Exhibit 10.1
SIXTH AMENDMENT AND FORBEARANCE AGREEMENT, dated as of August 18,
1999 (this "AMENDMENT"), to the CREDIT AGREEMENT, dated as of October 2,
1997, as amended by the Global Amendment and Assignment and Acceptance, dated
as of October 20, 1997, the Second Amendment, dated as of March 13, 1998, the
Third Amendment, dated as of May 8, 1998, the Fourth Amendment, dated as of
September 25, 1998 and the Fifth Amendment, dated as of April 2, 1999 (as
further amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among AXIOHM TRANSACTION SOLUTIONS, INC. (f/k/a DH
Technology, Inc.), a California corporation (the "BORROWER"), the several
banks and other financial institutions or entities from time to time parties
to the Credit Agreement (the "LENDERS"), XXXXXX BROTHERS INC., as arranger,
XXXXXX COMMERCIAL PAPER INC., as syndication agent (in such capacities, the
"SYNDICATION AGENT"), and UNION BANK OF CALIFORNIA, N.A., as administrative
agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower, the Syndication Agent, the Administrative
Agent and the Lenders are parties to the Credit Agreement; and
WHEREAS, the Borrower has requested certain amendments to the
Credit Agreement to which the Lenders are willing to agree, but only on the
terms and subject to the conditions set forth herein; and
WHEREAS, the Borrower has requested that the Lenders forbear from
taking certain actions under the Credit Agreement and the Lenders are willing
to agree, but only on the terms and subject to the conditions set forth
herein;
NOW THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
1.1 DEFINED TERMS. Unless otherwise defined herein and except as set
forth in this Amendment, terms defined in the Credit Agreement are used herein
as therein defined.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 AMENDMENTS TO SECTION 1.1 (DEFINED TERMS).
(a Section 1.1 of the Credit Agreement is hereby amended by (i)
deleting in their entirety the definitions of the following terms:
"COMMITMENT", "ECF PERCENTAGE", "FACILITY", "LENDERS", "LOANS", "REQUIRED
LENDERS" and "TOTAL REVOLVING EXTENSIONS OF CREDIT" and (ii) inserting in their
proper alphabetical order the following definitions:
"BUDGET": a weekly consolidated domestic cash receipts and
disbursements budget, in form and substance satisfactory to the
Administrative Agent and the Required Lenders, which shall, among other
things, project revenues to be received and all material expenditures
proposed to be made during such week and detail the Borrower's domestic
cash balance and outstanding "float", together with a summary of cash
balances of the Borrower's Foreign Subsidiaries.
"COMMITMENT": as to any Lender, the sum of the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment, the Revolving Credit
Commitment and the New Commitment of such Lender.
"ECF PERCENTAGE": 100%.
"FACILITY": each of (a) the Tranche A Term Loan Commitments and the
Tranche A Term Loans made thereunder (the "TRANCHE A TERM LOAN FACILITY"),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "TRANCHE B TERM LOAN FACILITY"), (c) the Revolving
Credit Commitments and the extensions of credit made thereunder (the
"REVOLVING CREDIT FACILITY") and (d) the New Commitment and the extensions
of credit made thereunder (the "NEW FACILITY").
"FORBORNE DEFAULTS": as defined in Section 3.1 of the Sixth
Amendment.
"FRENCH REVOLVER": as defined in Section 7.2(i).
"LENDERS": the collective reference to the Term Loan Lenders, the
Revolving Credit Lenders and the New Lender.
"LOANS": the collective reference to the Term Loans, the Revolving
Credit Loans and the New Loans.
"NEW COMMITMENT": the obligation of the New Lender to make New Loans
in an aggregate principal amount not to exceed $5,000,000.
"NEW COMMITMENT PERIOD": the period from and including the Sixth
Amendment Effective Date to the Revolving Credit Termination Date.
"NEW LENDER": Union Bank of California, N.A.
"NEW LOANS": as defined in Section 2.4A.
"REQUIRED LENDERS": the holders of more than 50% of the sum of (a)
the aggregate unpaid principal amount of the Term Loans, (b) the Total
Revolving Credit Commitments or, if the Revolving Credit Commitments have
been terminated, the Total Revolving Extensions of Credit, and (c) the New
Commitment or, if the New Commitment has been terminated, the principal
amount of New Loans then outstanding.
