SECOND AMENDMENT TO
FINANCING AGREEMENT
THIS SECOND AMENDMENT TO FINANCING AGREEMENT
("Amendment") is entered into as of the 8th day of September, 2000, by and among
UPGRADE INTERNATIONAL CORPORATION, a Florida corporation to be reincorporated as
a Washington corporation ("Upgrade"), UPGRADE ACQUISITION INC., a Delaware
corporation ("Sub"; Upgrade and Sub being sometimes referred to herein
collectively as the "New Parties"), PATHWAYS GROUP, INC., a Delaware corporation
("Company"), XXXXX X. XXXX, XX ("Xxxx"), XXXXXX MERCHANT PARTNERS GROUP LLC, a
Delaware limited liability company ("Xxxxxx"), HARVEST OPPORTUNITY PARTNERS LP,
a Delaware limited partnership ("Harvest"; Xxxxxx and Harvest being sometimes
referred to herein collectively as the "Original Lender"; Company, Xxxx, Xxxxxx
and Harvest being sometimes referred to herein collectively as the "Original
Parties"), THE XXXXXX X. XXXXXX 1991 TRUST (the "Xxxxxx Trust"), C. XXXXXXXX
XXXXXX ("Xxxxxx"), XXXXX X. XXXXXX ("Xxxxxx"; Xxxxxx, the Xxxxxx Trust, Xxxxxx
and Xxxxxx being sometimes referred to herein collectively as the "Exchange Note
Holders"), XXXXXX, in its capacity as Exchange Holder Agent, and XXXXXX, in its
capacity as Collateral Agent. All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Agreement (as
hereinafter defined).
RECITALS
A. The Original Parties entered into that Financing Agreement
dated as of June 30, 2000, as amended by Amendment No. 1 to Financing
Agreement, dated July 13, 2000 (the "Agreement") for the issuance to Original
Lender of senior secured promissory notes of the Company, on the terms and
conditions set forth in the Agreement. The Company and Xxxx represent and
warrant to deliver to Xxxxxx and its counsel duly executed counterparts of the
Transaction Documents as a condition to executing this Amendment.
B. The New Parties, and the Original Parties have now agreed to
amend the Agreement, as hereinafter set forth, to provide for the sale by the
Company of one or more additional senior secured promissory notes of the Company
to Upgrade and/or Sub, with the New Parties to have the same rights, including
the right to participate pari passu in the security for the Company's secured
promissory notes, as the rights granted the Original Lender in the Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
representations and covenants contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. Section 1.1 of the Agreement, "CERTAIN DEFINED
TERMS", is hereby amended to add the following definitions:
"ADDITIONAL LINE OF CREDIT", shall mean the additional line of
credit up to an aggregate principal amount of $5,000,000, to be
provided by the New Parties to the Company.
"ADDITIONAL LINE OF CREDIT NOTE" shall have the meaning set forth
in Section 3.5 of this Agreement.
"ADDITIONAL LINE OF CREDIT WARRANT" shall mean that Upgrade
Warrant to be issued contemporaneously with the execution of this
Amendment for up to 3,329,808 shares of Common Stock.
"CONVERSION AGREEMENT" shall mean that Conversion Agreement to be
entered into contemporaneously with the execution of the Amendment in
substantially the form of Exhibit A hereto.
"EXCHANGE HOLDER AGENT" shall mean Xxxxxx Merchant Partner Group,
LLC.
"EXCHANGE NOTE HOLDERS" shall mean Jolson, Meador, Xxxxxx and the
Xxxxxx Trust, and their successors and assigns.
"INITIAL UPGRADE WARRANT" shall mean that Upgrade Warrant to be
issued contemporaneously with the execution of this Amendment for
1,670,192 shares of Common Stock.
"UPGRADE WARRANTS" shall mean those Warrants, in substantially
the form of Exhibit B hereto, issued to Upgrade in connection with
monies borrowed by the Company from the New Parties pursuant to the
Additional Line of Credit Note described in Section 3.4
2. ADDITIONAL DEFINITIONS/INTERPRETATIONS.
2.1 The definition of "NOTE" or "NOTES" shall be amended to add
the following:
"Note" or "Notes" include additional Series A Senior Secured Note or
Notes of the Company, in substantially the form of Exhibit C attached
hereto, and shall include the Additional Line of Credit Note and any
notes issued in substitution or exchange therefor.
