EXHIBIT 10.33
MODIFICATION AND EXTENSION TO
THE THIRD RESTATED LOAN AGREEMENT
THIS MODIFICATION AND EXTENSION TO THE THIRD RESTATED LOAN
AGREEMENT (the "Amendment") is made effective August 15, 1996, by UNICO,
INC., a Delaware corporation, UNITED COUPON CORPORATION, a Virginia
corporation and CAL-CENTRAL MARKETING CORPORATION, formerly AEC Acquisitions,
Inc., an Oklahoma corporation (the "Borrowers"), and BANCFIRST, an Oklahoma
banking corporation (the "Lender"). All capitalized terms used in this
Amendment, unless otherwise defined herein, will have the meanings defined in
the Third Restated Loan Agreement (the "Loan Agreement") dated effective
January 10, 1996 between the Borrowers and the Lender providing for an
extension of credit by the Lender to the Borrowers of an amount not to exceed
Nine Hundred Thirty-Four Thousand Four Hundred Thirty-Two and 73/100 Dollars
($934,432.73).
RECITALS:
A. The Borrowers and the Lender have heretofore executed the Loan
Agreement.
B. The Borrowers and the Lender desire to modify the Loan Agreement
by means of this Amendment.
AGREEMENTS:
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Lender and the Borrowers agree as
follows:
1. Loan Amount. After the date of this Amendment, the maximum principle
amount of the Loans will not exceed Seven Hundred Twenty-One Thousand Four
Hundred Twenty-Four and 85/100 Dollars ($721,424.85) and all references to
the principal amount of the Loans contained in the Loan Documents are hereby
so amended.
2. Representations; Warranties. The Borrowers represent and warrant to the
Lender that each of the representations and warranties set forth at
paragraphs 3.1 through 3.18, both inclusive, of the Loan Agreement are true
and correct on the date of this Amendment except as follows:
2.1 Financial Statements. Paragraph 3.2 of the Loan Agreement is
deleted in its entirety and the following is substituted
therefore:
"3.2 Financial Statements. The financial statements of the
Borrowers furnished to the Lender are correct, complete
and fairly reflect the financial condition of the
Borrowers as of the date thereof and have been prepared
in conformity with GAAP."
2.2 Litigation. Paragraph 3.6 of the Loan Agreement is deleted in
its entirety and the following is substituted therefor:
"3.6 Litigation. Except as disclosed in writing to the Lender,
there is no action, suit, proceeding or investigation pending or
threatened against any of the Borrowers which has an amount in
excess of Ten Thousand Dollars ($10,000.00) at issue or which, if
adversely determined, would materially adversely affect any of the
Borrowers, any of the Collateral or impair the ability of UNICO
or UC to carry on their respective businesses substantially as
now conducted or result in any substantial liability to UNICO or
UC not adequately covered by insurance."
2.3 Location of Collateral. Paragraph 3.14 of the Loan Agreement is
deleted in its entirety and the following is substituted
therefor:
"3.14 Location of Collateral. The Borrowers will give the
Lender written notice of each location at which Inventory
and records of the Borrowers pertaining to the
Collateral are kept. Except as such notice is given, all
Inventory and records of the Borrowers pertaining to the
Collateral shall be kept at the Borrowers' principal
places of business which are: XXXXX--0000 Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000; XX--0000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000; and
Xxx-Xxxxxxx--0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxx 00000.
2.4 Solvency. Paragraph 3.17 of the Loan Agreement is deleted in its
entirety and the following is substituted therefor:
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"3.17 Solvency. After eliminating intercompany
transactions, neither UNICO nor UC is insolvent.
UNICO and UC: (a) are and will be able to pay their
respective debts as they become due; (b) has and will
have capital sufficient to carry on their respective
businesses; and (c) own and will own property having a
value, both at fair valuation and at present fair
salable value, greater than the amount required to
pay their respective debts and obligations."
3. Terms of Payment. Paragraph 4 of the Loan Agreement is deleted in
its entirety and the following provisions are substituted therefor:
"4. Note. The Loans will be evidenced by a Consolidated Renewal
Promissory Note (the "Renewal Note") in the principal amount
of Seven Hundred Twenty-One Thousand Four Hundred Twenty-Four
and 85/100 Dollars ($721,424.85) payable on the following
terms:
4.1 Interest. Absent Default, the Renewal Note will bear
interest on the unpaid principal balance at an annual rate
equal to the Prime Rate plus one percent (1%).
