AMENDMENT NO. 5 TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
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This AMENDMENT NO. 5 TO AMENDED AND RESTATED REVOLVING CREDIT, TERM
LOAN AND SECURITY AGREEMENT (the "Agreement"), dated as of January 6, 2003, is
by and among KOALA CORPORATION, a Colorado corporation, as borrower and debtor
("Borrower"), KEYBANK NATIONAL ASSOCIATION ("KeyBank"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as a Lender and in its capacity as
agent acting in the manner described in the Credit Agreement ("U.S. Bank" or
"Agent").
RECITALS
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A. Borrower, U.S. Bank and KeyBank are parties to that certain
Amended and Restated Revolving Credit, Term Loan and Security Agreement dated
September 26, 2001, as amended (the "Credit Agreement").
B. Borrower intends to sell substantially all of the assets (the
"Acquired Assets") owned by its subsidiary PS Florida, Inc. to PS Commercial
Play, LLC pursuant to an asset purchase agreement previously provided to the
Lenders (the "Asset Purchase Agreement").
C. Pursuant to the Credit Agreement, the Lenders have a security
interest in all of the assets of Borrower and its Consolidated Subsidiaries
including the Acquired Assets and, therefore, Borrower has requested that the
Lenders consent to the sale of the Acquired Assets.
D. Borrower and the Lenders have agreed to enter into this Agreement
to amend the Credit Agreement.
E. The Lenders are willing to amend the Credit Agreement, and to
consent to the sale of the Acquired Assets, based on the covenants, terms and
conditions set forth herein.
AGREEMENT
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1. Definitions.
(a) Any capitalized terms used but not defined in this Agreement
shall have the meanings given to such terms in the Credit Agreement.
(b) The definition of "Total Revolving Credit Commitment" in the
Credit Agreement is hereby deleted and replaced with the following definition:
"TOTAL REVOLVING CREDIT COMMITMENT" means a principal amount
equal to $7,500,000."
2. Deferral of Term Loan Repayment. Subject to Borrower taking all action
required under this Agreement, the quarterly principal payment in the amount of
$500,000 that was due and payable to the Lenders by Borrower on December 31,
2002, pursuant to Section 2.2(c) of the Credit Agreement, is hereby deferred
until February 14, 2003, at which time such payment shall be due and payable.
Nothing in this deferral relieves Borrower from any other obligation it has
under the Credit Agreement, including, but not limited to, the payment of
interest on the deferred principal payment set forth herein.
3. Consent to Sale of Assets. The Lenders hereby agree and consent to
Borrower's sale (through its subsidiary) of the Acquired Assets pursuant to the
Asset Purchase Agreement and agree to release any and all of their liens and
encumbrances on the Acquired Assets, provided that the following conditions are
met:
(a) all proceeds from the sale of the Acquired Assets except for
any amounts payable to Green, Xxxxxxx & Bunch, LTD or otherwise agreed to in
writing by the Lenders are immediately used to reduce the outstanding balance
under the Revolving Line of Credit;
(b) all proceeds from the sale of the Acquired Assets except for
any amounts payable to Green, Xxxxxxx & Bunch, LTD or otherwise agreed to in
writing by the Lenders due to Borrower at the closing of such sale shall be
wired directly to Agent for application to the Revolving Line of Credit as set
forth in Section 3(a);
(c) the promissory note or notes (the "Notes") received by
Borrower for deferred payment of the purchase price of the Acquired Assets shall
be pledged to the Lenders, be considered part of the Collateral, and all
payments on the Notes (except for such amounts payable to Green, Xxxxxxx &
Bunch, LTD) shall be applied to the outstanding principal balance of Term Loan B
or as otherwise agreed to in writing among the Lenders and Borrower; and
(d) the Notes shall not be Eligible Accounts Receivable or
otherwise considered in any way in determining the Borrowing Base under the
Credit Agreement.
4. Waiver of Claims. Borrower hereby agrees that this Agreement is a
reasonable agreement between the parties in connection with the current facts
and circumstances related to Borrower's business and is in keeping with the
tenor of the Credit Agreement, and Borrower hereby completely and generally
waives, releases, remises, acquits and forever discharges the Lenders and their
respective affiliates, present and past officers, directors, agents, attorneys,
predecessors, successors, insurers, parent, subsidiary and sibling corporations
and entities, and assigns (collectively, hereafter the "Bank Releasees") of and
from any and all past and present claims, damages or causes of action arising or
relating in any way to the actions of the Bank Releasees relating to the Credit
Agreement, this Agreement, the Transaction Documents or any other agreement
between the parties, which Borrower ever had or now has against the Bank
Releasees, or any of them.
