Exhibit 10.116
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (this "Amendment") is
entered into as of this 11th day of February, 1999 (the "Third Amendment
Effective Date"), by and between FINOVA CAPITAL CORPORATION, a Delaware
corporation ("Lender"), and PLAY CO. TOYS & ENTERTAINMENT CORP., a Delaware
corporation ("Borrower").
W I T N E S S E T H :
WHEREAS, Borrower and Lender entered into a Loan and Security Agreement
dated as of January 21, 1998 as amended by a First Amendment to the same dated
as of July 24, 1998 and further amended by a Second Amendment to the same dated
as of September 24,1998 (collectively, the "Loan Agreement"), that evidences a
loan from Lender to Borrower; and
WHEREAS, Borrower has asked Lender to modify the Loan Agreement in
accordance with the terms of, and subject to the conditions contained in, this
Amendment and Lender is willing so to amend the Loan Agreement, upon the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of these recitals, the covenants contained
in this Amendment, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Lender and Borrower agree as
follows:
1. Definitions. Unless otherwise defined in this Amendment, all capitalized
terms used herein which are defined in the Loan Agreement have the same meaning
as set forth in the Loan Agreement.
2. Schedule.
2.1 The Section of the Schedule entitled "Total Facility" shall be amended
to replace $7,600,000 with $8,300,000.
2.2 The Section of the Schedule to the Loan Agreement entitled "Loans" is
shall be amended by adding the following:
"Approved LC Loans: An Approved LC line of credit consisting of loans
against the Approved Letter of Credit in an aggregate outstanding principal
amount not to exceed the lesser of (i) $700,000, or (ii) the undrawn amount of
the Approved Letter of Credit (the "Approved LC Loan Facility").
The Approved LC Line shall be secured, in part, by a letter of credit
issued by Chase Manhattan Bank, N.A., which shall (i) be in an amount not less
than $700,000, (ii) be substantially in the form attached as Exhibit A; (iii)
name the Lender as the sole beneficiary of the same, and (iv) have an expiry
date of no earlier than October 3, 2000 ( the "Approved Letter of Credit")."
2.3 The Section of the Schedule entitled "Interest and Fees" is amended by
adding the following:
"Approved LC Line Interest: The Borrower shall pay Lender on the daily
outstanding balance of each Approved LC Line Note at a rate per annum of one
percent (1%) in excess of the Prime Rate. The interest rate chargeable under
each Approved LC Line Note shall be increased or decreased, as the case may be,
without notice or demand of any kind, upon the announcement of any change in the
Prime Rate. Each change in the Prime Rate shall be effective on the first day
following the announcement of such change, provided, that a cumulative change of
less than one fourth of one percent (0.25%) shall not be considered. Interest
charges and other charges under each Approved LC Line Note shall be computed
from the Disbursement Date on the basis of a year of 360 days and actual days
elapsed and will be payable to Lender in arrears on the first day of each
month."
2.4 The Section of the Schedule entitled "Negative Covenants" shall be
amended by adding the following to the Section entitled "Indebtedness":
"Notwithstanding the foregoing, the Borrower shall be permitted during the
1999 fiscal year of the Borrower to incur up to $500,000 in convertible
subordinate debt provided such debt: (i) has a coupon rate of not more than 5%;
(ii) is payable monthly beginning in March, 1999 and is fully repaid on or
before December 31,1999; (iii) the proceeds of the debt is used solely to
provide the Borrower with working capital and funds for store expansion, and
(iv) the holders of such debt execute and deliver to Lender an agreement, in a
form acceptable to Lender, whereby the holders acknowledge that such debt and
their rights to collect the same are subordinate to the rights of Lender."
2.5 The Section of the Schedule entitled "Termination Fee" shall be amended
to add the following:
"Approved LC Line: The Termination Fee applicable to the Approved LC Line
provided for in Section 9.2(d) shall be an amount equal to one percent (1.0%) of
the average daily outstanding balance of the Obligations under the Approved LC
Line for the 180-day period (or lesser period if applicable) preceding the date
of termination."
3. Amendment Fee. In consideration of Lender's agreement to enter into this
Amendment and to the modification to the Loan Documents described herein,
Borrower agrees to pay Lender the amount of TEN THOUSAND DOLLARS ($10,000.00)
(the "Amendment Fee"). The Amendment Fee shall be entirely earned by and payable
to Lender as of the Third Amendment Effective Date.
4. Effect as an Amendment. Other than as specifically set forth in this
Amendment, the remaining terms of the Loan Agreement and the other Loan
Documents shall remain in full force and effect and shall remain unaffected and
unchanged except as specifically amended hereby. In the event of any conflict
between the terms and conditions of this Amendment and any of the other Loan
Documents, the provisions of this Amendment shall control. Each reference to in
the Loan Agreement to "this Agreement" shall be deemed to refer to the Loan
Agreement as amended through and including this Amendment, and each reference in
any other Loan Document to the Loan Agreement as amended through and including
this Amendment.
5. No Waiver. This Amendment in no way acts as a waiver by Lender of any
breach, default, Event of Default or condition which, with the giving of notice
or passing of time or both, would constitute an Event of Default, of Borrower
(whether known or unknown to Lender) or as a release or relinquishment of any of
the liens, security interests, rights or remedies securing payment and
performance of the Obligations or the enforcement thereof. Nothing contained in
this Amendment is intended to or shall be construed as relieving any person or
entity, whether a party to this Amendment or not, of any of such person's or
entity's obligations to Lender.
