordination provided for herein, each NonOveradvance Bank further agrees that
in the event of any distribution, division, or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, of all or any part
of the Collateral or the proceeds thereof, to creditors of any Borrower by
reason of the liquidation, dissolution or other winding up, partial or complete,
of such Borrower or its business, or any sale, receivership, insolvency or
bankruptcy proceedings, or assignment for the benefit of creditors, or any
proceeding by or against any Borrower for any relief under any bankruptcy or
insolvency law or laws related to the relief of debtors, the adjustment of
indebtedness, arrangements, reorganizations, compositions, or extensions, then
and in any such event: (i) any payment or distribution of any kind or character,
whether in cash, securities or any other property which but this Section 2.21
would be payable or deliverable upon or with respect to any or all of the
Existing Loans, shall instead be paid or delivered directly to the Agent for
application to the Overadvance Loans, whether then due or not due, until the
Overadvance Loans shall have first been fully paid and satisfied; and (ii) each
NonOveradvance Bank hereby irrevocably authorizes and empowers the Agent to
demand, ▇▇▇ for, collect and receive every such payment or distribution and give
acquittance therefor, and to file and/or vote claims and take other proceedings,
in the name of the Agent or in the name of such NonOveradvance Bank, or
otherwise, as the
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Agent may reasonably deem necessary or advisable for the enforcement of these
subordination provisions. The NonOveradvance Banks agree duly and promptly to
take such action as may be reasonably requested by the Agent to assist in the
collection of the Overadvance Loans for the account of the Overadvance Banks and
hereby irrevocably authorize the Agent as attorney-in-fact for the
NonOveradvance Banks to file appropriate proofs of claim in respect to the
Existing Loans, and to execute such other powers of attorney, assignments of
claim or other instruments as may be appropriate to enable the Agent to enforce
any and all claims upon or with respect to the Existing Loans, and to collect
and receive any and all payments and distributions which may be payable or
deliverable at any time upon or with respect to the Existing Loans. Should any
payment not permitted under Section 2.21(b) hereof or distribution of Collateral
or proceeds of any Collateral be received by any NonOveradvance Bank upon or in
respect of the Existing Loans prior to the payment in full of the Overadvance
Loans, such NonOveradvance Bank will forthwith deliver the same to the Agent in
precisely the form received (except for the endorsement or assignment of the
NonOveradvance Bank where necessary) for application on the Overadvance Loans,
whether then due or not due, and, until so delivered, the same shall be held in
trust by any such NonOveradvance Bank as property of the Overadvance Banks. In
the event of the failure of any NonOveradvance Bank to make any such endorsement
or assignment, the Agent, or any of its officers or employees, are hereby
irrevocably appointed as attorney-in-fact for such NonOveradvance Bank and are
authorized to make such endorsement or assignment on behalf of the
NonOveradvance Bank. Notwithstanding the foregoing, upon the institution of
proceedings by the Agent to collect the Overadvance Loans, the Agent and/or the
NonOveradvance Banks may institute proceedings or take such other action as they
deem necessary to collect the Existing Loans, provided that all funds resulting
therefrom are applied to reduce and satisfy the Overadvance Loans prior to being
applied to reduce the Existing Loans.
4.15 Amendments to former Section 2.24(a) of the Existing Credit
Agreement/Pro Rata Treatment of Loans and Payments. Subsection 2.26(a) of the
Agreement (Subsection 2.24(a) of the Existing Credit Agreement) is hereby
amended and restated in its entirety as follows:
"Except as required under subsection 2.22, each borrowing by the Borrowers
hereunder, each payment or prepayment of principal of the Loans, each
payment of interest on the Loans, and each reduction of the Commitments,
shall be made pro rata among the Banks in accordance with their respective
Existing Commitment Percentages and Overadvance Commitment Percentages as
appropriate."
