ex101.htm



EXHIBIT 10.1


 


AMENDED AND RESTATED LOAN AGREEMENT


 


 


This Amended and Restated Loan Agreement (this “Agreement”) dated as of November 23, 2010, is between Bank of America, N.A. (the “Bank”) and Game Trading Technologies, Inc. and Gamers Factory, Incorporated (collectively, the “Borrower”).


 



	
1.  

	
DEFINITIONS







 


In addition to the terms which are defined elsewhere in this Agreement, the following terms have the meanings indicated for the purposes of this Agreement:


 



	
1.1  

	
“Borrowing Base” means the sum of:







 



	
(a)

	
80% of the balance due on Acceptable Receivables; and







 



	
(b)

	
the lesser of One Million Five Hundred Thousand Dollars ($1,500,000) or 20% of the value of Acceptable Inventory.







 


In determining the value of Acceptable Inventory to be included in the Borrowing Base, the Bank will use the lowest of (i) the Borrower’s cost, (ii) the Borrower’s estimated market value, or (iii) the Bank’s independent determination of the resale value of such inventory in such quantities and on such terms as the Bank deems appropriate.


 


After calculating the Borrowing Base as provided above, the Bank may deduct such reserves as the Bank may establish from time to time in its reasonable credit judgment, including, without limitation, reserves for rent at leased locations subject to statutory or contractual landlord’s liens, inventory shrinkage, dilution, customs charges, warehousemen’s or bailees’ charges, liabilities to growers of agricultural products which are entitled to lien rights under the federal Perishable Agricultural Commodities Act or any applicable state law, and the amount of estimated maximum exposure, as determined by the Bank from time to time, under any interest rate contracts which the Borrower enters into with the Bank (including interest rate swaps, caps, floors, options thereon, combinations thereof, or similar contracts).


 



	
1.2  

	
“Acceptable Receivable” means an account receivable which satisfies the following requirements:







 



	
(a)

	
The account has resulted from the sale of goods by the Borrower in the ordinary course of the Borrower’s business and without any further obligation on the part of the Borrower to service, repair, or maintain any such goods sold other than pursuant to any applicable warranty.







 



	
(b)

	
There are no conditions which must be satisfied before the Borrower is entitled to receive payment of the account.  Accounts arising from COD sales, consignments or guaranteed sales are not acceptable.







 



	
(c)

	
The debtor upon the account does not claim any defense to payment of the account, whether well founded or otherwise.







 



	
(d)

	
The account balance does not include the amount of any counterclaims or offsets which have been or may be asserted against the Borrower by the account debtor (including offsets for any “contra accounts” owed by the Borrower to the account debtor for goods purchased by the Borrower or for services performed for the Borrower).  To the extent any counterclaims, offsets, or contra accounts exist in favor of the debtor, such amounts shall be deducted from the account balance.







 



	
(e)

	
The account represents a genuine obligation of the debtor for goods sold to and accepted by the debtor.  To the extent any credit balances exist in favor of the debtor, such credit balances shall be deducted from the account balance.







 




  





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(f)

	
The account balance does not include the amount of any finance or service charges payable by the account debtor.  To the extent any finance charges or service charges are included, such amounts shall be deducted from the account balance.







 



	
(g)

	
The Borrower has sent an invoice to the debtor in the amount of the account.







 



	
(h)

	
The Borrower is not prohibited by the laws of the state where the account debtor is located from bringing an action in the courts of that state to enforce the debtor’s obligation to pay the account.  The Borrower has taken all appropriate actions to ensure access to the courts of the state where the account debtor is located, including, where necessary, the filing of a Notice of Business Activities Report or other similar filing with the applicable state agency or the qualification by the Borrower as a foreign corporation authorized to transact business in such state.







 



	
(i)

	
The account is owned by the Borrower free of any title defects or any liens or interests of others except the security interest in favor of the Bank.








 



	(j) 	The debtor upon the account is not any of the following:





 





	
  

	
(i)

	
An employee, affiliate, parent or subsidiary of the Borrower, or an entity which has common officers or directors with the Borrower.







 



	
  

	
(ii)

	
The U.S. government or any agency or department of the U.S. government unless the Bank agrees in writing to accept the obligation, the Borrower complies with the procedures in the Federal Assignment of Claims Act of 1940 (41 U.S.C. §15) with respect to the obligation, and the underlying contract expressly provides that neither the U.S. government nor any agency or department thereof shall have the right of set-off against the Borrower.








 



	
  

	
(iiI)

	Any state, county, city, town or municipality.





 





	
  

	
(iv)

	
Any person or entity located in a foreign country.







 



	
(k)

	
The account is not in default.  An account will be considered in default if any of the following occur:







 



	
  

	
(i)

	
the account is not paid within 90 days from its invoice date or 60 days from its due date, whichever occurs first;







 



	
  

	
(ii)

	
the debtor obligated upon the account suspends business, makes a general assignment for the benefit of creditors, or fails to pay its debts generally as they come due; or







 



	
  

	
(iii)

	
any petition is filed by or against the debtor obligated upon the account under any bankruptcy law or any other law or laws for the relief of debtors.







 



	
(l)

	
The account is not the obligation of a debtor who is in default (as defined above) on 50% or more of the accounts upon which such debtor is obligated.







 



	
(m)

	
The account does not arise from the sale of goods which remain in the Borrower’s possession or under the Borrower’s control.







 



	
(n)

	
The account is not evidenced by a promissory note or chattel paper, nor is the account debtor obligated to the Borrower under any other obligation which is evidenced by a promissory note.







 


(o)           The account is otherwise acceptable to the Bank.


 


In addition to the foregoing limitations, the dollar amount of accounts included as Acceptable Receivables which are the obligations of a single debtor shall not exceed the concentration limit established for that debtor.  To the extent the total of such accounts exceeds a debtor’s concentration limit, the amount of any such excess shall be excluded.  The concentration limit for each debtor shall be equal to 50% of the total amount of the Borrower’s total accounts receivable at that time.


 




  





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1.3  

	
“Acceptable Inventory” means inventory which satisfies the following requirements:







 



	
(a)

	
The inventory is owned by the Borrower free of any title defects or any liens or interests of others except the security interest in favor of the Bank.  This does not prohibit any statutory liens which may exist in favor of the growers of agricultural products which are purchased by the Borrower.







 



	
(b)

	
The inventory is located at locations which the Borrower has disclosed to the Bank and which are acceptable to the Bank.  If the inventory is covered by a negotiable document of title (such as a warehouse receipt) that document must be delivered to the Bank.  Inventory which is in transit is not acceptable.







 



	
(c)

	
The inventory is held for sale in the ordinary course of the Borrower’s business and is of good and merchantable quality.  Display items, work-in-process, parts, raw materials, samples, and packing and shipping materials are not acceptable.  Inventory which is obsolete, unsalable, damaged, defective, used, discontinued or slow-moving, or which has been returned by the buyer, is not acceptable.







 



	
(d)

	
The inventory is covered by insurance as required in the “Covenants” section of this Agreement.







 



	
(e)

	
The inventory has not been manufactured to the specifications of a particular account debtor.







 



	
(f)

	
The inventory is not subject to any licensing agreements which would prohibit or restrict in any way the ability of the Bank to sell the inventory to third parties.







 



	
(g)

	
The inventory has been produced in compliance with the requirements of the U.S. Fair Labor Standards Act (29 U.S.C. §§201 et seq.).







