EXHIBIT 10.2
SECOND AMENDMENT TO DEBENTURE PURCHASE AGREEMENT
This Second Amendment to Debenture Purchase Agreement ("Amendment")
is made and entered into as of the7th day of May, 1999, by and between ALTRIS
SOFTWARE, INC. (the "Company"), a California corporation, and FINOVA MEZZANINE
CAPITAL INC. f/k/a Sirrom Capital Corporation d/b/a Tandem Capital (the
"Purchaser"), a Tennessee corporation.
W I T N E S S E T H:
WHEREAS, the Purchaser and the Company have previously executed that
Debenture Purchase Agreement dated June 27, 1997, as amended by that First
Amendment to Debenture Purchase Agreement dated November 1, 1998 (the "Purchase
Agreement"; capitalized terms used herein that are not otherwise defined shall
have the meaning set forth in the Purchaser Agreement);
WHEREAS, the Purchaser and the Company wish to further amend the
Purchase Agreement and to evidence the consent of the Purchaser to certain
actions proposed by the Company;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are acknowledged, it is agreed as follows:
1. The Purchase Agreement is hereby amended by deleting the interest
rate of "11.5%" in line four of Section 1.1 and inserting in its place the
interest rate of "12.0%".
2. Any reference in the Purchase Agreement and/or related documents
to that 11.5% Subordinated Debenture shall mean the same debenture amended
hereby.
3. The Purchase Agreement is hereby further amended by deleting the
Exercise Price of "$6.00 per share" in line five of Section 1.2 and inserting in
its place the amount "$1.90 per share".
4. The Company warrants and represents that the source code, object
code and all related process diagrams and supporting information and manuals
relating to the software programs marketed by the Company and its Affiliates are
owned by the Company and that the Purchaser continues to hold a second priority
perfected security interest therein to secure the Subordinated Debenture.
5. The Company warrants and represents that its execution, delivery
and performance hereof and of all documents required herein have been duly
authorized by all necessary corporate action and do not (i) violate or conflict
with the Company's corporate charter
or bylaws, (ii) violate any applicable law or regulation, (iii) violate any
order, writ, judgment or decree by which the Company or any of its assets are
bound, or (iv) violate, constitute a breach of, or occasion any rights or
remedies under any other loan agreement, lease, indenture or other agreement by
which the Company or any of its assets are bound.
6. As modified and amended hereby, the Operative Documents shall
remain in full force and effect. The Company warrants and represents that (a)
the Operative Documents are valid, binding and enforceable against the Company
according to their terms, subject to principles of equity and laws applicable to
the rights of creditors generally, including bankruptcy laws, (b) the security
interests previously granted in the Operative Documents remain perfected and
continue to secure the Obligations with the priority required by the Operative
Documents, and (c) no default or Event of Default presently exists under the
Operative Documents and no condition presently exists which, with the giving of
notice, the passing of time, or both, would cause such a default or Event of
Default. The Company further acknowledges that the Company's obligations
evidenced by the Operative Documents are not subject to any counterclaim,
defense or right of setoff, and the Company hereby releases the Purchaser and
its officers, directors, agents and attorneys from any claim, known or unknown,
that the Company may have against any or all of them as of the execution of this
Amendment. In this regard, the Company acknowledges that the Company is familiar
with Section 1542 of the Civil Code of the State of California, which provides
as follows:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his
settlement with the debtor.
The Company hereby waives and relinquishes all rights and benefits which it has
or may have under any provision of applicable law that is to the same effect as
the above Section 1542.
Notwithstanding the foregoing, this release shall not affect the future
obligations of the Purchaser set forth in the Operative Documents.
7. Concurrently with the execution of this Amendment, the Company
shall pay all of the fees and expenses of the Purchaser and its counsel in
connection with this Amendment.
8. Concurrently with the execution of this Amendment, the Company
shall deliver to the Purchaser the following executed documents:
(a) This Agreement.
(b) Second Amendment to Subordinated Debenture.
(c) First Amendment to Convertible Preferred Stock Purchase
Agreement.
(c) Certified copy of resolutions of the Company's Board of
Directors authorizing the execution, delivery and performance of
this Agreement and all related documents.
(d) Opinion letter issued by the Company's outside counsel,
addressing such matters as the Purchaser may reasonably require.
(e) Closing Statement evidencing the payment by the Company of all
expenses incurred by the Purchaser in connection with this
Amendment.
9. This Amendment shall be governed by, and construed and
interpreted in accordance with, the internal laws of the State of California.
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Executed as of the date stated above.
ALTRIS SOFTWARE, INC.
By:______________________________________
Title:___________________________________
FINOVA MEZZANINE CAPITAL INC.
formerly known as
Sirrom Capital Corporation and
formerly doing business as Tandem Capital
By:______________________________________
Title:___________________________________