2.2 The definition of "WARRANT" shall be amended to add the
following: "Warrant includes the Upgrade Warrants."
2.3 Upon the Effective Date of this Amendment, the New Parties
shall be included in the term "Lender" as used in the Agreement.
2.4 Sections 2.5, 2.6, 3.1, 3.2, 3.3, 4.3, 5.2, 5.3, and 8.4 of
the Agreement are amended by replacing each occurrence of the term "the Lender"
with the term "Xxxxxx".
2.5 All capitalized terms used herein and not otherwise defined
herein shall have the same respective meanings set forth in the Agreement.
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3. ADDITIONAL LINE OF CREDIT. Section 3 of the Agreement, "LINE
OF CREDIT", is hereby amended by adding the following new sections:
3.4 ADDITIONAL LINE OF CREDIT. New Parties hereby agree to provide to
the Company an Additional Line of Credit in the maximum aggregate
principal amount of $5,000,000. Company acknowledges that as of the
date of this Amendment, Upgrade has already advanced $1,120,000 of
such Additional Line of Credit. The remainder of the Additional Line
of Credit shall be available, in one or more advances, as provided by
that certain Agreement and Plan of Reorganization (the "Merger
Agreement") dated as of September 8, 2000, among the New Parties and
the Company, to the Company at any time prior to the earlier of (x)
the Effective Time (as defined in the Merger Agreement), or (y)
delivery of a notice of termination under the Merger Agreement or the
termination thereof on its own terms. The New Parties shall not be
under any obligation to make any advances under the Additional Line of
Credit, now or in the future, until satisfaction of the following
conditions:
(a) the Company shall have delivered to Upgrade the
Additional Line of Credit Note in accordance with Section 3.5
hereof;
(b) the Company shall have delivered to Upgrade the Initial
Upgrade Warrant and the Additional Line of Credit Warrant
pursuant to and subject to the terms and conditions of Sections
5.4 and 5.5;
(c) the Company shall have delivered to Upgrade and Sub an
executed Conversion Agreement;
(d) the Company shall have delivered to Upgrade a First
Amendment to Security Agreement, in substantially the form of
Exhibit D hereto, executed by the Original Parties;
(e) no Event of Default shall have occurred and be continuing
and all of the Transaction Documents shall have been delivered to
Xxxxxx and its counsel, and all fees of Xxxxxx'x counsel shall
have been paid by the Company;
(f) with regard to each advance (other than the initial
$1,120,000) and subject to the limitation on advances described
in the Merger Agreement, the Company shall have delivered to
Upgrade (together with a copy thereof to Xxxxxx and its counsel)
a notice of borrowing, specifying the amount requested to be
borrowed, at least one Business Day prior to the requested
borrowing date; and
(g) all consents and the execution of all other documents
necessary to perfect the pari passu security interests of the
Original Lender, the Exchange Note Holders, Upgrade and Sub under
the Security Agreement, as amended, shall have been obtained.
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If the Company shall have satisfied the aforementioned conditions
precedent, notwithstanding Section 3.7 below, the New Parties
shall be obligated to make advances under the Additional Line of
Credit in accordance with the notices of borrowing received from
the Company.
3.5 ADDITIONAL LINE OF CREDIT NOTE. The Additional Line of Credit
shall be evidenced by a Note or Notes in the maximum aggregate
principal amount of $5,000,000 (the "Additional Line of Credit Note"),
in substantially the form of Exhibit C hereto. The Company shall
deliver the Additional Line of Credit Note to Upgrade (together with a
copy thereof to Xxxxxx and its counsel) prior to any additional
borrowing under the Additional Line of Credit. Any payments and
prepayment made on account of the principal of the Additional Line of
Credit Note shall be recorded by Upgrade or Sub, as the case may be,
on its books and endorsed by Upgrade or Sub, as the case may be, on
the schedule attached to the Additional Line of Credit Note or any
continuation thereof; but no failure by Upgrade or Sub, as the case
may be, to make, or any delay in making, such recording or endorsement
shall affect the obligations of the Company under this Agreement of
the Additional Line of Credit Note.
