EXHIBIT 10.57
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Agreement") is entered into as of the 30th day of March 2001, by and between
XXXXXXXXX & XXXXX GUARANTY FINANCE, LLC, a California limited liability
company (the "Secured Lender"), and Interactive Telesis Inc. (the
"Borrower"), a Delaware corporation.
Investor and Borrower are the parties to that certain LOAN AND
SECURITY AGREEMENT ("LSA") entered into as of the 21st day of November 2000.
Due to the occurrence of a Material Adverse Event ("MAE") as defined in
Section 1.17 therein, resulting in the failure to meet conditions set forth
in Sections 4.3, 5.3, 6.7and 8 (j), the parties agree to amend the LSA, as
follows:
1. SECTION 1.20 SHALL BE STRUCK IN ITS ENTIRETY, REMOVING MENTION OF THE
REICHMANNS, AND THE FOLLOWING, INSERTED THEREFOR:
SECTION 1.20 "PERMITTED INDEBTEDNESS" shall mean (a) Obligations, (b)
Indebtedness existing on the date of this Agreement and disclosed in
writing to Secured Lender (c) Indebtedness to trade creditors and with
respect to surety bonds and similar obligations incurred in the
ordinary course of business, (d) capital leases and indebtedness
incurred solely to purchase capital assets which is secured in
accordance with clause (c) of "Permitted Liens" below and is not in
excess of the lesser of the purchase price of such equipment or the
fair market value of such equipment on the date of acquisition and not
to exceed Five Million Dollars ($5,000,000) outstanding in the
aggregate at any one time; (e) extensions, refinancings, modifications,
amendments and restatements of any of items of Permitted Indebtedness
(a) through (c) above, provided that the principal amount thereof is
not increased or the terms thereof are not modified to impose more
burdensome terms upon Borrower or its Subsidiary, as the case may be;
(f) Indebtedness incurred to finance the premiums on insurance
policies.
2. SECTION 1.25 SHALL BE STRUCK IN ITS ENTIRETY AND THE FOLLOWING INSERTED
THEREFOR:
SECTION 1.25: "XXXXXXXXX TRANSACTION" shall mean that transaction among
BH Capital Investment L.P. and Excalibur Limited Partnership (together,
"Xxxxxxxxx") and the Borrower, pursuant to an agreement among the
aforementioned parties dated June 12, 2000, for which prospectus Form
SB-2 numbered Z63592A2 was filed with the SEC and dated October 6,
2000, and by which $2.5 million of the Borrower's Common Stock was
purchased; and an amendment of the second tranche equity purchase
thereof whereby Equity Investors shall purchase $500,000 of the
Borrower's Series B Preferred Stock as detailed in that Letter of
Understanding between the Company, Xxxxxxxxx, and Secured Lender dated
March 1.
3. SECTION 2.1 SHALL BE STRUCK IN ITS ENTIRETY AND THE FOLLOWING INSERTED
THEREFOR:
SECTION 2.1 LOANS. Secured Lender shall make Loans to the Borrower in
accordance with the Schedule and amendments thereto.
4. SECTION 5.2 SHALL BE STRUCK IN ITS ENTIRETY AND THE FOLLOWING INSERTED
THEREFOR:
SECTION 5.2 FORWARD COMMITMENT TO PROVIDE ADDITIONAL FINANCING. Subject
to the terms of this Agreement, Secured Lender will make an additional Loan
within (5) days following Borrower's request, in the amount of Five Hundred
Thousand Dollars ($500,000). In no event shall Secured Lender be obligated to
make such additional Loan unless the following conditions have been satisfied:
(a) Borrower shall execute and deliver to Secured Lender this
Agreement and all Related Documents and amendments thereto and
substitutions thereof contemplated hereby; and,
(b) Borrower shall deliver to Secured Lender proof of an effective
Registration Statement as defined herein and in compliance with
Related Documents; and,
(c) An Event of Default shall not have occurred since January 31, 2001,
and be continuing; and,
(d) Xxxxxxxxx Transaction shall be drafted, documented, executed, and
performed in form acceptable to Secured Lender.
5. SECTION 6.1 (G) SHALL BE STRUCK IN ITS ENTIRETY AND THE FOLLOWING INSERTED
THEREFOR:
SECTION 6.1
(G) For so long as Borrower is a company the stock of which is traded
on a nationally recognized public stock exchange, unless otherwise
requested by Secured Lender, Borrower's obligations under Section 6.1
(a), (b) and (c) shall be satisfied by Borrower providing Secured
Lender with all financial information filed with the Securities and
Exchange commission within five (5) days after each filing is made or
required to be made, and providing Secured Lender with copies of all
press releases as soon as reasonably practical after they are
published.
IN WITNESS WHEREOF, the parties have caused the Agreement to be
executed by their respective duly authorized officers as of the date set forth
above.
SECURED LENDER: COMPANY:
XXXXXXXXX & XXXXX GUARANTY FINANCE, LLC INTERACTIVE TELESIS INC.
By: /s/ Xxxxxx X. Xxxxxxxx By:
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Printed Name: XXXXXX X. XXXXXXXX Printed Name:
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Title: CHIEF EXECUTIVE OFFICER Title:
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