Exhibit 2.6
AMENDMENT, ASSIGNMENT AND
ASSUMPTION AGREEMENT
THIS AMENDMENT, ASSIGNMENT AND
ASSUMPTION AGREEMENT (this “ Agreement ”) is
entered into on May 13, 2004 by and among GCA Holdings, L.L.C., a
Delaware limited liability company that shall be converted into a
Delaware corporation named GCA Holdings, Inc. (the “
Company ”) as contemplated in the Securities Purchase
Agreement (as defined below), M&C International, a Nevada
corporation (the “ Seller ”), Bank of America
Corporation, a Delaware corporation (“ BofA ”),
Karim Mastkatiya and Robert Cucinotta (each, a “
Founder ” and collectively, the “
Founders ”), the Persons listed on the Schedule of
Assignors attached hereto (each, an “ Assignor
” and collectively, the “ Assignors ”) and
the Persons listed on the Schedule of Assignees attached
hereto (each, an “ Assignee ” and collectively,
the “ Assignees ”). Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms
in the Securities Purchase Agreement.
WHEREAS, the Company, the Seller,
the Founders and the Assignors have entered into that certain
Securities Purchase and Exchange Agreement, dated as of April 21,
2004 (the “ Securities Purchase Agreement ”),
pursuant to which the Assignors have agreed to purchase from the
Seller, and the Seller has agreed to sell to the Assignors, certain
Preferred Units of the Company;
WHEREAS, pursuant to Paragraph 11D
of the Securities Purchase Agreement, the Assignors desire to
assign to the Assignees all of the Assignors’ rights,
interests and obligations in, to and under the Securities Purchase
Agreement (including, without limitation, each such
Assignor’s right to purchase the Preferred Units), and the
Assignees desire to accept such rights and interests (including,
without limitation, the right to acquire the Preferred Units) and
assume such obligations in accordance with the terms and conditions
set forth herein; and
WHEREAS, pursuant to Paragraph 11C
of the Securities Purchase Agreement, each of the parties hereto
desire to amend the Securities Purchase Agreement as and to the
extent set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignment . Each Assignor
does hereby assign, convey, transfer and set over to the Assignees,
that percentage of all of its present and future right, title and
interest in, and obligations under, the Securities Purchase
Agreement as set forth on the Schedule of Assignments
attached hereto (the “ Assigned Percentages ”),
to have and to hold the same from the date hereof for and during
all the rest, residue, and remainder of the term of the Securities
Purchase Agreement (including, without limitation, any and all
rights and remedies derived by each such Assignor under any
representation, warranty, agreement or covenant executed by any
Person in favor of each such Assignor under the Securities Purchase
Agreement, and including, without limitation, all rights to
acquire, purchase and receive the Preferred Units allocated to such
Assignor in the Securities Purchase Agreement), subject
nevertheless to all the terms, provisions, covenants and conditions
set forth therein.
2. Assumption . Each Assignee
assumes its applicable Assigned Percentages of all of the duties
and obligations of the Assignors under the Securities Purchase
Agreement, and does hereby assume the performance of and does
hereby agree to perform, observe and be subject to, all the terms,
provisions, covenants and conditions contained in the Securities
Purchase Agreement, which were or are to be performed or observed
by or are applicable to the Assignors thereunder, and all
references to “Purchasers” in the Securities Purchase
Agreement shall be deemed to include reference to each Assignee.
The parties hereto agree that with respect to the interests
assigned by the Summit Investors to HarbourVest VI-GCA LLC and the
GM Investors, the Summit Investors shall be fully and forever
released from all obligations assumed by such Assignees.
3. Schedule of Purchasers .
The Schedule of Purchasers attached to the Securities
Purchase Agreement is hereby amended in its entirety to read as set
forth in Exhibit A attached hereto.
4. Opinions of the
Company’s and the Seller’s Counsels . Paragraph 2K
of the Securities Purchase Agreement is hereby amended in its
entirety to read as follows:
“2K. Opinions of the
Company’s and the Seller’s Counsels . The
Purchasers shall have received from Morrison & Foerster LLP,
counsel for the Company, and Beckley Singleton Chtd., special
counsel to the Seller, and from the Company’s regulatory
counsels, opinions in substantially the form of Exhibit G
attached hereto, which shall be addressed to the Purchasers and
dated as of the Closing Date and in form and substance reasonably
satisfactory to the Purchasers.”