 



	
(h)

	
The inventory is not placed on consignment.








 



	
(I)

	The inventory is otherwise acceptable to the Bank.





 





	
1.4  

	
“Credit Limit” means the amount of Five Million Dollars ($5,000,000).







 



	
2.  

	
LINE OF CREDIT AMOUNT AND TERMS







 



	
2.1  

	
Line of Credit Amount.







 



	
(a)

	
During the availability period described below, the Bank will provide a line of credit to the Borrower.  The amount of the line of credit (the “Line of Credit Commitment”) is equal to the lesser of (i) the Credit Limit or (ii) the Borrowing Base.







 



	
(b)

	
This is a revolving line of credit.  During the availability period, the Borrower may repay principal amounts and reborrow them.







 



	
(c)

	
The Borrower agrees not to permit the principal balance outstanding to exceed the Line of Credit Commitment.  If the Borrower exceeds this limit, the Borrower will immediately pay the excess to the Bank upon the Bank’s demand.







 




  





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2.2  

	
Availability Period.







 


The Line of Credit is available between the date of this Agreement and May 27, 2011, or such earlier date as the availability may terminate as provided in this Agreement (the “Line of Credit Expiration Date”).


 



	
2.3  

	
Conditions to Availability of Credit.







 


In addition to the items required to be delivered to the Bank under the paragraph entitled “Financial Information” in the “Covenants” section of this Agreement, the Borrower will promptly deliver the following to the Bank at such times as may be requested by the Bank:


 



	
(a)

	
A borrowing certificate, in form and detail satisfactory to the Bank, setting forth the Acceptable Receivables and the Acceptable Inventory on which the requested extension of credit is to be based.







 



	
(b)

	
Copies of the invoices or the record of invoices from the Borrower’s sales journal for such Acceptable Receivables and a listing of the names and addresses of the debtors obligated thereunder.







 



	
(c)

	
Copies of the delivery receipts, purchase orders, shipping instructions, bills of lading and other documentation pertaining to such Acceptable Receivables.







 



	
(d)

	
Copies of the cash receipts journal pertaining to the borrowing certificate.







 




	
2.4

	Repayment Terms.





 





	
(a)

	
The Borrower will pay interest on December 1, 2010, and then on the same day of each month thereafter until payment in full of any principal outstanding under this facility.







 



	
(b)

	
The Borrower will repay in full any principal, interest or other charges outstanding under this facility no later than the Line of Credit Expiration Date.







 



	
2.5  

	
Interest Rate.







 



	
(a)

	
The interest rate is a rate per year equal to the BBA LIBOR Daily Floating Rate plus two and one half percentage points (2.50%).







 



	
(b)

	
The BBA LIBOR Daily Floating Rate is a fluctuating rate of interest which can change on each banking day.  The rate will be adjusted on each banking day to equal the British Bankers Association LIBOR Rate (“BBA LIBOR”) for U.S. Dollar deposits for delivery on the date in question for a one month term beginning on that date.  The Bank will use the BBA LIBOR Rate as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as selected by the Bank from time to time) as determined at approximately 11:00 a.m. London time two (2) London Banking Days prior to the date in question, as adjusted from time to time in the Bank’s sole discretion for reserve requirements, deposit insurance assessment rates and other regulatory costs.  If such rate is not available at such time for any reason, then the rate will be determined by such alternate method as reasonably selected by the Bank.  A “London Banking Day” is a day on which banks in London are open for business and dealing in offshore dollars.







 




  





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3.  

	
FEES AND EXPENSES







 



	
3.1  

	
Fees.







 



	
(a)

	
Loan Fee.  The Borrower agrees to pay a loan fee in the amount of Six Thousand Two Hundred Fifty Dollars ($6,250).  This fee is due on the date of this Agreement.







 



	
(b)

	
Unused Commitment Fee.  The Borrower agrees to pay a fee on any difference between the Line of Credit Commitment and the amount of credit it actually uses, determined by the daily amount of credit outstanding during the specified period.  The fee will be calculated at 0.50% per year.  is fee is due on December 31, 2010 and on the last day of each following quarter until the expiration of the availability period.







 



	
(c)

	
Waiver Fee.  If the Bank, at its discretion, agrees to waive or amend any terms of this Agreement, the Borrower will, at the Bank’s option, pay the Bank a fee for each waiver or amendment in an amount advised by the Bank at the time the Borrower requests the waiver or amendment.  Nothing in this paragraph shall imply that the Bank is obligated to agree to any waiver or amendment requested by the Borrower.  The Bank may impose additional requirements as a condition to any waiver or amendment.







 



	
(d)

	
Late Fee.  To the extent permitted by law, the Borrower agrees to pay a late fee in an amount not to exceed four percent (4%) of any payment that is more than fifteen (15) days late.  The imposition and payment of a late fee shall not constitute a waiver of the Bank’s rights with respect to the default.







 



	
3.2  

	
Expenses.







 


The Borrower agrees to immediately repay the Bank for expenses that include, but are not limited to, filing, recording and search fees, appraisal fees, title report fees, and documentation fees.


 



	
3.3  

	
Reimbursement Costs.







 



	
(a)

	
The Borrower agrees to reimburse the Bank for any expenses it incurs in the preparation of this Agreement and any agreement or instrument required by this Agreement.  Expenses include, but are not limited to, reasonable attorneys’ fees, including any allocated costs of the Bank’s in-house counsel to the extent permitted by applicable law.







 



	
(b)

	
The Borrower agrees to reimburse the Bank for the cost of periodic field examinations of the Borrower’s books, records and collateral, and appraisals of the collateral, at such intervals as the Bank may reasonably require.  The actions described in this paragraph may be performed by employees of the Bank or by independent appraisers.







 



	
4.  

	
COLLATERAL







 



	
4.1  

	
Personal Property.







 


The personal property listed below now owned or owned in the future by the parties listed below will secure the Borrower’s obligations to the Bank under this Agreement.  The collateral is further defined in security agreement(s) executed by the owners of the collateral. In addition, all personal property collateral owned by the Borrower securing this Agreement shall also secure all other present and future obligations of the Borrower to the Bank (excluding any consumer credit covered by the federal Truth in Lending law, unless the Borrower has otherwise agreed in writing or received written notice thereof).  All personal property collateral securing any other present or future obligations of the Borrower to the Bank shall also secure this Agreement.


 



	
5.  

	
DISBURSEMENTS, PAYMENTS AND COSTS







 



	
5.1  

	
Disbursements and Payments.







 



	
(a)

	
Each payment by the Borrower will be made in U.S. Dollars and immediately available funds by debit to a deposit account, as described in this Agreement or otherwise authorized by the Borrower.  For payments not made by direct debit, payments will be made by mail to the address shown on the Borrower’s statement or at one of the Bank’s banking centers in the United States, or by such other method as may be permitted by the Bank.







 




  





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(b)

	
The Bank may honor instructions for advances or repayments given by the Borrower (if an individual), or by any one of the individuals authorized to sign loan agreements on behalf of the Borrower, or any other individual designated by any one of such authorized signers (each an “Authorized Individual”).







 



	
(c)

	
For any payment under this Agreement made by debit to a deposit account, the Borrower will maintain sufficient immediately available funds in the deposit account to cover each debit.  If there are insufficient immediately available funds in the deposit account on the date the Bank enters any such debit authorized by this Agreement, the Bank may reverse the debit.