SECTION V
AMENDMENTS TO SECTION 5. OF THE EXISTING CREDIT
AGREEMENT/AFFIRMATIVE COVENANTS
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5.1 Amendment to Section 5.2(c) of the Existing Credit Agreement. Section
5.2(c) of the Existing Credit Agreement is amended and restated as follows:
(c) Within 25 days after the end of each month, a certificate of a
Responsible Officer of the Company setting forth the Consolidated Net Worth
of the Company and, within 25 days after the last day of each fiscal
quarter, a certificate of a Responsible Officer of the Company setting
forth the OCF of the Company as of the last day of such quarter and
measured in accordance with Section 6.1(b) hereof; each such certificate
shall be accompanied by a summary or other appropriate backup materials
demonstrating the computations or methods used in preparing the
certificates.
5.2 Amendment to Section 5.15 of the Existing Credit Agreement. Section
5.15 of the Existing Credit Agreement is amended and restated as follows:
Good Standing. Within thirty (30) days of the Third Amendment
Effective Date cause West Coast Entertainment Corporation to become in good
standing in the State of Delaware. Within ninety (90) days of the Third
Amendment Effective Date cause ▇▇▇▇▇▇ Video Corporation to become in good
standing in the State of New Jersey and to be qualified to transact
business as a foreign corporation in the State of New York.
5.3 New Section 5.16 of the Agreement. The following new Section 5.16
shall be inserted in the Agreement:
5.16 Updated Budgets. Furnish to the Agent and the Banks:
(a) Commencing on January 15, 1999 and on every other successive
Friday thereafter (or if such Friday is not a Business Day, then on
the next succeeding Business Day), an updated Budget and Cash Flow
which projects the revenues and Budgeted Expenses of the Borrowers for
the next Budgeted Period and which is in a form substantially similar
to the form attached to the Third Amendment as Exhibit "B". Each
Budget following the initial Budget shall not, without the prior
consent of the Required Overadvance Banks, restate and amend the
Budgeted Expenses for the weeks covered in prior Budgets, except to
the extent necessary to incorporate actual variances in cash received.
Notwithstanding the foregoing, the Banks acknowledge that changes will
be made to the initial Budget and Cash Flow as a direct result of the
Borrowers entering into revenue sharing agreements with certain of
their vendors after the date of the initial Budget. All such changes
must be in form and content acceptable to the Required Overadvance
Banks, or if there are no Overadvance Loans outstanding and the
Overadvance Commitments have expired, by the Required Banks;
(b) on Wednesday of each week until the Bank Debt is fully paid,
a written report in a form acceptable to the Agent and the Banks
relating to the week ending on the immediately preceding Friday, which
report shall (i) set forth the manner in which Overadvance Loans and
any other funds in the Borrowers' possession have been
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applied, and (ii) compares the projected Cash Flow and Budgeted Expenses of
the Borrowers on the Budget for such week with the actual Cash Flow and
actual expenditures of the Borrowers during such week, together with a
reasonable explanation of the variances, if any, between the Borrowers'
actual and projected performance. Each report shall be certified by the
chief financial officer of the Company; and
(c) on April 1, 1999, a Cash Flow projection, in form and content
acceptable to the Required Overadvance Banks, covering the time period
from July 1, 1999 through the Termination Date.
5.4 New Section 5.17 of the Agreement. The following new Section 5.17 shall
be inserted in the Agreement;
5.17 Deposit Accounts. Maintain at all times, to the extent
practicable, operating and other bank accounts with branches of either the
Agent or the Banks; deposit, to the extent practicable, all cash and
checks in operating accounts with the Agent or the Banks as and when such
cash and checks are received by the Borrowers; and assist the Agent in
making all arrangements and obtaining all agreements or other documents
necessary to (i) cause funds of the Borrowers held at banks other than the
Banks to be held in blocked accounts to the extent requested by the Agent
and (ii) accomplish the transfer, on a daily basis, of funds held in all
of Borrowers' operating accounts to the Borrowers' Concentration Account
at the Agent.
5.5 New Section 5.18 of the Agreement. The following new Section 5.18 shall
be inserted in the Agreement:
5.18 Landlord Waivers. Notwithstanding anything to the contrary
contained in Section 6.16 hereof, upon the reasonable request of the Agent
from time to time, use their best efforts to obtain landlord waivers, in
form and substance satisfactory to the Agent, from the owners of any real
property leased by the Borrowers or any Subsidiary where any of the
Borrowers' Inventory (as defined in the Security Agreement) is located.
