AGREEMENT CONCERNING AMENDMENT AND RESTRUCTURING OF EXISTING FINANCING ARRANGEMENTS
Exhibit
10.11
This Agreement Concerning Amendment and
Restructuring of Existing Financing Arrangements (this “Agreement”) is being
entered into effective as of March 19, 2010 (the “Effective Date”), by and
between XXXX XXXXXXXXX, an individual with a mailing address of 000 Xxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxx 000000 (“Lender”) and NEW CORE HOLDINGS, INC., a
Florida corporation and successor by merger to New Core Banking Systems, LLC,
having a mailing address at 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 000000
(“New Core”).
Recitals
A. New
Core currently is indebted to Lender pursuant to various existing loan
agreements. Such loan agreements (collectively, the “Existing Loan
Documents”) include, without limitation, all of the various notes and loan
documents that are referenced in a certain 2008 Memorandum of Understanding
between New Core and Lender, a copy of which is attached hereto as Exhibit A and
incorporated herein by this reference.
B. Rurbanc
Data Services, Inc. (“RDSI”) is interested in acquiring New Core pursuant to a
merger transaction in which New Core would be merged with and into RDSI or an
entity wholly owned by RDSI (the “Merger Transaction”).
C. Both
New Core and Lender are supportive of the Merger Transaction and both New Core
and Lender expressly acknowledge that the Merger Transaction would be in their
respective economic interests.
D. RDSI’s
willingness to consummate the Merger Transaction is subject, in part, to New
Core and Lender agreeing upon the arrangements provided for in this
Agreement.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound, New Core and
Lender hereby agree as follows:
1. The
total amount of all indebtedness, whether for principal, interest, fees,
penalties, or other obligations of any kind or nature, that, as of the Effective
Date, is owing from New Core to Lender, including, without limitation, all
indebtedness arising and outstanding under the Existing Loan Documents, is
$2,500,000 (the “Aggregate Existing Debt”).
2. The
Aggregate Existing Debt is hereby amended and restructured and, as so amended
and restructured, is (i) evidenced by, and (ii) payable by New Core in
accordance with the terms of, the Amended and Restated Promissory Note in the
form attached hereto as Exhibit B (the “Promissory Note”).
3. In
furtherance of the foregoing, contemporaneous with the execution of this
Agreement, (i) New Core shall execute and deliver the Promissory Note to Lender
and (ii) Lender shall deliver to New Core the originals of all Existing Loan
Documents that currently are in Lender’s possession or otherwise are subject to
Lender’s control.
4. Notwithstanding
anything to the contrary contained in any of the Existing Loan Documents, New
Core and Lender expressly intend that the indebtedness evidenced by and
outstanding under the Promissory Note shall be unsecured debt. In
furtherance thereof, Lender expressly (i) waives and releases, with respect to
the assets and properties of New Core, any and all liens, security interests,
mortgages or other encumbrances that he currently holds or previously may have
held as security for any portion of the Aggregate Existing Debt; and (ii) agrees
to execute and deliver to New Core such additional documents, if any, as New
Core reasonably may request to further evidence, or confirm of record, such
waivers and releases.
5. Lender
represents, acknowledges and confirms that, as of the Effective Date, he shall
have no warrants, options or other rights of any kind or nature that would
entitle or enable him to (i) convert any portion of the Aggregate Existing Debt,
or any portion of the amended and restated indebtedness evidenced by the
Promissory Note, into shares of capital stock of, or other equity interest in,
New Core (collectively, “New Core Equity Interests”) or (ii) purchase or
otherwise acquire any New Core Equity Interests. In furtherance
thereof, Lender expressly waives, cancels and terminates any such warrants,
options or other rights that may exist as of the Effective Date.
6. Lender
and New Core expressly acknowledge that RDSI is an intended third party
beneficiary of this Agreement.
7. Notwithstanding
anything to the contrary contained in this Agreement, in the event that the
Merger Transaction is not consummated by December 31, 2010, Lender shall have
the unilateral right, exercisable by written notice delivered to New Core at any
time during the 60 day period following that date, to terminate and rescind this
Agreement. In the event of such termination and rescission, this
Agreement immediately shall become null and void and of no further force or
effect.
8. This
Agreement, together with the Exhibits attached hereto, sets forth the entire
understanding between New Core and Lender with respect to the subject matter
hereof, and supersedes and replaces all prior oral and written agreements of New
Core and Lender with respect to the subject matter of this Agreement, including,
without limitation, the Existing Loan Documents. This Agreement may
not be modified or amended except in a writing signed by New Core and
Lender.
9. This
Agreement shall be governed and construed in accordance with the local laws of
the State of Florida, without regard to conflict of laws
provisions.
10. This
Agreement shall be binding upon, shall inure to the benefit of, and shall be
enforceable by, the respective successors and assigns of New Core and
Lender.
11. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one and
the same instrument.
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IN
WITNESS WHEREOF, New Core and Lender have executed this Agreement as of the
Effective Date.
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NEW
CORE HOLDINGS, INC.
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/s/ Xxxx
Xxxxxxxxx
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By:
/s/ Xxxx
Xxxxxxxxx
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Xxxx
Xxxxxxxxx
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Its:
President and
CEO
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