EXHIBIT 10.2.4
FORBEARANCE AGREEMENT
This Forbearance Agreement (herein, the "Agreement") made as of the 9th
day of January 2004, by and among Delphax Technologies Canada Limited, f/k/a
Check Technology Canada Ltd., an Ontario corporation ("Borrower"), Delphax
Technologies Inc., f/k/a Check Technology Corporation, a Minnesota corporation
("Parent"), as Parent and as a Guarantor (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"), Xxxxxx Trust and Savings Bank ("HTSB"), as Administrative Agent
for Lenders (in such capacity, "Administrative Agent") and Bank of Montreal, as
sole Lender ("Lender").
RECITALS:
A. Borrower, Parent, Administrative Agent and Lender are parties to
that Credit Agreement dated as of December 20, 2001 by and among Borrower,
Parent, and HTSB as sole Lender and as Administrative Agent, as amended by that
certain First Amendment to Credit Agreement dated as of December 18, 2002, as
further amended by that certain Second Amendment to Credit Agreement dated as of
August 11, 2003, as further amended by that certain Third Amendment to Credit
Agreement dated as of August 31, 2003 (as so amended, the "Credit Agreement").
All capitalized terms used herein without definition shall have the same
meanings herein as such terms have in the Credit Agreement.
B. On December 31, 2003, all principal, and interest and other amounts
owing under the Credit Agreement became due and payable. However, neither
Borrower nor Parent paid such amounts except for the interest amounts that were
due and payable. The nonpayment of the principal constituted an Event of Default
under the Credit Agreement (the "Existing Default").
C. Lender is not willing to waive the Existing Default.
D. Borrower and Parent have represented to Administrative Agent and
Lender that Borrower and Parent are negotiating a credit facility with LaSalle
Business Credit LLC (the "Planned Refinancing") which, when closed, will result
in all amounts owed to each of Administrative Agent and Lender to be paid in
full. Borrower and Parent have further informed the Administrative Agent and
Lender that the Planned Refinancing, originally expected to be closed in
December 2003, is now expected to be closed before the end of January 2004.
E. Borrower has requested that during (but only during) the "Standstill
Period" (defined in paragraph 6 below), and subject to the terms and conditions
set forth in this Agreement, Administrative Agent and Lender forbear from
exercising their rights or remedies available solely by reason of the Existing
Default.
NOW, THEREFORE, upon the execution hereof by Administrative Agent,
Lender, Borrower and Parent, it is agreed as follows:
1. Amounts Owing. Borrower acknowledges and agrees that the unpaid
principal amount of Loans as of the date hereof is $11,900,000.00 ($2,500,000.00
in Term Loans and
$9,400,000.00 in Revolving Loans) and such amount (together with interest
thereon and other amounts owed under the Loan Documents) is justly and truly
owing by Borrower without defense, offset or counterclaim. Borrower further
acknowledges and agrees that it has no further rights to request borrowings
under the Credit Agreement.
2. Acknowledgment of Default. The Existing Default constitutes an Event
of Default under the Credit Agreement. Borrower acknowledges that under the
Credit Agreement, because of the Existing Default, Lender is permitted and
entitled to terminate the Commitments, to decline to provide further credit to
Borrower, and exercise any other rights or remedies that may be available under
the Loan Documents or under applicable law. Borrower represents to
Administrative Agent and Lender that there are no Defaults or Events of Default
other than the Existing Default.
3. Forbearance. Unless and until Standstill Termination (as defined in
paragraph 6 below) occurs, Administrative Agent and Lender will not, solely by
reason of the occurrence of the Existing Default, enforce any of the liens
granted under the Collateral Documents or, except as provided herein, exercise
any other right or remedies available solely by reason of the Existing Default.
4. Interest. Borrower acknowledges and agrees that from and after
January 1, 2004, interest on the unpaid amount of the Loans has been accruing
(and will continue to accrue) at the default rate specified in Section 1.10 of
the Credit Agreement. Borrower further agrees that no Loans may be converted to
Eurodollar Loans.
5. Additional Agreements. Borrower shall keep Administrative Agent and
Lender fully apprised as to the status of the Planned Refinancing including by
notifying Administrative Agent and Lender (a) promptly after (but in any event
not later than the day after the date on which Borrower learns) the Planned
Refinancing has been approved (or not approved) by LaSalle Business Credit,
LLC's credit committee, (b) of the expected closing date of the Planned
Refinancing and (c) immediately if at any time Borrower believes that it is
likely that the Planned Refinancing will not close on or before January 31,
2004.