3.6 INTEREST RESERVE FOR ADDITIONAL LINE OF CREDIT. The Company hereby
agrees that Upgrade shall be authorized to reserve out of the
available Additional Line of Credit an amount not to exceed $500,000,
as an interest reserve, which amount shall be applied by Upgrade to
the payment of accrued but unpaid interest on the outstanding
Additional Line of Credit Note on the Maturity Date to the extent that
the Company shall not have otherwise paid the accrued interest on the
Maturity Date.
3.7 TRANSFER FROM UPGRADE TO SUB. Notwithstanding that Upgrade is the
named payee of the Additional Line of Credit Note, at Upgrade and
Sub's joint option, (i) Upgrade may transfer the Additional Line of
Credit Note to Sub and Sub shall thereafter make any advances required
under the Additional Line of Credit, or (ii) Sub shall make some or
all of the remaining advances under the Additional Line of Credit, in
which case the Company shall issue to Upgrade and Sub substitute
Additional Line of Credit Notes reflecting Upgrade and Sub's
respective advances in such principal amounts as Upgrade and Sub shall
jointly instruct Company (together with a copy thereof to Xxxxxx and
its counsel), upon the surrender of any Additional Line of Credit
Notes then outstanding. In the event Sub shall succeed to the original
Additional Line of Credit Note, or otherwise make advances under the
Additional Line of Credit, Sub shall be entitled to repayment of such
Additional Line of Credit Note and such other rights and remedies as
provided to the Parties under the Agreement, other than the right to
the Upgrade Warrants which shall remain with Upgrade.
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4. TERMS OF EXCHANGE NOTES. Section 4.2 is amended by deleting it
in its entirety and replacing it with the following text:
4.2 TERMS OF EXCHANGE NOTES. Each Exchange Note shall have the
same terms and conditions as the Initial Note and the Line of Credit
Note and shall be pari passu with such Notes and the Additional Line
of Credit Note.
5. ADDITIONAL LINE OF CREDIT WARRANTS. Section 5, "ISSUANCE OF
WARRANTS", is hereby amended by adding the following new sections:
5.4 INITIAL UPGRADE WARRANT Contemporaneously with the execution
of this Amendment, and in consideration of the $1,120,000 previously
advanced on the Additional Line of Credit, the Company shall issue to
Upgrade the Initial Upgrade Warrant to purchase up to an aggregate of
1,670,192 shares of Common Stock.
5.5 ADDITIONAL LINE OF CREDIT WARRANT. Contemporaneously with the
execution of this Amendment, the Company shall issue to Upgrade the
Additional Line of Credit Warrant to purchase up to an aggregate of
3,329,808 shares of Common Stock. Such Additional Line of Credit
Warrant shall become exercisable in tranches, in the same proportion
as the Company's borrowings under the portion of the Additional Line
of Credit not drawn upon as of the date of this Amendment (whether
borrowed from Upgrade or Sub) bear to the aggregate remaining
available principal amount under the Additional Line of Credit;
PROVIDED, HOWEVER, that for purposes of this Section 5.5 the amount of
the Additional Line of Credit reserved for payment of interest
pursuant to Section 3.5 hereof shall be deemed to be outstanding.
6. THE AGENT FOR THE EXCHANGE NOTE HOLDERS. The Agreement is
amended by adding the following new Section 11:
"Section 11. Agent for the Exchange Note Holders.
