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EXHIBIT 10.21
FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This First Amendment, dated as of _______________, 1999, is made by and
among NU-KOTE HOLDING, INC., a Delaware corporation, NU-KOTE IMPERIAL, LTD., a
Delaware corporation, NU-KOTE INTERNATIONAL, INC., a Delaware corporation,
INTERNATIONAL COMMUNICATION MATERIALS, INC., a Pennsylvania corporation, NU-KOTE
IMAGING INTERNATIONAL, INC., a Delaware corporation, FUTURE GRAPHICS, INC., a
California corporation, and NU-KOTE LATIN AMERICA, INC., a Delaware corporation
(each a "Borrower" and together the "Borrowers"), and XXXXX FARGO BUSINESS
CREDIT, INC., a Minnesota corporation, formerly known as Norwest Business
Credit, Inc. (the "Lender").
Recitals
The Borrowers and the Lender have entered into a Credit and Security
Agreement dated as of December 14, 1998 (the "Credit Agreement"). All
capitalized terms used in these recitals shall have the meanings given to them
in the Credit Agreement.
The Borrowers have requested (i) that the Lender, in its sole
discretion, cause letters of credit to be issued for the Borrowers' account from
time to time in an amount not to exceed $1,500,000 at any one time outstanding,
(ii) that the Lender release its security interest in the Xaar License, (iii)
that the Capital Expenditures limitation be increased and (iv) that certain
financial covenant violations be waived. The Lender is willing to grant the
Borrowers' request subject to the terms of this First Amendment.
Accordingly, the Borrowers and the Lender hereby agree as follows:
1. Defined Terms. Capitalized terms used in this First Amendment which
are defined in the Credit Agreement shall have the same meanings as defined
therein, unless otherwise defined herein. In addition, Section 1.1 of the Credit
Agreement is amended as follows:
(a) Section 1.1 of the Credit Agreement is amended to add or substitute
the following definitions:
"'Collateral' means the Borrowers' Special Account, all of the
Borrowers' Equipment, General Intangibles (including any rights to
avoidance of transfers or recoveries of property or money under the
Bankruptcy Code), Inventory, Real Estate Collateral, Receivables,
Investment Property, all sums on deposit in any Collateral Account, and
any items in any Lockbox; together with (i) all substitutions and
replacements for and products of any of the foregoing; (ii) proceeds of
any and all of the foregoing; (iii) in the case of all tangible goods, all
accessions; (iv) all accessories, attachments, parts, equipment and
repairs now or hereafter attached or affixed to or
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used in connection with any tangible goods; and (v) all warehouse
receipts, bills of lading and other documents of title now or hereafter
covering such goods."
"'First Amendment' means this First Amendment to the Credit and
Security Agreement."
"'Issuer' means the issuer of any Letter of Credit."
"'L/C Amount' means the sum of (i) the aggregate face amount of any
issued and outstanding Letters of Credit and (ii) the unpaid amount of the
Obligation of Reimbursement."
"'L/C Application' means an application and agreement for Letters of
Credit in a form acceptable to the Issuer and the Lender."
"'Letter of Credit' has the meaning given in Section 2.13."
"'Obligation of Reimbursement' has the meaning given in Section
2.14(a)."
"'Obligations' means each and every debt, liability and obligation
of every type and description which the Borrowers may now or at any time
hereafter owe to the Lender, whether such debt, liability or obligation
now exists or is hereafter created or incurred, whether it arises in a
transaction involving the Lender alone or in a transaction involving other
creditors of the Borrowers, and whether it is direct or indirect, due or
to become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or sole, joint, several or joint and several, and including
specifically, but not limited to, all indebtedness of the Borrowers
arising under this Agreement or any L/C Application completed by the
Borrowers (including but not limited to the Note and the Obligation of
Reimbursement), or any other loan or credit agreement or guaranty between
the Borrowers and the Lender, whether now in effect or hereafter entered
into."
