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Exhibit 10.83
AMENDMENT #1
TO
THE LOAN AND SECURITY AGREEMENT AND RELATED FINANCING DOCUMENTS DATED
April 2, 1998 BETWEEN EMERGENT FINANCIAL CORP. (HEREIN REFERRED TO AS "SECURED
PARTY") AND FIRST LIGHT ENTERTAINMENT CORPORATION (HEREIN REFERRED TO AS
"DEBTOR")
DATE EFFECTIVE
June 16, 1998
For and in consideration of the premises, mutual agreements, warranties and
representations herein made, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which is hererby acknowledged, the Debtor
and Secured Party agree that the Loan and Security Agreement, dated as of April
2, 1998, between Debtor and Secured Party, is hereby amended and modified in the
following particulars:
1. Capitalized terms used herein and not otherwise defined herein shall
have the meanings given to such terms in the Loan Agreement.
2. Exhibit "A" of the Loan Agreement is hereby deleted in its entirety and
inserted in lieu thereof is the new Exhibit "A," which is attached
hereto and incorporated herein by reference.
3. Except as expressly amended hereinabove, each condition, provision,
covenant and term contained in the Loan Agreement and the documents
related hereto shall remain in full force and effect, and the Debtor
hereby ratifies, confirms, adopts and approved the Loan Agreement and
the documents related thereto as they exist and agrees that it shall
continue to be bound by all of the conditions, provisions, terms and
covenants contained in said Loan Agreement and documents related
thereto and nothing contained therein shall be deemed to have been
modified, abrogated, superseded or otherwise affected except as
specifically set forth herein.
4. This Amendment represents a modification only and is not, and should
not be construed as, a novation.
DEBTOR ACKNOWLEDGES THAT IT HAS READ THIS AMENDMENT TO THE LOAN AND SECURITY
AGREEMENT ALONG WITH THE AMENDED AND RESTATED SCHEDULE #1, ATTACHED HERETO AS
EXHIBIT "A," AND IS AWARE OF ALL OF THE TERMS THEREOF, THAT THEY MERELY
CONSTITUTE AN OFFER BY DEBTOR TO SECURED PARTY UNTIL AND UNLESS ACCEPTED BY
SECURED PARTY IN WRITING AT ITS PRINCIPAL PLACE OF BUSINESS.
IN WITNESS WHEREOF, the undersigned has executed this Amendment under hand and
seal this 16th day of June 1998.
Debtor:
Attest: FIRST LIGHT ENTERTAINMENT CORPORATION
/s/ J. ▇▇▇▇ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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J. ▇▇▇▇ ▇▇▇ ▇▇▇▇, Secretary By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
[corporate seal]
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The undersigned Guarantors of all Indebtedness at any time owing by First light
Entertainment Corporation to Emergent Financial Corp. hereby acknowledge and
consent to the foregoing and affirm that nothing contained herein shall modify
in any respect such guaranty.
AMERICAN ARTISTS FILM CORPORATION,
Witness: a Missouri corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman/CEO
Accepted and agreed to this 16th day of June, 1998
Witness: Emergent Financial Corp.
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▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President
(CORPORATE SEAL)
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SCHEDULE
This amended and Restated Schedule is a part of a Loan and Security
Agreement, dated April 2, 1998, between FIRST LIGHT ENTERTAINMENT CORPORATION
and EMERGENT FINANCIAL CORP., a South Carolina Corporation, ("EFC") and succeeds
the original Schedule dated April 2, 1998. The amended schedule items covered
under this Amended and Restated Schedule pertain to Schedule Item #26.
1. Borrowing Capacity (SS 1.1(c))
Borrowing Capacity at any time shall be the net amount
determined by taking the lesser of the following amounts:
(A) $1,000,000.00
or
(B) the amount equal to the sum of:
(i) 85.00% of the Receivable Borrowing Base;
and
(ii) the lessor of - 0 - or the amount of the
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Inventory Borrowing Base;
and subtracting from the lessor of (A) or (B) above, the sum of (a)
banker's acceptances, plus (b) letters of guaranty, plus (c) standby
letters of credit.
2. Inventory Borrowing Base Percentages (SS 1.1(r))
The following percentages of dollar value (calculated at the
lower of actual cost or market value) are applicable to the following
categories of Eligible Inventory:
( N/A ) finished goods, to the extent of ___%;
( N/A ) raw materials, to the extent of ___ %;
( N/A ) work in process to the extent of ___%.