6. Conditions Precedent. This Amendment will not be effective unless and
until each of the following conditions precedent have been satisfied, in form,
manner and substance satisfactory to Lender prior to the Third Amendment
Effective Date:
(a) Borrower shall have delivered or caused to be delivered to Lender the
following documents, all of which shall be properly completed, executed and
otherwise satisfactory to Lender:
(i) This Amendment;
(ii) Acknowledgment of the Guarantors in the form attached hereto and
incorporated herein by this reference;
(iii) Corporate resolutions of Borrower and Guarantor, approving the
transactions contemplated hereby to which it is a party;
(iv) Such other items as Lender may reasonably require or reasonably deem
necessary;
(v) the original of the Approved Letter of Credit; and
(vi) The Amendment Fee.
(b) There shall not then exist an Event of Default or any act or event
which with notice, passage of time, or both would constitute an Event of
Default.
(c) All the representations and warranties of each and every Loan Party
shall be true and correct, in all material respects, before and after giving
effect to the making of this Amendment.
(d) Borrower shall have paid all closing costs, recording fees and taxes,
appraisal fees and expenses, travel expenses, fees and expenses of Lender's
counsel, and all other costs and expenses incurred by Lender in connection with
the preparation of, closing of and disbursement of the advances pursuant to this
Amendment, which costs, fees and expenses may be payable from the first advance
made pursuant to this Amendment.
7. Indebtedness Acknowledged. Borrower acknowledges that the indebtedness
evidenced by the Loan Documents is just and owing and agrees to pay such
indebtedness in accordance with the terms of the Loan Documents. Borrower
further acknowledges and represents that no event has occurred and no condition
presently exists that would constitute a default or event of default by Lender
under the Loan Agreement or any of the other Loan Documents, with or without
notice or lapse of time.
8. Validity of Documents. Borrower hereby ratifies, reaffirms, acknowledges
and agrees that the Loan Agreement and the other Loan Documents represent valid,
enforceable and collectable obligations of Borrower, and that Borrower presently
has no existing claims, defenses (personal or otherwise) or rights of setoff
whatsoever with respect to the Obligations of Borrower under the Loan Agreement
or any of the other Loan Documents. Borrower furthermore agrees that it has no
defense, counterclaim, offset, cross-complaint, claim or demand of any nature
whatsoever which can be asserted as a basis to seek affirmative relief or
damages from Lender.
9. Reaffirmation of Warranties. Borrower hereby reaffirms to Lender each of
the representations, warranties, covenants and agreements of Borrower as set
forth in each of the Loan Documents with the same force and effect as if each
were separately stated herein and made as of the date hereof. Borrower
represents and warrants to Lender that with respect to the financing transaction
herein contemplated, no Person is entitled to any brokerage fee or other
commission and Borrower agrees to indemnify and hold Lender harmless against any
and all such claims.
10. Other Writings. Lender and Borrower will execute such other writings as
may be necessary to confirm or carry out the intentions of Lender and Borrower
evidenced by this Amendment.
11. Entire Agreement. The Loan Documents as modified by this Amendment
embody the entire agreement and understanding between Borrower and Lender, and
supersede all prior agreements and understandings between said parties relating
to the subject matter thereof.
12. Counterparts; Telefacsimile Execution. This Amendment (including the
consents attached hereto) may be executed in any number of separate
counterparts, all of which when taken together shall constitute one and the same
instrument, admissible into evidence, notwithstanding the fact that all parties
have not signed the same counterpart. Delivery of an executed counterpart of
this Amendment by telefacsimile shall be equally as effective as delivery of a
manually executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile shall also deliver a
manually executed counterpart of this Amendment, but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first written above.
FINOVA CAPITAL CORPORATION, a Delaware corporation
By:
Name:
Title:
PLAY CO. TOYS & ENTERTAINMENT CORP., a Delaware corporation
By:
Name:
Title:
90885-1
ACKNOWLEDGMENT
The undersigned ("Guarantor") hereby executes this Consent for the purpose
of (i) evidencing Guarantor's consent to the execution and performance of the
foregoing Third Amendment to Loan and Security Agreement (the "Third Amendment")
by Lender and Borrower, (ii) reaffirming the terms of the Continuing Guaranty
Agreement executed by Guarantor in favor of Lender, (iii) evidencing Guarantor's
agreement that the Liabilities as set forth and defined in the Continuing
Guaranty Agreement shall, for all purposes, include the Loan Documents, as
amended by the Third Amendment, and shall further include all additional amounts
which may be funded or advanced to Borrower pursuant to the Loan Agreement
described above as amended by the Third Amendment, and (iv) ratifying and
affirming all terms and provisions of the Continuing Guaranty Agreement. Except
to the extent otherwise indicated, terms used herein with initial capital
letters shall have the meanings set forth in the Loan Agreement, as amended by
the Third Amendment.
Guarantor agrees that it has no defense, counterclaim, offset,
cross-complaint, claim or demand of any nature whatsoever which can be asserted
as a basis to seek affirmative relief or damages from Lender.
IN WITNESS WHEREOF, the undersigned has hereunto executed this Consent as
of this ____ day of _____________, 1999.
UNITED TEXTILES & TOYS CORPORATION,
a Delaware corporation
By:
Name:
Title:
90885-1
