Exhibit 4.3(k)
SECOND AMENDMENT
TO CREDIT AGREEMENT
($5,000,000 SUBORDINATE DEBT)
This Second Amendment to Credit Agreement ($5,000,000 Subordinate Debt)
(the "Amendment") is entered into this 21st. day of January, 2002, by and
between FIFTH THIRD BANK, an Ohio banking corporation (the "Bank") and INTERLOTT
TECHNOLOGIES, INC., a Delaware corporation (the "Borrower").
WHEREAS, Bank and Borrower entered into that certain Credit Agreement
($5,000,000 Subordinate Debt) dated as of May 31, 2001, as amended by the First
Amendment to Credit Agreement dated October 3, 2001 (as amended, the
"Agreement");
WHEREAS, Bank and Borrower desire to amend the Agreement, pursuant to
the terms and conditions set forth herein.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. AMENDMENTS.
(a) Section 2, Subsection 2.1(b) of the Agreement is hereby amended
and restated in its entirety as follows:
2.1(b). Interest will accrue on the principal amount of the Term Note
at the rate of 12% per annum to and including December 31, 2001, and at
the rate of 9% per annum thereafter. Interest only payments will be
made in immediately available funds at the principal office of the Bank
in accordance with the terms of the Term Note. The entire principal
amount of the Term Note, plus all accrued and unpaid interest and any
other charges, advances or fees required to be paid hereunder, will be
due and payable on June 30, 2003.
(b) Section 2, Subsection 2.3 is hereby amended and restated in its
entirety as follows:
2.3 PREPAYMENT. Borrower may prepay any portion of the Term Loan but
only if: (a) Borrower is in full compliance with the Senior Debt Credit
Facility, (b) all pre-payments are made in increments of $500,000, (c)
all pre-payments are made not earlier than 40 days after the close of
each fiscal quarter, and not later than 50 days after the close of each
fiscal quarter, commencing on September 30, 2001, and (d) on the date
of any prepayment (in whole or in part) of the Term Loan made on or
before May 10, 2002, Borrower pays to Bank a prepayment fee equal to
the sum of one-half percent (0.5%) of the amount of principal payment
made by Borrower upon the Term Loan, and with no premium, penalty, or
fee due for any payment made after May 10, 2002.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. To induce
Bank to enter into this Amendment, Borrower represents and warrants as follows:
(a) The representations and warranties of Borrower contained in
Section 3 of the Agreement are deemed to have been made again on
and as of the date of execution of this Amendment, and are true
and correct as of the date of execution hereof; provided,
however, that the representations and warranties set forth in
Section 3.3 of the Agreement are hereby amended to incorporate
references to litigation involving the Borrower of which the
Borrower has advised Bank since the date of the Agreement.
(b) The person executing this Amendment is a duly elected and acting
officer of Borrower and is duly authorized by the Board of
Directors of Borrower to execute and deliver this Amendment on
behalf of Borrower.
3. CONDITIONS. Bank's obligations under this Agreement are subject
to the following conditions:
(a) Borrower has executed and delivered to Bank this Second Amendment
to Credit Agreement.
(b) The representations and warranties of Borrower in Section 2
hereof shall be true and correct on the date of execution of this
Amendment.
(c) Borrower has executed and delivered to Bank the Borrower's
Certificate attached hereto.
(d) Borrower has executed and delivered to Bank the Amended and
Restated Term Note attached hereto as Exhibit 2.1.
4. GENERAL.
(a) Except as expressly modified hereby, the Agreement remains
unaltered and in full force and effect. Borrower acknowledges
that Bank has made no oral representations to Borrower with
respect to the Agreement and this Amendment thereto and that all
prior understandings between the parties are merged into the
Agreement as amended by this writing. All Loans outstanding on
the date of execution of this Amendment shall be considered for
all purposes to be Loans outstanding under the Agreement as
amended by this Amendment.
(b) Capitalized terms used and not otherwise defined herein will have
the meanings set forth in the Agreement.
(c) This Amendment shall be considered an integral part of the
Agreement, and all references to the Agreement in the Agreement
itself or any document referring thereto shall, on and after the
date of execution of this Amendment, be deemed to be references
to the Agreement as amended by this Amendment.
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(d) This Amendment will be binding upon and inure to the benefits of
Borrower and Bank and their respective successors and assigns.
(e) All representations, warranties and covenants made by Borrower
herein will survive the execution and delivery of this Amendment.
(f) This Amendment will, in all respects, be governed and construed
in accordance with the laws of the State of Ohio.
(g) This Amendment may be executed in one or more counterparts, each
of which will be deemed an original and all of which together
constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Bank have executed this Amendment by
their duly authorized officers as of the date first above written.
INTERLOTT TECHNOLOGIES, INC.
