FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST
AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is dated as of October 21,
2010 and effective as of September 3, 2010, by and between ACCESS TO
MONEY, INC.
("Borrower"); TRM ATM
CORPORATION, ACCESS TO MONEY ACQUISITION CORPORATION F/K/A TRM ATM ACQUISITION
CORPORATION, LJR CONSULTING CORP., AND ACCESS TO MONEY-SL, INC. (each individually, a
“Guarantor” and collectively, the
“Guarantors”); and SOVEREIGN
BANK
(“Bank”).
BACKGROUND
A. Borrower
and Bank have previously entered into a certain Loan and Security Agreement
dated September 3, 2010 (as amended and as it may be further amended,
supplemented or restated from time to time, the “Loan Agreement”).
B. The
repayment of the Obligations under the Loan Agreement are secured by a first
priority lien on substantially all of Borrower’s assets. The
repayment of the Obligations is guaranteed by the Guarantors.
X. Xxxxx,
Xxxxxx & Co., L.L.C., (“Xxxxx”) and the other lenders
party thereto (collectively with Xxxxx, the “Subordinate Lenders”),
Borrower and Guarantors are parties to that certain Amended and Restated Loan
and Security Agreement dated September 3, 2010 (as amended, and as it may be
amended, supplemented or restated from time to time, the “Xxxxx Loan
Agreement”). Pursuant to the Xxxxx Loan Agreement, the
Subordinate Lenders continued to provide financing to Borrower.
D. Subordinate
Lenders and Bank are parties to that certain Intercreditor and Subordination
Agreement dated September 3, 2010 (as amended, the “Intercreditor Agreement”),
wherein Bank and Subordinate Lenders agreed to set forth certain rights and
remedies relating to their respective loans and Collateral (as defined in the
Intercreditor Agreement).
E. Pursuant
to a Subordinated Promissory Note dated April 18, 2008 (the “Xxxxxxx Note”), as
amended, Borrower is indebted to Xxxxxxx Xxxxxxx (“Xxxxxxx”) in the amount of
$9,754,465.00. The Xxxxxxx Note is subordinated to the Obligations
under the Loan Agreement not only by its terms, but pursuant to a Subordination
Agreement dated September 3, 2010.
F. Borrower
and Bank are entering into this Amendment to, inter alia, amend
certain terms and conditions of the Loan Agreement on the terms and subject to
the conditions set forth herein.
G. Capitalized
terms not otherwise defined in this Amendment shall have the meanings set forth
therefor in the Loan Agreement.
NOW
THEREFORE in
consideration of the foregoing premises and intending to be legally bound, the
parties hereto agree as follows:
1. Amendment
to Section 10.17. Section 10.17 of the Loan Agreement is
hereby amended by deleting the reference to “$3,750,000.00” contained therein
and replacing it with “$3,250,000.00”.
2. Amendment
to Section 11.1. Section 11.1 is hereby amended by deleting
the reference to “$2,750,000.00” contained therein and replacing it with
“$2,000,000.00”.
3. Covenants
and Representations and Warranties. Borrower
hereby:
3.1 ratifies,
confirms and agrees that the Loan Agreement, as amended by this Amendment, and
all Loan Documents, are valid, binding and in full force and effect as of the
date of this Amendment.
3.2 agrees
it does not have any defense, set-off, counterclaim or challenge against the
payment of any sums owed or owing under the Loan Agreement and the Loan
Documents or the enforcement of any of the terms of the Loan Agreement or the
Loan Documents.
3.3 ratifies,
confirms and continues all liens, security interests, pledges, rights and
remedies granted to Bank in the Loan Agreement and the Loan Documents and agrees
that such liens, security interests and pledges shall secure all of the
Obligations under the Loan Agreement and the Loan Documents as amended by this
Amendment.
3.4 represents
and warrants that all representations and warranties in the Loan Agreement and
the Loan Documents are true, correct and complete as of the date of this
Amendment.
3.5 represents
and warrants that all schedules and exhibits attached to and made part of the
Loan Agreement and the Loan Documents, as modified in Exhibit
A hereto, are true, correct and complete as of the date of
this Amendment.
3.6 represents
and warrants that no condition or event exists after taking into account the
terms of this Amendment which would constitute a Default or an Event of
Default.
3.7 represents
and warrants that the execution and delivery of this Amendment by Borrower and
all documents and agreements executed and delivered by Borrower pursuant to this
Amendment:
(a) have
been duly authorized by all requisite corporate action of
Borrower;
(b) at
the time of delivery, did not conflict with or result in a breach of, or
constitute a default (or with the passage of time or the giving of notice or
both, will constitute a default) under, any of the terms, conditions, or
provisions of any applicable statute, law, rule, regulation or ordinance or
Borrower’s Certificate of Incorporation or bylaws, as applicable, or any
indenture, mortgage, loan or credit agreement or instrument to which Borrower is
a party or by which it may be bound or affected, or any judgment or order of any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign; and
(c) at
the time of delivery, will not result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of Borrower under the terms or provisions of any such agreement or
instrument, except liens in favor of Bank, or liens in favor of the Subordinated
Lenders or their agent.
4. Deliveries. Prior
to or coincident with the execution of the Amendment by Bank, Borrower shall
deliver to Bank, each of the following:
4.1 Executed
Amendment Documents. Borrower and all other required persons
and entities will have executed and delivered to Bank this
Amendment.