6. Standstill Period; Standstill Termination.
(a) As used in this Agreement, "Standstill Period" means the
period beginning on the date of this Agreement and ending on the date
on which Standstill Termination occurs.
(b) As used in this Agreement, "Standstill Termination" shall
mean the first to occur of the following:
(1) January 31, 2004;
(2) the date on which the Planned Refinancing closes;
(3) if LaSalle Business Credit, LLC's credit
committee does not approve the Planned Refinancing, the date
on which Borrower first learns of such nonapproval;
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(4) if at any time Borrower believes that it is
reasonably likely that the Planned Refinancing will not close
on or before January 31, 2004, the date on which Borrower
first makes that determination;
(5) the occurrence of any one or more of the
following events: (a) any Default or Event of Default under
the Credit Agreement, in each case other than the Existing
Default; (b) any failure by Borrower for any reason to comply
with any term, condition or provision contained in this
Agreement; (c) any representation made by Borrower in this
Agreement or pursuant to it proves to be incorrect or
misleading in any material respect when made; or (d) any
change shall occur after the date hereof, in the condition or
prospects, financial or otherwise, of Parent and its
Subsidiaries, taken as a whole, which Lender in good xxxxx
xxxxx materially adverse.
(c) The occurrence of any Standstill Termination shall be
deemed an Event of Default under the Credit Agreement. Upon the
occurrence of a Standstill Termination, the Standstill Period is
automatically terminated and Administrative Agent and Lender shall be
permitted and entitled, without further notice of default or demand for
payment to Borrower, Parent or any other Guarantor, to exercise all
rights and remedies that may be available under the Loan Documents or
applicable law.
7. No Waiver and Reservation of Rights. Borrower acknowledges that
Administrative Agent and Lender are not waiving the Existing Default, but is
simply agreeing to forbear from exercising their rights and remedies solely with
respect to the Existing Default to the extent expressly set forth in this
Agreement. Without limiting the generality of the foregoing, Borrower
acknowledges and agrees that immediately upon expiration of the Standstill
Period, Administrative Agent and Lender have all of their rights and remedies
with respect to the Existing Default to the same extent, and with the same force
and effect, as if the forbearance had not occurred. Borrower will not assert and
hereby forever waives any right to assert that Administrative Agent or Lender
are obligated in any way to continue beyond the Standstill Period to forbear
from enforcing their rights or remedies or that Administrative Agent and Lender
are not entitled to act on the Existing Default after the occurrence of a
Standstill Termination as if such default had just occurred and the Standstill
Period had never existed. Borrower acknowledges that Administrative Agent and
Lender have made no representations as to what actions, if any, either of them
will take after the Standstill Period or upon the occurrence of any Standstill
Termination, a Default or Event of Default, and Lender and Administrative Agent
must and do hereby specifically reserve any and all rights and remedies they
have (after giving effect hereto) with respect to the Existing Default and each
other Default or Event of Default that may occur.
8. RELEASE. FOR VALUE RECEIVED, INCLUDING WITHOUT LIMITATION, THE
AGREEMENTS OF LENDERS IN THIS AGREEMENT, BORROWER AND, BY SIGNING THE
ACKNOWLEDGEMENT AND CONSENT BELOW, PARENT HEREBY RELEASE ADMINISTRATIVE AGENT
AND LENDER, THEIR RESPECTIVE CURRENT AND FORMER SHAREHOLDERS, DIRECTORS,
OFFICERS, AGENTS, EMPLOYEES, ATTORNEYS, CONSULTANTS, AND PROFESSIONAL ADVISORS
(COLLECTIVELY, THE "RELEASED PARTIES") OF AND FROM ANY AND ALL DEMANDS, ACTIONS,
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CAUSES OF ACTION, SUITS, CONTROVERSIES, ACTS AND OMISSIONS, LIABILITIES, AND
OTHER CLAIMS OF EVERY KIND OR NATURE WHATSOEVER, BOTH IN LAW AND IN EQUITY,
KNOWN OR UNKNOWN, WHICH BORROWER OR PARENT HAS OR EVER HAD AGAINST THE RELEASED
PARTIES FROM THE BEGINNING OF THE WORLD TO THIS DATE, INCLUDING, WITHOUT
LIMITATION, THOSE ARISING OUT OF THE EXISTING FINANCING ARRANGEMENTS AMONG
BORROWER, PARENT AND LENDER, AND BORROWER AND PARENT FURTHER ACKNOWLEDGE THAT,
AS OF THE DATE HEREOF, THEY DO NOT HAVE ANY COUNTERCLAIM, SET-OFF OR DEFENSE
AGAINST THE RELEASED PARTIES, EACH OF WHICH BORROWER AND PARENT HEREBY EXPRESSLY
WAIVE.