3. Cash Discount (SS 1.1(g) & 10.3)
Maximum Cash Discount of 2.00%, net 10 days
4. Receivable--Age (SS 1.1(o)(i))
90 DAYS AFTER ( X ) INVOICE DATE
--
( ) due date (not to exceed ___ days
after invoice date) shown on the
Invoice evidencing the applicable
Receivable.
5. Receivable Disqualification Percentage (SS 1.1(o) (vi))
25.00 % OR MORE
6. Permissible Foreign Account Debtors (SS 1.1(o)(vii))
NONE
7. Inventory Accounting (SS 1.1(r))
( X ) FIRST-IN, FIRST-OUT (FIFO)
( ) Last-in, first-out (LIFO)
( ) Other as specified below
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8. Payment Account (SS 1.1(t))
There is ( X ) a Payment Account
is not ( )
Name and address of depository bank: NATIONSBANK, N.A.
9. State of Incorporation (SS 4.2(b), 5.1)
Debtor: GEORGIA
Consolidated Subsidiary N/A
10. Location(s) of Inventory and Equipment (SS 5.4(c), 5.7, 5.8(a) & 11.1)
INVENTORY LOCATIONS: - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
EQUIPMENT LOCATIONS (INCLUDING NAMES AND ADDRESSES OF OWNERS OR REAL
PROPERTY AND MORTGAGES):
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
11. Permitted Encumbrances (SS 5.5(a), 5.5(c) & 11.3)
NONE
12. Business Records Location (SS 5.7(a), 5.7(c) & 11.1)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
13. Trademarks and Patents (SS 5.17)
Debtor:
Consolidated Subsidiary:
14. Margin Stock: (SS 5.22)
NONE
15. Labor Contracts (SS 5.24)
Debtor: NONE
Consolidated Subsidiary:
16. Authorized Shares (SS 5.27)
No. of authorized common shares: 1,000,000
Par Value of common shares: $1.00 per share
No. of issued and outstanding shares: 100,000
17. Required Documents (SS 6.1, 6.4, 6.7, 9.2(b)
Check if Required Frequency Due
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Borrowing Base Certificate ( X ) Daily
Receivable Schedule (Aging) ( X ) Monthly, for the end of
the month, due by the
10th of the following
month.
Inventory Reports
(a) Value Reports ( ) Upon Request
(b) Periodic Summary Reports ( ) Upon Request
(c) Dispute Report ( ) Upon Request
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Credits & Extension Reports ( X ) Same as Receivable Aging
Copies of billing documents relating to the Receivables ( X ) Upon Request
List of names and addresses of Account Debtors ( X ) At closing & upon request
Reconciliation report, in form satisfactory to ( X ) Monthly, for the end of
Secured Party, showing all Receivables, collections, the month, due by the
payments, Credits, & Extensions since the proceeding report 10th of the following
month.
Payable aging report, showing the amounts due and ( X ) Monthly, for the end of
owing on all of Debtor's payable according to Debtor's the month, due by the
records as of the close of such periods as shall be 10th of the following
specified by Secured Party. Month.
Payroll tax returns ( X ) Quarterly
Payroll tax calculations and deposit information ( X ) Monthly
Invoice and Credit registers ( X ) Daily or with each
Advance Request
18. Interest Rate (SS 8.2)
TWO AND ONE-HALF PERCENT (2.50%) PLUS THE GREATER OF (I) THE PRIME RATE
OR (II) SEVEN AND ONE-HALF PERCENT (7.50%).
19. Fees and Due Dates (SS 8.3)
Type Amount Due Date(s)
---- ------ -----------
Monthly Service Fee .50% of the average daily Due and payable on the first day of each
balance of the loan outstanding, month for the preceding month.
subject to a monthly minimum
fee of $500.00
Facility Fee .25% ($2,500.00) of the total At closing and each facility anniversary
credit facility date of the Loan and Security Agreement,
in the event of renewal.
Overline Fee .50% per daily occurrence of Due and payable on the first day of each
the excess of indebtedness over month for the preceding month.
the borrowing capacity defined
in Schedule Item 1(A).
Overcollateral Fee .50% per daily occurrence of Due and payable on the first day of each
the excess of indebtedness over month for the preceding month.
the borrowing capacity defined
in Schedule Item 1(A).
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Audit Fee $400.00 per day, plus out of Due upon occurrence.
pocket expenses, limited to
$750.00 per quarter as long as
the credit line is not in default.
