LOAN MODIFICATION AGREEMENT
Exhibit
10.17
This Loan
Modification Agreement (this "Agreement") is entered into effective December 31,
2008 (the "Effective Date") between MICROHELIX, INC., an Oregon corporation
("Maker"), XXXXX ELECTRONICS, INC., an Oregon corporation ("Co-Maker"), and MH
FINANCIAL ASSOCIATES, LLC, an Oregon limited liability company
("Holder").
RECITALS
A. Maker
made and delivered its Promissory Note dated April 8, 2005 in the face amount of
$1,250,000 to Xxxxx X. Xxxxx (the "Original Note"). The Original Note
was subsequently amended by Maker and Xxxxx X. Xxxxx effective July 29,
2005, August 5, 2005, November 18, 2005, January 3, 2006,
May 18, 2006 and August 8, 2006.
B. Contemporaneously
with the execution and delivery of the Original Note, Xxxxx X. Xxxxx, Maker
and Co-Maker executed and delivered a Security Agreement dated April 8,
2005 (the "Security Agreement"), under which, among other things, Maker and
Co-Maker granted to Xxxxx X. Xxxxx a security interest in the collateral
described in the Security Agreement.
X. Xxxxxx
acquired from Xxxxx X. Xxxxx all right, title and interest in the Original Note
and in the Security Agreement.
D. On
or about October 19, 2006, Maker and Holder entered into an Agreement Regarding
Amendment of Promissory Note (the "First Amended Agreement") and an Amended and
Restated Promissory Note (the "First Restated Note") in the principal amount of
$1,028,982, together with warrants to purchase shares of Maker's Common
Stock.
E. On
or about March 12, 2007, Maker, Co-Maker and Holder entered into a Second
Agreement Regarding Amendment of Promissory Note (the "Second Amended
Agreement") and a Second Amended and Restated Promissory Note in the principal
amount of $1,721,428.78 (the "Second Restated Note"), which superseded each of
the First Amended Agreement and the First Restated Note in their
entirety.
F. On
or about June 27, 2008, Maker, Co-Maker and Holder entered into a Third
Agreement Regarding Amendment of Promissory Note (the "Third Amended Agreement")
and a Third Amended and Restated Promissory Note in the principal amount of
$977,742.96 (the "Third Restated Note"), which superseded each of the First
Amended Agreement, Second Amended Agreement, First Restated Note and Second
Restated Note in their entirety.
G. Maker
has requested that Holder extend the maturity date of the Third Restated Note,
and Holder has agreed to such extension on the terms and conditions set forth
herein.
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement agree as
follows:
Page 1 – LOAN MODIFICATION
AGREEMENT
2. 1. Continuing
Effectiveness. The amendments set forth in Section 3 below, are
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of the Third Amended Agreement,
Third Restated Note or any other loan document, or (b) otherwise prejudice any
right or remedy which Maker may now have or may have in the future under or in
connection with any of the loan documents. This Agreement 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
such loan documents, except as herein amended, are hereby ratified and confirmed
and shall remain in full force and effect.
3. Definitions. Capitalized
terms used in this Agreement that are not defined herein have the meanings
assigned to those terms in the Third Restated Note.
4. Third
Restated Note. Section 5 of the Third Restated Note is amended by
substituting “December 27, 2009” for “December 27, 2008” in clause (a) of
Section 5.
5. Representations
and Warranties. Maker and Co-Maker represent and warrant to Holder,
as of the date of this Agreement, and at all times the Third Restated Note is
outstanding:
5.1. Organization. Maker
and Co-Maker are, and at all times will be, duly organized and validly existing
under the laws of the state of Oregon. Maker and Co-Maker are, and
all times will be, duly qualified to do business in all states in which the
failure to so qualify would have a material adverse effect on its business or
financial condition. Maker and Co-Maker have the full power and
authority to own their properties and to transact the business in which they are
presently engaged or presently propose to engage.