"'Prime Rate' means the rate publicly announced from time to time by
Xxxxx Fargo Bank, National Association as its "prime rate" or, if such
bank ceases to announce a rate so designated, any similar successor rate
designated by the Lender."
"'Special Account' means a specified cash collateral account
maintained by a financial institution acceptable to the Lender in
connection with Letters of Credit, as contemplated by Sections 2.14."
(b) The definition of "Base Rate" is deleted from Section 1.1 of the
Credit Agreement. All references to the Base Rate shall be deemed
references to the Prime Rate.
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2. Advances. The first paragraph of Section 2.1 of the Credit
Agreement is amended to read as follows:
"Section 2.1 Revolving Advances. The Lender agrees, on the terms and
subject to the conditions herein set forth, to make advances to the
Borrowers from time to time from the date all of the conditions set forth
in Section 4.1 are satisfied (the "Funding Date") to the Termination Date
(the "Revolving Advances"). The Lender shall have no obligation to make a
Revolving Advance if, after giving effect to such requested Revolving
Advance, the sum of the outstanding and unpaid Revolving Advances would
exceed the Borrowing Base less the L/C Amount. The Borrowers' obligation
to pay the Revolving Advances shall be evidenced by the Revolving Note and
shall be secured by the Collateral as provided in Article III. Within the
limits set forth in this Section 2.1, the Borrowers may borrow, prepay
pursuant to Section 2.6 and reborrow. The Borrowers agree to comply with
the following procedures in requesting Revolving Advances under this
Section 2.1."
3. Fees. The following new Sections 2.3(c) and 2.3(d) are added to
the Credit Agreement immediately after Section 2.3(b):
"(c) LETTER OF CREDIT FEES. The Borrowers agree to pay the Lender a
fee with respect to each Letter of Credit, if any, accruing on a daily
basis and computed at the annual rate of two percent (2%) of the aggregate
amount that may then be drawn on all issued and outstanding Letters of
Credit, assuming compliance with all conditions for drawing thereunder
(the "Aggregate Face Amount"), from and including the date of issuance of
such Letter of Credit until such date as such Letter of Credit shall
terminate by its terms or be returned to the Lender, due and payable
monthly in arrears on the first day of each month and on the Termination
Date; provided, however that during Default Periods, in the Lender's sole
discretion and without waiving any of its other rights and remedies, such
fee shall increase to four percent (4%) of the Aggregate Face Amount. The
foregoing fee shall be in addition to any and all fees, commissions and
charges of any Issuer of a Letter of Credit with respect to or in
connection with such Letter of Credit."
"(d) LETTER OF CREDIT ADMINISTRATIVE FEES. The Borrowers agree to
pay the Lender, on demand, the administrative fees charged by the Issuer
in connection with the honoring of drafts under any Letter of Credit,
amendments thereto, transfers thereof and all other activity with respect
to the Letters of Credit at the then-current rates published by the Issuer
for such services rendered on behalf of customers of the Issuer
generally."
4. Mandatory Prepayment. Section 2.8 of the Credit Agreement is
amended to read as follows:
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"Section 2.8 Mandatory Prepayment. Without notice or demand, if the
outstanding principal balance of the Revolving Advances plus the L/C
Amount shall at any time exceed the Borrowing Base, the Borrowers shall
(i) immediately prepay the Revolving Advances to the extent necessary to
eliminate such excess; and (ii) if prepayment in full of the Revolving
Advances is insufficient to eliminate such excess, pay to the Lender in
immediately available funds for deposit in the Special Account an amount
equal to the remaining excess. Any payment received by the Lender under
this Section 2.8 or under Section 2.6 may be applied to the Obligations,
in such order and in such amounts as the Lender, in its discretion, may
from time to time determine."
5. Letter of Credit Provisions. The following new Sections are added
to the Credit Agreement at the end of Article II:
"Section 2.13 Issuance of Letters of Credit.