 




	
(d)

	
Each disbursement by the Bank and each payment by the Borrower will be evidenced by records kept by the Bank.  In addition, the Bank may, at its discretion, require the Borrower to sign one or more promissory notes.







 





	
(e)

	
Prior to the date each payment of principal and interest and any fees from the Borrower becomes due (the “Due Date”), the Bank will mail to the Borrower a statement of the amounts that will be due on that Due Date (the “Billed Amount”).  The calculations in the bill will be made on the assumption that no new extensions of credit or payments will be made between the date of the billing statement and the Due Date, and that there will be no changes in the applicable interest rate.  If the Billed Amount differs from the actual amount due on the Due Date (the “Accrued Amount”), the discrepancy will be treated as follows:







 



	
  

	
(i)

	
If the Billed Amount is less than the Accrued Amount, the Billed Amount for the following Due Date will be increased by the amount of the discrepancy.  The Borrower will not be in default by reason of any such discrepancy.







 



	
  

	
(ii)

	
If the Billed Amount is more than the Accrued Amount, the Billed Amount for the following Due Date will be decreased by the amount of the discrepancy.







 



	
  

	
Regardless of any such discrepancy, interest will continue to accrue based on the actual amount of principal outstanding without compounding.  The Bank will not pay the Borrower interest on any overpayment.







 



	
5.2  

	
Requests for Credit; Equal Access by all Borrowers.







 


Any Borrower (or a person or persons authorized by any one of the Borrowers), acting alone, can borrow up to the full amount of credit provided under this Agreement.  Each Borrower will be liable for all extensions of credit made under this Agreement to any other Borrower.


 



	
5.3  

	
Telephone and Telefax Authorization.







 



	
(a)

	
The Bank may honor telephone or telefax instructions for advances or repayments given, or purported to be given, by any one of the Authorized Individuals.







 



	
(b)

	
Advances will be deposited in and repayments will be withdrawn from account number _______ owned by the Borrower, or such other of the Borrower’s accounts with the Bank as designated in writing by the Borrower.







 



	
(c)

	
The Borrower will indemnify and hold the Bank harmless from all liability, loss, and costs in connection with any act resulting from telephone or telefax instructions the Bank reasonably believes are made by any Authorized Individual.  This paragraph will survive this Agreement’s termination, and will benefit the Bank and its officers, employees, and agents.







 



	
5.4  

	
Direct Debit.







 



	
(a)

	
The Borrower agrees that on the Due Date the Bank will debit the Billed Amount from deposit account number _____ owned by the Borrower, or such other of the Borrower’s accounts with the Bank as designated in writing by the Borrower (the “Designated Account”).







 



	
(b)

	
The Borrower may terminate this direct debit arrangement at any time by sending written notice to the Bank at the address specified at the end of this Agreement.







 



	
5.5  

	
Banking Days.







 


Unless otherwise provided in this Agreement, a banking day is a day other than a Saturday, Sunday or other day on which commercial banks are authorized to close, or are in fact closed, in the state where the Bank’s lending office is located, and, if such day relates to amounts bearing interest at an offshore rate (if any), means any such day on which dealings in dollar deposits are conducted among banks in the offshore dollar interbank market.  All payments and disbursements which would be due on a day which is not a banking day will be due on the next banking day.  All payments received on a day which is not a banking day will be applied to the credit on the next banking day.


 




  





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5.6  

	
Interest Calculation.







 


Except as otherwise stated in this Agreement, all interest and fees, if any, will be computed on the basis of a 360-day year and the actual number of days elapsed.  This results in more interest or a higher fee than if a 365-day year is used.  Installments of principal which are not paid when due under this Agreement shall continue to bear interest until paid.


 



	
5.7  

	
Default Rate.







 


Upon the occurrence of any default or after maturity or after judgment has been rendered on any obligation under this Agreement, all amounts outstanding under this Agreement, including any interest, fees, or costs which are not paid when due, will at the option of the Bank bear interest at a rate which is 6.0 percentage point(s) higher than the rate of interest otherwise provided under this Agreement.  This may result in compounding of interest.  This will not constitute a waiver of any default.


 



	
5.8  

	
Overdrafts.







 


At the Bank’s sole option in each instance, the Bank may do one of the following:


 



	
(a)

	
The Bank may make advances under this Agreement to prevent or cover an overdraft on any account of the Borrower with the Bank.  Each such advance will accrue interest from the date of the advance or the date on which the account is overdrawn, whichever occurs first, at the interest rate described in this Agreement.  The Bank may make such advances even if the advances may cause any credit limit under this Agreement to be exceeded.







 



	
(b)

	
The Bank may reduce the amount of credit otherwise available under this Agreement by the amount of any overdraft on any account of the Borrower with the Bank.







 


This paragraph shall not be deemed to authorize the Borrower to create overdrafts on any of the Borrower’s accounts with the Bank.


 



	
5.9  

	
Payments in Kind.







 


If the Bank requires delivery in kind of the proceeds of collection of the Borrower’s accounts receivable, such proceeds shall be credited to interest, principal, and other sums owed to the Bank under this Agreement in the order and proportion determined by the Bank in its sole discretion.  All such credits will be conditioned upon collection and any returned items may, at the Bank’s option, be charged to the Borrower.


 



	
6.  

	
CONDITIONS







 


Before the Bank is required to extend any credit to the Borrower under this Agreement, it must receive any documents and other items it may reasonably require, in form and content acceptable to the Bank, including any items specifically listed below.


 



	
6.1  

	
Authorizations.







 


If the Borrower or any guarantor is anything other than a natural person, evidence that the execution, delivery and performance by the Borrower and/or such guarantor of this Agreement and any instrument or agreement required under this Agreement have been duly authorized.


 



	
6.2  

	
Governing Documents.







 


If required by the Bank, a copy of the Borrower’s organizational documents.


 



	
6.3  

	
Security Agreements.







 



	
  

	
Signed original security agreements covering the personal property collateral which the Bank requires.







 



	
6.4  

	
Perfection and Evidence of Priority.







 


Evidence that the security interests and liens in favor of the Bank are valid, enforceable, properly perfected in a manner acceptable to the Bank and prior to all others’ rights and interests, except those the Bank consents to in writing.  All title documents for motor vehicles which are part of the collateral must show the Bank’s interest.


 




  





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6.5  

	
Payment of Fees.







 


Payment of all fees and other amounts due and owing to the Bank, including without limitation payment of all accrued and unpaid expenses incurred by the Bank as required by the paragraph entitled “Reimbursement Costs.”


 



	
6.6  

	
Good Standing.







 


Certificates of good standing for the Borrower from its state of formation and from any other state in which the Borrower is required to qualify to conduct its business.


 



	
6.7  

	
Landlord Agreement.







 


For any personal property collateral located on real property which is subject to a mortgage or deed of trust or which is not owned by the Borrower (or the grantor of the security interest), an agreement from the owner of the real property and the holder of any such mortgage or deed of trust.


 



	
6.8  

	
Insurance.







 


Evidence of insurance coverage, as required in the “Covenants” section of this Agreement.


 



	
6.9  

	
Appraisals.







 


Appraisals prepared by appraisers acceptable to the Bank with respect to the liquidation value of the Borrower’s inventory.


 



	
7.  

	
REPRESENTATIONS AND WARRANTIES







 


When the Borrower signs this Agreement, and until the Bank is repaid in full, the Borrower makes the following representations and warranties.  Each request for an extension of credit constitutes a renewal of these representations and warranties as of the date of the request:


 



	
7.1  

	
Formation.







