EXHIBIT 10.9
THIRD AMENDMENT TO MASTER AGREEMENT
This Third Amendment to Master Agreement dated as of July 31, 2002
("THIRD AMENDMENT"), is executed by and among the parties set forth on the
signature pages hereto.
RECITALS
A. ORIGINAL AGREEMENT. The parties hereto are parties to that certain
Master Subordination, Waiver, Release and Indemnification Agreement, dated as of
March 27, 2002, as amended (as amended prior to the date hereof, the "ORIGINAL
AGREEMENT").
B. DEFINED TERMS. Each capitalized term that is not otherwise defined
herein shall have the meaning ascribed to such term in the Original Agreement.
C. ADDITIONAL OBLIGATIONS. Watley, Watley, Inc. and Integrated Software
Solutions, Inc. ("INTEGRATED") are parties to a certain Asset Purchase Agreement
(the "ASSET PURCHASE AGREEMENT") dated the date hereof as well certain Related
Documents (as defined therein).
D. AMENDMENTS. As a condition precedent to the Closing (as defined in
the Asset Purchase Agreement), the parties hereto have agreed that the Original
Agreement shall be amended as set forth herein, and that as a result, all of the
references in the Transaction Documents shall be correspondingly amended.
E. MASTER AGREEMENT. The Original Agreement, as amended by this Third
Amendment, shall be the "MASTER AGREEMENT," as such term is used in the
Transaction Documents.
AGREEMENT
In consideration of the agreements contained herein, the parties hereto
hereby agree as follows:
Section 1. AMENDMENTS. The Parties hereto recognize and agree
that, from and after the date hereof, Section 5.01 of the Original Agreement
shall be deleted and the following new text inserted in lieu thereof:
Section 5.01 RELEASE OF XXXXXX, ET AL. Each of Watley, Watley,
Inc., the Related Parties, the members of the Malin Group, SDS (in SDS`s
capacity as a holder of Preferred Stock), and the members of the DMG Group (in
such members` capacity as holders of Preferred Stock), for itself, its
successors and assigns, and such individuals` heirs, legal representatives and
assigns, as applicable (collectively, the "RELEASING Parties"), does hereby
unconditionally and irrevocably compromise, settle, remise, acquit, and fully
and forever release and discharge Xxxxxx, Integrated and their affiliates and
subsidiaries and their officers, servants, employees, agents, attorneys,
principals, directors and shareholders, as well as their respective heirs, legal
representatives, successors, and assigns (collectively, the "RELEASED PARTIES")
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from any and all claims, demands, causes of action, obligations, remedies,
suits, damages, and liabilities (collectively, the "CLAIMS") of any nature
whatsoever, whether now known, suspected or claimed, whether arising under
common law, in equity, or under statute, which the Releasing Parties ever had,
now have, or in the future may claim to have against the Released Parties which
may have arisen at any time on or prior to the date hereof in any manner related
to (a) the Clearing Agreement and the License Agreement among Watley, Watley,
Inc. and Xxxxxx dated as of June 1, 2002, and Xxxxxx`s obligations thereunder,
the Original Xxxxxx Loan, the Xxxxxx Loan, the other Transaction Documents, or
the enforcement or attempted enforcement by Xxxxxx of its rights, remedies or
recourses related thereto and (b) the execution and delivery of the Asset
Purchase Agreement and each Related Document, as well as the transactions
contemplated by the Asset Purchase Agreement in connection with such actions as
may be taken after the date hereof by the Released Parties to negotiate
transfers of Assets (as defined in the Asset Purchase Agreement) and Assumed
Liabilities (as defined in the Asset Purchase Agreement) with third parties in
furtherance of performance by the Released Parties of the terms of the Asset
Purchase Agreement and/or to the extent the performance by the Released Parties
of the Related Documents is affected thereby. Each Releasing Party acknowledges
having had the opportunity to seek the advice of counsel and to review the
documents and transactions referenced in this Section 5.01.
The Parties hereto also agree that, from and after the date hereof, (a) Exhibit
A to the Original Agreement shall be deleted and the attached Exhibit A inserted
in lieu thereof, (b) they are consenting, after careful consideration, to the
execution, delivery and performance of the Asset Purchase Agreement and all
Related Documents and that defined terms used in .the Original Agreement
(including, without limitation, Xxxxxx Note, Xxxxxx Loan and Senior
Indebtedness) as well as other Transaction Documents shall be deemed modified to
give effect to the transactions contemplated by the Asset Purchase Agreement and
all Related Documents, and (c) the Original Agreement, as amended hereby, and
the other Transaction Documents, shall be broadly construed to afford Xxxxxx
their intended benefits notwithstanding the execution, delivery and performance
of the Asset Purchase Agreement and the Related Documents.
Section 2. Intentionally Omitted. Section 3. EFFECT OF
AMENDMENT. Except as expressly stated herein or as otherwise expressly agreed by
the parties thereto, (a) the Transaction Documents are and shall be unchanged
and remain in full force and effect, and (b) this Third Amendment shall not
constitute a waiver of any Default or Event of Default (as such capitalized
terms are defined in the Xxxxxx Note), or a waiver of the right of Xxxxxx to
insist upon compliance with any term, covenant, condition, or provision of the
Transaction Documents, as amended hereby. Except as specifically stated herein,
the execution and delivery of this Third Amendment shall in no way release, harm
or diminish, impair, reduce or otherwise affect, the respective obligations and
liabilities of the parties under the Transaction Documents, all of which shall
continue in full force and effect.
Section 4. MISCELLANEOUS. This Third Amendment is a contract
made under and shall be construed in accordance with and governed by the laws of
the state of New York. This Third Amendment shall benefit and bind the parties
hereto and their respective assigns, successors and legal representatives. This
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Third Amendment may be executed in two or more counterparts, and it shall not be
necessary that the signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument. All titles or
headings to the sections or other divisions of this Third Amendment are only for
the convenience of the parties and shall not be construed to have any effect or
meaning with respect to the other content of such sections, subsections or the
divisions, such other content being controlling as to the agreement between the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XXXXXX FINANCIAL SERVICES, INC., a
North Carolina corporation
By:
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Name:
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Title:
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SDS MERCHANT FUND, L.P., a Delaware limited
partnership
By:
----------------------------------------
SDS Capital Partners, LLC, its general
partner
By:
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Xxxxxx Xxxxx, Managing Member
DMG LEGACY INTERNATIONAL LTD., a
British Virgin Islands corporation
By:
----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------------
DMG LEGACY INSTITUTIONAL FUND,
LLC, a Delaware limited liability company
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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DMG LEGACY FUND, LLC, a Delaware limited
liability company
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------------
X. X. XXXXXX GROUP INC., a
Delaware corporation
By:
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Name:
------------------------------------------
Title:
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X. X. XXXXXX, INC., a New
York corporation
By:
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Name:
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Title:
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RELATED PARTIES:
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XXXXXX XXXXX
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XXXXXX XXXXX
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XXXXX XXXXX
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XXXX XXXXXXXXX
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---------------------------------------------
XXXX XXXXXXXX
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XXXXXXX X. XXXXXX
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XXXXXXX XXXXXXX
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XXXXXXX XXXXX
MALIN GROUP MEMBERS:
LAN/WAN, INC.
By:
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Xxxxxx Xxxxx, President
ATLANTIC GROUP, INC.
By:
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Xxxxxx Xxxxx, President
KETER CORP.
By:
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Xxxxx Xxxxx, President
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XXXXXX XXXXX
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XXXXXXX X. XXXXXX
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XXXX XXXXXXXXX
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