EXHIBIT 10.2.1
DELPHAX TECHNOLOGIES CANADA LIMITED
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (herein, the "Amendment") is
entered into as of December 18, 2002, by and among Delphax Technologies Canada
Limited, f/k/a Check Technology Canada Ltd., an Ontario corporation (the
"Borrower"), Delphax Technologies Inc., f/k/a Check Technology Corporation, a
Minnesota corporation (the "Parent"), as Parent and as a Guarantor (the Parent,
together with all Domestic Subsidiaries in existence from time to time being
hereinafter referred to collectively as the "Guarantors" and each such entity
individually as a "Guarantor"), and Xxxxxx Trust and Savings Bank ("HTSB"), as
sole Lender and as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent").
PRELIMINARY STATEMENTS
A. HTSB currently extends credit to the Borrower on the terms and
conditions set forth in that certain Credit Agreement dated as of December 20,
2001 by and among the Borrower, the Parent, and HTSB as sole Lender and as
Administrative Agent (the "Credit Agreement"). All capitalized terms used herein
without definition shall have the same meanings herein as such terms have in the
Credit Agreement. Unless stated otherwise herein, all references to the
"Lenders" shall be deemed to be references to HTSB in its capacity as sole
Lender, together with any of its successors or assigns.
B. HTSB, the Borrower, and the Parent are parties to an Amended and
Restated Forbearance Agreement dated as of October 16, 2002 (the "Forbearance
Agreement") pursuant to which HTSB has agreed to forbear from exercising certain
rights arising as a result of the existence of certain Events of Default under
the Credit Agreement through the period ending December 18, 2002.
C. The Borrower has requested that HTSB permanently waive the Events
of Default referred to in the Forbearance Agreement, and enter into certain
amendments to the Credit Agreement, and HTSB has agreed to do so, all on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. WAIVER.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Lenders hereby waive following violations of the of Credit
Agreement: the violation of Section 8.21 (Total Funded Debt/EBITDA Ratio) for
the quarters ended June 30, 2002 and September 30, 2002, the violation of
Section 8.22 (Net Worth) for the quarter ended September 30, 2002, and the
violation of Section 8.23 (Fixed Charge Coverage Ratio) for the quarter ended
September 30, 2002, as well the Borrower's non-compliance as of July 31, 2002
and August 31, 2002 with the requirements of Section 1.2 that the sum of the
aggregate principal amount of
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Revolving Loans and L/C Obligations at any time outstanding shall not exceed the
lesser of (i) the Revolving Credit Commitments in effect at such time and (ii)
the Borrowing Base as then determined and computed, and the requirements of
Section 1.9(b)(v), which requires an immediate repayment of the Obligations to
the extent necessary to eliminate any excess of the sum of the Revolving Loans
and L/C Obligations over the Borrowing Base; and the Lenders hereby waive any
Default or Event of Default which could or would otherwise result from such
violations.
SECTION 2. AMENDMENTS.
Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Credit Agreement shall be and hereby is amended as follows:
2.1. The first paragraph of Section 1.4(a) of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
(a) Base Rate Loans. Each Base Rate Loan made or
maintained by a Lender shall bear interest during each
Interest Period it is outstanding (computed on the basis of a
year of 360 days, and the actual days elapsed) on the unpaid
principal amount thereof from the date such Loan is advanced,
continued or created by conversion from a Eurodollar Loan
until maturity (whether by acceleration or otherwise) at a
rate per annum equal to the sum of 1.0% per annum plus the
Base Rate from time to time in effect, payable on the last day
of its Interest Period and at maturity (whether by
acceleration or otherwise).
2.2. The first paragraph of Section 1.4(b) of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
(b) Eurodollar Loans. Each Eurodollar Loan made or
maintained by a Lender shall, subject to the provisions of
Section 1.4(d) hereof, bear interest during each Interest
Period it is outstanding (computed on the basis of a year of
360 days and actual days elapsed) on the unpaid principal
amount thereof from the date such Loan is advanced, continued
or created by conversion from a Base Rate Loan until maturity
(whether by acceleration or otherwise) at a rate per annum
equal to the sum of 4.0% per annum plus the Adjusted LIBOR
applicable for such Interest Period, payable on the last day
of the Interest Period and at maturity (whether by
acceleration or otherwise), and, if the applicable Interest
Period is longer than three months, on each day occurring
every three months after the commencement of such Interest
Period.
