EXHIBIT 10.4.11
AMENDING AGREEMENT
AGREEMENT, dated as of April 9, 2001, by and among Gibralter Publishing,
Inc., a North Carolina corporation ("Gibralter"), Paladyne Corp., a Delaware
corporation ("Paladyne"), and e-commerce support centers, inc., a North Carolina
corporation and wholly-owned subsidiary of Paladyne ("ecom").
R E C I T A L S
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WHEREAS, Paladyne, ecom and E-COM ACQUISITION CORP., a North Carolina
corporation and wholly-owned subsidiary of Paladyne ("Acquisition Sub"), and
ecom entered into an Agreement and Plan of Merger dated December 21, 2000 (and
which closed on February 1, 2001 (the "Closing")) and as amended (the "Merger
Agreement"), whereby Acquisition Sub was merged with and into ecom (the
"Merger"); and
WHEREAS, Paladyne, ecom and Gibralter entered into certain other related
agreements at the time of the Closing; and
WHEREAS, however, because of changes in the business and the business plan
of ecom due to certain unforeseen conditions, it is advantageous to all parties
to amend or eliminate certain arrangements entered into by them at the time of
the Merger.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
1. Amendments to Promissory Notes.
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(a) Promissory Note A, dated February 1, 2001, is amended and
restated in the form attached hereto as Exhibit A.
(b) Promissory Note B, dated February 1, 2001, is amended and
restated in the form attached hereto as Exhibit B.
2. Termination of Agreements.
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(a) The Default and Assignment Agreement, dated February 1, 2001, by
and among ecom, Gibralter, and Paladyne is hereby terminated.
(b) The Secondary Operating Agreement, dated February 1, 2001, by and
among ecom and Gibralter is hereby terminated.
3. Termination of Escrow.
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(a) The Escrow Agreement, dated February 1, 2001, by and among
Gibralter, ecom, Paladyne, and Kilpatrick Stockton (the "Escrow Agent") is
hereby terminated.
(b) By this Agreement, Gibralter, ecom, and Paladyne hereby give
notice to the Escrow Agent that the Escrow Agreement described above is
terminated, due to the termination of the Default and Assignment Agreement and
the Secondary Operating Agreement (the "Escrowed Agreements"). The Escrow Agent
is hereby directed to deliver the Escrowed Agreements to Paladyne for
termination.
4. Continuation of Agreements. Notwithstanding the amendments to
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Promissory Note A and Promissory Note B, and the termination of the Default and
Assignment Agreement, the Secondary Operating Agreement, and the Escrow
Agreement, as described above,
4.1 ecom confirms that the Security Agreement dated February 1, 2001
between ecom and Gibralter remains in full force and effect; and
4.2 Paladyne confirms that the Unconditional Guaranty Agreement,
dated February 1, 2001 among ecom, Paladyne, and Gibralter remains in full force
and effect.
5. ecom Receivables. Gibralter acknowledges that ecom or Paladyne can
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obtain bank or institutional financing which is to be secured by the receivables
of ecom (the "Receivables"), provided, that, if needed, Gibralter could obtain a
second security interest in the Receivables. Gibralter further acknowledges that
Paladyne may offer and sell up to $500,000 principal amount of Convertible
Subordinated Debentures.
6. Miscellaneous.
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6.1 Notices. All notices, requests, demands, delivery of Documents
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and any and all other communications hereunder shall be in writing, sent via US
mail, first class, postage prepaid, upon proof of sending thereof to the
following addresses:
(i) If to Gibralter: Gibralter Publishing, Inc.
1650A Gum Branch Road
Jacksonville, NC 28540
(ii) If to Paladyne: Paladyne Corp.
P.O. Box 22207
Lake Buena Vista, FL 32830
Attention: John Foster, Chairman
(iii) If to ecom: e-commerce support centers, inc.
1650A Gum Branch Road
Jacksonville, NC 28540
or at such other address as any of the parties to this Agreement may hereafter
designate in the manner set forth above to the others.
6.2 Governing Law. This Agreement shall be construed and enforced in
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accordance with the law of the State of North Carolina applicable to contracts
entered into and performed entirely within North Carolina.
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6.3 Counterparts. This Agreement may be executed in two or more
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counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the even that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation on the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
6.4 Binding Agreement. This Agreement shall be binding upon and inure
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to the benefit of the parties and their successors and permitted assigns. The
assignment by a party of the Agreement or any rights hereunder shall not affect
the obligations of such party under this Agreement.
6.5 Entire Agreement. This Agreement sets forth the entire agreement
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among the parties hereto as to the subject matter herein, and cannot be amended,
modified or terminated except by a writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed the day and year first above written.
Gibralter:
GIBRALTER PUBLISHING, INC.
By: /s/ Terrence J. Leifheit
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Name: Terrence J. Leifheit
Title: President
Paladyne:
PALADYNE CORPORATION
By: /s/ John D. Foster
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Name: John D. Foster
Title: Chairman
ecom:
E-COMMERCE SUPPORT CENTERS, INC.
By: /s/ Terrence J. Leifheit
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Name: Terrence J. Leifheit
Title: President
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EXHIBIT A
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EXHIBIT B
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