 


If the Borrower is anything other than a natural person, it is duly formed and existing under the laws of the state or other jurisdiction where organized.


 



	
7.2  

	
Authorization.







 


This Agreement, and any instrument or agreement required hereunder, are within the Borrower’s powers, have been duly authorized, and do not conflict with any of its organizational papers.


 



	
7.3  

	
Enforceable Agreement.







 


This Agreement is a legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, and any instrument or agreement required hereunder, when executed and delivered, will be similarly legal, valid, binding and enforceable.


 



	
7.4  

	
Good Standing.







 


In each state in which the Borrower does business, it is properly licensed, in good standing, and, where required, in compliance with fictitious name statutes.


 




  





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7.5  

	
No Conflicts.







 


This Agreement does not conflict with any law, agreement, or obligation by which the Borrower is bound.


 



	
7.6  

	
Financial Information.







 


All financial and other information that has been or will be supplied to the Bank is sufficiently complete to give the Bank accurate knowledge of the Borrower’s (and any guarantor’s) financial condition, including all material contingent liabilities.  Since the date of the most recent financial statement provided to the Bank, there has been no material adverse change in the business condition (financial or otherwise), operations, properties or prospects of the Borrower (or any guarantor).  If the Borrower is comprised of the trustees of a trust, the foregoing representations shall also pertain to the trustor(s) of the trust.


 



	
7.7  

	
Lawsuits.







 


There is no lawsuit, tax claim or other dispute pending or threatened against the Borrower which, if lost, would impair the Borrower’s financial condition or ability to repay the loan, except as have been disclosed in writing to the Bank.


 



	
7.8  

	
Collateral.







 


All collateral required in this Agreement is owned by the grantor of the security interest free of any title defects or any liens or interests of others, except those which have been approved by the Bank in writing.


 



	
7.9  

	
Permits, Franchises.







 


The Borrower possesses all permits, memberships, franchises, contracts and licenses required and all trademark rights, trade name rights, patent rights, copyrights, and fictitious name rights necessary to enable it to conduct the business in which it is now engaged.


 



	
7.10  

	
Other Obligations.







 


The Borrower is not in default on any obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to the Bank.


 



	
7.11  

	
Tax Matters.







 


The Borrower has no knowledge of any pending assessments or adjustments of its income tax for any year and all taxes due have been paid, except as have been disclosed in writing to the Bank.


 



	
7.12  

	
No Event of Default.







 


There is no event which is, or with notice or lapse of time or both would be, a default under this Agreement.


 



	
7.13  

	
Insurance.







 


The Borrower has obtained, and maintained in effect, the insurance coverage required in the “Covenants” section of this Agreement.


 



	
7.14  

	
Merchantable Inventory; Compliance with FLSA.







 


All inventory which is included in the Borrowing Base is of good and merchantable quality and free from defects, and has been produced in compliance with the requirements of the U.S. Fair Labor Standards Act (29 U.S.C. §§201 et seq.).


 



	
8.  

	
COVENANTS







 


The Borrower agrees, so long as credit is available under this Agreement and until the Bank is repaid in full:


 




  





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8.1  

	
Use of Proceeds.







 


(a)           To use the proceeds of the Line of Credit only for general working capital needs of either Borrower.


 



	
(b)

	
The proceeds of the credit extended under this Loan Agreement may not be used directly or indirectly to purchase or carry any “margin stock” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System, or extend credit to or invest in other parties for the purpose of purchasing or carrying any such “margin stock,” or to reduce or retire any indebtedness incurred for such purpose.







 



	
8.2  

	
Financial Information.







 


To provide the following financial information and statements in form and content acceptable to the Bank, and such additional information as requested by the Bank from time to time.  The Bank reserves the right, upon written notice to the Borrower, to require the Borrower to deliver financial information and statements to the Bank more frequently than otherwise provided below, and to use such additional information and statements to measure any applicable financial covenants in this Agreement.


 



	
(a)

	
Within 120 days of the fiscal year end, the annual financial statements of the Borrowers, certified and dated by an authorized financial officer. These financial statements must be audited (with an opinion satisfactory to the Bank) by a Certified Public Accountant acceptable to the Bank. The statements shall be prepared on a consolidated and consolidating basis.







 



	
(b)

	
Within 45 days of the period’s end (including the last period in each fiscal year), quarterly financial statements of the Borrowers, certified and dated by an authorized financial officer.  These financial statements may be company-prepared. The statements shall be prepared on a consolidated and consolidating basis.







 



	
(c)

	
Promptly, upon sending or receipt, copies of any management letters and correspondence relating to management letters, sent or received by the Borrower to or from the Borrower’s auditor.  If no management letter is prepared, the Bank may, in its discretion, request a letter from such auditor stating that no deficiencies were noted that would otherwise be addressed in a management letter.







 



	
(d)

	
Financial projections covering a time period acceptable to the Bank and specifying the assumptions used in creating the projections.  The projections shall be provided to the Bank no less often than 120 days after the end of each fiscal year.







 



	
(e)

	
A borrowing certificate setting forth the amount of Acceptable Receivables and Acceptable Inventory as of the last day of each month within thirty (30) days after month end and, upon the Bank’s request, copies of the invoices or the record of invoices from the Borrower’s sales journal for such Acceptable Receivables, copies of the delivery receipts, purchase orders, shipping instructions, bills of lading and other documentation pertaining to such Acceptable Receivables, and copies of the cash receipts journal pertaining to the borrowing certificate.







 



	
(f)

	
Within 120 days of the end of each fiscal year and within 45 days of the end of each quarter, a compliance certificate of the Borrower, signed by an authorized financial officer and setting forth (i) the information and computations (in sufficient detail) to establish compliance with all financial covenants at the end of the period covered by the financial statements then being furnished and (ii) whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any default under this Agreement applicable to the party submitting the information and, if any such default exists, specifying the nature thereof and the action the party is taking and proposes to take with respect thereto.







 



	
(g)

	
A detailed aging of the Borrower’s receivables by invoice or a summary aging by account debtor, as specified by the Bank, within thirty (30) days after the end of each month.







 



	
(h)

	
If the Bank requires the Borrower to deliver the proceeds of accounts receivable to the Bank upon collection by the Borrower, a schedule of the amounts so collected and delivered to the Bank.







 



	
(i)

	
Copies of all letters of credit issued in support of the Borrower’s accounts receivable.







 



	
(j)

	
Promptly upon the Bank’s request, such other books, records, statements, lists of property and accounts, budgets, forecasts or reports as to the Borrower and as to each guarantor of the Borrower’s obligations to the Bank as the Bank may request.







 



	
8.3  

	
Funded Debt to EBITDA Ratio.







 


To maintain on a consolidated basis a ratio of Funded Debt to EBITDA not exceeding 3.0:1.0.


 


 “Funded Debt” means all outstanding liabilities for borrowed money and other interest-bearing liabilities, including current and long term debt, and including the stated amount of any letter of credit issued for the account of the Borrower or any reimbursement obligation owing by the Borrower with respect to any letter of credit.


 




  





10











  






 


“EBITDA” means net income, less income or plus loss from discontinued operations and extraordinary items, plus income taxes, plus interest expense, plus depreciation, depletion, and amortization, and plus any non-cash stock compensation provided to employees and non-employees to the extent the same was deducted in the determination of net income.


