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EXHIBIT 10.17
FOURTH AMENDMENT TO LETTER OF CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO LETTER OF CREDIT AGREEMENT (this "Amendment")
is made and entered into as of December 1, 1996 by and between INNOVATIVE
GAMING, INC., a Nevada corporation and successor by merger to Innovative Gaming,
Inc., a Minnesota corporation (collectively, the "Borrower") and FIRST BANK
NATIONAL ASSOCIATION, a national banking association (the "Bank").
RECITALS
1. The Bank and the Borrower have entered. into a Letter of Credit
Agreement dated as of October 26, 1993, as amended by that Amendment to Letter
of Credit Agreement dated as of October 28, 1993, by that Second Amendment to
Letter of Credit Agreement dated as of October 31, 1994 and by that Third
Amendment to Letter of Credit Agreement and Amendment to Pledge Agreement dated
as of November 22, 1995 (as amended, the "Credit Agreement");
2. The obligations and indebtedness of the Borrower to the Bank are
secured, inter alia, by that Pledge Agreement dated as of October 26, 1993 by
the Borrower in favor of the Bank, as amended by that Third Amendment to Letter
of Credit Agreement and Amendment to Pledge Agreement dated as of November 22,
1995 (as amended, the "Pledge Agreement"); and
3. The Borrower has requested the Bank to amend certain provisions of
the Credit Agreement and the Bank has agreed to do so, subject to the terms and
conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2. Amendment to Credit Agreement. The Credit Agreement is
hereby amended as follows:
2.1 Definitions. Section 1.1 of the Credit Agreement is
amended by amending the definitions of "Commitment Amount." "Commitment Ending
Date" and "Maturity Date" in their entireties as follows:
"Commitment Amount": $900,000.00, or such greater amount but
only to the extent
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arising from changes in foreign exchange rates for Japanese
yen causing the value of the Letters of Credit (if denominated in Japanese yen)
in equivalent United States dollars to exceed $900,000.00.
"Commitment Ending Date": The earlier of May 13, 1997 and the
Termination Date.
"Maturity Date": May 13, 1997.
2.2 Letters of Credit Commitment. Section 2.1 of the Credit Agreement
is amended in its entirety as follows:
Section 2.1 Letters of Credit. Upon the terms and
subject to the conditions of this Agreement, the Bank agrees
to issue Letters of Credit for the account of the Company from
time to time between the Closing Date and the Commitment
Ending Date in such amounts as the Company shall request up to
an aggregate amount at any time outstanding not exceeding
$900,000.00; provided that no Letter of Credit will be issued
in any amount which, after giving effect to such issuance,
would cause Total Outstandings to exceed the Commitment
Amount.
2.3. Commitment Fee. Section 2.9 of the Credit Agreement is amended in
its entirety as follows:
Section 2.9. Commitment Fee. The Company shall pay to
the Bank a commitment fee (the "Commitment Fee") (a) for the
period from the Closing Date through November 15, 1995 in the
amount of $30,000 per annum, payable in quarterly installments
of $7,500 each on each of the Closing Date, January 1, 1994,
April 1, 1994, July 1, 1994, October 27, 1994, January 1,
1995, April 1, 1995, July 1, 1995; (b) an upfront Commitment
Fee for the period of November 22, 1995 through November 30,
1996 in the amount of $5,420; and (c) an upfront Commitment
Fee for the period of December 1, 1996 through the Commitment
Ending Date in the amount of $9,000. In the event that the
Bank agrees to extend the expiration of any Letter of Credit
pursuant to Section 2.3, the Company shall pay to the Bank an
upfront pro rated fee for the period of such extension, based
upon an annual fee equal to one percent (1%) of the Commitment
Amount.
2.4 Section 2.11 of the Credit Agreement is amended in its entirety as
follows:
Section 2.11 Additional Collateral; Substituted
Collateral.
(a) The Company acknowledges the Letters of Credit may be denominated
in Japanese yen rather than United States dollars. If at any time, due to
changes in foreign currency exchange rates, the value of the Letters of Credit
exceeds, as determined by the Bank in its sole discretion, $900,000, the
Company agrees to pledge and deliver additional collateral to the Bank so that
the value of collateral pledged pursuant to the Pledge Agreement and in which
the Bank has otherwise been granted a security interest in equal to or greater
than the value of the Letters of Credit in equivalent United States dollars, as
determined by the Bank in its sole discretion.
