Exhibit 10.3
AMENDMENT
THIS AMENDMENT is made and entered into this 28th day of December,
2006 by and between MONEY CENTERS OF AMERICA, INC., a Delaware corporation
("Borrower"), and MERCANTILE CAPITAL, L.P. ("Lender").
BACKGROUND
Borrower and Lender are parties to (a) the Amended and Restated Loan
and Security Agreement, dated as of October 24, 2003 (as amended, supplemented,
extended or otherwise modified from time to time, the "MCA Loan Agreement")
pursuant to which Lender agreed to make loans to Borrower subject to the terms
and conditions contained therein, and (b) the Loan and Security Agreement, dated
as of November 23, 2003 (as amended, supplemented, extended or otherwise
modified from time to time, the "iGames Loan Agreement" and, together with the
MCA Loan Agreement, collectively, the "Loan Agreements") pursuant to which
Lender agreed to make loans to Borrower (successor-by-merger to iGames
Entertainment, Inc., a Nevada corporation) subject to the terms and conditions
contained therein;
Debtor has requested that (i) Lender consent to Borrower entering into
the Junior Loan Agreement (as defined in the Xxxxx Subordination Agreement
defined below) pursuant to which Xxxxx Advisors, LLC ("Junior Creditor") will
finance the Required Payments (as defined below) and certain working capital
needs of Borrower; (ii) Lender agree to extend the maturity date of the
Remaining Loan (as defined below); (iii) Lender agree to amend certain other
provisions of the MCA Loan Agreement; and (iv) Lender agree to terminate the
iGames Loan Agreement. Lender is willing to consent and agree to the foregoing,
but only on the terms and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the promises herein contained, and
each intending to be legally bound hereby, the parties agree as follows:
1. Definitions. Capitalized terms used herein, and not otherwise defined herein,
shall have the meanings assigned to them in the MCA Loan Agreement.
2. Acknowledgment of Obligations.
(a) Borrower acknowledges and agrees that:
(i) Borrower is unconditionally liable to Lender under the Loan Agreements for
the payment of the principal amount of all loans (as described in clause (ii)
below), plus all accrued and unpaid interest, plus all costs and expenses
incurred by Lender, including attorneys' fees and expenses, and all other
Obligations (as separately defined in each of the Loan Agreements), and Borrower
has no defenses, counterclaims, deductions, credits, claims or rights of setoff
or recoupment with respect to the Obligations; and
(ii) as of December 28, 2006, the aggregate outstanding principal balance of (A)
the loans under the MCA Loan Agreement is $4,581,334.87, and (B) the loans
under the iGames Loan Agreement is $2,119,650.83.
(b) Borrower ratifies and confirms its Obligations under the Loan
Agreements and acknowledges and agrees that each of the Loan Agreements and the
other Loan Documents (as separately defined in each of the Loan Agreements)
remain in full force and effect (subject to Section 3(a)(iii) below).
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3. Modifications to Loan Agreements and Pledge Agreement. All of the following
modifications to the Loan Agreements and the Pledge Agreements (as defined
below) are effective as of the Effective Date (as defined below):
(a) Contemporaneously with the Effective Date:
(i) Borrower shall (y) pay in full the outstanding principal balance of the
loans under the iGames Loan Agreement, plus all accrued and unpaid interest
thereon, and (z) pay a portion of the outstanding principal balance of the loans
under the MCA Loan Agreement, plus all accrued and unpaid interest thereon
through January 1, 2007 (the payments described in the preceding clauses (y) and
(z), collectively, the "Required Payments"), in each case, with the proceeds of
the loan made by Junior Creditor under the Junior Loan Agreement such that,
after giving effect to the Required Payments, the outstanding principal balance
under the iGames Loan Agreement will be zero and the outstanding principal
balance under the MCA Loan Agreement will be $2,525,000 (inclusive of $25,000 of
the Amendment Fee described below) (the "Remaining Loan"). The outstanding
principal balance of the Remaining Loan, together with any accrued and unpaid
interest and any unpaid costs and expenses and other Obligations, shall be due
and payable in full in cash on December 31, 2008 (the "Loan Maturity Date").
