SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
SECOND
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS
SECOND AMENDMENT (the
“Amendment”), dated June 29, 2007, is entered into by and between XXXXX XXXXXXX
ELECTRONICS CORPORATION, an Illinois corporation (“Xxxxx Xxxxxxx”) and AMERICAN
GAMING & ELECTRONICS, INC., a Nevada corporation (“American”), Xxxxx Xxxxxxx
and American, each a Borrower are hereinafter, unless referenced individually,
collectively referred to as (the “Borrower”), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION (the “Lender”), acting through its Xxxxx Fargo Business Credit
operating division.
RECITALS
The
Borrower and the Lender are parties
to a Credit and Security Agreement dated August 21, 2006 (as amended from time
to time, the “Credit Agreement”). Capitalized terms used in these recitals have
the meanings given to them in the Credit Agreement unless otherwise
specified.
The
Borrower has requested that certain
amendments be made to the Credit Agreement, which the Lender is willing to
make
pursuant to the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the
premises and of the mutual covenants and agreements herein contained, it is
agreed as follows:
1. Terms
used in this Amendment, which are defined in the Credit Agreement shall have
the
same meanings as defined therein, unless otherwise defined herein.
2. The
Credit
Agreement is hereby amended and modified as follows:
(a) Section
6.2 (d) Intercompany Balances shall be deleted in its
entirety.
3. No Other
Changes. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Credit Agreement shall remain in full force and effect
and
shall apply to any advance or letter of credit thereunder.
4. Conditions
Precedent. This Amendment shall be effective when the Lender shall have
received an executed original hereof, together with each of the following,
each
in substance and form acceptable to the Lender in its sole
discretion:
(a) Such
other matters as the Lender may require.
5. Representations
and Warranties. The Borrower hereby represents and warrants to the Lender as
follows:
(a) The
Borrower has all requisite power and authority to execute this
Amendment and any other agreements or instruments required
hereunder and to perform all of its obligations hereunder, and this
Amendment and all such other agreements and instruments
has been duly executed and delivered by the Borrower and constitute the legal,
valid and binding obligation of the Borrower, enforceable in accordance with
its
terms.
(b) The
execution, delivery and performance by the Borrower of this
Amendment and any other agreements or instruments required
hereunder have been duly authorized by all necessary corporate action and do
not
(i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic
or
foreign, (ii) violate any provision of any law, rule or regulation or of
any order, writ, injunction or decree presently in effect, having applicability
to the Borrower, or the articles of incorporation or by-laws of the Borrower,
or
(iii) result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound or
affected.
(c) All
of the representations and warranties contained in Article V of the Credit
Agreement are correct on and as of the date hereof as though made on and as
of
such date, except to the extent that such representations and warranties relate
solely to an earlier date.
6. References. All
references in the Credit Agreement to “this Agreement” shall be deemed to refer
to the Credit Agreement as amended hereby; and any and all references in the
Security Documents to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended hereby.
7. No
Waiver. The execution of this Amendment and the acceptance
of all other agreements and instruments related hereto
shall not be deemed to be a waiver of any Default or Event of Default under
the
Credit Agreement or a waiver of any breach, default or event of default under
any Security Document or other document held by the Lender, whether or not
known
to the Lender and whether or not existing on the date of this
Amendment.
8. Release.
The Borrower hereby absolutely and unconditionally releases and forever
discharges the Lender, and any and all participants, parent corporations,
subsidiary corporations, affiliated corporations, insurers, indemnitors,
successors and assigns thereof, together with all of the present and former
directors, officers, agents and employees of any of the foregoing, from any
and
all claims, demands or causes of action of any kind, nature or description,
whether arising in law or equity or upon contract or tort or under any state
or
federal law or otherwise, which the Borrower has had, now has or has made claim
to have against any such person for or by reason of any act, omission, matter,
cause or thing whatsoever arising from the beginning of time to and including
the date of this Amendment, whether such claims, demands and causes of action
are matured or unmatured or known or unknown.
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9. Costs
and Expenses. The Borrower hereby reaffirms its agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses
incurred by the Lender in connection with the Loan Documents, including without
limitation all reasonable fees and disbursements of legal counsel. Without
limiting the generality of the foregoing, the Borrower specifically agrees
to
pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the preparation of this Amendment
and the documents and instruments incidental hereto. The Borrower hereby agrees
that the Lender may, at any time or from time to time in its sole discretion
and
without further authorization by the Borrower, make a loan to the Borrower
under
the Credit Agreement, or apply the proceeds of any loan, for the purpose of
paying any such fees, disbursements, costs and expenses.
10. Miscellaneous.
This Amendment may be executed in any number of counterparts, each of which
when
so executed and delivered shall be deemed an original and all of which
counterparts, taken together, shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
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XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION
By
__/s/ Xxxxx X. Sprink_________________
Xxxxx
X. Xxxxxx
Its:
Vice
President
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XXXXX
XXXXXXX ELECTRONICS CORPORATION
By
_/s/ Xxxxx X. Brace_________________
Xxxxx
X. Xxxxx
Its:
VP, Secretary, Treasurer
and CFO
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AMERICAN
GAMING & ELECTRONICS, INC.
By
_/s/ Xxxxx X. Brace_________________
Xxxxx
X. Xxxxx
Its:
VP and
CFO
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