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2.3. The Credit Agreement is hereby amended by adding a new Section
1.4(f) immediately following Section 1.4(e), to read in its entirety as follows:
(f) Pricing Reduction. If the Total Funded Debt to
EBITDA Ratio as of the end of any fiscal quarter of the Parent
is 2.50 to 1.0 or less as calculated by the Parent in its
quarterly compliance certificate delivered pursuant to Section
8.5(l), the interest rate margins set forth in Sections 1.4(a)
and 1.4(b) hereof and the periodic letter of credit fee (but
not the issuance fee) set forth in Section 2.1(b) hereof shall
each be reduced by 1.0% per annum and pricing shall be
maintained at such reduced rate until such time as the Parent
is no longer able to demonstrate in such required quarterly
compliance certificate that the Total Funded Debt to EBITDA
Ratio as of the end of the most recent fiscal quarter has been
maintained at 2.50 to 1.0 or less (or until such time, if
sooner, as the Parent fails to timely deliver such required
quarterly compliance certificate).
2.4. Section 1.8(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(a) Scheduled Payments of Term Loans. The Borrower
shall make principal payments on the Term Loans in
installments on the last day of each March, June, September,
and December in each year, commencing with the calendar
quarter ending December 31, 2002, with the amount of each such
principal installment to equal the amount set forth in Column
B below shown opposite of the relevant due date as set forth
in Column A below:
COLUMN A COLUMN B
SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENT ON TERM LOANS
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12/31/02 $250,000
03/31/03 $250,000
06/30/03 $250,000
09/30/03 $250,000
12/31/03 Balance of term loans
, it being agreed that the final payment of both principal and
interest not sooner paid on the Term Loans shall be due and
payable on December 31, 2003, the final maturity thereof. Each
such principal payment shall be applied to the Lenders holding
the Term Loans pro rata based upon their Term Loan
Percentages.
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2.5. Section 1.13(b)(ii) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(ii) Scheduled. The aggregate Revolving Credit
Commitments of the Lenders shall be permanently reduced to
$11,500,000 effective on January 1, 2003, and further
permanently reduced to $10,500,000 effective on July 1, 2003.
2.6. Section 2.1(b) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(b) Letter of Credit Fees. On the date of issuance or
extension, or increase in the amount, of any Standby Letter of
Credit pursuant to Section 1.3 hereof, the Borrower shall pay
to the L/C Issuer for its own account an issuance fee equal to
0.125% of the face amount of (or of the increase in the face
amount of) such Letter of Credit. Quarterly in arrears, on the
last day of each March, June, September, and December,
commencing on the first such date occurring after the date
hereof, the Borrower shall pay to the Administrative Agent,
for the ratable benefit of the Lenders in accordance with
their Revolver Percentages, a letter of credit fee at the rate
of 4.0% per annum (computed on the basis of a year of 360 days
and the actual number of days elapsed) in effect during each
day of such quarter applied to the daily average face amount
of Letters of Credit outstanding during such quarter. In
addition, the Borrower shall pay to the L/C Issuer for its own
account the L/C Issuer's standard issuance fees for commercial
letters of credit and standard drawing, negotiation,
amendment, and other administrative fees for each Letter of
Credit. Such standard fees referred to in the preceding
sentence may be established by the L/C Issuer from time to
time.
2.7. The definition of "Borrowing Base" set forth in Section 5.1 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Borrowing Base" means, as of any time it is to be
determined, the sum of:
(a) 85% of the then outstanding unpaid amount of
Eligible Receivables (other than Insured Receivables); plus
(b) 80% of the then outstanding unpaid amount of
Eligible Receivables which are Insured Receivables; plus
(c) the lesser of (x) $7,000,000 and (y) 50% of the
value (computed at the lower of market or cost using the
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first-in/first-out method of inventory valuation applied in
accordance with GAAP) of Eligible Inventory;
provided that (i) the Borrowing Base shall be computed only as
against and on so much of the Collateral as is included on the
Borrowing Base Certificates furnished from time to time by the
Borrower pursuant to the terms hereof and, if required by the
Administrative Agent or the Required Lenders pursuant to any
of the terms hereof or any Collateral Document, as verified by
such other evidence reasonably required to be furnished to the
Administrative Agent or the Lenders pursuant hereto or
pursuant to any such Collateral Document, and (ii) the
Administrative Agent shall have the right to reduce the
advance rates against and to establish appropriate reserves
with respect to Eligible Receivables or Eligible Inventory and
to reduce the dollar cap on Eligible Inventory in the
reasonable exercise of its discretion based on the results of
any field audit of any Collateral which reasonably supports
any such reduction or establishment.
2.8. Clause (i) of the definition of "Eligible Receivables" set forth
in Section 5.1 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
(i) the account debtor is principally located in
Canada (excluding Quebec) or the continental United States
unless such Receivable (x) is secured by an irrevocable letter
of credit issued by a commercial bank located in the United
States and which is on terms and conditions acceptable to the
Administrative Agent, or (y) is insured under a policy of
account receivable insurance issued in favor of the
Administrative Agent for the benefit of the Lenders by an
insurer acceptable to the Administrative Agent and on terms
and conditions acceptable to the Administrative Agent (each
Eligible Receivable covered by such insurance an "Insured
Receivable");
2.9. Section 5.1 of the Credit Agreement is hereby amended by adding
each of the following new definitions in its appropriate place in the
alphabetical sequence:
"Insured Receivable" is defined within the definition
of "Eligible Receivable" set forth in Section 5.1 hereof.
