Exhbit 10.5
AMENDMENT NO. 1 TO LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AGREEMENT ("Amendment") is entered as of
the 30th day of November, 2000, by and between XxxxxxxxxxxxXxxx.xxx, LLC, a
Delaware limited liability company ("Borrower") and Commerce Capital, L.P.,
a Tennessee limited partnership ("Lender").
RECITALS:
WHEREAS, Borrower and Lender are parties to a Loan Agreement dated as of
June 13, 2000 (the "Original Loan Agreement"), pursuant to which Lender loaned
to Borrower the sum of $800,000 (the "Initial Loan"); and
WHEREAS, to secure repayment of principal of and interest on the Original
Loan, Borrower and Lender entered a Security Agreement dated as of June 13, 2000
(the "Original Security Agreement"), and an Intellectual Property Security
Agreement dated as of June 13, 2000 (the "Original Intellectual Property
Security Agreement"); and
WHEREAS, Borrower has requested that Lender loan to Borrower an additional
$380,000 (the "Subsequent Advance"), and Lender is willing to do so, subject,
among other things, to Borrower's execution and delivery of this Amendment and
various other documents.
NOW, THEREFORE, in consideration of the premises, Lender's willingness
subject to the terms and conditions hereof to make the Subsequent Advance, and
other good and valuable consideration, receipt and sufficiency of which are
hereby acknowledged, Borrower and Lender hereby agree as follows:
1. Subsequent Advance. Subject to the terms and conditions hereof, Lender
agrees to make the Subsequent Advance to Borrower, by wire transfer of
immediately available funds pursuant to Borrower's written instructions. The
Subsequent Advance shall be evidenced by a Secured Promissory Note of even date
herewith, executed by Borrower in favor of Lender (the "Subsequent Note").
2. Amendment of Original Loan Agreement. The first "WHEREAS" clause in the
Original Loan Agreement, under the heading "RECITALS", is hereby amended, by
deleting the second parenthetical phrase in the second line thereof and
inserting in its place the parenthetical phrase "(together with any amounts
subsequently advanced by Lender to Borrower, the "Loan")". Section 1.1 of the
Original Loan Agreement is hereby amended, by (a) deleting the parenthetical
phrase in the fifth line thereof and inserting in its place the parenthetical
phrase "(together with any promissory notes subsequently executed by Borrower in
favor of Lender, or any amendments or restatements of any of the foregoing, the
"Note")"; and (b) inserting in the sixth line thereof, immediately after the
words "and any other instruments and documents" the words "as amended from time
to time".
3. Ratification and Reaffirmation of Loan Documents. The Borrower hereby
ratifies and reaffirms its obligations under each of the Loan Documents and
agrees that any reference in any of such Loan Documents to the Note, the Loan,
the Obligations, or words of like effect shall include the Note, the Loan and
the Obligations as defined in the Original Loan Agreement, the Original Security
Agreement, and the Original Intellectual Property Security Agreement and the
debt and obligations of Borrower under this Amendment and the Subsequent Note.
4. Representations and Warranties of Borrower. Borrower hereby reaffirms,
and represents and warrants to Lender as of the date of this Amendment, each of
the representations and warranties contained in ARTICLE 2 of the Original Loan
Agreement, except (a) as otherwise provided in any schedules to the Original
Loan Agreement, (b) for changes in the financial condition of Borrower resulting
from the operation of its business in the ordinary course, as reflected on the
interim, unaudited financial statements delivered to Lender since the date of
the Original Loan Agreement, and (c) as set forth on Schedule 4 hereto.
5. Conditions to Effectiveness. The following shall be conditions
precedent to the effectiveness of this Amendment and the obligations of Lender
to make the Subsequent Advance: (a) Lender shall have received an opinion of
Borrower's counsel regarding the effectiveness and enforceability of this
Amendment and the other documents related hereto, in form and substance
reasonably satisfactory to Lender; (b) Borrower shall have paid to Lender a
processing fee in the amount of $7,600 and shall have reimbursed Lender for its
expenses in connection herewith, including reasonable attorney's fees; and (c)
Lender shall have received such other documents, including without limitation
forms required to be completed and filed by the United States Small Business
Administration, as Lender shall reasonably request.
6. Effect on Original Loan Agreement. Upon the satisfaction of the
conditions precedent set forth above, the original Loan Agreement shall be
amended as provided in this Amendment, and all references in any of the Loan
Documents (as defined in the Loan Agreement) shall be deemed to mean the
Original Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the Borrower and the Lender have each caused this
Amendment to be executed and delivered by their duly authorized officers as of
the day and year first above written.
XXXXXXXXXXXXXXXX.XXX, LLC
By:-----------------------------------------
Title:--------------------------------------
COMMERCE CAPITAL, L.P.
Commerce Equity Capital
By: Corporation, General Partner
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By:-----------------------------------------
Title:--------------------------------------
