FIRST AMENDMENT TO LETTER AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO LETTER AGREEMENT
This
First Amendment to the Letter Agreement (this “Amendment”),
is
made and entered into as of March 28, 2008, by and among IXI
MOBILE (R&D) LTD.,
an
Israeli limited liability company, (the “Company”)
IXI
MOBILE, INC.,
a
Delaware corporation (the “Parent
Guarantor”),
and
GEMINI
ISRAEL III LIMITED PARTNERSHIP, GEMINI ISRAEL III PARALLEL FUND LIMITED
PARTNERSHIP, GEMINI ISRAEL III OVERFLOW FUND LIMITED PARTNERSHIP, GEMINI PARTNER
INVESTORS LIMITED PARTNERSHIP
(collectively, "Gemini").
The
parties hereby agree as follows:
RECITALS
WHEREAS,
the
Company, the Parent Guarantor and the Lender have previously entered into that
certain Letter Agreement dated as of March 28, 2007, (the “Letter
Agreement”);
and
WHEREAS,
The
parties acknowledge that as of March 31, 2008, the sum of $2,000,000 will be
owing as outstanding loan to the Lenders and the sum of $195,616 will be owing
as accrued and unpaid interest thereon to the Lenders. The parties agree that
such accrued and unpaid interest shall from and after April 1, 2008 be
capitalized and treated as principal such that for all purposes under this
Amendment the amount of loan outstanding after giving effect hereto shall be
$2,195,616 (“Loan Amount”).
WHEREAS,
the
parties now wish to further amend the Letter Agreement as set forth in this
Amendment.
NOW,
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereby
agree as follows:
Unless
otherwise defined below, all capitalized terms herein shall have the meanings
assigned to such terms in the Letter Agreement
1. Amendment
of the Letter Agreement.
1.1 Section
1.2 of the Letter Agreement is hereby amended and restated in its entirety
to
read as follows:
"1.2 Interest.
The
Loan
Amount shall bear an annual interest at a rate of 10% per annum until March
31,
2008 and 20% thereafter, compounded annually on the basis of 365 days a year
(the “Interest”). The amount of interest payable shall be added to, and deemed
for all purposes of, the loan to constitute a portion of the principal amount
of
the loan outstanding as of March 31, 2008. Notwithstanding any other provision
hereof, the amount of interest payable hereunder shall not in any event exceed
the maximum amount permitted by the law applicable to interest charged on
commercial loans. Accrued and
unpaid interest
on any portion of the principal amount of the loan outstanding shall be payable
on the Maturity Date. In any event, all unpaid principal and accrued and unpaid
interest through the Maturity Date shall be due and payable in full upon a
change of control of the Company or the Parent Guarantor without the prior
written consent of the Lenders which is prohibited by Section 7.11(1) of that
certain Loan Agreement dated June 19, 2006, or on the Maturity
Date.
1.2 Section
1.4 of the Letter Agreement is hereby amended and restated in its entirety
to
read as follows:
1.4 Repayment
of Loan Amount
All
payment obligations to the Lenders under the Letter Agreements shall be due
and
payable on the earlier to occur of: (i) the acceleration of the Loans in
accordance with the terms of this Agreement, including Section 1.2 above;
and (ii) June 5, 2010 (subsections (i) and (ii) to be referred to
herein as the “Maturity
Date”)
2. No
Other Modifications.
Except
as expressly set forth herein, all other terms and conditions of the Letter
Agreement shall remain in full force and effect.
3. Miscellaneous.
3.1 Counterparts;
Fax Signatures.
This
Amendment may be executed in counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the same Amendment.
Originally executed counterparts may be delivered by facsimile and any such
delivery shall be valid for all purposes as delivery of a manual signature
and
equally admissible in any legal proceedings to which any of the Company, the
Parent Guarantor, or the Lender is a party.
3.2 Severability.
If any
provision of this Amendment or the application thereof, shall for any reason
and
to any extent be determined by a court of competent jurisdiction to be invalid
or unenforceable under applicable law, the remaining provisions of this
Amendment shall be interpreted so as best to reasonably effect the intent of
the
parties hereto.
3.3 Entire
Agreement.
This
Amendment, together with the Letter Agreement and all exhibits hereto and
thereto, constitute the entire understanding and agreement of the parties with
respect to the transactions contemplated herein and supersede all prior and
contemporaneous understandings and agreements, whether written or oral, with
respect to such transactions.
3.4 Governing
Law;
Forum.
This
Amendment shall be governed in all respects by Section 8 of the Letter
Agreement.
[Remainder
of Page Intentionally Left Blank]
2
IN
WITNESS WHEREOF, the parties have executed this First Amendment to Letter
Agreement as of the date first written above.
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IXI
MOBILE (R&D) LTD.
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By:/s/
Xxxx
Xxxxx
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Name:
Xxxx Xxxxx
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Title:
CFO
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By:/s/
Xxxx
Xxxxx
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Name:
Xxxx Xxxxx
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Title:
CFO
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[Signature
Page to First Amendment to Letter Agreement]
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IN
WITNESS WHEREOF, the parties have executed this First Amendment to Letter
Agreement as of the date first written above.
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GEMINI
ISRAEL III LIMITED PARTNERSHIP
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by
its general partner Gemini Capital Associates III L.P.,
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by
its general partner Gemini Israel Funds Ltd.
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By:
/s/ Xxxxx
Xxxx
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Name:
Xxxxx
Xxxx
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Title:
Managing Partner
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx
Xxxxx
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Title:
CFO
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GEMINI
ISRAEL III PARALLEL FUND LIMITED PARTNERSHIP
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by
its general partner Gemini Capital Associates III, L.P.
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by
its general partner Gemini Israel Funds Ltd.
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By:
/s/ Xxxxx
Xxxx
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Name:
Xxxxx
Xxxx
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Title:
Managing Partner
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx
Xxxxx
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Title:
CFO
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GEMINI
ISRAEL III OVERFLOW FUND LIMITED PARTNERSHIP
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by
its general partner Gemini Capital Associates III L.P.,
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by
its general partner Gemini Israel Funds Ltd.
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By:
/s/ Xxxxx
Xxxx
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Name:
Xxxxx
Xxxx
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Title:
Managing Partner
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx
Xxxxx
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Title:
CFO
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GEMINI
PARTNER INVESTORS LIMITED PARTNERSHIP
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by
its general partner Gemini Israel Funds Ltd.
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By:
/s/ Xxxxx
Xxxx
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Name:
Xxxxx
Xxxx
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Title:
Managing Partner
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By:
/s/ Xxxxx
Xxxxx
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Name:
Xxxxx
Xxxxx
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Title:
CFO
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[Signature
Page to First Amendment to Letter Agreement]
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