Interest shall accrue on the Remaining Loan and the other Obligations at a fixed
rate of 12.75% per annum (subject to application of the Default Rate if and when
applicable) calculated on the basis of a 360-day year, counting the actual
number of days elapsed, and shall be payable on the first day of each month
commencing on February 1, 2007 and continuing on the same day of each month
thereafter until all Obligations are paid in full in cash.
(ii) The Remaining Loan will be further evidenced by the Amended and Restated
Promissory Note described below, which note shall not constitute a novation or
extinguishment of the indebtedness evidenced by any prior note in favor of
Lender. All references to the "Revolving Loan Note" or the "Amended and Restate
Revolving Loan Note" contained in the Loan Documents shall be deemed to mean the
Amended and Restated Promissory Note described below.
(iii) The iGames Loan Agreement will be terminated, except that Borrower's
indemnification obligations and grant of a security interest in the collateral
described therein will survive such termination, it being agreed that such
collateral shall continue to secure the Obligations.
For avoidance of doubt, following the Effective Date, except for the Remaining
Loan, no Loans or other extensions of credit will be made available under the
MCA Loan Agreement.
(b) Notwithstanding anything to the contrary contained in
Section 2.5 of the MCA Loan Agreement, Borrower shall not be required to pay the
annual facility fee described in such section.
(c) The parties agree that, with respect to Lender's direct control
arrangements in effect as of the date hereof in respect of substantially all of
Borrower's existing lockboxes, deposit accounts and securities accounts, in lieu
of Lender maintaining such direct control (subject to clause (iii) below), such
control will be maintained by Junior Creditor for itself and as collateral agent
for Lender following the transition of such control arrangements to Junior
Creditor (as described below). In connection with the foregoing, the parties
further agree as follows:
(i) With respect to each lockbox, deposit account and securities account that is
subject to a control agreement in favor of Lender as of the date hereof, so long
as no Event of Default has occurred and is continuing, Lender shall cooperate
with Borrower and Junior Creditor, at Borrower's expense, in an effort to
provide Borrower with prompt access to funds received in or credited to such
lockbox, deposit account or securities account and shall execute and deliver, at
Borrower's expense, such additional documents, in form and substance reasonably
satisfactory to Lender, as may be reasonably necessary to provide Borrower with
such access or to effect the transition of direct control over such accounts as
described in this paragraph 3(c). Borrower shall have sole responsibility for
the transition of such control arrangements to Junior Creditor and agrees that
if such transition is not fully implemented by February 15, 2007, then Borrower
shall pay to Lender, in advance, on such date and on the first day of each month
thereafter commencing March 1, 2007, until such transition is fully implemented,
a non-refundable monthly account administration fee of $2,500. Such transition
will be deemed to be fully implemented when (i) Junior Creditor, for itself and
as collateral agent for Lender, has entered into a control agreement, in form
and substance reasonably satisfactory to Senior Creditor, with respect to each
and every existing deposit account and securities account of Borrower (other
than the Excluded Accounts as defined in Section 3(b) of the Xxxxx Subordination
Agreement), and (ii) Lender is no longer required to remit collections to
Borrower.
