Exhibit 10.1
Execution
AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN
AND SECURITY AGREEMENT (this “Amendment”) dated as of July 19, 2022 is by and among Siena Lending Group LLC (“Lender”)
and TransAct Technologies Incorporated, a Delaware corporation (“Borrower”). Terms used herein without definition shall
have the meanings ascribed to them in the Loan Agreement defined below.
RECITALS
A. Lender
and Borrower have previously entered into that certain Loan and Security Agreement dated as of March 13, 2020, as amended by Amendment
No. 1 to Loan and Security Agreement, dated as of July 21, 2021 (the “First Amendment”) (as further amended, modified
and supplemented from time to time, the “Loan Agreement”), pursuant to which Lender has made certain loans and financial
accommodations available to Borrower.
B. Borrower
has requested that Lender amend certain terms and conditions of the Loan Agreement as set forth herein.
C. Borrower
is entering into this Amendment with the understanding and agreement that, except as specifically provided herein, none of Lender’s
rights or remedies as set forth in the Loan Agreement or any other Loan Document is being waived or modified by the terms of this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendments to
Loan Agreement. As of the effective date of this Amendment, the Loan Agreement is hereby amended as follows:
(a) Section
4.1. Section 4.1 of the Loan Agreement is amended and restated in its entirety to read as follows:
4.1 Lock
Boxes and Blocked Accounts. Each Loan Party hereby represents and warrants that all Deposit Accounts and all other depositary and
other accounts maintained by each Loan Party as of the Closing Date are described in Section 39 of the Information Certificate(s), which
description includes for each such account the name of the Loan Party maintaining such account, the name, of the financial institution
at which such account is maintained, the account number, and the purpose of such account. After the Closing Date, no Loan Party shall
open any new Deposit Accounts or any other depositary or other accounts without the prior written consent of Lender and without updating
Section 39 of the Information Certificate(s) to reflect such Deposit Accounts or other accounts, as applicable. No Deposit Accounts or
other accounts of any Loan Party shall at any time constitute a Restricted Account other than accounts expressly indicated on Section
39 of the Information Certificate(s) as being a Restricted Account (and each Loan Party hereby represents and warrants that each such
account shall at all times meet the requirements set forth in the definition of Restricted Account to qualify as a Restricted Account).
Each Loan Party will, at its expense, establish (and revise from time to time as Lender may require) procedures acceptable to Lender,
in Lender’s Permitted Discretion, for the collection of checks, wire transfers and all other proceeds of all of such Loan Party’s
Accounts and other Collateral (“Collections”), which shall include (a) directing all Account Debtors to send
all Account proceeds directly to a post office box designated by Lender either in the name of such Loan Party (but as to which Lender
has exclusive access) or, at Lender’s option, in the name of Lender (a “Lock Box”), and/or (b) depositing
all Collections received by such Loan Party into one or more bank accounts maintained in the name of such Loan Party or, at Lender’s
option, in the name of Lender (each, a “Blocked Account”) and/or (c) a combination of the foregoing. Each Loan
Party agrees to execute, and to cause its depository banks and other account holders to execute, such Lock Box and Blocked Account control
agreements and other documentation as Lender shall require from time to time in connection with the foregoing, all in form and substance
acceptable to Lender. As of the Amendment No. 2 Effective Date, Lender has exclusive access to the Blocked Account. Lender agrees to release
such exclusive access upon execution and delivery of a “springing” deposit account control agreement by the depository bank
where the Blocked Account is maintained, in form and substance acceptable to Lender and which provides, among other things, that upon
receipt of a notice from Lender (a “Notice of Exclusive Control”), the depository bank will only comply with
instructions originated by Lender directing the disposition of the funds in the Blocked Account and will not honor any request or direction
from any officer or other representative of Borrower to direct disposition of funds in the Blocked Account, withdraw any amount from the
Blocked Account or otherwise with respect to the Blocked Account. Lender agrees that the form of deposit account control agreement attached
as Exhibit A to Amendment No. 2 is acceptable as a “springing” deposit account control agreement. Once the “springing”
deposit account control agreement has been implemented, Lender agrees not to issue a Notice of Exclusive Control with respect to the Lock
Box and Blocked Account unless a Cash Dominion Event has occurred. Any event such arrangements and documents must be in place on the Amendment
No. 2 Effective Date with respect to accounts in existence on such date, or prior to any such account being opened with respect to any
such account opened after the date hereof, in each case excluding Restricted Accounts. At the request of Lender, each Loan Party shall
provide Lender with online read-only access to such Loan Party’s Deposit Accounts and maintain such access in effect for Lender
throughout the term of this Agreement and until all Obligations have been paid in full, all in a manner acceptable to Lender in its Permitted
Discretion. Prior to the Closing Date, Borrowing Agent shall deliver to Lender a complete and executed Authorized Accounts form regarding
Borrowers’ operating account(s) into which the proceeds of Loans are to be paid in the form of Exhibit D annexed hereto.
