Untitled Document


Exhibit 10.2

  

 

 FIRST AMENDMENT
  TO SECOND AMENDED AND RESTATED

  EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT

 

THIS FIRST AMENDMENT TO SECOND AMENDED
  AND RESTATED EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (this "Agreement")
  is entered into this 19th day of February 2009, by and between SILICON VALLEY
  BANK ("Bank") and SOCKET MOBILE, INC., a Delaware corporation ("Borrower"),
  whose address is 39700 Eureka Drive, Newark, California 94560. 

RECITALS

A. Bank and Borrower have
  entered into that certain Second Amended and Restated Export-Import Bank Loan
  and Security Agreement dated as of December 24, 2008 (as the same has and may
  continue to be from time to time further amended, modified, supplemented or
  restated, the "Exim Loan Agreement"). 

B. Bank has extended credit
  to Borrower for the purposes permitted in the Exim Loan Agreement. 

C. Borrower has requested
  that Bank (i) extend the EXIM Maturity Date, and (ii) amend certain other provisions
  of the Exim Loan Agreement. 

D. Although Bank is under
  no obligation to do so, Bank is willing to (i) extend the EXIM Maturity Date
  and (ii) amend certain provisions of the Exim Loan Agreement, all on the terms
  and conditions set forth in this Agreement, so long as Borrower complies with
  the terms, covenants and conditions set forth in this Agreement in a timely
  manner. 

AGREEMENT

NOW, THEREFORE, in consideration
  of the foregoing recitals and other good and valuable consideration, the receipt
  and adequacy of which is hereby acknowledged, and intending to be legally bound,
  the parties hereto agree as follows:

1. Definitions. Capitalized
  terms used but not defined in this Agreement, including its preamble and recitals,
  shall have the meanings given to them in the Exim Loan Agreement.

2. Amendments to Exim
  Loan Agreement.

              2.1
  Section 2.1.1 (Revolving Advances). Section 2.1.1(b) of the Exim Loan Agreement
  is hereby amended in its entirety and replaced with the following:

              (b)
  Maximum Advances. The aggregate outstanding amount of all Advances, outstanding
  at any time may not exceed One Million Dollars ($1,000,000). Notwithstanding
  any other term or provision of this EXIM Agreement, the aggregate amount of
  Advances hereunder together with the aggregate amount of loan advances under
  the Domestic Loan Agreement shall not at any event exceed Two Million Five Hundred
  Thousand Dollars ($2,500,000).

 

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                2.2
  Section 2.4 (Fees). Section 2.4(c) of the Exim Loan Agreement is hereby
  amended in its entirety and replaced with the following:

              (c)
  Collateral Handling Fee. At all times that the Adjusted Quick Ratio is less
  than 1.25 to 1.00, Borrower will pay to Bank a collateral handling fee equal
  to .70% per month of the Financed Receivable Balance for each Financed Receivable
  outstanding based upon a 360 day year (the "Collateral Handling Fee").
  This fee is charged on a daily basis which is equal to the Collateral Handling
  Fee divided by 30, multiplied by the number of days each such Financed Receivable
  is outstanding, multiplied by the outstanding Financed Receivable Balance. The
  Collateral Handling Fee is payable when the Advance made based on such Financed
  Receivable is payable in accordance with Section 2.3 hereof. In computing Collateral
  Handling Fees under this EXIM Agreement, all Collections received by Bank shall
  be deemed applied by Bank on account of Obligations three (3) Business Days
  after receipt of the Collections. After an Event of Default, the Collateral
  Handling Fee will increase an additional 0.50% effective immediately upon such
  Event of Default. 

        

                2.2.4
  Collateral Handling Fee. At all times that the Adjusted
  Quick Ratio is less than 1.25 to 1.00, Borrower will pay to Bank a collateral
  handling fee equal to seven tenths of one percent (0.70%) per month of the Financed
  Receivable Balance for each Financed Receivable outstanding based upon a 360
  day year (the "Collateral Handling Fee"). This fee is charged on a daily
  basis which is equal to the Collateral Handling Fee divided by 30, multiplied
  by the number of days each such Financed Receivable is outstanding, multiplied
  by the outstanding Financed Receivable Balance. The Collateral Handling Fee
  is payable when the Advance made based on such Financed Receivable is payable
  in accordance with Section 2.3 hereof. In computing Collateral Handling Fees
  under this Agreement, all Collections received by Bank shall be deemed applied
  by Bank on account of Obligations three (3) Business Days after receipt of the
  Collections. After an Event of Default, the Collateral Handling Fee will increase
  an additional 0.50% effective immediately upon such Event of Default.          

