Exhibit 10.5
FORM OF
AMENDED AND RESTATED COLLATERAL AGENT AGREEMENT
THIS
AMENDED AND RESTATED COLLATERAL AGENT AGREEMENT (this
“Agreement”) is made and entered into as of the _____
day of March 2005 (the “Effective Date”), by and among
VENDINGDATA CORPORATION, a Nevada corporation
(“Debtor”), and PREMIER TRUST, INC., a Nevada
corporation (the “Collateral Agent”) in its capacity as
collateral agent and on behalf of the persons listed on
Schedule A to this Agreement (the
“Lenders”).
WITNESSETH:
WHEREAS,
Debtor issued the February Notes as part of a private placement of
10% senior secured convertible notes due February 2008, in the
aggregate amount of up to Ten Million Dollars ($10,000,000) (the
“February Private Placement”), exempt from
the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”);
WHEREAS, Debtor
proposes to issue the March Notes as part of an additional private
placement of 10% senior secured convertible notes due March 2008
(the March Notes together with the February Notes, the
“Notes”), in the aggregate amount of up to Two Million
Dollars ($2,000,000) (the “March
Private Placement” and, together with the
February Private Placement, the “Private
Placements”), exempt from the registration requirements of
the Securities Act;
WHEREAS,
the Debtor proposes to issue the March Notes on a pari passu
basis as the February Notes and to grant to the holders of the
February Notes (the “February Note Holders”) and the
holders of the March Notes (the “March Note Holders”
and, together with the February Note Holders, the
“Lenders”) a first priority security interest in the
Collateral (as defined below);
WHEREAS,
it is desirable to provide for the orderly administration of such
Collateral by requiring each Lender to appoint the Collateral
Agent, and the Collateral Agent has agreed to accept such
appointment and to receive, hold and deliver such Collateral, all
upon the terms and subject to the conditions hereinafter set
forth;
WHEREAS,
it is desirable to allocate the enforcement of certain rights of
the Lenders under the Notes for the orderly administration thereof;
and
WHEREAS,
pursuant to that certain Intercreditor Agreement by and among
Debtor, the Collateral Agent and the Secured Parties, Debtor has
agreed to secure its obligations arising under the Notes, including
all debts, obligations, liabilities, interest, fees, charges and
expenses arising under the Notes (the “Obligations”),
by amending and restating the Security Agreement dated as of
February 15, 2005 and the Collateral Agent Agreement dated February
7, 2005.
NOW,
THEREFORE, for and in consideration of the promises and mutual
covenants, agreements, understandings, undertakings,
representations, warranties and promises, and subject to the
conditions hereinafter set forth, and intending to be legally bound
thereby, the parties do hereby covenant and agree that the recitals
set forth above are true and accurate and are hereby incorporated
in and made a part of this Agreement, and further covenant and
agree as follows:
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1. COLLATERAL.
1.1.
Security Agreement . Contemporaneously with the execution
and delivery of this Agreement by the Collateral Agent and the
Lenders: (1) the Collateral Agent has or will have executed an
acknowledgement of the terms and conditions of that certain Amended
and Restated Security Agreement of even date herewith by and among
the Company, the Collateral Agent and the Lenders (the
“Security Agreement”), regarding the grant of a
security interest in and lien on the Collateral (as defined in the
Security Agreement) to the Collateral Agent, for the benefit of the
Lenders; and (2) the Company has or will have issued the Notes to
the Lenders. For purposes solely of perfection of the security
interests granted to the Collateral Agent, as agent on behalf of
the Lenders, and on its own behalf under the Security Agreement,
the Collateral Agent hereby acknowledges that any Collateral held
by the Collateral Agent is held for the benefit of the Lenders in
accordance with this Agreement and the Security Agreement. No
reference to the Security Agreement or any other instrument or
document shall be deemed to incorporate any term or provision
thereof into this Agreement unless expressly so
provided.
1.2.
Powers of the Collateral Agent . The Lenders hereby appoint
the Collateral Agent (and the Collateral Agent hereby accepts such
appointment) to take any action upon the occurrence of a default
(as defined in the Notes or the Security Agreement) (an
“Event of Default”) that is not cured, including,
without limitation, the application of any cash collateral received
by the Collateral Agent to the payment of the Obligations and the
exercise of any remedies given to the Collateral Agent pursuant to
the Security Agreement that the Collateral Agent deems necessary or
proper for the administration of the Collateral pursuant to the
Security Agreement. Upon disposition of the Collateral in
accordance with the Security Agreement, the Collateral Agent shall
promptly distribute any cash or Collateral in accordance with
Section 6.4 of the Security Agreement.
1.3.
Distribution of Proceeds . The Collateral Agent is to
distribute in accordance with the Security Agreement any proceeds
received from the Collateral which are distributable to the Lenders
in proportion to their respective interests in the Obligations (as
defined in the Security Agreement).
2. FEES
AND EXPENSES; APPOINTMENT OF THE COLLATERAL AGENT.
2.1.
Fees . The Company shall pay the Collateral Agent an initial
fee of Two Thousand Dollars ($2,000) and a recurring annual fee of
One Thousand Dollars ($1,000) payable within thirty (30) days after
such fees are due. Upon the occurrence of an Event of Default, the
Collateral Agent will charge an hourly rate for performing
extraordinary services in addition to the services covered by its
administration fee.
