EXECUTION COPY
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
THIS THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Third Amendment") is made and entered into as of May 28, 2003 by and
among DANKA BUSINESS SYSTEMS PLC, a limited liability company incorporated in
England and Wales (Registered Number 1101386) ("Danka PLC"), DANKALUX SARL & CO.
SCA, a Luxembourg company ("Dankalux"), and DANKA HOLDING COMPANY, a Delaware
corporation ("Danka Holding") (Danka PLC, Dankalux and Danka Holding are herein
each a "Company" and collectively the "Companies"), each of the other direct or
indirect subsidiaries of Danka PLC party hereto (together with the Companies,
the "Danka Parties"), BANK OF AMERICA, NATIONAL ASSOCIATION, each other Bank
listed on the signature pages hereof (each individually, a "Consenting Bank" and
collectively, the "Consenting Banks"), and BANK OF AMERICA, NATIONAL
ASSOCIATION, in its capacity as agent for the Banks (in such capacity, the
"Agent"):
W I T N E S S E T H:
WHEREAS, the Companies, the Banks and the Agent entered into a Second
Amended and Restated Credit Agreement dated as of June 14, 2002 (as amended by
that certain First Amendment, dated as of November 25, 2002, that certain Second
Amendment, dated as of May 8, 2003, and as further amended hereby and from time
to time hereafter amended, supplemented or modified, the "Credit Agreement"),
pursuant to which the Banks agreed to make certain revolving credit, term loan
and letter of credit facilities available to the Companies; and
WHEREAS, the Consenting Banks (which constitute the Majority Banks as
defined in the Credit Agreement) and the Danka Parties have agreed to amend
certain provisions of the Credit Agreement, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and sufficient consideration, receipt of which is hereby
acknowledged, the Danka Parties and the Consenting Banks do hereby agree as
follows:
1. Definitions. Any capitalized terms used herein without definition
shall have the meaning set forth in the Credit Agreement.
2. Amendments to Credit Agreement. Upon satisfaction of the terms and
conditions set forth in Section 4 of this Third Amendment, the Credit Agreement
shall be amended as follows:
(a) Section 8.3(b) of the Credit Agreement is hereby amended in
its entirety so that as amended it shall read as follows:
"(b) Minimum EBITDA to Interest. The ratio for any period of (a)
Consolidated EBITDA for such period to (b) cumulative cash interest and bank
fees payable during such period, in each case of Danka PLC and its
Subsidiaries (i) for the
rolling four fiscal quarter period ending on June 30, 2002 to be less than
2.11 to 1.00, (ii) for the rolling four fiscal quarter period ending on
September 30, 2002 to be less than 2.37 to 1.00, (iii) for the rolling four
fiscal quarter period ending on December 31, 2002 to be less than 2.56 to
1.00, (iv) for the rolling four fiscal quarter period ending on March 31,
2003 and June 30, 2003 to be less than 2.30 to 1.00, (v) for the rolling four
fiscal quarter period ending on September 30, 2003, December 31, 2003, and
March 31, 2004 to be less than 2.74 to 1.00, (vi) for the rolling four fiscal
quarter period ending on June 30, 2004, September 30, 2004, December 31,
2004, and March 31, 2005, to be less than 3.00 to 1.00, and (vii) for the
rolling four fiscal quarter period ending on June 30, 2005, September 30,
2005 and December 31, 2005 to be less than 3.25 to 1.00; or;"
3. Amendment Fee. Each of the Danka Parties acknowledges and agrees that
each Bank shall have earned on the effective date of this Third Amendment an
amendment fee (the "Amendment Fee") equal to 0.10% of such Banks' Commitment;
provided that the Majority Banks shall have executed and delivered to the Agent
their signature page hereto on or prior to Wednesday, May 28, 2003, by 4:00 p.m.
Eastern Standard Time.
4. Effectiveness. This Third Amendment shall become effective upon (a)
receipt by the Agent of an executed copy of this Third Amendment (which may be
signed in counterparts and may be received by facsimile transmission) signed by
the Danka Parties and the Majority Banks; (b) payment by the Danka Parties of
the Amendment Fee to the Agent for the benefit of the Banks; and (c) payment of
fees and reasonable expenses of the Agent and the Steering Committee and its
members (including the reasonable fees and expenses of outside counsel and
financial advisors for the Agent) that have been invoiced and remain outstanding
prior to the effectiveness hereof, if any.
5. Expenses. The Danka Parties agree promptly to pay or reimburse any
reasonable expenses of the Agent and the Steering Committee and its members
(including the reasonable fees and expenses of outside counsel and financial
advisors for the Agent) incurred in connection with this Third Amendment that
were not previously paid pursuant to Section 4 hereof.
6. Acknowledgment; Release. The Danka Parties acknowledge that they have
no existing defense, counterclaim, offset, cross-complaint, claim or demand of
any kind or nature whatsoever that can be asserted to reduce or eliminate all or
any part of any of their respective liability to pay the full indebtedness
outstanding under the terms of the Credit Agreement and any other documents
which evidence, guaranty or secure the Obligations. The Danka Parties hereby
release and forever discharge the Agent, the Banks and all of their officers,
directors, employees, attorneys, consultants and agents from any and all
actions, causes of action, debts, dues, claims, demands, liabilities and
obligations of every kind and nature, both in law and in equity, known or
unknown, whether matured or unmatured, absolute or contingent.