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(ii) Borrower agrees to enter into and to use commercially reasonable efforts to
cause Junior Creditor, for itself and as collateral agent for Lender, and each
applicable depository institution to enter a control agreement, in form and
substance reasonably satisfactory to Lender, as promptly as practicable after
the date hereof, with respect to each and every deposit account and securities
account of Borrower in existence as of the Effective Date (other than the
Excluded Accounts) (it being agreed that Borrower may terminate its existing
lockbox arrangements if consented to by Junior Creditor), and to use
commercially reasonable efforts to cause Junior Creditor to continue at all
times to hold control of each such deposit account and securities account for
itself and as collateral agent for Lender (and contemporaneously with Junior
Creditor entering into any such control agreement with respect to any such
account, so long as no Event of Default has occurred and is continuing, Lender
shall cooperate with Junior Creditor, at Borrower's expense, to terminate any
control agreement in favor of Lender in effect as of the Effective Date with
respect to such account); provided, however, that if Junior Creditor enters into
a control agreement with respect to any Excluded Account (or lockbox) or any
deposit account or securities account of Borrower not in existence as of the
Effective Date, then Borrower shall ensure that Junior Creditor holds at all
times control of such account (or lockbox) for itself and as collateral agent
for Lender. Borrower represents and warrants to Lender that, as of the Effective
Date, all lockboxes, deposit accounts and securities accounts of Borrower (other
than the Excluded Accounts) are subject to control agreements in favor of
Lender. If Borrower proposes to establish any lockbox, deposit account or
securities account after the Effective Date, Borrower shall provide Lender with
prompt written notice of the same and Borrower shall ensure that Lender's
security interest is perfected via a control agreement, in form and substance
reasonably satisfactory to Lender, in favor of Junior Creditor, for itself and
as collateral agent for Lender, contemporaneously with the establishment of such
lockbox or account and at all times thereafter.
(iii) Nothing contained in this Section shall impair or otherwise limit Lender's
right to perfect and, following the occurrence and during the continuance of an
Event of Default, enforce directly its Lien in the deposit accounts and
securities accounts of Debtor. If required by Lender, Borrower shall take any
and all actions required by Lender to accomplish the foregoing.
(iv) For avoidance of doubt, this Section supersedes Section 4.3 of the MCA Loan
Agreement.
(d) Section 4.2 of the MCA Loan Agreement is amended by inserting the
words "Upon an Event of Default," before the word "Borrower" in the first line
thereof.
(e) Section 4.8 of the MCA Loan Agreement is deleted in its entirety.
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(f) Section 7.1.1 of the MCA Loan Agreement is amended to require that
all monthly, quarterly and annual financial statements submitted to Lender be
accompanied by an officer's certificate in form and content acceptable to
Lender. In addition, without duplication of items required to be delivered to
Lender under Section 7.1.1 of the MCA Loan Agreement, (i) no later than the time
provided to Junior Creditor, Borrower shall deliver to Lender copies of any
financial, collateral or business condition reports, and copies of any and all
notices of any kind, provided by Borrower to Junior Creditor (except that, in
lieu of delivering to Lender copies of daily or weekly borrowing base
certificates provided to Junior Creditor, Borrower shall deliver to Lender, on a
monthly basis by the end of the first week of each month, a borrowing base
summary with respect to the prior month, in form and substance satisfactory to
Lender), and (ii) immediately upon receipt, Borrower shall deliver to Lender a
copy of any and all notices of any default or event of default provided by
Junior Creditor to Borrower.
(g) The following Sections of the MCA Loan Agreement are amended by
deleting the existing wording thereof and replacing the same with the word
"[Reserved]": 7.1.1(f), 7.1.1(g), 7.1.5, 7.1.7 and 7.2.3.
(h) Notwithstanding anything to the contrary contained in Section 7.2.2
of the MCA Loan Agreement, Lender consents to the Liens of Junior Creditor on
the Collateral granted under the Junior Creditor Documents (as defined in the
Xxxxx Subordination Agreement) and securing the Junior Creditor Obligations (as
defined in the Xxxxx Subordination Agreement) so long as such Liens remain
subject to the Xxxxx Subordination Agreement.