4.2 Executed
Xxxxx Amendment. An Amendment to the Xxxxx Loan Agreement, in
form and substance reasonably acceptable to Bank (the “Xxxxx Amendment”), shall have
been executed by Borrower and all other parties thereto.
5. Consent
to Amendments. Bank hereby consents to (i) Borrower and
Guarantors entering into the Xxxxx Amendment, and (ii) Borrower entering into a
First Allonge to Amended and Restated Subordinated Promissory Note in favor of
Xxxxxxx Xxxxxxx, dated as of October 21, 2010 and effective as of September 3,
2010, substantially in the form attached hereto as Exhibit
B. The foregoing consents shall satisfy all provisions under
the Loan Documents which require the notice, consent or waiver to or of Bank in
connection with the foregoing.
6. Additional
Documents; Further Assurances. Borrower covenants and agrees
to execute and deliver to Bank, or to cause to be executed and delivered, at the
sole cost and expense of Borrower, from time to time, any and all other
documents, agreements, statements, opinions, resolutions, certificates, consents
and information as Bank shall reasonably request to evidence or effect the terms
hereof or to enforce or protect Bank’s rights. All of such documents,
agreements, statements, opinions, resolutions, certificates, consents and
information shall be in form and content reasonably acceptable to
Bank.
7. Certain
Fees, Costs, Expenses and Expenditures. Borrower agrees to pay
all of Bank’s reasonable costs and expenses in connection with the review,
preparation, negotiation, documentation and closing of this Amendment and the
consummation of the transactions contemplated hereunder, including without
limitation, costs, fees and expenses of counsel retained by Bank and all fees
related to filings, recording of documents and searches, whether or not the
transactions contemplated hereunder are consummated. Nothing
contained herein shall limit in any manner whatsoever Bank’s right to
reimbursement under the Loan Agreement or any of the Other
Documents.
8. No
Novation. Nothing contained herein and no actions taken
pursuant to the terms hereof are intended to constitute a novation of the Loan
Agreement or any of the Other Documents and shall not constitute a release,
termination or waiver of any of the liens, security interests, rights or
remedies granted to Bank in the Loan Agreement or the Other
Documents.
9. No
Waiver. Borrower acknowledges and agrees that
nothing herein contained nor any actions taken by Bank in connection herewith
shall constitute nor shall they be deemed to be a waiver, release or amendment
of or to any rights, remedies, or privileges afforded to Bank under the Loan
Agreement and the Loan Documents. Nothing herein shall constitute a
waiver by Bank of Borrower’s compliance with the terms of the Loan Agreement, as
amended hereby, and the Loan Documents, nor shall anything contained herein
constitute an agreement by Bank to enter into any further amendments with
Borrower.
10. Inconsistencies. To
the extent of any inconsistency between the terms and conditions of this
Amendment and the terms and conditions of the Loan Agreement or the Loan
Documents, the terms and conditions of this Amendment shall
prevail. All terms and conditions of the Loan Agreement and Loan
Documents not inconsistent herewith shall remain in full force and effect and
are hereby ratified and confirmed by Borrower.
11. Binding
Effect. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
12. Headings. The
headings of the Sections of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.
13. Severability. The
provisions of this Amendment and the Loan Agreement and the Other Documents are
deemed to be severable, and the invalidity or unenforceability of any provision
shall not affect or impair the remaining provisions which shall continue in full
force and effect.
14. Law
Governing. This Amendment has been made, executed and
delivered in the State of New Jersey and will be construed in accordance with
and governed by the laws of such State, without regard to any rules or
principles regarding conflicts of law or any rule or canon of construction which
interprets agreements against the draftsman.
15. Counterparts;
Facsimile Signatures. This Amendment may be executed in any
number of counterparts, all of which when taken together constitute one and the
same instrument, and any of the parties hereto may execute this Amendment by
signing any such counterpart. Any signature delivered via facsimile
shall be deemed an original signature hereto.
16. Waiver of Right to Trial by
Jury. BORROWER AND BANK WAIVE ANY RIGHT TO TRIAL BY JURY ON
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THIS AMENDMENT,
(b) ARISING UNDER THE LOAN AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR (c) IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF BORROWER, WITH
RESPECT TO THIS AMENDMENT, THE LOAN AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR
THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE, BORROWER AND BANK AGREE AND CONSENT THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
BORROWER AND BANK TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY. BORROWER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO
CONSULT WITH COUNSEL REGARDING THIS SECTION, THAT IT FULLY UNDERSTANDS ITS
TERMS, CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREE TO THE
TERMS OF THIS SECTION.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date first above
written.
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BORROWER:
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ACCESS TO MONEY, INC., a
Delaware
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corporation
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name/Title:
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Xxxxxxx X. Xxxxx, Chief Financial
Officer
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Acknowledged
and Agreed as of the date above:
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GUARANTORS:
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ACCESS
TO MONEY ACQUISITION
CORPORATION
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name/Title:
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Xxxxxxx X. Xxxxx, Chief Financial
Officer
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LJR
CONSULTING CORP.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name/Title:
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Xxxxxxx X. Xxxxx, Chief Financial
Officer
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TRM
ATM CORPORATION
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name/Title:
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Xxxxxxx X. Xxxxx, Chief Financial
Officer
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ACCESS
TO MONEY-SL, INC.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name/Title:
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Xxxxxxx X. Xxxxx, Chief Financial
Officer
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BANK:
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SOVEREIGN
BANK
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By:
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/s/ Xxxxxx X. Xxxxx
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Name/Title:
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Xxxxxx X. Xxxxx,
VP
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