"Total Capitalization" means, at any time the same is
to be determined, the sum of Total Funded Debt plus Net Worth.
2.10. The definition of "Revolving Credit Termination Date" set forth
in Section 5.1 of the Credit Agreement is hereby amended and restated to read in
its entirety as follows:
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"Revolving Credit Termination Date" means December
31, 2003, or such earlier date on which the Revolving Credit
Commitments are terminated in whole pursuant to Section 1.13,
9.2 or 9.3 hereof.
2.11. Section 8.5(a) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(a) by Monday of each week during the term of this
Agreement, a Borrowing Base Certificate showing the
computation of the Borrowing Base in reasonable detail as of
the close of business on the previous Friday, prepared by the
Parent and certified to by its chief financial officer or
another officer of the Parent acceptable to the Administrative
Agent;
2.12. Section 8.5(l) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(l) with each of the financial statements furnished
to the Lenders pursuant to subsections (c) and (d) above, a
written certificate in the form attached hereto as Exhibit F
signed by the chief financial officer of the Parent, or
another officer of the Parent acceptable to the Administrative
Agent, to the effect that to the best of such officer's
knowledge and belief no Default or Event of Default has
occurred during the period covered by such statements or, if
any such Default or Event of Default has occurred during such
period, setting forth a description of such Default or Event
of Default and specifying the action, if any, taken by the
Parent, the Borrower or any Subsidiary to remedy the same.
Such certificate shall also set forth the calculations
supporting such statements in respect of Sections 1.4(f),
8.21, 8.22, 8.23, 8.24 and 8.26 of this Agreement.
2.13. Section 8.21 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
Section 8.21. Funded Debt to Capitalization Ratio. As
of the last day of each fiscal quarter of the Parent ending
during the periods set forth below, the Parent shall not
permit the ratio of Total Funded Debt to Total Capitalization
to be more than:
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TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION RATIO SHALL
FROM AND INCLUDING TO AND INCLUDING NOT BE GREATER THAN:
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the date hereof 12/31/2002 0.53 to 1.0
1/1/03 3/31/03 0.54 to 1.0
4/1/03 6/30/03 0.51 to 1.0
7/1/03 9/30/03 0.47 to 1.0
10/1/03 and at all times 0.45 to 1.0
thereafter
2.14. Section 8.22 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
Section 8.22. Net Worth. The Parent shall, at all times
during the term of this Agreement, maintain Net Worth of the
Parent and the Subsidiaries determined on a consolidated basis
in an amount not less than the sum of (a) $14,750,000 plus (b)
50% of Net Income (without deduction for losses) for each
fiscal quarter of the Parent commencing with the fiscal
quarter ending December 31, 2002.
2.15. Section 8.23 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
Section 8.23. Interest Coverage Ratio. As of the last
day of each fiscal quarter of the Parent ending during the
periods set forth below, the Parent shall maintain a ratio of
(a) EBITDA for the four fiscal quarters of the Parent then
ended, to (b) cash Interest Expense for the same four fiscal
quarters then ended of not less than the following:
INTEREST COVERAGE
FROM AND RATIO SHALL NOT BE
INCLUDING TO AND INCLUDING LESS THAN:
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4/1/03 6/30/03 1.50 to 1.0
7/1/03 and at all times 2.50 to 1.0
thereafter
2.16. The Credit Agreement is hereby amended by adding a new Section
8.26 immediately following Section 8.25 thereof, to read in its entirety as
follows:
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Section 8.26. Minimum EBITDA. The Parent shall not, as
of the last day of each fiscal quarter of the Parent ending on
the dates specified below, permit EBITDA of the Parent for
such fiscal quarter then ended to be less than:
EBITDA FOR SUCH FISCAL QUARTER
FISCAL QUARTER ENDING SHALL NOT BE LESS THAN:
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December 31, 2002 $ (945,000)
March 31, 2003 $ 475,000
June 30, 2003 $1,700,000
September 30, 2003 $1,450,000
December 31, 2003 $1,045,000
2.17. Section 9.1(b) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
(b) default in the observance or performance of any
covenant set forth in Sections 8.1, 8.5, 8.7, 8.8, 8.9, 8.10,
8.11, 8.12, 8.16, 8.19, 8.21, 8.22, 8.23, 8.24 or 8.26 hereof
or of any provision in any Loan Document dealing with the use,
disposition or remittance of the proceeds of Collateral or
requiring the maintenance of insurance thereon;
2.18. The references to the Commitments on the signature page of HTSB
to the Credit Agreement shall be amended and restated in their entirety to read
as follows:
Revolving Credit Commitment $12,500,000
2.19 Exhibit E to the Credit Agreement is hereby amended and restated
to read as set forth in the revised Exhibit E attached hereto.
