Exhibit
10.1


 


WAIVER
AND AMENDMENT TO WARRANTS


 


THIS WAIVER AND AMENDMENT TO WARRANTS (this “Agreement”)
is entered into as of September 7, 2007 (the “Effective Date”), by and between
VendingData Corporation, a Nevada corporation (the “Company”), on the one hand,
and each of Bricoleur Partners, L.P., Bricoleur Enhanced, L.P., BRIC 6, L.P.
and Bricoleur Offshore Ltd. (collectively, the “Bricoleur Funds”), on the other
hand.


 


R E C I T A L S


 


WHEREAS, the
Company and the Bricoleur Funds are parties to that certain 8% Senior Secured
Note Purchase Agreement, dated as of May 1, 2006 and amended as of September
19, 2006 (the “Note Purchase Agreement”), pursuant to which, among other
things, the Bricoleur Funds purchased from the Company 8% senior secured notes
(the “Notes”) in the principal amount of Thirteen Million Dollars ($13,000,000)
and warrants (“Warrants”) to purchase up to Two Million Six Hundred Thousand
(2,600,000) shares of the Company’s common stock, par value $0.001 (“Common
Stock”), for an exercise price of $2.00 per share, upon and subject to the
terms and conditions set forth in the Note Purchase Agreement, the Notes and
the Warrants.


 


WHEREAS, on
June 12, 2007, the Company entered into a Securities Purchase and Product
Participation Agreement with Elixir Group Limited (“Elixir”), a Hong Kong
company, pursuant to which the Company will issue to Elixir the Company’s
equity securities and warrants, subject to Elixir’s placement on the Company’s
behalf of electronic gaming machines with gaming operators located Asia.  Such Securities Purchase and Product
Participation Agreement, as in effect on the date hereof and without further
amendment, is referred to herein as the “Participation Agreement.”


 


WHEREAS, the
transactions contemplated by the Participation Agreement would constitute a “Change
in Control” as defined in the Notes and give the Bricoleur Funds the option to
declare the entire principal amount and all interest under the Notes
immediately due and payable.


 


WHEREAS, the
Company has indicated its willingness to use its best efforts to close prior to
December 31, 2007 one or more financings that would result in gross proceeds to
the Company sufficient for the payment of the Notes in full under the
terms of the Note Purchase Agreement.


 


WHEREAS, subject
to the terms of this Agreement, the Company and the Bricoleur Funds have agreed
to (a) amend the Warrants to add net exercise provisions to the Warrants, (b)
effect a net exercise of those portions of the Warrants representing the right
to purchase 2,275,000 shares of Common Stock at a mutually agreed value of
$3.50 per share of the Company’s Common Stock for purposes of such net
exercise, resulting in the issuance by the Company to the Bricoleur Funds
holding such Warrants of 975,000 shares of Common Stock pursuant to such net
exercise, (c) waive any application of the “Change in Control” provision of the
Notes with respect to the transactions under the Participation Agreement, and
(d) defer until December 31, 2007 the $825,000 in principal amount currently
due to be repaid by the Company to the Bricoleur Funds pursuant to Section 4.11
of the Note Purchase Agreement as a result of equity issuances by the Company
on June 7, 2007.


 

















 


A G R
E E M E N T


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants, obligations and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company and the Bricoleur
Funds hereby agree as follows:


 


1.             Amendment
of Warrants.  The Warrants are hereby
amended to add a new clause “vii” at the end of Section 2(c) of the Warrants as
follows:


 


“vii.         Net Exercise.  Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of Common Stock is greater than
the Exercise Price (at the date of calculation as set forth below), in lieu of
exercising this Warrant for cash, the Holder may elect to receive shares equal
to the value (as determined below) of this Warrant (or the portion thereof
being canceled) by surrender of this Warrant at the principal office of the
Company together with the properly endorsed Notice of Exercise and notice of
such election in which event the Company shall issue to the Holder a number of shares
of Common Stock computed using the following formula:


 


X = Y(A-B)


                A


Where


 


X =          the number of shares of Common Stock to
be issued to the Holder


 


Y =          the number of shares of Common Stock
purchasable under the Warrant or, if only a portion of the Warrant is being
exercised, the portion of the Warrant being canceled (at the date of such
calculation)


 


A =         the fair market value of one share of
the Company’s Common Stock (at the date of such calculation)


 


B =          Exercise Price (as adjusted to the
date of such calculation)


 


For purposes of the above
calculation, fair market value of one share of Common Stock shall be either (a)
the price mutually agreed by the Company and the Holder, or (b) if the Company
and the Holder do not agree on such price, the average of the closing bid and
asked prices of the Common Stock quoted in the Over-The-Counter Market Summary
or the last reported sale price of the Common Stock or the closing price quoted
on the NASDAQ Global Market or on any exchange on which the Common Stock is
listed, whichever is applicable, as published in the Western Edition of the
Wall Street Journal for the ten (10) trading days prior to the date of
determination of fair market value.”