5.6 New Section 5.19 of the Agreement. The following new Section 5.19 shall
be inserted in the Agreement:
5.19 Sale/Refinance of the Company. Use their best efforts to achieve
the goals set forth on the statement attached hereto as Schedule "IV",
by the dates set forth therein, including, without limitation those goals
regarding either (i) the refinance of the Bank Debt or (ii) the sale of
the Borrowers' businesses or assets for a sale price sufficient to repay
the Bank Debt in full and, in connection with such sale or refinance
efforts, report to, meet with and otherwise keep the Banks informed as to
the Borrowers' progress and the progress of the Borrowers' investment
banker/financial advisor in that regard; and advise the Agent and the
Banks of all offers, written or oral, for the Borrowers'
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businesses or stock and of all commitments regarding a refinancing of the
Bank Debt promptly following the Borrowers' receipt of any such offers
and/or commitments.
5.7 New Section 5.20 of the Agreement. The following new Section 5.20
shall be inserted in the Agreement:
5.20 Turnaround Initiatives. Use their best efforts to implement the
turnaround initiatives described on the Schedule attached hereto as
Schedule "V".
5.8 New Section 5.21 of the Agreement. The following new Section 5.21
shall be inserted in the Agreement:
5.21 Additional Reporting; Monthly Meetings. In addition to the
reporting requirements described herein, (i) provide to the Agent and the
Banks (A) the reports and Budget as required in Section 5.16 above, and (B)
any other information or report relating to the Borrowers financial
condition or performance that the Agent or any Bank may reasonably request,
(ii) meet with representatives of the Agent and the Banks at least one day
each month, at a time and place deemed convenient for the Banks, to review
the Borrowers' financial condition and performance, the most recent
financial data, and the Borrower's efforts regarding the refinance of the
Bank Debt or sale of the Borrowers' businesses or assets, and (iii) fully
and completely cooperate with Banks' consultant, Deloitte & Touche
Consulting Group LLC ("Deloitte Consulting"), regarding Deloitte
Consulting's monitoring of Borrowers' financial condition and performance.
5.9 New Section 5.22 of the Agreement. The following new Section 5.22
shall be inserted in the Agreement:
5.22 Tax Refunds. On the Third Amendment Effective Date or
thereafter, at the Agent's request, execute and complete all forms deemed
necessary or desirable by the Agent in order that any and all tax refunds
payable to the Borrower on account of the Borrower's federal income taxes
will be paid directly to the Agent by the Internal Revenue Service.
5.10 New Section 5.23 of the Agreement. The following new Section 5.23
shall be inserted in the Agreement:
5.23 Warrants and Commitment Extension Fees.
(a) On the Third Amendment Effective Date, the Company shall deliver
to the Agent for the benefit of the Banks, a warrant to purchase up to 5%
of the Company's capital stock at a price equal to 75% of the average bid
price for such stock during the period of 15 trading days prior to the date
such warrants are first exercisable as set forth below. The warrant shall
be substantially in the same form as the warrant attached hereto as Exhibit
"C" and shall be held by the Agent for the benefit of the Banks, in
accordance
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with each Bank's share of the Loans. In the event that the Borrowers do not
pay the Bank Debt in full on or prior to June 30, 1999, then the warrants
may be exercised by the Banks at any time after June 30, 1999, provided,
however, that if, before June 30, 1999, the Borrowers have obtained either
a bona fide letter of intent regarding the sale of the businesses, assets
or stock of the Borrowers or a firm commitment to refinance the Bank Debt
with respect to a sale or refinance which will occur on or before September
30, 1999, then the date after which the warrant may be exercised shall be
extended to September 30, 1999. If under the circumstances set forth in the
immediately preceding sentence the Borrowers pay the Bank Debt in full on
or before September 30, 1999, then the warrant shall become null and void.
