exv10w49



 






EXHIBIT 10.49




FIRST AMENDMENT TO LOAN AGREEMENT AND NOTE, WAIVER AND CONSENT




     THIS FIRST AMENDMENT TO LOAN AGREEMENT AND NOTE, WAIVER AND CONSENT (this “First Amendment”)
is made and entered into as of April 28, 2005, by and among AESP, INC., a Florida corporation
(“AESP”), SLAV STEIN (“STEIN”), ROMAN BRISKIN (“BRISKIN”) (collectively, the “Borrowers”),
and BENDES INVESTMENT LTD, a Hong Kong Limited (“BENDES”), as Lender (the “Lender”)



WITNESSETH:




     WHEREAS, the Borrowers and Lender are party to that certain Loan Agreement (“Loan Agreement”)
and Secured Promissory Note (“Promissory Note”) dated as of April 16, 2004, the loan amount (as
defined in the Loan Agreement) thereunder being Six Hundred Thirty One Thousand Dollars ($631,000);



     WHEREAS, the Borrowers have requested an extension of the due date for the Loan Agreement and
Promissory Note until October 27, 2005;



     WHEREAS, subject to the terms and conditions of this First Amendment, the Lender is willing
to extend the due date of the Loan Agreement and Promissory Note until October 27, 2005;



     NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, the
Borrower and Lender agree as follows:



TERMS:




     1. Defined Terms. Capitalized but undefined terms herein shall have the meanings given
to them in the Loan Agreement.



     2. Amendments to Loan Agreement. The Loan Agreement is amended as follows:



          2.1 The tenth Recital is amended and restated as follows:





     “WHEREAS, this Loan Agreement, the Bendes Promissory Note, the Bendes Security Agreement, the
Bendes Guaranty, and the First Amendment, shall collectively be referred to as the “TRANSACTION
DOCUMENTS”;



          2.2 The final sentence of Section 2 of the Loan Agreement is amended and restated as follows:




 









 









          “The entire principal balance of the Bendes loan together with accrued but unpaid interest and
such other amounts payable by AESP to Bendes under the Bendes Promissory Note shall be due and
payable on or before October 27, 2005, and shall otherwise be payable in accordance with the terms
and subject to the conditions set forth in the Bendes Promissory Note”



     3. Amendment to Promissory Note. The Promissory Note is amended as follows:



          3.1 The first sentence of Section 2 of the Promissory Note is amended and restated as follows:




          “The full principal amount of this Note shall be due and payable on October 27, 2005, but if
the date that such payment is due is not on a business day, then payment shall be due on the next
following business day”



     4. Reaffirmation. Each of the Borrowers hereby reaffirms all covenants,
representations, and warranties made by it, and all Obligations owed by it, pursuant to the Loan
Agreement and Promissory Note (to the extent the same are not amended herein) to which it is a
party and agree that all such covenants, representations and warranties shall be deemed to have
been remade as of the date this First Amendment becomes effective (unless a representation and
warranty is stated to be given on and as of a specific date, in which case such representation and
warranty shall be true, correct, and complete as of such date, except to the extent, if any,
amended hereby).



     5. Limited Waiver and Consent. The Lender hereby waives its rights with respect to
(and solely with respect to) the Event of Default under the Security Agreement arising by reason of
the Borrowers having granted a second priority security interest in its goods and inventory to Chao
Jui Hsia pursuant to that certain Promissory Note dated November 22, 2004 (the “Chao Note”). The
Lender also consents to the Chao Note.



     6. Reference to and Effect on the Loan Agreement and Promissory Note. Except as
specifically amended or agreed to herein, the Loan Agreement, Promissory Note, the Bendes Security
Agreement, the Bendes Guaranty and any other agreement or document executed in connection with the
Transaction Documents shall remain in full force and effect and are hereby ratified and confirmed.



     7. Execution in Counterparts. This First 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 taken together shall
constitute one and the same document. Delivery of an executed counterpart of the First Amendment by
facsimile shall have the same effect as delivery of a manually executed counterpart of this First
Amendment.



     8. Governing Law. This First Amendment shall be governed by and construed in
accordance with the laws of the State of Florida.



 









 





     9. Headings. Section headings in this First Amendment are included herein for the
convenience of reference only and shall not constitute a part of this First Amendment for any other
purpose.



     10. Release of Claims. To induce Bendes to enter into this agreement, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Borrowers hereby release, discharge, and acquit forever Bendes and its officers, trustees, agents,
employees, and counsel (in each case, past, present, or future) from any and all liabilities,
claims, defenses, demands, actions, causes of action, judgments, deficiencies, interest, liens,
cost, or expenses (including court costs, penalties, attorneys’ fees and disbursements and amounts
paid in settlement) of any kind and character whatsoever, including claims for usury, breach of
contract, breach of commitment, negligent misrepresentation or failure to act in good faith, in
each case whether now known or unknown, suspected or unsuspected, asserted or unasserted or primary
or contingent, and whether arising out of written documents, underwritten undertakings, course of
conduct, tort, violations of laws or regulations or otherwise, with respect to the Loan Agreement
and the other Transaction Documents and the transactions arising or contemplated hereunder,
existing as of or arising on or prior to the Effective Date.



[Remainder of Page Intentionally Left Blank]




 









 








     IN WITNESS WHEREOF, the parties have caused this First Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 
	

	 	AESP, INC., as Borrower
	 
	

	 	By /s/ Roman Briskin
	

	 	 
	 
	 	 
	

	 	SLAV STEIN, as Borrower
	 
	 	 
	

	 	By: /s/ Slav Stein
	

	 	 
	

	 	Slav Stein
	 
	 	 
	

	 	ROMAN BRISKIN, as Borrower
	 
	 	 
	

	 	By: /s/ Roman Briskin
	

	 	 
	

	 	Roman Briskin
	 
	 	 
	

	 	BENDES INVESTMENT LTD, as Lender
	 
	 	 
	

	 	By: /s/ Dr. Matthias W. Rickenbach