(i) Section 7 of the MCA Loan Agreement is amended by adding a new
Section 7.2.7, which shall read as follows:
"7.2.7. (a) Engage in any sale, transfer, lease, license or other
disposition, outside of the ordinary course of business, of any of its
property;
(b) Acquire all or a material portion of the equity or assets of any
Person in any transaction or in any series of related transactions;
(c) Incur or become liable for any Debt other than the Obligations, the
Junior Creditor Obligations (as defined in the Xxxxx Subordination
Agreement), unsecured Debt to finance vault cash needs in the ordinary
course of business, unsecured Debt to Xxxxxxxxxxx X. Xxxxxxxxxx
(including, without limitation, in respect of deferred compensation),
and trade payables incurred in the ordinary course of business and paid
within customary trade terms;
(d) (i) Make any payment or prepayment in respect of the Junior
Creditor Obligations other than payments of interest and loan fees if
and to the extent expressly permitted under the Xxxxx Subordination
Agreement, or amend or otherwise modify any of the Junior Creditor
Documents (as defined in the Xxxxx Subordination Agreement) other than
amendments and modifications that are expressly permitted under the
Xxxxx Subordination Agreement; or (ii) make any payment or prepayment
in respect of any Debt to Xxxxxxxxxxx X. Xxxxxxxxxx, except that
Borrower may make regularly scheduled, non-default interest payments
(at a reasonable rate of interest) in respect of such Debt so long as
no Event of Default or event which, with the passage of time, the
giving of notice or both, would constitute an Event of Default, exists;
(e) Become or be liable, directly or indirectly, primarily or
secondarily, in any manner, whether as guarantor, surety, accommodation
maker, or otherwise, for the indebtedness or other obligations of any
Person other than through the endorsement in the ordinary course of
business of negotiable instruments for deposit or collection;
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(f) Execute a negative pledge agreement with any Person (other than
Lender and Junior Creditor) covering any of Borrower's property;
(g) Create or acquire any Subsidiary or make or have outstanding any
loans, advances, extensions of credit or capital contributions to, or
investments in, any Person other than extensions of credit in the form
of accounts receivable arising in the ordinary course of business and
investments in cash and cash equivalents;
(h) Declare or pay or make any forms of Distribution (for purposes
hereof, "Distribution" means (x) cash dividends or other cash
distributions on any equity of Borrower, (y) redemption, repurchase,
defeasance or acquisition of such equity or of warrants, rights or
other options to purchase such equity, and (z) any loans or advances to
any shareholder of Borrower);
(i) Declare or pay any deferred or bonus compensation to its officers
if an Event of Default or event which, with the passage of time, the
giving of notice or both, would constitute an Event of Default, exists;
(j) Permit to exist any Lien to exist on the equity of Borrower owned
directly or indirectly by Surety other than Liens of Junior Creditor
securing the Junior Creditor Obligations;
(k) Enter into any transaction with any Affiliate, including, without
limitation, the purchase, sale, or exchange of property, or the loaning
or giving of funds, unless the transaction is in the ordinary course of
and pursuant to the reasonable requirements Borrower's business and
upon terms substantially the same and no less favorable to Borrower as
it would obtain in a comparable arm's length transactions with any
Person not an Affiliate, and so long as such transaction is not
otherwise prohibited hereunder; or
(l) Cease a material portion of its business operations at any time for
a period in excess of 3 Business Days."
The term "Xxxxx Subordination Agreement" contained in new Section 7.2.7
of the MCA Loan Agreement shall have the meaning set forth in Section 7 below.
By his execution of the Surety' Acknowledgment attached hereto,
Xxxxxxxxxxx X. Xxxxxxxxxx agrees not to accept any payment in violation of
Section 7.2.7 of the Loan Agreement
(j) Section 8.1.1 of the MCA Loan Agreement is amended by deleting the
words "provided that it shall not constitute an Event of Default if sufficient
funds are on deposit in the Settlement Account to pay such Obligation and Lender
fails or declines to withdraw such funds to make such payment;".
(k) Section 8.1.2 of the MCA Loan Agreement is amended by deleting the
word "material" in the first and third lines thereof (and replacing the word
"a", which precedes the deleted word "material", with the word "an" in such
third line) and by deleting the last sentence thereof.
