WAIVER, CONSENT AND AMENDMENT NO. 6 TO LOAN AND SECURITY AGREEMENT
WAIVER,
CONSENT AND AMENDMENT NO. 6
TO LOAN AND SECURITY AGREEMENT
This
WAIVER AND AMENDMENT
NO. 6 TO
LOAN
AND SECURITY AGREEMENT ("Amendment") is dated as of October 17, 2007, and
is entered into by and among TITAN
GLOBAL HOLDINGS, INC.,
a
Utah
corporation, TITAN
PCB
WEST, INC.,
a
Delaware corporation, TITAN
PCB
EAST, INC.,
a
Delaware corporation, OBLIO
TELECOM, INC.,
a
Delaware corporation, TITAN
WIRELESS COMMUNICATIONS, INC.,
a
Delaware corporation, START
TALK INC.,
a
Delaware corporation, PINLESS,
INC.,
a
Texas
corporation and TITAN CARD SERVICES, INC., a Delaware corporation
(collectively the "Borrowers", each a "Borrower"), and GBC FUNDING, LLC (as
assignee of Greystone Business Credit II, L.L.C.), a Delaware limited liability
company ("Lender").
W
I T N E S S E T H:
WHEREAS,
Borrowers and Lender are parties to that certain Loan and Security Agreement
dated as of December 29, 2006 (as amended, modified and supplemented from
time to time, the "Loan Agreement"; capitalized terms not otherwise defined
herein have the definitions provided therefore in the Loan Agreement);
WHEREAS,
Borrowers have informed Lender that Titan Global Holdings, Inc. ("Holdings")
has
formed (the "Formation") Titan Card Services, Inc., a Delaware corporation
and a
wholly-owned Subsidiary of Holdings;
WHEREAS,
in the absence of prior written consent of Lender, the Formation constituted
a
default under Section 5.20 of the Loan Agreement and a corresponding Event
of
Default under Section 8.1 of the Loan Agreement (the "Existing
Default");
WHEREAS,
Borrowers have requested that Lender waive the Existing Default and consent
to
the Formation; and
WHEREAS,
Borrowers have requested that Lender amend the Loan Agreement in certain
respects as set forth herein.
NOW
THEREFORE, in consideration of the mutual conditions and agreements set forth
in
the Loan Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto hereby agree as follows:
1. Waiver.
Subject
to the satisfaction of the conditions set forth in Section 5 below, and in
reliance on the representations set forth in Section 4 below, Lender hereby
waives the Existing Default. The foregoing is a limited waiver and shall not
be
deemed to constitute a consent to or waiver of any other Defaults or Events
of
Default that are now in existence or that may hereafter occur.
2. Consent.
Subject
to the satisfaction of the conditions set forth in Section 5 below, and in
reliance on the representations set forth in Section 4 below, Lender hereby
consents to the Formation. The foregoing is a limited consent and shall not
be
deemed to constitute a consent to or waiver of any other Defaults or Events
of
Default that are now in existence or that may hereafter occur.
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3. Amendment.
Subject
to the satisfaction of the conditions set forth in Section 5 below, and in
reliance on the representations set forth in Section 4 below, the Loan Agreement
is amended as follows:
(a) Section
9(a)(8) of Schedule A to the Loan Agreement is hereby amended and restated
in
its entirety as follows:
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(8) Subsidiaries
(and ownership
thereof):
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Borrower
owns 100% interest in each of (i) Oblio Telecom, Inc.,
(ii) Titan Wireless Communications, Inc., (iii) Titan PCB East,
Inc., (iv) Titan PCB West, Inc. and (v) Titan Card Services,
Inc.
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4. Representations
and Warranties.
Each
Borrower hereby represents, warrants and covenants as follows:
(a) Representations
in Loan Documents.
Each of
the representations and warranties made by or on behalf of Borrowers to Lender
in any of the Loan Documents was true and correct when made, and is true and
correct on and as of the date of this Amendment with the same full force and
effect as if each of such represent-ations and warranties had been made by
Borrowers on the date hereof and in this Amendment.
