Exhibit 10.3
FIFTH AMENDMENT TO CREDIT AGREEMENT
This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this 17th day of February, 1998 by and between COLORSPAN
CORPORATION (f/k/a LaserMaster Corporation), a Minnesota corporation
("Borrower"), and GENERAL ELECTRIC CAPITAL CORPOPATION, a New York corporation,
as Agent and Lender ("Agent"). Unless otherwise specified herein, capitalized
terms used in this Amendment shall have the meanings ascribed to them by the
Credit Agreement (as hereinafter defined).
RECITALS
WHEREAS, Borrower and Agent have entered into that certain
Credit Agreement dated as of January 17, 1996, as amended by that certain First
Amendment to Credit Agreement dated as of May 15, 1996, that Second Amendment to
Credit Agreement dated as of January 31, 1997, that Third Amendment to Credit
Agreement dated as of May 14, 1997 that Fourth Amendment to Credit Agreement
dated as of October 14, 1997(as further amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, Borrower and Agent wish to enter into certain
amendments to the Credit Agreement, all as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants herein
and other good and valuable consideration, the parties hereto agree as follows:
SECTION 1. Amendments to the Credit Agreement and Schedules.
Schedule A to the Credit Agreement is amended as follows:
The definition of Borrowing Base is amended to read in its
entirety as follows:
"Borrowing Base" shall mean, as of any date of determination
by Agent, in its reasonable discretion from time to time, an amount equal to the
sum at such time of:
(a) sixty-five percent (65%) of Eligible Accounts, less
reserves (provided that in no event shall the amount calculated in this clause
(a) with respect to Asia/Pacific exceed $1,000,000 at any time) and
(b) twenty-five percent (25%) of the book value of Eligible
Inventory valued on a first-in, first-out basis (at the lower of cost or
market), in each case, less reserves.
Section 2. Representations and Warranties.
2.1 Borrower represents and warranties that:
(a) the execution, delivery and performance by
Borrower of this Amendment have been duly authorized by all necessary corporate
action and this Amendment is a legal, valid and binding obligation of Borrower
enforceable against Borrower in accordance with its terms, except as the
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) each of the representations and warranties
contained in the Credit Agreement is true and correct in all material respects
on and as of the date hereof as if made on the date hereof, except to the extent
that such representations and warranties expressly relate to an earlier date;
(c) neither the execution, delivery and performance
of this Amendment nor the consummation of the transactions contemplated hereby
does or shall contravene, result in a breach of, or violate (i) any provision of
Borrower's certificate or articles of incorporation or bylaws, (ii) any law or
regulation, or any order or decree of any court or government instrumentality or
(iii) indenture, mortgage. deed of trust, lease, agreement or other instrument
to which Borrower or any of its Subsidiaries is a party or by which Borrower or
any of its Subsidiaries or any of their property is bound, except in any such
case to the extent such conflict or breach has been waived by a written waiver
document a copy of which has been delivered to Agent on or before the date
hereof, and
(d) no Default or Event of Default will exist or result
after giving effect hereto.
SECTION 3. Conditions to Effectiveness.
This Amendment will be effective upon satisfaction of the
following conditions:
(a) Execution and delivery of four counter-parts of this
Amendment by each of the parties hereto.
SECTION 4. Reference to and Effect Upon the Credit
Agreement.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver or any right, power or remedy of Agent
or any Lender under the Credit Agreement or any Loan Document, nor constitute a
waiver of any provision of the Credit Agreement or any Loan Document, except as
specifically set forth herein. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof',
"herein" or words of similar import shall mean and refer to the Credit Agreement
as amended hereby.
SECTION 5. Waiver. In consideration of the foregoing,
Borrower hereby waives, and covenants not to xxx Agent with respect to, any and
all claims it may have against Agent, whether known or unknown, arising in tort,
by contract or otherwise prior to the date hereof.
SECTION 6. Costs and Expenses. As provided in Section
11.3 of the Credit Agreement, Borrower agrees to reimburse Agent for all fees,
costs and expenses, including the fees, costs and expenses of counsel or other
advisors for advice, assistance, or other representation in connection with this
Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS
OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 8. Headings. Section headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this amendment for any other purposes.
SECTION 9. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed an
original but all such counterparts shall constitute one and the same instrument.
[signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date and year first above written.
COLORSPAN CORPORATION
By:________________________________
Title:_____________________________
Revolving Credit Loan GENERAL ELECTRIC CAPITAL
Commitment: $10,000,000 CORPORATION, as Agent
By:________________________________
Title:_____________________________