 


This ratio will be calculated at the end of each reporting period for which the Bank requires financial statements, using the results of the twelve-month period ending with that reporting period.


 



	
8.4  

	
Basic Fixed Charge Coverage Ratio.







 


To maintain on a consolidated basis a Basic Fixed Charge Coverage Ratio of at least 1.5:1.0.


 


“Basic Fixed Charge Coverage Ratio” means the ratio of (a) the sum of EBITDA plus lease expense and rent expense, minus income tax, minus dividends, withdrawals, and other distributions, to (b) the sum of interest expense, lease expense, rent expense, the current portion of long term debt and the current portion of capitalized lease obligations.


 


“EBITDA” means net income, less income or plus loss from discontinued operations and extraordinary items, plus income taxes, plus interest expense, plus depreciation, depletion, and amortization, and plus any non-cash stock compensation provided to employees and non-employees to the extent the same was deducted in the determination of net income.


 


This ratio will be calculated at the end of each reporting period for which the Bank requires financial statements, using the results of the twelve-month period ending with that reporting period.  The current portion of long-term liabilities will be measured as of the last day of the calculation period.


 



	
8.5  

	
Bank as Principal Depository.







 


To maintain the Bank or one of its affiliates as its principal depository bank, including for the maintenance of business, cash management, operating and administrative deposit accounts.


 



	
8.6  

	
Other Debts.







 


Not to have outstanding or incur any direct or contingent liabilities or lease obligations (other than those to the Bank), or become liable for the liabilities of others, without the Bank’s written consent.  This does not prohibit:


 



	
(a)

	
Acquiring goods, supplies, or merchandise on normal trade credit.







 



	
(b)

	
Endorsing negotiable instruments received in the usual course of business.







 



	
(c)

	
Obtaining surety bonds in the usual course of business.







 



	
(d)

	
Liabilities, lines of credit and leases in existence on the date of this Agreement disclosed in writing to the Bank.







 



	
8.7  

	
Other Liens.







 


Not to create, assume, or allow any security interest or lien (including judicial liens) on property the Borrower now or later owns, except:


 



	
(a)

	
Liens and security interests in favor of the Bank.







 



	
(b)

	
Liens for taxes not yet due.







 



	
(c)

	
Liens outstanding on the date of this Agreement disclosed in writing to the Bank.







 



	
(d)

	
Additional purchase money security interests in assets acquired after the date of this Agreement.







 




  





11











  






 



	
8.8  

	
Maintenance of Assets.







 



	
(a)

	
Not to sell, assign, lease, transfer or otherwise dispose of any part of the Borrower’s business or the Borrower’s assets except in the ordinary course of the Borrower’s business.







 



	
(b)

	
Not to sell, assign, lease, transfer or otherwise dispose of any assets for less than fair market value, or enter into any agreement to do so.







 



	
(c)

	
Not to enter into any sale and leaseback agreement covering any of its fixed assets.







 



	
(d)

	
To maintain and preserve all rights, privileges, and franchises the Borrower now has.







 



	
(e)

	
To make any repairs, renewals, or replacements to keep the Borrower’s properties in good working condition.







 



	
8.9  

	
Investments.







 


Not to have any existing, or make any new, investments in any individual or entity, or make any capital contributions or other transfers of assets to any individual or entity, except for:


 



	
(a)

	
Existing investments disclosed to the Bank in writing.







 



	
(b)

	
Investments in the Borrower’s current subsidiaries.







 



	
(c)

	
Investments in any of the following:







 



	
  

	
(i)

	
certificates of deposit;







 



	
  

	
(ii)

	
U.S. treasury bills and other obligations of the federal government;







 



	
  

	
(iii)

	
readily marketable securities (including commercial paper, but excluding restricted stock and stock subject to the provisions of Rule 144 of the Securities and Exchange Commission).







 



	
8.10  

	
Loans.







 


Not to make any loans, advances or other extensions of credit to any individual or entity, except for:


 



	
(a)

	
Existing extensions of credit disclosed to the Bank in writing.







 



	
(b)

	
Extensions of credit to the Borrower’s current subsidiaries.







 



	
(c)

	
Extensions of credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or services in the ordinary course of business to non-affiliated entities.







 



	
8.11  

	
Change of Management.







 


To retain Todd Hays and Rodney Hillman in their current management positions with the Borrower.


 



	
8.12  

	
Change of Ownership.







 


Not to cause, permit, or suffer any change in capital ownership such that Todd Hays, Rod Hillman, John Hays, Jr., and Tom Hays cease to own and control, directly and indirectly, at least fifty-one percent (51%) of the capital ownership of the Borrower net of any warrants.


 



	
8.13  

	
Additional Negative Covenants.







 


Not to, without the Bank’s written consent:


 




  





12











  






 



	
(a)

	
Enter into any consolidation, merger, or other combination, or become a partner in a partnership, a member of a joint venture, or a member of a limited liability company.







 



	
(b)

	
Acquire or purchase a business or its assets.







 



	
(c)

	
Engage in any business activities substantially different from the Borrower’s present business.







 



	
(d)

	
Liquidate or dissolve the Borrower’s business.







 



	
(e)

	
Voluntarily suspend its business for more than thirty (30) days in any ninety (90) day period.







 



	
8.14  

	
Notices to Bank.







 


To promptly notify the Bank in writing of:


 



	
(a)

	
Any lawsuit over Two Hundred Fifty Thousand Dollars ($250,000) against the Borrower or any Obligor.







 



	
(b)

	
Any substantial dispute between any governmental authority and the Borrower or any Obligor.







 



	
(c)

	
Any event of default under this Agreement, or any event which, with notice or lapse of time or both, would constitute an event of default.







 



	
(d)

	
Any material adverse change in the Borrower’s or any Obligor’s business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit.







 



	
(e)

	
Any change in the Borrower’s or any Obligor’s name, legal structure, principal residence (for an individual), state of registration (for a registered entity), place of business, or chief executive office if the Borrower or any Obligor has more than one place of business.







 



	
(f)

	
Any actual contingent liabilities of the Borrower or any Obligor, and any such contingent liabilities which are reasonably foreseeable, where such liabilities are in excess of Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate.







 


For purposes of this Agreement, “Obligor” shall mean any guarantor, any party pledging collateral to the Bank, or, if the Borrower is comprised of the trustees of a trust, any trustor.


 



	
8.15  

	
Insurance.







 



	
(a)

	
General Business Insurance.  To maintain insurance satisfactory to the Bank as to amount, nature and carrier covering property damage (including loss of use and occupancy) to any of the Borrower’s properties, business interruption insurance, public liability insurance including coverage for contractual liability, product liability and workers’ compensation, and any other insurance which is usual for the Borrower’s business.  Each policy shall provide for at least thirty (30) days prior notice to the Bank of any cancellation thereof.







 



	
(b)

	
Insurance Covering Collateral.  To maintain all risk property damage insurance policies (including without limitation windstorm coverage, and hurricane coverage as applicable) covering the tangible property comprising the collateral.  Each insurance policy must be in an amount acceptable to the Bank.  The insurance must be issued by an insurance company acceptable to the Bank and must include a lender’s loss payable endorsement in favor of the Bank in a form acceptable to the Bank.







 



	
(c)

	
Evidence of Insurance.  Upon the request of the Bank, to deliver to the Bank a copy of each insurance policy, or, if permitted by the Bank, a certificate of insurance listing all insurance in force.







 




  





13











  






 



	
8.16  

	
Compliance with Laws.