(b) Binding
Effect of Documents.
This
Amendment has been duly authorized, executed and delivered to Lender by
Borrowers, is enforceable in accordance with its terms and is in full force
and
effect.
(c) No
Conflict.
The
execution, delivery and performance of this Amendment by Borrowers will not
violate any requirement of law or contractual obligation of Borrowers and will
not result in, or require, the creation or imposition of any Lien on any of
its
properties or revenues.
5. Conditions
to Effectiveness.
The
effectiveness of this Amendment is subject to the following conditions precedent
(unless specifically waived in writing by Lender), each to be in form and
substance satisfactory to Lender:
(a) Lender
shall have received (i) an original of this Amendment, duly authorized,
executed and delivered by Borrowers, (ii) an original of each document listed
on
Exhibit A
hereto,
each duly authorized, executed and delivered by the parties thereto, and
(iii) such other documents, agreements and instruments as may be requested
by Lender, each such document, agreement and instrument to be in form and
substance satisfactory to Lender;
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(b) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all agreements, documents, instruments, materials and other legal
matters incident hereto shall be satisfactory to Lender;
(c) Lender
shall have been reimbursed for all reasonable costs, fees and expenses incurred
by Lender in connection with the preparation, execution, administration or
enforcement of this Amendment; and
(d) No
Default
or Event of Default
shall be
in existence as of the date hereof.
6. Effect
of Amendment.
Except
as modified pursuant hereto, no other changes or modifications to the Loan
Documents are intended or implied and, in all other respects, the Loan Documents
hereby are ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Loan Documents, the terms of this Amendment shall govern
and control. The Loan Agreement and this Amendment shall be read and construed
as one agreement.
7. Amendment
as a Loan Document.
Borrowers and Lender hereby agree that this Amendment shall constitute a "Loan
Document" for all purposes of the Loan Agreement and the other Loan Documents,
and any references to the Loan Documents contained in any notice, request,
certificate or other document executed concurrently with or after the execution
and delivery of this Amendment shall be deemed to include this Amendment unless
the context shall otherwise specify.
8. Costs
and Expenses.
Each
Borrower absolutely and unconditionally agrees to pay to Lender, on demand
by
Lender at any time, whether or not all or any of the transactions contemplated
by this Amendment are consummated: all fees and disbursements of any counsel
to
Lender in connection with the preparation, negotiation, execution, or delivery
of this Amendment and any agreements contemplated hereby and expenses which
shall at any time be incurred or sustained by Lender or any participant of
Lender or any of their respective directors, officers, employees or agents
as a
consequence of or in any way in connection with the preparation, negotiation,
execution, or delivery of this Amendment and any agreements contemplated hereby.
9. Further
Assurances.
At
Borrowers' expense, the parties hereto shall execute and deliver such additional
documents and take such further action as may be necessary or desirable to
effectuate the provisions and purposes of this Amendment.
10. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of each of the parties
hereto and their respective successors and assigns.
11. Survival
of Representations and Warranties.
All
representations and warranties made in this Amendment or any other document
furnished in connection with this Amendment shall survive the execution and
delivery of this Amendment and the other documents, and no investigation by
Lender or any closing shall affect the representations and warranties or the
right of Lender to rely upon them.
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12. Release.
(a) In
consideration of the agreements of Lender contained herein and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Borrower, on behalf of itself and its successors, assigns,
and other legal representatives, hereby absolutely, unconditionally and
irrevocably releases, remises and forever discharges Lender, and its successors
and assigns, and its present and former shareholders, affiliates, subsidiaries,
divisions, predecessors, directors, officers, attorneys, employees, agents
and
other representatives (Lender and all such other Persons being hereinafter
referred to collectively as the "Releasees" and individually as a "Releasee"),
of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims, defenses, rights of
set-off, demands and liabilities whatsoever (individually, a "Claim" and
collectively, "Claims") of every kind and nature, known or unknown, suspected
or
unsuspected, at law or in equity, which any Borrower or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have
or
claim to have against the Releasees or any of them for, upon, or by reason
of
any circumstance, action, cause or thing whatsoever which arises at any time
on
or prior to the date of this Amendment, including, without limitation, for
or on
account of, or in relation to, or in any way in connection with this Amendment,
the Loan Agreement, or any of the other Loan Documents or transactions hereunder
or thereunder.
