BANK AGENCY AGREEMENT
TO: Bank of America October 24, 1997
000 X. 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxx
Vice President
Ladies and Gentlemen:
This Letter Agreement, between your bank, Bank of America National Trust
and Savings Association (the "Bank"), Mikohn Gaming Corporation and its
------
subsidiaries Casino Excitement, Inc. and Mikohn Nevada (collectively, the
"COMPANY"), First Source Financial LLP (the "LENDER"), First Source Financial,
Inc. (the "SERVICER") and The Bank of New York (the "COLLATERAL AGENT") shall
serve as instructions regarding the operation and procedures for the Accounts
specifically identified in Paragraph 2 below.
1. Effectiveness. This Agreement shall take effect immediately upon
-------------
written notice to you from the Servicer as to the occurrence of the closings
under the Credit Agreement dated as of October 24, 1997 (such Credit Agreement,
as the same may be amended, restated, supplemented or otherwise modified from
time to time hereinafter is referred to as the "Credit Agreement") between the
Company, the Lender and the other financial institutions which now or may
hereafter become party thereto.
2. Account Identification. This Agreement applies to Account Nos. 990-
----------------------
084-774, 000-000-000 and 000-000-000 (individually, each an "ACCOUNT" and
collectively, the "ACCOUNTS"), maintained by the Company at the Bank. No other
bank accounts (except for payroll accounts, xxxxx cash accounts and that certain
certificate of deposit account no. 000-000-000 opened by Company with Bank which
has been pledged and assigned to Bank as security for a letter of credit issued
by Bank for the account of Company) shall be opened by the Company at the Bank
without Lender's prior written consent.
3. Security Interest; Agency. (a) The Company has granted, and does
-------------------------
hereby grant, to the Lender a continuing lien upon, and security interest in,
all right, title and interest of the Company in and to all funds, items,
instruments, investments, securities and other things of value at any time paid,
deposited, credited or held (whether for collection, provisionally or otherwise)
in each Account (collectively, the "ACCOUNT COLLATERAL").
(b) The Lender hereby appoints the Bank as the Lender's pledgee-in-
possession for the Accounts and all of the Account Collateral, and the Bank by
its execution and delivery of this Agreement hereby accepts such appointment and
agrees to be bound by the terms of this Agreement. The Company hereby agrees to
such appointment of the Bank and further agrees that the Bank, on behalf of the
Lender, shall be entitled to exercise, upon the instructions of the Lender or
the Servicer, acting in its capacity as agent on behalf of the Lender, any and
all rights
which the Lender may have under or in connection with the Credit Agreement, all
promissory notes, all agreements pursuant to which security interests and liens
are granted to the Lender or under applicable law with respect to the Accounts
and all other Account collateral. Upon written notice (a "Company Default
Notice") from the Lender or the Servicer to the Bank of the occurrence of an
Event of Default under the Credit Agreement, the Bank shall take such action,
without any cost or expense to the Bank, as from time to time shall be specified
in writing from the Lender, or the Servicer, acting in its capacity as agent on
behalf of the Lender, to enable the Lender to exercise its rights and remedies
with respect to the lien and security interest described in this Section 3.
---------
(c) The Lender and the Servicer have entered into certain financing
arrangements with the Collateral Agent, and certain other financial institutions
on whose behalf the Collateral Agent is authorized to act (the "FINANCING"). As
part of the Financing, the Lender has granted to the Collateral Agent a
continuing lien upon, and security interest in, all of the Lender's interests in
the property of the Company, including, without limitation, all of the Lender's
interest in the Accounts and the Account Collateral. The Collateral Agent holds
its lien and security interest described in this Section 3 on behalf of certain
---------
other "SECURED CREDITORS" (as such term is defined in the various agreements
evidencing the Financing) and as such, acts as the contractual representative
for such Secured Creditors. Any other provision of this Agreement to the
contrary notwithstanding, each of the Lender, the Servicer and the Company
hereby authorize the Bank after it has received notice from the Collateral Agent
that an Event of Termination has occurred under the Financing, to take such
action, without any cost or expense to the Bank, as shall from time to time
thereafter be specified in writing by the Collateral Agent to enable the
Collateral Agent to exercise its rights and remedies with respect to the lien
and security interest granted to the Collateral Agent as part of the Financing,
provided that such action is not in contravention of Section 4 of this
-
Agreement.
