SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.3
EXECUTION VERSION
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of October 26, 2020, is made between GALAXY GAMING, INC., a Nevada corporation (the “Borrower”), and ZIONS BANCORPORATION, N.A. dba
NEVADA STATE BANK, a Nevada state banking corporation (the “Lender”).
RECITALS
A. The Lender and the Borrower entered into a Credit Agreement, dated as of April 24, 2018, as amended by the First Amendment to Credit Agreement, dated as of April 22, 2019, as further amended by the Waiver
and Second Amendment to Credit Agreement, dated as of May 6, 2019, as further amended by the Third Amendment to Credit Agreement, dated as of August 16, 2019, as further amended by the Fourth Amendment to Credit Agreement, dated as of October 14,
2019, and as further amended by the Forbearance and Fifth Amendment to Credit Agreement, dated as of August 14, 2020 (as further amended, restated, or otherwise modified, the “Credit Agreement”), pursuant to which the Lender agreed to
extend credit to the Borrower.
B. The parties desire to amend certain provisions of the Credit Agreement, subject to the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties agree as follows.
Section 1. Capitalized Terms. Capitalized terms not defined shall have the meanings assigned to them in the Credit Agreement, unless the context shall otherwise require.
Section 2. Amendments to Credit Agreement.
2.1 Definitions. Article I of the Credit
Agreement is amended by adding the following definitions in the appropriate alphabetical order.
“Main Street Debt”: That certain Business Loan Agreement, dated as of October 26, 2020, between the Borrower and the Lender, in the original principal amount of $4,000,000, which is
a Main Street Priority Loan Facility, authorized under Section 13(3) of the Federal Reserve Act in connection with Section 4027 of the CARES Act.
“Sixth Amendment”: Sixth Amendment to Credit Agreement, dated as of the Sixth Amendment Date.
“Sixth Amendment Date”: October 26, 2020.
2.2 Indebtedness. Section 6.12(g) of the
Credit Agreement is amended and restated in its entirety to read as follows.
“(g) CARES Debt and Main Street Debt; and”
2.3 Liquidity Covenant. The Credit
Agreement is amended to add a new Section 6.22 to read as follows.
“Liquidity. Commencing on the Sixth Amendment Date, the Borrower will not permit its total cash and Cash Equivalents to be less than (a) on or before June 30,
2021, $1,500,000 or (b) thereafter, $2,500,000.
2.4 Exhibit D. For periods ending after the
Sixth Amendment Date, a new Section 6 of the “Attachment to Compliance Certificate” following Exhibit D is added to read as follows.
Liquidity (Section 6.22)
|
Cash and Cash Equivalents
|
$
|
Section 3. Credit Agreement Pari Passu with Main Street Debt. The Borrower and the Lender (a) acknowledge that certain
Business Loan Agreement, dated as of October 26, 2020 (the “Main Street Debt”), between the Borrower and the Lender, in the original principal amount of $4,000,000, which is a Main Street Priority Loan Facility, authorized under Section
13(3) of the Federal Reserve Act in connection with Section 4027 of the CARES Act, (b) intend that the Collateral under the Credit Agreement and the “Collateral” (as defined in the Main Street Debt) are coterminous and shared on a pari passu basis, without regard to the date of the underlying security instrument or Uniform Commercial Code financial statement filing or any provision of the Loan Documents associated with the Credit
Agreement or the Loan Documents (as defined in the Main Street Debt) to the contrary, and (c) intend that Liens granted in favor of the Lender (i) in connection with the Main Street Debt be permitted under the Credit Agreement and (ii) in
connection with the Credit Agreement be permitted under the Main Street Debt.
Section 4. Effectiveness of Amendments. This Amendment shall become effective upon delivery by the Borrower of, and
compliance by the Borrower with, the following:
4.1 Documents. The Lender shall have received this Amendment executed by a duly authorized officer of the Borrower.
4.2 Fees and Expenses. The Lender shall have received all fees and other amounts due and payable by the Borrower on or prior to the date hereof, including the reasonable fees and expenses of counsel to the Lender payable pursuant
to Section 8.2 of the Credit Agreement.
