SECOND AMENDMENT TO LETTER AGREEMENT DATED JUNE 19, 2006
Exhibit
10.2
SECOND
AMENDMENT TO LETTER AGREEMENT DATED JUNE 19, 2006
This
Second Amendment to Letter Agreement (this “Amendment”),
is
made and entered into as of March 28, 2006, by and among IXI
MOBILE (R&D) LTD.,
an
Israeli limited liability company, (the “Subsidiary”),
IXI MOBILE,
INC.,
a
Delaware corporation (the “Parent”),
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
parties have previously entered into that certain Letter Agreement dated as
of
June 19, 2006 and a First Amendment to the Letter Agreement dated as of December
21, 2006 (collectively, the "Letter
Agreement")
in
relation to a Loan Agreement by and among the Parent, the Subsidiary and
Southpoint Master Fund LP ("Southpoint")
dated
of even date therewith (the "Loan
Agreement");
and
WHEREAS,
the
parties to the Loan Agreement have recently entered into a Third Amendment
to
Loan Agreement (the "Third
Amendment to Loan Agreement")
attached hereto as Exhibit
A,
pursuant to which, among other things, the parties to the Loan Agreement amended
the loan interest rate and repayment terms of the loan provided to the
Subsidiary by Southpoint under the Loan Agreement and, as a result of such
amendment to the Loan Agreement, the parties now wish to amend the Letter
Agreement so as to align certain terms of the Letter Agreement with the amended
terms of the Loan Agreement, all 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 Loan Agreement as amended by the Third Amendment
to Loan Agreement.
1. Acknowledgement
and Amendment of the Letter Agreement.
1.1 Gemini
and hereby acknowledges and agrees as follows:
(a) the
terms
of the Third Amendment to Loan Agreement are known and acceptable to
Gemini.
(b) all
references to terms and conditions of the Loan Agreement in the Letter
Agreement, including, without limitation, all references to Sections 2.3 and
2.4
of the Loan Agreement, shall be deemed references to such terms as amended
by
the Third Amendment to Loan Agreement.
(c) all
references in the Letter Agreement to the term "Repayment Date" shall be deemed
references to the term "Repayment Date" as defined in the Third Amendment to
Loan Agreement.
(d) all
references in the Letter Agreement to the term "Basic Interest Rate" shall
be
deemed references to the term "Basic Interest Rate" as amended by the Third
Amendment to Loan Agreement.
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 Subsidiary,
the
Parent, 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 Loan Documents 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.
This
Amendment shall be governed in all respects by Section 15 of the Letter
Agreement.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this Second Amendment to Letter
Agreement as of the date first written above.
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 Second Amendment to Letter
Agreement]
IN
WITNESS WHEREOF, the parties have executed this Second Amendment to Letter
Agreement as of the date first written above.
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 Second Amendment to Letter Agreement]
Exhibit
A
Third
Amendment to Loan Agreement