              2.3
  Section 13 (Definitions). The following definitions set forth in Section
  13.1 of the Exim Loan Agreement are hereby amended in their entirety and replaced
  with the following: 

              "EXIM
  Maturity Date" is March 24, 2010.

              "EXIM
  Facility Amount" is One Million Two Hundred Fifty Thousand Dollars ($1,250,000).
  

3. Limitation of Amendments.

              3.1
  The amendments set forth in Section 2, above, are effective for the purposes
  set forth herein and shall be limited precisely as written and shall not be
  deemed to (a) be a consent to any amendment, waiver or modification of any other
  term or condition of any Loan Document, or (b) otherwise prejudice any right
  or remedy which Bank may now have or may have in the future under or in connection
  with any Loan Document. 

              3.2
  This Agreement shall be construed in connection with and as part of the Loan
  Documents and all terms, conditions, representations, warranties, covenants
  and agreements set forth in the Loan Documents, except as herein amended, are
  hereby ratified and confirmed and shall remain in full force and effect.

 

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  4. Representations and
  Warranties. To induce Bank to enter into this Agreement, Borrower hereby
  represents and warrants to Bank as follows:

              4.1
  Immediately after giving effect to this Agreement (a) the representations and
  warranties contained in the Loan Documents are true, accurate and complete in
  all material respects as of the date hereof (except to the extent such representations
  and warranties relate to an earlier date, in which case they are true and correct
  as of such date), and (b) no Event of Default has occurred and is continuing;
  

              4.2
  Borrower has the power and authority to execute and deliver this Agreement and
  to perform its obligations under the Exim Loan Agreement, as amended by this
  Agreement; 

              4.3
  The organizational documents of Borrower delivered to Bank on the Effective
  Date remain true, accurate and complete and have not been amended, supplemented
  or restated and are and continue to be in full force and effect; 

              4.4
  The execution and delivery by Borrower of this Agreement and the performance
  by Borrower of its obligations under the Exim Loan Agreement, as amended by
  this Agreement, have been duly authorized;

              4.5
  The execution and delivery by Borrower of this Agreement and the performance
  by Borrower of its obligations under the Exim Loan Agreement, as amended by
  this Agreement, do not and will not contravene (a) any law or regulation binding
  on or affecting Borrower, (b) any contractual restriction with a Person binding
  on Borrower, (c) any order, judgment or decree of any court or other governmental
  or public body or authority, or subdivision thereof, binding on Borrower, or
  (d) the organizational documents of Borrower; 

              4.6
  The execution and delivery by Borrower of this Agreement and the performance
  by Borrower of its obligations under the Exim Loan Agreement, as amended by
  this Agreement, do not require any order, consent, approval, license, authorization
  or validation of, or filing, recording or registration with, or exemption by
  any governmental or public body or authority, or subdivision thereof, binding
  on Borrower, except as already has been obtained or made; and 

              4.7
  This Agreement has been duly executed and delivered by Borrower and is the binding
  obligation of Borrower, enforceable against Borrower in accordance with its
  terms, except as such enforceability may be limited by bankruptcy, insolvency,
  reorganization, liquidation, moratorium or other similar laws of general application
  and equitable principles relating to or affecting creditors' rights.

5. Counterparts. This Agreement
  may be executed in any number of counterparts and all of such counterparts taken
  together shall be deemed to constitute one and the same instrument.

 

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  6. Effectiveness. This
  Agreement shall be deemed effective upon (a) the due execution and delivery
  to Bank of this Agreement by each party hereto, (b) the due execution and delivery
  to Bank of that certain First Amendment to Second Amended and Restated Loan
  and Security Agreement, dated as of the date hereof, by each party hereto, (c)
  Borrower's payment of the EXIM Bank amendment and renewal fee in an amount equal
  to Three Thousand Dollars ($3,000), and (d) payment of Bank's legal fees and
  expenses in connection with the negotiation and preparation of this Agreement.
  

IN WITNESS WHEREOF, the parties
  hereto have caused this Agreement to be duly executed and delivered as of the
  date first written above. 

BANK 

  

  SILICON VALLEY BANK 

  By: /s/ Aman Johal 

  Name: Aman Johal 

  Title: Relationship Manager 

  

  BORROWER

  

  SOCKET MOBILE, INC. 

  By: /s/ David W. Dunlap

  Name: David W. Dunlap

  Title: CFO 

 

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