 


To comply with the laws (including any fictitious or trade name statute), regulations, and orders of any government body with authority over the Borrower’s business.  The Bank shall have no obligation to make any advance to the Borrower except in compliance with all applicable laws and regulations and the Borrower shall fully cooperate with the Bank in complying with all such applicable laws and regulations.


 



	
8.17  

	
ERISA Plans. 







 


Promptly during each year, to pay and cause any subsidiaries to pay contributions adequate to meet at least the minimum funding standards under ERISA with respect to each and every Plan; file each annual report required to be filed pursuant to ERISA in connection with each Plan for each year; and notify the Bank within ten (10) days of the occurrence of any Reportable Event that might constitute grounds for termination of any capital Plan by the Pension Benefit Guaranty Corporation or for the appointment by the appropriate United States District Court of a trustee to administer any Plan.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.  Capitalized terms in this paragraph shall have the meanings defined within ERISA.


 



	
8.18  

	
Books and Records.







 


To maintain adequate books and records.


 



	
8.19  

	
Audits.







 


To allow the Bank and its agents to inspect the Borrower’s properties and examine, audit, and make copies of books and records at any reasonable time.   Borrower acknowledges that, at the time this Agreement is executed, the Bank intends to conduct an audit at least annually.  If any of the Borrower’s properties, books or records are in the possession of a third party, the Borrower authorizes that third party to permit the Bank or its agents to have access to perform inspections or audits and to respond to the Bank’s requests for information concerning such properties, books and records.


 



	
8.20  

	
Perfection of Liens.







 


To help the Bank perfect and protect its security interests and liens, and reimburse it for related costs it incurs to protect its security interests and liens.


 



	
8.21  

	
Cooperation.







 


To take any action reasonably requested by the Bank to carry out the intent of this Agreement.


 



	
9.  

	
DEFAULT AND REMEDIES







 


If any of the following events of default occurs, the Bank may do one or more of the following: declare the Borrower in default, stop making any additional credit available to the Borrower, and require the Borrower to repay its entire debt immediately and without prior notice.  If an event which, with notice or the passage of time, will constitute an event of default has occurred and is continuing, the Bank has no obligation to make advances or extend additional credit under this Agreement.  In addition, if any event of default occurs, the Bank shall have all rights, powers and remedies available under any instruments and agreements required by or executed in connection with this Agreement, as well as all rights and remedies available at law or in equity.  If an event of default occurs under the paragraph entitled “Bankruptcy,” below, with respect to the Borrower, then the entire debt outstanding under this Agreement will automatically be due immediately.


 



	
9.1  

	
Failure to Pay.







 


The Borrower fails to make a payment under this Agreement when due.


 



	
9.2  

	
Other Bank Agreements.







 


Any default occurs under any other agreement the Borrower (or any Obligor) or any of the Borrower’s related entities or affiliates has with the Bank or any affiliate of the Bank.


 



	
9.3  

	
Cross-default.







 


Any default occurs under any agreement in connection with any credit the Borrower (or any Obligor) or any of the Borrower’s related entities or affiliates has obtained from anyone else or which the Borrower (or any Obligor) or any of the Borrower’s related entities or affiliates has guaranteed.


 



	
9.4  

	
Termination of Gamestop and SOCOM Agreements.







 


A termination of either or both of (i) that certain letter agreement between SOCOM LLC and Game Trading Technologies, Inc. dated September 27, 2010, and (ii) that certain agreement between Gamestop, Inc. and Game Trading Technologies, Inc. dated October 8, 2010; provided, however, that the Borrower shall have up to thirty (30) days to renegotiate or renew such terminated agreement(s) with terms satisfactory to the Bank.


 




  





14











  






 



	
9.5  

	
False Information.







 


The Borrower or any Obligor has given the Bank materially false or misleading information or representations.


 



	
9.6  

	
Bankruptcy.







 


The Borrower, any Obligor, or any general partner of the Borrower or of any Obligor files a bankruptcy petition, a bankruptcy petition is filed against any of the foregoing parties, or the Borrower, any Obligor, or any general partner of the Borrower or of any Obligor makes a general assignment for the benefit of creditors.


 



	
9.7  

	
Receivers.







 


A receiver or similar official is appointed for a substantial portion of the Borrower’s or any Obligor’s business, or the business is terminated, or, if any Obligor is anything other than a natural person, such Obligor is liquidated or dissolved.


 



	
9.8  

	
Lien Priority.







 


The Bank fails to have an enforceable first lien (except for any prior liens to which the Bank has consented in writing) on or security interest in any property given as security for this Agreement (or any guaranty).


 



	
9.9  

	
Lawsuits.







 


Any lawsuit or lawsuits are filed on behalf of one or more trade creditors against the Borrower or any Obligor in an aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000) or more in excess of any insurance coverage.


 



	
9.10  

	
Judgments.







 


Any judgments or arbitration awards are entered against the Borrower or any Obligor, or the Borrower or any Obligor enters into any settlement agreements with respect to any litigation or arbitration, in an aggregate amount of Two Hundred Fifty Thousand Dollars ($250,000) or more in excess of any insurance coverage.


 



	
9.11  

	
Material Adverse Change.







 


A material adverse change occurs, or is reasonably likely to occur, in the Borrower’s (or any Obligor’s) business condition (financial or otherwise), operations, properties or prospects, or ability to repay the credit; or the Bank determines that it is insecure for any other reason.


 



	
9.12  

	
Government Action.







 


Any government authority takes action that the Bank believes materially adversely affects the Borrower’s or any Obligor’s financial condition or ability to repay.


 




  





15











  






 



	
9.13  

	
Default under Related Documents.







 


Any default occurs under any guaranty, subordination agreement, security agreement, deed of trust, mortgage, or other document required by or delivered in connection with this Agreement or any such document is no longer in effect, or any guarantor purports to revoke or disavow the guaranty.


 



	
9.14  

	
Other Breach Under Agreement.







 


A default occurs under any other term or condition of this Agreement not specifically referred to in this Article.  This includes any failure or anticipated failure by the Borrower (or any other party named in the Covenants section) to comply with any financial covenants set forth in this Agreement, whether such failure is evidenced by financial statements delivered to the Bank or is otherwise known to the Borrower or the Bank.


 



	
10.  

	
ENFORCING THIS AGREEMENT; MISCELLANEOUS







 



	
10.1  

	
GAAP.







 


Except as otherwise stated in this Agreement, all financial information provided to the Bank and all financial covenants will be made under generally accepted accounting principles, consistently applied.


 



	
10.2  

	
Governing Law.







 


This Agreement is governed by federal law.  To the extent that state law applies and is not preempted by federal law, then the laws of the State of Maryland apply.  To the extent that the Bank has greater rights or remedies under federal law, whether as a national bank or otherwise, this paragraph shall not be deemed to deprive the Bank of such rights and remedies as may be available under federal law.


 



	
10.3  

	
Successors and Assigns.







 


This Agreement is binding on the Borrower’s and the Bank’s successors and assignees.  The Borrower agrees that it may not assign this Agreement without the Bank’s prior consent.  The Bank may sell participations in or assign this loan, and may exchange information about the Borrower (including, without limitation, any information regarding any hazardous substances) with actual or potential participants or assignees.  If a participation is sold or the loan is assigned, the purchaser will have the right of set-off against the Borrower.


 



	
10.4  

	
Severability; Waivers.