(b) Section
4.7. The third sentence in Section 4.7 of the Loan Agreement is amended and restated in its entirety to read as follows:
Such inspections and examinations shall
be at Borrowers’ expense and the charge therefor shall be $1,200 per person per day, plus out-of-pocket expenses; provided,
that Lender shall conduct such field inspections and examinations no more frequently than once per Fiscal Quarter and Borrowers shall
not be obligated to pay more than $15,000 per Fiscal Year for costs and expenses relating to field examinations; provided further,
however, that the foregoing limitations on the frequency of and on Borrowers’ obligation to pay for costs and expenses
relating to field inspections and examinations shall not apply to costs and expenses incurred in connection with (i) the field examination
conducted prior to the Closing Date, (ii) any field examination conducted in connection with a Permitted Acquisition, or (iii) any field
examination commenced while an Event of Default exists.
(c) Section
4.8. Section 4.8 of the Loan Agreement is amended and restated in its entirety to read as follows:
4.8 Appraisals.
Each Loan Party will permit Lender and each of its representatives or agents to conduct appraisals and valuations of the Collateral at
such times and intervals as Lender may designate. Such appraisals and valuations shall be at Borrowers’ expense; provided,
that Borrowers shall only be required to reimburse Lender for up to one (1) appraisal and valuation in any Fiscal Year plus any additional
appraisals and valuations that are conducted during the existence of an Event of Default.
(d) Schedule
A. Section 6 of Schedule A to the Loan Agreement is amended and restated in its entirety to read as follows:
6. Scheduled Maturity Date: March 13,
2025
(e) Schedule
B. Schedule B to the Loan Agreement is amended by the addition, in alphabetical order, or by the amendment and restatement, as applicable,
of the following definitions to read in their entirety as follows:
“Amendment No. 2”
means Amendment No. 2 to Loan and Security Agreement dated as of July 19, 2022.
“Amendment No. 2 Effective Date”
means July 19, 2022.
“Cash Dominion
Event” means the occurrence of either of the following: (a) the occurrence and continuance of any Event of Default, or (b) Excess
Availability plus unrestricted cash of Borrower in one or more deposit accounts subject to a deposit account control agreement in favor
of Lender is less than $5,000,000 for three (3) consecutive Business Days.
“Fee Letter”
means that certain Amended and Restated Fee Letter, dated as of the Amendment No. 2 Effective Date, between Borrower and Lender, amending
and restating the Fee Letter dated as of the Closing Date.
2. Effectiveness
of this Amendment. This Amendment shall become effective upon the satisfaction, as determined by Lender, of the following conditions.
(a) Amendment.
Lender shall have received this Amendment, duly executed by the Borrower in a sufficient number of counterparts for distribution to all
parties.
(b) Fee
Letter. Lender shall have received the Fee Letter, duly executed by the Borrower and dated as of the Amendment No. 2 Effective Date.
(c) Secretary
Certificate. A Certificate of Secretary of Borrower (i) attesting to the resolutions of Borrower’s board of directors authorizing
its execution, delivery, and performance of this Amendment, the Fee Letter and any and all documents, instruments, writings and agreements
relating to this Amendment and the Fee Letter, (ii) certifying that the organizational documents of Borrower, which were certified and
delivered to the pursuant to the Certificate of Secretary of Borrower dated March 13, 2020, continue in full force and effect and have
not been amended or otherwise modified except as set forth in the Certificate to be delivered, and (iii) certifying that the officers
and agents of such Borrower who have been certified to the Lender pursuant to the Certificate of Secretary of Borrower dated March 13,
2020, as being authorized to sign and to act on behalf of Borrower continue to be so authorized or setting forth the sample signatures
of each of the officers and agents of Borrower authorized to execute and deliver this Amendment and all other documents, agreements and
certificates on behalf of Borrower.
(d) TD
Bank Deposit Account Control Agreement. Lender shall have received a deposit account control agreement attached as Exhibit A to Amendment
No. 2, among Borrower, TD Bank, N.A. and Lender.
(e) Fees
and Expenses. Payment of any and all fees, costs and expenses required to be paid on the Amendment No. 2 Effective Date as set forth
in the Fee Letter.
(f) Other
Required Documentation. All other documents and legal matters in connection with the transactions contemplated by this Amendment shall
have been delivered or executed or recorded, as required by Lender.
3. Kestra
Investment Services, LLC.
