THIRD AMENDMENT TO AMENDED, CONSOLIDATED
AND RESTATED 10% SENIOR SUBORDINATED SECURED NOTE
THIS THIRD AMENDMENT TO THE AMENDED, CONSOLIDATED AND
RESTATED 10% SENIOR SUBORDINATED SECURED NOTE (the "Amendment")
is dated as of December 9, 2003 (the "Effective Date") by and
between COMTEX News Network, Inc., a Delaware Corporation (the
"Company") and AMASYS Corporation, a Delaware Corporation
("Holder").
A. Holder is the successor in interest and the holder
pursuant to that certain Assignment and Assumption Agreement
dated October 11, 1996 of that certain Amended, Consolidated and
Restated 10% Senior Subordinated Secured Note dated as of May 16,
1995, executed and delivered by the Company to the order of
Infotechnology, Inc. in the principal amount of Eight Hundred
Fifty-six Thousand Nine Hundred Fifty-four Dollars ($856,954) (as
amended, supplemented, replaced, restated or otherwise modified
from time to time, the "Note"). Capitalized terms used in this
Amendment and not otherwise defined herein shall have the
respective meanings assigned in the Note.
B. Company and Holder executed the First Allonge to the
Amended, Consolidated and Restated 10% Senior Subordinated
Secured Note as of June 20, 1999.
C. Company and Holder executed the Second Amendment to the
Amended, Consolidated And Restated 10% Senior Subordinated
Secured Note as of August 31, 2001.
D. Holder executed a Subordination Agreement between
Holder and Silicon Valley Bank as of December 9, 2003, in order
to induce Silicon Valley Bank to extend credit to the Company.
In consideration of such Subordination Agreement, the Company
agrees to reduce the Conversion price of the Note.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants
herein and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree
as follows:
1. Incorporation of Recitals. The Recitals set forth above
are incorporated herein by reference as if fully set forth in the
text of this Amendment.
2. Definitions. Capitalized terms used in this Amendment
and not otherwise defined shall have the meanings assigned in the
Note.
3. Amendment to Note. The Note is, effective as of the date
hereof, and subject to the satisfaction of the terms and
conditions set forth herein, hereby amended as follows:
(a) Repayment Term. The first sentence of the first
full paragraph of the Note following the recitals is hereby
amended and restated in its entirety to read as follows: "The
Company promises to pay to the Holder at such place as the Holder
shall direct, the principal sum of $856,953.73 on July 1, 2008
(the "Due Date") together with interest at the rate of ten
percent (10%) per annum on the unpaid principal balance
("Principal") of this Note from time to time outstanding."
(b) Conversion. Section 9 shall be replaced in its
entirety as follows:
9. Conversion. At any time prior to the
repayment of this Note, Holder may, upon written
notice, convert all or a portion of the outstanding
Principal Amount, plus accrued interest, into common
stock of Company at the defined per share Conversion
price, by providing written notice to Company. The
Conversion price shall be $0.75 per share, plus an
additional $0.05 every one hundred eighty (180)
calendar days commencing on the Effective Date.
4. Acknowledgement. Company acknowledges and affirms its
agreement to pay the Note, as modified in this Amendment, in
accordance with the terms hereof and thereof, and to perform,
comply with and be bound by each and every one of the other terms
and provisions of the Note, as modified by this Amendment.
5. No Novation. Company and Holder agree that this Amendment
shall not constitute a novation of the indebtedness evidenced by
the Note. Nothing herein contained shall in any way be construed
to impair the Note (as modified hereby) as evidencing a single
principal indebtedness of Company payable to the order of Holder.
6. Full Force and Effect. Except as specifically set forth
herein, all terms and provisions of the Note shall remain
unchanged and in full force and effect.
7. Successors and Assigns. This Amendment shall be binding
upon and shall inure to the benefit of the parties thereto and
their respective heirs, executors, administrators, personal
representatives, successors and assigns.
8. Severability. In case any one or more of the provisions
contained in this Amendment shall be invalid, illegal or
unenforceable, the validity and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above
written.
COMPANY
COMTEX NEWS NETWORK, INC.
By: /S/ STEPHEN W. ELLIS
Name: STEPHEN W. ELLIS
Title: CHAIRMAN AND CEO
HOLDER
AMASYS CORPORATION
By: /S/ THOMAS MCMAHAN
Name: THOMAS MCMAHAN
Title: DIRECTOR