1
EX-10.2
Amendment to Loan and Security Agreement
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of this 28th day of January, 2000, between Coast Business Credit(R), a
division of Southern Pacific Bank ("Coast") and Direct Sales International, Inc.
("Borrower") is made in reference to the following facts:
A. Borrower previously entered into a Loan and Security Agreement
with Coast dated as of January 28, 2000 (the "Loan Agreement"). Unless otherwise
defined, all capitalized terms used herein shall have the meanings given them in
the Loan Agreement.
B. Borrower and Lender wish to amend the Loan Agreement on the terms
and subject to the conditions set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing recitals and the
terms and conditions hereof, the parties do hereby agree as follows, effective
as of the date set forth above:
1. Facility Fee. The Facility Fee in Section 3 of the Schedule to
the Loan Agreement is hereby increased to $10,000 per month for the first four
months from the Closing Date. The Facility Fee shall thereafter decrease to
$5,000 per month. The Facility Fee shall otherwise be payable in the same manner
specified in Section 3 of the Schedule to the Loan Agreement.
2. Conditions Precedent. Paragraphs 5 and 6 under Section 5.15 of
the Schedule to the Loan Agreement are deleted in their entirety and replaced
with the following:
"5. Symposium Corporation shall have contributed to Borrower not less
than $9,000,000 in cash equity by the Closing Date.
6. Borrower shall have raised an additional $3,000,000 of cash equity
on or before February 29, 2000. Prior to Coast's initial advance
hereunder, Borrower shall provide to Coast documents indicating that
there exists sufficient commitments to raise the additional
$3,000,000 by such date, including a list of investors with their
respective amounts of commitment, all satisfactory to Coast in its
reasonable discretion. The failure of Borrower to obtain the
additional cash equity by February 29, 2000 shall constitute an
Event of Default."
3. Tangible Net Worth Waiver. Coast hereby waives until March 31,
2000 Borrower's compliance with the Tangible Net Worth covenant in Paragraph 3
of Section 8.1 of the Schedule to the Loan Agreement. The foregoing waiver is a
one-time waiver only and shall apply only to the matter specifically set forth
in this Paragraph 3. Without limiting the generality of the foregoing, this
waiver shall not apply to any future failure by Borrower to comply with any
provision of the Loan Agreement at any time. In consideration of this waiver,
Borrower shall pay to Coast a fee of $25,000, which shall be deemed fully earned
and payable upon execution of this Amendment, and shall be in addition to all
other fees and charges payable by Borrower.
4. Opening Balance Sheet. Coast shall have received by March 31,
2000 a final opening balance sheet for Borrower and its subsidiaries prepared by
a major international accounting firm. Failure to provide such balance sheet
shall be an Event of Default. Upon receipt of the balance sheet, Coast will
reset the Tangible Net Worth covenant in Paragraph 3 of Section 8.1 of the
Schedule to the Loan Agreement (as Coast shall reasonably determine), which
covenant will increase by 80% of after-tax net income, less dividends paid to
the extent permitted in the Loan Agreement, measured on a quarterly basis.
5. Other Provisions and Covenants. Paragraph 6 under Section 8.1 of
the Schedule to the Loan Agreement is deleted in its entirety and replaced with
the following:
2
"Measured on a quarterly basis beginning February 29, 2000, it shall
constitute an Event of Default if Symposium Corporation does not have a
consolidated net worth (defined as shareholder equity plus subordinated
debt) of not less than $12,000,000."
6. Monthly Audit. At Coast's option, Coast shall conduct an audit of
Borrower every thirty (30) days until the accounting system referred to in
Paragraph 2 of Section 8.1 of the Schedule to the Loan Agreement is operational.
Audits will then be conducted as otherwise permitted in the Loan Agreement.
7. Loans to Borrower's Subsidiaries. Coast understands that Borrower
will use a portion of its cash to support the overhead and working capital of
Borrower's three subsidiaries. Coast will reasonably consider a proposal by
Borrower after the date hereof to permit such downstreaming of cash within
certain specified dollar limits per month as an exception to Section 8.5 of the
Loan Agreement. Such exception however shall not be effective until evidence by
a separate agreement signed by the parties hereto.
8. Documents. Borrower shall deliver to Coast on or before the
Closing Date (unless otherwise noted) the following additional documents:
a. within thirty (30) days from the Closing Date and each month end
thereafter, a list of accounts payable for Borrower and its
subsidiaries in form reasonably satisfactory to Coast;
b. by May 15, 2000, a financial statement audited or reviewed by a CPA
for the quarter ending March 31, 2000;
c. guaranties executed by each subsidiary in favor of Coast;
d. executed security agreements between each of the subsidiaries and
Borrower, each of which shall contain an assignment of Borrower's
rights to Coast;
e. notes payable to Borrower executed by each subsidiary, each of which
shall contain an assignment by Borrower to Coast;
f. security agreements executed by each subsidiary in favor of Coast;
and
g. corporate or company resolutions, UCC-1 Financing Statements, and
any other documents as Coast shall reasonably request in connection
with the foregoing.
Borrower's failure to deliver any of the foregoing documents by the times
specified shall constitute an Event of Default.
9. Financials. By way of clarification, Borrower confirms and agrees
that the annual certified financial statements of Borrower required in Section
8.3 of the Schedule to the Loan Agreement are financial statements of Borrower
that have not been consolidated with Symposium Corporation (or any successor
thereto).
10. Reaffirmation. Except as modified by the terms herein, the Loan
Agreement and the other Loan Documents remain in full force and effect. If there
is any conflict between the terms and provisions of this Amendment and the terms
and provisions of the Loan Agreement or documents related thereto, the terms and
provisions of this Amendment shall govern.
11. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. This Amendment may be
executed by facsimile signatures.
12. Governing Law. This Amendment shall be governed by and construed
according to the laws of the State of California.
2
3
13. Attorneys' Fees; Costs; Jury Trial Waiver. Borrower agrees to
pay, on demand, all attorneys' fees and costs incurred in connection with the
negotiation, documentation and execution of this Amendment. If any legal action
or proceeding shall be commenced at any time by any party to this Amendment in
connection with its interpretation or enforcement, the prevailing party or
parties in such action or proceeding shall be entitled to reimbursement of its
reasonable attorneys' fees and costs in connection therewith, in addition to all
other relief to which the prevailing party or parties may be entitled. Each of
Coast and Borrower hereby waives its right to a jury trial in any such action or
proceeding.
COAST BUSINESS CREDIT, a division of
Southern Pacific Bank
By: Xxxxxx Xxxxxx
_________________________________________
Its:
________________________________________
DIRECT SALES INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxx
_________________________________________
Its: CEO
________________________________________
The undersigned Guarantor hereby acknowledges and consents to the
foregoing Amendment and confirms and agrees that its Guaranty executed in favor
of Coast shall remain in full force and effect in accordance with its terms.
SYMPOSIUM CORPORATION
By: /s/ Xxxxxx Xxxxxxx
_________________________________________
Its: CEO
________________________________________
3