-----------------------------------------
11.1 Appointment, Powers and Immunities. Each Exchange Note Holder
------------------------------------
hereby irrevocably designates and appoints Xxxxxx, which designation
and appointment is coupled with an interest, as the agent (the
"Exchange Holder Agent") of such Exchange Note Holder under this
Agreement and the other Transaction Documents, and each Exchange Note
Holder irrevocably authorizes Xxxxxx Merchant Partners Group, LLC, as
the Exchange Holder Agent of such Exchange Note Holder, to take such
action on its behalf under the provisions of this Agreement and the
other Transaction Documents and to exercise such powers and perform
such duties as are expressly delegated to the Exchange Holder Agent by
the terms of this Agreement and the other Transaction Documents,
together with such other powers as are reasonably incidental thereto,
and to consult and engage counsel to assist it in its duties, which
shall be at the expense of the Company. Neither Exchange Holder Agent,
nor its affiliates and their officers, directors, employees and agents
shall: (a) have any duties or responsibilities to be
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a trustee for any Exchange Note Holder; (b) be responsible to the
Exchange Note Holders, for any recitals, statements, representations
or warranties contained in this Agreement, or in any certificate or
other document referred to or provided for in, or received by either
of them under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability, perfection or sufficiency
of this Agreement, any Note, any other Transaction Document or any
other document referred to or provided for herein or for any failure
by the Company to perform any of its obligations hereunder or
thereunder; (c) be required to initiate or conduct any litigation or
collection proceedings hereunder; and (d) be responsible for any
action taken or omitted to be taken by it hereunder or under any other
document or instrument referred to or provided for herein or in
connection herewith, except for its own gross negligence or willful
misconduct. Exchange Holder Agent may employ agents, counsel and
attorneys-in-fact (all at the expense of the Company) and shall not be
responsible for the negligence or misconduct of any such agents,
counsel or attorneys-in-fact it selects with reasonable care. Subject
to the foregoing, the Exchange Holder Agent shall, on behalf of the
Exchange Note Holders, exercise any and all rights, powers and
remedies of the Exchange Note Holders under this Agreement or any of
the other Transaction Documents, including the giving of any consent
or waiver or the entering into of any amendment.
11.2 Reliance by Exchange Holder Agent. Exchange Holder Agent shall be
---------------------------------
entitled to rely upon any certification, notice or other communication
(including any communication by telephone, telex, telegram or cable)
believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper person or persons, and upon advice
and statements of legal counsel, independent accountants and other
experts selected by Exchange Holder Agent (all at the expense of the
Company). As to any matters not expressly provided for by this
Agreement, Exchange Holder Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Exchange Note Holders (including Exchange
Holder Agent in its capacity as an Exchange Note Holder) holding in
the aggregate 50% of the sum of the amounts outstanding under the
Exchange Notes, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on the Exchange Note Holders.
11.3. Rights as a Lender. Xxxxxx shall have the same rights and powers
------------------
hereunder as any other Lender and may exercise the same as though it
were not acting as the Exchange Holder Agent.
11.4 Indemnification. The Exchange Note Holders agree to indemnify
----------------
Exchange Holder Agent ratably in accordance with the percentages held
by the Exchange Note Holders of the Exchange Notes for any and all
liabilities, obligations, losses, damages, penalties, action, claims,
judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted
against Exchange Holder Agent in its capacity as Exchange Holder Agent
in any way relating to or arising out of this
- 6 -
Agreement, any other Transaction Document or any other document
contemplated by or referred to herein or the transactions contemplated
by or referred to herein or therein or the enforcement of any of the
terms of this Agreement, any other Transaction Document or of any such
other documents, provided that no Exchange Note Holder shall be liable
for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified.
11.5 Resignation of Exchange Holder Agent. The Exchange Holder Agent
------------------------------------
and any successor Exchange Holder Agent, as the case may be, may
resign as Exchange Holder Agent hereunder and be discharged from all
other duties and obligations hereunder at any time upon giving written
notice to the Exchange Note Holders and the Company."
7. COLLATERAL AGENT. The Agreement is amended by adding the
following new Section 12:
"Section 12. Collateral Agent.
------------------
12.1 Appointment and Authorization. Each Lender and Exchange Note
-------------------------------
Holder irrevocably appoints and authorizes the Xxxxxx Merchant
Partners Group LLC (the "Collateral Agent") to take such action as
agent on its behalf and to exercise such powers under the Security
Agreement and the Intellectual Property Security Agreement as are
delegated to it by the terms hereof or thereof, together with all such
powers as are reasonably incidental thereto, and to consult with and
engage counsel to assist it in its duties (all at the expense of the
Company). Each Lender and Exchange Note Holder hereby irrevocably
grants the Collateral Agent or its designated agent, if any, an
irrevocable power of attorney, with full power of substitution,
coupled with an interest, at any time and from time to time, to take
in the name of such Lender or Exchange Note Holder all actions with
respect to any Collateral (as such term is defined in the Security
Agreement and Intellectual Property Security Agreement) which the
Collateral Agent may deem necessary or advisable to realize upon the
security interests in any Collateral. Each Lender and Exchange Note
Holder authorizes the Collateral Agent to execute and deliver any
documents and instruments contemplated by the Security Agreement and
Intellectual Property Security Agreement. Collateral Agent may employ
agents, counsel and attorneys-in-fact (all at the expense of the
Company) and shall not be responsible for the negligence or misconduct
of any such agents, counsel or attorneys-in-fact it selects with
reasonable care.