4.2 Payments. Absent Default, the unpaid balance of the Renewal
Note will be paid as follows: (a) on September 15, 1996 and
on the fifteenth (15th) day of each month thereafter through
January 15, 1997 an installment of Twenty-Two Thousand Five
Hundred Dollars ($22,500.00); (b) on February 15, 1997 and
on the fifteenth (15th) day of each month thereafter through
December 15, 1998 an installment of Twenty-Seven Thousand
Five Hundred Dollars ($27,500.00); and (c) the entire unpaid
principal balance of the Renewal Note plus all accrued
interest thereon will be due and payable on December 31,
1998. All payments will be first applied to the payment of
accrued interest and the balance, if any, in reduction of
the principal sum.
4.3 Prepayments. The Borrowers will have the right to prepay the
unpaid principal balance of the Renewal Note in whole or in
part at any time and from time to time without penalty. The
Borrowers will apply as mandatory principal prepayments of
the Renewal Note that amount which is equal to all Accounts
of Cal-Central and UNICO d/b/a Alliance Publications
collected by the Borrowers. Each prepayment will be applied
to payment of the principal installments of the Renewal Note
in the inverse order of their maturity.
4.4 Place of Payment. All payments and prepayments of principal
or interest on the Renewal Note will be made in collected
funds on or before 11:00 a.m. Oklahoma City time on the due
date at the Lender's offices at 000 Xxxxx Xxxxxxxx, Xxxxxxxx
Xxxx, Xxxxxxxx 00000. All payments will be made without
setoff or counterclaim and without reduction for, and free
from, any and all taxes, levies, imposts, duties, fees,
charges, deductions, withholdings, restrictions or
conditions of any nature imposed by any government or any
political subdivision or taxing authority thereof. If any
payment under the Renewal Note or this Agreement is payable
on a day other than a Business Day, the maturity thereof
will be extended to the next succeeding Business Day and
such extension of time will in each case be included in the
computation of payments of interest."
4. Renewal Note. Simultaneously with the execution of this Amendment, the
Borrowers agree to execute and deliver the form of Renewal Note appearing at
Schedule "A" to the Amendment. Effective on August 15, 1996, the Renewal Note
is substituted for the Notes appearing as Schedules "A" and "B" to the Loan
Agreement.
5. Conversion Agreements. Simultaneously with the execution of this Amendment,
the Borrowers agree to provide to the Lender: An executed counterpart of the
Loan Conversion Agreement dated July 12, 1996 as modified by the Addendum to
Loan Conversion Agreement dated effective July 30, 1996 (the "Conversion
Agreement") between UNICO as debtor and Renaissance and the Xxxxxx-Xxxxx
Group as creditors, together with evidence satisfactory to the Lender that:
(a) Renaissance has completed the conversion of One Million Five Hundred
Eighty-Nine Thousand Two Hundred Twenty Dollars ($1,589,220.00) in
subordinated debt to Series C Preferred Stock issued by UNICO on the terms
set forth in the Conversion Agreement; and (b) the Xxxxxx-Xxxxx Group has
completed the conversion of One Hundred Sixty-Eight Thousand Three Hundred
Forty-Nine Dollars ($168,349.00) in subordinated debt to Series C Preferred
stock issued by UNICO on the terms set forth in the Conversion Agreement.
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6. Subordinated Creditor Obligations. If any Borrower pays any indebtedness
owing to any one or more of the Subordinated Creditors prior to the payment
in full of the Obligations (other than payment of accrued interest at the
rate of nine and one-quarter percent [9 1/4%] per annum on a loan in the
principal amount of Fifty Thousand [$50,000.00] owing by UNICO to
Renaissance) or if any one or more of the Subordinated Creditors commences
any legal action against any Borrower to collect any indebtedness or to
enforce any other obligation owing by any one or more of the Borrowers to
such Subordinated Creditor, each such action will constitute an Event of
Default entitling the Lender to exercise the remedies available to the Lender
under the Loan Documents.
7. Effect of Modification. Except as modified by this Amendment, the Loan
Agreement and the Loan Documents remain in full force and effect and the
mortgage liens, security interests and other encumbrances thereby created are
intended to secure payment of the indebtedness evidenced by the Renewal Note
after the date of this Amendment with the priority and enforceability thereof
to continue in effect, uninterrupted and unabated.
IN WITNESS WHEREOF, this Amendment is executed and delivered by the
parties effective on the date set forth above.
UNICO, INC., a Delaware corporation
By
---------------------------------
Xxxxxx X. Xxxxxxx, President
UNITED COUPON CORPORATION, a
Virginia corporation
By
---------------------------------
Xxxxxx X. Xxxxxxx, President
CAL-CENTRAL MARKETING CORPORATION,
formerly AEC Acquisitions, Inc., an
Oklahoma corporation
By
---------------------------------
Authorized Agent
(the "Borrowers")
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BANCFIRST, an Oklahoma banking
corporation
By
---------------------------------
E. G. Alexander,
Senior Vice President
(the "Lender")
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