(b) Each
Borrower understands, acknowledges and agrees that the release set forth above
may be pleaded as a full and complete defense and may be used as a basis for
an
injunction against any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of the provisions of such
release.
(c) Each
Borrower agrees that no fact, event, circumstance, evidence or transaction
which
could now be asserted or which may hereafter be discovered shall affect in
any
manner the final, absolute and unconditional nature of the release set forth
above.
13. Covenant
Not to ▇▇▇.
Each
Borrower, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably, covenants
and agrees with and in favor of each Releasee that it will not ▇▇▇ (at law,
in
equity, in any regulatory proceeding or otherwise) any Releasee on the basis
of
any Claim released, remised and discharged by any Borrower pursuant to Section
12 above. If any Borrower or any of its successors, assigns or other legal
representatives violates the foregoing covenant, such Borrower, for itself
and
its successors, assigns and legal representatives, agrees to pay, in addition
to
such other damages as any Releasee may sustain as a result of such violation,
all attorneys' fees and costs incurred by any Releasee as a result of such
violation.
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14. Severability.
Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment.
15. Reviewed
by Attorneys.
Each
Borrower represents and warrants to Lender that it (a) understands fully
the terms of this Amendment and the consequences of the execution and delivery
of this Amendment, (b) has been afforded an opportunity to discuss this
Amendment with, and have this Amendment reviewed by, such attorneys and other
persons as such Borrower may wish, and (c) has entered into this Amendment
and executed and delivered all documents in connection herewith of its own
free
will and accord and without threat, duress or other coercion of any kind by
any
Person. The parties hereto acknowledge and agree that neither this Amendment
nor
the other documents executed pursuant hereto shall be construed more favorably
in favor of one than the other based upon which party drafted the same, it
being
acknowledged that all parties hereto contributed substantially to the
negotiation and preparation of this Amendment and the other documents executed
pursuant hereto or in connection herewith.
16. Governing
Law: Consent to Jurisdiction and Venue.
EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, THIS AMENDMENT
AND
THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. EACH BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN NEW YORK COUNTY, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWERS AND LENDER
PERTAINING TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED,
THAT
NOTHING IN THIS AMENDMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER.
EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH BORROWER HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS
AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF
ANY
AND ALL PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
SUCH PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
BORROWER AT THE ADDRESS SET FORTH IN THE LOAN AGREEMENT AND THAT SERVICE SO
MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH BORROWER'S ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS THE SAME HAS BEEN POSTED.
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17. Mutual
Waiver of Jury Trial.
THE
PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT,
OR
OTHERWISE BETWEEN LENDER AND BORROWERS ARISING OUT OF, CONNECTED WITH, RELATED
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED
THERETO.
18. Counterparts.
This
Amendment may be executed in any number of counterparts, but all of such
counterparts shall together constitute but one and the same
agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed under seal and delivered by their respective duly authorized officers
on the date first written above.
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Borrowers:
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Lender:
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GBC
FUNDING, LLC (as
assignee of Greystone Business Credit II, L.L.C.)
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By | ||
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Its
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Its
Authorized Signatory
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TITAN
PCB WEST, INC.
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Its
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TITAN
PCB EAST, INC.
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Its
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OBLIO
TELECOM, INC.
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Its
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TITAN
WIRELESS COMMUNICATIONS, INC.
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Its
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START
TALK INC.
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Its
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PINLESS,
INC.
