FIRST AMENDMENT TO LOAN AGREEMENT
FIRST
AMENDMENT TO LOAN AGREEMENT
This
First Amendment (this “Amendment”)
to the
Loan Agreement dated as of June 19, 2006, is made as of June 26, 2006 (the
"Loan
Agreement"),
by
and among by and among IXI
MOBILE (R&D) LTD.,
an
Israeli limited liability company, (the “Company”),
IXI MOBILE,
INC.,
a
Delaware corporation (the “Parent
Guarantor”)
and
SOUTHPOINT
MASTER FUND LP
(the
“Lender).
The
parties hereby agree as follows:
RECITALS
WHEREAS,
the Company, the Parent Guarantor and the Lender have recently entered into
the
Loan Agreement; and
WHEREAS,
the parties discovered and omission in the Company Disclosure Schedule and
an
error in the Loan which omission and error the parties now wish to rectify
and
amend.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereby agree as follows:
Unless
otherwise defined below, all capitalized terms herein shall have the meanings
assigned to such terms in the Loan Agreement
1. Amendment
of the Loan Agreement.
Section
3.3(b) is hereby amended and rested in its entirety to read as
follows:
"3.3
(b) As
an
inducement to the Lenders and to the Leumi Guarantors assuming any part of
the
Leumi Debt to convert at least 50% (the “Conversion
Inducement Threshold”)
of
each their respective Loan amount or assumed Leumi Debt amount into ITAC Stock
in the event the ITAC/IXI Merger closes, subject and conditioned upon the
ITAC/IXI Merger becoming effective, ITAC shall issue pursuant to the combined
provisions of this Section 3.3(b) and the ITAC Certification, as soon as
practicable following the consummation of the ITAC/IXI Merger, to any Conversion
Participant meeting or exceeding the Conversion Inducement Threshold, warrants
(“ITAC
Warrants”)
to
purchase that number of ITAC Stock (as defined above) equal to the product
obtained by multiplying (A) each converted Dollar ($1.00) of each such
Conversion Participant’s Conversion Amount by (B) 0.0357. The parties agree
that, notwithstanding anything to the contrary in the definition of Conversion
Amount set forth above, for purposes of this Section 3.3(b) only, the term
"Conversion Amount" shall mean solely the principal amount (i.e. with no accrued
interest and other costs taken into account) of the Lender’s Note(s) and solely
the principal amount (i.e. with no accrued interest and other costs taken into
account) of the Leumi Debt assumed by the Leumi Guarantors (if any) such that,
in the event the entire principal amount of the Lender’s Note(s)and the entire
principal amount of the Leumi Debt assumed by the Leumi Guarantor are converted
into ITAC Stock, the maximum number of ITAC Stock purchasable under the ITAC
Warrants shall be 1,000,000 shares of ITAC Stock dividing 714,286 to the Lender
and 285,714 to the Leumi Guarantors. The
parties further agree that Conversion Participants wishing to utilize the
benefit conferred by this Section 3.3(b) (combined with the ITAC Certification)
shall be required to convert a Conversion Amount such that the foregoing formula
will result a whole number of ITAC Warrant shares. The ITAC Warrants shall
be in
the form attached hereto as Exhibit E. Notwithstanding anything to the contrary
herein, the Company and the Parent Guarantor represent and warrant that the
benefit to the Leumi Guarantors described in this Section 3.3(b) and conferred
by any similar section in the Leumi Guarantors’ Agreement, shall be
pre-conditioned upon the Leumi Guarantors assuming collectively at least 50%
of
the Leumi Debt."
2. Amendment
of Company Disclosure Schedule.
The
List of Charges/Liens in Section 4.13 of the Company Disclosure Schedule is
hereby amended and restated in its entirety to read as set forth in Schedule
Iattached hereto.
3. No
Other Modifications.
Except
as expressly set forth herein, all other terms and conditions of the Loan
Agreement shall remain in full force and effect.
4. Miscellaneous.
4.1 Counterparts;
Fax Signatures.
This
Amendment may be executed in counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the same Amendment.
Originally executed counterparts may be delivered by facsimile and any such
delivery shall be valid for all purposes as delivery of a manual signature
and
equally admissible in any legal proceedings to which any of the Company, the
Prior Purchasers, or Third Closing Purchasers is a party.
4.2 Severability.
If any
provision of this Amendment or the application thereof, shall for any reason
and
to any extent be determined by a court of competent jurisdiction to be invalid
or unenforceable under applicable law, the remaining provisions of this
Amendment shall be interpreted so as best to reasonably effect the intent of
the
parties hereto.
