**Exhibit10.30**

 

**FORBEARANCEAGREEMENT**

 

This ForbearanceAgreement (“Agreement”) is entered into as of the 14th day of July, 2003, byand among Amerivision Communications, Inc., an Oklahoma corporation(“Borrower”); and Continental Business Credit (“Continental”); TextronFinancial Corporation (“Textron”); Republic Financial Corporation, a Coloradocorporation and LINC Credit, L.L.C. (hereafter Republic and LINC arecollectively referred to as “LINC” or “Agent”), a Delaware limited liabilitycompany and successor-in-interest to Coast Business Credit (“Coast”), adivision of Southern Pacific Bank (“SPB”), a California corporation(Continental, Textron, and LINC are, together, the “Lenders”).

 

A. Borrower is indebtedto Lenders, as evidenced by (i) that Loan and Security Agreement, and (ii) thatSchedule to Loan and Security Agreement, both dated February 4, 1999, and asamended from time to time, executed by Borrower in favor of Coast and thevarious other parties thereto.

 

B. The loan documentsdescribed in the foregoing Recital, together with any documents executedpursuant thereto or hereto, are referred to collectively as the “LoanDocuments”; the credit facility and related obligation(s) described in the LoanDocuments are referred to collectively as the “Loan”.

 

C. The Federal DepositInsurance Corporation was appointed receiver of SPB on or about February 7,2003. On or about May 13, 2003, Coast’s position in the Loan was sold to LINC.

 

D. The Loan matured byits terms on May 31, 2003 (the “Maturity Date”), and all outstanding principaland accrued and unpaid interest and expenses thereunder (the “Obligations”) arecurrently due and payable in full. Under the terms of the Loan Documents,Lenders are presently entitled to exercise any or all of the rights andremedies provided in the Loan Documents, including without limitation,demanding payment of all Obligations, refusing to provide additional financialaccommodations to the Borrower and/or enforcement of the Lenders’ liens on andsecurity interest in the Collateral.

 

E. Borrower has requestedthat Lenders conditionally and temporarily forbear in the exercise of remedieson certain terms and conditions. Borrower has brought a lawsuit against Lendersin the Oklahoma County District Court, case number CJ-2003-5886, State ofOklahoma, in which it seeks legal and equitable relief against the Lenders forvarious alleged unlawful and unauthorized acts against the Borrower and itsinterests and the interests of others, as outlined the Borrower’s VerifiedPetition. Lenders, while denying the jurisdiction and venue of the OklahomaCounty District Court, deny the allegations of the Borrower and deny thatBorrower is entitled to the requested relief.

 

1

----

 

 

NOW, THEREFORE, inconsideration of the mutual agreements set forth herein, and for other valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows:

 

1.            Definitions. Unless otherwisedefined herein, capitalized terms used herein that are defined in the LoanDocuments are used herein as therein defined.

 

“Affiliate” means, withrespect to any Person, another Person who (i) owns an equity interest in thefirst Person, of any degree, (ii) is owned, as to equity interest, by the firstPerson, in any degree, (iii) Controls the first Person, (iv) is Controlled bythe first Person, or (v) is Controlled by a Person who also Controls the firstPerson.

 

“Claims” means any andall accounts, covenants, agreements, obligations, claims, debts, liabilities,offsets, demands, costs, expenses, actions or causes of action of every nature,character and description, whether arising at law or equity or under statute,regulation or otherwise, and whether liquidated or unliquidated, contingent ornoncontingent, known or unknown, suspected or unsuspected, including withoutlimitation, the claims asserted by Borrower in the Lawsuit.

 

“Control” means theability to substantially direct the policies of a Person, whether directly orindirectly, and whether such influence exists by right or by economiccompulsion.

 

“Forbearance Period”means the period commencing on the date hereof and terminating on the earlierof (i) September 30, 2003, unless extended pursuant to the terms of paragraph 8of this Agreement; or (ii) the occurrence of a Termination Event.

 

“Lawsuit” means the casefiled by Borrower in the District Court of Oklahoma County, Oklahoma, styled *AmerivisionCommunications, Inc. v. LINC Credit, L.L.C., et al.,*Case No.CJ-2003-5886.