(d) Any other provision of this Agreement to the contrary notwithstanding,
each of the Lender, the Servicer, the Company and the Bank hereby agree that
after the Bank has received notice from the Collateral Agent that an "EVENT OF
TERMINATION" under the Financing has occurred (i) any instructions given to the
Bank by the Collateral Agent shall supersede those given by the Lender or the
Servicer acting on the Lender's behalf and (ii) the Bank shall not comply with
any instructions given by the Lender or the Servicer unless otherwise authorized
to do so by the Collateral Agent.
4. Events of Default and Termination. (a) At all times after the Bank's
---------------------------------
receipt of any Company Default Notice from the Lender or the Servicer, the Bank
shall follow the instructions of the Lender and the Servicer as to the holding,
investment and transfer of all collected amounts from time to time on deposit in
the Accounts. In addition, the Company agrees that the Bank may act as the agent
of Lender in exercising, as to any funds or items from time to time on deposit
in any of the Accounts, any rights of setoff provided by applicable law or by
the Credit Agreement or any other right or remedy. The Bank shall be entitled to
rely, without independent investigation, on any statement of the Lender or the
Servicer to the effect that an Event of Default under the Credit
-2-
Agreement has occurred and is continuing or to the effect that any exercise of
set-off or any other right or remedy requested by the Lender or the Servicer is
permitted under applicable law or the Credit Agreement.
(b) Any other provision of this Agreement to the contrary notwithstanding,
at all times after the Bank's receipt of written notice from the Collateral
Agent that an Event of Termination under the Financing has occurred, the Bank
shall no longer follow any instructions given to the Bank by the Servicer or the
Lender, but shall thereafter act only upon the express instructions of the
Collateral Agent. All of the rights and remedies granted to the Lender or the
Servicer hereunder shall immediately upon such notice of an Event of Termination
under the Financing become available to the Collateral Agent at such time. Each
of the Company, the Lender and the Servicer agrees that the Bank shall be
entitled to rely, without independent investigation, on any statement of the
Collateral Agent to the effect that an Event of Termination has occurred and is
continuing or to the effect that any exercise of set-off requested by the
Collateral Agent is permitted under applicable law or the agreements executed
and delivered in connection with the Financing.
5. Information. The Bank shall provide the Lender and the Servicer with
-----------
(a) copies of any periodic statements with respect to each Account which are
delivered to the Company and (b) such information with respect to the Accounts
as the Lender or the Servicer may from time to time reasonably request, and
following notice from the Collateral Agent that an Event of Termination under
the Financing has occurred, such information as the Collateral Agent shall
reasonably request, and the Company hereby consents to such information being
provided to the Lender, the Servicer or the Collateral Agent, as the case may
be. Bank shall simultaneously notify the Company in writing that such
information has been requested by the Lender, the Servicer and/or the Collateral
Agent.
6. Compensation. Compensation to the Bank for providing the services
------------
contemplated herein shall be mutually agreed upon between the Bank and the
Company from time to time.
7. Exculpation. The Bank undertakes to perform only such duties as are
-----------
expressly set forth herein. Notwithstanding any other provision of this
Agreement, it is agreed by the parties hereto that the Bank shall not be liable
for any action taken at the request of the Lender, the Servicer or the
Collateral Agent, except for the Bank's own gross negligence or willful
misconduct. In no event shall the Bank be liable for losses or delays resulting
from computer malfunction, interruption of communication facilities, labor
difficulties or other causes beyond the Bank's reasonable control or for
indirect, special or consequential damages. Notwithstanding anything contained
herein to the contrary, the Bank is authorized to follow its usual procedures in
the event any of the Accounts or any check, draft, or other order for payment of
money should be or become the subject of any writ, levy, order or other similar
judicial or regulatory order or process.
8. Irrevocable Agreements. Each of the Company, the Lender and the
----------------------
Servicer acknowledges that the agreements made by it and the authorizations
granted by it herein are
-3-
irrevocable and that the authorizations granted in Sections 3, 4 and 5 are
-------- - - -
powers coupled with an interest.
9. Setoff. All funds deposited into the Accounts shall not be subject to
------
deductions, setoff, banker's liens or any other right in favor of any person
other than the Lender or the Collateral Agent, except that (i) the Bank may
setoff against the Accounts the face amount of any check deposited in and
credited to such Account which is subsequently returned for any reason, (ii) for
all past due compensation and expenses with respect to the Accounts as provided
in Section 6 and (iii) for any compensation or expenses due from Company under
---------
any deposit or cash management service agreements between Company and the Bank
related to the Accounts.
