EXHIBIT 10.1
AMENDMENT AGREEMENT
This Amendment Agreement (the "Agreement"), dated as of May 19, 2006,
is by and Among Velocity Asset Management Inc., a Delaware corporation (the
"Company"), X. Xxxxxx Inc., a New Jersey corporation (together with the Company,
the "Sellers") and DKR Soundshore Oasis Holding Fund Ltd. (the "Holder").
WHEREAS, the Holder holds $1,800,000 principal amount of the Sellers'
10% Convertible Secured Debentures due April 27, 2007 (the "Debentures") and a
Common Stock Purchase Warrant (the "Warrant") to purchase up to 200,000 shares
of common stock of the Company (the "Common Stock"), which Debentures and
Warrants were issued pursuant to that certain Securities Purchase Agreement,
dated October 27, 2005 (the "Purchase Agreement") and the other documents
entered into in connection therewith (the "Transaction Documents"); and
WHEREAS, the parties wish to amend certain terms of the Debenture,
Warrant and Transaction Documents.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in
this Agreement, and for good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the Sellers and the Holder agree as follows:
ARTICLE 1
DEFINITIONS
Section 1. Definitions. Capitalized terms not defined in this
Agreement shall have the meanings ascribed to such terms in the Purchase
Agreement.
ARTICLE II
AMENDMENT OF SECURITIES
Section 2.1. Amendment to Maturity Date. The second paragraph of the
first page of the Debenture is hereby amended and restated as follows: "FOR
VALUE RECEIVED, the Sellers, jointly and severally, promise to pay to DKR
Soundshore Oasis Holding Fund Ltd. or its registered assigns (the "Holder"), or
shall have paid pursuant to the terms hereunder, the principal sum of $1,800,000
by June 27, 2007, or such earlier date as this Debenture is required or
permitted to be repaid as provided hereunder (the "Maturity Date"), and to pay
interest to the Holder on the aggregate unconverted and then outstanding
principal amount of this Debenture in accordance with the provisions hereof."
All references in the Debenture or Transaction Documents that the Debenture is
due on April 27, 2007 are hereby replaced with June 27, 2007.
Section 2.2. Amendment to Monthly Redemption Date. The definition of
"Monthly Redemption Date" under Section 1 of the Debenture is hereby amended and
restated as follows: "Monthly Redemption Date" means the 1st of each month,
commencing on June 1, 2006 and ending upon the full redemption of this
Debenture."
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Section 2.3. Amendment to the Number of Warrant Shares. The first
paragraph of the Warrant is hereby amended and restated as follows: "THIS COMMON
STOCK PURCHASE WARRANT (the "Warrant") certifies that, for value received, DKR
Soundshore Oasis Holding Fund Ltd. (the "Holder"), is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set
forth, at any time on or after the earlier of the 6 month anniversary of the
completion of the Secondary Offering and the 9 month anniversary of the date of
the Purchase Agreement (the "Initial Exercise Date") and on or prior to the
close of business on the 5 year anniversary of the Initial Exercise Date (the
"Termination Date") but not thereafter, to subscribe for and purchase from
Velocity Asset Management Inc., a Delaware corporation (the "Company"), up to
250,000 shares (the "Warrant Shares") of Common Stock, par value $.001 per
share, of the Company (the "Common Stock"). The purchase price of one share of
Common Stock under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b)." All references in the Warrant or Transaction Documents that
the number of Warrant Shares issuable pursuant to the Warrant is "200,000" are
hereby replaced with "250,000"
Section 2.4. Registration of Warrant Shares. The Company shall use
best efforts to include the additional 50,000 Warrant Shares issuable as a
result of the amendment set forth in Section 2.3 on the Registration Statement.
In the event that the Company is unable to include such shares on the
Registration Statement, if at any time during the period that the Warrant is
outstanding there is not an effective registration statement covering all of
such Warrant Shares and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than on Form S-8 (as promulgated under the Securities Act) or
its then equivalent relating to equity securities issuable in connection with
the stock option or other employee benefit plans, then the Company shall send to
the Holder a written notice of such determination and, if within fifteen days
after the date of such notice, if the Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Warrant Shares such Holder requests to be registered. Except as specifically set
forth herein, all rights and privileges of the holder of Warrant Shares under
the Purchase Agreement, Warrant and other Transaction Documents shall equally
apply to the holder of such Warrant Shares.