(a) Lender
has received confirmation that the account of Borrower maintained at Kestra Investment Services, LLC (the “Kestra Account”)
has been closed and any assets held in that account have been moved to the deposit account maintained with TD Bank, N.A., account number
xxxxxx4581.
(b) Lender
hereby waives any Default or Event of Default arising as a result of the failure of Borrower to deliver a control agreement in respect
of the Kestra Account in accordance with the requirements of the First Amendment.
4. Representations
and Warranties. Each Loan Party represents and warrants as follows:
(a) Authority.
Such Loan Party has the requisite corporate power and authority to execute and deliver this Amendment, and to perform its obligations
hereunder, under the Loan Agreement (as amended or modified hereby) and under the other Loan Documents to which it is a party. The execution,
delivery and performance by such Loan Party of this Amendment have been duly approved by all necessary corporate action and no other corporate
proceedings are necessary to consummate such transactions.
(b) Enforceability.
This Amendment has been duly executed and delivered by each Loan Party. This Amendment, the Loan Agreement (as amended or modified hereby)
and each other Loan Document is the legal, valid and binding obligation of each Loan Party, enforceable against each Loan Party in accordance
with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws
of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or at law), and is in full force and effect.
(c) Representations
and Warranties. The representations and warranties contained in the Loan Agreement and each other Loan Document (other than any such
representations or warranties that, by their terms, are specifically made as of a date other than the date hereof) are correct on and
as of the date hereof as though made on and as of the date hereof.
(d) Due
Execution. The execution, delivery and performance of this Amendment have received all necessary governmental approval, if any, and
do not contravene any law or any contractual restrictions binding on any Loan Party.
(e) No
Default. No event has occurred and is continuing that constitutes a Default or an Event of Default.
5. Choice
of Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York applied to contracts
to be performed wholly within the State of New York.
6. Counterparts;
Facsimile or Electronic Signatures. This Amendment may be executed in any number of and by different parties hereto on separate counterparts,
all of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same agreement. Any
signature delivered by a party by facsimile, email or other form of electronic transmission (including, without limitation, DocuSign)
shall be deemed to be an original signature hereto.
7. Costs
and Expenses. Borrower hereby reaffirms its agreement under the Loan Agreement to pay or reimburse Lender on demand for all costs
and expenses incurred by Lender in connection with the Loan Documents, including without limitation all reasonable fees and disbursements
of legal counsel. Without limiting the generality of the foregoing, Borrower specifically agrees to pay all fees and disbursements of
counsel to Lender for the services performed by such counsel in connection with the preparation of this Amendment and the documents and
instruments incidental hereto. Borrower hereby agrees that Lender may, at any time or from time to time in its sole discretion and without
further authorization by Borrower, make a loan to Borrower under the Loan Agreement, or apply the proceeds of any loan, for the purpose
of paying any such fees, disbursements, costs and expenses.
8. Reference
to and Effect on the other Loan Documents.
(a) This
Amendment is a Loan Document. Upon and after the effectiveness of this Amendment, each reference in the Loan Agreement to “this
Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each reference
in the other Loan Documents to “the Loan Agreement”, “thereof” or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and amended hereby.
(b) Except
as specifically amended above, the Loan Agreement and all other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed and shall constitute the legal, valid, binding and enforceable obligations of Borrower
and Lender.
(c) The
execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of Lender under the Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the
Loan Agreement or any of the other Loan Documents.
(d) To
the extent that any terms and conditions in any of the other Loan Documents shall contradict or be in conflict with any terms or conditions
of the Loan Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly
to reflect the terms and conditions of the Loan Agreement as modified or amended hereby.
9. Integration.
This Amendment, together with the Loan Agreement and the other Loan Documents, incorporates all negotiations of the parties hereto with
respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter
hereof.
10. Severability.
If any part of this Amendment is contrary to, prohibited by, or deemed invalid under applicable law, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall
be given effect so far as possible.
[Signature pages follow]
IN WITNESS WHEREOF, the parties
have entered into this Amendment as of the date first above written.
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BORROWER: |
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TRANSACT TECHNOLOGIES INCORPORATED |
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By: |
/s/ Steve A. DeMartino |
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Name: Steven A. DeMartino |
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Its: President, Chief Financial Officer, Treasurer and Secretary |
Amendment No. 2 to Loan and Security Agreement
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LENDER: |
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SIENA LENDING GROUP LLC, |
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By: |
/s/ Steven Sanicola |
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Name: Steven Sanicola |
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Title: Authorized Signatory |
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By: |
/s/ Keith Holler |
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Name: Keith Holler |
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Title: Authorized Signatory |
Amendment No. 2 to Loan and Security Agreement
Exhibit A
FORM OF DEPOSIT ACCOUNT CONTROL AGREEMENT
