Exhibit 10.19
FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED
SECURED ADVANCE FACILITY LOAN AGREEMENT
This FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED SECURED ADVANCE
FACILITY LOAN AGREEMENT (the "Amendment") is entered into effective as of March
31, 2001 by and between Azul Holdings Inc., a Delaware corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Borrower"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as trustee of the Tudor Trust u/d/t
December 12, 1997, with an address of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Lender").
WHEREAS, the Borrower and the Lender are parties to that Second Amended
and Restated Secured Advance Facility Loan Agreement dated as of July 1, 1998,
as amended by that First Amendment to Second Amended and Restated Secured
Advance Facility Loan Agreement dated as of December 31, 1998, that Second
Amendment to Second Amended and Restated Secured Advance Facility Loan Agreement
dated as of December 7, 1999, that Third Amendment to Second Amended and
Restated Secured Advance Facility Loan Agreement dated as of March 31, 2000 and
that Fourth Amendment to Second Amended and Restated Secured Advance Facility
Loan Agreement dated as of June 19, 2000 (as amended, the "Agreement");
WHEREAS, as a result of the foregoing the Borrower and the Lender
desire to amend and modify the Agreement as set forth herein, with all
capitalized terms used but not defined herein having the meanings given them
under the Agreement;
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 parties hereby agree as follows:
1. Amendments to Agreement. Section 3.1 of the Agreement is amended and
restated in its entirety as follows:
"3.1 Scheduled Principal Payment. Except as set forth in Sections 5.2
and 8, all Liabilities shall be paid in full on March 31, 2002, unless
declared due and payable earlier by the Lender as set forth herein."
Section 3.2 of the Agreement is amended by the addition thereto of the
following sentence:
"In the event that the Lender fails to elect to receive interest in the
form of the capital stock of the Borrower as set forth herein, such
interest shall be added to and become a part of the principal of the
Liabilities."
2. Effect on Agreement. Except as amended by this Amendment, the
Agreement shall remain in full force and effect. After the date of this
Amendment, every reference in the Agreement to "this Agreement" shall mean the
Agreement as amended by this Amendment.
3. Miscellaneous.
(a) Successors and Assigns. The obligations of the Borrower
hereunder shall be binding upon its successors and assigns (but such reference
is not intended as a consent to any assignment not specifically permitted by the
Lender) and shall inure to the benefit of the successors and assigns of the
Lender.
(b) Counterparts and Facsimile Signatures. This Amendment may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument. This
Amendment may be executed by facsimile signature.
(c) Headings. The section headings contained in this Amendment
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Amendment.
(d) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts and
shall constitute an agreement under seal.
(e) Expenses. The Borrower will pay the reasonable legal fees and
out-of-pocket expenses of the Lender's counsel incurred in connection with the
preparation, execution and delivery of this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
effective date first written above.
BORROWER: LENDER:
AZUL HOLDINGS INC.,
a Delaware corporation
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee
Chief Financial Officer of the Tudor Trust
u/d/t December 12, 1997 and not
individually
Exhibit A
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$17,500,000
Boulder, Colorado March 31, 2001
FOR VALUE RECEIVED, the undersigned AZUL HOLDINGS INC., a Delaware
corporation with a principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter, the "Borrower"), promises to pay in U.S.
Dollars to the order of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, the Liabilities then outstanding under the loan made by the
Lender to the Borrower pursuant to that certain Second Amended and Restated
Secured Advance Facility Loan Agreement executed between the Borrower and the
Lender dated July 1, 1998, as amended by that First Amendment to Second Amended
and Restated Secured Advance Facility Loan Agreement dated as of December 31,
1998, that Second Amendment to Second Amended and Restated Secured Advance
Facility Loan Agreement dated as of December 7, 1999, that Third Amendment to
Second Amended and Restated Secured Advance Facility Loan Agreement dated as of
March 31, 2000, that Fourth Amendment to Second Amended and Restated Secured
Advance Facility Loan Agreement dated as June 19, 2000 and that Fifth Amendment
to Second Amended and Restated Secured Advance Facility Loan Agreement dated as
of the date hereof (as amended, the "Loan Agreement"). Advances made pursuant to
the Loan Agreement shall, from time to time after the date hereof, bear interest
at the rate from time to time as provided in the Loan Agreement, and after any
Default under the Loan Agreement at the rate of twelve (12) percent per annum,
calculated based upon a 360-day year end and actual day months.
Interest at the rate provided in the Loan Agreement shall be paid as
provided in Section 3.2 of the Loan Agreement. Unless a Default under the Loan
Agreement shall have occurred earlier, the principal balance of this Promissory
Note shall be due and payable in full on March 31, 2001.
All payments by the Borrower to the Lender under Article III of the
Loan Agreement shall be applied first to principal and then to interest.
To secure the obligations of the Borrower under this Promissory Note,
(i) the Lender has been granted a security interest in all of the Borrower's
presently existing and hereafter acquired property pursuant to that certain
Sixth Amended and Restated Security Agreement executed between the Borrower and
Lender dated November 10, 1997 (the "Security Agreement"), and (ii) the Lender
has been granted a security interest in 2,800,000 shares of Common Stock of
Xyvision Enterprise Solutions, Inc. held of record by the Borrower pursuant to
that certain Pledge Agreement executed between the Borrower and the Lender dated
as of December 31, 1998. 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 or
under the Loan Agreement shall operate as a waiver thereof on that occasion or
on any other occasion.
After demand by the Lender, the Borrower shall pay all reasonable
attorney fees and out-of-pocket expenses incurred by the Lender in recovering
the amounts due to the Lender from the Borrower hereunder.
This Promissory Note shall be binding upon the Borrower and upon its
successors, assigns and representatives, and shall inure to the benefit of the
Lender and its successors, endorsees and assigns.
This Promissory Note amends and restates that Amended and Restated
Secured Promissory Note dated May, 2000 in the principal amount of $12,357,150
previously made by the Borrower in favor of the Lender, and is taken in
substitution but not in satisfaction thereof.
This Promissory Note shall be governed by the laws of the Commonwealth
of Massachusetts and shall take effect as a sealed instrument.
Witnessed: AZUL HOLDINGS INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer