Note Modification Agreement
Exhibit 10.2
This agreement is dated as of July 2, 2007 (the “Agreement Date”), by and between Xxxxxx
Interactive Inc. (the “Borrower”) and JPMorgan Chase Bank, N.A. (the “Bank”). The provisions of
this agreement are effective on the date that this agreement has been executed by all of the
signers and delivered to the Bank (the “Effective Date”).
WHEREAS, the Borrower executed a Line of Credit Note as evidence of indebtedness in the original
face amount of Fifteen Million and 00/100 Dollars ($15,000,000.00), dated July 19, 2006 owing by
the Borrower to the Bank, as same may have been amended or modified from time to time (the “Note”),
which Note has at all times been, and is now, continuously and without interruption outstanding in
favor of the Bank; and,
WHEREAS, the Borrower has requested and the Bank has agreed that the Note be modified to the
limited extent as hereinafter set forth;
NOW THEREFORE, in mutual consideration of the agreements contained herein and for other good and
valuable consideration, the parties agree as follows:
1. ACCURACY OF RECITALS. The Borrower acknowledges the accuracy of the Recitals stated above.
2. MODIFICATION OF NOTE.
2.1 From and after the Effective Date, the provision in the Note captioned “Promise to Pay” is
hereby amended as follows:
Promise to Pay. On or before April 1, 2008, for value received, Xxxxxx Interactive Inc. (the
“Borrower”) promises to pay to JPMorgan Chase Bank, N.A., whose address is 0 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxx, XX 00000 (the “Bank”) or order, in lawful money of the United States of America,
the sum of Thirty-Seven Million and 00/100 Dollars ($37,000,000.00) or such lesser sum as is
indicated on Bank records, plus interest as provided below.
2.2 Each of the Related Documents is modified to provide that it shall be a default or an
event of default thereunder if the Borrower shall fail to comply with any of the covenants of the
Borrower herein or if any representation or warranty by the Borrower herein or by any guarantor in
any Related Documents is materially incomplete, incorrect, or misleading as of the date hereof. As
used in this agreement, the “Related Documents” shall include the Note and all loan agreements,
credit agreements, reimbursement agreements, security agreements, mortgages, deeds of trust, pledge
agreements, assignments, guaranties, or any other instrument or document executed in connection
with the Note or in connection with any other obligations of the Borrower to the Bank.
2.3 Each reference in the Related Documents to any of the Related Documents shall be a
reference to such document as modified herein.
3. RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL. The Related Documents are ratified and
reaffirmed by the Borrower and shall remain in full force and effect as they may be modified
herein. All real or personal property described as security in the Related Documents shall remain
as security for the Note and the obligations of the Borrower in the Related Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Bank that
each of the following representations and warranties made in the Note and Related Documents are
true and will remain true until maturity of the Note, termination of the other Related Documents
and payment and performance in full of all liabilities, obligations and debt evidenced by the Note
and other Related Documents:
4.1 No default or event of default under any of the Related Documents as modified hereby, nor
any event, that, with the giving of notice or the passage of time or both, would be a default or an
event of default under the Related Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the business, assets, affairs, prospects or
financial condition of the Borrower or any Guarantor or any subsidiary of the Borrower.
4.3 Each and all representations and warranties of the Borrower in the Related Documents are
accurate on the date hereof.
4.4 The Borrower has no claims, counterclaims, defenses, or setoffs with respect to the loan
evidenced by the Note or with respect to the Related Documents as modified herein.
4.5 The Note and the Related Documents as modified herein are the legal, valid, and binding
obligations of the Borrower, enforceable against the Borrower in accordance with their terms.
4.6 The Borrower, other than any Borrower who is a natural person, is validly existing under
the laws of the State of its formation or organization. The Borrower has the requisite power and
authority to execute and deliver this agreement and to perform the obligations described in the
Related Documents as modified herein. The execution and delivery of this agreement and the
performance of the obligations described in the Related Documents as modified herein have been duly
authorized by all requisite action by or on behalf of the Borrower. This agreement has been duly
executed and delivered by or on behalf of the Borrower.
5. BORROWER COVENANTS. The Borrower covenants with the Bank:
5.1 The Borrower shall execute, deliver, and provide to the Bank such additional agreements,
documents, and instruments as reasonably required by the Bank to effectuate the intent of this
agreement.
