Exhibit 10.2
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED
ACCOUNTS RECEIVABLE PURCHASE
AGREEMENT
THIS FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED ACCOUNTS RECEIVABLE PURCHASE AGREEMENT (this
“Amendment”) is dated as of November 7 ,
2006, and is by and between SILICON VALLEY BANK
(“Bank”) and AXESSTEL, INC ., a Nevada
corporation (“Seller”) whose address is 6815 Flanders
Drive, Suite 210, San Diego, California 92121 and with a FAX number
of 858-625-7110.
RECITALS
A. Bank and Seller have entered into
that certain Second Amended and Restated Accounts Receivable
Purchase Agreement, dated as of August 7, 2006 (as amended,
modified, supplemented or restated, the “AR Purchase
Agreement”).
B. Bank has extended credit to
Seller pursuant to the terms of the AR Purchase
Agreement.
C. Seller has requested that Bank
amend the AR Purchase Agreement in accordance with the terms
hereof.
D. Bank has agreed to so amend
certain provisions of the AR Purchase Agreement, but only to the
extent, in accordance with the terms, subject to the conditions and
in reliance upon the representations and warranties set forth
below.
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 Amendment shall have the
meanings given to them in the AR Purchase Agreement.
2. Amendments to AR Purchase
Agreement .
2.1 Acceptance of Receivables
. The last sentence of Section 2.2 of the AR Purchase
Agreement is hereby amended in its entirety and replaced with the
following:
“Notwithstanding the
foregoing, in no event shall the aggregate amount of all Purchased
Receivables outstanding at any time exceed Ten Million Dollars
($10,000,000).”
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
(as defined in the Loan Agreement), 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 Amendment 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
amend
