NOTE MODIFICATION AGREEMENT
EXHIBIT
10.1
THIS NOTE MODIFICATION AGREEMENT
(this “Agreement”) is
entered into this 7th day of May, 2009 (the “Effective Date”) by
and between Dancing Bear Investments, Inc., a Florida corporation (“Holder”), and
xxxxxxxx.xxx, inc., a Delaware corporation (“Maker”).
A. Maker
is the maker under that certain revolving promissory note dated June 6, 2008
(the “Note”) in
the maximum principal amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000), which
Note is held by Holder.
B. The
Note was issued pursuant to that certain Revolving Loan Agreement dated as of
June 6, 2008 between the Holder and Maker (the “Loan
Agreement”).
C. The
Note has a Maturity Date of June 6, 2008.
D. Maker
and Holder have agreed to extend the Maturity Date until five (5) business days
after demand is made for payment at the discretion of the Holder, as more
specifically provided for in this Agreement.
NOW THEREFORE, IN CONSIDERATION OF
TEN DOLLARS ($10.00) and other good and valuable considerations, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Maker and
Holder hereby agree as follows:
1. Recitals; Capitalized
Terms. The foregoing Recitals are true and correct and are
incorporated herein by this reference, as if set forth in their
entirety. Any capitalized term not defined in this Agreement shall
have the meaning ascribed to it in the Note and/or the Loan Agreement, as
applicable.
2. Extension of Maturity Date;
Demand Obligation. From and after the original Maturity Date of June 6,
2009, the principal amount of the Note shall be due and payable on the earlier
of (i) five business days following any DEMAND for payment, which DEMAND may be
made by the Holder at anytime, or (ii) the occurrence of an “Event of Default”
as defined in the Loan Agreement (as applicable, the “Maturity
Date”). Accrued interest, at the rate provided in the Note,
shall be due and payable on the Maturity Date.
3. Estoppel.
(a) Balances under the
Note. Maker and Holder agree that the current outstanding principal
balance due under the Note is $500,000 and that the accrued and unpaid interest
on such amount as of May 7, 2009 is $40,630.
(b) Ratification; No Claims; No
Defaults. As of the Effective Date of this Agreement, the Note
and Loan Agreement are each ratified and confirmed as written, except as
modified by this Agreement. Holder acknowledges and agrees that no
Default or Event of Default has occurred under the Note or Loan
Agreement.
4. Cooperation. Maker
and Holder agree from time to time, as may be reasonably requested by the other,
to execute and deliver such further instruments and documents and do all matters
and things which may be convenient or necessary to more effectively and
completely carry out the intention on the Note, the Loan Agreement and this
Agreement.
5. Amendments. This
Agreement, the Loan Agreement, the Note and any other loan documents may not be
modified, amended, changed or terminated orally, but only by an agreement in
writing executed by Maker and Holder. Except as specifically modified
in this Agreement, the remaining terms of the Loan Agreement and Note shall
remain in full force and effect without modification.
IN WITNESS WHEREOF, Maker and
Holder have each executed and delivered this Agreement as of the Effective Date,
first above written.
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MAKER:
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xxxxxxxx.xxx,
inc.
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By:
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/s/ Xxxxxx X. Xxxxxxxx
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Its:
Chief Financial
Officer
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HOLDER:
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Dancing
Bear Investments, Inc.
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Its:
Treasurer
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