(a) The Lender may, in its sole discretion, cause to be issued
by an Issuer one or more letters of credit for the account of the
Borrowers (each a "Letter of Credit") from time to time during the
period from the date of the First Amendment until the earlier of the
date the Lender demands payment of the Revolving Advances or the
Termination Date, in an aggregate amount at any time outstanding not
to exceed the lesser of:
(i) $1,500,000 less the L/C Amount, or
(ii) the Borrowing Base less the sum of (A) all
outstanding and unpaid Advances hereunder and (B) the L/C
Amount.
Each Letter of Credit, if any, shall be issued pursuant to a
separate L/C Application entered into by the Borrowers and the
Lender as co-applicants for the benefit of the Issuer, completed in
a manner satisfactory to the Lender and the Issuer. The terms and
conditions set forth in each such L/C Application shall supplement
the terms and conditions hereof, but in the event of inconsistency
between the terms of any such L/C Application and the terms hereof,
the terms hereof shall control.
(b) No Letter of Credit shall be issued with an expiry date
later than December 14, 2000.
(c) Any request for the issuance of a Letter of Credit under
this Section 2.13 shall be deemed to be a representation by each
Borrower that the statements set forth in Section 4.2 hereof are
correct as of the time of the request.
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"Section 2.14 Payment of Amounts Drawn Under Letters of Credit;
Obligation of Reimbursement. The Borrowers acknowledge that the Lender, as
co-applicant, will be liable to the Issuer of any Letter of Credit for
reimbursement of any and all draws thereunder and all other amounts
required to be paid under the applicable L/C Application. Accordingly, the
Borrowers agree to pay to the Lender any and all amounts required to be
paid under the applicable L/C Application, when and as required to be paid
thereby, and the amounts designated below, when and as designated:
(a) The Borrowers hereby agree to pay the Lender on the day a
draft is honored under any Letter of Credit a sum equal to all
amounts drawn under such Letter of Credit plus any and all
reasonable charges and expenses that the Issuer or the Lender may
pay or incur relative to such draw, plus interest on all such
amounts, charges and expenses as set forth below (all such amounts
are hereinafter referred to, collectively, as the "Obligation of
Reimbursement").
(b) The Borrowers hereby agree to pay the Lender on demand
interest on all amounts, charges and expenses payable by the
Borrowers to the Lender under this Section 2.14, accrued from the
date any such draft, charge or expense is paid by the Issuer until
payment in full by the Borrowers at the Revolving Floating Rate.
If the Borrowers fail to pay to the Lender promptly the amount of
their Obligation of Reimbursement in accordance with the terms
hereof and the L/C Application pursuant to which such Letter of
Credit was issued, the Lender is hereby irrevocably authorized and
directed, in its sole discretion, to make a Revolving Advance in an
amount sufficient to discharge the Obligation of Reimbursement,
including all interest accrued thereon but unpaid at the time of
such Revolving Advance, and such Revolving Advance shall be
evidenced by the Revolving Note and shall bear interest as provided
in Section 2.4 hereof."
"Section 2.15 Special Account. If a plan of reorganization is
confirmed, if the Lender terminates this Credit Facility pursuant to
Section 2.7 or this Credit Facility is otherwise terminated for any reason
whatsoever, while any Letter of Credit is outstanding, the Borrowers shall
thereupon pay the Lender in immediately available funds for deposit in the
Special Account an amount equal to the maximum aggregate amount available
to be drawn under all Letters of Credit then outstanding, assuming
compliance with all conditions for drawing thereunder. The Special Account
shall be maintained for the Lender by any financial institution acceptable
to the Lender. Any interest earned on amounts deposited in the Special
Account shall be credited to the Special Account. Amounts on deposit in
the Special Account may be applied by the Lender at any time or from time
to time to the Borrowers' Obligation of Reimbursement or any other
Obligations, in the Lender's sole discretion, and shall not be subject to
withdrawal by the Borrowers so long as the Lender maintains a security
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interest therein. The Lender agrees to transfer any balance in the Special
Account to the Borrowers at such time as the Lender is required to release
its security interest in the Special Account under applicable law."
