(EXHIBIT 10.38)
FIRST AMENDMENT TO
LOAN AGREEMENT
This First Amendment to Loan Agreement ("Amendment") is made as of
September 29, 1995 by and between Newmarket Capital Group, L.P. (the "Lender")
and Dayton Way Pictures, Inc. (the "Borrower").
R E C I T A L S
WHEREAS, Borrower and Lender entered into that certain Loan Agreement dated
as of June 12, 1995, (the "Loan Agreement") relating to that certain motion
picture presently entitled "THE GRAVE"; and
WHEREAS, Borrower and Lender now wish to amend the Loan Agreement;
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. By its execution hereof Lender hereby waives 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 June 30, 1995 sufficient Distribution Agreements together
with Distributor's Acceptances related thereto with an Acceptable Pre-Sale Value
of at least $700,000.
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. AMENDMENT. The parties hereto agree that the Loan Agreement is hereby
amended as follows:
SECTION 8.11. Section 8.11 of the Loan Agreement is hereby amended by
deleting the reference to "June 30, 1995" in the second line thereof and
replacing it with a reference to "November 30, 1995".
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.
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: [Signature of Xxxx Xxxxxx]
---------------------------------------
Name: XXXX XXXXXX
Title: President
NEWMARKET CAPITAL GROUP, L.P.
By: BFB, LLC
Its: Managing General Partner
By: [Signature of Xxxxxxx Xxxxx]
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
