WAIVER AND AMENDMENT NO. 4 TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
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This WAIVER AND AMENDMENT NO. 4 TO AMENDED AND RESTATED REVOLVING
CREDIT, TERM LOAN AND SECURITY AGREEMENT (the "Agreement"), dated as of August
13, 2002, 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 on August 6, 2001, November 13, 2001, March 31, 2002 and
June 28, 2002 (the "Credit Agreement").
B. Borrower and the Lenders have agreed to enter into this Agreement
to amend the Credit Agreement.
C. The Lenders are willing to amend the Credit Agreement 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 "REVOLVING CREDIT MATURITY DATE" in the Credit
Agreement is hereby deleted and replaced with the following definition:
"REVOLVING CREDIT MATURITY DATE" means July 15, 2003.
(c) 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
$12,500,000.
2. Revolving Credit Amendment. Section 2.1(b)(i) of the Credit
Agreement is deleted and the following is inserted in its place:
Additional Lenders. Additional Lenders may join the Facility from time
to time by executing and delivering an appropriate Assignment and
Acceptance to each of the Lenders and to Borrower, provided that the
amount of such Lender's Revolving Credit Commitment shall not cause
the total amount of the Revolving Facility to exceed Twelve and
One-Half Million Dollars ($12,500,000).
3. Calculation of Consolidated EBITDA. In the calculation of
Consolidated EBITDA for any period, the non-cash portion of any charges and
expenses recorded by Borrower that are recorded pursuant to FAS 142--Goodwill
Impairment Writedowns and specifically related to write-downs for goodwill
impairment shall not be considered in making such calculation.
4. Amendment of Covenant. Borrower and Lenders hereby agree that the
covenant set forth in Section 5 of Amendment No. 2 to Amended and Restated
Revolving Credit, Term Loan and Security Agreement dated March 31, 2002, related
to Borrower raising $10,000,000 in additional financing is hereby deleted and
replaced with the following:
On or before July 15, 2003, Borrower shall raise a minimum of
$10,000,000 through equity sales or other acceptable financing
approved by the Lenders, all of which proceeds must be used to prepay
the Term Notes (first being applied to Term Loan A and, upon full
payment of Term Loan A, to Term Loan B) that evidences the Term
Facility. Notwithstanding the foregoing, Borrower shall use
commercially reasonable efforts to close successfully such transaction
as soon after the date of this Agreement as possible. Any prepayment
under this section shall be applied to the outstanding balance of the
Term Notes in reverse order of maturity.
5. Waiver of Covenants. In consideration of the terms and conditions
of this Agreement, the Lenders hereby waive Borrower's compliance with the
Maximum Consolidated Leverage Ratio, Minimum Fixed Charge Coverage and Minimum
Interest Coverage financial covenants set forth in Section 9.12 of the Credit
Agreement for the period ending June 30, 2002.
6. Effect of Waiver. The waivers granted in Section 5 of this
Agreement are not continuing waivers and shall in no way extend beyond their
specific terms. In the event any Event of Default occurs under the Credit
Agreement, including the failure of Borrower to be in compliance with any of the
financial covenants of the Credit Agreement specifically set forth in Section 5
of this Agreement, other than in the circumstances specifically waived by the
Lenders, the Lenders shall have all of their rights under the Transaction
Documents, and the Lenders' agreement to the waivers granted in Section 5 of
this Agreement shall in no way limit the Lenders ability to take any action upon
any other Event of Default, whenever occurring, permitted by the Transaction
Documents.
7. 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.
8. 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.
(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:/s/ Xxx Xxxxxxxx
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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:/s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
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: /s/Xxxxx X. Xxxxxxxx
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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