7. Entire Agreement. This Third Amendment sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter.
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8. Deemed Amendment of Other Loan Documents; Full Force and Effect. To
the extent necessary to give effect to the provisions hereof, the Security
Agreement and all other Loan Documents shall be deemed amended and supplemented
by the terms hereof. Except as hereby specifically amended, modified or
supplemented, the Credit Agreement and all other Loan Documents are hereby
confirmed and ratified in all respects and shall remain in full force and effect
according to their respective terms.
9. Counterparts. This Third Amendment may be executed in any number of
counterparts (including, without limitation, counterparts sent by facsimile
transmission), each of which shall be deemed an original as against any party
whose signature appears thereon and all of which shall together constitute one
and the same instrument.
10. Governing Law. This Third Amendment shall in all respects be governed
by the laws and judicial decisions of the State of New York.
11. Enforceability. Should any one or more of the provisions of this Third
Amendment be determined to be illegal or unenforceable as to one of the parties
hereto, all other provisions nevertheless shall remain effective and binding on
the parties hereto.
12. Authorization. This Third Amendment has been duly authorized, executed
and delivered by the parties hereto and constitutes a legal, valid and binding
obligation of the parties hereto, except as may be limited by general principles
of equity or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
WITNESS: DANKA BUSINESS SYSTEMS PLC
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
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Title: SVP General Counsel
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DANKA HOLDING COMPANY
By: /s/ [ILLEGIBLE]
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NAME: [ILLEGIBLE]
-------------------------------------
Title: SVP & Corporate Treasurer
------------------------------------
DANKALUX SARL & CO. SCA
BY: DANKALUX SARL, COMMANDITE
By: /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
-------------------------------------
Title: Manager
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AMERICAN BUSINESS CREDIT CORPORATION
CORPORATE CONSULTING GROUP, INC.
DANKA IMAGING DISTRIBUTION, INC.
DANKA MANAGEMENT COMPANY, INC.
DANKA MANAGEMENT II COMPANY, INC.
DANKA OFFICE IMAGING COMPANY
D.I. INVESTMENT MANAGEMENT, INC.
XXXXXX ENTERPRISES, INC. OF SOUTH FLORIDA
QUALITY BUSINESS, INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: XXXXX X. XXXXXX
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Title: SVP General Counsel
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BANK OF AMERICA, NATIONAL ASSOCIATION, as
Agent and Issuing Bank, and individually
as a Bank
By: /s/ Xxxxxx X. Xxxx, III
---------------------------------------
Name: XxXxxx X. Xxxx, III
-------------------------------------
Title: Managing Director
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NAME OF BANK:
Banc of America Securities LLC,
as Agent for Bank of America, N.A.
By: /s/ [ILLEGIBLE]
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Name:
Title:
By:
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Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
NAME OF BANK:
CONTINENTAL CASUALTY COMPANY
[SEAL]
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
By: N/A
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Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Authorized Signatory
By:
---------------------------------------
Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
NAME OF BANK:
Xxxxxxx Xxxxx Credit Partners L.P.
By: /s/ Xxxxx XxXxxxxxx
---------------------------------------
Name: Xxxxx XxXxxxxxx
Title: Authorized Signatory
By:
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Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
NAME OF BANK:
Halcyon Restructuring Fund, L.P.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Principal
At Halcyon Management Company LLC
Managing General Partner of Halcyon
Restructuring Fund, L.P.
By:
---------------------------------------
Name:
Title:
NAME OF BANK:
------------------------------------------
By: HCM/Z Special Opportunities LLC
By: /s/ Xxxxxx X. Zwim
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Name: Xxxxxx X. Zwim
Title: Portfolio Manager
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
NAME OF BANK:
Xxxxxx Xxxxxxx Senior Funding, Inc
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
By:
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Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
NAME OF BANK:
Special Situations Investing Group, Inc.
By: /s/ Xxxxx XxXxxxxxx
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Name: Xxxxx XxXxxxxxx
Title: Authorized Signatory
By:
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Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: XXXXXXXXX XXXXXXXX
Title: VICE PRESIDENT
By:
---------------------------------------
Name: XXXXXXXXX XXXXXXXX
Title: VICE PRESIDENT
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
XXX XXXXXX
SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: XXXXXXXXX XXXXXXXX
Title: VICE PRESIDENT
By:
---------------------------------------
Name:
Title:
Bank Signature Page To Third Amendment to Second Amended and Restated Credit
Agreement
[LETTERHEAD OF BANK OF AMERICA]
May 28, 2003
To: Lenders and Professionals
RE: DANKA BUSINESS SYTEMS, PLC,
DANKALUX SARL & CO. SCA AND DANKA HOLDING COMPANY,
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 14, 2002 (the "Credit Agreement")
Ladies and Gentlemen:
On behalf of Bank of America, N.A. as Agent, I am pleased to inform you that
all the conditions precedent to the effectiveness of the Third Amendment to the
referenced Credit Agreement have been satisfied and the Third Amendment is
effective as of today, May 28, 2003.
Very Truly Yours,
Bank of America, N.A., as Agent
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