 

“Lender Parties” meansLenders, their participants, predecessors, successors and assigns and theirpresent and previous agents, attorneys, representatives, Affiliates, officers,directors, and each of them.

 

“Permitted Event ofDefault” means the present Event of Default arising under the Loan Documentsfrom Borrower’s failure to make payment when due under the Loan Documents.

 

“Person” means anynatural person and any legal entity with the ability to enter into contracts.

 

“Termination Event” meansthe occurrence of any one or more of: (i) the breach of any warranty orrepresentation made to Lenders under this Agreement, (ii) the failure ofBorrower to comply strictly with all covenants and obligations under thisAgreement, (iii) the existence of any Event of Default under the Loan Documents(other than the Permitted Event of Default), and (iv) Borrower’s directcollection of or redirection of any payment due to Borrower by a third party(unless such payment is immediately delivered to Lenders and Borrower providesthe third party

 

2

----

 

immediate notice to forward allfuture payments to the Collection Account (as defined herein)); provided,however, Termination Event shall not include Borrower’s default under Sections 10.1(r),(s), (t) or (u) of the Loan and Security Agreement dated February 4, 1999.

 

2. Borrower’sAffirmation of Loan. Borrower acknowledges, warrants and represents that(i) pursuant to the Loan Documents, its obligations to repay the Loan areabsolute and unconditional, and there exists no right of deduction, setoff,recoupment, counterclaim or defense of any nature whatsoever to payment of theLoan that has not been released herein, (ii) the Loan has matured and thatLenders have been under no obligation to fund advances under the Loan Documentssince the Maturity Date, (iii) the Loan Documents are valid and enforceableagainst Borrower in accordance with their terms and grant Lenders valid andperfected security interests in the collateral described therein (the“Collateral”), with the priority required by the Loan Documents, and (iv) theamount outstanding under the Loan, including principal and interest butexcluding expenses, as of July 7, 2003, totaled approximately $12,073,683.77.Without limiting the foregoing, Borrower specifically agrees that the LockboxAgreement dated February 4, 1999, among Borrower, Coast and Bank of Oklahoma,N.A. remains in full force and effect, that Borrower will continue toimmediately deposit all cash, checks, drafts or other orders for payment ofmoney relating to or constituting payments made in respect of any and allCollateral in deposit account number 208319181 (“Deposit Account”), and thatBorrower will instruct its customers to continue to send payments directly tothe Deposit Account. Borrower further agrees that Lenders have “control” overthe Deposit Account, as such term is defined in Section 9104 of the CaliforniaCommercial Code.

 

3. Lenders’ Agreementof Forbearance. Lenders agree to forbear in the exercise of any remedieswith respect to the Loan during the Forbearance Period. Upon the expiration ortermination of the Forbearance Period, Lenders shall be entitled to pursue allremedies provided for under the Loan Documents, except as provided herein.

 

4. Interest Rate.From May 31, 2003 (the maturity date of the Loan) through the expiration ortermination of the Forbearance Period, interest shall accrue on the Loan at thedefault rate as provided in the Loan Documents.

 

5. Advances toBorrower During Forbearance Period. From the date of execution hereof untilexpiration or termination of the Forbearance Period, no advances shall be madeon the Loan except as follows:

 

a. Upon the effectivenessof this Agreement and Borrower’s payment of all accrued interest, Lenders shalladvance a sum equal to the net amount of the cash collected by Lenders onaccount of Borrower’s operations from June 19, 2003 through July 14, 2003, lessthe sum of $300,000.00, which shall be retained by Lenders to be applied to theLoan in accordance with the Loan Documents.