 


2.             Amendment
of Notice of Exercise.  The Company
hereby agrees to amend the Notice of Exercise attached to the Warrants to allow
for exercise by means of the net exercise provisions added to the Warrants by
this Agreement.


 


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3.             Net
Exercise of Portions of the Warrants. 
Bricoleur Offshore Ltd. and Bricoleur Enhanced, L.P. currently hold
Warrants to purchase One Million Four Hundred Thousand (1,400,000) and One
Million Two Hundred Thousand (1,200,000) shares of Common Stock,
respectively.  Of those Warrants,
Bricoleur Offshore Ltd.’s Warrant to purchase One Million Two Hundred
Twenty-Five Thousand (1,225,000) shares of Common Stock and Bricoleur Enhanced,
L.P.’s Warrant to purchase One Million Fifty Thousand (1,050,000) shares of
Common Stock are non-cancelable as per the terms of the Warrants.  Pursuant to this Agreement, the Company,
Bricoleur Offshore Ltd. and Bricoleur Enhanced, L.P. hereby agree to effect the
net exercise of such non-cancelable portions of the Warrants, based on the
$3.50 per share fair market value for the Company’s Common Stock as mutually
agreed by the Company and the Bricoleur Funds, and without further action
required of the Bricoleur Funds. 
Accordingly, the Company hereby agrees to issue Five Hundred Twenty Five
Thousand (525,000) shares of its Common Stock to Bricoleur Offshore Ltd. and
Four Hundred Fifty Thousand (450,000) shares of its Common Stock to Bricoleur
Enhanced, L.P., respectively, as a result of such net exercise of the
non-cancelable portions of the Warrants. 
The Bricoleur Funds shall return the currently outstanding Warrants to
the Company for cancellation of Warrants to purchase 1,225,000 shares of Common
Stock held by Bricoleur Offshore Ltd. and Warrants to purchase 1,050,000 shares
of Common Stock held by Bricoleur Enhanced, L.P., and the Company shall deliver
525,000 shares of its Common Stock to Bricoleur Offshore Ltd. and 450,000
shares of its Common Stock to Bricoleur Enhanced, L.P.  and replacement Warrants incorporating the
amendments described in this Agreement and representing the balance of the
Warrants held by Bricoleur Offshore Ltd. and Bricoleur Enhanced, L.P. (Warrants
for 175,000 shares of Common Stock and 150,000 shares of Common Stock,
respectively).  The shares of Common
Stock delivered by the Company pursuant to this Agreement shall be “Warrant
Shares” as defined in the Warrants and “Registrable Securities” as defined in
the Registration Rights Agreement dated as of May 1, 2006 between the Company
and the Bricoleur Funds.


 


4.             Company’s
Best Efforts to Complete Financing. 
The Company hereby agrees to use its best efforts to close prior to
December 31, 2007 one or more financings that would result in gross proceeds to
the Company of at least twenty million dollars ($20,000,000) and the Company’s
payment of the Notes in full.


 


5.             Waiver
of Change in Control Provision of the Notes.  The Closing (as defined in the Participation
Agreement) of the transactions between the Company and Elixir as contemplated
by the Participation Agreement would constitute a Change in Control (as defined
in the Notes) entitling the Bricoleur Funds to declare the entire principal
amount and all interest under the Notes immediately due and payable.  Subject to the Closing (as defined in the
Participation Agreement) of the Participation Agreement occurring on or before
September 30, 2007 and the Company’s obligation pursuant to Section 4 of this
Agreement, the Bricoleur Funds hereby agree to waive their right to cause the
entire principal amount and all interest under the Notes to become immediately
due and payable as a result of the Closing and the other equity transactions
under the Participation Agreement constituting a Change in Control.  No other rights of acceleration of the Notes
are waived in any manner by the Bricoleur Funds.


 


6.             Deferral
of Certain Amounts Currently Due Under the Notes.  Subject to the Closing (as defined in the
Participation Agreement) of the Participation Agreement occurring on or before
September 30, 2007, the Bricoleur Funds hereby waive until December 31, 2007
any breach of the Note Purchase Agreement, the Notes and the related Security
Agreement resulting


 


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from the Company’s failure to pay the Eight Hundred Twenty Five
Thousand Dollars ($825,000) in principal currently owed by the Company to the
Bricoleur Funds pursuant to Section 4.11 of the Note Purchase Agreement as a
result of equity issuances by the Company on June 7, 2007, and  the Bricoleur Funds hereby agree that the
Company’s payment of such amount may be deferred until not later than December
31, 2007.  No other rights of repayment
of the Notes are waived in any manner by the Bricoleur Funds.


 


                7.             No Further Modifications.  Except as specifically set forth herein,
nothing in this Agreement shall be construed to enlarge, restrict, or otherwise
modify the terms of the Note Purchase Agreement, Notes or Warrants or the
respective duties and obligations of the parties thereto.


