SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED
SECURED ADVANCE FACILITY LOAN AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED THE SECURED ADVANCE
FACILITY LOAN AGREEMENT (the "Amendment") is entered into as of December 7,
1999 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 (as amended, the
"Agreement");
WHEREAS, the Borrower and the Lender desire to amend and modify the
Agreement as set forth herein; and
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. Amendment to Agreement.
(a) Section 1.19 of the Agreement is amended and restated in its
entirety as follows:
"1.19. Maximum Loan Amount. Twelve Million Three Hundred
Twenty-Six Thousand Six Hundred Twenty Dollars ($12,326,620) less
the principal amount of any Liabilities of the Borrower converted
from time to time into the Borrower's Series C Convertible
Preferred Stock (the "Series C Stock") pursuant to Section 3.7 of
this Agreement."
(b) Section 1.25 of the Agreement is amended and restated in its
entirety as follows:
"1.25. Secured Promissory Note. The amended and restated secured
promissory note in the amount of Twelve Million Three Hundred
Twenty-Six Thousand Six Hundred Twenty Dollars ($12,326,620) dated
December 7, 1999, executed by the Borrower and delivered to the
Lender." (c) The Secured Promissory Note attached as Exhibit 7.1
to the Agreement is amended and restated in its entirety in the
form attached hereto as Exhibit A (the "Restated Note"). The
Borrower shall execute the Restated Note and deliver the
originally-executed Restated Note to the Lender. A condition to
the Borrower's obligation to execute and deliver the Restated Note
to the Lender hereunder shall be the Lender's obligation to
deliver to the Borrower for cancellation the originally-executed
Secured Promissory Note dated December 31, 1998 in the original
principal amount of $12,226,620 (the "Original Note"). The
Original Note shall be marked "CANCELED" and stored at the
Borrower's executive offices.
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.
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(b) Counterparts and Facsimile Signature. 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
date first above written.
AZUL HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Vice President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as trustee of the Tudor Trust
u/d/t
December 12, 1997 and not individually
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Exhibit A
AMENDED AND RESTATED SECURED PROMISSORY NOTE
$12,326,620
Boston, Massachusetts December 7, 1999
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 good
U.S. funds 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 and that Second Amendment to Second Amended and Restated
Secured Advance Facility Loan Agreement dated as of December 7, 1999 (as
amended, the "Agreement"). Advances made pursuant to the Agreement shall, from
and after the date hereof, bear interest at the rate from time to time provided
in the Agreement, and after any Default at the rate of twelve (12) percent per
annum, calculated based upon a 360-day year and actual day months.
Interest at the rate set forth above shall be paid as provided in Section
3.2 of the Agreement. Unless a Default under the Agreement shall have occurred
earlier, the principal balance of this Note shall be due and payable in full on
March 31, 2000.
All payments by the Borrower to the Lender under Article III of the
Agreement shall be applied first to principal and then to interest.
To secure the obligations of the Borrower under this Note, (i) the Lender
has been granted a security interest in substantially 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
the 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.
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No delay or omission by the Lender in exercising or enforcing any of the
Lender's powers, rights, privileges, remedies or discretions hereunder shall
operate as a waiver thereof on that occasion nor on any other occasion.
After demand by the Lender, the Borrower will pay on demand all reasonable
attorneys' fees and out-of-pocket expenses incurred by the Lender in recovering
the amounts due to the Lender by the Borrower hereunder.
This Note shall be binding upon the Borrower and upon its heirs,
successors, assigns, and representatives, and shall inure to the benefit of the
Lender and its successors, endorsees, and assigns.
This Note amends and restates that Secured Promissory Note dated December
31, 1998 in the original principal amount of $12,226,620 previously made by the
Borrower in favor of the Lender, and is taken in substitution but not in
satisfaction thereof.
This Note shall be governed by the laws of the Commonwealth of
Massachusetts and shall take effect as a sealed instrument.
WITNESS AZUL HOLDINGS INC.
------------------------- By: -------------------------
Name:
Title:
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