EXHIBIT 10.26.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT AND WAIVER (this
"Amendment"), dated as of April 30, 2002, is entered into between CONGRESS
FINANCIAL CORPORATION (WESTERN), a California corporation ("Lender"), and
INTERNATIONAL PERIODICAL DISTRIBUTORS, INC., a Nevada corporation ("Borrower").
RECITALS
A. Borrower and Lender have previously entered into that certain Loan
and Security Agreement dated February 22, 2001 (the "Loan Agreement"), pursuant
to which Lender has made certain loans and financial accommodations available to
Borrower. Terms used herein without definition shall have the meanings ascribed
to them in the Loan Agreement.
B. Pursuant to that certain letter dated October 22, 2001, Lender has
notified Borrower and DEY of the occurrence and continuance of certain Events of
Default under the Loan Agreement (as set forth in such letter, the "Known
Existing Defaults").
C. Borrower has requested that Lender waive the Known Existing Defaults
and amend the Loan Agreement on the terms and conditions set forth herein.
D. Borrower is entering into this Amendment with the understanding and
agreement that, except as specifically provided herein, none of Lender's rights
or remedies as set forth in the Loan Agreement is being waived or modified by
the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendments to Loan Agreement.
(a) Section 1.24 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
(b) "1.24 "EBITDA" shall mean, as to any Person, with respect
to any period, an amount equal to: (a) the Net Income of such Person and its
Subsidiaries for such period on a consolidated basis determined in accordance
with GAAP, plus (b) depreciation, amortization and other non-cash charges
(including, but not limited to, imputed interest and deferred compensation) of
such Person for such period (to the extent deducted in the computation of Net
Income), all in accordance with GAAP, plus (c) Interest Expense of such Person
for such period (to the extent deducted in the computation of Net Income), plus
(d) charges for Federal, State, local and foreign income taxes for such period
(to the extent deducted in the computation of Net Income), plus (e) all
extraordinary losses and unusual losses related to the restructuring of the
business of such Person and costs associated with the refinancing transaction
contemplated by this Agreement."
(c) Section 1.44 of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"1.44 "Interest Rate" shall mean, (a) with respect to
Revolving Loans, as to Prime Rate Loans, a rate of
three-quarters of one percent (0.75%) per annum in excess of
the Prime Rate and, as to Eurodollar Rate Loans, a rate of
three percent (3.00%) per annum in excess of the Adjusted
Eurodollar Rate (based on the Eurodollar Rate applicable for
the Interest Period selected by Borrower as in effect three
(3) Business Days after the date of receipt by Lender of the
request of Borrower for such Eurodollar Rate Loans in
accordance with the terms hereof, whether such rate is higher
or lower than any rate previously quoted to Borrower) and (b)
with respect to the Term Loan, as to Prime Rate Loans, a rate
of one-half of one percent (0.5%) per annum in excess of the
Prime Rate and, as to Eurodollar Rate Loans, a rate of three
percent (3.0%) per annum in excess of the Adjusted Eurodollar
Rate (based on the Eurodollar Rate applicable for the Interest
Period selected by Borrower as in effect three (3) Business
Days after the date of receipt by Lender of the request of
Borrower for such Eurodollar Rate Loans in accordance with the
terms hereof, whether such rate is higher or lower than any
rate previously quoted to Borrower); provided, that, with
respect to all Loans, the Interest Rate shall mean a rate two
percent (2.0%) per annum in excess of the rate that would
otherwise prevail under the terms of this Agreement, at
Lender's option, without notice, (x) for the period (i) from
and after the date of termination or non-renewal hereof until
Lender has received full and final payment of all obligations
(notwithstanding entry of a judgment against Borrower) and
(ii) from and after the date of the occurrence of an Event of
Default for so long as such Event of Default is continuing,
and (y) on the Revolving Loans at any time outstanding in
excess of the amounts available to Borrower under Section 2.1
(whether or not such excess(es), arise or are made with or
without Lender's knowledge or consent and whether made before
or after an Event of Default)."