 

b. For the periodcommencing July 15, 2003, and ending on the earlier of the expiration ortermination of the Forbearance Period, Lenders shall readvance amounts of cashcollected by Lenders on account of Borrower’s

 

3

----

 

operations during suchperiod, less a retention amount that shall become due from suchcollections beginning on the first (1st) business day of each week and whichshall be applied to the Loan in accordance with the Loan Documents. Theretention amount shall be determined as follows: (i) for the week beginning onTuesday, July 15, and ending on Friday, July 18, 2003, and for each subsequentweek through and including the week of August 29, 2003, the retention amountshall be $35,000.00 per week, (ii) for the week beginning September 1, 2003,and for each subsequent week through and including the “short” week ofSeptember 29 and 30, 2003, the retention amount shall be $40,000.00 per week,(iii) if the Forbearance Period is extended pursuant to paragraph 8 of thisAgreement, no additional retention shall be due for the week ending October 3,2003, and for each subsequent week through October 31, 2003, the retentionamount shall be $40,000.00 per week, and (iv) for the week beginning on Monday,November 3, 2003, and ending on November 28, 2003, the retention amount shallbe $45,000.00 per week. Borrower must pay each week’s retention amount throughcollections or separate payment by the end of the week in which the retentionamount is imposed, and its failure to do so shall permit Lenders, at theiroption, to terminate the Forbearance Period.

 

Advances shall be made by Agent by 2:00 p.m. MountainTime the next business day following Agent’s receipt of a formal draw requestfrom Borrower in the manner specified in the Loan Documents and in form andcontent acceptable to Agent; provided, such draw request is received by Agentbefore 10:00 a.m. Mountain Time on a regular business day.

 

6. Reports. Notlater than fifteen (15) days following the execution hereof, Borrower shalldeliver to Lenders Borrower’s final FYE 2002 audited financial statementsprepared by an accounting firm acceptable to Lenders. No later than September1, 2003, Borrower shall deliver to Lenders a detailed list of Borrower’s fixedassets, inventory and equipment and specific physical location of same.Additionally, not later than five (5) days following the execution hereof,Borrower shall deliver to Lenders: (i) accounts receivable aging for all Borrower’saccounts for the period ending June 30, 2003, (ii) accounts payable aging forall Borrower’s accounts for the period ending June 30, 2003, and (iii)Borrower’s financial statements as of May 31, 2003, including profit and lossstatements, balance sheet, and statement of cash flows. Further, on July 15,2003, and the first day of each successive week thereafter, Borrower shallprovide to Lenders: (i) weekly accounts receivable agings for all of itsaccounts, (ii) weekly accounts payable agings for all of its accounts; (iii)summarized weekly billing and collection information (iv) detailed listing ofinventory and equipment held for sale or lease, (v) summary listing of newconnections, customer disconnections (with service), and customer disconnections(without service), and (vi) any other information which Lenders may request.Finally, on or before the twelfth (12th) business day of each month during theForbearance Period, Borrower shall provide to Lenders financial statements asof the end of the preceding month, including a profit and loss statement,balance sheet, and statement of cash flows, and comparable information for thesame period during the prior year. During the Forbearance Period, all reportsand/or information provided to Lenders from Borrower, under this or any otherprovision in this Agreement or the Loan Documents, shall remain strictlyconfidential and shall

 

4

----

 

not be disclosed to any other third party withoutBorrowers written consent, except when such information is disclosed by Lendersto further the legitimate business interests of Lenders, and the party to whomsuch information is disclosed agrees to be bound by the terms of this sentence.

 

7. Refinance,Re-capitalization or Sale of Borrower. Borrower has advised Lenders thatBorrower’s strategy to repay Lenders is based upon the intended refinancing,recapitalization or sale of Borrower. Lenders’ agreement to enter into thisAgreement is in material part based upon Borrower’s representations to Lendersin this regard and upon Borrower’s diligent and continuous work to arrange suchrefinancing, re-capitalization or sale. In this regard, Borrower herebycovenants that it will perform the following as evidence of its work to arrangesuch a transaction:

 

a. By the date thisAgreement is executed, Borrower will retain a restructuring consultant or chiefrestructuring officer acceptable to Lenders. Lenders acknowledge that Borrowerhas retained Blumberg Investments as such restructuring consultant/chiefrestructuring officer, and hereby accepts such retention and acknowledges thatrequirements of this subsection have been satisfied.