(b) In the event that the Borrowers do not pay the Bank Debt in full
on or prior to June 30, 1999, then commencing on July 1, 1999 and on the
first day of each subsequent month until the Bank Debt is paid in full, the
Borrowers shall pay to the Banks, in accordance with each Bank's Commitment
Percentage, a monthly Commitment Extension Fee in an amount equal to the
Total Commitments as of the Third Amendment Effective Date multiplied by
one hundred and forty-three (143) basis points, provided, however, that
if, before June 30, 1999, the Borrowers have obtained either a bona fide
letter of intent regarding the sale of the businesses, assets or stock of
the Borrowers or a firm commitment to refinance the Bank Debt with respect
to a sale or refinance which will occur on or before August 31, 1999, then
the Commitment Extension Fees that would otherwise have accrued and been
payable on July 1, 1999 and August 1, 1999 shall be deferred to and be
payable on September 1, 1999 together with the Commitment Extension Fee
that would otherwise be payable on that day. If under the circumstances
set forth in the immediately preceding sentence the Borrowers pay the Bank
Debt in full on or prior to August 31, 1999, then no Commitment Extension
Fees shall be due and payable by the Borrowers. In the event that the
Borrowers do not pay the Bank Debt in full on or prior to August 31, 1999,
any Commitment Extension Fee incurred and deferred as a result of this
provision shall be deemed earned on the day it first accrues and shall
become part of the Bank Debt on that day.
SECTION VI
AMENDMENTS TO SECTION 6. OF THE EXISTING CREDIT
AGREEMENT/NEGATIVE COVENANTS
6.1 Amendment to Section 6.1 of the Existing Credit Agreement. Section 6.1
of the Existing Credit Agreement is amended and restated as follows:
6.1 Financial Condition Covenants.
(a) Maintenance of Net Worth. Permit Consolidated Net Worth on
any day to be less than $83,000,000; provided however that Borrowers may
take a one-time adjustment with regard to their rental videocassette
inventory so long as such
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adjustment is effected during the fiscal quarter ending January 31, 1999
and further provided that Borrower's Consolidated Net Worth on the day such
adjustment is taken is at minimum $70,000,000.
(b) Minimum OCF. Permit OCF to be less than $9,000,000 for any period
of four consecutive quarters, provided that, for purposes of this Section
6.1(b), when calculating OCF there shall be excluded (without duplication
of any other applicable exclusion) from Consolidated Net Income any
subtraction for operating losses during such period, if any, attributable
to the discontinuance of operations at the locations set forth on the
schedule attached hereto as Schedule VI.
6.2 Amendment to Section 6.3(c)(ii) of the Existing Credit Agreement.
Section 6.3(c)(ii) of the Existing Credit Agreement is amended and restated as
follows:
(c) Indebtedness (i) listed on Schedule 6.3, and renewals, extensions
and modifications thereof which do not increase the principal amount
thereof or otherwise significantly change the terms thereof unless
otherwise specified in schedule 6.3 and (ii) Indebtedness under Capital
Leases or secured by Purchase Money Security Interests in an aggregate
amount for both clauses (i) and (ii) above not exceeding in the aggregate
$3,500,000.
6.3 Payment of Expenses Which are not Budgeted Expenses/Deviation from
Budget. The following new Section 6.17 is inserted into the Agreement:
6.17 Payments that are not Budgeted Expenses. Make any payment that
is not a Budgeted Expense or deviate from the Budget, provided that:
Borrowers may increase an expenditure with respect to a Budgeted Expense
for any period so long as the increase is not in an amount greater than 10%
of the amount set forth for such Budgeted Expense on the Budget for such
period, and Borrowers may increase the amount of all Budgeted Expenses from
the amount shown on the Budget for any period so long as such increase is
not greater than 10% of the total amount shown for all such Budgeted
Expenses on the Budget for such period and further provided that with
respect to Budgeted Expenses which are inventory purchases, the Borrowers
may deviate from the amount shown on the Budget with respect to such
Budgeted Expenses by an amount up to 25% of the amount shown, if such
deviation is the result of revenue sharing arrangements to which the
Borrowers become a party after the date of the Budget.
