(EXHIBIT 10.48)
SECOND AMENDMENT TO
CREDIT DOCUMENTS
This Second Amendment to Credit Documents ("Amendment") is made as of
December 22, 1995 by and among Newmarket Capital Group, L.P. (the "Lender"),
Dayton Way Pictures, Inc. (the "Borrower") and Xxxxxxx-Xxxxx International, a
division of the Xxxxxxx-Xxxxx Company ("KL").
R E C I T A L S
Reference is hereby made to the following documents and agreements in
connection with that certain motion picture presently entitled "THE GRAVE" (the
"Picture"):
A. Borrower and Lender entered into that certain Loan Agreement dated as
of June 12, 1995 as amended by that certain First Amendment to Loan Agreement
dated as of September 29, 1995, (collectively, the "Loan Agreement") relating to
the Picture; and
B. The other Credit Documents, including without limitation, that certain
Note, that certain Security Agreement, that certain Interparty Agreement and
that certain KL Guaranty, as each of such terms is defined in the Loan
Agreement, together with all documents and agreements entered into in connection
with each of the foregoing.
WHEREAS, Borrower and Lender now wish to further amend the Loan Agreement,
the Interparty Agreement and the other Credit Documents and Lender wishes to
repay a portion of the KL Investment;
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, Borrower and Lender hereby agree as
follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein are
used herein as defined in the Loan Agreement.
2. WAIVER. Lender agrees, upon Borrower's fulfillment of the conditions
precedent set forth on the attached Exhibit A, to waive any Event of Default
which has occurred and is continuing as of the date hereof (i) under Section
8.11 (a) of the Loan Agreement as a result of Debtor's failure to deliver to
Lender on or before November 30, 1995 sufficient Distribution Agreements
together with Distributor's Acceptances related thereto with an Acceptable Pre-
Sale Value of at least $700,000 and (ii) under Section 8.11 (b) of the Loan
Agreement as a result of Debtor's failure to deliver to Lender on or before
December 15, 1995 sufficient Distribution Agreements together with Distributor's
Acceptances related thereto with an Acceptable Pre-Sale Value of at least
$1,400,000.
This waiver shall be effective only for the specific Event of Default(s)
specified above, and in no event shall this waiver be deemed to be a waiver of
(a) enforcement of the Lender's rights with respect to any other Event(s) of
Default now existing or hereafter arising or (b) Debtor's compliance with any
other covenants or provisions of the Credit Documents.
Nothing contained herein nor any communications between the Lender and the
Debtor shall be a waiver of any rights or remedies the Lender has or may have
against the Debtor, except as specifically provided herein. The Lender hereby
reserves and preserves all of its rights and remedies against the Debtor under
the Loan Agreement, the other Credit Documents, and applicable law.
3. AMENDMENTS.
(a) The parties hereto agree that the Loan Agreement is hereby amended as
follows:
(i) SECTION 2.3. Section 2.3 of the Loan Agreement is hereby amended
by deleting the reference to "March 14, 1996" in the seventh line thereof and
replacing it with "March 31, 1996".
(ii) SECTION 2.4(a). Section 2.4(a) of the Loan Agreement is hereby
amended by adding the following at the end of such section: "Notwithstanding the
foregoing, effective February 1, 1996, the Loans shall bear interest on the
unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate equal to the sum of three percent (3.0%)
per annum plus the "Prime Rate.""
(iii)SECTION 8.11. Section 8.11 of the Loan Agreement is hereby
amended by deleting the current text in its entirety and replacing it with the
following: "Borrower and/or KL fails to deliver to Lender on or before January
31, 1996 fully executed Distribution Agreements, Distributors' Acceptances and
letters of credit, if applicable, all in form and substance acceptable to Lender
and guaranteed pursuant to the Completion Guaranty, for all sales of
distribution rights in connection with the Picture made as of December 22, 1995
as reflected on Schedule I to the Second Amendment to Credit Documents relating
hereto."