2.2.
Expenses . The Company shall pay any and all costs and
expenses incurred by the Collateral Agent in connection with the
transactions contemplated hereby, including, without limitation,
any and all costs and expenses arising from or in connection with:
(1) the preparation of this Agreement and all waivers, releases,
discharges, satisfactions, modifications and amendments of this
Agreement; (2) the administration and holding of the
Collateral; (3) insurance expenses; and (4) the enforcement,
protection and adjudication of the parties’ rights hereunder
by the Collateral Agent, including, without limitation, the
reasonable disbursements, expenses and fees of the attorneys the
Collateral Agent may retain, if any.
3. ACTION
BY THE MAJORITY IN INTEREST.
3.1.
Certain Actions . Each of the Lenders covenants and agrees
that only the Lenders holding a majority of the outstanding
principal due on the Notes (a “Majority in Interest”)
shall have the right, but not the obligation, to undertake the
following actions (it being expressly understood that less than a
Majority in Interest hereby expressly waive the following rights
that they may otherwise have under the Notes, but only insofar as
such waiver affects their right to receive proceeds from the
Collateral):
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3.1.1.
Acceleration. If an Event of Default occurs, after the expiration
of any applicable grace and/or cure period, a Majority in Interest
may, on behalf of all the Lenders, instruct the Collateral Agent to
provide to the Company notice to cure such default and/or declare
the unpaid principal amount of the Notes to be due and payable,
together with any and all accrued interest thereon and all costs
payable pursuant to such Notes;
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3.1.2.
Enforcement. Upon the occurrence of any Event of Default after the
expiration of any applicable grace and/or cure period during which
such period the Company fails to cure such Event of Default, a
Majority in Interest may instruct the Collateral Agent to proceed
to protect, exercise and enforce against the Company, on behalf of
all the Lenders, their rights and remedies under the Notes, and
such other rights and remedies as are provided by law or
equity;
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3.1.3.
Waiver of Past Defaults. A Majority in Interest may instruct the
Collateral Agent to waive any Event of Default by written notice to
the Company, and the other Lenders; and
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3.1.4.
Amendment. A Majority in Interest may instruct the Collateral Agent
to waive, amend, supplement or modify any term, condition or other
provision in the Notes or Security Agreement in accordance with the
terms of the Notes or Security Agreement so long as such waiver,
amendment, supplement or modification is made with respect to all
of the Notes and with the same force and effect with respect to
each of the Notes.
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3.2.
Further Actions . A Majority in Interest may instruct the
Collateral Agent to take any action that it may take under this
Agreement by instructing the Collateral Agent in writing to take
such action on behalf of all the Lenders.
3.3.
Majority in Interest . For so long as any obligations remain
outstanding on the Notes, Majority in Interest shall mean Lenders
who hold not less than fifty percent (50%) of the principal amount
outstanding under the Notes.
3.4.
Limitation . Notwithstanding the foregoing, a Majority in
Interest cannot agree to amend the Notes to change the interest
rate, maturity date or priority of the security interest without
the consent of each of the Lenders.
4. POWER
OF ATTORNEY.
4.1.
Appointment . To effectuate the terms and provisions hereof,
the Lenders hereby appoint the Collateral Agent as their
attorney-in-fact (and the Collateral Agent hereby accepts such
appointment) for the purpose of carrying out the provisions of this
Agreement including, without limitation, taking any action on
behalf of, or at the instruction of, the Majority in Interest at
the written direction of the Majority in Interest and executing any
consent authorized pursuant to this Agreement and taking any action
and executing any instrument that the Collateral Agent may deem
necessary or advisable (and lawful) to accomplish the purposes
hereof.
4.2.
No Liability . All acts done under the foregoing
authorization are hereby ratified and approved and neither the
Collateral Agent nor any designee nor agent thereof shall be liable
for any acts of commission or omission, for any error of judgment,
for any mistake of fact or law except for acts of gross negligence
or willful misconduct as determined by a court of competent
jurisdiction.
4.3.
Irrevocable . This power of attorney, being coupled with an
interest, is irrevocable while this Agreement remains in
effect.
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5. RELIANCE
ON DOCUMENTS AND EXPERTS.
The
Collateral Agent shall be entitled to rely upon any notice,
consent, certificate, affidavit, statement, paper, document,
writing or communication (which may be by telegram, cable, telex,
telecopier, or telephone) reasonably believed by it to be genuine
and to have been signed, sent or made by the proper person or
persons, and upon opinions and advice of its own legal counsel,
independent public accountants and other experts selected by the
Collateral Agent.
6. DUTIES
OF THE COLLATERAL AGENT; STANDARD OF CARE.
6.1.
Duties . The Collateral Agent’s duties are only those
expressly set forth in this Agreement, and the Collateral Agent
hereby is authorized to perform those duties in accordance with
commercially reasonable practices. The Collateral Agent shall have
no duty or responsibility to: (1) determine whether the Collateral
is sufficient to secure the Company’s liabilities under the
Notes, or (2) inquire as to the provisions of any other agreement
or instrument. The Collateral Agent may be liable only for its own
gross negligence or willful misconduct, when a court of competent
jurisdiction determines that the Collateral Agent has acted in such
manner. The Collateral Agent may exercise or otherwise enforce any
of its rights, powers, privileges, remedies and interests under
this Agr