SECTION VII
AMENDMENTS TO SECTION 7. OF THE EXISTING CREDIT
AGREEMENT/EVENTS OF DEFAULT
7.1 New Subsection 7.1(n) of the Existing Credit Agreement. The following
new Subsection 7.1(n) shall be inserted in the Agreement:
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(n) At any time, any Borrower is in default of a real property lease
which lease is material to such Borrower's business and which could result
in a material adverse change in the Borrower's business and the landlord of
the property covered by such lease has initiated action which could result
in the removal of such Borrower from the premises or has accelerated the
rent under the lease.
SECTION VIII
AMENDMENTS TO SECTION 9. OF THE EXISTING CREDIT
MISCELLANEOUS
8.1 Amendment to Subsection 9.1 of the Existing Credit Agreement.
Subsection 9.1 of the Existing Credit Agreement is amended by adding to it the
following language:
"Notwithstanding the foregoing, with respect to the terms of this
Agreement and the other Loan Documents relating to Overadvance Loans
and the Overadvance Notes, (i) written waivers, amendments,
supplements, modifications related to the Budget may be accomplished
with the consent of only the Required Overadvance Banks, and (ii)
written waivers, amendments, supplements, modifications related to all
other terms of the Overadvance Loans the may be accomplished with the
consent of only all Overadvance Banks."
8.2 Amendment to Subsection 9.2 of the Existing Credit Agreement.
Subsection 9.2 of the Existing Credit Agreement is amended by restating the
addresses of the Agent as follows:
The Agent: PNC Capital Recovery Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
PNC Bank, N.A.
Special Assets Division
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: Duane, Morris & Heckscher
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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8.3 Amendment to Subsection 9.6 of the Existing Credit Agreement. (a)
Subsection 9.6(b) of the Existing Credit Agreement is amended to provide that
the Borrowers' consent shall not be required before any Bank may sell or assign
all or any part of its interests, rights and obligations under the Agreement,
the Notes and in the Loan Documents. Subsection 9.6(b) is further amended by
adding to it the following language:
"Notwithstanding the foregoing, a Bank may not sell or assign to any other
bank or financial institution or to any other third party any part of its
Commitments or its interest in the Loans unless it simultaneously sells or
assigns to the same third party a proportionate amount of its Tranche A
Commitment and the Tranche A Loans, Tranche B Commitment and Tranche B
Loans, and, if applicable, Overadvance Commitment and Overadvance Loans."
(b) Subsection 9.6(j) is hereby deleted in its entirety.
SECTION IX
RELEASE AND INDEMNITY
Recognizing and in consideration of the Banks' and the Agent's agreement to
the amendments set forth in this Third Amendment, each Borrower hereby waives
and releases the Banks and the Agent and their officers, attorneys, agents, and
employees from any liability, suit, damage, claim, loss or expense of any kind
or nature whatsoever and howsoever arising that such Borrower ever had or now
has against any of them arising out of or relating to any Bank's or the Agent's
acts or omissions with respect to this Third Amendment, the Agreement, the other
Loan Documents or any other matters described or referred to herein or therein.
Each Borrower further hereby agrees to indemnify and hold the Agent and the
Banks and their officers, attorneys, agents, and employees harmless from any
loss, damage, judgment, liability or expense (including counsel fees) suffered
by or rendered against the Banks or the Agent or any of them on account of
anything arising out of this Third Amendment, the Agreement, the other Loan
Documents or any other document delivered pursuant thereto up to and including
the date hereof; provided that, no Borrower shall have any obligation hereunder
to the Agent or any Bank with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of the Agent or such Bank.
