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EXHIBIT 10.4
FIRST AMENDMENT TO TERM LOAN AGREEMENT
This First Amendment to Term Loan Agreement dated as of July 13,
2000 ("First Amendment") is entered into by and between xXXX.xxx, a Delaware
corporation ("Company") and XXXX.XXX, Inc., a Delaware corporation ("Lender").
RECITALS
A. The Company and Lender are parties to that certain Term Loan
Agreement, dated May 5, 2000 (the "Loan Agreement").
B. The Company and Lender wish to modify the Loan Agreement in
certain respects as set forth herein.
NOW, THEREFORE, it is agreed:
1. Paragraph 2 of the Loan Agreement shall be amended to read in its
entirety as follows:
"2. The Note. The obligation to repay the Loan shall be evidenced by
the Company's promissory note (the "Note") in substantially the form of Exhibit
A attached hereto, dated the date of the first Installment, payable to the order
of the Lender in full, on the Maturity Date (as defined herein). As used in this
Loan Agreement, "Maturity Date" shall mean the later of (i) October 31, 2000 and
(ii) the date which is sixty (60) days following the date, if any, upon which
the Agreement and Plan of Merger dated as of the date hereof (the "Merger
Agreement") between and among the Company, Lender and XXXX.XXX Merger Sub, Inc.
is terminated as a result of a failure to obtain approval of Lender's
shareholders or as a result of a material breach by Lender thereunder; provided,
however, that upon a "Borrower Merger Failure" (as hereinafter defined), the
Maturity Date shall be immediately accelerated to the later of (x) August 31,
2000 and (y) the date upon which such Borrower Merger Failure occurs (a
"Borrower Merger Failure" shall be deemed to occur in the event that any of the
events described in Section 8.4(a) of the Merger Agreement occurs or in the
event that Borrower's shareholders fail to approve the proposed merger). The
principal balance with respect to each Installment of the loan shall bear
interest from the Installment Funding Date or Delayed Installment Funding Date,
as the case may be, with respect to such Installment until the entire principal
balance with respect to such Installment has been repaid in full, payable in
arrears on the Maturity Date, at a rate per annum (based on a 365 day year for
the actual number of days elapsed) equal to the lesser of 13% and the maximum
rate allowable under
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applicable law. Interest shall be calculated based on a 360 day year, but for
the actual number of days elapsed in each calendar month. The Lender may record
the amount of each Installment and the amount of prepayments, if any, of the
loan and similar information on a schedule attached to or otherwise made a part
of the Note. Information so recorded by the Lender shall be conclusive and
binding on the Company in the absence of manifest error. No failure to enter or
delay in entering such records shall impair the Company's obligations under the
Note or this Loan Agreement."
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance, or waiver of any other provision of the Loan Agreement
or any other document related thereto.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
4. This Amendment and the rights and obligations of the parties
hereunder shall be governed by the laws of the State of California, both in
interpretation and performance.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first above written.
xXXX.xxx
By /s/ Xxxx X. Xxxxx
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XXXX.XXX, Inc.
By /s/ Xxxxxx X. Xxxxxxxxx
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