10. Miscellaneous. This Agreement shall be effective as provided in
------------- --
Section 1 hereof. This Agreement shall supersede any other agreement relating
------- -
to the matters referred to herein, including, without limitation, any other
account agreement between the Lender and the Bank. This Agreement constitutes
the entire agreement with respect to the services provided hereunder and is
binding upon the parties hereto and their respective successors and assigns
(including any trustee of the Company appointed or elected in any action under
the Bankruptcy Reform Act of 1978, as amended) and shall inure to their benefit.
The Lender may act as agent for other certain financial institutions which may
hold indebtedness secured by the security interest and lien described in Section
-------
3, and the Lender and other such holders may in the future transfer, assign or
-
sell all or a part of their respective interests. Neither this Agreement nor
any provision hereof maybe changed, amended, modified or waived orally, but only
by an instrument in writing signed by the parties hereto, provided that such
--------
instrument need be signed only by the Bank, the Lender, the Servicer and the
Collateral Agent if it does not in any manner change any rights or obligations
of, or authorizations granted by, the Company hereunder and written notice
thereof (together with a copy of such instrument) is promptly thereafter
provided by the Lender, the Servicer or the Collateral Agent to the Company.
THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT THAT
THE RIGHTS, DUTIES AND OBLIGATIONS OF THE COLLATERAL AGENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE RIGHTS, DUTIES AND
OBLIGATIONS OF THE BANK SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEVADA. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement. All obligations and rights of the
parties hereto expressed herein shall be in addition to and not in limitation of
those provided by applicable law. This Agreement may be executed in any number
of counterparts which together shall constitute, one and the same instrument.
11. Termination. This Agreement may be terminated by the Lender (or the
-----------
Servicer acting on behalf of the Lender) or the Bank upon 30 days' advance
written notice to the other parties hereto. All rights of the Bank under
Sections 6 and 7, and rights of any party for any breach of this Agreement, for
-------- - -
the period prior to any such termination shall survive such
-4-
termination (or any termination pursuant to the immediately succeeding
sentence). Upon payment in full of all Obligations (as defined in the Credit
Agreement) and the termination of the obligation of the Lenders to lend any
funds to the Company pursuant to the Credit Agreement, the Agent, Servicer
and/or Collateral Agent, as the case may be, shall so notify the Bank that this
Letter Agreement shall terminate and be of no further force or effect.
12. Notices. All notices, requests or other communications required or
-------
desired to be given to the Company, the Lender, the Servicer, the Collateral
Agent or the Bank hereunder shall be given in writing (including facsimile
transmission or similar writing) at the address or facsimile number specified
below:
Lender: First Source Financial LLP
c/o First Source Financial, Inc.
0000 Xxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Servicer: First Source Financial, Inc.
0000 Xxxx Xxxx Xxxx 0xx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank: Bank of America
000 X. 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Collateral Agent: The Bank of New York
000 Xxxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust -- Xxxxxx X. Laser
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-5-
Company: Mikohn Gaming Corporation
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx XxXxxx, Xx., General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address or facsimile number for notices hereunder
by notice to each other party hereunder. Each notice, request or other
communication shall be effective (a) if given by facsimile, when such facsimile
is transmitted to the facsimile number specified in this Section and
confirmation of receipt is made by the appropriate party, (b) if given by mail,
72 hours after such communication is deposited in the mails with registered
first class postage prepaid, addressed as aforesaid or (c) if given by any other
means, when delivered at the address specified in this Section.
[SIGNATURE PAGE FOLLOWS]
-6-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed and delivered by their duly
authorized representatives as of the date first set forth above.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
---------------------------
Title: Vice President
--------------------------
FIRST SOURCE FINANCIAL LLP
By:
-------------------------------
Name:
---------------------------
Title:
--------------------------
FIRST SOURCE FINANCIAL, INC.
By:
-------------------------------
Name:
---------------------------
Title:
--------------------------
THE BANK OF NEW YORK
as Collateral Agent
By:
-------------------------------
Name:
---------------------------
Title:
--------------------------
Accepted and Agreed to as of
the date first above written:
MIKOHN GAMING CORPORATION
By:/s/Xxx Xxxxxxx
----------------------
Name: Xxx Xxxxxxx
------------------
Title: EVP & CFO
-----------------
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be executed and delivered by their duly
authorized representatives as of the date first set forth above.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-------------------------------
Name:
---------------------------
Title:
--------------------------
FIRST SOURCE FINANCIAL LLP
By:/s/
-------------------------------
Name:
---------------------------
Title:
--------------------------
FIRST SOURCE FINANCIAL, INC.
