AMENDMENT NO. 3 TO TERM LOAN AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 3
TO
This
AMENDMENT NO. 3 TO TERM LOAN AGREEMENT (this “Amendment”)
is
dated to be effective as of May 1, 2006, and is entered into between NUWAY
MEDICAL, INC., a corporation organized under the laws of the state of Delaware
(the “Borrower”),
and
XXXXXXXXX XX, LLC, a limited liability company formed under the laws of the
State of Delaware (the “Lender”).
Borrower
and Lender are parties to that certain Term Loan Agreement dated as of June
10,
2003, as amended by that certain Amendment No. 1 to Term Loan Agreement dated
effective March 30, 2004, and as amended by that certain Amendment No. 2 to
Term
Loan Agreement dated effect July 29, 2005 (the Term Loan Agreement, as so
amended, the “Agreement”).
Pursuant to the Agreement, Borrower and Lender have also entered into that
certain Pledge Agreement dated as of June 10, 2003 (the “Pledge
Agreement”),
and
Borrower previously has delivered to Lender an Amended and Restated Convertible
Term Note, a Second Amended and Restated Convertible Term Note (the
“Existing
Note”)
an
Amended and Restated Warrant to Purchase Common Stock No. AG-1, dated March
30,
2004, and a second Warrant to Purchase Common Stock No. AG-II dated July 29,
2005 (collectively, the “Existing
Warrants”),
(the
Pledge Agreement, Existing Note and Existing Warrants, together with the
Agreement, the “Loan
Documents”).
Borrower has requested that Lender extend the maturity date of the term loan
evidenced by the Loan Documents.
Capitalized
terms used herein shall have the meanings ascribed to such terms in the
Agreement.
NOW
THEREFORE,
in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged:
1. Extension
of Maturity Date.
The
Term Loan Maturity Date is hereby extended to May
1, 2007,
and the
last sentence of Section 1.2 of the Agreement is amended accordingly.
2. Amended
Note.
The
Existing Note shall be replaced by the Third Amended and Restated Term Note
in
the form attached hereto as Exhibit A (the “Third
Amended Note”),
and
upon delivery of the executed Amended Note to Lender, Lender shall deliver
the
Existing Note to Borrower. Thereafter, all references in the Agreement to “Term
Note” shall be deemed to be references to the Amended Note.
4
The
representations of Borrower in the Agreement and the other Loan Documents,
as
amended hereby, are true and correct as of the date hereof as though each of
said representations and warranties was made on the date hereof except for
those
representations and warranties which are made as of a specified date in the
applicable Loan Document.
4. Amendment
Supplementary.
This
Amendment, the Second Amended Note and the Second Warrant are supplementary
to
the Loan Documents. All of the provisions of the Loan Documents, including
without limitation the right to declare principal and accrued interest due
for
any cause specified in the Loan Documents, shall remain in full force and effect
except as expressly modified. The Agreement and the other Loan Documents and
all
rights and powers created thereby and thereunder or under such other documents
are in all respects ratified and confirmed. From and after the date hereof,
the
Agreement and the other Loan Documents shall be deemed to be amended and
modified as herein provided, but, except as so amended and modified, the
Agreement and the other Loan Documents shall continue in full force and effect
and the Agreement, the other Loan Documents, this Amendment, the Second Amended
Note and the Second Warrant shall be read, taken and construed as one and the
same instrument. On
and
after the date hereof, any references in the Loan Documents to the Agreement
shall mean the Agreement as amended hereby, any references to the Note shall
mean the Second Amended Note and any references to the Warrant shall mean the
Existing Warrant and the Second Warrant.
5. Waiver
of Claims.
Borrower hereby acknowledges, agrees and affirms that it possesses no claims,
defenses, offsets, recoupment or counterclaims of any kind or nature against
or
with respect to the enforcement of the Agreement, or any other Loan Document
or
any amendments thereto (collectively, the "Claims"),
nor
does Borrower now have knowledge of any facts that would or might give rise
to
any Claims. If facts exist as of the date of this Amendment which would or
could
give rise to any Claim against or with respect to the enforcement of the
Agreement, or any other Loan Document, as amended by the amendments and/or
restatements thereto, Borrower hereby unconditionally, irrevocably and
unequivocally waives and fully releases any and all such Claims as if such
Claims were the subject of a lawsuit, adjudicated to final judgment from which
no appeal could be taken and therein dismissed with prejudice. In furtherance
of
the intention of the parties, Borrower hereby expressly waives any and all
rights conferred upon it by the provisions of any applicable law which would
provide that "A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing the
release which, if known by him, must have materially affected his settlement
with the debtor.” Borrower hereby understands and acknowledges the significance
and consequences of the foregoing release and waiver.
6. Representation
by Counsel.
Borrower hereby represents that it has been represented by competent counsel
of
its choice in the negotiation and execution of this Amendment; that it has
read
and fully understands the terms hereof, that Borrower and its counsel have
been
afforded an opportunity to review, negotiate and modify the terms of this
Amendment, and that it intends to be bound hereby.
5
7. Counterparts.
This
Amendment may be executed in one or more counterparts, which counterparts,
when
taken together and collated shall constitute one agreement.
IN
WITNESS WHEREOF,
the
parties have caused this Amendment No. 3 to Term Loan Agreement to be duly
executed effective as of the day and year first above written.
NUWAY
MEDICAL, INC.
By:
/s/
Xxxxxx Calvert_________
Xxxxxx Xxxxxxx, President
XXXXXXXXX
XX, LLC
By:
|
AUGUSTINE
CAPITAL
MANAGEMENT,
L.L.C., its
manager
|
By:
/s/
Xxxxxx X. Duszynski____
Its:
____Manager/Member_____
10/18/06
6