4.3 Entire
Agreement.
This
Amendment, together with the Loan Agreement and all exhibits hereto and thereto,
constitute the entire understanding and agreement of the parties with respect
to
the transactions contemplated herein and supersede all prior and contemporaneous
understandings and agreements, whether written or oral, with respect to such
transactions.
4.4 Governing
Law;
Forum.
This
Amendment shall be governed in all respects by Section 9.10 and 9.13 of the
Loan
Agreement.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this First Amendment to Loan
Agreement as of the date first written above.
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IXI
MOBILE (R&D), LTD.
|
|
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By:/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
CFO
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IXI
MOBILE, INC.
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By:/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
CFO
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[Signature
Page to First Amendment to Loan Agreement]
IN
WITNESS WHEREOF, the parties have executed this First Amendment to Loan
Agreement as of the date first written above.
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SOUTHPOINT
MASTER FUND, LP
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By:
Southpoint
GP, LP, its general partner
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By: Southpoint
GP, LLC
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By: /s/
Xxxxxx X. Xxxxx
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Name: Xxxxxx
X. Xxxxx
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Title: Manager
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By: /s/
Xxxx X. Xxxxx, XX
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Name: Xxxx
X. Xxxxx, XX
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Title: Manager
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[Signature
Page to First Amendment to Loan Agreement]
Schedule
I
"List
of Charges/Liens
|
Name
of company and place of charge registration
|
Serial
number
|
Date
of creation of charge
|
Date
of registration of charge
|
Name
of Lender
|
Sum
secured by charge
|
Description
of charge and attached property
|
Special
terms
|
|
IXI
Mobile, Inc.
USA
|
00000000
|
-
|
August
11, .2003
|
Venture
Lending and Leasing III Inc.
|
Unlimited
|
All
of the Company's assets
|
-
|
|
IXI
Mobile, Inc.
USA
|
00000000
|
-
|
October
28, .2004
|
Venture
Lending and Leasing IV Inc.
|
Unlimited
|
All
of the Company's assets
|
-
|
|
IXI
Mobile (R&D) Ltd. USA
|
0000000000
|
-
|
August
11, 2003
|
Venture
Lending and Leasing III Inc.
|
Unlimited
|
All
of the mortgaging Company's assets
|
-
|
|
IXI
Mobile (R&D) Ltd. USA
|
0000000000
|
-
|
October
29, 2004
|
Venture
Lending and Leasing IV Inc.
|
Unlimited
|
All
of the mortgaging Company's assets
|
-
|
|
IXI
Mobile (R&D) Ltd
Israel
|
2
|
August
8, 2003
|
August
25, .2003
|
Venture
Lending and Leasing III Inc.
|
Unlimited
|
In
accordance with the related agreement
|
May
not be mortgaged or transferred without the consent of the charge
holder
|
|
IXI
Mobile (R&D) Ltd
Israel
|
3
|
September
15, 2003
|
October
19, 2003
|
First
International Bank, Israel
|
Unlimited
|
All
Company's rights to receive funds from the Bank on account of specified
deposits, including all incomes accrued in the First International
Bank of
Israel, Ltd
|
May
not be mortgaged or transferred without the consent of the charge
holder
|
|
IXI
Mobile (R&D) Ltd
Israel
|
4
|
September
1, 2004.
|
September
20, 2004.
|
Bank
Leumi Le Israel
|
Unlimited
|
All
rights and funds to the benefit of the accounts and deposits specified
in
annex A' and\or to the benefit of any substitute accounts and deposits,
as
well as all accrued income and benefits resulting from the deposit
account
|
May
not be mortgaged or transferred without the consent of the charge
holder
|
|
IXI
Mobile (R&D) Ltd
Israel
|
5
|
October
22, 2004.
|
December
13, 2004
|
Venture
Lending and Leasing III Inc.
|
Unlimited
|
Floating
and standing charge on all of the Company's assets as detailed
in the
related mortgage agreement and subject to the terms of the 1984
law for
the encouragement of Industry
|
May
not be mortgaged or transferred without the consent of the charge
holder
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IXI
Mobile, Inc.
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N/A
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N/A
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Safra
Bank
|
$75,000
|
Security
Deposit
|
IXI
Mobile, Inc.
|
Reference
is made to the recorded liens on the Company’s Trademarks, which will be
terminated in a timely manner following the Closing."