By:/s/
-------------------------------
Name:
--------------------------
Title:
-------------------------
THE BANK OF NEW YORK
as Collateral Agent
By:/s/Xxxxxx X. Laser
-------------------------------
Name: Xxxxxx X. Laser
--------------------------
Title: Assistant Vice President
-------------------------
Accepted and Agreed to as of
the date first above written:
MIKOHN GAMING CORPORATION
By:/s/Xxx X. Xxxxxxx
----------------------
Name: Xxx X. Xxxxxxx
------------------
Title: EVP & CFO
-----------------
BANK AGENCY AGREEMENT
---------------------
TO: U.S. Bank National Association October 24, 1997
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxx Xxxxxx
Ladies and Gentlemen:
This Letter Agreement, between your bank (the "BANK"), Mikohn Gaming
Corporation (the "COMPANY"), First Source Financial LLP (the "LENDER"), First
Source Financial, Inc. (the "SERVICER") and The Bank of New York (the
"COLLATERAL AGENT") shall serve as instructions regarding the operation and
procedures for the Accounts specifically identified herein, maintained at the
Bank by, or for the deposit, credit or custody of property of, the Company.
1. Effectiveness. This Agreement shall take effect immediately upon
-------------
written notice to you from the Servicer as to the occurrence of the closings
under the Credit Agreement dated as of October __, 1997 (such Credit Agreement,
as the same may be amended, restated, supplemented or otherwise modified from
time to time hereinafter is referred to as the "Credit Agreement") between the
Company, the Lender and the other financial institutions which now or may
hereafter become party thereto.
2. Account Identification. This Agreement applies to Account Nos.
----------------------
33352031 (Inves) and 8470000178 (DDA) (individually, each an "ACCOUNT" and
collectively, the "ACCOUNTS"), maintained by the Company at the Bank. No other
bank accounts shall be opened by the Company at the Bank without Lender's prior
written consent.
3. Security Interest; Agency. (a) The Company has granted, and
-------------------------
does hereby grant, to the Lender a continuing lien upon, and security interest
in, all right, title and interest of the Company in and to all funds, items,
instruments, investments, securities and other things of value at any time paid,
deposited, credited or held (whether for collection, provisionally or otherwise)
in each Account and all other property of the Company from time to time in the
possession or under the control of, or in transit to the Bank or any agent,
bailee or custodian thereof, and all proceeds and products of all of the
foregoing, including, without limitation, any of the foregoing from time to time
paid, deposited, or held in any Account (collectively, the "ACCOUNT
COLLATERAL").
(b) The Lender hereby appoints the Bank as the Lender's pledgee-in-
possession for the Accounts and all of the Account Collateral, and the Bank by
its execution and delivery of this Agreement hereby accepts such appointment and
agrees to be bound by the terms of this Agreement. The Company hereby agrees to
such appointment of the Bank and further agrees that the Bank, on behalf of the
Lender, shall be entitled to exercise, upon the instructions of the Lender or
the Servicer, acting in its capacity as agent on behalf of the
Lender, any and all rights which the Lender may have under or in connection with
the Credit Agreement, all promissory notes, all agreements pursuant to which
security interests and liens are granted to the Lender or under applicable law
with respect to the Accounts and all other Account collateral. Upon written
notice (a "Company Default Notice") from the Lender or the Servicer to the Bank
of the occurrence of an Event of Default under the Credit Agreement, the Bank
shall take such action as from time to time shall be specified in writing from
the Lender, or the Servicer, acting in its capacity as agent on behalf of the
Lender, to enable the Lender to exercise its rights and remedies with respect to
the lien and security interest described in this Section 3.
---------
(c) The Lender and the Servicer have entered into certain financing
arrangements with the Collateral Agent, and certain other financial institutions
on whose behalf the Collateral Agent is authorized to act (the "FINANCING"). As
part of the Financing, the Lender has granted to the Collateral Agent a
continuing lien upon, and security interest in, all of the Lender's interests in
the property of the Company, including, without limitation, all of the Lender's
interest in the Accounts and the Account Collateral. The Collateral Agent holds
its lien and security interest described in this Section 3 on behalf of certain
---------
other "SECURED CREDITORS" (as such term is defined in the various agreements
evidencing the Financing) and as such, acts as the contractual representative
for such Secured Creditors. Any other provision of this Agreement to the
contrary notwithstanding, each of the Lender, the Servicer and the Company
hereby authorize the Bank after it has received notice from the Collateral Agent
that an Event of Termination has occurred under the Financing, to take such
action as shall from time to time thereafter be specified in writing by the
Collateral Agent to enable the Collateral Agent to exercise its rights and
remedies with respect to the lien and security interest granted to the
Collateral Agent as part of the Financing, provided that such action is not in
contravention of Section 4 of this Agreement.
