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EXHIBIT 10
WAIVER AND FIRST AMENDMENT TO CREDIT AGREEMENT
This Waiver and First Amendment to Credit Agreement, dated as of April
14, 1995 (the "Agreement") is among Stuart Entertainment, Inc., a Delaware
corporation (the "U.S. Company"), Bingo Press & Specialty Limited (formerly
known as 1089350 Ontario Inc.), an Ontario Corporation (the "Canadian Company"),
Bank of America National Trust and Savings Association, as U.S. Agent, Bank of
America Illinois, as U.S. Lender, and Bank of America Canada, as Canadian Agent
and Canadian Lender.
W I T N E S S E T H:
WHEREAS, the U.S. Company, the Canadian Company, the U.S. Agent, the
U.S. Lender, the Canadian Agent and the Canadian Lender are parties to that
certain Credit Agreement dated as of December 13, 1994 (the "Credit Agreement")
and to certain other documents executed in connection with the Credit Agreement;
WHEREAS, the U.S. Company and the Canadian Company have requested
certain waivers and amendments and the U.S. Lender and Canadian Lender have
agreed to such waivers and amendments as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings given to such terms in the Credit Agreement.
2. Waiver. The Lenders hereby waive any Event of Default arising under
Section 8.01(c) solely as a result of a breach of Section 7.15 of the Credit
Agreement for the periods ending December 31, 1994 and March 31, 1995. The
foregoing waiver shall not constitute a waiver of any other Event of Default now
or hereafter existing, including any Event of Default arising under Section
8.01(c) as a result of a breach of Section 7.15 for any period ending after
March 31, 1995.
3. Amendment to the Credit Agreement.
a. The definition of "Leverage Ratio" set forth in Section 1.01 of the
Credit Agreement is amended and restated in its entirety as follows:
"Leverage Ratio" means, for any 12 month period, the ratio of (a) total
consolidated Indebtedness of the U.S. Company outstanding on the last day of
such period (excluding the Indebtedness described in clause (g) and (to the
extent it applies to Indebtedness of another Person of the type described
in such clause (g)) (h) and (i) of the definition of "Indebtedness"); to (b) the
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of (i) EBITDA for such period, less (ii) the Consolidated Capital
Expenditures of the U.S. Company for such period (excluding consolidated
Capital Expenditures of the U.S. Company for such period financed with
Capital Leases); provided; that for the twelve month periods ending on June
30, 1995 and September 30, 1995, Leverage Ratio means the ratio of (a) total
consolidated Indebtedness of the U.S. Company outstanding on the last day of
such period (excluding the Indebtedness described in clause (g) and (to the
extent it applies to Indebtedness of another Person of the type described in
such clause (g)) (h) and (i) of the definition of "Indebtedness"); to (b)
the sum of (i) EBITDA for the period from January 1, 1995 through the last
day of such period, multiplied by the "Multiple" (as defined below), less
(iii) the consolidated Capital Expenditures of the U.S. Company for the
period from January 1, 1995 through the last day of such period, multiplied
by the Multiple (excluding consolidated Capital Expenditures of the U.S.
Company for such period financed with Capital Leases). For purposes hereof,
"Multiple" means, with respect to the Leverage Ratio for the period ending
June 30, 1995, 2.0, and with respect to the Leverage Ratio for the period
ending September 30, 1995, 1.33.
4. No Waiver of Past Defaults. Nothing contained herein shall be deemed
to constitute a waiver of any Event of Default that may heretofore or hereafter
occur or have occurred and be continuing, or to modify any provision of the
Credit Agreement except as expressly provided herein.
5. Representations and Warranties. To induce Lenders to enter into this
Agreement, each Company represents and warrants to Lenders that the execution,
delivery and performance by such Company of this Agreement are within its
corporate powers, have been duly authorized by all necessary corporate action
(including, without limitation, shareholder approval), have received all
necessary governmental approval (if any shall be required), and do not and will
not contravene or conflict with any provision of law applicable to such
Company, the Organization Documents of such Company, or any order, judgment or
decree of any court or other agency of government or any contractual obligation
binding upon such Company; and the Credit Agreement as amended as of the date
hereof is the legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
6. Miscellaneous.
a. Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
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b. Governing Law. This Agreement shall be a contract made under and
governed by the laws of the State of Illinois, without regard to conflict of
laws principles. Whenever possible each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
c. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Agreement.
d. Successors and Assigns. This Agreement shall be binding upon the
Companies, Agents and Lenders and their respective successors and assigns; and
shall inure to the sole benefit the Companies, Agents and Lenders and the
successors and assigns of the Companies, Agents and Lenders.
e. References. Any reference to the Credit Agreement contained in any
notice, request, certificate, or other document executed concurrently with or
after the execution and delivery of this Agreement shall be deemed to include
this Agreement unless the context shall otherwise require.
f. Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Agreement are not intended to and do not serve to
effect a novation as to the Credit Agreement. The parties hereby expressly do
not intend to extinguish the Credit Agreement. Instead, it is the express
intention of the parties hereto to reaffirm the indebtedness created under the
Credit Agreement and secured by the Collateral. The Credit Agreement is hereby
amended hereby and each of the Loan Documents remain in full force and effect.
g. Costs, Expenses and Taxes. Each Company affirms and acknowledges
that Section 10.04 of the Credit Agreement applies to this Agreement and the
transactions and agreements and documents contemplated hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
STUART ENTERTAINMENT, INC.
By /s/ John A. McCray
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Title Director of Finance
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BINGO PRESS & SPECIALTY LIMITED
By /s/ Frank Fish
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Title V.P. Finance
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
U.S. Agent
By /s/ Matthew A. Gabel
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Title Vice President
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BANK OF AMERICA ILLINOIS, as
U.S. Lender
By /s/ David McLeese
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Title Vice President
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BANK OF AMERICA CANADA, as
Canadian Agent
By /s/ Robert S. Kizell
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Title Vice President
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BANK OF AMERICA CANADA, as
Canadian Lender
By /s/ Robert S. Kizell
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Title Vice President
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