Unassociated Document


    FIRST
AMENDMENT

    TO

    MASTER PURCHASE
ORDER

    ASSIGNMENT
AGREEMENT

    


    This
First Amendment to that certain Amended and Restated Master Purchase Order
Assignment Agreement  (the “Amendment”) is made as of the 6th day of
April 2010, between WELLS FARGO
BANK, NATIONAL ASSOCIATION, acting through its Wells Fargo Business
Credit, operating division (the “Contractor”), ZOO ENTERTAINMENT, INC., a
Delaware corporation, ZOO
PUBLISHING, INC., a New Jersey corporation, and ZOO GAMES, INC., a Delaware
corporation (collectively, the “Distributor”).

    


    W I T N E S S E T
H:

    


    WHEREAS,
the Contractor and the Distributor are parties to that certain Amended and
Restated Master Purchase Order Assignment Agreement dated as of April 6, 2009
(the “Assignment Agreement”);

    


    WHEREAS,
the Contractor and the Distributor desire to amend the Assignment Agreement as
set forth herein;

    


    NOW,
THEREFORE, in consideration of the premises and other consideration, the receipt
and sufficiency of which is hereby acknowledged by each of the Contractor and
the Distributor, the parties hereto hereby agree as follows:

     

    1.           Certain
Definitions.  Capitalized terms not otherwise herein defined
shall have the meanings ascribed to them in the Assignment
Agreement.

    


    2.           Extension
Fee.  In consideration for the Contractor entering into this
Agreement, the Distributor shall pay the Contractor an extension fee in the
amount of Thirty-One Thousand Nine Hundred Forty-Seven and 47/100 Dollars
($31,947.47) on or before April 6, 2010.

    


    3.           Amendment to Section 1(j) of
the Assignment Agreement.  The definition of "Minimum Volume"
contained in Section 1(j) of the Assignment Agreement is hereby deleted in its
entirety, and in lieu thereof there is inserted a new definition of "Minimum
Volume" as follows:

    


    “MINIMUM VOLUME” means Product
Volume which equals or exceeds $20,308,776.50 for the initial twelve month term
of this Agreement.  In the event the term of this Agreement is renewed
for one or more twelve month renewal terms, for each such renewal, Minimum
Volume means Product Volume which equals or exceeds $20,000,000.

     

    
      
         

      

      
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    4.           Amendment to Section
3(b)(iv) of the Assignment Agreement.  Section 3(b)(iv) of the
Assignment Agreement is hereby deleted in its entirety, and in lieu thereof
there is inserted a new Section 3(b)(iv) as follows:

    


    (iv)           Upon
the purchase of Product required for the P.O., or upon any other advance of
funds in connection with the P.O., the Contractor's aggregate outstanding
funding pursuant to this Agreement shall not exceed the sum of
$10,000,000;

    


    5.           Amendment to Section 6(a) of
the Assignment Agreement.  Section 6(a) of the Assignment
Agreement is hereby deleted in its entirety, and in lieu thereof there is
inserted a new Section 6(a) as follows:

    


    (a)           Subject
to the provisions of this ¶6, Distributor shall pay Contractor a Commitment Fee
in consideration of Contractor's commitment to reserve and have available
sufficient funds to purchase Products or to otherwise advance funds in
connection with a P.O. for Product Volume in amounts equal to or exceeding the
Minimum Volume as contemplated by this Agreement.  The Commitment Fee
shall be in the sum of $406,947.47 and shall be paid by Distributor on the
earlier of April 5, 2011, or the date of termination of this
Agreement.  In the event the term of this Agreement is renewed for one
or more twelve month renewal terms, for each such renewal, Distributor shall pay
Contractor a Commitment Fee in the sum of $400,000, which fee shall be paid by
Distributor on the earlier of twelve months following the date of the renewal of
this Agreement or the date of termination of this Agreement.  The
Commitment Fee for the initial term of this Agreement is deemed by the parties
to have been earned by the Contractor upon the signing of this Agreement, as of
which date the Contractor has reserved the requisite funds.  The
Commitment Fee for each renewal term of this Agreement is deemed by the parties
to have been earned by the Contractor upon each renewal date of this Agreement,
as of which date the Contractor has reserved the requisite funds.

    


    6.           Amendment to Sections
7(b)(i)-(iii) of the Assignment Agreement.  Sections
7(b)(i)-(iii) of the Assignment Agreement are hereby deleted in their entirety,
and in lieu thereof there are inserted new Sections 7(b)(i)-(iii) as
follows:

    