-
(d) Any other provision of this Agreement to the contrary
notwithstanding, each of the Lender, the Servicer, the Company and the Bank
hereby agree that after the Bank has received notice from the Collateral Agent
that an "EVENT OF TERMINATION" under the Financing has occurred (i) any
instructions given to the Bank by the Collateral Agent shall supersede those
given by the Lender or the Servicer acting on the Lender's behalf and (ii) the
Bank shall not comply with any instructions given by the Lender or the Servicer
unless otherwise authorized to do so by the Collateral Agent.
4. Events of Default and Termination. (a) At all times after the
---------------------------------
Bank's receipt of any Company Default Notice from the Lender or the Servicer,
the Bank shall follow the instructions of the Lender and the Servicer as to the
holding, investment and transfer of all collected amounts from time to time on
deposit in the Accounts. In addition, the Company agrees that the Bank may act
as the agent of Lender in exercising, as to any funds or items from time to time
on deposit in any of the Accounts, any rights of setoff provided by applicable
law or by the Credit Agreement or any other right or remedy. The Bank shall be
entitled to rely, without independent investigation, on any statement of the
Lender or the Servicer to the effect that an Event of Default under the Credit
Agreement has
-2-
occurred and is continuing or to the effect that any exercise of set-off or any
other right or remedy requested by the Lender or the Servicer is permitted under
applicable law or the Credit Agreement.
(b) Any other provision of this Agreement to the contrary
notwithstanding, at all times after the Bank's receipt of written notice from
the Collateral Agent that an Event of Termination under the Financing has
occurred, the Bank shall no longer follow any instructions given to the Bank by
the Servicer or the Lender, but shall thereafter act only upon the express
instructions of the Collateral Agent. All of the rights and remedies granted to
the Lender or the Servicer hereunder shall immediately upon such notice of an
Event of Termination under the Financing become available to the Collateral
Agent at such time. Each of the Company, the Lender and the Servicer agrees
that the Bank shall be entitled to rely, without independent investigation, on
any statement of the Collateral Agent to the effect that an Event of Termination
has occurred and is continuing or to the effect that any exercise of set-off
requested by the Collateral Agent is permitted under applicable law or the
agreements executed and delivered in connection with the Financing.
5. Information. The Bank shall provide the Lender and the Servicer
-----------
with (a) copies of any periodic statements with respect to each Account which
are delivered to the Company and (b) such information with respect to the
Accounts as the Lender or the Servicer may from time to time reasonably request,
and following notice from the Collateral Agent that an Event of Termination
under the Financing has occurred, such information as the Collateral Agent shall
reasonably request, and the Company hereby consents to such information being
provided to the Lender, the Servicer or the Collateral Agent, as the case may
be. Bank shall simultaneously notify the Company in writing that such
information has been requested by the Lender, the Servicer and/or the Collateral
Agent.
6. Compensation. Compensation to the Bank for providing the
------------
services contemplated herein shall be mutually agreed upon between the Bank and
the Company from time to time.
7. Exculpation. The Bank undertakes to perform only such duties as
-----------
are expressly set forth herein. Notwithstanding any other provision of this
Agreement, it is agreed by the parties hereto that the Bank shall not be liable
for any action taken at the request of the Lender, the Servicer or the
Collateral Agent, except for the Bank's own gross negligence or willful
misconduct. In no event shall the Bank be liable for losses or delays resulting
from computer malfunction, interruption of communication facilities, labor
difficulties or other causes beyond the Bank's reasonable control or for
indirect, special or consequential damages.
8. Irrevocable Agreements. Each of the Company, the Lender and the
----------------------
Servicer acknowledges that the agreements made by it and the authorizations
granted by it herein are irrevocable and that the authorizations granted in
Sections 3, 4 and 5 are powers coupled with an interest.
