EXHIBIT 10.2.12
AMENDMENT NO. 1 TO (I) LOAN AND SECURITY AGREEMENT DATED FEBRUARY 4,
2004, BETWEEN DELPHAX TECHNOLOGIES INC. AND LASALLE BUSINESS CREDIT, LLC, AND
(II) CREDIT AGREEMENT DATED FEBRUARY 4, 0000 XXXXXXX XXXXXXX XXXXXXXXXXXX XXXXXX
LIMITED AND ABN AMRO BANK, N.V., CANADA BRANCH
This Amendment No. 1 (this "Amendment"), made and entered into as of
February 24, 2004 is by and between DELPHAX TECHNOLOGIES INC., a Minnesota
Corporation (the "U.S. BORROWER"), LASALLE BUSINESS CREDIT, LLC, a Delaware
limited liability company (the "U.S. LENDER"), DELPHAX TECHNOLOGIES CANADA
LIMITED, a corporation organized under the laws of the province of Ontario (the
"CANADIAN BORROWER" and collectively with the U.S. Borrower, the "BORROWERS"),
and ABN AMRO BANK, N.V., CANADA BRANCH, a Canadian branch of a Netherlands bank
(the "CANADIAN LENDER," and collectively with U.S. Lender, the "LENDERS").
RECITAL
A. The U.S. Borrower and the U.S. Lender have entered into that certain
Loan and Security Agreement dated as of February 4, 2004 (the "U.S. LOAN
AGREEMENT"). The Canadian Borrower and the Canadian Lender have entered into
that certain Credit Agreement dated as of February 4, 2004 (the "CANADIAN LOAN
Agreement" and collectively with the U.S. Loan Agreement, the "LOAN
AGREEMENTS").
B. The Borrowers and the Lenders now desire to amend the Loan
Agreements as provided herein, subject to the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. AMENDMENT TO U.S. LOAN AGREEMENT. The U.S. Borrower and the U.S.
Lender agree that paragraph 14(a) of the U.S. Loan Agreement is hereby amended
and restated in its entirety to read as follows:
(a) TANGIBLE NET WORTH
Borrower's Tangible Net Worth shall not at any time be less than the
Minimum Tangible Net Worth; "MINIMUM TANGIBLE NET WORTH" being defined
for purposes of this subsection as (i) 90% of $15,817,000 at all times
from the date hereof to and including September 29, 2004, (ii)
$16,500,000 on September 30, 2004, and (iii) thereafter, (A) from the
first day of each Fiscal Year of Borrower through the day prior to the
last day of such Fiscal Year of Borrower, 90% of Borrower's Tangible
Net Worth on the last day of the immediately preceding Fiscal Year of
Borrower and (B) on the last day of each Fiscal Year of Borrower, 110%
of Borrower's Tangible Net Worth on the last day of the immediately
preceding Fiscal Year of Borrower, in each case as reflected on
Borrower's audited year end financial statement; and "TANGIBLE NET
WORTH" being defined for purposes of this subsection as Borrower's
consolidated shareholders' equity
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(including retained earnings) less the book value of intangible assets
as determined solely by Lender on a consistent basis plus the amount of
any LIFO reserve plus the amount of Subordinated Debt less prepaid
expenses, amounts due from officers, employees and affiliates, all as
determined on a consolidated basis for the Borrower and its
Subsidiaries and without duplication under generally accepted
accounting principles applied on a basis consistent with the financial
statement dated September 30, 2003 except as set forth herein.
2. AMENDMENT TO CANADIAN LOAN AGREEMENT. The Canadian Borrower and the
Canadian Lender agree that paragraph 1(a) of the Canadian Loan Agreement is
hereby amended by amending the definition of "U.S. Loan and Security Agreement"
contained therein to read in its entirety as follows:
"U.S. Loan and Security Agreement" shall mean that certain loan and
security agreement dated February 4, 2004 between U.S. Lender and the
Guarantor, as amended by that certain Amendment No. 1 dated as of
February 24, 2004, and as the same may be further amended, restated,
supplemented or otherwise modified from time to time.
3. CONDITIONS PRECEDENT. The amendments contained in this Amendment
shall become effective upon delivery by Borrowers to the Lenders of, and
compliance by relevant Borrowers with, the following:
(a) This Amendment, duly executed by each of Borrowers and each of the
Lenders.
