Exhibit 10(t)(i)
WAIVER AGREEMENT
WAIVER AGREEMENT, made as of this 8th day of December, 1997, between
INK (AL) QRS:12-21, INC., an Alabama corporation ("Landlord"), with an address
c/o W. P. Xxxxx & Co., Inc., 00 Xxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and QMS, INC., a Delaware corporation ("Tenant"), with an address
at Xxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000.
WITNESSETH
----------
WHEREAS, Landlord and Tenant entered into a Lease Agreement made as of
the 18th day of February, 1997, (the "Lease Agreement"), for certain property
located in Mobile County, Alabama (the "Leased Premises");
WHEREAS, the Lease Agreement provides for the payment of rents by
Tenant to Landlord and for Tenant's compliance with certain financial covenants;
WHEREAS, Tenant is currently not in compliance with certain financial
covenants and has requested a waiver of such noncompliance from Landlord.
In consideration of the rents and provisions herein stipulated to be
paid and performed, and an amendment of a certain warrant to purchase common
stock of Tenant, Landlord and Tenant hereby covenant and agree as follows:
1. Prepaid Rent.
-------------
(a) Tenant shall pay to Landlord the sum of $1,300,000 ("Prepaid Rent")
as Basic Rent (as that term is defined in the Lease Agreement) for the
Leased Premises for the period from December 1, 1998 through September 7,
1999. Tenant is hereby directed by Landlord to make such payment in full by
wire transfer of funds to Landlord's lender, Creditanstalt Bankverein, to
be applied in reduction of the outstanding principal balance of the loan
secured by the real property at the Leased Premises.
(b) The Prepaid Rent shall be applied to the rent payments due from
Tenant on December 1, 1998, March 1, 1999, and June 1, 1999, and the
balance of $32,968.75 applied against the rent payment due from Tenant on
September 1, 1999.
(c) Landlord shall pay interest to Tenant on the amount of Prepaid Rent
not yet credited to the Basic Rent. Interest payments shall be made on a
quarterly basis beginning March 1, 1998, at the rate paid to Corporate
Property 12, Incorporated on its short term investments of ninety (90) days
or less.
2. Waivers. Upon receipt by Creditanstalt Bankverein of the
--------
electronic fund transfer from Tenant, Landlord shall automatically
(a) waive Tenant's noncompliance with the "Fixed Charge Coverage Ratio"
and "Net Worth" covenants specified at Exhibit G of the Lease Agreement;
and
(b) waive Tenant's obligation to comply with the aforementioned
covenants for the period from October 3, 1997, through October 5, 1998; and
(c) not deem Tenant's past and current noncompliance with the
aforementioned covenants as an "Event of Default" under the Lease Agreement
through October 5, 1998.
1
3. Execution of Counterparts. This Waiver Agreement may be
--------------------------
executed in any number of counterparts and by the different parties hereto on
separate counterparts each of which, when so executed, shall be deemed an
original, but all counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Waiver
Agreement to be duly executed as of the day and year first above written.
LANDLORD:
INK (AL) QRS 12-21, INC., an
Alabama corporation
By: /s/ Xxxx Xxxxx
-------------------------------
Title: Vice President
TENANT:
QMS, INC., a Delaware corporation
By: /s/ X. X. Xxxxx
-------------------------------
Title: Executive Vice President
CONSENT
Creditanstalt Bankverein, an Austrian banking corporation, as
Assignee, pursuant to the Assignment of Rentals and Leases dated February 18,
1997, recorded in Real Property Book 4441, page 0693, in the records in the
Office of the Judge of Probate for Mobile County, Alabama, does hereby consent
to terms and conditions of the Waiver Agreement made as of December 8, 1997,
between INK (AL) QRS 12-21, Inc. and QMS, Inc.
Consent given this 8th day of December, 1997.
CREDITANSTALT BANKVEREIN
By: /s/ Xxxxx Xxxx
-------------------------------
Xxxxx Xxxx
Title: Vice President
/s/ Xxxx Xxxxx
-------------------------------
Xxxx Xxxxx
Senior Associate
2
Exhibit 10(t)(ii)
AMENDMENT TO WARRANT
To Purchase Common Stock of
QMS, INC.
THIS AMENDMENT TO WARRANT made effective this 8th day of December,
1997, by and between QMS, Inc. ("QMS"), and INK (AL) QRS:12-21, Inc. ("QRS:12-
21"). QMS and QRS:12-21 are sometimes collectively referred to in this
Amendment to Warrant as the "Parties".
WHEREAS, the Parties entered into a Lease Agreement (the "Lease") made
as of February 18, 1997, and QMS is now in default of certain covenants
contained in that Lease which, if not waived by QRS:12-21, constitute an event
of default pursuant to the terms of the Lease, and;
WHEREAS, QMS has requested and QRS:12-21 is willing to grant a waiver
of QMS's breach of those covenants pursuant to the terms of a separate Waiver
Agreement between the Parties and in exchange for the adjustment of the
"Exercise Price" of the Warrant delivered by QMS to QRS:12-21 on February 18,
1997 (the "Warrant").
THEREFORE, in consideration of the terms of this Amendment to
Warrant, and other good and valuable consideration, the sufficiency and receipt
of which is hereby acknowledged by the Parties, it is agreed:
Definition of "Exercise Price": The definition of "Exercise Price"
------------------------------
contained in Article I of the Warrant is hereby changed from "$6.50" to
"$4.00".
All other provisions of the Warrant remain unchanged.
IN WITNESS WHEREOF, the Parties have caused this Amendment to warrant
to be duly executed as of the day and year first above written.
QMS, INC. ATTEST:
By: /s/ X. X. Xxxxx By: /s/ X. X. Xxxxxxx
----------------------------- --------------------------
Title: Executive Vice President Title: Secretary
INC (AL) QRS 12-21, Inc. ATTEST:
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxxx Xxxxxx
----------------------------- --------------------------
Title: Vice President Title: Asst. Secretary
3
