Exhibit 10.1
SECOND
MODIFICATION OF LOAN AND CONVERTIBLE DEBENTURE PURCHASE
AGREEMENTS AND RELATED TRANSACTION DOCUMENTS
THIS SECOND MODIFICATION OF LOAN AND CONVERTIBLE DEBENTURE PURCHASE
AGREEMENTS AND RELATED TRANSACTION DOCUMENTS (this "Agreement"), is made and
entered into as of February 25, 2003, between Scores Holding Company, Inc., a
corporation organized and existing under the laws of the State of Utah (the
"Company"), HEM Mutual Assurance Fund Limited, a Hong Kong corporation ("HEM
I"), HEM Mutual Assurance, LLC, a limited liability company ("HEM II") and
Kaplan Gottbetter & Levenson, LLP ("Escrow Agent").
WHEREAS, the Company and HEM I entered into a Loan Agreement dated as
of August 7, 2002 (the "Loan Agreement"), pursuant to which HEM I lent to the
Company the sum of one million dollars ($1,000,000), which loan is evidenced by
a promissory note dated as of August 7, 2002 (the "Promissory Note").
WHEREAS, Heir Holding Company, Inc., a corporation organized and
existing under the laws of the State of Delaware ("Heir"), and a wholly owned
subsidiary of the Company, entered into a Convertible Debenture Purchase
Agreement under Rule 504 under the Securities Act of 1933 (the "504 Purchase
Agreement"), pursuant to which HEM I purchased the Company's 1% Convertible
Debenture in the principal amount of one million dollars ($1,000,000) (the "504
Debenture"). The Company has assumed all of Heir's obligations and liabilities
under the 504 Purchase Agreement and the 504 Debenture, and for all purposes of
this Agreement the Company is considered to be the primary obligor on the 504
Purchase Agreement and the 504 Debenture.
WHEREAS, the Company and HEM II entered into a Convertible Debenture
Purchase Agreement dated as of August 7, 2002 involving a "PIPE" investment (the
"PIPE Purchase Agreement"), pursuant to which, among other things, the Company
agreed to issue a 1% Convertible Debenture (the "PIPE Debenture") to HEM II at a
closing that would occur after certain conditions were met or satisfied.
WHEREAS, pursuant to the PIPE Purchase Agreement the Company issued a
Common Stock Purchase Warrant for five hundred thousand (500,000) shares of the
Company's common stock (the "Termination Warrant"), in the name of HEM II and
delivered it to Kaplan Gottbetter & Levenson (the "Escrow Agent"), to be held in
escrow, pursuant to the terms of an Escrow Agreement dated as of August 7, 2002,
among HEM II, the Company and the Escrow Agent (the "Escrow Agreement").
WHEREAS, pursuant to the PIPE Purchase Agreement the Company and HEM II
executed a Special Registration Rights Agreement (the "Registration Rights
Agreement"), dated as of August 7, 2002, and delivered it to the Escrow Agent to
be held in escrow pursuant to the terms of the Escrow Agreement. The
Registration Rights Agreement grants certain piggyback registration rights to
HEM II.
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WHEREAS, all of the parties hereto entered into a Modification of Loan
and Convertible Debenture Purchase Agreements and Related Transaction Documents
dated as of November 14, 2002 (the "Loan Modification Agreement") pursuant to
which, among other things: (a) the Company and HEM I agreed to certain
prepayments of the Promissory Note and the 504 Debenture, so that the aggregate
outstanding principal balance of the Promissory Note and the 504 Debenture is
one million one hundred ten thousand dollars ($1,110,000) as of the date hereof,
(b) the Termination Warrant and the Registration Rights Agreement were delivered
to HEM II, HEM II exercised the Termination Warrants and received five hundred
thousand (500,000) shares of common stock of the Company (the "Warrant Shares")
and HEM II delivered the Warrant Shares to the Escrow Agent to be held in
escrow, and (c) HEM I delivered two hundred forty one thousand (241,000) shares
of common stock of the Company (the "HEM I Shares") owned by HEM I to the Escrow
Agent to be held in escrow.
WHEREAS, the Company, HEM I, HEM II and Escrow Agent desire to modify
the terms of the Loan Agreement, Promissory Note, 504 Purchase Agreement, 504
Debenture and the Loan Modification Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, the Company , HEM I, HEM II and Escrow Agent agree as follows:
1. Certain Definitions. Capitalized terms used in this Agreement and
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not defined herein shall have the meanings ascribed to them in the 504 Purchase
Agreement, PIPE Purchase Agreement and the Loan Modification Agreement, as the
context requires.
2. Adjustments to Promissory Note and 504 Debenture. The Company and
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HEM I warrant, represent and agree that as of the date hereof the outstanding
principal balance of the Promissory Note is five hundred fifty five thousand
($555,000) and the outstanding principal balance of the 504 Debenture is five
hundred fifty five thousand ($555,000). In all other respects, the Promissory
Note and the 504 Debenture shall remain in full force and effect in accordance
with their terms.
3. Notation on Promissory Note and 504 Debenture. The original executed
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copy of each of the Promissory Note and the 504 Debenture shall be endorsed with
a legend on the face thereof which states as follows: "The terms of payment of
this instrument have been modified by an Agreement dated [the date of this
Agreement], a copy of which is annexed to this instrument. Any assignee or
transferee of this instrument takes it subject to the terms of said Agreement."
4. Warrant Shares and Registration Rights Agreement. Simultaneously
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with the execution of this Agreement, the Escrow Agent shall release and deliver
the certificates for the Warrant Shares and the Registration Rights Agreement to
HEM II.
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5. HEM I Shares. Simultaneously with the execution of this Agreement,
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the Escrow Agent shall release and deliver the certificates for the HEM I Shares
to HEM I or to its designee.
6. General. Except as herein specifically provided to the contrary, the
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504 Purchase Agreement, the 504 Debenture, the Loan Agreement, the Promissory
Note and the Loan Modification Agreement shall remain in full force and effect
in accordance with their terms.
[Signatures on following page]
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In witness whereof, the undersigned have executed this Agreement as of
the day first written above.
Scores Holding Company, Inc.
By: _______________________
Name: _____________________
Title:______________________
Hem Mutual Assurance Fund Limited
By: _______________________
Name: _____________________
Title:______________________
Hem Mutual Assurance, LLC
By: _______________________
Name: _____________________
Title:______________________
Kaplan Gottbetter & Levenson, LLP
By: _______________________
Name: _____________________
Title:______________________
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