"Section 2.16 Obligations Absolute. The obligations of the Borrowers
arising under Section 2.14 shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement, under all circumstances whatsoever, including (without
limitation) the following circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit or any other agreement or instrument relating to any Letter
of Credit (collectively the "Related Documents");
(b) any amendment or waiver of or any consent to departure
from all or any of the Related Documents;
(c) the existence of any claim, setoff, defense or other right
which the Borrowers may have at any time, against any beneficiary or
any transferee of any Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be acting),
or other person or entity, whether in connection with this
Agreement, the transactions contemplated herein or in the Related
Documents or any unrelated transactions;
(d) any statement or any other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(e) payment by or on behalf of the Issuer or the Lender under
any Letter of Credit against presentation of a draft or certificate
which does not strictly comply with the terms of such Letter of
Credit; or
(f) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing."
6. Pledge of Special Account and Collateral Account. The following
new Section 3.8 is added at the end of Article III:
"Section 3.8 Security Interest in Special Account. Each Borrower
hereby pledges, and grants to the Lender a security interest in, all funds
held in the Special Account from time to time and all proceeds thereof, as
security for the payment of all Obligations."
7. Conditions Precedent to Each Advance and Each Letter of Credit.
Section 4.2 of the Credit Agreement is amended to read as follows:
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"Section 4.2 Conditions Precedent to the Lender's Willingness to
Consider Making All Advances and Causing All Letters of Credit to be
Issued. The Lenders obligation to make each Advance or issue any Letter of
Credit shall be subject to the further conditions that on such date:
(a) the representations and warranties contained in Article V
hereof are correct on and as of such date as though made on and as
of such date, except to the extent that such representations and
warranties relate solely to an earlier date;
(b) no event has occurred and is continuing, or would result
from such Advance or the issuance of such Letter of Credit, as the
case may be, which constitutes a Default or an Event of Default; and
(a) no Bankruptcy Court order is entered (i) authorizing the
Borrowers to obtain financing or credit pursuant to section 364 of
the Bankruptcy Code from any Person other than the Lender secured by
a security interest or a Superpriority Claim unless such security
interest and administrative claim are junior to the Security
Interest and the Lender's Superpriority Claim, as the case may be or
will be paid off from the Initial Advance; or (ii) providing
adequate protection to any Person under sections 361 through 364 of
the Bankruptcy Code by granting a security interest in any of the
Collateral unless such security interest is junior to the Security
Interest save and except for the claims against Hewlett-Packard
Company."
8. Capital Expenditures. Section 7.13 of the Credit Agreement is
amended to read as follows:
"Section 7.13 Capital Expenditures. The Borrowers will not incur or
contract to incur, as of each fiscal year-to-date period described below,
Capital Expenditures of more than the aggregate amount set forth opposite
such period:
---------------------------------------------------
Fiscal Year-to-Date Maximum
------------------- -------
Period Ending Capital Expenditures
------------- --------------------
---------------------------------------------------
June 30, 1999 $ 512,500
---------------------------------------------------
September 30, 1999 $1,025,000
---------------------------------------------------
December 31, 1999 $1,537,500
---------------------------------------------------
March 31, 2000 $2,050,000
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9. Events of Default. Section 8.1 of the Credit Agreement is amended
to add the following new subsection 8.1(o) immediately thereafter:
"(o) Failure to pay when due any amount specified in Section 2.14
hereof relating to the Borrowers' Obligation of Reimbursement, or failure
to pay immediately when due or upon termination of the Credit Facility any
amounts required to be paid for deposit in the Special Account under
Section 2.9 or 2.15 hereof."