2.20. Exhibit F to the Credit Agreement is hereby amended by deleting
Schedule I thereto and replacing it with a new Schedule I to read in its
entirety as set forth in Schedule I attached hereto.
SECTION 3. CONDITIONS PRECEDENT.
This Amendment shall become effective as of the date first above
written upon the satisfaction of all of the following conditions precedent:
3.1. The Borrower, the Parent and the Lenders shall have
executed and delivered this Amendment.
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3.2. Legal matters incident to the execution and delivery of
this Amendment and the other documents delivered in connection herewith
shall be satisfactory to the Agent and its counsel.
3.3. The Borrower shall pay to HTSB a non-refundable amendment
fee in the amount of 0.50% of the sum of the Revolving Credit
Commitments and the outstanding principal amount of Term Loans on the
effective date hereof, such fee to be fully earned on such effective
date and payable in two equal installments, the first due and payable
on such effective date and the second due and payable on September 30,
2003.
3.4. The Parent, the Agent and Xxxxx Fargo Bank Minnesota,
N.A. ("Xxxxx Fargo") shall have entered into an account control
agreement in form and substance satisfactory to the Agent giving the
Agent, for the benefit of the Lenders, a perfected security interest in
all deposit accounts of the Parent with Xxxxx Fargo.
SECTION 4. REPRESENTATIONS.
In order to induce HTSB to execute and deliver this Amendment, each of
the Parent and the Borrower hereby represents to the Lenders that as of the date
hereof, and after giving effect to this Amendment, the representations and
warranties set forth in Section 6 of the Credit Agreement are and shall be and
remain true and correct (except that the representations contained in Section
6.5 shall be deemed to refer to the most recent financial statements of the
Parent and the Subsidiaries delivered to the Lenders) and the Parent and the
Borrower are in compliance with the terms and conditions of the Credit Agreement
and, other than the Events of Default waived by Section 1 hereof, no Default or
Event of Default has occurred and is continuing under the Credit Agreement or
shall result after giving effect to this Amendment.
SECTION 5. MISCELLANEOUS.
5.1. The Borrower and the Parent have heretofore or concurrently
herewith executed and delivered to the Lenders the Security Agreements, the
Pledge Agreement and certain other Collateral Documents. The Borrower and the
Parent hereby acknowledge and agree that the Liens created and provided for by
the Collateral Documents continue to secure, among other things, the Obligations
arising under the Credit Agreement as amended hereby; and the Collateral
Documents and the rights and remedies of the Lenders thereunder, the obligations
of the Borrower and the Parent thereunder, and the Liens created and provided
for thereunder remain in full force and effect and shall not be affected,
impaired or discharged hereby. Nothing herein contained shall in any manner
affect or impair the priority of the liens and security interests created and
provided for by the Collateral Documents as to the indebtedness which would be
secured thereby prior to giving effect to this Amendment. Without limiting the
foregoing, the Parent confirms that its guaranty set forth in Section 12 of the
Credit Agreement, and all of the obligations of the Parent thereunder, remain in
full force and effect.
5.2. Except as specifically amended herein, the Credit Agreement shall
continue in full force and effect in accordance with its original terms.
Reference to this specific Amendment
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need not be made in the Credit Agreement, the Notes, or any other instrument or
document executed in connection therewith, or in any certificate, letter or
communication issued or made pursuant to or with respect to the Credit
Agreement, any reference in any of such items to the Credit Agreement being
sufficient to refer to the Credit Agreement as amended hereby.
5.3. The Borrower agrees to pay on demand all reasonable costs and
expenses of the Agent in connection with the negotiation, preparation, execution
and delivery of this Amendment and the other instruments and documents
contemplated hereby, including the reasonable fees and expenses of counsel for
the Agent.
5.4. This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of
Illinois.
[SIGNATURE PAGE TO FOLLOW]
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This First Amendment to Credit Agreement is entered into as of the date
and year first above written.
DELPHAX TECHNOLOGIES CANADA LIMITED
(f/k/a Check Technology Canada Ltd.), as
Borrower
By
Name
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Title
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DELPHAX TECHNOLOGIES INC. (f/k/a Check
Technology Corporation), as Parent and as a
Guarantor
By
Name
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Title
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Accepted and agreed to.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as sole Lender and as
Administrative Agent
By
Name
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Title
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