(EXHIBIT 10.49)
SECOND AMENDMENT TO
LOAN AGREEMENT
This Second Amendment to Loan Agreement ("Amendment") is made as of
December 22, 1995 by and between Newmarket Capital Group, L.P. (the "Lender")
and Dayton Way Pictures IV, Inc. (the "Borrower").
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 WHOLE WIDE
WORLD" (the "Picture"):
A. Borrower and Lender entered into that certain Loan Agreement dated as
of July 31, 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
and the other Credit Documents;
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 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 $675,000 excluding any sale of the United States.
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. AMENDMENT. The parties hereto agree that the Loan Agreement is hereby
amended as follows:
(a) SECTION 2.4(a) Section 2.4(a) 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.""
(b) 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 set forth on Schedule I attached to the Second Amendment to Loan Agreement
relating hereto."
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. Except as specifically
set forth herein, the parties hereto agree and confirm that the Loan Agreement
and the other documents related thereto remain in full force and effect as
executed except that each reference in the Credit Documents to the Loan
Agreement shall be deemed to refer to the Loan Agreement as amended hereby.
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.
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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 IV, 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: President
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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,
signed by all parties thereto and providing for a final payment no later than
delivery of the Initial Delivery Materials (as defined in the Distributor's
Acceptance).
(b) Executed copy of that certain side letter of even date herewith among,
INTER ALIA, Lender and Borrower relating to the Collection Account and cross-
collateralization.
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