SECOND AMENDMENT TO EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT
Exhibit
10.2
SECOND
AMENDMENT TO EXPORT-IMPORT BANK
LOAN AND SECURITY
AGREEMENT
THIS
SECOND AMENDMENT TO EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (this “Agreement”) is entered into as
of July 24, 2009, by and between SILICON VALLEY BANK (“Bank”) and POKERTEK, INC., a North
Carolina corporation (“Borrower”), with its principal
place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the “Borrower”).
Recitals
A. Bank and Borrower have
entered into that certain Export-Import Bank Loan and Security Agreement dated
as of July 25, 2008 (as the same has and may continue to be from time to time
further amended, modified, supplemented or restated, the “Exim Loan Agreement”).
B. Bank has extended credit to
Borrower for the purposes permitted in the Exim Loan Agreement.
C. Borrower has requested
that Bank (i) extend the Maturity Date, (ii) reduce the Facility Amount, and
(iii) amend certain other provisions of the Loan Agreement.
D. Although Bank is under no
obligation to do so, Bank is willing to amend certain provisions of the Loan
Agreement, all on the terms and conditions set forth in this Agreement, so long
as Borrower complies with the terms, covenants and conditions set forth in this
Agreement in a timely manner.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1.
Definitions. Capitalized
terms used but not defined in this Agreement, including its preamble and
recitals, shall have the meanings given to them in the Exim Loan
Agreement.
2.
Amendments to Exim Loan
Agreement.
2.1
Section 2.1.1 (Financing
of Accounts). Section 2.1.1 of the Loan Agreement is hereby
amended by adding clauses (g) immediately after clause (f) of Section 2.1.1 of
the Loan Agreement as follows:
(g) Maximum
Advances. The aggregate face amount of all Financed
Receivables outstanding at any time may not exceed the Exim Committed
Line. The aggregate amount of all Advances outstanding at any time to
finance Exim Eligible Foreign Inventory may not exceed the Exim Inventory
Facility Amount. The sum of the aggregate amount of all Advances and
Domestic Advances outstanding at any time may not exceed the Exim Facility
Limit.
2.2
Section 13
(Definitions).
(a) The
following terms and their respective definitions as set forth in Section 13.1 of
the Loan Agreement are hereby deleted in their entirety and replaced in
alphabetical order with the following:
“Exim Committed Line” is an
Advance or Advances of up to One Million Five Hundred Fifty-Five Thousand Five
Hundred Dollars ($1,555,500).
“Exim Maturity Date” is July
23, 2010.
(b) The
following terms and their respective definitions are hereby added in
alphabetical order to Section 13.1 of the Loan Agreement:
“Exim Facility Limit” is Two
Million Five Hundred Thousand Dollars ($2,500,000).
“Exim Inventory Facility
Amount” is Seven Hundred Fifty Thousand Dollars ($750,000).
“Domestic Advances” means an
advance under the Domestic Loan Agreement.
3. Limitation of
Amendments.
3.1
The amendments set forth in Section 2 above are
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (a) be a consent to any amendment,
waiver or modification of any other term or condition of any Loan Document, or
(b) otherwise prejudice any right or remedy which Bank may now have or may
have in the future under or in connection with any Loan Document.
3.2
This Agreement shall be construed in connection with and as part of the
Loan Documents and all terms, conditions, representations, warranties, covenants
and agreements set forth in the Loan Documents, except as herein amended, are
hereby ratified and confirmed and shall remain in full force and
effect.
4.
Representations and
Warranties. To induce Bank to enter into this Agreement,
Borrower hereby represents and warrants to Bank as follows:
4.1
Immediately after giving effect to this Agreement (a) the
representations and warranties contained in the Loan Documents are true,
accurate and complete in all material respects as of the date hereof (except to
the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of
Default has occurred and is continuing;
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4.2
Borrower has the power and authority to execute and deliver this
Agreement and to perform its obligations under the Exim Loan Agreement, as
amended by this Agreement;
4.3
The organizational documents of Borrower delivered to Bank on the
Effective Date remain true, accurate and complete and have not been amended,
supplemented or restated and are and continue to be in full force and
effect;
4.4
The execution and delivery by Borrower of this Agreement and the
performance by Borrower of its obligations under the Exim Loan Agreement, as
amended by this Agreement, have been duly authorized;
4.5
The execution and delivery by Borrower of this Agreement and the
performance by Borrower of its obligations under the Exim Loan Agreement, as
amended by this Agreement, do not and will not contravene (a) any law or
regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or
decree of any court or other governmental or public body or authority, or
subdivision thereof, binding on Borrower, or (d) the organizational
documents of Borrower;
4.6
The execution and delivery by Borrower of this Agreement and the
performance by Borrower of its obligations under the Exim Loan Agreement, as
amended by this Agreement, do not require any order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by any governmental or public body or authority, or subdivision
thereof, binding on Borrower, except as already has been obtained or made;
and
4.7
This Agreement has been duly executed and delivered by Borrower and is
the binding obligation of Borrower, enforceable against Borrower in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other similar laws of
general application and equitable principles relating to or affecting creditors’
rights.
5.
Counterparts. This
Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6.
Effectiveness. This
Agreement shall be deemed effective upon (a) the due execution and delivery to
Bank of this Agreement by each party hereto, (b) the due execution and delivery
to Bank of that certain Second Amendment to Loan and Security Agreement, dated
as of the date hereof, by each party hereto, (c) the due execution and
delivery to Bank of that certain Export-Import Bank Borrower Agreement, dated as
of the date hereof, by each party hereto, (d) Borrower’s payment of an amendment
and extension fee to Exim Bank in an amount equal to Three Thousand Two Hundred
Twenty-Five Dollars ($3,225) (inclusive of the One Hundred Dollar ($100) Exim
Bank application fee), (e) Borrower’s payment of an amendment and extension fee
to Bank in an amount equal to Twelve Thousand Five Hundred Twenty-Five Dollars
($12,525), and (f) payment of Bank’s legal fees and expenses in connection
with the negotiation and preparation of this Agreement.
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[Signature
Page Follows.]
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In Witness
Whereof, the parties hereto have caused this Agreement to be duly
executed and delivered as of the date first written above.
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BANK
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SILICON
VALLEY BANK
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By:
Name:
Title:
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BORROWER
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By:
Name:
Title:
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[Signature
Page to Second Amendment to Export-Import Bank Loan and Security
Agreement]