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EXHIBIT 4.18
WAIVER AND AMENDMENT NO. 1
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 (this "Amendment") is entered into as
of February 6, 2001, by and between National Record Mart, Inc., a Delaware
Corporation ("Borrower") and Fleet Capital Corporation ("Lender").
BACKGROUND
Borrower and Lender are parties to an Amended and Restated Loan and
Security Agreement dated as of November 1, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lender provides Borrower with certain financial
accommodations.
Borrower has requested that Lender waive an Event of Default that has
occurred and make certain amendments to the Loan Agreement, and Lender is
willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrower by Lender,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) Section 3.1(A) is amended in its entirety to provide as
follows:
("A) Interest. Interest shall accrue on the principal amount
of Prime Loans outstanding at the end of each day (computed on
the actual days elapsed over a year of 360 (days) at a
fluctuating rate per annum equal to two percentage points
(2.0%) above the Base Rate. After the date hereof, the
foregoing rate of interest shall be increased or decreased, as
the case may be, by an amount equal to any increase or
decrease in the Base Rate, with such adjustments to be
effective as of the opening of business on the day that any
such change in the Base Rate becomes effective. The Base Rate
in effect on the date hereof shall be the Base Rate effective
as of the opening of business on the date hereof, but if this
agreement is executed on a day that is not a Business Day, the
Base Rate in effect on the date hereof shall be the Base Rate
effective as of the opening the business on the last Business
Day immediately preceding the date hereof. Eurodollar Loans
shall bear
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interest on the principal amount thereof owing, at a rate per
annum equal to four percentage points (4.0%) above the
Eurodollar Rate."
3. Waiver. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, Lender hereby waives the Event of Default which has
occurred solely as a result of Borrower's non-compliance with Section 9.3(B) of
the Loan Agreement as a result of Borrower's failure to achieve Cash Flow of at
least $250,000 at the end of the fiscal quarter ended December 23, 2000 with
respect to the four fiscal quarters then ended as of the last day of such fiscal
quarter.
4. Conditions of Effectiveness. This Amendment shall become effective
upon satisfaction of the following conditions precedent: Lender shall have
received (i) four (4) copies of this Amendment executed by Borrower and
consented and agreed to by each Guarantor, (ii) payment of an amendment and
waiver fee in the amount of $87,500 which amount shall be charged to Borrower's
account with Lender and (iii) and such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Lender or
its counsel, each of which shall be in form and substance satisfactory to Lender
and its counsel.
5. Representations and Warranties. Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with
respect to the Loan Agreement.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in Section 3, operate as a
waiver of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments or
agreements executed and/or delivered under or in connection therewith.
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(7) Governing Law. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the state
of New York.
(8) Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(9) Counterparts; Facsimile. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
NATIONAL RECORD MART, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President and CFO
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CONSENTED AND AGREED TO
NRM INVESTMENT, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
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