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EXHIBIT 4.9
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment") is
made and entered into as this 5TH day of December, 1997 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 Nevada corporation ("Danka
Holding") (Danka PLC, Dankalux and Danka Holding are herein each a "Company" and
collectively the "Companies"), NATIONSBANK, NATIONAL ASSOCIATION, a national
banking association formerly known as NationsBank, National Association
(Carolinas) each other Bank signatory hereto (each individually, a "Bank" and
collectively, the "Banks"), and NATIONSBANK, 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 have entered into a
Credit Agreement as of December 5, 1996 (as amended hereby and as from time to
time further amended, supplemented or replaced, 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 Companies have requested that the Credit Agreement be
amended in the manner set forth herein and the Agent and the Banks are willing
to agree to such amendment;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. Any capitalized terms used herein without definition
shall have the meaning set forth in the Credit Agreement. The term "Credit
Agreement" as used herein and in the Loan Documents shall mean the Credit
Agreement as amended hereby and as from time to time further amended,
supplemented and replaced.
2. Amendment. Subject to the terms and conditions set forth herein,
(a) the definition of "Adjusted Consolidated Net Worth" in
Section 1.1 of the Credit Agreement is hereby amended in its entirety
so that as amended it shall read as follows:
"Adjusted Consolidated Net Worth" means the Consolidated Net
Worth of Danka PLC and its Subsidiaries, minus Investments
made by Danka PLC and its Subsidiaries after the Effective
Date in Excluded Country Subsidiaries.
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(b) the definition of "Consolidated Fixed Charge Coverage
Ratio" in Section 1.1 of the Credit Agreement is hereby amended by
replacing the words "dividends for such period, plus" appearing in
Subsection (ii)(B) of such definition with the words "dividends for
such period." and by deleting Subsection (ii)(C) in its entirety from
such definition.
(c) a new definition "Consolidated Net Worth" is hereby added
to Section 1.1 immediately following the definition "Consolidated Fixed
Charge Coverage Ratio" which definition shall read as follows:
"Consolidated Net Worth" means consolidated net worth of Danka
PLC and its Subsidiaries determined in accordance with GAAP
plus or minus, as the case may be, the positive or negative
amount of the balance in excess of $50,000,000 in the currency
translation adjustment account."
(d) the definition of "Included County" in Section 1.1 is
hereby amended to read in its entirety as follows:
"Included Country" means (i) any country within which Danka
PLC is doing business through one or more Subsidiaries
operating in such country as of the Effective Date and either
the combined assets of such Subsidiaries or the revenues of
such Subsidiaries for any fiscal year of Danka PLC equals or
exceeds three percent (3%) of total combined assets or total
revenues of Danka PLC and its Subsidiaries on a consolidated
basis, and (ii) any additional country from time to time
selected by the Companies, as an Included Country, provided,
however, that the Companies, in exercising such discretion,
shall be required to comply with the requirements of Section
7.8(i) hereof. The Included Countries as at the Closing Date
are listed on Schedule III to the Credit Agreement.
(e) Subsection 7.1(a) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"As soon as available and in any event within 60 days after
the end of each of the first three fiscal quarters of each
fiscal year of Danka PLC, the consolidated balance sheets of
Danka PLC and its Subsidiaries, such balance sheets and
statements of earnings and cash flow, where required, in the
case of Danka PLC and its Subsidiaries, to be prepared in
accordance with GAAP in a manner consistent with past
practices of Danka PLC, certified by the chief financial
officer, treasurer or the secretary-controller of Danka PLC;"
(f) Subsection 7.1(b) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"As soon as available and in any event within 120 days after
the end of each fiscal year of Danka PLC, a copy of the annual
audit report for such fiscal year for Danka PLC and its
Subsidiaries, including therein the consolidated balance sheet
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of Danka PLC and its Subsidiaries as of the end of such fiscal
year and consolidated statements of earnings and cash flow of
Danka PLC and its Subsidiaries for such fiscal year, certified
without any Impermissible Qualification by KPMG Audit PLC or
other internationally recognized independent public
accountants, together with a certificate from such accountants
to the effect that (I) the consolidated financial statements
have been prepared in accordance with GAAP consistently
applied and present fairly the financial condition and results
of operations of Danka PLC and its Subsidiaries and (ii) in
making the examination necessary for the signing of such
annual report by such accountants, they have not become aware
of any Default or Event of Default that has occurred and is
continuing, or, if they have become aware of such Default or
Event of Default, describing such Default or Event of Default
and the steps, if any, being taken to cure it;"
(g) Subsection 8.4(c) of the Credit Agreement is hereby
amended by deleting the figure "10%" appearing in the fifth line of
said Subsection (c) and replacing such figure with the following
figure: "25%".
3. Effectiveness. This First Amendment shall become effective as of the
date hereof upon receipt by the Agent of six (6) fully executed copies of this
First Amendment (which may be signed in counterparts) signed by the Companies
and the Majority Banks.
4. Representations and Warranties. In order to induce the Agent and the
Banks to enter into this First Amendment, the Companies represent and warrant to
the Agent and the Banks as follows:
(a) There has been no material adverse change in the
condition, financial or otherwise, of Danka PLC and its Subsidiaries,
taken as a whole, since the date of the most recent financial reports
of Danka PLC received by the Agent and the Banks under Section 7.1 of
the Credit Agreement;
(b) The business and properties of Danka PLC and its
Subsidiaries, taken as a whole, are not, and since the date of the most
recent financial report of Danka PLC and its Subsidiaries received by
the Agent and the Banks under Section 7.1 of the Credit Agreement, have
not been adversely affected in any substantial way as the result of any
fire, explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(c) No event has occurred and is continuing which constitutes,
and no condition exists which upon the consummation of the transaction
contemplated hereby would constitute, a Default or an Event of Default
under the Credit Agreement, either immediately or with the lapse of
time or the giving of notice, or both.
5. Guarantors. Each of the Companies being the direct, or indirect
owner of all or substantially all the Guarantors hereby consents to this
amendment on behalf of such Guarantors.
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6. Entire Agreement. This First 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.
7. Full Force and Effect of First Amendment. 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.
8. Counterparts. This First Amendment may be executed in any number of
counterparts, 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.
9. Governing Law. This First Amendment shall in all respects be
governed by the laws and judicial decisions of the State of Florida.
10. Enforceability. Should any one or more of the provisions of this
First Amendment be determined to be illegal or unenforceable as to one or more
of the parties hereto, all other provisions nevertheless shall remain effective
and binding on the parties hereto.
11. Credit Agreement. All references in any of the Loan Documents to
the Credit Agreement shall mean the Credit Agreement as amended hereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte 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. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Finance Director
DANKA HOLDING COMPANY
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Sup. Corporate Treasurer
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DANKALUX SARL & CO. SCA
BY: DANKALUX SARL, COMMANDITE
By: /s/ Xxxx-Xxxxxx Leburton
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Name: Xxxx-Xxxxxx Leburton
Title: Manager
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NATIONSBANK, N.A., as Agent and
Issuing Bank
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
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