Attached files
| file | filename |
|---|---|
| 8-K - DELTATHREE INC | v193036_8-k.htm |
| EX-4.1 - DELTATHREE INC | v193036_ex4-1.htm |
| EX-10.2 - DELTATHREE INC | v193036_ex10-2.htm |
| EX-10.1 - DELTATHREE INC | v193036_ex10-1.htm |
Exhibit
10.3
FIRST
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT (this “Amendment”) is entered into
this 10th day of
August, 2010, by and between (i) deltathree, Inc., a Delaware corporation, Delta
Three Israel, Ltd., an Israeli company (the “Israeli Subsidiary”), (ii) DME
Solutions, Inc., a New York corporation (jointly and severally, the “Borrower”), and (iii) D4
Holdings, LLC, a Delaware limited liability company (“Lender”).
Recitals
A. Lender
and Borrower have entered into that certain Loan and Security Agreement dated as
of March 1, 2010 (as may be further amended, modified, supplemented or restated,
the “Loan
Agreement”). Lender has extended credit to Borrower for the
purposes permitted in the Loan Agreement.
B. At
the request of Borrower, Lender has agreed to extend an additional loan (the
“New Loan”) to Borrower
pursuant to that certain Second Loan and Security Agreement dated August 10,
2010 (the “Second Loan
Agreement”).
C. The
parties desire to amend the Loan Agreement to make certain changes to facilitate
the New Loan.
D. Lender
is willing to so amend certain provisions of the Loan Agreement, but only to the
extent, in accordance with the terms, subject to the conditions and in reliance
upon the representations and warranties set forth below.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.
2. Consent by
Lender. Notwithstanding any of the provisions of the Loan
Agreement, Lender hereby consents to the grant of a security interest in the
Collateral in favor of the Lender and the incurrence of indebtedness by the
Borrower as provided in the Second Loan Agreement. The grant or
existence of the Lien created under the Second Loan Agreement and the incurrence
of indebtedness to Lender under the terms thereof shall not constitute an Event
of Default, a breach of any representation or warranty, a failure of a condition
under the Loan Agreement or a breach of the conditions set forth in Section
5(b)(iii) or Section 5(b)(iv) of the Loan Agreement.
3. Amendments to Loan
Agreement. The Loan Agreement is hereby amended as
follows:
3.1 Section
7(a)(i) of the Loan Agreement is hereby amended in its entirety to read as
follows:
“(i) Borrower
fails to pay timely any of the principal and/or any accrued interest or other
amounts due under the Loan Documents, the Second Loan Agreement or the
promissory note issued under the Second Loan Agreement when the same becomes due
and payable;”
4. Limitation
of Amendments.
4.1 The
amendments set forth above are effective for the purposes set forth herein and
shall be limited precisely as written and, except as expressly set forth herein,
shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or
(b) otherwise prejudice any right or remedy which Lender may now have or
may have in the future under or in connection with any Loan
Document.
4.2 This
Amendment shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.
5. Representations and
Warranties. To induce Lender to enter into this Amendment,
Borrower hereby represents and warrants to Lender as follows:
5.1 Immediately
after giving effect to this Amendment (a) the representations and
warranties contained in the Loan Documents are true, accurate and complete in
all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they are
true and correct in all material respects as of such date), and (b) no
Event of Default has occurred and is continuing;
5.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
5.3 The
organizational documents of Borrower delivered to Lender on or before the date
of this Amendment remain true, accurate and complete and have not been amended,
supplemented or restated and are and continue to be in full force and
effect;
5.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
5.5 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not and will not contravene (a) any law or regulation binding
on or affecting Borrower, (b) any contractual restriction with a Person
binding on Borrower, (c) any order, judgment or decree of any court or
other governmental or public body or authority, or subdivision thereof, binding
on Borrower, or (d) the organizational documents of Borrower;
2
5.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
either Borrower, except as already has been obtained or made; and
5.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
6. Counterparts. This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Effectiveness. This
Amendment shall be deemed effective upon the due execution and delivery to
Lender of this Amendment by each party hereto.
[Signature
page follows.]
3
IN WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the date first above
written.
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BORROWER:
DELTATHREE,
INC.
By:
/s/ Effi
Baruch
Name:
Effi Baruch
Title:
Interim CEO and President
DELTA
THREE ISRAEL, LTD.
By:
/s/ Effi
Baruch
Name:
Effi Baruch
Title:
Interim CEO and President
DME
SOLUTIONS, INC.
By:
/s/ Effi
Baruch
Name:
Effi Baruch
Title:
CEO and President
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LENDER:
D4
HOLDINGS, LLC
By:
Praescient, LLC, Manager
By:
/s/ Robert
Stevanovski
Name:
Robert Stevanovski
Title:
Manager
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