Exhibit 10.1
NOTE AMENDMENT AGREEMENT
This agreement ("Agreement") is by and among iLinc Communications,
Inc., a Delaware corporation ("iLinc" or the "Company"), [Note Holder Name] (the
"Note Holder"), and Cerberus Financial, Inc. (the "Note Agent") (all
collectively called the "Parties"), with this Agreement to be effective on the
closing of the Offering (the "Effective Date"). All capitalized terms used, but
not defined in this Agreement, have the meaning given to them in the Unit
Purchase and Agency Agreement that was executed by and among the Parties on
April 19, 2004 (the "Unit Purchase Agreement").
WHEREAS, the Note Holder participated in an offering by iLinc to
purchase a unit that consisted of a senior unsecured promissory note (the
"Senior Note"), a copy of which is attached as Exhibit "A," and common stock of
the Company and simultaneously executed the Unit Purchase Agreement;
WHEREAS, the Parties now wish to modify the terms of the Senior Note
and the Unit Purchase Agreement as provided herein;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein and other good and valuable consideration, the
undersigned Parties do hereby agree as follows:
1. All references in the Senior Note, and all references in the Unit Purchase
Agreement, to the "Maturity Date" and the "due date" shall be amended
hereby to reflect the new Maturity Date and due date of July 15, 2010 (the
"Maturity Date").
2. In consideration for the extension of the Senior Note term, all references
in the Senior Note, and all references in the Unit Purchase Agreement
(specifically Section 3.1(a) of the Unit Purchase Agreement) to the
"interest rate" or the "Stated Rate," shall be amended and increased to a
new "Stated Rate" of twelve percent (12%) per annum, with the new increased
Stated Rate to begin to accrue under the amended Senior Note on January 16,
2007, and continue thereafter at that increased Stated Rate until maturity
or the Senior Note is fully paid.
3. All other terms and provisions of the Senior Note and the Unit Purchase
Agreement not specifically amended by this Agreement shall remain unchanged
and without amendment.
4. Note Holder hereby represents and warrants to iLinc that Note Holder: is an
"accredited investor" as that term is defined in Rule 501(a) of Regulation
D promulgated under the 1933 Act; confirms that the financial and investor
suitability information provided in the subscription agreement executed
with the original purchase of the Note remains substantially true and
correct; has not assigned, pledged or otherwise in any manner whatsoever,
sold or transferred, any right, title, or interest in the Senior Note; has
the authority to execute this Agreement and is legally competent to execute
this Agreement; has obtained any and all necessary consents to give full
effect to this Agreement; and has relied solely and completely upon its own
judgment.
5. The Parties agree to cooperate fully and execute any and all supplementary
documents and to take all additional actions which may be necessary to give
full force and effect to the terms and intent of this Agreement. To the
extent that the provisions of this Agreement conflict with any provision of
the Senior Note or the Unit Purchase Agreement, then the provisions of this
Agreement shall control and supersede. The Parties represent each to the
other that this Agreement has been duly authorized, executed and delivered
and that it constitutes valid and binding obligations upon the Parties
hereto and upon their respective successors and assigns.
6. This Agreement shall become effective: (i) following execution by all of
the Parties in their respective signature spaces provided below, and (ii)
upon approval of this Agreement by holders representing more than fifty
percent (50%) of the outstanding principal balance of the Senior Notes.
IN WITNESS WHEREOF, the undersigned Parties have executed this
Agreement to be effective on the Effective Date.
[Note Holder Name]
By: /s/ Signature of Note Holder
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CERBERUS FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
ILINC COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