5.2. Authorization. Maker's
and Co-Maker's execution, delivery and performance of this Agreement and
all of their respective agreements referred to herein have been duly authorized
by all necessary action by Maker and Co-Maker and does not conflict with, result
in a violation of, or constitute a default under (1) any provision of
Maker's or Co-Maker's articles of incorporation, other organizational documents
or agreements or instruments binding upon Maker or Co-Maker or (2) any law,
governmental regulation, court decree or order applicable to Maker, Co-Maker or
their properties.
5.3. Legal
Effect. This Agreement constitutes, and any instrument or
agreement Maker and/or Co-Maker are required to give under this Agreement
when delivered will constitute, legal, valid and binding obligations of Maker
and/or Co-Maker, as applicable, enforceable against Maker and Co-Maker in
accordance with their respective terms, subject only to the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and
other similar laws relating to or affecting creditors' rights generally and
court decisions with respect thereto, and the award by courts of money damages
rather than specific performance of contractual provisions involving matters
other than the payment of money.
5.4. Litigation
and Claims. Except as previously disclosed by Maker or Co-Maker to
Holder (including specifically claims made by and litigation with Maker's and
Co-Maker's unsecured creditors), no litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes)
against Maker or Co-Maker are pending or, to the best of Maker's or Co-Maker's
knowledge, threatened.
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AGREEMENT
5.5. Lien
Priority. Unless otherwise previously disclosed to Holder in writing
(including specifically prior liens granted to Hewlett Packard Financial
Services Company), Maker and Co-Maker have not entered into or granted any
security agreements, or permitted the filing or attachment of any security
interests on or affecting any of the collateral securing repayment of the Third
Restated Note (the "Collateral"), that would be prior or that may in any way be
superior to Holder's security interests and rights in and to such
Collateral.
6. Additional
Documents. The parties will sign and deliver such additional
documents and take such further actions as may be reasonably necessary to
further effect and evidence this Agreement.
7. Attorney
Fees. If any party to this Agreement breaches any term of this
Agreement, the other party will be entitled to recover all costs and
expenses, including reasonable attorney fees, incurred to enforce the terms of
this Agreement, whether or not suit is filed, including such costs or fees as
may be awarded at trial, in arbitration, or in bankruptcy proceedings, and
in any appeal of such suit or action. Maker and Co-Maker shall
reimburse Holder for its reasonable attorneys’ fees and costs related to the
negotiation and preparation of this Agreement and related
documents.
8. Successors
and Assigns. This Agreement will be binding on and inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
9. Time
of Essence. Time is of the essence for each and every provision of
this Agreement.
10. Entire
Agreement. This Agreement sets forth the understanding of the parties
with respect to the subject matter of this Agreement and supersedes any and all
prior understandings and agreements, whether written or oral, between the
parties with respect to such subject matter.
11. Amendment. This
Agreement may be amended only by an instrument or writing executed by all of the
parties hereto.
12. Governing
Law; Venue. This Agreement will be governed by the laws of the State
of Oregon, without giving effect to any conflict-of-law principle that would
result in the laws of any other jurisdiction governing this
Agreement. Venue for any dispute or litigation arising out of this
Agreement will be in the courts of Multnomah County, Oregon regardless of any
change in the residence of a party hereafter.
13. Execution
and Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when executed and delivered will be an
original, but all of which together will constitute one and the same
instrument. This Agreement will not be effective unless Maker,
Co-Maker and Holder execute this Agreement.
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AGREEMENT
IN WITNESS WHEREOF, the duly authorized
representatives of the parties have executed this Agreement.
| MH FINANCIAL ASSOCIATES, LLC | |||
| By: |
Aequitas
Capital Management,
Inc.,
its Manager
|
||
|
By
|
/s/ Xxxx XxxXxxxxxx | ||
| Xxxx XxxXxxxxxx | |||
| Executive Vice-President | |||
| MICROHELIX, INC. | |||
|
|
By
|
/s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | |||
| President and CFO | |||
| XXXXX ELECTRONICS, INC. | |||
| By | /s/ Xxxxx X. Xxxxxxxx | ||
| Xxxxx X. Xxxxxxxx | |||
| President and CFO | |||
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AGREEMENT
