EXHIBIT 10.1
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT entered into as of the 27th day of
December, 2011 (as amended, modified or restated from time to time, this
"Agreement") by and among THERMO CREDIT, LLC, a Colorado limited liability
company (together with its successors and assigns, "Lender"), and Onstream Media
Corporation, a Florida corporation ("OMC"), Infinite Conferencing, Inc., a
Florida corporation ("ICI"), Entertainment Digital Network, Inc., a Florida
corporation ("EDN"), OSM Acquisition, Inc., a Delaware corporation ("OSM"), AV
ACQUISITION, INC., a Florida corporation ("AVA"), AUCTION VIDEO JAPAN, INC., a
Japanese corporation ("AVJ"), HOTELVIEW CORPORATION, a Florida corporation
("HC"), and MEDIA ON DEMAND, INC., a Florida corporation ("MDI"), (each of OMC,
ICI, EDN, OSM, AVA, AVJ, HC and MDI may hereinafter be referred to individually
as a "Debtor" and all of OMC, ICI, EDN, OSM, AVA, AVJ, HC and MDI may
hereinafter be referred to collectively as the "Debtors") hereby amends and
restates in its entirety that certain Commercial Business Loan Agreement for
Onstream Media Corporation Line of Credit by and between OMC and Lender dated
December 28, 2007, as previously amended (the "Existing Loan Agreement").
RECITALS
WHEREAS, OMC and Lender entered into the Existing Loan Agreement to provide a
Working Capital Facility to provide working capital funding to OMC and the other
Debtors;
WHEREAS, the Existing Loan Agreement currently matures on December 28, 2011.
WHEREAS, the Debtors now desire to establish their borrowing potential on a
consolidated basis to the same extent possible if they were merged into a single
entity; and
WHEREAS, in OMC entering into the Existing Loan Agreement and the Debtors
entering into this Agreement, the Debtors have (1) determined that each will
benefit specifically and materially from the Revolving Credit Facility
contemplated by this Agreement, and (2) have requested and bargained for the
structure, terms and obligations set forth in the Loan Documents; and
NOW THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1.
DEFINITIONS.
AS USED IN THIS AGREEMENT, ALL EXHIBITS,
APPENDICES AND SCHEDULES HERETO, AND IN ANY OTHER LOAN DOCUMENTS MADE OR
DELIVERED PURSUANT TO THIS AGREEMENT, THE FOLLOWING TERMS WILL HAVE THE MEANINGS
GIVEN SUCH TERMS IN THIS SECTION 1 OR IN THE PROVISIONS, SECTIONS OR RECITALS
HEREIN:
(A)
"AFFILIATE" MEANS, WITH RESPECT TO A SPECIFIED PERSON,
ANOTHER PERSON THAT DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES,
CONTROLS OR IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH THE PERSON
SPECIFIED.
(B)
"BORROWING BASE" HAS THE MEANING SPECIFIED IN SECTION
2(D)(I).
(C)
"BUSINESS DAY" MEANS ANY DAY OTHER THAN A SATURDAY, SUNDAY,
OR ANY OTHER DAY ON WHICH ANY BRANCH OF THE FEDERAL RESERVE BANK OF NEW ORLEANS,
LOUISIANA, IS CLOSED.
(D)
"CASH FLOW" MEANS, FOR ANY PERIOD, THE SUM OF NET INCOME AFTER
TAXES, PLUS DEPRECIATION AND AMORTIZATION, OTHER NON-CASH EXPENSES (INCLUDING
NON-CASH INTEREST EXPENSE), CASH INTEREST EXPENSE (EXCLUDING NON-CASH INTEREST
EXPENSE), CONTRIBUTIONS TO CAPITAL (LESS CASH DISTRIBUTIONS AND/OR CASH
DIVIDENDS PAID DURING SUCH PERIOD) AND PROCEEDS FROM SUBORDINATED UNSECURED
DEBT.