FIFTH AMENDMENT TO AMENDED AND RESTATED
SECURED ADVANCE FACILITY LOAN AGREEMENT
This FIFTH AMENDMENT TO THE AMENDED AND RESTATED SECURED ADVANCE FACILITY
LOAN AGREEMENT (the "Fifth Amendment") is entered into as of this 10th day of
November 1997 (the "Fifth Amendment Date") by and between XYVISION, INC., a
Delaware corporation with its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
trustee of the Tudor Trust u/d/t August 11, 1986, with an address of ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Lender").
WHEREAS, the Borrower and the Lender are parties to an Amended and
Restated Secured Advance Facility Loan Agreement dated September 28, 1993, as
amended by the First Amendment thereto dated December 3, 1993, the Second
Amendment thereto dated February 29, 1996, the Third Amendment thereto dated
May 31, 1996, and the Fourth Amendment thereto dated November 22, 1996 (the
"Agreement");
WHEREAS, the Borrower and the Lender desire to amend the Agreement to
provide for (i) an increase in the loan amount to $8,300,000 and (ii) an
undertaking by the Lender to enter into specified letter of credit obligations
for the benefit of the Borrower; and
WHEREAS, the parties hereto wish to amend the Agreement as hereinafter set
forth;
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 Borrower and the Lender hereby agree, and hereby agree to
amend the Agreement, as follows:
1. Definitions. Each term in this Fifth Amendment not otherwise defined
herein shall be deemed to have the same meaning ascribed to that term in the
Agreement.
2. Maximum Loan Amount.Section 1.19 of the Agreement is hereby deleted
in its entirety and the following is inserted in its place:
"1.19. Maximum Loan Amount. Eight Million Three Hundred Thousand Dollars
($8,300,000)."
3. Minimum Draw. Section 1.20 of the Agreement is hereby deleted in its
entirety and the following is inserted in its place:
"1.20. Minimum Draw. The minimum amount of any Advance under this
Agreement shall be Fifty Thousand Dollars ($50,000.00)."
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4. Permitted Indebtedness. Section 1.23 is hereby amended to delete the
reference to Third Amended Schedule 1.23 and insert in its place Fourth Amended
Schedule 1.23, a copy of which is attached hereto.
5. Secured Promissory Note. Section 1.25 of the Agreement is hereby
deleted in its entirety and the following sentence is inserted in its place:
"The amended and restated secured promissory note in the amount of Eight
Million Three Hundred
Thousand Dollars ($8,300,000) executed by theBorrower and delivered to
the Lender on the Fifth
Amendment Date."
6. Security Agreement. Section 1.26 of the Agreement is hereby amended to
delete the reference to Fourth Amended Exhibit 4.1 and insert in its place
[FIFTH] Amended Exhibit 4.1, a copy of which is attached hereto.
7. Interest. Section 2.2 of the Agreement is hereby deleted in its
entirety and the following sentence is inserted in its place:
"Amounts advanced to the Borrower by the Lender under this Agreement
shall bear interest, payable as
set forth in Section 3.2 of this Agreement, from the date of each such
Advance on the unpaid principal
balance thereof until paid in full at a rate of thirteen percent (13%)
per annum; provided, however, that
from and after the Amendment Date, all of the unpaid principal balance
outstanding from time to time
shall bear interest at the rate of ten percent (10%) per annum; provided,
further, that from and after the
Third Amendment Date, all of the unpaid principal balance outstanding
from time to time shall bear
interest at the rate of eight percent (8%) per annum; and provided,
further, that from and after the Fifth
Amendment Date, all of the unpaid principal balance outstanding from time
to time shall bear interest at
the rate of six percent (6%) per annum."
8. Advances. Section 2.4 of the Agreement is hereby amended to delete the
second sentence thereof.
9. Addition of Article IIA. The Agreement is amended by adding thereto a
new Article IIA as follows:
"IIA. THE LETTER OF CREDIT OBLIGATIONS.
2A.1. Letter of Credit Issuance. At Borrower's request, as of the Fifth
Amendment Date, the Lender has
caused Fleet National Bank (the "Bank") to issue a letter of credit in
the face amount of $444,600 (the
"Letter of Credit") to TASC, Inc. (the "Landlord"). In connection with
the issuance of the Letter of Credit,
the Lender has entered into a letter of credit application and
reimbursement agreement with the Bank (the
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"Reimbursement Agreement") under which the Lender has agreed to reimburse
the Bank for all amounts
drawn by the Landlord under the Letter of Credit.
2A.2. Borrower's Reimbursement Obligations to Lender. Borrower hereby
agrees to pay to Lender,
immediately upon demand by Lender, any and all amounts irrevocably paid
by Lender to the Bank under
the Reimbursement Agreement including, without limitation, the amount of
any collateral which is, from
time to time, pledged by the Lender to secure its obligations under the
Reimbursement Agreement and
which is applied by the Bank to the Lender's obligations.
2A.3. Payment of Reimbursement Obligations. Amounts payable by the
Borrower to the Lender under
Section 2A.2 shall bear interest from the date of Lender's demand under
that Section, until paid in full, at
the rate applicable from time to time to the principal balance of
Advances under the Agreement pursuant
to Section 2.2 hereof.
2A.4. Reimbursement Obligations Constitute Liabilities. The Borrower
confirms and agrees that its
obligations under Section 2A.2 and Section 2A.3 constitute Liabilities
under the Agreement secured by
the Security Agreement and by the Fifth Amended Assignment of Patents and
Trademarks, dated as of the
Fifth Amendment Date, between the Borrower and the Lender.
9. Scheduled Principal Payments. Section 3.1 of the Agreement is hereby
amended to change "December 31, 1997" as it appears in the third line thereof
to "March 31, 2001."
10. Security Agreement. Section 4.1 of the Agreement is hereby amended to
delete the reference to Fourth Amended Exhibit 4.1 and insert in its place
Fifth Amended Exhibit 4.1, a copy of which is attached hereto.
11. Secured Promissory Note. Section 7.1 is hereby amended to delete the
reference to fourth Amended Exhibit 7.1(A) and insert in its place Fifth
Amended Exhibit 7.1(A), a copy of which is attached hereto.
12. Patents, Copyrights, etc. The first sentence of Section 9.11 is hereby
amended to delete the reference to Fourth Amended Schedule 9.12 and insert in
its place Fifth Amended Schedule 9.12, a copy of which is attached hereto.
13. Additional Facility Fee. As inducement for the Lender to enter into
this Amendment, the Borrower shall issue to the Lender, upon execution of this
Amendment, a Warrant for the purchase of 10,000,000 shares of
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Common Stock of the Borrower at a purchase price equal to $.16 per share,
substantially in the form attached to this Amendment as Exhibit 3.5 (E-1). The
last sentence of Section 12 of the Third Amendment to the Agreement is hereby
deleted in its entirety.
14. The changes effected by this Amendment shall be deemed to take effect
as of the close of business on November 10, 1997.
15. Except as amended hereby, the Agreement shall remain in full force and
effect and is in all respects hereby ratified and affirmed.
Witnessed: XYVISION, INC.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and C.O.O.
--------------------- /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as trustee of
the
Tudor Trust u/d/t August 11,
1986
and not individually
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