Exhibit 10.13
AMENDMENT TO PROMISSORY NOTE
THIS AMENDMENT TO PROMISSORY NOTE (the "Amendment") is made and entered
into as of the ____ day of September, 2001, by and among Venturos Holding AS, a
Norwegian corporation (the "Lender") and MediaBin, Inc., a Georgia corporation
(the "Borrower").
W I T N E S S E T H:
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WHEREAS, Lender is the holder of that certain Promissory Note from
Borrower, dated March 23, 2000, payable to the order of Lender in the principal
amount of One Million Dollars ($1,000,000) (the "Note"); and
WHEREAS, Lender and Borrower wish to amend the Note as hereinafter
provided;
NOW, THEREFORE, for and in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender and Borrower hereby agree
as follows:
The Note shall be and is hereby modified and amended by deleting the
entire fifth (5th) paragraph of the Note and replacing it with the following:
"Unless previously converted to common stock in accordance with the
provisions of the Loan Agreement, commencing December 31, 2001, and
continuing on each March 31, June 30, September 30, December 31
thereafter, the indebtedness evidenced by this Note shall be due and
payable in 11 consecutive quarterly installments of principal, each in
the amount of 1/12th of the principal balance outstanding hereunder on
December 30, 2001, plus all accrued and unpaid interest as hereinabove
provided. The entire outstanding balance of the indebtedness evidenced
by this Note, together with all accrued and unpaid interest, shall be
due and payable in a 12th and final installment on September 30, 2004.
The Lender shall be obligated to convert the entire outstanding
principal balance hereunder into common stock of the Borrower upon the
events and in the manner specified in the Loan Agreement."
All references in the Note to this "Note" shall hereafter refer to the
Note as hereby amended.
Except as expressly provided herein, all terms and conditions of the
Note remain in full force and effect. Nothing herein shall be construed to
constitute a novation of the Note, and the intention of the parties hereto is
not to extinguish the Note.
This Amendment shall be construed in accordance with the laws of the
State of Georgia.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to
be executed, as of the date first above written.
LENDER:
VENTUROS HOLDING AS
By: /s/ Rune Dybesland
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Name:
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Title:
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BORROWER:
MEDIABIN, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
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Title:
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Exhibit 10.14
AMENDMENT TO PROMISSORY NOTES
THIS AMENDMENT TO PROMISSORY NOTES (the "Amendment") is made effective
and entered into as of the ___ day of September 2001, by and among Venturos
Holding AS, a Norwegian corporation (the "Lender") and MediaBin, Inc., a Georgia
corporation (the "Borrower").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lender is the holder of certain Promissory Notes from
Borrower, as listed below ("Notes"):
o Note dated March 23, 2000, in the principal amount of $1,000,000;
o Note dated October 11, 2000, in the principal amount of $750,000;
o Note dated December 28, 2000, in the principal amount of $2,500,000;
o Note dated April 4, 2001, in the principal amount of $500,000;
o Note dated September 28, 2001, in the principal amount of $1,250,000
o Note dated June 21, 2001, in the principal amount of $2,000,000;
WHEREAS, Lender and Borrower wish to amend the Notes as hereinafter
provided;
NOW, THEREFORE, for and in consideration of the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender and Borrower hereby agree
as follows:
"The interest payment due upon each of the above Notes on September 30,
2001, including interest previously deferred, totals approximately
$137,000, will be deferred until December 31, 2001. The interest
deferred will be added to the principal balance of each Note and will
accrue interest at the same rate as the rest of the principal."
All references in the Notes to this "Note" shall hereafter refer to the
Notes as hereby amended.
Except as expressly provided herein, all terms and conditions of the
Notes remain in full force and effect. Nothing herein shall be construed to
constitute a novation of the Notes, and the intention of the parties hereto is
not to extinguish the Notes.
This Amendment shall be construed in accordance with the laws of the
State of Georgia.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to
be executed, as of the date first above written.
BORROWER: LENDER:
MEDIABIN, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ Rune Dybesland
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Name: Name:
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Title: Title:
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Date: Date:
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Exhibit 10.15
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
the ___ day of September 2001, by and between MediaBin, Inc., a Georgia
corporation (the "Company"), and Venturos Holding AS, a Norwegian corporation
(the "Lender").
PREAMBLE
The Company and the Lender are entering into this Agreement for the
purpose of establishing a term loan.
NOW, THEREFORE, in consideration of the premises hereof, the mutual
covenants and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Loan. On the date hereof the Company is borrowing the principal
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amount of $1,250,000 from the Lender (the "Loan"), which will be evidenced by
the Term Promissory Note in the form attached hereto as Exhibit A (the "Note").