 

b. ensure thatBlumberg Investments, or a replacement chief restructuring officer reasonablyacceptable to Lenders, and Borrower’s president provide weekly written andverbal updates to Lenders regarding the status of their work, including, butnot limited to, detail on company operations, persons contacted relative torefinancing, re-capitalization and sale proposals, status of discussions withthose persons, and plans for further action.

 

c. reasonably accommodateLenders’ auditors who shall review the books and records of Borrower in amanner that does not materially interfere with Borrower’s normal operations.

 

Notwithstanding theforegoing, Borrower acknowledges that Lenders are under no obligation torelease their security interest in Borrower’s assets or to compromise any oftheir indebtedness in connection with any refinancing, re-capitalization orsale of Borrower (unless any such transaction will involve the payment in fullof the Obligations or any such arrangement which is acceptable to the partiesor is ordered by a court of competent jurisdiction).

 

8. Extension ofForbearance Period. Provided it has not terminated prior to September 30,2003, the Forbearance Period shall be extended to November 30, 2003, on thefollowing conditions:

 

a. Payment to Lenders ofan extension fee in the sum of $150,000.00, which fee shall be deemed earned byLenders as of October 1, 2003, but which will be payable by Borrower onDecember 1, 2003, or a date earlier which is mutually agreed to by the partiesin writing. Borrower’s payment obligation under this

 

5

----

 

paragraph shall beexcluded from any calculation regarding any covenant under the Loan Documents.

 

b. Lenders’ receipt of asigned Letter of Intent agreement between Borrower and one or more thirdparties an investor, group, or organization with assets and capabilitiesnecessary to close by December 1, 2003 (or such other date as agreed in writingbetween the parties) a transaction of at least $15 million that provides forpayment of the Loan to Lenders in full, and which is supported by evidence,satisfactory to Lenders, of the third party(s)’ financial ability to close sucha transaction, including financial statements, bank statements, references andsuch other information as Lenders may reasonably request. While Lenders mayagree to a compromise of the Obligations if they so elect in writing in theirabsolute discretion, Lenders shall not otherwise be obligated to release theirsecurity interest in Borrower’s assets except upon payment in full of theObligations.

 

9. Use of Collateral. During the ForbearancePeriod, Borrower shall not (i) use or dispose of any of the Collateral outsidethe ordinary course of business, (ii) make any payment or distribution to anyshareholder of Borrower, (iii) purchase treasury stock, or (iv) sell, lease orotherwise dispose of any equipment (including equipment held for sale or lease)without the prior written consent of Agent regardless of whether such sale,lease or disposition is in the ordinary course of business. All proceeds fromBorrower’s sale, lease or other disposition of equipment (including equipmentheld for resale) shall be paid to Lenders.

 

10. Foreclosure. Lenders agree to provideBorrower two (2) business days notice of Lenders’ intention to foreclose on andremove any Equipment or Inventory (as such terms are defined in the LoanDocuments) located at Borrower’s offices in Oklahoma City and Talequah,Oklahoma. Borrower agrees that, following the expiration or earlier terminationof the Forbearance Period, Lenders may dispose of some or all of the personalproperty included in the Collateral at one or more private sales or publicforeclosure sales (each a “Foreclosure Sale”), upon ten (10) days notice toBorrower. Borrower agrees that it will cooperate with Lenders in an orderlytransfer of the personal property collateral pursuant to any such ForeclosureSale. Borrower agrees that Lenders may convene any public Foreclosure Sale inthe State of Oklahoma, provided that arrangements are made for theparticipation of interested parties by telephone conference. Any other requirementsof prior notice with respect to the Foreclosure Sale, and any other requirementrelating to the method, timing, advertisement or conduct of such ForeclosureSale, are hereby waived, it being acknowledged that the Loan is in default.Borrower agrees that, following the expiration or earlier termination of theForbearance Period, Borrower shall, if requested by Lenders, execute a deed inlieu of foreclosure in favor of Lenders in a form reasonably acceptable toLenders. Borrower agrees that it will cooperate with Lenders in assembling theCollateral for the benefit of Lenders and in showing the Collateral topotential purchasers and in providing information to prospective purchasersregarding Borrower’s

 

6

----

 

operations and its use of the Collateral. The provisions of thisparagraph shall not constitute a waiver of Borrowers rights under applicableBankruptcy Law.

