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EXHIBIT 10.34
FIRST AMENDMENT TO
LOAN AGREEMENT AND LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN AGREEMENT AND LOAN DOCUMENTS
("Amendment") dated as of the 25th day of March, 1998, is made and entered into
on the terms and conditions hereinafter set forth, by and between ELECTRONICS
ACCESSORY SPECIALISTS INTERNATIONAL, INC., a Delaware corporation ("Borrower"),
and SIRROM CAPITAL CORPORATION, a Tennessee corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Lender made a term loan to Borrower in the original principal
amount of One Million Six Hundred Thousand and No/100ths Dollars ($1,600,000.00)
(the "Loan") on the terms and conditions set forth in that certain Loan
Agreement dated as of June 24, 1997, by and between Lender and Borrower (as now
or hereafter amended, the "Loan Agreement"); capitalized terms used herein but
not otherwise defined shall have the meanings ascribed thereto in the Loan
Agreement; and
WHEREAS, the Loan is further evidenced and secured by certain
agreements, documents and instruments as more particularly described in the Loan
Agreement and defined therein as the "Loan Documents"; and
WHEREAS, the Loan and the Loan Documents were assigned by Lender to
Sirrom Funding Corporation ("SFC"), a wholly owned subsidiary of Lender; and
WHEREAS, Borrower desires to borrow from Lender and Lender desires to
lend to Borrower an additional One Million Seven Hundred Fifty Thousand and
No/100ths Dollars ($1,750,000.00) (the "Additional Loan"), all on the terms and
conditions set forth in the Loan Agreement, secured and evidenced by among other
things (a) a security interest in certain personal property granted pursuant to
that certain Security Agreement dated as of June 24, 1997, by and between Lender
and Borrower (the "Security Agreement"); and (b) a security interest in certain
intellectual property granted pursuant to that certain Amended and Restated
Trademark and Patent Security Agreement dated as of July 29, 1997, by and
between Lender and Borrower; and
WHEREAS, this Amendment shall amend the Loan Documents.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
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1. The second sentence of Section 1.1 of the Loan Agreement is hereby
amended to read in its entirety as follows: 1.
The Loan shall be evidenced (i) a promissory note (the "First Note") in
the original principal amount of One Million Six Hundred Thousand and
No/100ths Dollars ($1,600,000.00) substantially in the form of Exhibit A
attached hereto and incorporated herein by this reference, dated June
24, 1997, executed by Borrower in favor of Lender, and (ii) a promissory
note (the "Second Note") in the original principal amount of One Million
Seven Hundred Fifty Thousand and No/100ths Dollars ($1,750,000.00),
substantially in the form of Exhibit A attached to the Amendment and
incorporated herein by this reference, of even date with the Amendment,
executed by Borrower in favor of Lender (the First Note and the Second
Note shall be referred to herein collectively as the "Note").
2. The obligations of Borrower in connection with and/or relating to the
Additional Loan are further evidenced and/or secured by the Loan Documents.
3. Upon satisfaction of the conditions set forth in Section 9 hereof,
Lender shall immediately disburse the proceeds of the Additional Loan to
Borrower by wire transfer upon instructions therefor given to Lender.
4. Borrower hereby represents and warrants to Lender that (i) all of the
representations made in Section 2.1 of the Loan Agreement are true and correct
as of the date hereof, except as modified or supplemented by Schedule A attached
hereto and incorporated herein by this reference; and (ii) no Event of Default
has occurred and is continuing.
5. The covenants and agreements in Article III of the Loan Agreement shall
continue in full force and effect.
6. Borrower hereby represents and warrants to Lender that all
representations regarding Borrower's location(s) set forth in Section 3(f) of
the Security Agreement are true and correct as of the date hereof.
7. Borrower shall pay to Lender a processing fee of $43,750.00 in
connection with the Additional Loan, $15,000 of which has previously been paid
and $28,750 of which shall be paid upon the closing of the Additional Loan.
8. Borrower shall use the proceeds of the Additional Loan for working
capital and to pay all costs and expenses incurred by the parties hereto in
connection with the making and documentation of the Additional Loan.
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9. The obligation of Lender to fund the Additional Loan on the date hereof
is subject to Borrower's satisfaction of each of the following conditions:
(a) delivery to Lender of a Secured Promissory Note executed by Borrower,
substantially in the form of Exhibit A attached hereto;
(b) delivery to Lender of a Stock Purchase Warrant executed by Borrower
(the "Stock Purchase Warrant") together with a warrant valuation letter, each in
form and substance acceptable to Lender;
(c) delivery to Lender of an Amended and Restated Stock Purchase Warrant
executed by Borrower in form and substance acceptable to Lender;
(d) delivery to Lender of copies of certificate of incorporation and other
publicly filed organizational documents of Borrower, certified by the Secretary
of State or other public official in the jurisdiction in which Borrower is
incorporated;
(e) delivery to Lender of an opinion of Xxxxxxx Xxxxxx L.L.P., as
Borrower's counsel, of even date herewith, in form and substance reasonably
acceptable to Lender's counsel, Xxxxxxxxx, Xxxxxx & Xxxxxxx, P.C.;
(f) delivery to Lender of resolutions of Borrower's Board of Directors
authorizing the Additional Loan, the issuance of the Stock Purchase Warrant in
connection therewith and the reservation of the shares to be issued in
connection with the Stock Purchase Warrant;
(g) delivery to Lender of an Authorization Agreement for Pre-Authorized
Payments completed and executed by Borrower; and
(h) delivery to Lender of a certificate as to the legal existence and good
standing of Borrower, issued by the Secretary of State or other appropriate
public official in the jurisdiction in which Borrower is incorporated.
10. The terms "Loan Document" and "Loan Documents" as defined in the Loan
Agreement are amended to include this Amendment and any and all other documents
relating to the Loan or the Additional Loan (i) by and between Borrower or any
other person or entity and Lender or (ii) executed by Borrower or any other
person or entity in favor of Lender.
11. Borrower hereby acknowledges that the original Loan (as evidenced by
the First Note) was assigned by Lender to SFC and that upon the closing of the
Additional Loan, the Additional Loan may also be assigned to SFC.
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12. Except as modified and amended hereby, the Loan Documents shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment, or
have caused this Amendment to be executed by their duly authorized officers, as
of the day and year first above written.
BORROWER: LENDER:
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ELECTRONICS ACCESSORY SIRROM CAPITAL CORPORATION, a
SPECIALISTS INTERNATIONAL, Tennessee corporation
INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxxxx Lundig
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Title: CEO Title: Assistant-Vice President
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