FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment") is
made and entered into as of the 15th day of December, 1997, among
NATIONSBANK, N.A. ("Lender"), ILD TELESERVICES, INC. ("ILD") and INTELLICALL
OPERATOR SERVICES, INC. ("IOS") (ILD and IOS are sometimes collectively
referred to herein as the "Borrowers").
W I T N E S S E T H:
WHEREAS, Lender and Borrowers are party to that certain Loan and
Security Agreement dated as of August 29, 1997 (the "Loan Agreement"); and
WHEREAS, Lender and Borrowers desire to amend the Loan Agreement as set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly
defined herein shall have the respective meanings given to such terms in the
Loan Agreement.
2. The Loan Agreement is amended as follows:
A. Section 1.01 of the Loan Agreement is hereby amended by adding the
following definition for "XXXXXXXXX SUBORDINATED INDEBTEDNESS" in the correct
alphabetical order thereto:
"XXXXXXXXX SUBORDINATED INDEBTEDNESS" shall mean and include
Indebtedness (not to exceed $4,000,000.00) owed by Borrowers to X.X.
XxXxxxxxx pursuant to those certain Promissory Notes, dated as of December
___, 1997, made by ILD in favor of X.X. XxXxxxxxx in the original principal
amounts of $2,700,000.00 and $1,000,000.00, respectively, which Indebtedness
shall be subordinated to the Secured Obligations on terms satisfactory to
Lender, in its sole discretion.
B. Section 1.01 of the Loan Agreement is hereby further amended by
deleting from the definition of "PERMITTED DISTRIBUTIONS" the number
"$1,500,000.00" and inserting in lieu thereof the number "$1,900,000.00."
C. Section 1.01 of the Loan Agreement is hereby further amended by
adding the phrase "and scheduled payments of principal and interest due in
connection with the XxXxxxxxx Subordinated Indebtedness permitted pursuant to
the terms of the subordination agreement among X.X. XxXxxxxxx, Lender and
ILD" immediately after the phrase "Shareholder Subordinated Indebtedness" in
the definition of "PERMITTED DISTRIBUTIONS."
D. Section 10.06 of the Loan Agreement is hereby amended by deleting
therefrom the phrase "Permitted Dividends" and inserting in lieu thereof the
phrase "Permitted Distributions."
3. Except as expressly set forth herein, the Loan Agreement shall be
and remain in full force and effect as originally written, and shall
constitute the legal, valid, binding and enforceable obligations of Borrowers
to Lender.
4. Each of the Borrowers agrees, jointly and severally, to pay on
demand all reasonable costs and expenses of Lender in connection with the
preparation, execution, delivery and enforcement of this Amendment and all
other Loan Documents and any other transactions contemplated hereby,
including, without limitation, the reasonable fees and out-of -pocket
expenses of legal counsel to Lender.
5. To induce Lender to enter into this Amendment, each of the
Borrowers hereby (i) represents and warrants that, as of the date hereof, and
after giving effect to the terms hereof, there exists no Default or Event of
Default under the Loan Agreement or any of the Loan Documents, and (ii)
acknowledges and agrees that no right of offset, defense, counterclaim, claim
or objection in favor of Borrowers against Lender exists arising out of or
with respect to any of the Loan Documents, the Secured Obligations or the
administration thereof.
6. This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument.
7. This Amendment shall be binding upon and inure to the benefit of
the successors and permitted assigns of the parties hereto.
8. This Amendment and the other Loan Documents shall be governed by,
and construed in accordance with, the laws and decisions of the State of
Georgia, excluding laws and decisions regarding conflicts of law.
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IN WITNESS WHEREOF, Borrowers and Lender have caused this Amendment to
be duly executed, all as of the date first above written.
ILD TELESERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Its: President
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INTELLICALL OPERATOR SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Its: President
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NATIONSBANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
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Its: Vice President
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