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(l) Notwithstanding anything to the contrary contained in the MCA Loan
Agreement(i) the occurrence of any default or event of default under any of the
Junior Creditor Documents (as defined in the Xxxxx Subordination Agreement), or
(ii) the occurrence of any default under the Xxxxx Subordination Agreement
(other than on the part of Lender) shall constitute an immediate Event of
Default under the MCA Loan Agreement.
(m) Section 9.2 of the MCA Loan Agreement is amended by deleting the
last two sentences thereof.
(n) Section 9.2.1 of the MCA Loan Agreement is amended by deleting the
reference to "Revolving Credit Termination Date" in the first line thereof and
replacing the same with "Loan Maturity Date". The term "Loan Maturity Date"
contained in amended Section 9.2.1 of the MCA Loan Agreement shall have the
meaning set forth in Section 3(a) above.
(o) Section 9.8 of the MCA Loan Agreement is amended by deleting the
notice information for Lender and replacing the same with the following:
"If to Lender:
Mercantile Capital, L.P.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with copies to:
JEMA Consulting
00 Xxx Xxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx
Mercantile Capital, L.P.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000"
(p) The definition of "Collateral" contained in Schedule 1 to the MCA
Loan Agreement shall be expanded to include, in addition to the items described
in the current definition, all of Borrower's right, title and interest in and to
all property, whether real, personal or mixed, whether tangible or intangible,
whether now owned or hereafter acquired, created or arising, including, without
limitation, all accounts, chattel paper, deposit accounts, documents, equipment,
fixtures, general intangibles, instruments, inventory and investment property
(in each case, as defined in the UCC), together with all proceeds (as defined in
the UCC) thereof. In furtherance of such modification, Borrower grants to the
Lender, as security for the Obligations, a continuing first priority, perfected
Lien in all of Borrower's right, title and interest in and to the property
described in the preceding sentence, subject to no Liens other than Liens
expressly permitted under the MCA Loan Agreement. Borrower authorizes Lender to
file any financing statements (and any amendments and/or continuations thereof)
naming Lender as the "secured party" and naming Borrower as the "debtor" in any
filing office as Lender may determine. Such financing statements may indicate
that the Collateral consists of "all assets" of Borrower or the like (or any
collateral description of lesser scope and/or more specificity).
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(q) The Collateral Pledge Agreement, dated as of May 2, 2003, between
Xxxxxxxxxxx X. Xxxxxxxxxx and Lender, and the Stock Pledge and Registration
Rights Agreement, dated as of November 26, 2003, between Borrower and Lender
(collectively, the "Pledge Agreements"), together with Lender's security
interest in the equity of Borrower created under each Pledge Agreement, are
terminated. Borrower directs Lender to deliver all stock certificates in
Lender's possession to Junior Creditor. Lender agrees to promptly deliver to
Junior Creditor all such stock certificates and, to the extent applicable, to
promptly deliver to Borrower, following Borrower's request therefor, one or more
lost stock certificate affidavits, in form and substance satisfactory to Lender,
with respect to any stock certificates which Borrower previously delivered to
Lender and which Lender is unable to locate.
4. Amendment Fee. Borrower agrees that Lender has fully earned a non-refundable
amendment fee of $50,000 (the "Amendment Fee") as of the Effective Date.
Borrower shall pay $25,000 of the Amendment Fee, in cash, contemporaneously with
the Effective Date. The remaining $25,000 of the Amendment Fee will be
capitalized into the principal balance of the Remaining Loan and shall be due
and payable as set forth in Section 3(a) above.
