EXHIBIT 10.23
AMENDMENT NUMBER ONE TO
INTERCREDITOR AND SUBORDINATION AGREEMENT
This AMENDMENT NUMBER ONE TO INTERCREDITOR AND SUBORDINATION AGREEMENT,
dated as of January 13, 2003 (this "Amendment"), amends that certain
Intercreditor and Subordination Agreement, dated as of April 28, 1998 (the
"Subordination Agreement"), by and among THE VALUE REALIZATION FUND, L.P., a
California limited partnership, CANYON VALUE REALIZATION FUND (CAYMAN), LTD.,
GRS PARTNERS II, CPI SECURITIES L.P., a California limited partnership
(collectively, the "Subordinating Lender"), on the one hand, and COAST BUSINESS
CREDIT, a division of Southern Pacific Bank, a California corporation ("Coast"),
on the other hand. All initially capitalized terms used in this Amendment shall
have the meanings ascribed thereto in the Subordination Agreement unless
specifically defined herein.
RECITALS
WHEREAS, Subordinating Lender and Coast wish to amend the Subordination
Agreement pursuant to the terms and provisions set forth in this Amendment; and
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
Section 1. AMENDMENT TO SECTION 1 OF THE SUBORDINATION AGREEMENT.
Section 1 of the Subordination Agreement is hereby amended by adding the
following definition to such section:
""Excess Cash Flow" means, in any fiscal period, Borrower's EBITDA, as
such term is defined in the Senior Loan Agreement, minus cash capital
expenditures, minus cash tax expenses, minus capitalized software
development costs, minus all principal payments on all debt, minus all
interest payments on all debt."
Section 2. AMENDMENT TO SECTION 3(b) OF THE SUBORDINATION AGREEMENT.
Section 3(b) of the Subordination Agreement is hereby amended by deleting such
Section in its entirety and replacing it with the following:
"Restricted Payments to Subordinating Lender. Except as expressly
provided in this Agreement, MAI and Subordination Lender Agree that MAI
shall not make any payments to Subordinating Lender in respect of the
Junior Debt, whether on account of principal or interest, or whether by
way of prepayment, payment on maturity or acceleration, redemption or
purchase, until such time as the Senior Debt shall have been paid in
full by MAI to Senior Lender. Notwithstanding the foregoing, and
subject to the provisions of Section 3(c) below, provided that all
payments then due and payable on the Senior Debt have been first paid
in full,
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MAI may make monthly payments of unpaid interest accrued under the
Notes in an amount not to exceed Fifty-two Thousand Dollars ($52,000);
provided, however, that Excess Cash Flow in excess of One Hundred
Twenty-five Thousand Dollars in any given month shall be divided
equally between Senior Lender and Subordinating Lender."
ARTICLE II
GENERAL PROVISIONS
Section 1. CONDITION PRECEDENT. This Amendment shall be effective and
the effectiveness of this Amendment is expressly conditioned upon (a) the
receipt by Coast of a copy of this Amendment duly executed by Subordinating
Lender and Borrower, and (b) the receipt by Coast of a copy of that certain
Amendment Number Seven To Loan And Security Agreement, of even date herewith,
duly executed by Borrower.
Section 2. ENTIRE AGREEMENT. The Subordination Agreement, as amended
hereby, embodies the entire agreement and understanding between the parties
hereto and supersedes all prior agreements and understandings relating to the
subject matter hereof. Borrower represents, warrants and agrees that in entering
into the Subordination Agreement, and consenting to this Amendment, it has not
relied on any representation, promise, understanding or agreement, oral or
written, of, by or with, Coast or any of its agents, employees, or counsel,
except the representations, promises, understandings and agreements specifically
contained in or referred to in the Subordination Agreement, as amended hereby.
Section 3. CONFLICTING TERMS. In the event of a conflict between the
terms and provisions of this Amendment and the terms and provisions of the
Subordination Agreement, the terms of this Amendment shall govern. In all other
respects, the Subordination Agreement, as amended and supplemented hereby, shall
remain in full force and effect.
Section 4. MISCELLANEOUS. This Amendment shall be governed by and
construed in accordance with the laws of the State of California. This Amendment
may be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any party hereto may execute this Amendment by
signing such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers thereunto duly authorized as of the
date first above written.
COAST
COAST BUSINESS CREDIT,
a division of Southern Pacific Bank,
a California corporation
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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SUBORDINATING LENDER
BORROWER
THE VALUE REALIZATION FUND, L.P.,
a California limited partnership
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
CANYON VALUE REALIZATION FUND
(CAYMAN), LTD.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
GRS PARTNERS II
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
CPI SECURITIES L.P.,
a California limited partnership
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
BORROWER:
MAI SYSTEMS CORPORATION,
a Delaware corporation
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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HOTEL INFORMATION SYSTEMS, INC.,
a Delaware corporation
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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