(d) Section 2.1(a)(i) of the Loan Agreement is hereby amended
and restated to read in its entirety as follows:
"(i) the lesser of (A) eighty percent (80%) of the Net Amount
of Eligible Accounts or (B) forty-five (45) times the average
daily cash collections on Borrower's Accounts for the
immediately preceding thirty (30) day period, minus"
(e) Section 9.6(a) is hereby amended and restated to read in
its entirety as follows:
"(a) Borrower shall keep proper books and records in which
true and complete entries shall be made of all dealings or
transactions of or in relation to the Collateral and the
business of Borrower and its Subsidiaries (if any) in
accordance with GAAP and Borrower shall furnish or cause to be
furnished to Lender: (i) within thirty (30) days after the end
of each fiscal month, monthly unaudited financial statements,
for Borrower and all Obligors and, if Borrower has any
Subsidiaries (other than Obligors), consolidating financial
statements (including in each case balance sheets, statements
of income and loss, statements of cash flow and statements of
shareholders' equity), all in reasonable detail, fairly
presenting the financial position and the results of the
operations of Borrower and its Subsidiaries as of the end of
and through such fiscal month and (ii) within one hundred
twenty (120) days after the end of each fiscal year, audited
consolidated financial statements of Source Interlink
Companies, Inc., a Missouri corporation, together with
consolidating schedules thereto in detail sufficient, as
determined by Lender in its sole discretion, to determine the
financial performance of The Interlink Companies, Inc., a
Delaware corporation, and Borrower for such fiscal year
(including in each case balance sheets, statements of income
and loss, statements of cash flow and statements of
shareholders' equity), and the accompanying notes thereto, all
in reasonable detail, fairly presenting the financial position
and the results of the operations of such entities as of the
end of and for such fiscal year, together with the opinion of
independent certified public accountants, which accountants
shall be an independent accounting firm selected by Source
Interlink Companies, Inc., a Missouri corporation, and
reasonably acceptable to Lender, that such financial
statements have been prepared in accordance with GAAP, and
present fairly the results of operations and financial
condition of such entities as of the end of and for the fiscal
year then ended."
(f) Sections 9.6(e), 9.15, 9.16, 9.17 and 9.18 of the Loan
Agreement, are hereby deleted in their entirety.
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(g) A new Section 10.1(n) is hereby added to the Loan
Agreement which reads as follows:
"(n) failure of The Interlink Companies, Inc., a Delaware
corporation, to report, as indicated on the consolidated
financial statements of such entity delivered to Lender
pursuant to Section 9.6 hereof, for each period indicated
below, EBITDA of not less than the amount set forth opposite
such period:
Period Minimum EBITDA
------ --------------
February 1, 2002 to July 31, 2002 $1,750,000
February 1, 2002 to October 31, 2002 $3,000,000
February 1, 2002 to January 31, 2003 $4,750,000
Each fiscal quarter thereafter $1,000,000"
2. Waiver of Known Existing Defaults. Lender hereby waives enforcement
of its rights against Borrower arising from the Known Existing Defaults;
provided, however, nothing herein shall be deemed a waiver with respect to any
failure of Borrower to comply fully with Sections 7.1, 9.6(a)(i), 9.6(a)(ii),
9.6(e) and 9.6(g), or any other provision, of the Loan Agreement (as amended or
modified by this Amendment). This waiver shall be effective only for the
specific defaults comprising the Know Existing Defaults, and in no event shall
this waiver be deemed to be a waiver of enforcement of Lender's rights with
respect to any other Defaults or Events of Default now existing or hereafter
arising. Nothing contained in this Amendment nor any communications between
Borrower and Lender shall be a waiver of any rights or remedies Lender has or
may have against Borrower, except as specifically provided herein. Except as
specifically provided herein, Lender hereby reserves and preserves all of its
rights and remedies against Borrower under the Loan Agreement and the other
Financing Agreements.
3. Effectiveness of this Amendment. Lender must have received the
following items, in form and content acceptable to Lender, before this Amendment
is effective, and before Lender is required to extend any credit to Borrower as
provided for by this Amendment.
(a) Amendment; Acknowledgement. This Amendment and the
attached Acknowledgement by Guarantors, each fully executed in a sufficient
number of counterparts for distribution to all parties.
(b) Amendment Fee. An amendment fee in the amount of Seven
Thousand Five Hundred Dollars ($7,500), which fee is fully earned as of and due
and payable on the date hereof.
(c) Payment of Term Loan. Repayment of the Term Loan in an
amount equal to no less than Nine Hundred Sixteen Thousand Five Hundred Dollars
($916,500).
(d) Representations and Warranties. The representations and
warranties set forth herein and in the Loan Agreement must be true and correct.
(e) Other Required Documentation. All other documents and
legal matters in connection with the transactions contemplated by this Amendment
shall have been delivered or executed or recorded and shall be in form and
substance satisfactory to Lender.
4. Condition Subsequent. Within thirty (30) days of the date hereof,
Borrower shall repay in full the then outstanding balance (principal plus
interest and any fees) of the Term Loan, failure of which shall constitute an
Event of Default under the Loan Agreement.
