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EXHIBIT 10.37
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This SECOND AMENDMENT dated as of April 15, 1999 (this
"Amendment") to SECURITIES PURCHASE AGREEMENT dated as of August 31, 1998 (as
amended by the Consent and Amendment dated as of December 31, 1998 and as the
same may further be amended, supplemented or otherwise modified from time to
time, the "Purchase Agreement") among Nextera Enterprises, Inc. (the "Company"),
Knowledge Universe, Inc. ("KU") and Nextera Funding, Inc. (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Company has requested the Purchaser to amend certain
provisions of the Purchase Agreement upon the terms and conditions set forth
herein;
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, the undersigned hereby agree as follows:
Section 1. Defined Terms. Terms defined in the Purchase Agreement
and used herein shall have the meanings given to them in the Purchase Agreement.
Section 2. Amendment. Notwithstanding anything to the contrary
set forth in the Financing Documents, Section 1.1 of the Purchase Agreement is
hereby amended by changing the definition of "Maturity Date" from "April 30,
1999" to "May 31, 1999" for all purposes of such agreements.
Section 3. Effective Date. This Amendment shall become effective
on the date (the "Effective Date") on which all parties hereto have duly
executed and delivered this Amendment.
Section 4. Representations and Warranties. The Company hereby
represents and warrants that (a) each of the representations and warranties made
by the Company in the Financing Documents is true and correct as of the
Effective Date, before and after giving effect to this Amendment, as if made on
and as of the Effective Date (unless such representations and warranties are
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true
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and correct in all material respects as of such earlier date) and (b) after
giving effect to this Amendment, no Default or Event of Default shall have
occurred and be continuing.
Section 5. Miscellaneous.
(a) No Other Amendment; Continuing Effect. Except as
expressly amended hereby, all of the terms and provisions of the Financing
Documents are and shall remain in full force and effect.
(b) Expenses. The Company agrees to pay and reimburse
Purchaser for all of its costs and expenses of legal counsel in connection with
this Amendment.
(c) Counterparts. This Amendment may be executed in any
number of counterparts by the parties hereto, 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. This Amendment may be delivered
by facsimile transmission of the relevant signature pages hereof.
(d) New York Law; Submission to Jurisdiction; Waiver of
Jury Trial. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY
FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(e) Headings Descriptive. The headings of the several
Sections and subsections of this Amendment are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision.
(f) Severability. In case any provision in or
obligation under this Amendment shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
(g) No Waiver, Cumulative Remedies. No failure or delay
or course of dealing on the part of Purchaser in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date first
above written.
NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
KNOWLEDGE UNIVERSE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Secretary
NEXTERA FUNDING, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
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