FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
99.1
FIRST
AMENDMENT TO AMENDED AND RESTATED
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as
of February 3, 2009 among nFinanSe Inc., a Nevada corporation (“Parent”), and nFinanSe
Payments Inc., a Nevada corporation (together with Parent,
on a joint and several basis, the “Borrowers”), the Lenders (as
defined in the Loan Agreement (as defined below)), and Ballyshannon Partners,
L.P., a Pennsylvania limited partnership, acting as agent (in such capacity, and
any successor thereto, the “Agent”).
WHEREAS,
Borrowers, Agent and Lenders entered into a Loan and Security Agreement dated
June 10, 2008, which was amended and restated on November 26, 2008 ( the “Loan Agreement”);
and
WHEREAS, the Borrowers have requested
that the Lenders and the Agent amend certain terms and conditions of the Loan
Agreement; and
WHEREAS, the Lenders and the Agent
hereby agree to amend certain terms and conditions of the Loan Agreement as set
forth herein.
NOW,
THEREFORE, Borrowers, Agent and Lenders, intending to be legally bound hereby,
agree as follows:
1. Definitions. All
capitalized terms used herein and not otherwise defined shall have the same
meaning herein as in the Loan Agreement.
2. Amendment to Section
2.2(b)(ii). The provisions of Section 2.2(b)(ii) of the Loan
Agreement are hereby amended as follows:
(ii) If
any Borrower issues any debt or equity securities (other than Permitted
Indebtedness permitted under Section 8.2 and 8.5 or equity
securities issued by a Subsidiary of any Borrower to any Borrower or other
Subsidiary or debt securities evidencing Loans hereunder), then no later than
the Business Day following the date of receipt of the proceeds thereof, such
Borrower may, in its sole discretion, repay outstanding Accommodation Loans,
which payment shall be allocated pro rata in accordance with the ratio that the
aggregate principal amount of Accommodation Loans outstanding for each
Accommodation Loan Lender bears to the Outstanding Accommodation Loan
Amount.
3. Conditions to
Effectiveness. This Amendment shall be effective upon the fulfillment of
each of the following conditions precedent:
(a) This
Amendment shall have been duly executed and delivered by the Borrowers, the
Agent and the Required Lenders.
(b) The Agent
shall have received a fully executed copy hereof.
(c) No
Default or Event of Default shall have occurred and be continuing under the Loan
Agreement, both before and immediately after giving effect to the execution of
this Amendment.
4. Representations and
Warranties. In order to induce Lenders to enter into this
Amendment and to amend the Loan Agreement in the manner provided herein, each
Borrower represents and warrants to each Lender that the following statements
are true and correct in all material respects:
(a) Each
Borrower has all requisite power and authority to enter into this Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Loan Agreement as amended by this Amendment (the “Amended Agreement”) and the
other Credit Documents.
(b) The
execution and delivery of this Amendment and the performance of the Amended
Agreement and the other Credit Documents have been duly authorized by all
necessary action on the part of each Borrower.
(c) This
Amendment and the Amended Agreement have been duly executed and delivered by
each of the Borrowers and each constitutes a legal, valid and binding obligation
of such Borrower to the extent a party thereto, enforceable against such
Borrower in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors’ rights generally and except as enforceability may be
limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(d) Each
representation and warranty contained in the Loan Agreement is true and correct
on and as of the date hereof as though made on and as of such date, except to
the extent that such representations and warranties expressly relate solely to
an earlier date (in which case such representations and warranties shall have
been true and correct in all material respects on and as of such earlier
date).
5. Miscellaneous.
(a) Except as
provided herein, all terms and conditions of the Loan Agreement and the other
Credit Documents remain in full force and effect.
(b) This
Amendment may be executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and delivered, shall be an
original, and all of which together shall constitute one
instrument.
(c) This
Amendment expresses the entire understanding of the parties with respect to the
matters set forth herein and supersedes all prior discussions or negotiations
hereon.
(d) THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
DB1/62555424.3
-2-
[SIGNATURE
PAGE TO FIRST AMENDMENT]
Dated the
date and year first written above.
BORROWERS:
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By:
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Name:
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Title:
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NFINANSE
PAYMENTS INC.
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By:
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Name:
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Title:
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-3-
[SIGNATURE
PAGE TO FIRST AMENDMENT]
Dated the
date and year first written above.
LENDERS:
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BALLYSHANNON
PARTNERS, L.P., as Agent and as a Lender
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By:
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Name:
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Title:
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BALLYSHANNON
FAMILY PARTNERSHIP, L.P.
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By:
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Name:
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Title: | |||
MIDSUMMER
INVESTMENT, LTD.
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By:
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Name:
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Title:
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XXXXXX
PARTNERS, L.P.
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By:
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Name:
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Title:
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TRELLUS
PARTNERS, L.P.
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By:
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Name:
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Title:
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Title:
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-4-