4.3 Other Matters. All corporate and legal proceedings relating to the Borrower and all instruments and agreements in connection with the transactions contemplated by this Amendment shall be satisfactory in scope, form and substance to the
Lender and its counsel, and the Lender shall have received all information and copies of all documents including records of corporate proceedings, as the Lender or its counsel may reasonably have requested in connection therewith, such
documents where appropriate to be certified by proper corporate or governmental authorities.
2
Section 5. Representations, Warranties, Authority.
5.1 Reassertion of Representations and Warranties, No
Default. The Borrower hereby represents that on and as of the date hereof and after giving effect to this Amendment all of the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in all material respects as of the date hereof as though made on and as of such date, except (i) for changes permitted by the terms of the Credit Agreement as amended by this
Amendment and (ii) to the extent such representation or warranty relates to an earlier specified date, in which case such representation or warranty is reaffirmed as true and correct in all material respects as to such date and there will exist
no Default or Event of Default under the Credit Agreement as amended by this Amendment on such date which has not been cured or waived by the Lender.
5.2 Authority, No Conflict, No Consent Required,
Enforceability. The Borrower represents and warrants that the Borrower has the power and legal right and authority to enter into this Amendment and has duly authorized as appropriate the
execution and delivery of the Amendment by proper corporate action, and neither the Amendment nor the agreements contained herein or therein contravenes or constitutes a default under any agreement, instrument or indenture to which the Borrower
is a party or a signatory or a provision of the Borrower’s Articles of Incorporation, Bylaws or any other agreement or requirement of law, or results in the imposition of any lien on any of its property under any agreement binding on or
applicable to the Borrower or any of its property except, if any, in favor of the Lender. The Borrower represents and warrants that no consent, approval or authorization of or registration or declaration with any Person, including but not
limited to any governmental authority, is required in connection with the execution and delivery by the Borrower of the Amendment or other agreements and documents executed and delivered by the Borrower in connection therewith or the
performance of obligations of the Borrower therein described, except (a) for those which the Borrower has obtained or provided and as to which the Borrower has delivered certified copies of documents evidencing each such action to the Lender
and (b) for those which the Borrower will make, obtain or provide upon the consummation of this Amendment and as to which the Borrower will promptly deliver certified copies of documents evidencing each such action to the Lender. The Borrower
represents and warrants that the Amendment constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their terms, subject to limitations as to enforceability which might result
from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and subject to limitations on the availability of equitable remedies.
5.3 No Adverse Claim. The Borrower
warrants, acknowledges and agrees that no events have taken place and no circumstances exist at the date hereof which would give the Borrower a basis to assert a defense, offset or counterclaim to any claim of the Lender with respect to the
obligations.
3
Section 6. Affirmation of Credit
Agreement, Further References, Affirmation of Security Interest. The Lender and the Borrower each acknowledge and affirm that the Credit Agreement,
as amended hereby, is hereby ratified and confirmed in all respects and all terms, conditions and provisions of the Credit Agreement and the other Loan Documents, except as amended by this Amendment,
shall remain unmodified and in full force and effect. All references in any document or instrument to the Credit Agreement are hereby amended and shall refer to the Credit
Agreement as amended hereby. The Borrower confirms to the Lender that the Obligations are and continue to be secured by the security interest granted by the Borrower in favor of the Lender under the Security Agreement and all of the
terms, conditions, provisions, agreements, requirements, promises, obligations, duties, covenants and representations of the Borrower under such document and any and all other documents and agreements entered into with respect to the obligations
under the Credit Agreement are incorporated herein by reference and are hereby ratified and affirmed in all respects by the Borrower.