5. Representations and Warranties. Borrower represents and warrants as
follows:
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(a) Authority. Borrower has the requisite corporate power and
authority to execute and deliver this Amendment, and to perform its obligations
hereunder and under the Financing Agreements (as amended or modified hereby) to
which it is a party. The execution, delivery and performance by Borrower of this
Amendment have been duly approved by all necessary corporate action and no other
corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by Borrower. This Amendment and each Financing Agreement (as amended
or modified hereby) is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, and is in full force
and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Financing Agreement (other than any such
representations or warranties that, by their terms, are specifically made as of
a date other than the date hereof) are correct on and as of the date hereof as
though made on and as of the date hereof.
(d) Due Execution. The execution, delivery and performance of
this Amendment are within the power of Borrower, have been duly authorized by
all necessary corporate action, have received all necessary governmental
approval, if any, and do not contravene any law or any contractual restrictions
binding on Borrower.
(e) No Default. After giving effect to the waivers contained
in this Amendment, no event has occurred and is continuing that constitutes an
Event of Default.
6. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the internal
laws of the State of California governing contracts only to be performed in that
State.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Amendment.
8. Reference to and Effect on the Financing Agreements.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Loan Agreement, and each reference in the
other Financing Agreements to "the Loan Agreement", "thereof" or words of like
import referring to the Loan Agreement, shall mean and be a reference to the
Loan Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Loan Agreement
and all other Financing Agreements, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of Borrower to
Lender.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of Lender under any of the Financing Agreements, nor
constitute a waiver of any provision of any of the Financing Agreements.
(d) To the extent that any terms and conditions in any of the
Financing Agreements shall contradict or be in conflict with any terms or
conditions of the Loan Agreement, after giving effect to this Amendment, such
terms and conditions are hereby deemed modified or amended accordingly to
reflect the terms and conditions of the Loan Agreement as modified or amended
hereby.
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9. Ratification. Borrower hereby restates, ratifies and reaffirms each
and every term and condition set forth in the Loan Agreement, as amended hereby,
and the Financing Agreements effective as of the date hereof.
10. Estoppel. To induce Lender to enter into this Amendment and to
continue to make advances to Borrower under the Loan Agreement, Borrower hereby
acknowledges and agrees that, after giving effect to this Amendment, as of the
date hereof, there exists no Event of Default and no right of offset, defense,
counterclaim or objection in favor of Borrower as against Lender with respect to
the Obligations.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
INTERNATIONAL PERIODICAL DISTRIBUTORS, INC.,
a Nevada corporation
By: /s/ W. Brian Rodgers
--------------------
Name: W. Brian Rodgers
----------------
Title: Secretary
---------
CONGRESS FINANCIAL CORPORATION (WESTERN),
a California corporation
By: /s/ Craig Taylor
----------------
Name: Craig Taylor
Title: Vice President
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ACKNOWLEDGEMENT BY GUARANTORS
Dated as of April 30, 2002
David E. Young, Inc., a New York corporation ("DEY"), has previously
entered into that certain Limited Guaranty, dated February 22, 2001, in favor of
Lender (the "DEY Guaranty") and Universal Circulation Services, Inc., a
California corporation ("UCS" and together with DEY, the "Guarantors" and
individually each a "Guarantor") has previously entered into that certain
Guaranty and Security Agreement, dated February 22, 2001, in favor of Lender
(the "UCS Guaranty" and together with the DEY Guaranty, the "Guaranties" and
individually each a "Guaranty"), hereby acknowledges and agrees to the foregoing
First Amendment to Loan and Security Agreement and Waiver (the "Amendment") and
confirms and agrees that its respective Guaranty is and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects
except that, upon the effectiveness of, and on and after the date of the
Amendment, each reference in such Guaranty to the Loan Agreement (as defined in
the Amendment), "thereunder", "thereof" or words of like import referring to the
"Loan Agreement", shall mean and be a reference to the Loan Agreement as amended
or modified by the Amendment. Although Lender has informed Guarantors of the
matters set forth above, and Guarantors have acknowledged the same, each
Guarantor understands and agrees that Lender has no duty under the Loan
Agreement, the Guaranties or any other agreement with either Guarantor to so
notify any Guarantor or to seek such an acknowledgement, and nothing contained
herein is intended to or shall create such a duty as to any advances or
transaction hereafter.
DAVID E. YOUNG, INC.,
a New York corporation
By: /s/ W. Brian Rodgers
--------------------
Name: W. Brian Rodgers
----------------
Title: Secretary
---------
UNIVERSAL CIRCULATION SERVICES,
a California corporation
By: /s/ W. Brian Rodgers
--------------------
Name: W. Brian Rodgers
----------------
Title: Secretary
---------
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