 

11. Lenders’ Right of Access. During theForbearance Period, Borrower shall, during normal business hours, permitLenders’ officers, auditors, outside consultants and other representatives (i)full and complete access to the books and records of Borrower, wherever located(but Borrower warrants and represents that all such records are and shall be maintainedat Borrower’s main office), (ii) to discuss matters relevant to the Loan withBorrower’s present employees, accountants and other representatives, (providedthat (A) such discussions are solely for purposes of verifying informationrelevant to the Loan, (B) such discussions are first approved by the ChiefExecutive Officer or the Chief Financial Officer of Borrower, which approvalwill not be unreasonably withheld, and (C) Lenders’ employees, accountants andrepresentatives agree to keep such discussions confidential as required byparagraph 6, above), (iii) to review any records or information that Lendersmay deem relevant to the assessment of the status of the Loan and theCollateral, and (iv) to otherwise assess and investigate the status of theCollateral and the financial condition of Borrower.

 

12. No Conflicting Law or Agreement. Borrowerwarrants and represents that its execution, delivery and performance of thisAgreement does not constitute a breach of or default under, and will not violateor conflict with, any provisions of the constituent documents of Borrower; ofany contract, financing agreement, lease, or other agreement to which Borroweris a party or by which its properties may be affected; or any law, regulation,judgment, order or decree to which Borrower is subject or by which itsproperties may be affected; nor will the same result in the creation orimposition of any encumbrance upon any properties of Borrower, other than thosein favor of Lenders.

 

13. No Consent Required. Borrower warrants andrepresents that its execution, delivery, and performance of this Agreement doesnot require the consent or approval of or the giving of notice to any person orentity except for those consents which have been duly and finally obtained andare in full force and effect.

 

14. Conditions toClosing. Borrower shall deliver the following documents to Agent, fullyexecuted by all parties other than Agent and in form and substance acceptableto Agent and its counsel, as conditions to the effectiveness of thetransactions described in this Agreement:

 

a.                                        ThisAgreement;

 

b.                                       Anorder entered by the Court in the Lawsuit dissolving the Temporary RestrainingOrder entered on July 8, 2003, and dismissing all of Borrower’s Claims in theLawsuit with prejudice to refiling the same; and

 

c.              Such other documents as Lendersmay reasonably require.

 

15.              Unconditional Full Release ofAll Claims and Defenses. In consideration of Lenders’ execution of thisAgreement, the sufficiency of which is acknowledged, and excepting

 

7

----

 

only the contractual obligations respecting future performance byLenders arising under the Loan Documents and this Agreement, Borrower herebyreleases and forever discharges the Lender Parties, the Federal DepositInsurance Corporation in its receivership capacity, Coast, and SPB, theiragents, employees, officers, servants, and directors and all persons andentities in privity with them or any of them, of and from any and all Claimsthat Borrower may have against them as of the execution of this Agreement. Asof the date of this Agreement, Borrower further agrees that it shall foreverrefrain and forbear from commencing, instituting or prosecuting any lawsuit,action, or other proceeding, whether judicial, administrative or otherwise, orotherwise attempting to collect or enforce, any such released Claim and agreesto indemnify, defend (with counsel satisfactory to Lenders) and hold harmlessLenders against any and all loss, liability, claim or expense, includingattorneys’ fees, that it might incur as a result of any breach of this Sectionby Borrower or the assertion of any Claim or defense that exists by Borrower.As of the date of this Agreement, Borrower further waives any presently existingdefenses against the payment and performance of all obligations (of everynature, character and description) to Lenders under the Loan Documents.Additionally, Borrower acknowledges that Borrower is familiar with Section 1542of the Civil Code of the State of California, which provides as follows:

 

A general release doesnot extend to claims which the creditor does not know or suspect to exist inhis favor at the time of executing the release, which if known by him must havematerially affected his settlement with the debtor.