---------- - -
-3-
9. Setoff. All funds deposited into the Accounts shall not be
------
subject to deductions, setoff, banker's liens or any other right in favor of any
person other than the Lender or the Collateral Agent, except that (i) the Bank
may setoff against the Accounts the face amount of any check deposited in and
credited to such Account which is subsequently returned for any reason and (ii)
for all past due compensation and expenses with respect to the Accounts as
provided in Section 6.
---------
10. Miscellaneous. This Agreement shall be effective as provided in
-------------
Section 1 hereof. This Agreement shall supersede any other agreement relating
---------
to the matters referred to herein, including, without limitation, any other
account agreement between the Lender and the Bank. This Agreement constitutes
the entire agreement with respect to the services provided hereunder and is
binding upon the parties hereto and their respective successors and assigns
(including any trustee of the Company appointed or elected in any action under
the Bankruptcy Reform Act of 1978, as amended) and shall inure to their benefit.
The Lender may act as agent for other certain financial institutions which may
hold indebtedness secured by the security interest and lien described in Section
-------
3, and the Lender and other such holders may in the future transfer, assign or
-
sell all or a part of their respective interests. Neither this Agreement nor
any provision hereof maybe changed, amended, modified or waived orally, but only
by an instrument in writing signed by the parties hereto, provided that such
--------
instrument need be signed only by the Bank, the Lender, the Servicer and the
Collateral Agent if it does not in any manner change any rights or obligations
of, or authorizations granted by, the Company hereunder and written notice
thereof (together with a copy of such instrument) is promptly thereafter
provided by the Lender, the Servicer or the Collateral Agent to the Company.
THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT THAT
THE RIGHTS, DUTIES AND OBLIGATIONS OF THE COLLATERAL AGENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations and rights of the parties hereto expressed herein
shall be in addition to and not in limitation of those provided by applicable
law. This Agreement may be executed in any number of counterparts which
together shall constitute, one and the same instrument.
-4-
11. Termination. This Agreement may be terminated by the Lender (or
-----------
the Servicer acting on behalf of the Lender) or the Bank upon 30 days' advance
written notice to the other parties hereto. All rights of the Bank under
Sections 6 and 7, and rights of any party for any breach of this Agreement, for
---------- -
the period prior to any such termination shall survive such termination (or any
termination pursuant to the immediately succeeding sentence). Upon payment in
full of all Obligations (as defined in the Credit Agreement) and the termination
of the obligation of the Lenders to lend any funds to the Company pursuant to
the Credit Agreement, the Agent, Servicer and/or Collateral Agent, as the case
may be, shall so notify the Bank that this Letter Agreement shall terminate and
be of no further force or effect.
12. Notices. All notices, requests or other communications required
-------
or desired to be given to the Company, the Lender, the Servicer, the Collateral
Agent or the Bank hereunder shall be given in writing (including facsimile
transmission or similar writing) at the address or facsimile number specified
below:
Lender: First Source Financial LLP
c/o First Source Financial, Inc.
0000 Xxxx Xxxx Xxxx 0xx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Servicer: First Source Financial, Inc.
0000 Xxxx Xxxx Xxxx 0xx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank: U.S. Bank National Association
0000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Account Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
-5-
Collateral Agent: The Bank of New York
000 Xxxxxxx
Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust -- Xxxxxx X. Laser
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Company: Mikohn Gaming Corporation
0000 Xxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx XxXxxx, Xx., General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address or facsimile number for notices
hereunder by notice to each other party hereunder. Each notice, request or
other communication shall be effective (a) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
confirmation of receipt is made by the appropriate party, (b) if given by mail,
72 hours after such communication is deposited in the mails with registered
first class postage prepaid, addressed as aforesaid or (c) if given by any other
means, when delivered at the address specified in this Section.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed and delivered by their duly authorized
representatives as of the date first set forth above.
U.S. Bank National Association
---------------------------------
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Assistant Vice President
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FIRST SOURCE FINANCIAL LLP
By: (Name Illegible)
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Name:
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Title:
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FIRST SOURCE FINANCIAL, INC.
By: (Name Illegible)
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Name:
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Title:
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THE BANK OF NEW YORK
as Collateral Agent
By: /s/ Xxxxxx X. Laser
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Name: Xxxxxx X. Laser
--------------------------
Title: Assistant Vice President
-------------------------
Accepted and Agreed to as of
the date first above written:
MIKOHN GAMING CORPORATION
By: /s/ Xxx X. Xxxxxxx
------------------------------
Name: Xxx X. Xxxxxxx
--------------------------
Title: Executive Vice President
-------------------------