5. Release. Borrower knowingly, intelligently and voluntarily releases, waives
and forever relinquishes all claims, demands, obligations, liabilities and
causes of action of whatever kind or nature, whether known or unknown, including
any so-called "lender liability" claims or defenses which Borrower has, may
have, or might assert now or in the future against Lender and its participants,
affiliates, officers, directors, employees, agents, attorneys, accountants,
consultants, successors and assigns, directly or indirectly, arising out of,
based upon, or in any manner connected with (i) any transaction, event,
circumstance, action, failure to act or occurrence of any sort or type, whether
known or unknown, which occurred, existed, or was taken or permitted prior to
the execution of this Amendment with respect the Obligations, the Loan Documents
or the administration thereof, (ii) any discussions, commitments, negotiations,
conversations or communications prior to the execution of this Amendment with
respect to the Obligations, or (iii) any thing or matter related to any of the
foregoing prior to the execution of this Amendment. The inclusion of this
paragraph in this Amendment, and the execution of this Amendment by Lender, does
not constitute an acknowledgment or admission by Lender of liability for any
matter, or a precedent upon which any liability may be asserted.
6. Representations and Warranties.
(a) In order to induce Lender to enter into this Agreement, Borrower
represents and warrants to Lender as follows:
(i) The execution, delivery and performance by Borrower of this Amendment and
the other agreements, instruments and documents referred to herein (A) are and
will be within the corporate power of Borrower, (B) have been authorized by all
necessary corporate action on behalf of Borrower, (C) are not in contravention
of any order or decree of any Governmental Authority, or of any law, rule or
regulation to which Borrower or any of Borrower's property is bound, (D) are not
and will not be in conflict with, or result in a breach of or constitute (with
due notice and/or lapse of time) a default under (x) Borrower's organizational
documents or (y) any indenture, agreement, contract or undertaking to which
Borrower is a party or by which Borrower or Borrower's property is bound, and
(E) will not result in the imposition of any Lien on any of the property of
Borrower other than in favor of the Lender;
(ii) This Amendment and the other agreements, instruments and
documents referred to herein have been duly executed and delivered by Borrower
and constitute Borrower's legal, valid and binding obligations, enforceable
against Borrower in accordance with their respective terms;
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(iii) No consent, approval, authorization or order of, or filing, registration
or qualification with, any Governmental Authority or third party is required in
connection with the execution, delivery or performance by the Borrower of this
Amendment or the other agreements, instruments and documents referred to herein;
(iv) No Event of Default or event which, with the passage of time, the giving
of notice or both would constitute an Event of Default, exists, and no such
event would result from the execution and delivery of, or consummation of the
transactions contemplated by, this Agreement or the other agreements,
instruments and documents referred to herein;
(v) Borrower has not entered into this Agreement or the other agreements,
instruments and documents referred to herein to provide any preferential
treatment to Lender or any other creditor, or with intent to hinder, delay or
defraud any creditor; and
(vi) The exact legal name, type of organization and sole state of organization
of Borrower is as set forth in the preamble to this Amendment.
(b) Borrower confirms, reaffirms and restates to Lender, on and as of
the Effective Date, the representations and warranties set forth in the MCA Loan
Agreement (other than the representation and warranty contained in Section 6.2
of the MCA Loan Agreement) and the other Loan Documents, except to the extent
that such representations and warranties solely relate to a specific earlier
date in which case Borrower confirms, reaffirms and restates such
representations and warranties as of such earlier date. In lieu of the
representation and warranty contained in Section 6.2 of the MCA Loan Agreement,
Borrower represents and warrants to Lender that Borrower (i) is able to realize
upon its assets and pay its debts and other liabilities as they mature in the
normal course of business, (ii) on the Effective Date, after giving effect to
the transactions contemplated hereunder, will have sufficient capital to carry
on its business and (iii) is solvent and will continue to be solvent after the
transactions contemplated hereunder and under the other Loan Documents
(c) All of the representations and warranties contained in this
Amendment shall be considered to have been relied upon by Lender, and shall
survive the delivery to Lender of this Amendment.