    (i)           A
transaction initiation and set-up fee in a sum equal to 2.0% of the aggregate of
(a) the face amounts of all letters of credit issued by Contractor (or other
financial accommodations) plus (b) all funds advanced by Contractor by other
than issuing its letters of credit; provided, however, that if for the initial
twelve month term of this Agreement ending on April 5, 2011 Product Volume
exceeds $20,308,776.50, then the transaction initiation and set-up fee for the
remaining portion of such initial term shall be in a sum equal to 1.5% of the
aggregate of (a) the face amounts of all letters of credit issued by Contractor
(or other financial accommodations) plus (b) all funds advanced by Contractor by
other than issuing its letters of credit; and provided, further, that if for any
twelve month renewal term of this Agreement Product Volume exceeds $20,000,000,
then the transaction initiation and set-up fee for the remaining portion of such
renewal term shall be in a sum equal to 1.5% of the aggregate of (a) the face
amounts of all letters of credit issued by Contractor (or other financial
accommodations) plus (b) all funds advanced by Contractor by other than issuing
its letters of credit; plus

     

    
      
         

      

      
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    (ii)           A
daily maintenance fee in a sum equal to 0.067% of the aggregate of (a) the face
amounts of all letters of credit issued by Contractor (or other financial
accommodations) and (b) all funds advanced by Contractor by other than issuing
its letters of credit which remain outstanding for more than thirty (30) days;
plus

    


    (iii)           A
Product advance fee in a sum equal to the Applicable Daily Rate (as hereinafter
defined) multiplied by the aggregate amount outstanding on all letters of credit
(or other financial accommodations) and all funds advanced by Contractor by
other than issuing its letters of credit on account of purchases of Products or
other advances made in connection with a P.O. multiplied by the number of days
from the earliest of (A) the date on which any such letter of credit or purchase
order or financial accommodation is negotiated into cash by any person, or (B)
the date funds are advanced by other than issuing a letter of credit or purchase
order, to and including the Clearance Date.  The “Applicable Daily
Rate” shall mean the prime rate as in effect from time to time at Wells Fargo
Bank, National Association, plus 2%, divided by 360.

    


    7.           Amendment to Section 18(a)
of the Assignment Agreement.  Section 18(a) of the Assignment
Agreement is hereby deleted in its entirety, and in lieu thereof there is
inserted a new Section 18(a) as follows:

    


    (a)           Term of
Agreement.  This Agreement is for an initial term of twelve
months beginning on April 6, 2010, and ending on April 5, 2011, and shall
continue thereafter for successive twelve month renewal terms unless either
party terminates the Agreement by written notice to the other not later than
thirty days prior to the end of the initial term or any renewal
term.  Provided, however, that Contractor may also terminate this
Agreement immediately upon Distributor's default or at any time following the
initial term upon fifteen days' prior written notice to
Distributor.

     

    
      
         

      

      
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    8.           Amendment.  This
Amendment constitutes an amendment to the Assignment Agreement, and except to
the extent inconsistent herewith, the parties do hereby reconfirm the Assignment
Agreement in its entirety.

    


    9.           Effectiveness of
Amendment.  This Amendment will not be effective until each of
the persons set forth on Addendum III of the Assignment Agreement shall have
executed an acknowledgment to the Guaranty previously executed by such persons,
in form and substance satisfactory to Contractor.

    


    10.           Counterparts.  This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.  Delivery of an executed counterpart of this Amendment by
facsimile 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 facsimile 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.

    


    * * * * *
* * * * *

     

    
      
         

      

      
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    IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first written above.

     

    WELLS FARGO BANK, NATIONAL
ASSOCIATION

     

    
      
        	 	 	 
	
                By:
      

              	/s/ Michael
      Lawrence	 
	Title:	      
                Vice
      President

              	 
	 	 	 


      

    

     

    ZOO
ENTERTAINMENT, INC.

     

    
      
        
          	 	 	 
	
                  By:
      

                	/s/ David
      Fremed	 
	Name:  	David
      Fremed	 
	Title:	      
                  Chief
      Financial Officer

                	 
	 	 	 


        

      

       

    

    ZOO
PUBLISHING, INC.

    


    
      
        	 	 	 
	
                By:
      

              	/s/ David
      Fremed	 
	Name:  	David
      Fremed	 
	Title:	      
                Chief
      Financial Officer

              	 
	 	 	 


      

    

     

    ZOO
GAMES, INC.

    


    
      
        	 	 	 
	
                By:
      

              	/s/ David
      Fremed	 
	Name:  	David
      Fremed	 
	Title:	      
                Chief
      Financial Officer

              	 
	 	 	 


      

    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    ACKNOWLEDGMENT OF
GUARANTORS

     

    Each of
the undersigned hereby acknowledges receiving and reviewing that certain First
Amendment to that certain Master Purchase Order Assignment
Agreement  (the “Amendment”). Each of the undersigned, by its
execution hereof, hereby agrees that the Guaranty previously executed by him or
her shall remain in full force and effect and that all references in said
Guaranty to the Master Purchase Order Assignment Agreement shall be deemed to
refer to the Master Purchase Order Assignment Agreement as amended by the
Amendment.

     

    Dated:   April
6, 2010

    


    
      
        	 	 	 
	 	 	 	 
	 	
                /s/ Mark Edward
      Seremet

              	 
	 	Mark Edward
      Seremet	 
	 	 	 
	 	 	 
	 	/s/ David William Rosenbaum	 
	 	David William
      Rosenbaum