FIRST AMENDMENT TO THE 11% SENIOR SECURED PROMISSORY NOTES
Exhibit
10.33
FIRST
AMENDMENT TO THE
This
First Amendment to The 11% Senior Secured Promissory Notes (this “Agreement”)
is
made and entered into as of July 3, 2007 (the “Effective
Date”),
by
and between XA,
Inc.,
a
Nevada corporation (“XA”)
and
▇▇▇▇
▇. ▇▇▇▇▇▇, an
individual (the
“Purchaser”),
each
individually a “Party”
and
collectively the “Parties.”
W I T N E S S E T H:
WHEREAS,
pursuant to a Securities Purchase Agreement entered into with the Purchaser
on
or about September 26, 2006, which was later amended and replaced by a
Securities Purchase Agreement dated on or around October 26, 2006, to be
effective as of September 26, 2006 (the “Prior
Purchase Agreement”),
XA
sold the Purchaser a fifteen month 11% Senior Secured Convertible Promissory
Note, which was later amended and replaced by a fifteen month 11% Senior
Secured
Convertible Promissory Note, dated on or around October 26, 2006, to be
effective as of September 26, 2006 (the “Prior Notes”),
in
the amount of $100,000;
WHEREAS,
XA
recently sold an additional $25,000 in twelve month 11% Senior Secured
Convertible Promissory Notes on substantially similar terms as the Prior
Notes
to the Purchaser (other than the maturity date thereof and other revisions
which
were agreed by the Parties)(the “Follow
On Notes”),
in
connection with the sale of an aggregate of $450,000 in additional notes
(the
“Follow
On Funding”);
and
WHEREAS,
a
negotiated term and provision of the Follow On Funding was the amendment
of the
maturity date of the Prior Notes to be equal to the maturity date of the
Follow
On Notes.
NOW,
THEREFORE,
in
consideration for the promises and pledges contained below and other good
and
valuable consideration, which consideration the Parties acknowledge receipt
of,
and the premises and the mutual covenants, agreements, and considerations
herein
contained, the Parties hereto agree as follows:
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1.
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AMENDMENT
TO MATURITY DATE OF THE PRIOR NOTES.
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XA
and the Purchaser each individually agree to amend and replace
the
definition of “Maturity Date” as defined in the introductory paragraph of
the Prior Notes to which they are a party, to June 11, 2008 (the
“Amendment”).
The Parties further agree that any mention to the term Maturity
Date in
the Prior Notes shall hereafter refer to June 11, 2008.
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The
Purchaser confirms that it received valid consideration from
the sale of
the Follow On Notes and that the Amendment was a required term
of such
Follow On Funding.
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XA
confirms that it will receive valid consideration from the
Amendment.
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First
Amendment to the
11%
Senior Secured Convertible Promissory Notes
▇▇▇▇
▇.
▇▇▇▇▇▇ and XA, Inc.
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2.
MISCELLANEOUS.
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(a)
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Assignment.
All of the terms, provisions and conditions of this Agreement shall
be
binding upon and shall inure to the benefit of and be enforceable
by the
Parties hereto and their respective successors and permitted assigns.
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(b)
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Applicable
Law.
This Agreement shall be construed in accordance with and governed
by the
laws of the State of New York, excluding any provision of this
Agreement
which would require the use of the laws of any other
jurisdiction.
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(c)
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Entire
Agreement, Amendments and Waivers.
This Agreement constitutes the entire agreement of the Parties
hereto and
expressly supersedes all prior and contemporaneous understandings
and
commitments, whether written or oral, with respect to the subject
matter
hereof. No variations, modifications, changes or extensions of
this
Agreement or any other terms hereof shall be binding upon any Party
hereto
unless set forth in a document duly executed by such Party or an
authorized agent or such Party.
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(d)
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Waiver.
No
failure on the part of any Party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that
provision.
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(e)
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Section
Headings.
Section headings are for convenience only and shall not define
or limit
the provisions of this Agreement.
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(f)
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Effect
of Facsimile and Photocopied Signatures.
This Agreement may be executed in several counterparts, each of
which is
an original. It shall not be necessary in making proof of this
Agreement
or any counterpart hereof to produce or account for any of the
other
counterparts. A copy of this Agreement signed by one Party and
faxed to
another Party shall be deemed to have been executed and delivered
by the
signing Party as though an original. A photocopy of this Agreement
shall
be effective as an original for all
purposes.
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[Remainder
of page left intentionally blank. Signature page follows.]
First
Amendment to the
11%
Senior Secured Convertible Promissory Notes
▇▇▇▇
▇.
▇▇▇▇▇▇ and XA, Inc.
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This
Agreement has been executed by the Parties on the date first written above,
with
an Effective Date as provided above.
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
Chief
Executive Officer
PURCHASER:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇
▇. ▇▇▇▇▇▇
First
Amendment to the
11%
Senior Secured Convertible Promissory Notes
▇▇▇▇
▇.
▇▇▇▇▇▇ and XA, Inc.
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