7. Effectiveness; Conditions Precedent.
(a) The effectiveness of this Amendment is subject to the following
conditions precedent, including, where applicable, that Lender shall have
received the following documents and other items (all such documents and other
items must be in form and substance satisfactory to the Lender):
(i) This Amendment executed by Borrower;
(ii) The Sureties' Acknowledgment and Mortgage Modification Agreement executed
by Surety;
(iii) The Amended and Restated Promissory Note executed by Borrower
together with a Disclosure of Confession of Judgment executed by Borrower;
(iv) Copies of the Junior Creditor Documents certified by an officer of
Borrower, which Junior Creditor Documents shall provide for a committed term
loan facility of not less $4,750,000 to be funded at closing;
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(v) The Subordination and Intercreditor Agreement (the "Xxxxx Subordination
Agreement") executed by Junior Creditor and acknowledged by Borrower;
(vi) Any and all agreements, instruments and documents required by Lender to
effectuate and implement the terms this Amendment (duly executed, where
appropriate, by Borrower and such other parties, as applicable);
(vii) Evidence that the execution, delivery and performance of this Amendment
and the other agreements, instruments and documents referred to in this Section
by Borrower have been duly authorized by all necessary corporate action,
together with certified copies of the organizational documents of, and good
standing/foreign qualification certificates for, Borrower;
(viii) No litigation, investigation or proceeding before or by any Governmental
Authority shall be continuing or threatened in connection with this Amendment
or the Junior Creditor Documents or any of the transactions contemplated hereby
or thereby, and no injunction, writ, restraining order or other order of any
nature inconsistent with the due consummation of such transactions shall have
been issued by any Governmental Authority;
(ix) Each of the representations and warranties made or reaffirmed by
Borrower in this Amendment or in any of the other agreements, instruments and
documents referred to herein shall be true and correct;
(x) Consummation of the transactions contemplated by the Junior Creditor
Documents (including the funding to Borrower of an amount not less than
$4,750,000) and payment by Borrower, in cash, of the Required Payments and
$25,000 of the Amendment Fee; and
(xi) Payment by Borrower, in cash, of all costs and expenses of Lender,
including the fees and expenses of its counsel, Blank Rome LLP, incurred in
connection herewith.
(b) The date on which all of the conditions precedent set forth in
Section shall have been satisfied or waived is referred to herein as the
"Effective Date."
8. Miscellaneous.
(a) Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute an amendment of or otherwise
affect the rights and remedies of Lender or Borrower under the MCA Loan
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the MCA Loan Agreement or any other Loan Document, all
of which are ratified and affirmed in all respects and shall continue in full
force and effect. This Amendment shall constitute a Loan Document for all
purposes of the MCA Loan Agreement and the other Loan Documents. The Loan
Agreement, as amended by this Amendment, together with the other Loan Documents,
contains the entire agreement between the parties with respect to the
transactions contemplated thereby. The Loan Agreement, as amended by this
Amendment, and the other Loan Documents may amended, modified, waived,
discharged or terminated only by a writing signed by the parties.
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(b) Borrower covenants, confirms and agrees that, as security for the
repayment of the Obligations, Lender has, and shall continue to have, a
continuing first priority, perfected lien on and security interest in the
Collateral, all whether now owned or hereafter acquired, created or arising,
together with all proceeds, as set forth in the MCA Loan Agreement, as modified
hereby, and the other Loan Documents, subject to no Liens other than Liens
expressly permitted under the MCA Loan Agreement. Borrower acknowledges and
agrees that nothing herein contained in any way impairs Lender's existing rights
and priority in the Collateral.
(c) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
(d) This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all of
which counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile or email transmission shall be effective to bind the parties.
(e) Borrower agrees to pay the costs and expenses incurred by Lender in
connection with preparation of this Amendment, including the fees and expenses
of its counsel.
(f) The headings of any section or paragraph of this Amendment
are for convenience only and shall not be used to interpret any provision of
this Amendment.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
ATTEST: MONEY CENTERS OF AMERICA, INC.