 


If any part of this Agreement is not enforceable, the rest of the Agreement may be enforced.  The Bank retains all rights, even if it makes a loan after default.  If the Bank waives a default, it may enforce a later default.  Any consent or waiver under this Agreement must be in writing.


 



	
10.5  

	
Attorneys’ Fees.







 


The Borrower shall reimburse the Bank for any reasonable costs and attorneys’ fees incurred by the Bank in connection with the enforcement or preservation of any rights or remedies under this Agreement and any other documents executed in connection with this Agreement, and in connection with any amendment, waiver, “workout” or restructuring under this Agreement.  In the event of a lawsuit or arbitration proceeding, the prevailing party is entitled to recover costs and reasonable attorneys’ fees incurred in connection with the lawsuit or arbitration proceeding, as determined by the court or arbitrator.  In the event that any case is commenced by or against the Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar or successor statute, the Bank is entitled to recover costs and reasonable attorneys’ fees incurred by the Bank related to the preservation, protection, or enforcement of any rights of the Bank in such a case.  To the extent permitted by law, as used in this paragraph, “attorneys’ fees” includes the allocated costs of the Bank’s in-house counsel.


 



	
10.6  

	
Joint and Several Liability.







 



	
(a)

	
Each Borrower agrees that it is jointly and severally liable to the Bank for the payment of all obligations arising under this Agreement, and that such liability is independent of the obligations of the other Borrower(s).  Each obligation, promise, covenant, representation and warranty in this Agreement shall be deemed to have been made by, and be binding upon, each Borrower, unless this Agreement expressly provides otherwise.  The Bank may bring an action against any Borrower, whether an action is brought against the other Borrower(s).







 



	
(b)

	
Each Borrower agrees that any release which may be given by the Bank to the other Borrower(s) or any guarantor will not release such Borrower from its obligations under this Agreement.







 



	
(c)

	
Each Borrower waives any right to assert against the Bank any defense, setoff, counterclaim, or claims which such Borrower may have against the other Borrower(s) or any other party liable to the Bank for the obligations of the Borrowers under this Agreement.







 



	
(d)

	
Each Borrower waives any defense by reason of any other Borrower’s or any other person’s defense, disability, or release from liability.  The Bank can exercise its rights against each Borrower even if any other Borrower or any other person no longer is liable because of a statute of limitations or for other reasons.







 



	
(e)

	
Each Borrower agrees that it is solely responsible for keeping itself informed as to the financial condition of the other Borrower(s) and of all circumstances which bear upon the risk of nonpayment.  Each Borrower waives any right it may have to require the Bank to disclose to such Borrower any information which the Bank may now or hereafter acquire concerning the financial condition of the other Borrower(s).







 



	
(f)

	
Each Borrower waives all rights to notices of default or nonperformance by any other Borrower under this Agreement.  Each Borrower further waives all rights to notices of the existence or the creation of new indebtedness by any other Borrower and all rights to any other notices to any party liable on any of the credit extended under this Agreement.







 




  





16











  






 



	
(g)

	
The Borrowers represent and warrant to the Bank that each will derive benefit, directly and indirectly, from the collective administration and availability of credit under this Agreement.  The Borrowers agree that the Bank will not be required to inquire as to the disposition by any Borrower of funds disbursed in accordance with the terms of this Agreement.







 



	
(h)

	
Until all obligations of the Borrowers to the Bank under this Agreement have been paid in full and any commitments of the Bank or facilities provided by the Bank under this Agreement have been terminated, each Borrower (a) waives any right of subrogation, reimbursement, indemnification and contribution (contractual, statutory or otherwise), including without limitation, any claim or right of subrogation under the Bankruptcy Code (Title 11, United States Code) or any successor statute, which such Borrower may now or hereafter have against any other Borrower with respect to the indebtedness incurred under this Agreement; (b) waives any right to enforce any remedy which the Bank now has or may hereafter have against any other Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by the Bank.







 



	
(i)

	
Each Borrower waives any right to require the Bank to proceed against any other Borrower or any other person; proceed against or exhaust any security; or pursue any other remedy.  Further, each Borrower consents to the taking of, or failure to take, any action which might in any manner or to any extent vary the risks of the Borrowers under this Agreement or which, but for this provision, might operate as a discharge of the Borrowers.







 



	
10.7  

	
Set-Off.







 



	
(a)

	
In addition to any rights and remedies of the Bank provided by law, upon the occurrence and during the continuance of any event of default under this Agreement, the Bank is authorized, at any time, to set off and apply any and all Deposits of the Borrower or any Obligor held by the Bank against any and all Obligations owing to the Bank.  The set-off may be made irrespective of whether or not the Bank shall have made demand under this Agreement or any guaranty, and although such Obligations may be contingent or unmatured or denominated in a currency different from that of the applicable Deposits.







 



	
(b)

	
The set-off may be made without prior notice to the Borrower or any other party, any such notice being waived by the Borrower (on its own behalf and on behalf of each Obligor) to the fullest extent permitted by law.  The Bank agrees promptly to notify the Borrower after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application.







 



	
(c)

	
For the purposes of this paragraph, “Deposits” means any deposits (general or special, time or demand, provisional or final, individual or joint) and any instruments owned by the Borrower or any Obligor which come into the possession or custody or under the control of the Bank.  “Obligations” means all obligations, now or hereafter existing, of the Borrower to the Bank under this Agreement and under any other agreement or instrument executed in connection with this Agreement, and the obligations to the Bank of any Obligor.







 



	
10.8  

	
One Agreement.







 


This Agreement and any related security or other agreements required by this Agreement, collectively:


 



	
(a)

	
represent the sum of the understandings and agreements between the Bank and the Borrower concerning this credit;







 



	
(b)

	
replace any prior oral or written agreements between the Bank and the Borrower concerning this credit; and







 



	
(c)

	
are intended by the Bank and the Borrower as the final, complete and exclusive statement of the terms agreed to by them.







 


In the event of any conflict between this Agreement and any other agreements required by this Agreement, this Agreement will prevail.  Any reference in any related document to a “promissory note” or a “note” executed by the Borrower and dated as of the date of this Agreement shall be deemed to refer to this Agreement, as now in effect or as hereafter amended, renewed, or restated.


 



	
10.9  

	
Disposition of Schedules and Reports.







 


The Bank will not be obligated to return any schedules, invoices, statements, budgets, forecasts, reports or other papers delivered by the Borrower.  The Bank will destroy or otherwise dispose of such materials at such time as the Bank, in its discretion, deems appropriate.


 



	
10.10  

	
Returned Merchandise.







 


Until the Bank exercises its rights to collect the accounts receivable as provided under any security agreement required under this Agreement, the Borrower may continue its present policies for returned merchandise and adjustments.  Credit adjustments with respect to returned merchandise shall be made immediately upon receipt of the merchandise by the Borrower or upon such other disposition of the merchandise by the debtor in accordance with the Borrower’s instructions.  If a credit adjustment is made with respect to any Acceptable Receivable, the amount of such adjustment shall no longer be included in the amount of such Acceptable Receivable in computing the Borrowing Base.


 




  





17











  






 



	
10.11  

	
Verification of Receivables.







 


The Bank may at any time, either orally or in writing, request confirmation from any debtor of the current amount and status of the accounts receivable upon which such debtor is obligated.


 



	
10.12  

	
Waiver of Confidentiality.







