1
EXHIBIT 10.18.1
AMENDMENT NUMBER ONE TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT, dated as of
October 12, 1999 (this "Amendment"), amends that certain Loan and Security
Agreement, dated as of February 4, 1999 (as amended from time to time, the "Loan
Agreement"), by and between AMERIVISION COMMUNICATIONS, INC., an Oklahoma
corporation ("Borrower"), on the one hand, and COAST BUSINESS CREDIT, a division
of Southern Pacific Bank, a California corporation ("Coast"), on the other hand.
All initially capitalized terms used in this Amendment shall have the meanings
ascribed thereto in the Loan Agreement unless specifically defined herein.
R E C I T A L S
WHEREAS, Borrower and Coast wish to amend the Loan Agreement pursuant
to the terms and provisions set forth in this Amendment; and
NOW, THEREFORE, the parties hereto agree as follows:
AMENDMENT
Section 1. AMENDMENT TO SECTION 2.1(a) OF THE SCHEDULE REGARDING
THE ADVANCE MULTIPLE. Section 2.l(a) of the Schedule to the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with
the following:
"(a) Advances up to four (4) times recurring monthly collections
received by Coast measured on a trailing three-month moving
average up to a maximum of seventy percent (70%) of the orderly
liquidation value of Borrower's subscriber base, as determined
from time to time by an appraiser acceptable to Coast in its sole
and absolute discretion; or"
Section 2. AMENDMENT TO SECTION 2.1(a) OF THE SCHEDULE REGARDING
THE CREDIT LIMIT. Section 2.l (a) of the Schedule to the Loan Agreement is
hereby amended to add the following paragraph at the end of said Section:
"If Borrower requests an increase in the Maximum Dollar Amount from
Thirty Million Dollars ($30,000,000) to Thirty Five Million Dollars
($35,000,000) after January 30, 2000 and prior to or on January 30,
2001, Borrower shall provide Coast with 90 days written notice prior to
the proposed effective date of any such increase. To be eligible for
the increase: (1) the provisions of this Section 2.1, with the
exception of the Maximum Dollar Amount limitation, must otherwise allow
for Loans (i.e., borrowing availability) in excess of $30,000,000, (2)
an Event of Default shall not then exist or result from such increase,
and (3) any funds which may become available for borrowing from such an
increase will be utilized by Borrower for working capital purposes
consistent with prior utilization of Loan proceeds.
1
2
If such an increase becomes effective, Borrower shall pay Coast a fee
equal to one percent (1%) of the amount that the Maximum Dollar Amount
is increased, with said fee to be fully earned and payable concurrently
with the effectiveness of such an increase."
Section 3. AMENDMENT TO SECTION 9.1 OF THE SCHEDULE REGARDING THE
MATURITY DATE. Section 9.1 of the Schedule to the Loan Agreement is hereby
amended by deleting such Section in its entirety and replacing its with the
following:
"January 30, 2003, subject to automatic renewal as provided in Section
9.1 of the Agreement, and early termination as provided for in Section
9.2 of the Agreement."
Section 4. AMENDMENT TO SECTION 9.2 OF THE SCHEDULE REGARDING THE
EARLY TERMINATION FEE. Section 9.2 of the Schedule to the Loan Agreement is
hereby amended by deleting such Section in its entirety and replacing it with
the following:
"1. If termination occurs at anytime prior to or on the second
anniversary of the Closing Date: An amount equal to the greater of
(i) an amount equal to all interest due and payable during the six
(6) months immediately preceding the effective date of
termination, or (ii) an amount equal to the Minimum Monthly
Interest multiplied by the number of full or partial months from
the effective date of termination to the second anniversary of the
Closing Date, or (iii) an amount equal to the average monthly
interest accrued during the six (6) months immediately preceding
the effective date of termination, multiplied by the number of
full or partial months from the effective date of termination to
the second anniversary of the Closing Date.