9. Loan Documents Remain Effective. Except as expressly set forth in
this Agreement, the Loan Documents and all of Borrower's and Parent's
obligations thereunder (including, without limitation, Parent's obligations as a
Guarantor), the rights and benefits of Administrative Agent and Lender
thereunder, and the liens and security interests created thereby remain in full
force and effect. Without limiting the foregoing, Borrower and Parent agree to
comply with all of the terms, conditions and provisions of the Loan Documents
except to the extent such compliance is inconsistent with the express provisions
of this Agreement. This Agreement and the Loan Documents are intended by the
parties as a final expression of their agreement and are intended as a complete
and exclusive statement of the terms and conditions of that agreement.
10. Fees and Expenses. Borrower shall pay to Lender a forbearance fee
of $50,000, which shall be earned on and as of the date hereof and shall be due
and payable on or before the date hereof. Borrower shall also pay on demand all
fees and expenses (including attorneys' fees and consultant's fees and expenses)
incurred by Administrative Agent and Lender and their counsel in connection with
this Agreement and the obligations of Borrower hereunder and the other
instruments and documents being executed and delivered in connection herewith
and all fees and expenses of counsel to Administrative Agent due and not yet
paid with respect to the credit facilities subject to the Credit Agreement.
11. Conditions Precedent. The effectiveness of this Agreement is
subject to the satisfaction of the following condition precedent: (a) Borrower,
Parent, Administrative Agent and Lender shall have executed and delivered this
Agreement on or before the close of business on the date hereof and (b) Lender
shall have received in immediately available funds the forbearance fee described
in paragraph 10 above.
12. Miscellaneous. By its acceptance hereof, Borrower and Parent hereby
represent that they have the necessary power and authority to execute, deliver
and perform the undertakings contained herein and that the same do bind Borrower
and Parent. This Agreement may be executed in counterparts and by different
parties on separate counterpart signature pages, each of which to constitute an
original and all of which taken together to constitute one and the same
instrument. This Agreement shall be governed by Illinois law and shall be
governed and interpreted on the same basis as the Credit Agreement.
13. Parent' Acknowledgement and Consent. Parent has heretofore executed
and delivered to Administrative Agent and Lender the Credit Agreement, including
a guaranty, and
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certain Collateral Documents pursuant to the Credit Agreement. Parent hereby
consents to the Agreement and agrees to the terms thereof, including, without
limitation, Section 11 thereof, and confirms that its guaranty and the
Collateral Documents executed by it, and all of the obligations of Parent
thereunder, remain in full force and effect. Parent further agrees that the
consent of Parent to any further amendments to the Credit Agreement or the
Agreement shall not be required as a result of this consent having been
obtained. Parent acknowledges that Administrative Agent and Lender are relying
on this acknowledgement and consent in entering into the Agreement with
Borrower.
[SIGNATURE PAGES TO FOLLOW]
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This Forbearance Agreement is entered into as of the date and year
first above written.
DELPHAX TECHNOLOGIES CANADA LTD.
(f/k/a Check Technology Canada Ltd.)
By /s/ Xxxxxx X. Xxxxxxxxx
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Name Xxxxxx X. Xxxxxxxxx
-------------------
Title Chief Financial Officer
-----------------------
DELPHAX TECHNOLOGIES INC. (f/k/a
Check Technology Corporation)
By /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name Xxxxxx X. Xxxxxxxxx
-------------------
Title Chief Financial Officer
-----------------------
Accepted and agreed to.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as Administrative
Agent
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
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Title Director
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BANK OF MONTREAL, as Lender
By /s/ Xxxxxxx X. Xxxxxx
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Name Xxxxxxx X. Xxxxxx
-----------------
Title Director
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