 

The Borrower hereby waives and relinquishes any rights and benefitswhich it may have under Section 1542.

 

16. No Alienation of Claims. Borrower warrantsand represents to Lenders that Borrower has not granted or purported to grant toany other person or entity any interest whatsoever in any Claim, as security orotherwise, and that its execution hereof does not require the consent of ornotice to any third party in order to be fully effective as to any Claim thatmay have existed in favor of Borrower at any time.

 

17. Valid Consideration: Binding Agreement.Borrower warrants, represents and acknowledges that absent this AgreementLenders are not obligated to Borrower to forbear in the exercise of remedies;that Lenders have agreed to forbear in reliance upon the binding effect,validity and enforceability of this Agreement; that this Agreement has beenexecuted and delivered by Borrower for adequate consideration and value underall applicable laws; and that this Agreement is valid, binding and enforceablein accordance with its terms.

 

18.        Recitals. The Parties warrant andrepresent that the statements contained in the above recitals are true.

 

19. Notices. Any communications concerning thisAgreement or the credit described herein shall be addressed as provided in theLoan Documents, except that notices to Lenders or Agent shall be addressed asfollows:

 

8

----

 

LINC Credit, L.L.C.

c/o **Republic Financial Corporation**

Attn: Vice President-Documentation3300 S. Parker Rd., Suite 500

Aurora, CO 80014-3522

Telecopier: (303)338-9360

 

With a copy (which shallnot constitute notice) to:

 

Boult, Cummings,Conners & Berry

Attn: John W.Myers II

414 Union Street,Suite 1600

Nashville, TN37219

Telecopier: (615)252-6349

 

LINC Credit,L.L.C.

Attn: Dan Rouse

3300 S. ParkerRd., Suite 500

Aurora, CO80014-3522

Telecopier: (303923-2197

 

Notices to Borrower:

 

AmerivisionCommunications Inc.

Attn: Mr. RobertCook, President

5900 MostellerDrive

Oklahoma City, OK73112

Telecopier:(405)-600-3880

 

20. Construction of Agreement. Except asexpressly provided herein, the Loan Documents shall remain in full force andeffect in accordance with their respective terms, and this Agreement shall notbe construed to (i) impair the validity, perfection, or priority of anysecurity interest granted therein, or (ii) waive or impair any rights, powers,or remedies of Lenders under the Loan Documents. This Agreement has beenreviewed fully by all parties and shall not be construed against any party asauthor.

 

21. VoluntaryAgreement. The Parties warrant and represent that they are represented by legalcounsel of their choice; have investigated fully their alternatives to theexecution and performance of this Agreement; have, had ample time to reviewthis Agreement and consult with their counsel; are fully aware of the termscontained in this Agreement; and have knowingly, voluntarily and withoutcoercion or duress of any kind entered into this Agreement and the documentsexecuted in connection with this Agreement.

 

9

----

 

22. NotPartners No Third Party Beneficiaries. Nothing contained herein or in anyrelated document shall be deemed to render Lenders a partner of Borrower forany purpose. This Agreement has been executed for the sole benefit of Lendersand Borrower and there. are no third party beneficiaries hereof.

 

23. Indulgence Not Waiver. Lenders’ indulgencein any other departure from the terms of this Agreement or any other LoanDocument shall not prejudice Lenders’ right to demand strict compliancetherewith.

 

24. Assignment rent. This Agreement shall bebinding upon and inure to the benefit of the respective heirs, successors andassigns of Borrower and Lenders, except that Borrower may not assign any rightsor delegate any obligations arising hereunder without the prior written consentof Lenders. Any attempted assignment or delegation by Borrower without therequired prior consent shall be void.

 

25. Entire Agreement. This Agreement and theother written agreements among the parties represent the entire agreementbetween the parties concerning the subject matter hereof, and all oraldiscussions and prior agreements are merged herein. Lenders are under noobligation to extend or consider the extension of the Forbearance Period. Inthe event of an inconsistency between this Agreement and the provisions of theLoan Documents, the provisions of this Agreement shall control.