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5. Miscellaneous.
(a) Borrower agrees to pay on demand all costs and expenses of
the Agent in connection with the preparation, execution, delivery,
administration, modification, and amendment of this Agreement, the other
Transaction Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Agent (including the cost of internal counsel) with respect thereto and with
respect to advising the Agent as to its rights and responsibilities under the
Transaction Documents. Borrower further agrees to pay on demand all costs and
expenses of the Agent and the other Lenders, if any (including, without
limitation, reasonable attorneys' fees and expenses and the cost of internal
counsel), in connection with the enforcement (whether through negotiations,
legal proceedings, or otherwise) of this Agreement or the Transaction Documents.
(b) The Lenders and Borrower, as used herein, shall include the
successors or assigns of those parties, except that Borrower shall not have the
right to assign its rights hereunder or any interest herein.
(c) No modification, rescission, waiver, release, or amendment of
any provision of this Agreement shall be made, except by a written agreement
signed by Borrower and the Required Lenders.
(d) This Agreement may be executed in any number of counterparts,
and by the Lenders and Borrower on separate counterparts, each of which, when so
executed and delivered, shall be an original, but all of which shall together
constitute one and the same Agreement.
(e) Article and Section headings used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.
(f) The terms of this Agreement and the other Transaction
Documents shall be cumulative except to the extent that they are specifically
inconsistent with each other, in which case the terms of this Agreement shall
prevail.
(g) This Agreement, the Credit Agreement, and the other
Transaction Documents constitute the entire agreement and understanding between
the parties hereto with respect to the transactions contemplated hereby and
supersede all prior negotiations, understandings, and agreements between such
parties with respect to such transactions, including, without limitation, those
expressed in any commitment letter delivered by the Lenders to Borrower.
(h) This Agreement, and the transactions evidenced hereby, shall
be governed by, and construed under, the internal laws of the State of Colorado,
without regard to principles of conflicts of law, as the same may from time to
time be in effect, including, without limitation, the Uniform Commercial Code as
in effect in the state.
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(i) Borrower and the Lenders agree that any action or proceeding
to enforce, or arising out of, the Transaction Documents may be commenced in any
state or federal court of competent jurisdiction in the State of Colorado, and
Borrower and Lenders waive personal service of process and agree that a summons
and complaint commencing an action or proceeding in any such court shall be
properly served and shall confer personal jurisdiction if served by registered
or certified mail to Borrower or the Lenders, as appropriate, or as otherwise
provided by the laws of the State or the United States.
(j) Borrower and the Lenders hereby knowingly, voluntarily, and
intentionally waive any right to trial by jury borrower or lenders may have in
any action or proceeding, in law or in equity, in connection with the
Transaction Documents or the transactions related thereto. Borrower represents
and warrants that no representative or agent of the Lenders has represented,
expressly or otherwise, that the Lenders will not, in the event of litigation,
seek to enforce this right to jury trial waiver. Borrower acknowledges that the
Lenders have been induced to enter into this Agreement by, among other things,
the provisions of this paragraph.
(k) Oral agreements or commitments to loan money, extend credit
or to forbear from enforcing repayment of a debt, including promises to extend
or renew such debt, are not enforceable. To protect you (Borrower) and us
(Lenders) from misunderstanding or disappointment, any agreements we reach
covering such matters are contained in this Agreement and the Transaction
Documents, which are the complete and exclusive statement of the agreement
between us, except as we may later agree in writing to modify it.
* * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BORROWER:
KOALA CORPORATION
By:
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Name: Xxx Xxxxxxxx
Title: Chief Operating Officer
Address:
00000 Xxxx 00xx Xxxxxx, Xxxx X, Xxxxxx, XX 00000
Attn: Xxx Xxxxxxxx, Chief Operating Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
LENDERS:
U.S. BANK NATIONAL ASSOCIATION
By:
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address:
U.S. Bancorp Center BC-MN-H22A
000 Xxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
Phone: (000) 000-0000
Facsimile: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address:
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