Section 2.5. Effect on Purchase Agreement. Except as expressly set
forth above, all of the terms and conditions of the Transaction Documents shall
continue in full force and effect after the execution of this Agreement, and
shall not be in any way changed, modified or superseded by the terms set forth
herein.
Section 2.6. Filing of Press Release. Within 1 Trading Day of the
date hereof, the Company shall issue a Current Report on Form 8-K, reasonably
acceptable to each Purchaser disclosing the material terms of the transactions
contemplated hereby, which shall include this Agreement as an attachment
thereto.
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Section 2.7. Replacement Securities. Upon the request of the Holder
and surrender of the applicable instrument to the Company, the Sellers shall,
within 5 Trading Days of the date of such request, issue or cause to be issued
in exchange and substitution for and upon cancellation thereof, or in lieu of
and substitution therefor, a new instrument representing the Debenture and
Warrant which instruments shall incorporate the terms provided for hereunder and
which shall evidence the then Conversion Price (as of the date hereof, $2.525)
and then Exercise Price (as of the date hereof, $3.10). The Holder shall not be
required to pay any costs associated with the issuance of such replacement
Securities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Representations and Warranties of the Sellers. The
Sellers, jointly and severally, hereby make the representations and warranties
set forth below to the Holder that as of the date of its execution of this
Agreement:
(a) Authorization, etc. The execution, delivery and
performance of this Agreement, the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Sellers, and this
Agreement constitutes the legal, valid and binding obligation of the
Sellers enforceable against the Sellers in accordance with its terms.
(b) Compliance with Laws, Other Instruments of the Sellers,
etc. The execution and delivery of this Agreement will not conflict
with or result in a breach of, or require any consent under, the
articles/certificate of incorporation or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency (other than filings which will be made
by the Sellers as may be required by applicable state securities laws),
or any agreement or instrument to which the Sellers is a party or by
which it is bound or to which it is subject, or constitute a default
under any such agreement or instrument, or result in the creation or
imposition of any lien upon any of the revenues or assets of the
Sellers pursuant to the terms of any such agreement or instrument.
Section 3.2. Representations and Warranties of the Holder. The Holder
hereby makes the representations and warranties set forth below to the Sellers
that as of the date of its execution of this Agreement:
(a) Due Authorization. Such Holder represents and warrants
that (i) the execution and delivery of this Agreement by it and the
consummation by it of the transactions contemplated hereby have been
duly authorized by all necessary action on its behalf and (ii) this
Agreement has been duly executed and delivered by such Holder and
constitutes the valid and binding obligation of such Holder,
enforceable against it in accordance with its terms.
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Notices. Any and all notices or other communications or
deliveries required or permitted to be provided hereunder shall be made in
accordance with the provisions of the Purchase Agreement.
Section 4.2. Survival. All warranties and representations (as of the
date such warranties and representations were made) made herein or in any
certificate or other instrument delivered by it or on its behalf under this
Agreement shall be considered to have been relied upon by the parties hereto and
shall survive the issuance of the Amendment Common Stock. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of each of the parties; provided however that no party may assign this Agreement
or the obligations and rights of such party hereunder without the prior written
consent of the other parties hereto.
Section 4.3. Execution. This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
Section 4.4. Severability. If any provision of this Agreement is held
to be invalid or unenforceable in any respect, the validity and enforceability
of the remaining terms and provisions of this Agreement shall not in any way be
affected or impaired thereby and the parties will attempt to agree upon a valid
and enforceable provision that is a reasonable substitute therefor, and upon so
agreeing, shall incorporate such substitute provision in this Agreement.
Section 4.5. Governing Law. All questions concerning the
construction, validity, enforcement and interpretation of this Agreement shall
be determined pursuant to the Governing Law provision of the Purchase Agreement.
Section 4.6. Entire Agreement. The Agreement, together with the
exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
Section 4.7. Construction. The headings herein are for convenience
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first
indicated above.
VELOCITY ASSET MANAGEMENT INC.
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and
Chief Legal Officer
X. XXXXXX INC.
By: /s/ W. XXXXX XXXXX, XX.
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Name: W. Xxxxx Xxxxx, Xx.
Title: President
Name of Holder: DKR Soundshore Oasis Holding Fund Ltd.
Signature of Authorized Signatory of Holder: /s/ XXXX XXXXXXX
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Name of Authorized Signatory: Xxxx Xxxxxxx
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Title of Authorized Signatory: Director
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