 

26. Exhibits and Schedules. All exhibits andschedules referred to in this Agreement are incorporated herein by reference.Borrower warrants and represents that all information presented in scheduleshereto is complete and accurate.

 

27. Amendment and Waiver in Writing. Noprovision of this Agreement can be amended, modified, or waived, except by astatement in writing signed by the party against which enforcement of theamendment, modification, or waiver is sought.

 

28.      Severability. Should any provisionof this Agreement be invalid or unenforceable for any reason, the remainingprovisions hereof shall remain in full effect.

 

29.    Gender and Number. Words used hereinindicating gender or number shall be read as context may require.

 

30. Captions Not Controlling. Captions andheadings have been included in this Agreement for the convenience of theparties, and shall not be construed as affecting the content of the respectivesections.

 

31. Counterparts. This Agreement may beexecuted in counterparts with all signatures or by counterpart signature pages,and it shall not be necessary that the signatures of all parties be containedon any one document. Each counterpart shall be deemed an original, but all ofthem together shall constitute one and the same instrument.

 

10

----

 

32. Facsimiles. This Agreement may be executedby facsimile signatures, and shall be effective when Agent has receivedoriginal or telecopy transmissions of the signature pages executed by allparties hereto; provided, however, that all parties shall deliver originalexecuted documents to Agent promptly following the execution hereof.

 

33. Applicable Law. The validity, constructionand enforcement of this Agreement shall be determined according to the laws ofCalifornia applicable to contracts executed, delivered and performed entirelywithin that state, and Borrower specifically confirms that Section 11.16 of theLoan and Security Agreement dated February 4, 1999, remains in force and effectwith respect to this Agreement.

 

34. Expenses. Borrower agrees to pay any andall costs and expenses (including, without limitation, reasonable attorneys’fees and litigation expenses) incurred by Lenders with respect to (i) attendingto Borrower’s default, (ii) the preparation and negotiation of this Agreementand the documents described herein, (iii) the future administration of theLoan, including, but not limited to, the costs and expenses of Lenders’auditors and (iv) any future breaches of this Agreement by Borrower. All suchcosts and expenses shall be added to the balance of the Loan. Lenders’ costs ofpreparation and negotiation of this Agreement and the documents describedherein through July 14, 2003, and Lenders’ litigation costs, including travelexpenses and attorney’s fees incurred from the date of filing of the Lawsuitthrough July 14, 2003, shall not exceed the sum $75,000.00.

 

35. Joinder of Lenders. Lenders have joinedwith Agent in the execution of this Agreement to evidence their consent andagreement to the terms and conditions hereof, to the extent (if any) that theirconsent or agreement may be required by the applicable Loan Documents. Lenders’joinder in the execution hereof does not evidence or create any obligation ofAgent to obtain Lenders’ consent or agreement as to this or any future matter,except as may be required under the Loan Documents.

 

 

**[The remainder of this page isintentionally left blank]**

 

11

----

 
|   | **LENDERS:**                         |
|--------|--------------------------------------|
|   |                                 |
|   | **LINC CREDIT, L.L.C.**              |
|   |                                 |
|   | **By:**                              |   |   |
|   |                                 |
|   | **Title:**                           |   |   |
|   |                                 |
|   | **REPUBLIC FINANCIAL CORPORATION**   |
|   |                                 |
|   | **By:**                              |   |   |
|   |                                 |
|   | **Title:**                           |   |   |
|   |                                 |
|   | **CONTINENTAL BUSINESS CREDIT**      |
|   |                                 |
|   | **By:**                              |   |   |
|   |                                 |
|   | **Title:**                           |   |   |
|   |                                 |
|   | **TEXTRON FINANCIAL CORPORATION**    |
|   |                                 |
|   | **By:**                              |   |   |
|   |                                 |
|   | **Title:**                           |   |   |
|   |                                 |
|   | **BORROWER:**                        |
|   |                                 |
|   | **AMERIVISION COMMUNICATIONS, INC.** |
|   |                                 |
|   | **By:**                              |   |   |
|   |                                 |
|   | **Title:**                           |   |   |
|        |                                      |  |  |  |

 

12

----

 

IN THE DISTRICTCOURT OF OKLAHOMA COUNTY COURT

STATE OF OKLAHOMA

 

AMERIVISION COMMUNICATIONS, INC.,

d/b/a LIFELINE COMMUNICATIONS,

an Oklahoma corporation,

 

Plaintiff,

 

Case No. CJ-2003-5886

VS.

