Exhibit 10.1
FIRST AMENDMENT TO
SECURED ADVANCE FACILITY LOAN AGREEMENT
This FIRST AMENDMENT TO SECURED ADVANCE FACILITY LOAN AGREEMENT (the
"First Amendment") is entered into as of this 1st day of July, 1999 (the "First
Amendment Date") by and between XYVISION ENTERPRISE SOLUTIONS, INC., a Delaware
corporation with its principal office at 00 Xxx Xxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxxx (the "Borrower"), and Xxxxxxx X. Xxxxxx as trustee of the Tudor
Trust u/d/t December 12, 1997, with an address of 000 Xxxxx Xxxxxxx Drive, 4th
Floor, Beverly Hills, California (the "Lender").
WHEREAS, the Borrower and the Lender are parties to a Secured Advance
Facility Loan Agreement dated December 31, 1998 (the "Agreement"); and
WHEREAS, the parties hereto desire to make amendments and modifications to
the Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and with the specific intent to
be bound hereby, the Borrower and the Lender hereby agree as follows:
1. Definitions. Each term in this First Amendment not otherwise defined
herein shall be deemed to have the same meaning ascribed to that term in
the Agreement.
2. Amendments to Agreement. The provisions of the Agreement are hereby
amended as follows:
(a) Section 1.9 of the Agreement is amended and restated in its
entirety as follows:
"1.9. Maximum Loan Amount. One Million Seven Hundred Fifty Thousand
Dollars ($1,750,000)."
(b) Section 1.13 of the Agreement is amended and restated in its
entirety as follows:
"1.13. Secured Promissory Note. The secured promissory note dated
July 1, 1999 in the amount of One Million Seven Hundred Fifty
Thousand Dollars ($1,750,000) executed by the Borrower and delivered
to the Lender."
(c) The first sentence of Section 3.1 of the Agreement is amended and
restated in its entirety as follows:
"All Liabilities shall be paid in full on June 30, 2001, unless
declared due and payable earlier by the Lender as set forth
herein."
(d) A new Section 3.4 is hereby added to the Agreement as follows:
"3.4. Equity Financing. Upon the consummation of an equity
financing covering the sale and issuance by the Borrower of shares
of its capital stock (the "Financing Stock") which results in
aggregate gross proceeds to the Company of not less than $3,000,000
(the "Financing"), the Lender shall, for a period of 180 days
following the consummation of the Financing, have the right, which
may or may not be exercised at the Lender's sole discretion, (i) to
convert $750,000 of the unpaid principal balance of the Liabilities
into such number of fully paid and non-assessable shares of
Financing Stock as is equal to the quotient obtained by dividing
(x) $750,000 by (y) the per share sale price of the Financing Stock
in the Financing, or (ii) to declare $750,000 of the unpaid
principal balance of the Liabilities immediately due and payable,
without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived. The Borrower shall give
the Lender at least five days' prior written notice of the
consummation of a Financing.
3. Effective Date. The changes effected by this First Amendment shall be
deemed to take effect as of the close of business on July 1, 1999.
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4. Except as amended hereby, the Agreement shall remain in full force
and effect and is in all respects hereby ratified and affirmed.
XYVISION ENTERPRISE SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
/s/ Xxxxxxx Xxxxxx
---------------------
Xxxxxxx Xxxxxx as trustee of
the Tudor Trust u/d/t
December 12, 1997 and not
individually
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SECURED PROMISSORY NOTE
$1,750,000
Boston, Massachusetts July 1, 1999
FOR VALUE RECEIVED, the undersigned XYVISION ENTERPRISE SOLUTIONS, INC., a
Delaware corporation with a principal place of business located at 00 Xxx
Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx (hereinafter, the "Borrower") promises to
pay in good U.S. funds to the order of Xxxxxxx X. Xxxxxx as trustee of the
Tudor Trust u/d/t dated December 12, 1997 (hereinafter, with any subsequent
holder, the "Lender"), at the Lender's principal office located at 000 Xxxxxxx
Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx, the Liabilities then outstanding under the
loan made by the Lender to the Borrower pursuant to that certain Secured
Advance Facility Loan Agreement executed between the Borrower and the Lender
dated December 31, 1998, as amended (the "Agreement"). Advances made pursuant
to the Agreement shall bear interest at the rate of eight (8) percent per annum
and after any Default at the rate of twelve (12) percent per annum, calculated
based upon a 360-day year and actual day months.
Interest at the rate set forth above shall be paid on the first day of
each calendar quarter in arrears on the outstanding principal amount of
Advances made under the Agreement, all as provided in Section 3.2 of the
Agreement. Unless a Default under the Agreement shall have occurred earlier,
the principal balance of this Note shall be due and payable in full on June 30,
2001.
To secure the obligations of the Borrower under this Note, the Lender has
been granted a security interest in substantially all of the Borrower's
presently existing and hereafter acquired property pursuant to that certain
Security Agreement executed between the Borrower and the Lender dated December
31, 1998 (the "Security Agreement"). All capitalized terms used herein, unless
otherwise defined herein, shall have the meanings ascribed to them in the
Security Agreement.
No delay or omission by the Lender in exercising or enforcing any of the
Lender's powers, rights, privileges, remedies or discretions hereunder shall
operate as a waiver thereof on that occasion nor on any other occasion.
After demand by the Lender, the Borrower will pay on demand all reasonable
attorneys' fees and out-of-pocket expenses incurred by the Lender in recovering
the amounts due to the Lender by the borrower hereunder.
This Note shall be binding upon the Borrower and upon its heirs,
successors, assigns, and representatives, and shall inure to the benefit of the
Lender and its successors, endorsees, and assigns.
This Note shall be governed by the laws of the Commonwealth of
Massachusetts and shall take effect as a sealed instrument.
XYVISION ENTERPRISE SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President
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