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Exhibit 10.59
MULTI-AGREEMENT AMENDMENT NO. 7
This Multi-Agreement Amendment, dated as of December 11, 1998, is
entered into by and among ▇▇▇▇▇▇ COMICS, INC., a New York corporation
("BORROWER") and CITY NATIONAL BANK, N.A. ("BANK"). For good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. Recital of Certain Facts:
(a) Borrower and Batik are parties to that certain Revolving
Loan and Security Agreement, dated as of October 27, 1993 (the "ORIGINAL LOAN
AGREEMENT"), and as amended by that certain Multi-Agreement Amendment, dated
August 30, 1994 (the "FIRST AMENDMENT"), that certain Multi-Agreement Amendment
No. 2, dated as of November 1, 1994 (the "SECOND AMENDMENT"), that certain
Multi-Agreement Amendment No. 3, dated as of September 1, 1995 (the "THIRD
AMENDMENT"), that certain Multi-Agreement Amendment No. 4, dated as of June 1,
1996 (the "FOURTH AMENDMENT") that certain Multi-Agreement Amendment No. 5 dated
as of June 1, 1997 (the "FIFTH AMENDMENT") and that certain Multi-Agreement
Amendment No. 6 dated as of June 1, 1998 (the "SIXTH AMENDMENT"). The Original
Loan Agreement, the First Amendment, the Second Amendment, the Third Amendment,
the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment are
hereinafter collectively referred to as the "LOAN AGREEMENT." Capitalized terms
not otherwise defined herein shall have the same meaning as set forth in the
Loan Agreement.
(b) Borrower has requested that the Commitment Termination Date
be extended.
(c) Bank has agreed to (i) amend the Loan Agreement and (ii)
extend the Commitment Termination Date to March 31, 1999 as herein provided,
subject to the terms of this Agreement.
2. Amendment to Loan Agreement and Revolving Note.
2.1 Extension of Commitment Termination Date. Bank and Borrower
agree that the Commitment Termination Date shall be extended to March 31, 1999.
The Revolving Note shall also be deemed amended so that the payment due date
contained in the fourth paragraph thereof shall be changed to March 31, 1999.
Except as specifically amended hereby, all other provisions of the Loan
Agreement and the Collateral Documents shall remain in full force and effect.
2.2 Decrease in Commitment Amount. The term "Commitment" is
hereby restated to mean the commitment of Lender to make Loans, on the terms and
conditions herein obtained from the date hereof through the Commitment
Termination Date in an aggregate principal amount at one time outstanding not in
excess of Two Million Five Hundred Thousand Dollars ($2,500,000.00).
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2.3 Elimination of Certain Precedents to Borrowing. Sections 2.4
and Section 2.5 of the Sixth Amendment are hereby deleted in their entirety.
2.4 Elimination of Borrowing Base. Section 2.3 of the Fifth
Amendment is hereby deleted in its entirety. Advances shall be extended up to
the Commitment Amount without regard to any Borrowing Base calculations.
2.5 Elimination of Certain Pre-payment Requirements. Section
3.1(c) and 3.5(a) of the Original Loan Agreement are eliminated in their
entirety.
2.6 Amendment to Covenants. Sections 6.2 (C), 6.5 and 6.6 of the
Loan Agreement are hereby restated in their entirety as follows:
"6.2(C) Declare or pay any dividend upon any of the
Borrower's capital stock or make any distributions of
Borrower's property, security or assets (other that the
MCA Agreement or distributions to Guarantor, to fund
Guarantor's overhead made in the ordinary course of
business)
"6.5 Net Worth. Borrower shall not permit its Net Worth
to fall below $17,000,000 as of December 31, 1998, or
below $14,500,000 as of March 31, 1999.
6.6 Current Ratio. There shall be no requirement as to
maintaining a Current Ratio.
3. Conditions Precedent
3.1 Additional Fees.
Borrower shall pay to Bank the sum of $125,000 as an extension fee, as
well as the of the fees and third party out of pocket expenses of ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP, Bank's counsel.
3.2 Additional Documentation
This Amendment shall become effective upon the Bank's receipt
of all of the following documents:
(a) A signed copy of this Amendment, executed by a duly
authorized representative of the Borrower;
(b) A reaffirmation of the Guaranty, in substantially the form
attached as Exhibit A hereto, executed by a duly authorized representative of
the Guarantor;
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(c) A duly executed copy of a Pledge Agreement in the form
attached as Exhibit B, executed by a duly authorized representative of the
Guarantor, together with all of the share certificates referenced in the Pledge
Agreement, endorsed in blank;
(d) Bank shall have received an opinion of counsel from ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ & Handler LLP in substantially the form attached as
Exhibit C hereto; and
(e) An officer's certificate, in the form attached as Exhibit
D-1 and D-2 hereto, from each of the Borrower and Guarantor, as well as a
Secretary's Certificate in substantially the form of Exhibit D-3.
(f) A guaranty and security agreement from ▇▇▇▇ ▇▇▇▇
Productions, Inc., in substantially the form of Exhibits E and F, respectively,
attached hereto.
(g) Laboratory pledgeholder agreements, from Production Centre
West and Laser Pacific Media-Corp, in substantially the form of Exhibits G-1 and
G-2, respectively, attached hereto.
(h) Such additional Collateral Documents as Bank may request in
its sole and absolute discretions, including without limitation UCC-1 financing
statements for California, New York and Delaware, Copyright Mortgages for all
Film Assets or other items of applicable Collateral and Trademark Assignments.
3.3 Borrower shall furnish to Bank such additional information as Bank
may request as to additional Film Assets which have been created or acquired
after January 1, 1994.
4. Consents. Each of the parties hereto consents to the foregoing
amendments to the extent the consent of any such party is required under the
Loan Agreement's current notice provisions.
5. Representations and Warranties of Borrower. In order to induce Bank
to enter into this Agreement, Borrower represents and warrants to Bank that:
(a) Borrower has the power and authority and has taken all
action necessary to execute, deliver and perform this Agreement and all other
agreements and instruments executed or delivered to be executed or delivered in
connection herewith and therewith and this Agreement and such other agreements
and instruments constitute the valid, binding and enforceable obligations of
Borrower.
(b) The representations and warranties contained in the Loan
Agreement are true and correct in all respects on and as of the date hereof as
though made on and as of the date hereof and no Event of Default (as said term
is defined in the Loan Agreement) or event which with the passage of time or the
giving or notice or both would constitute an Event of Default has occurred and
is continuing as of the date hereof.
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(c) Since the date of the most recent financial statements, if
any, furnished by Borrower to Bank, there has been no material adverse change in
the business or assets or in the financial condition of Borrower.
6. Acknowledgment of Borrower. Borrower acknowledges and agrees that as
of the date of this Agreement, it has no offsets, claims or defenses whatsoever
against any of its obligations under the Revolving Note, or its obligations
under the Loan Agreement, the Collateral Documents, or any other agreements,
documents or instruments securing or pertaining to the Revolving Note or the
Loan Agreement.
7. Full Force and Effect. Each of the Collateral Documents, and all
other documents, agreements and instruments relating to thereto remain in full
force and effect.
8. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, construed and enforced in accordance
with the laws of the State of California applicable to agreements executed and
to be wholly performed therein.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which when
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the date first above
written.
▇▇▇▇▇▇ COMICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. HOPE
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Its: CFO
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CITY NATIONAL BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Its: Vice President
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