12.2 Reliance by Collateral Agent. The Collateral Agent shall be
------------------------------
entitled to rely upon any certification, notice or other communication
(including any communication by telephone, telex, telegram or cable)
believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper person or persons, and upon advice
and statements of legal counsel, independent accountants and other
experts selected by the Collateral Agent (all at the expense of the
Company). As to any matters not expressly provided for by this
Agreement,
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the Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Lenders and the Exchange Note Holders
(including Collateral Agent in its capacity as Lender and Exchange
Note Holder) holding in the aggregate 50% of the sum of the amounts
outstanding under the Initial Note, Line of Credit Note, Additional
Line of Credit Note and Exchange Notes, and such instructions and any
action taken or failure to act pursuant thereto shall be binding on
the Lenders and Exchange Note Holders.
12.3 Rights as a Lender. Xxxxxx shall have the same rights and powers
------------------
hereunder as any other Lender and may exercise the same as though it
were not acting as the Collateral Agent.
12.4 Indemnification. The Lenders and Exchange Note Holders agree to
---------------
indemnify the Collateral Agent ratably in accordance with the
percentages held by the Lenders and Exchange Note Holders of the Notes
for any and all liabilities, obligations, losses, damages, penalties,
action, claims, judgments, suits, costs, expenses or disbursements of
any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Collateral Agent in its capacity as Collateral
Agent in any way relating to or arising out of this Agreement, any
other Transaction Document or any other document contemplated by or
referred to herein or the transactions contemplated by or referred to
herein or therein or the enforcement of any of the terms of this
Agreement, any other Transaction Document or of any such other
documents, provided that no Lender or Exchange Note Holder shall be
liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified.
12.5 Limitations on Collateral Agent's Rights. Notwithstanding the
-----------------------------------------
foregoing, Xxxxxx'x rights as Collateral Agent shall not extend to (a)
the rights of the New Parties under the Merger Agreement or the
Conversion Agreement, (b) the rights of any Lenders pursuant to any
Warrants, or (c) the legal remedies of the New Parties under the
Additional Line of Credit Note other than those remedies that pertain
to the Collateral (as such term is defined in the Security Agreement).
12.6 Resignation of Collateral Agent. The Collateral Agent and any
--------------------------------
successor Collateral Agent, as the case may be, may resign as
Collateral Agent hereunder and be discharged from all other duties and
obligations hereunder at any time upon giving 15 days' written notice
to the Company, the Lenders and the Exchange Note Holders. During such
15 day period, the Lenders and Exchange Note Holders shall jointly
designate a successor Collateral Agent."
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8. COMPANY REPRESENTATIONS. As of the date of this Amendment, the
Company hereby represents and warrants to Original Lender, Upgrade and Sub the
representations and warranties set forth in Section 6.1.
9. LENDER REPRESENTATIONS.
8.1 As of the date of this Amendment, each of Upgrade and Sub makes
each of the representations and warranties set forth in Sections
6.2(b), (d), (e), (f), and (g).
8.2 Each of Upgrade and Sub makes the following representations and
warranties for the benefit of Original Lender and the Company:
(a) Each of Upgrade and Sub is a corporation, duly organized
under the laws of its jurisdiction of incorporation. Each of
Upgrade and Sub has the power to execute, deliver and perform
this Agreement and to consummate the transactions contemplated
hereby. This Agreement constitutes the valid and binding
obligation of the New Parties, enforceable against the New
Parties in accordance with its terms, except as such
enforceability may be subject to bankruptcy, insolvency,
moratorium and other similar laws affecting creditors' rights
generally and to general equitable principles.
(b) Each of Upgrade and Sub is an "accredited investor" within
the meaning of Regulation D under the Act.