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(b) Subject expressly to the provisions of Section 2.11(a) regarding
the pledge and delivery of additional collateral on the terms set forth
therein, in the event that the Borrower determines to exercise an early
withdrawal of the Pledged Certificate of Deposit (as that term is defined in
the Pledge Agreement) prior to the earlier of the Commitment Ending Date and
the Final Maturity for the Pledged Certificate of Deposit (as set forth in
Schedule I to the Pledge Agreement), the Bank shall allow the Borrower to
substitute for the Pledged Certificate of Deposit cash or other cash
equivalents satisfactory to the Bank in its sole discretion, in an amount equal
to the greater of $900,000 or such amount as may be required by the Bank to be
pledged and delivered to the Bank pursuant to Section 2.11(a), as Collateral
for the Obligations (as those terms are defined in the Pledge Agreement).
Section 3. Effectiveness of Amendments. The amendments contained in
this Amendment shall become effective upon delivery to the Bank of, and
compliance by the Borrower with, the following:
3.1 This Amendment, duly executed by the Borrower;
3.2 The Consent of the Guarantor in the form of Exhibit A
hereto, duly executed by the Guarantor;
3.3 A certificate by the Secretary or Assistant Secretary of
the Borrower (i) certifying as to a copy of its Board of Directors'
resolution on which the Borrower's authority to execute, deliver and
perform this Amendment is based, (ii) certifying the bylaws of the
Borrower and attaching thereto true and correct copies of the Articles
of Incorporation and Articles of Merger and Plan of Merger of the
Borrower, certified as true and correct by the Nevada Secretary of
State, and of the Code of Bylaws of the Borrower, and (iii) identifying
each officer of the Borrower authorized to execute this Amendment and
certifying as to the specimens of such officer's signature and such
officer's incumbency in such offices as such officer holds;
3.4 A Certificate of Existences with Status in Good Standing,
issued by the Nevada Secretary of State; and
3.5 The Borrower shall have satisfied such other conditions as
reasonably specified by the Bank or counsel to the Bank.
Section 4. Representations: No Default. The Borrower hereby represents
and warrants that on and as of the date hereof and after giving effect to this
Amendment (a) all of the representations and warranties contained in the Credit
Agreement are true, correct and complete in all respects as of the date hereof
as though made on and as of such date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they are
true and correct as of such earlier date, and (b) there will exist on such date
no Default or Event of Default which has not been waived by the Bank. The
Borrower represents and warrants that the Borrower has the power and legal right
and authority to enter into this Amendment, and has duly authorized as
appropriate the execution and delivery of this Amendment by proper corporate
action, and neither this Amendment nor the agreements contained herein
contravene or constitute a default under any agreement, instrument or indenture
to which the Borrower is a party or a signatory or a provision of the Borrower's
articles of incorporation, bylaws or any other agreement or requirement of law
or result in the imposition of any Lien on any of its property
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under any agreement binding on or applicable to the Borrower or any of its
property except, if any, in favor of the Bank. The Borrower represents and
warrants that no consent, approval or authorization of or registration or
declaration with any person, including but not limited to any governmental
authority, is required in connection with the execution and delivery by the
Borrower of this Amendment or the performance of obligations of the Borrower
herein described. The Borrower represents and warrants that this Amendment is
the legal, valid and binding obligations of the Borrower, enforceable in
accordance with its terms. The Borrower warrants that no events have taken place
and no circumstances exist at the date hereof which would give the Borrower any
basis to assert a defense, offset or counterclaim to any claim of the Bank as to
the obligations under the Credit Agreement.
Section 5. Affirmation, Further References. The Bank and the Borrower
each acknowledge and affirm that the Credit Agreement and Pledge Agreement, as
hereby amended, are hereby ratified and confirmed in all respects, that all
terms, conditions and provisions of the Credit Agreement and Pledge Agreement,
except as amended by this Amendment, shall remain unmodified and in full force
and effect, and that the Credit Agreement, as hereby amended, continues to be
secured by the Pledge Agreement, as hereby amended. All references in any
document or instrument to the Credit Agreement and the Pledge Agreement are
hereby amended and shall refer to the Credit Agreement and the Pledge Agreement,
respectively, as amended by this Amendment. All references in the Credit
Agreement to the "Borrower" and all references in the Pledge Agreement to the
"Pledgor" shall, from and after April 10, 1996 be to Innovative Gaming, Inc., a
Nevada corporation and successor by merger to Innovative Gaming, Inc., a
Minnesota corporation, pursuant to those Articles of Merger and Plan of
Merger dated and effective as of April 10, 1996.
Section 6. Merger and Integration. Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof, and
supersedes and has merged into it all prior oral and written agreements on the
same subjects by and between the parties hereto with the effect that this
Amendment shall control with respect to the specific subjects hereof.