(b) The U.S. Borrower shall have paid to the U.S. Lender a
nonrefundable amendment fee of $75,000.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby represents and
warrants to the Lenders as follows:
(a) that on and as of the date hereof and after giving effect to this
Amendment there will exist no Default or Event of Default (as defined
in the U.S. Loan Agreement and the Canadian Loan Agreement, as
applicable) under the Loan Agreements as amended by this Amendment on
such date which has not been waived by relevant Lender.
(b) each Borrower has the power and legal right and authority to enter
into this Amendment and any other document or instrument to be executed
by such Borrower in connection with this Amendment (collectively, the
Amendment Documents) and has duly authorized as appropriate the
execution and delivery of the relevant Amendment Documents by proper
corporate action.
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5. RATIFICATION OF LOAN AGREEMENTS. Except as expressly amended hereby,
the Loan Agreements hereby are ratified and confirmed by the parties hereto and
remain in full force and effect in accordance with the terms thereof.
6. SUBORDINATED CREDITOR CONSENT. The U. S. Borrower shall (a)
undertake its best efforts to, within 30 days of the date of this Amendment,
deliver to the U.S. Lender the Acknowledgment and Agreement of Subordinated
Creditor (collectively, the "Subordinated Creditor Consent") set forth at the
end of this Amendment, duly executed by Xxxx Capital Partners Fund, LLC (the
"Subordinated Creditor") and (b) undertake its best efforts to cause the
Subordinated Creditor to not require the U.S. Borrower to execute and deliver
any other amendments to its loan documents with the Subordinated Creditors or to
pay any fees to the Subordinated Creditor as a condition to executing its
Subordinated Creditor Consent.
7. GENERAL RELEASE. Each Borrower hereby absolutely and unconditionally
releases and forever discharges each Lender, and any and all participants,
parent corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of the foregoing,
from any and all claims, demands or causes of action of any kind, nature or
description, whether arising in law or equity or upon contract or tort or under
any state or federal law or otherwise, which any Borrower has had, now has or
has made claim to have against any such person for or by reason of any act,
omission, matter, cause or thing whatsoever arising from the beginning of time
to and including the date of this Amendment, whether such claims, demands and
causes of action are matured or unmatured or known or unknown.
8. REAFFIRMATION OF GUARANTIES. Each Borrower, in its capacity as a
guarantor of the indebtedness of the other Borrower to the U.S. Lender or the
Canadian Lender, as applicable, pursuant to the separate Guaranty or Guarantee
dated as of February 4, 2004 (each, a "Guaranty"), hereby (i) consents to the
terms of the Amendment of the other Borrower's Loan Agreement as set forth in
the Amendment; (iii) reaffirms its obligations to the applicable Lender pursuant
to the terms of its Guaranty; and (iv) acknowledges that the applicable Lender
may amend, restate, extend, renew or otherwise modify its Loan Agreement with
the other Borrower and any indebtedness or agreement of the other Borrower, or
enter into any agreement or extend additional or other credit accommodations to
the other Borrower, without notifying or obtaining the consent of the
undersigned and without impairing the liability of the such Borrower under its
Guaranty.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
DELPHAX TECHNOLOGIES INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Vice President and Chief Financial Officer
DELPHAX TECHNOLOGIES CANADA LIMITED
By: /s/ Xxxxxx X. Xxxxxxxxx
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Title: Chief Financial Officer
LASALLE BUSINESS CREDIT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
ABN AMRO BANK N.V., CANADA BRANCH
By: /s/ Xxxxx Xxxx
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Title: Vice President
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ACKNOWLEDGMENT AND AGREEMENT OF SUBORDINATED CREDITOR
The undersigned, a subordinated creditor of Delphax Technologies Inc.
("U.S. Borrower") pursuant to a Subordination Agreement dated as of February 4,
2004 (the "Subordination Agreement") between the undersigned and LaSalle
Business Credit, LLC (the "Lender") hereby (i) acknowledges receipt of the
foregoing Amendment; (ii) consents to the terms and execution thereof; and (iii)
reaffirms its obligations to the Lender pursuant to the terms of its
Subordination Agreement.
XXXX CAPITAL PARTNERS FUND, LLC
By: /s/ Xxxxx X. XxXxxx
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Title: General Partner
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