10. Rights and Remedies. Section 8.2 of the Credit Agreement is
amended to read as follows:
"During any Default Period, the Lender may without further order of,
or application to the Bankruptcy Court for an order granting relief from
the automatic stay of Section 362 of the Bankruptcy Code, exercise any or
all of the following rights and remedies:
(a) the Lender may, by notice to the Borrowers, declare the
Commitment to be terminated, whereupon the same shall forthwith
terminate;
(b) the Lender may, by notice to the Borrowers, declare the
Obligations to be forthwith due and payable, whereupon all
Obligations shall become and be forthwith due and payable, without
presentment, notice of dishonor, protest or further notice of any
kind, all of which the Borrowers hereby expressly waive;
(c) the Lender may, without notice to the Borrowers and
without further action, apply any and all money owing by the Lender
to the Borrowers to the payment of the Obligations;
(d) the Lender may exercise and enforce any and all rights and
remedies available upon default to a secured party under the UCC,
including, without limitation, the right to take possession of
Collateral, or any evidence thereof, proceeding without judicial
process or by judicial process (without a prior hearing or notice
thereof, which the Borrowers hereby expressly waive) and the right
to sell, lease or otherwise dispose of any or all of the Collateral,
and, in connection therewith, the Borrowers will on demand assemble
the Collateral and make it available to the Lender at a place to be
designated by the Lender which is reasonably convenient to both
parties;
(e) the Lender may make demand upon the Borrowers and,
forthwith upon such demand, the Borrowers will pay to the Lender in
immediately available funds for deposit in the Special Account
pursuant to Sections 2.9 and 2.15 an amount equal to the maximum
aggregate amount
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available to be drawn under all Letters of Credit then outstanding,
assuming compliance with all conditions for drawing thereunder;
(f) the Lender may exercise and enforce its rights and
remedies under the Loan Documents; and
(g) the Lender may exercise any other rights and remedies
available to it by law or agreement.
The Borrowers agree and admit that the occurrence of any Event of Default
is sufficient cause for relief from the automatic stay under Section
362(d)(1) of the Bankruptcy Code. If an Event of Default occurs, the
Borrowers consent to entry of an Order terminating the automatic stay 3
business days after the filing of an affidavit with the Bankruptcy Court
by the Lender, or one of its attorneys, with service upon counsel for the
Borrowers, setting forth the nature of the Default; provided, however,
that if a Default under Section 8.1(e)(ii) occurs, the Lender must give
notice of the Default to the trustee or examiner and request a hearing for
relief from the stay based on the Default. The Borrowers shall have no
defense, other than showing the alleged Default has not occurred."
11. Waiver of Defaults. The Borrowers are in default of the
following provisions of the Credit Agreement (collectively, the "Defaults"):
(a) Section 6.16 regarding the Borrowers' Minimum EBITDAR for the
fiscal year ending March 31, 1999; and
(b) Section 6.17 regarding the Borrowers' Minimum Net Income for the
fiscal year ending March 31, 1999.
The Lender hereby waives the Defaults specified in this Paragraph
11, but only with respect to the periods therein specified. This waiver shall be
effective only in the specific instance and for the specific purpose for which
it is given, and this waiver shall not entitle the Borrowers to any other or
further waiver in any similar or other circumstances.
12. Amendment and Waiver Fee. Concurrent with the execution of this
Amendment by the Borrowers, the Borrowers shall pay the Lender an amendment and
waiver fee in the amount of $10,000. Such fee shall be deemed fully earned by
the execution of this Amendment by the Lender.
13. Release of Lien on Xaar License. The Lender shall release its
security interest in the Xaar License by executing a partial release statement
in substantially the form of Exhibit A attached hereto.
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14. No Other Changes. Except as explicitly amended by this First
Amendment, all of the terms and conditions of the Credit Agreement shall remain
in full force and effect and shall apply to any Advance or Letter of Credit
thereunder.