By: _____________________________ By: _____________________________________
Name: Name: Xxxxx X. Xxxxx
Its: Its: CFO
MERCANTILE CAPITAL, L.P.
By: ______________________________________
Name: Xxxxxx X. Xxxxx
Its: CFO
SURETIES' ACKNOWLEDGEMENT
Each of the undersigned, Xxxxxxxxxxx X. Xxxxxxxxxx and Xxxxxxx X.
Xxxxxxxxxx, (a) acknowledges the terms and conditions of the foregoing Amendment
and reaffirms his/her continuing joint and several obligations under the Amended
and Restated Surety Agreement and the Open-End Mortgage and Security Agreement
(collectively, the "Surety Documents") by the undersigned in favor of Mercantile
Capital, L.P. ("Lender"), (b) confirms and agrees that all of such obligations
are owing without any defenses, counterclaims, deductions, credits, claims or
rights of setoff or recoupment; (c) covenants, confirms and agrees that, as
security for the repayment of the Obligations, Lender has, and shall continue to
have, a continuing, perfected lien on and security interest in the property that
is subject to the Surety Documents, all whether now owned or hereafter acquired,
created or arising, together with all proceeds, as set forth in the Surety
Documents, subject to no liens or encumbrances other than liens and encumbrances
expressly permitted under the Surety Documents; (d) acknowledges and agrees that
nothing contained in the foregoing Amendment in any way impairs Lender's
existing rights and priority in the property that is subject to the Surety
Documents; (e) agrees not to grant, create or permit to exist any Lien on the
equity of Borrower owned directly or indirectly by the undersigned (or either of
them) other than Liens of Junior Creditor securing the Junior Creditor
Obligations; and (f) acknowledges and agrees that no acknowledgement,
reaffirmation, confirmation, agreement or consent on his/her part is required in
connection with the execution and delivery of the foregoing Amendment, nor will
any such acknowledgement, reaffirmation, confirmation, agreement or consent on
his/her part be required in connection with any future amendment in order for
the Surety Documents to remain in full force and effect, and Lender may continue
to rely on the Surety Documents without any further action on the part of Lender
or the undersigned in any such event.
Each of the undersigned hereby knowingly, intelligently and voluntarily
releases, waives and forever relinquishes all claims, demands, obligations,
liabilities and causes of action of whatever kind or nature, whether known or
unknown, including any so-called "lender liability" claims or defenses which
he/she has, may have, or might assert now or in the future against Lender and
its participants, affiliates, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns, directly or indirectly,
arising out of, based upon, or in any manner connected with (i) any transaction,
event, circumstance, action, failure to act or occurrence of any sort or type,
whether known or unknown, which occurred, existed, or was taken or permitted
prior to the execution of this Sureties' Acknowledgement with respect the
Obligations (as separately defined in each of the Loan Agreements defined in the
foregoing Amendment), the Loan Documents (as separately defined in each of the
Loan Agreements defined in the foregoing Amendment) or the administration
thereof, (ii) any discussions, commitments, negotiations, conversations or
communications prior to the execution of this Sureties' Acknowledgment with
respect to the Obligations, or (iii) any thing or matter related to any of the
foregoing prior to the execution of this Sureties' Acknowledgment. The inclusion
of this paragraph in this Sureties' Acknowledgment does not constitute an
acknowledgment or admission by Lender of liability for any matter, or a
precedent upon which any liability may be asserted.
By its acceptance of this Sureties' Acknowledgment, Lender agrees that the
Pledge Agreements and Lender's security interest in the equity of Borrower
created thereunder are terminated as of the Effective Date.
Capitalized terms used herein, and not otherwise defined herein, shall have
the meanings assigned to them in the foregoing Amendment or in the documents
referenced in the foregoing Amendment, as applicable.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Sureties' Acknowledgment as of the ___ day of December, 2006.
/s/ Xxxxxxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxxxxxx _____________
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Xxxxxxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxxxxxx