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The Lender is willing to make the Loan to the Company on the terms and
conditions described herein. The Company and the Lender agree that the payment
and performance of all obligations relating to the Loan shall not be secured by
any property of the Company. The Company may prepay the Loan, in whole or in
part, at any time without penalty or premium; provided, however, that the
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Company shall give the Lender five days notice of any payment of outstanding
principal under the Note other than a scheduled principal payment prescribed by
the Note (each, a "Payment Notice").
2. Acceleration Rights. Upon the commencement of an action by the
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Company to obtain shareholder approval of an offer from a person or entity
unaffiliated with the Lender and unaffiliated with ▇▇▇▇▇▇▇ Capital AS that would
result in a Change of Control (as defined below), Lender may cause the
acceleration of the Note so that all of the remaining outstanding and
unconverted principal is due within ten (10) days of the closing of the
transaction constituting a Change of Control. For purposes of this Agreement, a
"Change of Control" shall mean a transaction in which (i) any person or group of
persons that was not previously a majority shareholder of the Company becomes
the beneficial owner, directly or indirectly, of securities of the Company
representing a majority of the combined voting power of the Company's
then-outstanding securities or (ii) the Company sells, transfers, leases,
exchanges or disposes of at least eighty-five percent (85%) of its assets.
3. Representations, Warranties and Covenants.
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(a) By the Company. The Company is a corporation duly
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organized and existing under the laws of the State of Georgia and has the
corporate power and authority to carry on its business as and where now
conducted. The Company has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Company. The authorized capital stock of the Company
consists of 40,000,000 shares of the Common Stock, of which 17,529,607 shares
are issued and outstanding. All of the issued and outstanding shares of the
Common Stock are duly and validly issued and are fully paid and non-assessable.
(b) By the Lender. The Lender is a corporation duly organized
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and existing under the laws of the country of Norway and has the corporate and
legal power and authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Lender. The Lender has not authorized any person to act
as broker, finder or in any other similar capacity in connection with the
transactions contemplated by this Agreement.
4. Default; Remedies. A "Default" shall exist if any of the following
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occurs and is not remedied (i) in the case of events described in clause (a)
below, within 15 days after notice from the Lender to the Company thereof, and
(ii) in the case of events described in clauses (b) through (h) below or
elsewhere in this Agreement, within 30 days after notice from the Lender to the
Company thereof: (a) failure of the Company punctually to make any payment of
any amount payable under the Note, whether at maturity, or at a date fixed for
any prepayment or partial prepayment, or by acceleration, or otherwise; (b) any
statement, representation, or warranty of the Company made in this Agreement
shall be false or misleading in any material respect as of the date made; (c)
failure of the Company punctually and fully to comply with any of its covenants
in this Agreement; (d) if the Company becomes insolvent as defined in the
Georgia Uniform Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by the Company seeking dissolution of the
Company or liquidation of its assets or seeking the appointment of a trustee,
interim trustee, receiver, or other custodian for any of its property; or if the
Company commences a voluntary case under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by the Company for the
settlement, readjustment, composition or extension of any of its debts upon any
terms; or if any action or petition is otherwise brought by the Company seeking
similar relief or alleging that it is insolvent or unable to pay its debts as
they mature; (e) the Company is in default on indebtedness to another person,
the amount of such indebtedness exceeds $250,000 and the acceleration of the
maturity of such indebtedness would have a material adverse effect upon the
Company; or (f) a sale of all or substantially all of the assets of the Company
unless waived in writing by the Lender. Upon the occurrence of a Default, the
Lender shall be entitled to declare any of the amounts owed by the Company under
the Note due and payable, whereupon they immediately will become due and payable
without presentment, demand, notice or protest of any kind (all of which are
expressly waived by the Company).
5. Miscellaneous. All notices or other communications which are
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required or permitted hereunder shall be in writing and sufficient if delivered
(i) personally, (ii) by registered or certified mail, postage prepaid or (iii)
by a recognized courier service to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered or transmitted:
The Company: MediaBin, Inc.
Seven ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
With copy
to counsel: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
1600 Atlanta Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
The Lender: Venturos Holdings AS
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Each party shall bear the expenses incurred by it or on its behalf in connection
with the transactions contemplated by this Agreement; provided, however, that
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the Company shall be liable for any reasonable attorneys' fees actually incurred
by the Lender in enforcing this Agreement or the Note upon a default by the
Company of its obligations thereunder. This Agreement, together with the Note,
contain the entire agreement among the parties with respect to the transactions
contemplated hereby, and supersede all prior arrangements or understandings with
respect thereto, written or oral. This
Agreement shall inure to the benefit of and be binding upon the Company's and
the Lender's successors and any permitted assignee of this Agreement or the
Note. This Agreement and the Note shall not be assigned by the Lender without
the prior written consent of the Company; provided, however, that subject to
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compliance with the requirements of Regulation S, the Lender may sell
participations in the Note to not more than four other persons (including
indirect participants), provided that no such participation shall relieve the
Lender of its obligations under this Agreement, including without limitation its
obligations under Section 1 hereof. In addition, that subject to the
requirements of Regulation S, the Lender may assign this Agreement and the Note
to an Affiliate (defined below) of Venturos Holding AS without the prior written
consent of the Company subject to the condition that Venturos Holding AS remain
liable for the performance of all of the obligations of the Lender and its
assigns thereunder. For purposes of the foregoing sentence, "Affiliate" shall
have the meaning given such term in Rule 144(a)(1) promulgated under the Federal
Act. This Agreement shall be governed by and construed in accordance with the
laws of the State of Georgia except to the extent United States federal law
shall be applicable. This Agreement may be executed in one or more counterparts,
each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, sealed and delivered by their duly authorized officers as of the date
first written above.
MEDIABIN, INC. VENTUROS HOLDING AS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ Rune Dybesland
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer Print Name:
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Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Print Title:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
Exhibit A
TERM PROMISSORY NOTE
$1,250,000 September ___, 2001
FOR VALUE RECEIVED, the undersigned, MediaBin, Inc., a Georgia
corporation (the "Borrower"), promises to pay to Venturos Holding AS, a
Norwegian corporation (the "Lender"), at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (or
at such other place as the Lender may designate in writing to the Borrower), in
lawful money of the United States of America, the principal sum of one million
two hundred fifty thousand dollars ($1,250,000), plus interest as hereinafter
provided.
This Term Promissory Note (the "Note") is the Note made and given as
described in that certain Loan Agreement dated as of September ___, 2001,
between the Borrower and the Lender (the "Loan Agreement"). The Borrower shall
be entitled to borrow funds hereunder pursuant to the terms and conditions of
the Loan Agreement. In the event of any inconsistency between this Note and the
Loan Agreement, this Note shall control. All capitalized terms used herein shall
have the meanings ascribed to such terms in the Loan Agreement, except to the
extent such capitalized terms are otherwise defined or limited herein. This Note
may be assigned only as provided in the Loan Agreement.
The Borrower promises to pay interest on the unpaid principal amount
outstanding hereunder (the "Loan"), at a simple interest rate per annum equal to
the Prime Rate Basis. "Prime Rate Basis" shall mean, on any day, a simple
interest rate per annum equal to the Prime Rate (as defined herein) plus 100
basis points (1.0%). "Prime Rate" shall mean, on any day, the rate of interest
published as the "Prime Rate" as of the last business day of the full calendar
month preceding such day by Bank of America, N.A. (Charlotte, North Carolina),
or any successor institution. The Prime Rate in effect as of the close of
business of each day shall be the applicable Prime Rate for the day and each
succeeding non-business day in determining the applicable Prime Rate Basis.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Interest under this Note shall be due and payable quarterly in arrears
on the last day of each calendar quarter, commencing September 30, 2001, and
continuing to be due on the last day of each calendar quarter thereafter until
this Note is paid in full. Interest shall also be due and payable when this Note
shall become due (whether at maturity, by reason of acceleration or otherwise).
After default, interest shall also be due and payable upon demand from time to
time by the Lender as provided below.
Unless previously made subject to acceleration in accordance with the
provisions of the Loan Agreement, the indebtedness evidenced by this Note shall
be due and payable on December 31, 2001, plus all accrued and unpaid interest as
hereinabove provided.
Overdue principal shall bear interest for each day from the date it
became so due until paid in full, payable on demand, at a rate per annum
(computed on the basis of a 360-day year for the actual number of days elapsed)
equal to two percent (2%) per annum in excess of the interest rate otherwise
payable hereunder.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Borrower or inadvertently received
by the Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Lender, in writing, that the Borrower
elects to have such excess sum returned to it forthwith. It is the express
intent hereof that the Borrower not pay and the Lender not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under applicable law.
The Borrower hereby waives presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest, or any other notice of
any kind with respect thereto.
This Note is entitled to the benefits of the Loan Agreement, which
contains provisions with respect to the prepayment of the Loan. Prepayment of
the Loan may be made by the Borrower as provided in the Loan Agreement.
Time is of the essence of this Note.
This Note shall be deemed to be made pursuant to the laws of the State
of Georgia.
IN WITNESS WHEREOF, the duly authorized officers of the Borrower have
executed, sealed, and delivered this Note, as of the day and year first above
written.
MEDIABIN, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary