AMENDMENT TO SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.22
AMENDMENT
TO SECURITIES PURCHASE AGREEMENT
This
Amendment (the "Amendment"), dated as of December 10, 2007, is by and among
Shelter Island Opportunity Fund LLC (the "Holder"), EMTA Holdings, Inc., a
Nevada corporation (the “Company”), and EMTA Production Holdings, Inc. a Nevada
corporation ("EMTA Production").
RECITALS
A.
The Holder, EMTA Production and the Company entered into a certain Securities
Purchase Agreement, dated as of June 30, 2007 (together with any previous
amendments, the "Agreement").
B.
The Holder, EMTA Production and the Company desire to amend the
Agreement.
AGREEMENT
1.
Definitions. Capitalized
terms used but not defined in this Amendment shall have the meaning given to
them in the Agreement.
2.
Amendments. The
Agreement is hereby amended as follows:
2.1 From
and after the date hereof, the term “Term Note” (or any variation thereof
referring to the Term Note), shall mean the Term Note, dated the date of this
Amendment, from EMTA Production to the Holder in the principal amount of
$1,469,482, the form of which is attached to this Amendment as Exhibit A. It is
understood and agreed that the principal amount of the Term Note includes
$1,308,950 in respect of the current outstanding principal amount thereof,
$37,223.27 in respect of accrued interest thereon, $3,308.73 in respect of
unpaid collateral maintenance fees and $120,000 in respect of an unpaid
amendment fee.
2.2 The
text of Section 5.3 of the Agreement is hereby amended and restated as follows:
“Dyson shall have entered into an agreement with Xxxxxx Brothers Small Balance
Commercial Mortgage Pass-Through Certificates, Series 2005-1 (“Xxxxxx”) or any such other
firm prior to January 31, 2008, to either refinance the Dyson Mortgage at a rate
of interest of less than 10% per annum or to extend the maturity date thereof to
later than June 30, 2009.”
2.3 The
text of Section 5.22 of the Agreement is hereby amended and restated as follows:
“Beginning February 28, 2008, the Company will maintain a monthly average cash
balance of $100,000 at all times.”
3.
Representations
and Warranties. The Company and EMTA Production represent and
warrant to the Holder that: (a) there is no event which is, or with
notice or lapse of time or both would be, an Event of Default under the Term
Note, (b) the representations and warranties in the Agreement are true as of the
date of this Amendment as if made on the date of this Amendment, (c) this
Amendment does not conflict with any law, agreement, or obligation by which the
Company or EMTA Production is bound, and (d) this Amendment is within the
Company's and EMTA Production’s powers, has been duly authorized, and does not
conflict with any of the Company's or EMTA Production’s governing
documents.
4.
Reaffirmation of Obligations
and Grant of Security Interest. The Company and EMTA
Production hereby expressly acknowledge and reaffirm their obligations under the
Agreement, as amended hereby, and acknowledge and agree that all collateral,
security interests, liens and pledges heretofore or hereafter granted to the
Holder, and all documents executed in connection therewith or referred to or
incorporated therein, extend to and cover all of the Company’s and EMTA
Production’s obligations to the Holder, now existing or hereafter arising,
including without limitation, those arising in connection with the Term Note and
the Agreement, as amended by this Amendment, upon the terms set forth in such
agreements, all of which security interests, liens and pledges are hereby
ratified, reaffirmed, confirmed and approved.
5.
Effect of
Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and
effect. All references to the Term Note or to the Agreement in all
documents executed in connection with the Agreement or referred to or
incorporated therein, shall be deemed to mean the Term Note (as defined above)
and the Agreement, as amended by this Amendment.
6.
Counterparts. This
Amendment may be executed in counterparts, each of which when so executed shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument.
7. Governing
Law. This Amendment is governed by the laws of the State of
New York.
8.
Shares
and Expenses. Upon execution and delivery of this Amendment,
the Company shall deliver to the Holder, as additional consideration for Holder
entering into this Amendment, 100,000 shares of its common stock, registered in
such name as the Holder shall specify (the “Shares”). The Company hereby
represents and warrants that the Shares have been duly authorized and are
validly issued, fully-paid and are non-assessable. The Shares shall be entitled
to all the rights and benefits provided to the Holder in the Registration Rights
Agreement for shares issued upon the exercise of the Warrants and shall
constitute “Registrable Securities” for all purposes of the Registration Rights
Agreement (and the Registration Rights Agreement is hereby amended to so
provide).
9.
FINAL
AGREEMENT. BY
SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS
DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM
SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT
MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
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This
Amendment is executed as of the date stated at the beginning of this
Amendment.
|
Shelter
Island Opportunity Fund, LLC
|
|||
|
By
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/s/ Xxxxxxx Xxxxxx | ||
|
|
|||
| Typed Name: Xxxxxxx Xxxxxx | |||
| Title: Managing Director | |||
| EMTA Holdings, Inc. | |||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Typed Name: Xxxxxx X. Xxxxxxxx | |||
| Title: CEO and President | |||
| EMTA Production Holdings, Inc. | |||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Typed Name: Xxxxxx X. Xxxxxxxx | |||
| Title: President | |||
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CONSENT AND
REAFFIRMATION
OF GUARANTOR AND
PLEDGOR
The
undersigned, as a guarantor of EMTA Production’s obligations to the Holder under
the Agreement and a pledgor of assets to the Holder to secure such obligations,
hereby (i) acknowledges and consents to the foregoing Amendment, (ii) reaffirms
its obligations under the Subsidiary Guaranty, dated June 30, 2007, in favor of
the Holder, (iii) reaffirms the security interest granted by the undersigned to
the Holder under the Stock Pledge, dated June 30, 2007, as collateral security
for the obligations of EMTA Production under the Agreement, as amended by the
foregoing Amendment, and the Term Note and (iv) confirms that each of such
Subsidiary Guaranty and Stock Pledge remains in full force and effect, without
defense, offset, or counterclaim. (Capitalized terms used herein
shall have the meanings specified in the foregoing Amendment.)
Although
the undersigned has been informed of the terms of the Amendment, the undersigned
understands and agrees that the Holder has no duty to so notify it or any other
guarantor or to seek this or any future acknowledgment, consent or
reaffirmation, and nothing contained herein shall create or imply any such duty
as to any transactions, past or future.
Dated as of December 10,
2007
| EMTA Holdings, Inc. | |||
|
By
|
/s/ Xxxxxx X. Xxxxxxxx | ||
|
|
|||
| Typed Name: Xxxxxx X. Xxxxxxxx | |||
| Title: CEO and President | |||
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