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Its
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TITAN
CARD SERVICES, INC.
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Its
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Signature
Page to Waiver, Consent and Amendment No. 6 to Loan and Security
Agreement
EXHIBIT
A
Items
to be Delivered Pursuant to Section 5(a)
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1.
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Amendment
No. 2 to Stock Pledge Agreement, executed by Titan Global Holdings,
Inc.
in favor of Lender along with stock certificate(s) and stock power(s)
of
Titan Card Services, Inc.;
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2.
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Borrower
Joinder Agreement, executed by Borrowers and
Lender.
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3.
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Corporate
Guaranty, executed by Titan Card Services, Inc. with respect to the
obligations of Appalachian Oil Company Inc. ("Appco") pursuant to
that
certain Loan and Security Agreement, dated September 17, 2007, among
Appco, Greystone Business Credit II, L.L.C., as agent, GBC Funding,
LLC as
a lender, and the other lenders party
thereto
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4.
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The
following documents with respect to Titan Card Services,
Inc.:
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a.
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Secretary's
certificate as to articles of organization, bylaws, resolutions of
directors and incumbency
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b.
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Certified
articles of organization
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c.
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Certified
resolutions
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d.
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Good
standing certificate from the State of Delaware and each state in
which
Titan Card Services, Inc. is qualified to conduct
business
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REAFFIRMATION
OF GUARANTY
Reference
is made (i) to that certain Loan and Security Agreement dated December 29,
2006
(as amended, modified or supplemented from time to time, the "Loan
Agreement";
capitalized terms used and not otherwise defined herein having the meanings
assigned thereto in the Loan Agreement) among TITAN
GLOBAL HOLDINGS, INC.,
a
Utah
corporation, TITAN
PCB
WEST, INC.,
a
Delaware corporation, TITAN
PCB
EAST, INC.,
a
Delaware corporation, OBLIO
TELECOM, INC.,
a
Delaware corporation, TITAN
WIRELESS COMMUNICATIONS, INC.,
a
Delaware corporation, START
TALK INC.,
a
Delaware corporation, PINLESS,
INC.,
a
Texas
corporation and TITAN CARD SERVICES, INC., a Delaware corporation
(collectively the "Borrowers", each a "Borrower"), and GBC FUNDING, LLC (as
assignee of Greystone Business Credit II, L.L.C.), a Delaware limited liability
company ("Lender") and (ii) to that certain Amendment No. 6 to Loan and Security
Agreement (the "Amendment") of even date herewith among Borrowers and
Lender.
Each
of
the undersigned has executed and delivered a Corporate Guaranty ("Guaranty")
and
other Loan Documents in connection with the loans to Borrowers under the Loan
Agreement. Each of the undersigned acknowledges (i) that Titan Card Services,
Inc., a Delaware corporation, is for all purposes a Borrower under the Loan
Agreement for purposes of the Guaranty and the other Loan Documents (in addition
to the existing Borrowers thereunder) and (ii) it is in receipt of a copy of
the
Amendment and hereby reaffirms the validity of its Guaranty and each other
Loan
Document to which it is a party and all of its obligations under its Guaranty
and each such other Loan Document, in each case after giving effect to the
transactions contemplated by the Amendment. The terms and conditions of each
Guaranty and each other Loan Document to which any of the undersigned is a
party
shall remain in full force and effect.
Although
the undersigned have been informed of the matters set forth herein and have
acknowledged and agreed to same, each of the undersigned understands and agrees
that Lender has no obligation to inform any of the undersigned of such matters
in the future or to seek any of the undersigned's acknowledgment or agreement
to
future amendments, waivers or consents, and nothing herein shall create such
a
duty.
Dated
as
of this ___ of ____________, 2007.
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APPALACHIAN
OIL COMPANY, INC.
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Its
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APPCO-KY,
INC.
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Its
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Reaffirmation
of Guaranty to Waiver, Consent and Amendment No. 6 to Loan and Security
Agreement