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EXHIBIT 4.3(d)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the "Amendment") is made and
entered into this 29th day of October, 1998, by and between INTERLOTT
TECHNOLOGIES, INC., a Delaware corporation ("Borrower"), and MERCANTILE
BUSINESS CREDIT INC., a Missouri corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower and Lender have heretofore entered into that certain
Loan Agreement dated October 29, 1997 (the "Loan Agreement"; all capitalized
terms used and not otherwise defined in this Amendment shall have the
respective meanings ascribed to them in the Loan Agreement as amended by this
Amendment); and
WHEREAS, Borrower and Lender desire to amend the Loan Agreement in the
manner hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. Section 2.09 of the Loan Agreement hereby is deleted in its
entirety and the following substituted in lieu thereof:
2.09 Early Termination and Early Termination
Fee. Borrower may elect to terminate this Agreement at any
time. Borrower hereby agrees that in the event that Lender or
Borrower elects to terminate this Agreement (including,
without limitation, any termination by Lender as a result of
the occurrence of any Event of Default under this Agreement),
Borrower will pay to Lender the total of the following: (a)
if such termination occurs prior to the last day of the
Revolving Credit Period, an early termination fee in the
amount of $15,000.00; (b) any amount of interest accrued
through the date of termination with respect to the
outstanding Borrower's Obligations; and (c) the Outstanding
Borrower's Obligations.
2. Pursuant to Borrower's request, Lender hereby waives payment
of the anniversary fee required to be paid by Borrower on October 29, 1998,
pursuant to Section 2.08 of the Loan Agreement. This paragraph is not and shall
not be construed as (a) a waiver of any of the other terms, provisions,
conditions or covenants contained in the Loan Agreement, including, without
limitation, payment of any subsequent anniversary fee payable under Section
2.08 of the Loan Agreement or (b) a commitment on the part of Lender to waive
any future anniversary fee or other fee or payment required to be paid by
Borrower under the Loan Agreement.
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3. Borrower hereby agrees to reimburse Lender upon demand for
all out-of-pocket costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by Lender in the preparation,
negotiation and execution of this Amendment and any and all other agreements,
documents, instruments and/or certificates relating to the amendment of
Borrower's existing credit facilities with Lender (collectively, the "Loan
Documents"). Borrower further agrees to pay or reimburse Lender for (a) any
stamp or other taxes (excluding income or gross receipts taxes) which may be
payable with respect to the execution, delivery, filing and/or recording of the
Loan Documents and (b) the cost of any filings and searches, including, without
limitation, Uniform Commercial Code filings and searches. All of the
obligations of Borrower under this paragraph shall survive the payment of the
Borrower's Obligations and the termination of the Loan Agreement.
4. All references in the Loan Agreement to "this Agreement" and
any other references of similar import shall henceforth mean the Loan Agreement
as amended by this Agreement.
5. Except to the extent specifically amended by this Amendment,
all of the terms, provisions, conditions, covenants, representations and
warranties contained in the Loan Agreement shall be and remain in full force
and effect and the same are hereby ratified and confirmed.
6. This Amendment shall be binding upon and inure to the benefit
of Borrower and Lender and their respective successors and assigns, except that
Borrower may not assign, transfer or delegate any of its rights or obligations
under the Loan Agreement as amended by this Amendment.
7. Borrower hereby represents and warrants to Lender that:
(a) the execution, delivery and performance by Borrower
of this Amendment are within the corporate powers of Borrower, have
been duly authorized by all necessary corporate action and require no
action by or in respect of, consent of or filing or recording with,
any governmental or regulatory body, agency or official or any other
Person;
(b) the execution, delivery and performance by Borrower
of this Amendment do not conflict with, or result in a breach of the
terms, conditions or provisions of, or constitute a default under or
result in any violation of, the terms of the Certificate or Articles
of Incorporation or By-Laws of Borrower, any applicable law, rule,
regulation, order, writ, judgment or decree of any court or
governmental or regulatory agency or instrumentality or any agreement,
document or instrument to which Borrower is a party or by which
Borrower or any of its Property or assets is bound or to which
Borrower or any of its Property or assets is subject;
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(c) this Amendment has been duly executed and delivered
by Borrower and constitutes the legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms,
except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(d) all of the representations and warranties of
Borrower set forth in the Loan Agreement and the other Transaction
Documents are true and correct in all material respects on and as of
the date of this Amendment as if made on and as of the date of this
Amendment; and
(e) as of the date of this Amendment, no Default or
Event of Default under or within the meaning of the Loan Agreement has
occurred and is continuing.
8. In the event of any inconsistency or conflict between this
Amendment and the Loan Agreement, the terms, provisions and conditions
contained in this Amendment shall govern and control.
9. This Amendment shall be governed by and construed in
accordance with the substantive laws of the State of Missouri (without
reference to conflict of law principles).
10. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND LENDER FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER AND
LENDER COVERING SUCH MATTERS ARE CONTAINED IN THE LOAN AGREEMENT AS AMENDED BY
THIS AMENDMENT AND THE OTHER TRANSACTION DOCUMENTS, WHICH LOAN AGREEMENT AS
AMENDED BY THIS AMENDMENT AND OTHER TRANSACTION DOCUMENTS ARE A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN BORROWER AND LENDER, EXCEPT AS
BORROWER AND LENDER MAY LATER AGREE IN WRITING TO MODIFY THEM.
11. Notwithstanding any provision contained in this Amendment to
the contrary, this Amendment shall not be effective unless and until Lender
shall have received:
(a) this Amendment, duly executed by Borrower; and
(b) a Secretary's Certificate certifying as to duly adopted
resolutions of the Board of Directors of Borrower which authorize the
execution, delivery and performance
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of this Amendment and containing any incumbency certificate, which shall
identify by name and title and bear the signatures of all of the officers of
Borrower executing this Amendment.
IN WITNESS WHEREOF, Borrower and Lender have executed this First
Amendment to Loan Agreement as of the date first set forth above.
INTERLOTT TECHNOLOGIES, INC.
By
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Title:
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MERCANTILE BUSINESS CREDIT INC.
By
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Title:
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SECRETARY'S CERTIFICATE
I, Xxxx X. Xxxx , hereby certify to Mercantile Business Credit Inc.
("Mercantile") that I am the duly elected, qualified and acting Secretary of
INTERLOTT TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and as
such have charge of the corporate books and records of the Company.
I further certify to Mercantile as follows:
1. There have been no amendments or other changes to the
Certificate of Incorporation or Bylaws of the Company since October 29, 1997.
2. Exhibit A attached hereto and made a part hereof is a true,
correct and complete copy of certain resolutions duly adopted by the Board of
Directors of the Company effective as of October 29, 1998, in accordance with
the laws of the State of Delaware and the Certificate of Incorporation and
Bylaws of the Company and that such resolutions are on the date hereof still in
full force and effect.
3. The following named individuals are duly elected officers of
the Company and hold the offices opposite their respective names, and that the
signatures written opposite each name and title is such individual's correct
signature.
NAME OFFICE SIGNATURE
X. Xxxxxx Xxxxx Chairman
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Xxxxx Xxxxxxx President
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Xxxx Xxxx Secretary
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Xxxxxx Xxxxxx V.P. Operations
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Xxxxxx Xxxxxx Chief Financial Officer
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Executed as of the 29th day of October, 1998.
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, Secretary
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