2. If termination occurs at anytime after the second anniversary of
the Closing Date: An amount equal to two percent (2%) of the
Maximum Dollar Amount (as defined in this Schedule) if termination
is effective after the second anniversary and before the third
anniversary of the Closing Date, and one percent (1%) of the
Maximum Dollar Amount, if termination occurs anytime after the
third anniversary of the Closing Date and before the Maturity
Date.*
[*If Borrower's request for an increase in the Maximum Dollar
Amount, as set forth in Section 2.1 of the Schedule, from
$30,000,000 to $35,000,000 is denied solely on the basis of
Coast's exercise of its sole and absolute discretion
notwithstanding that said increase would otherwise be allowable
pursuant to the provisions of Section 2.1 of the Schedule, then
the Early Termination Fee referenced in paragraphs 1 and 2
immediately above will become:
"If termination occurs at anytime after the first anniversary of
the Closing Date: An amount equal to two percent (2%) of the
Maximum Dollar Amount (as defined in this Schedule) if termination
is effective after the first anniversary and before the second
anniversary of the Closing Date; and one percent (1%) of the
Maximum Dollar Amount, if termination occurs anytime after the
second anniversary of the Closing Date and before the Maturity
Date."
2
3
Section 5. AMENDMENT TO SECTION 3.1 OF THE SCHEDULE TO THE LOAN
AGREEMENT REGARDING THE INTEREST RATE. Section 3.1 of the Schedule to the Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"A rate equal to the Prime Rate plus the applicable margin per annum
set forth below, determined by reference to the Net Worth of Borrower
as of the immediately preceding fiscal year end or quarter, confirmed,
in each case, by a CPA year-end or quarter end audit:
Applicable Margin
Net Worth Per Annum
----------- -----------------
More negative than a negative ($1,500,000) 3.25%
Equal to or greater than a negative
($1,500,000) but less than a positive
$1,500,000 2.50%
Equal to or greater than $1,500,000
but less than $6,500,000 2.00%
Equal to or greater than $6,500,000 1.50%
The interest rate applicable to all Loans shall be calculated on the
basis of a 360-day year for the actual number of days elapsed and shall
be adjusted monthly effective as of the first day of each month. The
interest to be charged for each month shall be based on the highest
Prime Rate in effect during said month, but in no event shall the rate
of interest charged on any Loans in any month be less than 9% per
annum.
Section 6. CONSENT TO PREPAYMENT OF XXXXXXX ENTERPRISES
SUBORDINATED DEBT. Notwithstanding the terms of the Loan Agreement and that
certain Debt Subordination Agreement dated as of February 4, 1999, between
Xxxxxxx Enterprises, Inc., a Florida corporation and Coast (the "Subordination
Agreement"), Coast hereby consents to the prepayment in full of the Subordinated
Debt as defined in the Subordination Agreement. Upon said repayment in full,
Coast agrees that it will release/terminate the Subordination Agreement.
Section 7. CONDITION PRECEDENT. The effectiveness of this
Amendment is expressly conditioned upon the receipt by Coast of an executed copy
of this Amendment together with copies of all other agreements, instruments and
documents as Coast may require in connection with the transactions contemplated
hereby.
Section 8. ENTIRE AGREEMENT. The Loan Agreement, as amended
hereby, embodies the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings relating to the
subject matter hereof. Borrower represents, warrants
3
4
and agrees that in entering into the Loan Agreement and consenting to this
Amendment, it has not relied on any representation, promise, understanding or
agreement, oral or written, of, by or with, Coast or any of its agents,
employees, or counsel, except the representations, promises, understandings and
agreements specifically contained in or referred to in the Loan Agreement, as
amended hereby.
Section 9. CONFLICTING TERMS. In the event of a conflict between
the terms and provisions of this Amendment and the terms and provisions of the
Loan Agreement, the terms of this Amendment shall govern. In all other respects,
the Loan Agreement, as amended and supplemented hereby, shall remain in full
force and effect.
Section 10. MISCELLANEOUS. This Amendment shall be governed by and
construed in accordance with the laws of the State of California. This Amendment
may be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any party hereto may execute this Amendment by
signing such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their respective officers thereunto duly authorized as of
the date first above written.
BORROWER:
AMERIVISION COMMUNICATIONS, INC.,
An Oklahoma corporation
By /s/ XXXXXXX X. XXXXXXXX
-----------------------------------------
President or Vice President
By /s/ XXXXX XXXXX
-----------------------------------------
Secretary or Ass't Secretary
COAST:
COAST BUSINESS CREDIT,
a division of Southern Pacific Bank
By /s/ XXXXXXX XXXXXXX
-----------------------------------------
Title Vice President
--------------------------------------
4