(b) The parties hereto agree that the Interparty Agreement is hereby
amended as follows:
(i) SECTION 5(b). Section 5(b) of the Interparty Agreement is hereby
amended by deleting the current text of Section 5(b) in its entirety and
replacing it with the following: "The KL Guaranty shall be reduced from $690,000
to $250,000 and $287,500 of the KL Investment shall be repaid by the Lender
advancing funds therefor under the Loan Agreement upon Borrower's fulfillment of
the conditions precedent set forth on Exhibit A to the Second Amendment to
Credit Documents relating hereto. Notwithstanding the foregoing, the KL
Guaranty shall be released in full and the remainder of the KL Investment shall
be repaid by the Lender advancing funds therefor under the Loan Agreement if and
when the Acceptable Pre-Sale Value of all Distribution Agreements delivered to
Lender are equal to or greater than the amount of the Production Facility."
The Credit Documents and any and all documents and agreements entered into
on connection with any of the Credit Documents shall be deemed amended hereby to
the extent (and only to the extent) necessary to
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conform them to the terms contained herein; except as expressly herein agreed,
all of the foregoing documents and agreements shall remain unchanged and in full
force and effect except that each reference in such documents and agreements to
the Loan Agreement, the Security Agreement, the Note, the Interparty Agreement
the KL Guaranty any other Credit Document, or any other document or agreement
entered into in connection with any of the foregoing shall be deemed to refer to
such document or agreement, respectively, as amended hereby.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants that all of the representations and warranties set forth in the Loan
Agreement are true and correct and that no Event of Default under the Loan
Agreement has occurred or is continuing as of the date hereof except as
specifically waived herein.
5. EFFECTIVE DATE. This Amendment shall become effective upon delivery
to the Lender of a fully executed copy of this Amendment.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of California. No amendment hereto shall
be effective unless in writing and executed by the parties hereto.
7. COUNTERPARTS. This Amendment may be executed in counterparts all of
which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment is duly executed by an authorized
signatory of each of the parties hereto as of the date first above written.
DAYTON WAY PICTURES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name:
Title:
NEWMARKET CAPITAL GROUP, L.P.
By: BFB,LLC
Its: Managing General Partner
By: /s/ Will Tyrer
-----------------------------------
Name:
Title:
XXXXXXX-XXXXX INTERNATIONAL, a division
of The Xxxxxxx-Xxxxx Company
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name:
Title:
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EXHIBIT "A"
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1. Delivery to Lender by Borrower and/or KL of the following:
(a) With respect to Germany, executed Distributor's Acceptance, in form and
substance acceptable to Lender, guaranteed pursuant to the Completion Guaranty
and signed by all parties thereto.
(b) With respect to Japan, executed Distribution Agreement and
Distributor's Acceptance, in form and substance acceptable to Lender, guaranteed
pursuant to the Completion Guaranty and signed by all parties thereto.
(c) With respect to Home Box Office, Inc., executed Distributor's
Acceptance, in form and substance acceptable to Lender, guaranteed pursuant to
the Completion Guaranty and signed by all parties thereto.
(d) With respect to Cabin Fever, executed Distribution Agreement providing
for a minimum guarantee of at least $450,000 and a Distributor's Acceptance, in
form and substance acceptable to Lender, guaranteed pursuant to the Completion
Guaranty and signed by all parties thereto.
The $287,500 portion of the KL Investment to be repaid by the Lender
pursuant to Section 5(b) of the Interparty Agreement (as amended) shall be
reduced by the amount of the minimum guarantee for any territory listed in
paragraphs (a) through (d) above for which Borrower and/or KL does not deliver
all items listed in such paragraph.
2. Delivery to Lender of an executed copy of that certain side letter of even
date herewith among, INTER ALIA, Lender, Borrower and KL relating to the
Collection Account and cross-collateralization.
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