AMENDMENT NO. 1 TO CREDIT AND LOAN AGREEMENT
Exhibit
10.5
AMENDMENT
NO. 1
TO
This
Amendment No. 1 to Credit and Loan Agreement (the “Amendment”), entered into as
of December 10, 2008 (the “Effective Date”), by and between Secured Financial
Network, Inc., a Nevada corporation (“SFNL”) and Commercial Holding, AG
(“Lender”) amends that certain Credit and Loan Agreement dated as of April 7,
2008 (the “Credit Agreement”). Capitalized terms used, but not
defined in this Amendment shall have the respective meaning given such terms in
the Credit Agreement.
ARTICLE
I - AMENDMENTS
1.1 Definition of Loan
Document. As of the Effective Date, the term “Loan Documents”
shall mean this Amendment, the Credit Agreement, any Notes issued pursuant to
Section 2.4 of Credit Agreement and the Security Agreement.
1.2 Credit Commitment
Increase. From and after the Effective Date of this Amendment
and prior to the Maturity Date, the aggregate Commitment is herby increased from
$500,000 to $700,000 and Lender hereby agrees, on the terms and conditions set
forth in the Credit Agreement, to make Loans to SFNL in an amount not to exceed
in the aggregate Commitment.
1.3 Securities. As
consideration for this Amendment, SFNL shall within ten days of the Effective
Date, issue to Lender, 2,000,000 shares of SFNL Common Stock, and Warrants to
purchase and additional 1,000,000 shares of SFNL Common Stock at $0.10 per share
(collectively, the “Additional Securities”). The Warrants to be
issued pursuant to this Section 1.2 shall be in the same form as the Warrants
issued to SFNL under the Credit Agreement.
ARTICLE
II - ACKNOWLEDGEMENTS
2.1 Acknowledgements Respecting
Status and Representations. SFNL hereby acknowledges and
represents to Lender, upon which representations Lender has relied in entering
into this Amendment, that as of the Effective Date: (a) the Loan Documents
to which SFNL is a party constitute the valid and binding obligations of SFNL;
(b) all representations and warranties of SFNL in the Credit Agreement are true
and correct as of the date hereof, and shall survive the execution of this
Amendment; and (iv) SFNL is authorized to enter into this Amendment and, upon
execution and delivery hereof, this Amendment will be a legal and binding
obligation of SFNL.
2.2 No Waiver by
Lender. SFNL hereby acknowledges that nothing in this
Amendment is intended to serve as a waiver of any payment or other obligations
of SFNL under any of the Loan Documents, and each of such obligations shall
continue in full force and effect, except as specifically set forth
herein. SFNL hereby acknowledges that Lender reserves all of its
rights to take action with respect to any Defaults and Events of Default now or
hereafter existing under the Loan Documents. The parties acknowledge
that, subject to the terms of this Amendment, all terms of the Loan Documents
prior to the Effective Date, remain in full force and effect.
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2.3 Ratification of Security
Interest. SFNL hereby ratifies and confirms its grant of a security
interest in the collateral described in the Loan Documents in favor of
Lender. Borrower hereby warrants that there are no other liens
existing as of the date hereof with respect to the Collateral.
ARTICLE
III - TRANSFERS
3.1 Restricted
Securities. Lender acknowledges that the Additional Securities
will not be registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, and that SFNL is not required to register the
Notes as the case may be.
3.2 Legends; Lender’
Representations. Lender hereby represents and warrants to SFNL
that it is an “accredited investor” within the meaning of Rule 501 (a) under the
Securities Act and is acquiring the Additional Securities for investment for its
own account, with no present intention of dividing its participation with others
or reselling or otherwise distributing the same in violation of the Securities
Act or any applicable state securities laws. SFNL may place an
appropriate legend on the Additional Securities owned by Lender concerning the
restrictions set forth in this Article III. Upon the assignment or
transfer by Lender or any of its successors or assignees of all or any part of
the Additional Securities, the term “Holder” as used herein shall thereafter
mean, to the extent thereof, the then holder or holders of such Additional
Securities, or portion thereof.
3.3 Transfer of Additional
Securities. Subject to Section 3.2 hereof, a holder of
Additional Securities may transfer such Additional Securities to a new holder,
or may exchange such Additional Securities for securities of different
denominations, by surrendering such Additional Securities to SFNL duly endorsed
for transfer or accompanied by a duly executed instrument of transfer naming the
new holder (or the current holder if submitted for exchange only), together with
written instructions for the issuance of one or more new Additional Securities
specifying the respective principal amounts of each new Additional Securities
and the name of each new holder and each address therefor. SFNL shall
simultaneously deliver to such holder or its designee such new Additional
Securities and shall xxxx the surrendered Additional Securities as
canceled.
3.4 Replacement of Additional
Securities. Upon receipt of evidence reasonably satisfactory
to SFNL of the mutilation, destruction, loss or theft of any Additional
Securities and the ownership thereof, SFNL shall, upon the written request of
the holder of such Additional Securities, execute and deliver in replacement
thereof new Additional Securities in the same form, in the same original
principal amount and dated the same date as the Additional Securities so
mutilated, destroyed, lost or stolen; and such Additional Securities so
mutilated, destroyed, lost or stolen shall then be deemed no longer outstanding
hereunder. If the Additional Securities being replaced have been
mutilated, they shall be surrendered to SFNL; and if such replaced Additional
Securities have been destroyed, lost or stolen, such holder shall furnish SFNL
with an indemnity in writing to save it harmless in respect of such replaced
Additional Securities.
3.5 No Other Representations
Affected. Nothing contained in this Article III shall limit
the full force or effect of any representation, agreement or warranty made
herein or in connection herewith to Holder.
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ARTICLE
IV - GENERAL PROVISIONS
4.1 Headings. Section
headings in this Amendment are for convenience of reference only, and shall not
govern the interpretation of any of the provisions of the Loan
Documents.
4.2 Entire
Agreement. This Amendment, together with the other Loan
Documents, embody the entire agreement and understanding among SFNL and Lender
and supersede all prior agreements and understandings among SFNL and Lender
relating to the subject matter thereof.
4.3 CHOICE OF
LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CHOICE OF LAWS
PROVISIONS.
4.4 VENUE. THE
EXCLUSIVE JURISDICTION FOR ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS SHALL BE IN THE STATE AND FEDERAL COURTS LOCATED IN
TARRANT COUNTY, TEXAS AND SFNL HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM.
4.5 WAIVER OF JURY
TRIAL. SFNL AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
4.6 Counterparts. This
Amendment may be executed in any number of counterparts, all of which, taken
together shall constitute one agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart.
*****
Signature Page Follows*****
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IN
WITNESS WHEREOF, SFNL and Lender have executed this Amendment No. 1 to Credit
and Loan Agreement as of the date first above written.
| COMMERCIAL HOLDING AG | |||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | ||
| Title: | Managing Director | ||
| SECURED FINANICAL NETWORK, INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Name: | Xxxxxxx Xxxxxxx | ||
| Title: | President | ||
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