(c) Except as set forth in this Agreement, the other Transaction
Documents, the Merger Agreement and the other agreements executed
in connection with the Merger Agreement, no representations or
warranties have been made to Upgrade and Sub by the Company or
any agent, employee or affiliate of the Company. Each of Upgrade
and Sub has relied solely on the representations, warranties,
covenants and agreements of the Company in this Agreement, the
other Transaction Documents, the Merger Agreement, the other
agreements executed in connection with the Merger Agreement, and
on the Lender's independent investigation in making its decision
to acquire the Additional Line of Credit Note(s) and the Upgrade
Warrants.
10. CONDITIONS PRECEDENT. The New Parties' obligations hereunder
shall be subject to satisfaction of each of the conditions described in Section
7.1 of the Agreement. In addition, The Original Parties shall have executed and
delivered to Upgrade the First Amendment to Security Agreement, a copy of which
is attached hereto as Exhibit D, and the Company shall have executed and
delivered to Upgrade each of the instruments and agreements required to be
provided to Upgrade and Sub pursuant to this Amendment and fulfilled such other
obligations that the Company may have hereunder to the Original Lender.
11. WAIVER OF PREEMPTIVE RIGHTS. With regard to any Warrants
issued to Upgrade hereunder, or any stock purchased or received by the New
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Parties pursuant to the terms of the Merger Agreement or the Conversion
Agreement, each of the Original Lenders hereby waives any preemptive right they
may have pursuant to the terms of Section 8.7 of the Agreement.
12. CONVERSION AGREEMENT. Each of the Original Parties hereby
acknowledges that Upgrade, Sub and the Company intend to execute, the Conversion
Agreement contemporaneously with the execution and delivery of this Amendment.
The Original Lenders, by executing this Amendment, grant any consent to such
Conversion Agreement as may be required under the Agreement.
13. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of California.
14. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment by signing
any such counterpart.
EXCEPT AS HEREIN PROVIDED, the terms of the Agreement shall remain in
full force and effect and Upgrade and Sub shall have all the rights, privileges,
immunities, and obligations as are granted to Lender by the Agreement including
but not limited to such rights as to Warrants and Notes as provided to the
Original Lenders hereunder. In the event of any conflict between the terms of
the Agreement and the Amendment, the terms of the Amendment shall prevail. The
terms of Section 10 of the Agreement other than Section 10.2 shall govern this
Amendment as though incorporated herein in full.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written (the "Amendment
Effective Date")
XXXXX X. XXXX, XX
/s/
------------------------------------
Xxxxx X. Xxxx, XX
Address:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
COMPANY:
THE PATHWAYS GROUP, INC.
By: /s/
---------------------------------
Xxxxx X. Xxxx, XX, President
Address:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
LENDERS:
XXXXXX MERCHANT PARTNERS GROUP LLC
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Managing Member
Address:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written (the "Amendment
Effective Date")
LENDERS, CONTINUED:
HARVEST OPPORTUNITY PARTNERS L.P.
By: JMP Asset Management Group, LLC
General Partner
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Managing Member
Address:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No: (000) 000-0000
Telephone No: (000) 000-0000
UPGRADE INTERNATIONAL CORPORATION
By: /s/
---------------------------------
Xxxxxx Xxxxx, President
UPGRADE ACQUISITION, INC.
By: /s/
---------------------------------
Xxxxxx Xxxxx, President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written (the "Amendment
Effective Date")
EXCHANGE NOTE HOLDERS:
XXXXXX MERCHANT PARTNERS GROUP LLC
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Managing Member
Address:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
THE XXXXXX X. XXXXXX 1991 TRUST
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address:
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
C. XXXXXXXX XXXXXX
/s/
------------------------------------
Address:
0 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: Not available
Telephone No.: (000) 000-0000
XXXXX X. XXXXXX, XX.
/s/
------------------------------------
Address:
X.X. Xxx 00
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Telecopier No: Not available
Telephone No.: (000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written (the "Amendment
Effective Date")
COLLATERAL AGENT:
XXXXXX MERCHANT PARTNERS GROUP LLC
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Managing Member
Address:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
EXCHANGE HOLDER AGENT:
XXXXXX MERCHANT PARTNERS GROUP LLC
By: /s/
---------------------------------
Xxxxxx X. Xxxxxx, Managing Member
Address:
Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No: (000) 000-0000
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