5.2 The Borrower fully, finally, and forever releases and discharges the Bank and its
successors, assigns, directors, officers, employees, agents, and representatives from any and all
causes of action, claims, debts, demands, and liabilities, of whatever kind or nature, in law or
equity, of the Borrower, whether now known or unknown to the Borrower, (i) in respect of the loan
evidenced by the Note and the Related Documents, or of the actions or omissions of the Bank in any
manner related to the loan evidenced by the Note or the Related Documents and (ii) arising from
events occurring prior to the date of this agreement.
5.3 The Borrower shall pay to the Bank:
5.3.1 All the internal and external costs and expenses incurred (or charged by internal
allocation) by the Bank in connection with this agreement (including, without limitation, inside
and outside attorneys, appraisal, appraisal review, processing, title, filing, and recording costs,
expenses, and fees).
6. EXECUTION AND DELIVERY OF AGREEMENT BY THE BANK. The Bank shall not be bound by this agreement
until (i) the Bank has executed this agreement and (ii) the Borrower performed all of the
obligations of the Borrower under this agreement to be performed contemporaneously with the
execution and delivery of this agreement.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Note and the
Related Documents as modified herein contain the complete understanding and agreement of the
Borrower and the Bank in respect of the loan and supersede all prior representations, warranties,
agreements, arrangements, understandings, and negotiations. No provision of the Note or the Related
Documents as modified herein may be changed, discharged, supplemented, terminated, or waived except
in a writing signed by the party against whom it is being enforced.
8. GOVERNING LAW AND VENUE. This agreement shall be governed by and construed in accordance with
the laws of the State of New York (without giving effect to its laws of conflicts). The Borrower
agrees that any legal action or proceeding with respect to any of its obligations under the Note or
this agreement may be brought by the Bank in any state or federal court located in the State of New
York, as the Bank in its sole discretion may elect. By the execution and delivery of this
agreement, the Borrower submits to and accepts, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of those courts. The Borrower waives
any claim that the State of New York is not a convenient forum or the proper venue for any such
suit, action or proceeding. This agreement binds the Borrower and its successors, and benefits the
Bank, its successors and assigns. The Borrower shall not, however, have the right to assign the
Borrower’s rights under this agreement or any interest therein, without the prior written consent
of the Bank.
9. COUNTERPART EXECUTION. This agreement may be executed in multiple counterparts, each of which,
when so executed, shall be deemed an original, but all such counterparts, taken together, shall
constitute one and the same agreement.
10. NOT A NOVATION. This agreement is a modification only and not a novation. In addition to all
amounts hereafter due under the Note and the Related Documents as they may be modified herein, all
accrued interest evidenced by the Note being modified by this agreement and all accrued amounts due
and payable under the Related Documents shall continue to be due and payable until paid. Except for
the above-quoted modification(s), the Note, any Related Documents, and all the terms and conditions
thereof, shall be and remain in full force and effect with the changes herein deemed to be
incorporated therein. This agreement is to be considered attached to the Note and made a part
thereof. This agreement shall not release or affect the liability of any guarantor, surety or
endorser of the Note or release any owner of collateral securing the Note. The validity, priority
and enforceability of the Note shall not be impaired hereby. References to the Related Documents
and to other agreements shall not affect or impair the absolute and unconditional
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obligation of the Borrower to pay the principal and interest on the Note when due. The Bank
reserves all rights against all parties to the Note.
| Borrower: | ||||||||||
| Address: | 00 Xxxxxxxxx Xxxxx Xxxxxxxxx, XX 00000 |
Xxxxxx Interactive Inc. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | CFO | ||||||||
| Authorized Signer | Title | |||||||||
| Date Signed: July 20, 2007 | ||||||||||
BANK’S ACCEPTANCE
The foregoing agreement is hereby agreed to and acknowledged.
| Bank: | ||||||||||
| JPMorgan Chase Bank, N.A. | ||||||||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||||||||
| Xxxxx Xxxxxxxxxx | VP | |||||||||
| Printed Name | Title | |||||||||
| Date Signed: July 23, 2007 | ||||||||||
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