5. Opinions of Purchasers’
Special Counsels . Paragraph 3I of the Securities Purchase
Agreement is hereby amended in its entirety to read as
follows:
“3I. Opinions of
Purchasers’ Special Counsels . The Seller and the Company
shall have received from each of Kirkland & Ellis LLP, special
counsel to the Summit Investors, in-house counsel to the Tudor
Investors, Weil, Gotshal & Manges LLP, special counsel to the
GM Investors, and Debevoise & Plimpton LLP, special counsel to
the HarbourVest Investor, an opinion in the form of Exhibit
K attached hereto regarding the authorization and execution of
this Agreement and the other agreements contemplated herein by the
Purchasers, as applicable, which shall be addressed to the Seller
and the Company and dated as of the Closing Date.”
6. Revised Definitions . The
following definitions in Section 9 of the Securities Purchase
Agreement are hereby amended as follows:
(a) The definition of “
Summit Investors ” is hereby amended in its entirety
to read as follows:
“ Summit Investors
” means Summit/GCA Holdings, LLC.
(b) The definition of “
Tudor Investors ” is hereby amended in its entirety to
read as follows:
“ Tudor Investors
” means TPT GCA Investment Ltd., Tudor Ventures GCA
Investment Ltd. and Tudor Funds GCA Investment Ltd.
7. New Definitions . Section
9 of the Securities Purchase Agreement is hereby amended to add the
following definitions to such Section:
“ GM Investors ”
means Casino Cash Access Corp., on behalf of GM Capital Partners I,
L.P., its sole stockholder, and JPMorgan Chase Bank, as Trustee for
First Plaza Group Trust.”
“ HarbourVest Investor
” means HarbourVest VI-GCA LLC.”
8. Revised Exhibits . The
Parties hereto agree that to the extent that the parties to the
agreements set forth in the Exhibits to the Securities Purchase
Agreement mutually agree to execute and deliver agreements that
differ in form from those set forth in such Exhibits, such Exhibits
shall be in
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the form of the agreements actually executed and
delivered at the Closing, and to the extent there are any changes
to the form of Exhibits attached to the Securities Purchase
Agreement, all references to the Exhibits in the Securities
Purchase Agreement and herein shall mean the form of the agreements
actually executed and delivered at the Closing.
9. Revised Exhibit M .
Exhibit M to the Securities Purchase Agreement is hereby
amended in its entirety to read as set forth on Annex I
attached hereto.
10. Fees and Expenses . The
first sentence of Paragraph 11A of the Securities Purchase
Agreement is hereby amended in its entirety to read as
follows:
“At the Closing, the Company
shall pay (or reimburse the applicable Persons hereunder for) all
fees and expenses (including reasonable fees and expenses of legal
counsel, accountants, consultants and other representatives)
incurred by the Company, the Summit Investors, the Tudor Investors
and the Seller in connection with this Agreement and the
consummation of the transactions contemplated
hereby.”
11. Successors and Assigns .
The first sentence of Paragraph 11D of the Securities Purchase
Agreement is hereby amended in its entirety to read as
follows:
“This Agreement and all of the
covenants and agreements contained herein and all of the rights,
interests and obligations hereunder, by or on behalf of any of the
Parties hereto, including any successor trusts or trustees, shall
bind and inure to the benefit of the respective successors and
assigns of the Parties hereto whether so expressed or not, except
that neither this Agreement nor any of the covenants and agreements
herein or rights, interests or obligations hereunder may be
assigned or delegated by the Seller, or assigned or delegated by
the Company, without the prior written consent of all of the
Purchasers.”
12. Full Force and Effect .
Other than as modified in accordance with the foregoing provisions,
the Securities Purchase Agreement shall remain in full force and
effect in accordance with its terms.
13. Successors and Assigns .
This Agreement shall be binding upon and i