15. Conditions Precedent. This First Amendment shall be effective
upon receipt by the Lender of an executed original hereof, together with each of
the following, each in substance and form acceptable to the Lender in its sole
discretion:
(a) A separate Certificate of each Borrowers' secretaries or
assistant secretaries certifying as to (i) the resolutions of such
Borrowers' board of directors and if required, shareholders, authorizing
the execution and delivery of this First Amendment, (ii) the fact that the
Articles of Incorporation and Bylaws of such Borrowers, which were
certified and delivered to the Lender pursuant to the Certificate of such
Borrowers' secretaries or assistant secretaries dated as of December 14,
1998, continue in full force and effect and have not been amended or
otherwise modified except as set forth in the Certificate to be delivered,
and (iii) certifying that the officers and agents of such Borrowers' who
have been certified to the Lender, pursuant to the Certificate of
Authority of such Borrowers' secretaries or assistant secretaries dated as
of December 14, 1998, as being authorized to sign and to act on behalf of
such Borrowers continue to be so authorized or setting forth the sample
signatures of such Borrowers' officers and agents authorized to execute
and deliver this First Amendment and all other documents, agreements and
certificates on behalf of the Borrowers.
(b) A final order in form and substance satisfactory to the Lender,
entered by the Bankruptcy Court after adequate notice of all parties
entitled to be served, which, among other things, approves this First
Amendment, authorizes the Borrowers to enter into this First Amendment and
affirms that the senior lien in the Collateral and Superpriority Claim
provided in the Credit Agreement applies to the Credit Agreement as
amended hereby.
(c) Such other matters as the Lender may require.
16. Representations and Warranties. The Borrowers hereby represent
and warrant to the Lender as follows:
(a) Each of the Borrowers has all requisite power and authority to
execute this First Amendment and to perform all of its obligations
hereunder, and this First Amendment has been duly executed and delivered
by the Borrowers and constitutes the legal, valid and binding obligation
of the Borrowers, enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrowers of this
First Amendment have been duly authorized by all necessary corporate
action and do not
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(i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign or any third party, except such authorization required by the
Bankruptcy Court, (ii) violate any provision of any law, rule or
regulation or of any order, writ, injunction or decree presently in
effect, having applicability to any of the Borrowers, or the articles of
incorporation or by-laws of the Borrowers, or (iii) result in a breach of
or constitute a default under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which the Borrowers are a
party or by which it or its properties may be bound or affected.
(c) All of the representations and warranties contained in Article V
of the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
17. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby;
and any and all references in the Loan Documents to the Credit Agreement shall
be deemed to refer to the Credit Agreement as amended hereby.
18. No Waiver. The execution of this First Amendment and acceptance
of any documents related hereto shall not be deemed to be a waiver of any
Default or Event of Default under the Credit Agreement or breach, default or
event of default under any Security Document or other document held by the
Lender, whether or not known to the Lender and whether or not existing on the
date of this First Amendment.
19. Costs and Expenses. The Borrowers hereby reaffirm their
agreement under the Credit Agreement to pay or reimburse the Lender on demand
for all costs and expenses incurred by the Lender in connection with the Credit
Agreement, the Security Documents and all other documents contemplated thereby,
including without limitation all reasonable fees and disbursements of legal
counsel. Without limiting the generality of the foregoing, the Borrowers
specifically agree to pay all fees and disbursements of counsel to the Lender
for the services performed by such counsel in connection with the preparation of
this First Amendment and the documents and instruments incidental hereto. The
Borrowers hereby agree that the Lender may, at any time or from time to time in
its sole discretion and without further authorization by the Borrowers, make a
loan to the Borrowers under the Credit Agreement, or apply the proceeds of any
loan, for the purpose of paying any such fees, disbursements, costs and
expenses.
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20. Miscellaneous. This First Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed as of the day and year first above written.
XXXXX FARGO BUSINESS CREDIT, INC. NU-KOTE HOLDING, INC.
By
---------------------------------
Its
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By
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Its Vice President
NU-KOTE INTERNATIONAL, INC. NU-KOTE IMPERIAL, LTD.
By By
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Its Its
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INTERNATIONAL COMMUNICATION FUTURE GRAPHICS, INC.
MATERIALS, INC.
By By
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Its Its
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NU-KOTE LATIN AMERICA, INC. NU-KOTE IMAGING INTERNATIONAL, INC.
By By
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Its Its
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