EXHIBIT 10.1
EIGHTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
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This EIGHTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of this _____ day of December, 1998 by and between COLORSPAN
CORPORATION (f/k/a LaserMaster Corporation), a Minnesota corporation
("Borrower"), and GENERAL ELECTRIC CAPITAL CORPORATION, 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
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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, that Fifth Amendment to Credit Agreement dated as of February
17, 1998, that Sixth Amendment and Consent to Credit Agreement dated as of June
30, 1998, and that Seventh Amendment and Consent to Credit Agreement dated as of
July 15, 1998 (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 Definitions in Credit Agreement.
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(a) Definitions. Schedule A to the Credit Agreement is amended as
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follows:
(i) to delete the definition of Commitment Termination
Date and insert the following definition in its place:
"Commitment Termination Date" shall mean the earliest of
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(i) Xxxxx 00, 0000, (xx) the date of termination of
Lenders' obligations to advance funds or permit existing
advances to remain outstanding pursuant to Section 8.2,
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and (iii) the date of indefeasible prepayment in full by
Borrower of the Revolving Credit Loan, and the permanent
reduction of the Revolving Credit Loan Commitment to zero
dollars ($0), in accordance with the provisions of
Section 1.2.
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(ii) to amend clause (a) of the definition of Borrowing Base
to read in its entirety as follows:
(a) seventy percent (70%) 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 or the amount calculated in this clause (a) with
respect to CSLA exceed $250,000 at any time.
Section 2. Representations and Warranties.
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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.
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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.
(b) Delivery to Agent of a pledge agreement executed by Holdings
with respect to the stock of Xxxxxxx, along with share certificates for all of
the outstanding capital stock of Xxxxxxx and stock powers endorsed in blank.
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(c) Delivery to Agent of a Phase I, and, if requested, Phase II,
environmental audits regarding real estate operated by Xxxxxxx.
Section 4. Reference to and Effect Upon the Credit Agreement.
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(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
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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
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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
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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
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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
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counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
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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
Commitment: $10,000,000
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:________________________________
Title:_____________________________
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