Exhibit 4.3(m)
THIRD AMENDMENT
TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (the "Amendment") is entered
into this 00xx.xxx of March, 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, and the Second Amendment
to Credit Agreement dated January 21, 2002 (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 5, Subsection 5.13 of the Agreement is hereby amended
and restated in its entirety as follows:
5.13 MINIMUM TANGIBLE NET WORTH. Borrower will not permit its
Tangible Net Worth to be less than the amounts set forth below on the
dates set forth below:
Date Minimum Amount
9/30/01 $14,053,000
12/31/01 $15,450,000
3/31/02 $15,587,000
6/30/02 $16,174,000
9/30/02 $16,801,000
12/31/02 $16,657,000
3/31/03 $17,162,000
6/30/03 $17,404,000
9/30/03 $17,436,000
12/31/03 $17,436,000
3/31/04 $17,436,000
(b) The following definitions set froth on Exhibit A to the
Agreement are hereby amended and restated in their entirety as
follows:
"Tangible Net Worth" means the total of the capital stock (less treasury stock)
paid-in surplus, general contingency reserves and retained earnings (deficit)
of Borrower
in accordance with generally accepted accounting principles, after eliminating
all inter-company items; unrealized gains or losses recorded under Statement of
Financial Accounting Standards Board No. 133, ACCOUNTING FOR DERIVATIVES AND
HEDGING ACTIVITIES and all amounts properly attributable to minority interests,
if any, in the stock and surplus of any Subsidiary PLUS subordinated debt there
to Borrower's shareholders as a result of cash loans to the Borrower, MINUS the
following items (without duplication of deductions) if any, appearing on the
consolidated balance sheet of Borrower: (i) all deferred charges (less
amortization, unamortized debt discount and expense and corporate organization
expenses); (ii) the book amount of all assets which would be treated as
intangibles under generally accepted accounting principles, including, without
limitation, such items as good-will, trademark applications, trade names
service marks, brand names, copyrights, patents, patent applications, and
licenses, and rights with respect to the foregoing; (iii) the amount by which
aggregate net inventories or aggregate net securities appearing on the
consolidated balance sheet exceed the lower cost or market value (at the date
of such balance sheet) thereof; (iv) any subsequent write-up in the book amount
of any assets resulting from a revaluation thereof from the book amount entered
upon acquisition of such assets; and (v) any outstanding stock warrants.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. To induce Bank
to enter into this Amendment, Borrower represents and warrants as follows:
(a) Except as to current litigation set forth on attached Exhibit 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 Agreement, and are true and correct as of
the date of execution hereof.
(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 Third 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.
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 this 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.
(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:_______________________________