Section 7. Merger and Integration, Superseding Effect. This Amendment, from and after the date
hereof, embodies the entire agreement and understanding between the parties hereto and supersedes and has merged into this Amendment all prior oral and written agreements on the same subjects by and between the parties hereto with the effect that
this Amendment shall control with respect to the specific subjects hereof and thereof.
Section 8. Severability. Whenever possible, each provision of this Amendment and any other
statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto shall be interpreted in such manner as to be effective, valid and enforceable under the applicable law of any jurisdiction, but, if any provision of
this Amendment or any other statement, instrument or transaction contemplated hereby or thereby or relating hereto or thereto shall be held to be prohibited, invalid or unenforceable under the applicable law, such provision shall be ineffective
in such jurisdiction only to the extent of such prohibition, invalidity or unenforceability, without invalidating or rendering unenforceable the remainder of such provision or the remaining provisions of this Amendment or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or affecting the effectiveness, validity or enforceability of such provision in any other jurisdiction.
Section 9. Successors. This Amendment shall be binding
upon the Borrower, the Lender and their respective successors and assigns, and shall inure to the benefit of the Borrower, and the Lender and their successors and assigns.
Section 10. Legal Expenses. As provided in Section 8.2 of the Credit
Agreement, the Borrower agrees to reimburse the Lender upon demand for all reasonable out-of-pocket expenses (including filing and recording costs and fees, charges and disbursements of outside counsel to the Lender) incurred in
connection with the negotiation, preparation, enforcement and collection of this Amendment and all other documents negotiated and prepared in connection with this Amendment.
Section 11. Headings. The headings of various sections of this Amendment have been inserted for
reference only and shall not be deemed to be a part of this Amendment.
Section 12. Counterparts. This Amendment may be executed in several counterparts as deemed necessary
or convenient, each of which, when so executed, shall be deemed an original, provided that all such counterparts shall be regarded as one and the same document, and any party to this Amendment may execute any such agreement by executing a
counterpart of such agreement.
4
Section 13. Governing Law. THE AMENDMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEVADA, WITHOUT GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF.
Section 14. Acknowledgement and Release. IN ORDER TO INDUCE THE LENDER TO ENTER INTO THIS AMENDMENT, THE BORROWER: (A)
REPRESENTS AND WARRANTS TO THE LENDER THAT NO EVENTS HAVE TAKEN PLACE AND NO CIRCUMSTANCES EXIST AT THE DATE HEREOF WHICH WOULD GIVE THE BORROWER THE RIGHT TO ASSERT A DEFENSE, OFFSET OR COUNTERCLAIM TO ANY CLAIM BY THE LENDER FOR PAYMENT OF THE
OBLIGATIONS; AND (B) HEREBY RELEASES AND FOREVER DISCHARGES THE LENDER AND ITS SUCCESSORS, ASSIGNS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES AND PARTICIPANTS FROM ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, PROCEEDINGS, DEBTS, SUMS OF MONEY,
COVENANTS, CONTRACTS, CONTROVERSIES, CLAIMS AND DEMANDS, AT LAW OR IN EQUITY, WHICH THE BORROWER EVER HAD OR NOW HAS AGAINST THE LENDER OR ANY OF ITS SUCCESSORS, ASSIGNS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR PARTICIPANTS BY VIRTUE OF THEIR
RELATIONSHIP TO THE BORROWER IN CONNECTION WITH THIS AMENDMENT, THE CREDIT AGREEMENT, THE LOAN DOCUMENTS AND TRANSACTIONS RELATED THERETO.
***
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.
|
BORROWER:
|
|
|
By:
|
|
Name:
|
Xxxxx Xxxxxxx | |
|
Title:
|
Chief Financial Officer |
Sixth Amendment to Credit Agreement
|
LENDER:
|
||
|
ZIONS BANCORPORATION, N.A. DBA NEVADA STATE BANK
|
||
|
By:
|
|
|
Name: | Xxxxx Xxxxx |
|
|
Title: | Senior Gaming Director |
Sixth Amendment to Credit Agreement