Section 7. Legal Expenses. As provided in Section 8.2 of the Credit
Agreement, the Borrower agrees to reimburse the Bank upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys fees and legal
expenses of Xxxxxx & Xxxxxxx, counsel for the Bank) incurred in connection with
the negotiation or preparation of this Amendment and all other documents
negotiated and prepared in connection with this Amendment and the Borrower
agrees to reimburse the Bank upon demand for all other reasonable expenses,
including attorneys' fees incurred as a result of or in connection with the
enforcement of the Credit Agreement as amended hereby, and including without
limitation, all expenses of collection of any loans made or to be made under the
Credit Agreement as amended hereby.
Section 8. Severabilitv. Each provision of this Amendment and any other
statement, instrument or transactions contemplated hereby or relating hereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any provision of this
Amendment or relating hereto or thereto shall be held to be prohibited, invalid
or unenforceable under the applicable law, such provision shall be ineffective
in such jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable the remainder
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of such provision or the remaining provisions of this Amendment or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness, validity
or enforceability of such provision in any such jurisdiction.
Section 9. Successors. This Amendment shall be binding upon the
Borrower and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Bank and the successors and assigns
of the Borrower and the Bank.
Section 10. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 11. Counterparts. This Amendment may be executed in several
counterparts, all or any of which shall be regarded as one and the same document
and either party to this Amendment may execute this Amendment by executing a
counterpart of this Amendment.
SECTION 12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF
LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE CAUSED THIS AMENDMENT TO BE EXECUTED
AS OF THE DATE AND year first above written.
INNOVATIVE GAMING, INC.
By: X. Xxxxxxxxxx
Its: CFO
FIRST BANK NATIONAL ASSOCIATION
By: Xxxxxxx Xxxxx
Its: Business Banking Officer
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EXHIBIT A TO FOURTH AMENDMENT TO
LETTER OF CREDIT AGREEMENT
CONSENT AND AGREEMENT BY GUARANTOR
This Consent and Agreement by Guarantor ("Consent") is made by
INNOVATIVE GAMING CORPORATION OF AMERICA, a Minnesota corporation
(hereinafter "Guarantor"), in favor of FIRST BANK NATIONAL
ASSOCIATION, a national banking association ("Bank") and is dated as
of December 1, 1996.
WHEREAS, Guarantor executed a Guaranty ("Guaranty") in favor of the
Bank and dated as of October 26, 1993 by which Guarantor guaranteed the
obligations of INNOVATIVE GAMING, INC., a Minnesota corporation (the "Borrower")
under that certain Letter of Credit Agreement dated as of October 26, 1993 by
and between the Borrower and the Bank, as amended by an Amendment to Letter of
Credit Agreement dated as of October 28, 1993, a Second Amendment to Letter of
Credit Agreement dated as of October 31, 1994 and a Third Amendment to Letter of
Credit Agreement and Amendment to Pledge Agreement dated as of November 22, 1995
(as amended, the "Credit Agreement");
WHEREAS, the Borrower desires to amend the Credit Agreement to extend
the Borrower's right to obtain letters of credit under the Credit Agreement;
WHEREAS, Guarantor desires to consent to such amendments; and
WHEREAS, the Bank has refused to execute a Fourth Amendment to Letter
of Credit Agreement of even date herewith unless Guarantor executes this
Consent,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce the Bank at its
option to amend certain provisions of the Credit Agreement, and in consideration
of its doing so, the undersigned, INNOVATING GAMING CORPORATION OF AMERICA, as
primary obligor, hereby acknowledges and consents to the amendments to the
Credit Agreement as provided under the Fourth Amendment to Letter of Credit
Agreement, and agrees that all obligations of the Borrower under the Credit
Agreement as amended by the Fourth Amendment to Letter of Credit Agreement are
subject to the Guaranty without any further amendment thereto.
Guarantor acknowledges that it has received a copy of the Fourth
Amendment to Letter of Credit Agreement executed by the Borrower.
Guarantor further acknowledges and agrees that this Consent shall not
in any way extinguish any of the obligations of the Guarantor under the
Guaranty, which obligations shall continue and shall not in any circumstances be
terminated, extinguished or discharged hereby, but the terms of such Guaranty
continue in full force and effect except as otherwise provided for by this
Consent.
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IN WITNESS WHEREOF, this Consent has been duly executed by the undersigned the
day and year first above written.
INNOVATIVE GAMING
CORPORATION OF AMERICA
By
Its __________________________________