SECTION X
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers hereby represents and warrants to the Agent and the
Banks that:
10.1 No Default. The Existing Defaults were the only Defaults or Events of
Default existing under the Existing Credit Agreement. After giving effect to
this Third Amendment, there exits no Default or Event of Default under the
Agreement;
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10.2 Representations and Warranties. The representations and warranties
made in the Agreement are true and correct in all material respects on and as of
the date hereof as if made on and as of the date hereof; and
10.3 Amendment Authorized and Enforceable. The execution and delivery by
each of the Borrowers of this Third Amendment and all other documents and
instruments related hereto or required herein has been duly authorized by all
requisite action on behalf of the Borrowers, and this Third Amendment and such
all other such documents and instruments constitute the legal, valid and binding
obligation of each Borrower, enforceable against each of them in accordance with
their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
SECTION XI
CONDITIONS PRECEDENT
The following conditions shall have occurred or shall exist in order for
this Third Amendment to be deemed in effect and binding upon the parties hereto:
11.1 Execution. All of the parties hereto, where required, shall have
executed originals or counterparts of this Third Amendment and all other
documentation required herein and shall have delivered same to the Agent;
11.2 Documents. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transaction
contemplated by this Third Amendment shall be satisfactory in form and substance
to the Agent, and the Agent shall have received such other documents (which
shall include, without limitation, resolutions of each Borrower's Board of
Directors authorizing each such Borrower to execute, deliver and perform under
the Agreement as amended by this Third Amendment and any other document or
instrument to be executed and delivered by such corporation, an incumbency
certificate executed by the officers of each Borrower, certificates of no change
or certified copies, as appropriate, of each Borrower's articles of
incorporation and by-laws, and, except for the Company and ▇▇▇▇▇▇ Video
Corporation, current good standing certificates for each Borrower certified by
the Office of the Secretary of State of the state of the Borrower's
incorporation) in respect of any aspect or consequences of the transactions
contemplated hereby or by the Loan Documents as it shall reasonably request;
11.3 Representations and Warranties True and Correct. Each of the
representations and warranties made in the Agreement shall, after giving effect
to this Third Amendment, be true and correct in all material respects;
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11.4 No Events of Default. No Default or Event of Default shall, after
giving effect to this Third Amendment, have occurred or be continuing;
11.5 Fees and Expenses. The Borrowers shall have paid all of the Agent's
reasonable out-of-pocket fees and expenses incurred in connection with the
preparation, negotiation and execution of this Third Amendment, including,
without limitation, the reasonable fees and expenses Duane, Morris & Heckscher
LLP and Deloitte Consulting. Borrowers shall also have paid for the ratable
benefit of the Banks and the Amendment Fee and Overadvance Commitment Fee
provided for in Sections 2.19 and 2.20(i) of the Agreement;
11.6 Opinion of Counsel. The Agent and the Banks shall have received an
opinion of counsel for the Borrowers in form and substance acceptable to the
Agent and the Banks; and
11.7 Budget and Reports. The Borrowers shall have delivered to the Agent
and the Banks the initial Budget and Cash Flow in form and substance acceptable
to the Banks and all other reports, financial statements and projections for
the Borrowers that are reasonably required by the Agent and the Banks.
11.8 List of Store Locations. The Borrowers shall have delivered to the
Agent and the Banks a complete and updated list of all store locations
currently operated or leased by the Borrowers.
SECTION XII
MISCELLANEOUS
12.1 Limited Effect. Except as expressly amended and waived by this Third
Amendment, the Agreement shall continue to be, and shall remain, unaltered and
in full force and effect in accordance with its terms. To the extent that any
existing provision of the Agreement is inconsistent with the specific
provisions of this Third Amendment, the provisions of this Third Amendment
shall control. Notwithstanding the foregoing, reference to this Third
Amendment need not be made in the Agreement, or in any other instrument or
document executed in connection therewith or herewith, or in any certificate,
letter or communication issued or made pursuant to or with respect to the
Agreement, any reference in any of such items to the Agreement being sufficient
to refer to the Agreement as amended hereby.
12.2 Additional Action. The Borrowers the Agent agree to take such further
action to execute and deliver to each other such additional agreements,
instruments and documents as may reasonably be required to carry out the
purposes of this Third Amendment.
12.3 Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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12.4 Successor and Assigns. The terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrowers, the
Agent and the Banks and their respective successors and assigns.
12.5 Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same instrument.
12.6 Headings. The headings of any paragraph of this Amendment are for
convenience only and shall not be used to interpret any provision hereof.
12.7 Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf of
the party against whom enforcement is sought.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WEST COAST ENTERTAINMENT CORPORATION
By: /s/ T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
VIDEOSMITH, INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
WEST COAST FRANCHISING COMPANY
By: /s/ T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ WEST COAST CORPORATION
By: /s/ T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ VIDEO CORPORATION
By: /s/ T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: T. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
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