 

LINC CREDIT, L.L.C., a Colorado LimitedLiability Company, REPUBLIC FINANCIALCORPORATION, a Colorado corporation; andTHE BANK OF OKLAHOMA, N.A., anOklahoma corporation,

 

**ORDER DISSOLVING TEMPORARYRESTRAINING ORDER**

**ANDDISMISSING PLAINTIFF’S CLAIMS WITH PREJUDICE**

 

This matter came before the Court on the oral motionof plaintiff Amerivision Communications, Inc. (“Plaintiff”) for an orderdissolving the Temporary Restraining Order obtained by Plaintiff without noticeand entered herein on July 8, 2003, and dismissing Plaintiff’s claims in thiscase with prejudice to refiling of the same

 

Having heard the statements of counsel for Plaintiffand having reviewed the court file, the Court finds that Plaintiff’s oralmotion should be, and hereby is, granted.

 

IT IS THEREFORE ORDERED that the Temporary RestrainingOrder entered herein on July 8, 2003, is hereby dissolved in all respects andis of no longer of any force or effect.

 

IT IS FURTHER ORDERED that Plaintiff s claims in thiscase against defendants LINC Credit, L.L.C., and Republic Financial Corporationand Bank of Oklahoma, N.A. are hereby dismissed with prejudice to the refilingof the same.

 

ENTERED this 15th day of July 2003.

 
|   |                                  |   |
|--------|---------------------------------------|--------|
|   | **DAVID M. HARBOUR**                  |
|   | **DISTRICT JUDGE OF OKLAHOMA COUNTY** |

 

----

 

IN THE DISTRICTCOURT OF OKLAHOMA COUNTY

STATE OF OKLAHOMA

 

AMERIVISION COMMUNICATIONS, INC. d/b/a LIFELINE COMMUNICATIONS,

an Oklahoma Corporation,

 

Plaintiff,

Case No. CJ-2003-5886

v.

LINC CREDIT, L.L.C., a Colorado Limited

Liability Company, REPUBLIC FINANCIAL

CORPORATION, a Colorado Corporation,

and THE BANK OF OKLAHOMA, N.A.

an Oklahoma Corporation,

 

Defendants.

 

 

DISMISSAL WITHPREJUDICE

 

COME NOW-the Plaintiff herein, AmerivisionCommunications, Inc., d/b/a Lifeline Communications, by and through theirattorney of record, Jon McLanahan of Lester, Loving & Davies, P.C., andhereby dismiss the above filed and numbered cause with prejudice to there-filing of a future action thereon.

 

Datedthis           day ofJuly, 2003

 

 
|   |                              |   |
|--------|-----------------------------------|--------|
|   | Jon McLanahan, OBA No. 12777      |
|   | LESTER, LOVING & DAVIES, P.C. |
|   | 1505 S. Renaissance Boulevard     |
|   | Edmond OK 73013-9958              |
|   | Telephone: (405) 844-9900         |
|   | Facsimile: (405) 844-9958         |
|   | ATTORNEYS FOR PLAINTIFF           |

 

----

 
| APPROVED:                         |
|-----------------------------------|
|                              |
| **Attorneys for Plaintiff**       |
|                              |
|                              |   |
| Jon McLanahan, OBA No. 12777      |   |
| Andrew W. Lester, OBA No. 5388    |   |
| LESTER, LOVING & DAVIES, P.C. |   |
| 1505 Renaissance Blvd.            |   |
| Edmond, OK 73013                  |   |
| Telephone: (405) 844-9900         |   |
| Facsimile: (405) 844-9958         |   |

 

 

----