EXHIBIT 10.8
SECOND AMENDMENT TO MASTER AGREEMENT
This Second Amendment to Master Agreement dated as of May ___, 2002
("SECOND AMENDMENT"), is executed by and among the parties set forth on the
signature pages hereto.
RECITALS
A. ORIGINAL AGREEMENT. The parties hereto are parties to that certain
Master Subordination, Waiver, Release and Indemnification Agreement, dated as of
March 27, 2002, as amended by that certain First Amendment to Master Agreement
and First Amendment to Software Security Agreement, dated as of April 11, 2002
(as amended, the "ORIGINAL AGREEMENT").
B. DEFINED TERMS. Each capitalized term that is not otherwise defined
herein shall have the meaning ascribed to such term in the Original Agreement.
C. ADDITIONAL OBLIGATIONS. Xxxxxx has agreed to lend up to an
additional $1,500,000 to Xxxxxx, to be evidenced by an increase in the stated
principal balance of, and an amendment to, the Xxxxxx Note.
D. AMENDMENTS. As a condition precedent to (i) advancing such
additional $1,500,000, Xxxxxx has required, inter alia, and the other parties
hereto have agreed, that the Original Agreement shall be amended as set forth
herein, and that as a result, all of the references in the Transaction Documents
shall be correspondingly amended.
E. MASTER AGREEMENT. The Original Agreement, as amended by this Second
Amendment, shall be the "MASTER AGREEMENT," as such term is used in the
Transaction Documents.
AGREEMENT
In consideration of the agreements contained herein, the parties hereto
hereby agree as follows:
Section 1. AMENDMENT OF XXXXXX NOTE. The Parties hereto
recognize and agree that, from and after the effective date hereof, the term
"XXXXXX NOTE" as used in any of the Transaction Documents, shall mean and refer
to that certain promissory note, dated as of March 27, 2002, executed by Xxxxxx,
payable to the order of Xxxxxx, in the original stated principal amount of
$1,600,000, as such stated principal amount has been increased to $1,800,000
pursuant to that certain First Amendment to Promissory Note (Xxxxxx), dated as
of April 11, 2002, and as such stated principal amount has been further
increased to $3,300,000 pursuant to that certain Second Amendment to Promissory
Note (Xxxxxx) of even date herewith.
1
Section 2. AMENDMENT OF SENIOR INDEBTEDNESS AND OBLIGATIONS.
The parties hereto recognize and agree that, from and after the effective date
hereof, (a) the term "SENIOR INDEBTEDNESS," as used in Article III of the Master
Agreement, shall mean and refer to all amounts owing to Xxxxxx under (i) the
Original Xxxxxx Loan, (ii) the Xxxxxx Loan (as modified by the amendment to the
defined term "Xxxxxx Note" effected by this Second Amendment) and (iii) the
Lease, and (b) the term "OBLIGATIONS," as used in the Software Security
Agreement, shall include, INTER ALIA, amounts owing to Xxxxxx under (i) the
Xxxxxx Loan (as modified by the amendment to the defined term "Xxxxxx Note"
effected by this Second Amendment) and (ii) the Lease.
Section 3. CONFIRMATION OF AGREEMENTS AND REPRESENTATIONS.
Except as set forth on EXHIBIT A hereto, which exceptions could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect (as defined in the Xxxxxx Note), each party hereto confirms and
agrees to each of the covenants, representations, and warranties applicable to
such party set forth in Article VIII of the Master Agreement and each of the
other Transaction Documents as of the date hereof.
Section 4. EFFECT OF AMENDMENT. Except as expressly stated
herein or as otherwise expressly agreed by the parties thereto, (a) the
Transaction Documents are and shall be unchanged and remain in full force and
effect, and (b) this Second Amendment shall not constitute a waiver of any
Default or Event of Default (as such capitalized terms are defined in the Xxxxxx
Note), or a waiver of the right of Xxxxxx to insist upon compliance with any
term, covenant, condition, or provision of the Transaction Documents, as amended
hereby. Except as specifically stated herein, the execution and delivery of this
Second Amendment shall in no way release, harm or diminish, impair, reduce or
otherwise affect, the respective obligations and liabilities of the parties
under the Transaction Documents, all of which shall continue in full force and
effect.
Section 5. MISCELLANEOUS. This Second Amendment is a contract
made under and shall be construed in accordance with and governed by the laws of
the state of New York. This Second Amendment shall benefit and bind the parties
hereto and their respective assigns, successors and legal representatives. This
Second Amendment may be executed in two or more counterparts, and it shall not
be necessary that the signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument. All titles or
headings to the sections or other divisions of this Second Amendment are only
for the convenience of the parties and shall not be construed to have any effect
or meaning with respect to the other content of such sections, subsections or
the divisions, such other content being controlling as to the agreement between
the parties hereto.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXX FINANCIAL SERVICES, INC., a
North Carolina corporation
By:
----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
SDS MERCHANT FUND, L.P., a Delaware limited
partnership
By:
----------------------------------------
SDS Capital Partners, LLC, its general
partner
By:
--------------------------------------
Xxxxxx Xxxxx, Managing Member
DMG LEGACY INTERNATIONAL LTD., a
British Virgin Islands corporation
By:
----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
DMG LEGACY INSTITUTIONAL FUND,
LLC, a Delaware limited liability company
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
3
DMG LEGACY FUND, LLC, a Delaware limited
liability company
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
X. X. XXXXXX GROUP INC., a
Delaware corporation
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
X. X. XXXXXX, INC., a New
York corporation
By:
------------------------------------------
Name:
------------------------------------------
Title:
---------------------------------------
RELATED PARTIES:
---------------------------------------------
XXXXXX XXXXX
---------------------------------------------
XXXXXX XXXXX
---------------------------------------------
XXXXX XXXXX
---------------------------------------------
XXXX XXXXXXXXX
4
---------------------------------------------
XXXX XXXXXXXX
---------------------------------------------
XXXXXXX X. XXXXXX
---------------------------------------------
XXXXXXX XXXXXXX
---------------------------------------------
XXXXXXX XXXXX
MALIN GROUP MEMBERS:
LAN/WAN, INC.
By:
--------------------------------------------
Xxxxxx Xxxxx, President
ATLANTIC GROUP, INC.
By:
--------------------------------------------
Xxxxxx Xxxxx, President
KETER CORP.
By:
--------------------------------------------
Xxxxx Xxxxx, President
----------------------------------------------
XXXXXX XXXXX
----------------------------------------------
XXXXXXX X. XXXXXX
5
----------------------------------------------
XXXX XXXXXXXXX
6
EXHIBIT A
EXCEPTIONS TO REPRESENTATIONS OCCURRING
SINCE April 11, 2002
1