 


The Borrower authorizes the Bank to discuss the Borrower’s financial affairs and business operations with any accountants, auditors, business consultants, or other professional advisors employed by the Borrower, and authorizes such parties to disclose to the Bank such financial and business information or reports (including management letters) concerning the Borrower as the Bank may request.


 



	
10.13  

	
Indemnification.







 


The Borrower will indemnify and hold the Bank harmless from any loss, liability, damages, judgments, and costs of any kind relating to or arising directly or indirectly out of (a) this Agreement or any document required hereunder, (b) any credit extended or committed by the Bank to the Borrower hereunder, (c) any claim, whether well-founded or otherwise, that there has been a failure to comply with any law regulating the Borrower’s sales or leases to or performance of services for debtors obligated upon the Borrower’s accounts receivable and disclosures in connection therewith, and (d) any litigation or proceeding related to or arising out of this Agreement, any such document, any such credit, or any such claim.  This indemnity includes but is not limited to attorneys’ fees (including the allocated cost of in-house counsel).  This indemnity extends to the Bank, its parent, subsidiaries and all of their directors, officers, employees, agents, successors, attorneys, and assigns.  This indemnity will survive repayment of the Borrower’s obligations to the Bank.  All sums due to the Bank hereunder shall be obligations of the Borrower, due and payable immediately without demand.


 



	
10.14  

	
Notices.







 


Unless otherwise provided in this Agreement or in another agreement between the Bank and the Borrower, all notices required under this Agreement shall be personally delivered or sent by first class mail, postage prepaid, or by overnight courier, to the addresses on the signature page of this Agreement, or sent by facsimile to the fax numbers listed on the signature page, or to such other addresses as the Bank and the Borrower may specify from time to time in writing.  Notices and other communications shall be effective (i) if mailed, upon the earlier of receipt or five (5) days after deposit in the U.S. mail, first class, postage prepaid, (ii) if telecopied, when transmitted, or (iii) if hand-delivered, by courier or otherwise (including telegram, lettergram or mailgram), when delivered.


 



	
10.15  

	
Headings.







 


Article and paragraph headings are for reference only and shall not affect the interpretation or meaning of any provisions of this Agreement.


 



	
10.16  

	
Counterparts.







 


This Agreement may be executed in as many counterparts as necessary or convenient, and by the different parties on separate counterparts each of which, when so executed, shall be deemed an original but all such counterparts shall constitute but one and the same agreement.


 



	
10.17  

	
Borrower Information; Reporting to Credit Bureaus.







 


The Borrower authorizes the Bank at any time to verify or check any information given by the Borrower to the Bank, check the Borrower’s credit references, verify employment, and obtain credit reports.  The Borrower agrees that the Bank shall have the right at all times to disclose and report to credit reporting agencies and credit rating agencies such information pertaining to the Borrower and/or all guarantors as is consistent with the Bank’s policies and practices from time to time in effect.


 



	
10.18  

	
Prior Agreement Superseded.







 


This Agreement supersedes the Loan Agreement entered into as of May 4, 2010, between the Bank and the Borrower, and any credit outstanding thereunder shall be deemed to be outstanding under this Agreement.


 



	
10.19  

	
CONFESSION OF JUDGMENT.







 


THE BORROWER AUTHORIZES ANY ATTORNEY ADMITTED TO PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES OR ANY CLERK OF ANY COURT OF RECORD TO APPEAR ON BEHALF OF THE BORROWER IN ANY COURT IN ONE OR MORE PROCEEDINGS, OR BEFORE ANY CLERK THEREOF OR OTHER COURT OFFICIAL, AND TO CONFESS JUDGMENT AGAINST THE BORROWER IN FAVOR OF THE HOLDER OF THIS AGREEMENT IN THE FULL AMOUNT DUE UNDER THIS AGREEMENT (INCLUDING PRINCIPAL, ACCRUED INTEREST AND ANY AND ALL CHARGES, FEES AND COSTS) PLUS ATTORNEYS’ FEES EQUAL TO FIFTEEN PERCENT (15%) OF THE TOTAL AMOUNT DUE, PLUS COURT COSTS, ALL WITHOUT PRIOR NOTICE OR OPPORTUNITY OF THE BORROWER FOR PRIOR HEARING.  THE BORROWER AGREES AND CONSENTS THAT VENUE AND JURISDICTION SHALL BE PROPER IN THE CIRCUIT COURT OF ANY COUNTY OF THE STATE OF MARYLAND OR OF BALTIMORE CITY, MARYLAND, OR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND.  THE BORROWER WAIVES THE BENEFIT OF ANY AND EVERY STATUTE, ORDINANCE, OR RULE OF COURT WHICH MAY BE LAWFULLY WAIVED CONFERRING UPON THE BORROWER ANY RIGHT OR PRIVILEGE OF EXEMPTION, HOMESTEAD RIGHTS, STAY OF EXECUTION, OR SUPPLEMENTARY PROCEEDINGS, OR OTHER RELIEF FROM THE ENFORCEMENT OR IMMEDIATE ENFORCEMENT OF A JUDGMENT OR RELATED PROCEEDINGS ON A JUDGMENT.  THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, OR BY ANY IMPERFECT EXERCISE THEREOF, AND SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO; SUCH AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS FROM TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN AS THE HOLDER SHALL DEEM NECESSARY, CONVENIENT, OR PROPER.


 



	
10.20  

	
Waiver of Jury Trial.







 


THE PARTIES TO THIS AGREEMENT WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THEY MAY BE PARTIES, ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO, THIS AGREEMENT.  IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS AGREEMENT.  THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE.


 


[Signatures follow on next page.]


 




  





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The Borrower executed this Agreement as of the date stated at the top of the first page, intending to create an instrument executed under seal.


 


 




	 	
BANK OF AMERICA, N.A.

	 
	 	 	 	 
	 	
By: 

	/s/ Kevin P. Mahon	 
	 	 	Kevin P. Mahon,	 
	 	 	Senior Vice President	 
	 	 	 	 
	 	 	
Address for Notices:

	 
	 	 	 	 
	 	 	
100 South Charles Street, 3rd Floor

	 
	 	 	Baltimore, Maryland 21201	 
	 	 	 	 
	Witness:      	 	GAMERS FACTORY, INCORPORATED	 
	 	 	 	 
	 	 	By: 	/s/ Richard J. Leimbach (Seal)	 
	 	 	Richard J. Leimbach	 
	 	 	Chief Financial Officer	 
	 	 	 	 
	 	 	Address for Notices:	 
	 	 	 	 
	 	 	10957 McCormick Road	 
	 	 	Hunt Valley, Maryland 21031	 
	 	 	
Attn: Richard J. Leimbach

	 
	 	 	 	 
	Witness:        	 	GAME TRADING TECHNOLOGIES, INC.	 
	 	 	 	 
	 	 	 	/s/ Richard J. Leimbach (Seal)	 
	 	 	Richard J. Leimbach	 
	 	 	Chief Financial Officer	 
	 	 	 	 
	 	 	Address for Notices:	 
	 	 	 	 
	 	 	
10957 McCormick Road

	 
	 	 	
Hunt Valley, Maryland 21031

	 
	 	 	
Attn: Richard J. Leimbach

	 
	 	 	 	 





 




USA PATRIOT ACT NOTICE







Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account or obtains a loan.  The Bank will ask for the Borrower’s legal name, address, tax ID number or social security number and other identifying information.  The Bank may also ask for additional information or documentation or take other actions reasonably necessary to verify the identity of the Borrower, guarantors or other related persons.




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