By:_______________________________
Its:______________________________
FIFTH THIRD BANK
By:________________________________
Its:_______________________________
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EXHIBIT 2.1
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FIRST AMENDED AND RESTATED TERM NOTE
$5,000,000.00
Cincinnati, Ohio
May 31, 2001
First Amendment and Restatement January ___, 2002
INTERLOTT TECHNOLOGIES, INC., a Delaware corporation (the "Borrower"),
for value received, hereby promises to pay to the order of FIFTH THIRD BANK, an
Ohio banking corporation (the "Bank"), at its offices located at 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, in lawful money of the United States of
America, the principal sum of Five Million Dollars ($5,000,000) together with
interest as set forth herein. Interest on the outstanding principal balance of
this Note will accrue at a rate per annum equal to 12% per annum to and
including December 31, 2001, and at the rate of 9% thereafter. Interest will be
calculated on the basis of a year of 360 days and charged for the actual number
of days elapsed. Interest will be payable in immediately available funds at the
principal office of Bank on the first day of each calendar month commencing July
1, 2001. After maturity, whether by acceleration, or otherwise, this Note will
bear interest (computed and adjusted in the same manner, and with the same
effect, as interest hereon prior to maturity), payable on demand, at a rate per
annum equal to the Default Rate, until paid, and whether before or after the
entry of judgment hereon.
Accrued and unpaid interest will only be due and payable monthly
commencing on the 1st day of July, 2001 and continuing on the 1st day of each
month thereafter during the term hereof.
The entire principal amount and all accrued and unpaid interest due and
of this Note will be due and payable on June 30, 2003.
This Note is the Term Note referred to in the Credit Agreement
($5,000,000 Subordinate Debt) between Borrower and Bank dated May 31, 2001, as
it may be amended from time to time (the "Agreement"), and is entitled to the
benefits, and is subject to the terms, of the Agreement. Capitalized terms used
but not otherwise defined herein will have the meanings attributed thereto in
the Agreement. The principal of this Note is pre-payable in the amounts and
under the circumstances, and its maturity is subject to acceleration upon the
terms, set forth in the Agreement. Except as otherwise expressly provided in the
Agreement, if any payment on this Note becomes due and payable on a day other
than one on which Bank is open for business (a "Business Day"), the maturity
thereof will be extended to the next Business Day, and interest will be payable
at the rate specified during the extension period.
This Note is subject to all the terms and conditions of a Standby and
Subordination Agreement (as defined in the Credit Agreement).
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After the occurrence and during the continuation of an Event of
Default, all amounts of principal outstanding as of the date of the occurrence
of such Event of Default will bear interest at the Default Rate, in Bank's sole
discretion. This provision does not constitute a waiver of any Events of Default
or an agreement by Bank to permit any late payments whatsoever.
PREPAYMENT. Borrower may prepay any portion of the Term Loan but only
if: (a) Borrower is in full compliance with the Senior Debt Credit Facility, and
(b) all pre-payments are made in increments of $500,000, (c) all pre-payments
are made not earlier than 40 days after the close of each fiscal quarter, and
not later than 50 days after the close of each fiscal quarter, commencing on
September 30, 2001; and (d) on the date of any prepayment (in whole or in part)
of the Term Loan made on or before May 10, 2002, Borrower pays to Bank a
prepayment fee equal to the sum of one-half percent (0.5%) of the amount of
principal payment made by Borrower upon the Term Loan, and with no premium,
penalty, or fee due for any payment made after May 10, 2002.
In no event will the interest rate on this Note exceed the highest rate
permissible under any law which a court of competent jurisdiction will, in a
final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess will be
deemed received on account of, and will automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest in the
inverse order of maturity, and the provisions hereof will be deemed amended to
provide for the highest permissible rate. If there are no such amounts
outstanding, Bank will refund to Borrower such excess.
All payments received by Bank will be applied first to payment of
amounts advanced by Bank on behalf of Borrower, which may be due for insurance,
taxes and attorneys' fees or other charges to be paid by Borrower pursuant to
the Agreement and the Loan Documents (as defined herein), then to accrued
interest due on this Note, then to the principal, which will be repaid in the
inverse order of maturity.
Borrower and all endorsers, sureties, guarantors and other persons
liable on this Note hereby waive presentment for payment, demand, notice of
dishonor, protest, notice of protest and all other demands and notices in
connection with the delivery, performance and enforcement of this Note, and one
or more extensions and renewals of this Note.
This Note may not be changed orally, but only by an instrument in
writing.
This Note amends, restates, and replaces the $5,000,000 Term Note dated
May 31, 2001 made and delivered by Borrower to Bank.
This Note is being delivered in, is intended to be performed in, will
be construed and enforceable in accordance with, and be governed by the internal
laws of, the State of Ohio without regard to principles of conflict of laws.
Borrower agrees that the State and federal courts in Xxxxxxxx County, Ohio, or
any other court in which Bank initiates proceedings, have exclusive jurisdiction
over all matters arising out of this Note, and that service of process in any
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such proceeding will be effective if mailed to Borrower at its address described
in the Notices section of the Agreement. BORROWER HEREBY WAIVES THE RIGHT TO
TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
WITNESSES: INTERLOTT TECHNOLOGIES, INC.
By:_____________________________________
______________________________
Its: ___________________________________
_____________________________