20. Uncollected Funds Adjustment (SS 8.6)
( ) ________________ calendar days; or
( X ) THREE (3) BUSINESS DAYS; OR
( ) for each Item, the number of days estimated
by Secured party as necessary for collection
of funds from the particular institution on
which such Item is drawn.
21. Additional ▇▇▇▇▇▇▇▇▇ (▇▇ ▇▇ & ▇▇)
▇▇▇▇
▇▇. Annual Financial Statements -- Timing (SS 10.1(a))
23. Annual Financial Statements -- Form (SS 10.1(a))
The following prepared by independent certified public
accountants satisfactory to Secured Party
( ) a compilation
( ) a review or
( X ) AUDITED (AS A COMPONENT OF THE AUDITED
FINANCIAL STATEMENTS OF THE PARENT COMPANY).
24. Interim Financial Statements (SS 10.1(b)
INTERNALLY GENERATED INTERIM FINANCIAL STATEMENTS WITHIN 30 DAYS OF
EACH MONTH END.
25. Terms of Sale (SS 10.3)
Due dates of no more than 30 calendar days from date of Invoice, except
in regard to transactions specified below under "Datings."
Datings: NONE
26. Net Working Capital; Consolidated Tangible Net Worth (SS 10.13)
Minimum net working capital NOT APPLICABLE
Minimum consolidated tangible net worth: NOT APPLICABLE
The New Working Capital and Tangible Net Worth covenants have been
amended to be not applicable.
27. Permitted Borrowing (SS 11.2)
Debtor: NONE, OTHER THAN THAT OF EMERGENT FINANCIAL CORP
FACILITATED THROUGH THIS TRANSACTION AND THOSE IN
EXISTENCE AT THE TIME OF CLOSING OF THIS TRANSACTION,
AS DISCLOSED IN VARIOUS SCHEDULES AND EXHIBITS
RELATED TO THE LOAN DOCUMENTS OF THIS FACILITY.
Consolidated Subsidiary: N/A
28. Permitted Investments and Advances (SS 11.9(d))
Debtor: NONE, OTHER THAN INTERCOMPANY TRANSFERS
THAT ARE WITHIN THE NORMAL COURSE OF
BUSINESS.
Consolidated Subsidiary: N/A
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29. Permitted Guaranties (SS 5.18, 11.10)
Debtor: NONE
Consolidated Subsidiary: N/A
30. Maximum Annual Lease Rentals (SS 11.11)
Debtor: THOSE IN EXISTENCE AT THE TIME OF THIS TRANSACTION
PLUS ANY NEW LEASE RENTALS IN CONJUNCTION WITH THE
ANNUAL CAPITAL EXPENDITURE ALLOWANCE OF $100,000.00
DESCRIBED IN SCHEDULE ITEM #31.
Consolidated Subsidiary: N/A
31. Permitted Capital Expenditures (SS 11.12)
Debtor: $100,000 ANNUALLY.
Consolidated Subsidiary: N/A
32. Maximum Aggregate Compensation (SS 11.13(a))
Debtor: $ N/A
Consolidated Subsidiary: $
33. Maximum Annual Compensation for Certain Individuals (SS 11.13(b))
Name Amount
Debtor: N/A
Consolidated Subsidiary: N/A
34. State (SS 1.1(ff))
GEORGIA
35. Initial Term and Renewal Term (SS 14.13)
Initial Term: ONE (1) YEAR TERM
Renewal Term: ANNUALLY
36. Percentage of Stock Ownership of Consolidated Subsidiaries (SS 5.25, SS
10.24))
Consolidated Subsidiary Debtor's Percentage of ownership
N/A
37. Prepayment Premium (SS 14.13)
ONE PERCENT (1.00%) OF THE BORROWING CAPACITY DEFINED IN SCHEDULE ITEM
1(A).
38. Other Provisions (SS 14.9)
None
39. Bank or Financial Institution (SS 1.1(w))
NationsBank, N.A.
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The undersigned have executed this Schedule on the 16TH DAY OF JUNE, 1998.
Secured Party: EMERGENT FINANCIAL CORP., Debtor: FIRST LIGHT ENTERTAINMENT CORPORATION,
A SOUTH CAROLINA CORPORATION A GEORGIA CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇, SENIOR VICE PRESIDENT Attest: /s/ J. ▇▇▇▇ ▇▇▇ ▇▇▇▇
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(Corporate Seal) (Corporate Seal)