SECOND AMENDMENT TO EXCHANGEABLE SENIOR SUBORDINATED NOTE
This
SECOND AMENDMENT TO
EXCHANGEABLE SENIOR SUBORDINATED NOTE (this “Amendment”) is
made and entered into as of July 31, 2008, by and among PSi Technologies,
Inc., a corporation
organized and existing under the laws of the Philippines (the “Company”),
and Xxxxxxx Xxxxx Global Emerging Markets Partners, LLC, a limited liability
company organized and existing under the laws of the State of Delaware (the
“Holder”).
W
I T N E S S E T H:
A. Reference
is made to that certain USD$4,000,000 10.00% Exchangeable Senior Subordinated
Note dated as of July 3, 2003, executed by the Company in favor of the Holder,
as amended by that certain First Amendment to Exchangeable Senior Subordinated
Note dated as of May 30, 2008, by the Company and the Holder (as the same may be
further amended, restated, modified, or supplemented from time to time, the
“Note”);
B. The
Company has requested that the Holder agree to amend the Note to extend the
Maturity Date to August 15, 2008. The Holder has informed the Company
that it is willing to permit such amendment and modification, subject to the
terms and conditions hereinafter set forth; and
C. The
parties to the Note desire to amend the Note by this Amendment to reflect such
agreements, modifications and amendments.
NOW, THEREFORE, in
consideration of the mutual promises herein contained, and for other valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties hereto agree as follows:
1. Defined
Terms. Unless otherwise specifically defined herein, each term
used herein that is defined in the Note shall have the meaning assigned to such
term in the Note.
2. Amendment. Subject
to Section
3 hereof, the phrase “July 31, 2008” as the definition of “Maturity Date”
in the initial paragraph of the Note is amended and restated to read “August 15,
2008”.
3. Effectiveness. It
shall be a condition precedent to the effectiveness of this Amendment that each
of the following conditions are satisfied:
a. Amendment. The
Holder’s receipt of this Amendment, duly executed by the
Company.
b. No Event of
Default. No Event of Default shall have occurred and be
continuing or shall result from this Amendment.
4. Representations
and Warranties. The Company hereby represents and warrants to
the Holder as follows:
a. Due Authorization and
Enforceability. It has the authority to execute this
Amendment, and this Amendment has been duly authorized, executed and delivered
by it, and this Amendment constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
b. No Event of
Default. On and as of the date hereof, no Event of Default
exists.
5. Miscellaneous.
a. No Other
Amendments. Except as provided in Section 2 above, nothing
contained in this Amendment shall amend or otherwise modify the terms of the
Note, which shall remain in full force and effect.
b Limitation on
Agreements. The amendments set forth herein are limited
precisely as written and shall not be deemed: (i) to be a consent under or
waiver of any other term or condition in any other agreement between the Company
and the Holder; or (ii) to prejudice any right or rights which the Company or
the Holder now has or may have in the future under, or in connection with the
Note, as amended hereby, or any of the other agreements referred to herein or
therein. From and after the date hereof, all references in any other
agreement between the Company and the Holder to the Note shall be
deemed to be references to the Note after giving effect to this Amendment, and
each reference to “hereof,” “hereunder,” “herein” or “hereby” and each other
similar reference and each reference to “this Note” and each other similar
reference contained in the Note shall from and after the date hereof refer to
the Note as amended hereby.
c. Ratification. The
Company hereby ratifies, confirms and agrees that,
following the effectiveness of this Amendment, the Note or any of the other
documents or actions referred to herein or therein shall continue to be binding
against each party and remain in full force and effect.
d. Headings. The Section
headings in this Amendment are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this Amendment or any
provision hereof.
e. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute but
one document. Delivery of an executed counterpart of a signature page
to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
f. GOVERNING LAW;
JURISDICTION. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE
OF NEW YORK. IN ANY ACTION OR PROCEEDING ARISING OUT OF, RELATED TO,
OR IN CONNECTION WITH THIS AMENDMENT, THE PARTIES HERETO CONSENT TO BE SUBJECT
TO THE JURISDICTION AND VENUE OF (A) THE SUPREME COURT OF THE STATE OF NEW YORK
IN AND FOR THE COUNTY OF NEW YORK, AND (B) THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK. THE PARTIES HERETO CONSENT TO
SERVICE OF PROCESS IN ANY ACTION COMMENCED HEREUNDER BY ANY METHOD OR SERVICE
ACCEPTABLE UNDER FEDERAL LAW OR THE LAWS OF THE STATE OF NEW YORK.
Remainder
of Page Intentionally Left Blank.
Signature
Page(s) Follow(s).
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed as of the day and
year first above written.
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COMPANY:
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| PSI TECHNOLOGIES, INC. | ||||
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By:
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/s/
Xxxxxx X. Xxxxx, Xx.
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Name:
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Xxxxxx X. Xxxxx, Xx. | |||
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Title:
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President and Chief Executive Officer | |||
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HOLDER:
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| XXXXXXX XXXXX GLOBAL EMERGING MARKETS PARTNERS, LLC | ||||
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By:
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Xxxxxxx
Xxxxx Global Emerging Markets Partners, L.P., as its Managing
Member
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By:
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Xxxxxxx
Xxxxx Global Capital, L.L.C., as its General Partner
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| By: |
Xxxxxxx
Xxxxx Global Private Equity, Inc., as its Managing Partner
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By:
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/s/
Xxxxxxxxxxx
Birdsak
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Name:
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Xxxxxxxxxxx Birdsak | |||
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Title:
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Managing Director | |||
