Exhibit 10.3
WAIVER
WAIVER AGREEMENT, effective as of April 10, 2007 (the
"Waiver"), with respect to that certain Loan Agreement, dated as of March 22,
2004, between Optionable, Inc., a Delaware corporation (the "Borrower") and Xxxx
Xxxxxxxxx, an individual (the "Lender") (the "Loan Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to the Loan
Agreement;
WHEREAS, Section 2.b.2 of the Loan Agreement provides, in
part, that following the first financing, the Borrower shall prepay Lender a
certain portion of the Loan (as defined in the Loan Agreement) and shall begin
to pay interest on the remaining unpaid balance;
WHEREAS, the Borrower and the Lender are parties to a Stock
and Warrant Purchase Agreement, dated as of April 10 , 2007, (the "Stock and
Warrant Purchase Agreement") by and among the Borrower, the Lender, NYMEX
Holdings, Inc. ("NYMEX"), Xxxxxx X'Xxxxxx, through Ridgecrest Capital, Inc., a
New York corporation and Xxxxx Xxxxxxx, through Xxxxxxxx Capital, Inc., a New
York corporation; and
WHEREAS, Section 8.2(e) of the Stock and Warrant Purchase
Agreement provides that the execution and delivery by Lender of this Waiver is a
condition to NYMEX's obligation to close the transactions contemplated by the
Stock and Warrant Purchase Agreement; and
WHEREAS, closing of the transactions contemplated by the Stock
and Warrant Purchase Agreement will confer substantial benefits upon both the
Borrower and the Lender;
NOW THEREFORE, in consideration of the premises, the mutual
covenants contained herein and the benefits to be conferred upon each as a
result of the closing of the transactions contemplated by the Stock and Warrant
Purchase Agreement, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined
in the Loan Agreement shall have the meanings assigned to them in the Loan
Agreement when used herein.
2. Waiver to Loan Agreement. The Lender hereby waives any
requirement under the Loan Agreement (a) that the Company make any prepayment of
principal thereunder, or (b) that the Company begin to pay interest thereunder,
as a result of any exercise or exercises of the Warrant (as defined in the Stock
and Warrant Purchase Agreement).
3. Conditions to Effectiveness. This Waiver shall be effective
on the date when the Stock and Warrant Purchase Agreement shall have been
executed by the parties thereto (the "Waiver Effective Date").
4. Miscellaneous.
(a) Governing Law. The validity, interpretation,
performance and enforcement of this Agreement shall be governed by the
laws of the State of New York, without giving effect to the laws, rules
or principles of such State regarding conflicts of laws (other than
Section 5-104 of the General Obligations Laws of the State of New
York).
(b) Benefit Assignment. This Waiver shall be binding
upon and shall inure to the benefit of Borrower and Lender and their
respective successors and permitted assigns. Neither Borrower nor
Lender may assign any of their respective rights or delegate any of
their respective duties under this Waiver without the prior written
consent of the other party and any assignment or delegation of this
Waiver by either party without the prior written consent of the other
party shall be void.
(c) Third Party Beneficiaries. NYMEX shall be a third
party beneficiary of the waiver by Lender set forth in Section 2 of
this Waiver.
(d) Severability; Reformation. If a court of
competent jurisdiction determines that any provision of this Waiver is
invalid, unenforceable or illegal for any reason, such determination
shall not affect or impair the validity, legality and enforceability of
the other provisions of this Waiver which shall remain in full force
and effect in the same manner and to the same extent as if the invalid,
unenforceable or illegal provision had not been contained in this
Waiver. If any such invalidity, unenforceability or illegality of a
provision of this Waiver becomes known or apparent to any of the
parties, the parties shall negotiate promptly and in good faith in an
attempt to make appropriate changes and adjustments to such provision
specifically and this Waiver generally to achieve as closely as
possible, consistent with applicable law, the intent and spirit of such
provision specifically and this Waiver generally.
(e) Headings. The headings set forth in this Waiver
have been inserted for convenience of reference only, shall not be
considered a part of this Waiver and shall not limit, modify or affect
in any way the meaning or interpretation of this Waiver.
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(f) Amendments and Modifications. No addition to, and
no cancellation, renewal, extension, modification or amendment of, this
Waiver shall be binding upon any party unless such addition,
cancellation, renewal, extension, modification or amendment is
expressly set forth in a written instrument which is executed and
delivered by all of the parties hereto by authorized representatives of
each party.
(g) Waiver. No waiver of any provision of this Waiver
shall be binding upon a party unless such waiver is expressly set forth
in a written instrument which is executed and delivered on behalf of
such party by an authorized representative of such party. Such waiver
shall be effective only to the extent specifically set forth in such
written instrument. Neither the exercise (from time to time and at any
time) by a party of, nor the delay or failure (at any time or for a
period of time) to exercise, any right, power or remedy shall
constitute a waiver of the right to exercise, or impair, limit or
restrict the exercise of, such right, power or remedy or any other
right, power or remedy at any time and from time to time thereafter. No
waiver of any right, power or remedy of a party shall be deemed to be a
waiver of any other right, power or remedy of such party or shall,
except to the extent expressly so waived, impair, limit or restrict the
exercise of such right, power or remedy.
(h) Counterparts. This Waiver may be executed in any
one or more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same
instrument.
[Execution Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Waiver to be
executed and delivered by their respective duly authorized officers as of the
day and year first above written.
OPTIONABLE, INC.,
as Borrower
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: CEO
XXXX XXXXXXXXX,
as Lender
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
[SIGNATURE PAGE TO WAIVER AGREEMENT]
