Contract
Amendment,
dated September 17, 2008 (the “Amendment”)
to the
Promissory Note (the “Note”),
dated
December 21, 2007, of Xxxxx.xxx Group, Inc., (the “Maker”)
issued
to Xxxxxxx Investments, LLC (“Holder”
and
together with the Maker, the “Parties”).
Any
capitalized term used but not defined in this Amendment shall have the meaning
given to such term in the Note.
WHEREAS,
the Borrower and the Lender would like to amend the Note as provided herein.
NOW,
THEREFORE, pursuant to Section 5(e) of the Note, in consideration for the mutual
promises contained herein and for other good and valuable consideration the
sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Amendment
to Section 1 of the Note.
Effective as of the date hereof, Section 1 of the Note is hereby deleted in
its
entirety and replaced with the following:
1. Principal.
The
Principal Amount shall be payable in lawful money of the United States on the
earlier to occur of: (a) December 31, 2009 and (b) the date on which the Company
consummates an offering of debt or equity securities of the Maker with gross
cash proceeds to the Maker equal to or in excess of $5,000,000 (as applicable,
the “Maturity
Date”)
and
all other terms hereof, with interest on such amount at the rate calculated
in
the manner and payable at the times specified in this Note. Notwithstanding
the
foregoing, the Maker hereby agrees to make the following payments towards the
principal amount due hereunder: (i) commencing on April 30, 2009, a monthly
payment of $7,500 on or before the last day of each month, (ii) upon a Phase
1
Financing Event (as defined below), 10% of the principal and interest due
hereunder as of the date of such Phase 1 Financing Event, (iii) upon a Phase
2
Financing Event, an additional 10% of the principal and interest due hereunder
as of the date of such Phase 2 Financing Event. For the purposes hereof, the
term: (A) “Phase 1 Financing Event” shall mean a single or series of offerings
of debt or equity securities by the Company after September 17, 2008 resulting
in aggregate gross cash proceeds to the Company of more then $1,000,000 but
less
then $2,500,000 and (B) “Phase 2 Financing Event” shall mean a single or series
of offerings of debt or equity securities by the Company after September 17,
2008 resulting in aggregate gross cash proceeds to the Company of more then
$2,500,000 but less then $5,000,000 (including proceeds of any securities sold
as part of the Phase 1 Financing Event).
2. Amendment
to Section 5 of the Note.
Effective as of the date hereof, Section 5 of the Note is hereby deleted in
its
entirety and replaced with the following:
“5. Waiver
of Any Accrued Penalties.
To the
extent that the Holder may be entitled to any additional interest under such
Section 4 as a result of the occurrence of any event prior to September 17,
2008, the Holder hereby irrevocably and unconditionally waives any right Holder
may have to receive or collect any additional interest provided under Section
4
hereof.
3. No
Other Amendments.
Except
as expressly amended, modified and supplemented hereby, the provisions of the
Note, as amended, are and will remain in full force and effect and, except
as
expressly provided herein, nothing in this Amendment will be construed as a
waiver of any of the rights or obligations of the parties under the
Note.
4.
Conflicts
in Terms.
In the
event of any conflict in terms between this Amendment and the Note, the terms
and conditions of this Amendment shall prevail.
5. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of Florida (without giving effect to any conflicts of laws principles
there under).
6. Descriptive
Headings.
Descriptive headings are for convenience only and will not control or affect
the
meaning or construction of any provisions of this Amendment.
7. Counterparts.
This
Amendment may be executed in any number of identical counterparts, each of
which
will constitute an original but all of which when taken together will constitute
but one instrument.
8. Severability.
In the
event one or more of the provisions of this Amendment should, for any reason,
be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this
Amendment, and this Amendment shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained herein.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date set
forth above.
BORROWER:
Xxxxx.xxx
Group, Inc.
By:
/s/
Xxxx X. Xxxxx XX
Name:
Xxxx X. Xxxxx XX
Title:
Chief Executive Officer
LENDER:
Xxxxxxx
Investments, LLC
By:
/s/
Xxxxxx Xxxxxxxx
Name:
Xxxxxx
Xxxxxxxx
Title:
Chief
Financial Officer