 


8.             Authorization;
Enforceability. Each of the Company and the Bricoleur Funds represents to
the other that: (i) it has all corporate right, power and authority to enter
into this Agreement and to consummate the transactions contemplated hereunder;
(ii) the execution and delivery by it of this Agreement and the consummation of
the transactions contemplated hereunder will not result in the violation by it
of any law, statute, rule, regulation, judgment or decree of any court or
governmental authority to or by which it is bound, or of any provision of its
organizational documents; and (iii) no consent, approval, authorization or
other order of any governmental authority or other third party is required to
be obtained by it in connection with the authorization, execution and delivery
of this Agreement.


 


9.             Miscellaneous.


                                9.1           Amendments and Waivers.  This Agreement, together with the amended
Warrants, sets forth the entire agreement and understanding between the parties
as to the subject matter hereof and thereof and supersedes and replaces all
prior and contemporaneous discussions, negotiations, agreements and
understandings (oral or written) with respect to such subject matter.  This Agreement or any provision hereof may be
(i) amended only by mutual written agreement of the Company and the Bricoleur
Funds or (ii) waived only by written agreement of the waiving party.


 


9.2           Successors and Assigns.  This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns and each of
the Bricoleur Funds and their respective successors and assigns.


 


9.3           Notices.  All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to duly given and received when
delivered personally or transmitted by facsimile, one business day after being
deposited for next-day delivery with a nationally recognized overnight
delivery service, or three business days after being deposited as first class
mail with the United States Postal Service, all charges or postage prepaid, and
properly addressed to the party to receive the same at the address set forth
below or at such other address as such party may have designated by advance
written notice to the other parties.


 




	
  To the Company:

  	
  VendingData Corporation

  
	
   

  	
  1120 Town Center Dr, Ste 260

  
	
   

  	
  Las Vegas, Nevada 89144

  
	
   

  	
  Attn: Mark R. Newburg

  
	
   

  	
  Facsimile: (702) 733-7197

  






 


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  To the Bricoleur Funds:

  	
  c/o Bricoleur Capital Management, LLC

  
	
   

  	
  12230 El Camino Real, Suite 100

  
	
   

  	
  San Diego, CA 92130

  
	
   

  	
  Attn: Robert Poole

  
	
   

  	
  Facsimile: 858-523-2010

  






 


9.4           Governing Law.  This Agreement shall be governed by the
internal laws of the State of California, without giving effect to its conflict
of law principles.


 


9.5           Attorneys’ Fees.  If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party, as
specifically determined by the court, shall be entitled to reasonable attorneys’
fees, costs and necessary disbursements in addition to any other relief to
which such party may be entitled.


 


9.6           Counterparts.  This Agreement may be executed in any number
of counterparts, all of which when taken together shall constitute one and the
same instrument binding on all of the parties hereto.  Delivery of an executed counterpart of a
signature page to this Agreement by facsimile shall be as effective as delivery
of a manually executed counterpart of a signature page of this Agreement.


 


9.7           Headings. The headings of the
Sections hereof are inserted as a matter of convenience and for reference only
and in no way define, limit or describe the scope of this Agreement or the
meaning of any provision hereof.


 


9.8           Severability. In the event
that any provision of this Agreement or the application of any provision hereof
is declared to be illegal, invalid or otherwise unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall not be affected
except to the extent necessary to delete such illegal, invalid or unenforceable
provision unless the provision held invalid shall substantially impair the
benefit of the remaining portion of this Agreement.


 


IN WITNESS WHEREOF, the
parties have caused this Waiver and Amendment to Warrants to be duly executed
and delivered as of the date first set forth above.


 


	
   

  	
  “Company”

  	
   

  
	
   

  	
   

  
	
   

  	
  VENDINGDATA CORPORATION,

  
	
   

  	
  a Nevada corporation

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark R. Newburg

  	
   

  
	
   

  	
  Mark R. Newburg

  
	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  “Bricoleur Funds”

  	
   

  
	
   

  	
   

  
	
   

  	
  BRICOLEUR PARTNERS, L.P.

  
	
   

  	
  By: Bricoleur Capital Management, LLC,

  
	
   

  	
  Its General Partner

  
					



 


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  By:

  	
  /s/ Robert Poole

  	
   

  
	
   

  	
  Robert Poole, Member of

  	
   

  
	
   

  	
  Management Board

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRICOLEUR ENHANCED, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Bricoleur Capital Management, LLC,

  
	
   

  	
  Its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Poole

  	
   

  
	
   

  	
  Robert Poole, Member of

  	
   

  
	
   

  	
  Management Board

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRIC 6, L.P.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Bricoleur Capital Management, LLC,

  
	
   

  	
  Its General Partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Poole

  	
   

  
	
   

  	
  Robert Poole, Member of

  	
   

  
	
   

  	
  Management Board

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRICOLEUR OFFSHORE LTD.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Bricoleur Capital Management, LLC,

  
	
   

  	
  Its Investment Adviser

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Poole

  	
   

  
	
   

  	
  Robert Poole, Member of

  	
   

  
	
   

  	
  Management Board

  	
   

  
						



 


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