"SIXTH AMENDMENT": the Sixth Amendment and Forbearance Agreement,
dated as of August 18, 1999, to this Agreement.
"SIXTH AMENDMENT EFFECTIVE DATE": the date on which the Sixth
Amendment became effective in accordance with the terms thereof.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders and
the principal amount of all New Loans then outstanding at such time.
(b Section 1.1 of the Credit Agreement is hereby further amended by
inserting after the phrase "the Letters of Credit," in the definition of the
term "OBLIGATIONS" the phrase "any obligations of the Borrower arising in
connection with its cash management arrangements with any Lender so long as such
Lender does not materially modify its cash management arrangements with the
Borrower in a manner that materially increases the likelihood of losses to such
Lender associated with such arrangements".
2.2 AMENDMENTS TO SECTION 2 (AMOUNT AND TERMS OF COMMITMENTS). (a)
Section 2 of the Credit Agreement is hereby amended by inserting immediately
after Section 2.4 a new Section 2.4A to read as follows:
" 2.4A. NEW COMMITMENT. (a) Subject to the terms and conditions
hereof, the New Lender agrees to make revolving credit loans ("NEW LOANS")
to the Borrower from time to time during the New Commitment Period in an
aggregate principal amount at any one time outstanding which does not
exceed the amount of the New Commitment. During the New Commitment Period
the Borrower may use the New Commitment by borrowing, prepaying the New
Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The New Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.5A and
2.11, PROVIDED that no New Loan shall be made as a Eurodollar Loan after
the day that is one month prior to the Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding New Loans on the
Revolving Credit Termination Date.".
(b) Section 2 of the Credit Agreement is hereby further amended by
inserting immediately after Section 2.5 a new Section 2.5A to read as follows:
" 2.5A. PROCEDURE FOR NEW BORROWING. The Borrower may borrow under the
New Commitment during the New Commitment Period on any Business Day,
PROVIDED that the Borrower shall give the Administrative Agent irrevocable
Notice of Borrowing (which notice must be received by the Administrative
Agent prior to 3:00 p.m., New York City time, (a) three Business Days prior
to the requested Borrowing Date, in the case of Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, in the case of Base
Rate Loans), specifying (i) the amount and Type of New Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each borrowing
under the New Commitment shall be in an amount equal to (x) in the case of
Base Rate Loans, $500,000 or a whole multiple thereof (or, if the then
available New Commitment is less than $500,000 such lesser amount) and (y)
in the case of Eurodollar Loans, $500,000 or a whole multiple thereof.
Such borrowing will be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of the Funding
Office with the amounts made available to the Administrative Agent by the
New Lender and in like funds as received by the Administrative Agent.".
2.3 AMENDMENTS TO SECTION 2.6 (REPAYMENT OF LOANS; EVIDENCE OF DEBT).
(a) Section 2.6(a) of the Credit Agreement is hereby amended by deleting the
first sentence of said Section in its entirety and inserting in lieu thereof the
following:
"The Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of the appropriate Lender (i) the then unpaid
principal amount of each Revolving Credit Loan of each such Revolving
Credit Lender on the Revolving Credit Termination Date (or such earlier
date on which the Loans become due and payable pursuant to Section 8), (ii)
the then unpaid principal amount of each Swing Line Loan of the Swing Line
Lender on the Revolving Credit Termination Date (or such earlier date on
which the Loans become due and payable pursuant to Section 8), (iii) the
then unpaid principal amount of each New Loan of the New Lender on the
Revolving Credit Termination Date (or such earlier date on which the Loans
become due and payable pursuant to Section 8) and (iv) the principal amount
of each Term Loan of each such Term Loan Lender in installments according
to the amortization schedule set forth in Section 2.3 (or on such earlier
date on which the Loans become due and payable pursuant to Section 8).".
(b) Section 2.6(e) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following:
" (e) The Borrower agrees that, promptly following the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver
to such Lender (i) a promissory note of the Borrower evidencing any Term
Loans (a "TERM NOTE"), Revolving Credit Loans (a "REVOLVING CREDIT NOTE"),
Swing Line Loans (a "SWING LINE NOTE") or New Loans (a "NEW NOTE"), as the
case may be, of such Lender, substantially in the forms of Exhibit X-0,
X-0, X-0 xx X-0, respectively, with appropriate insertions as to date and
principal amount.".
2.4 AMENDMENTS TO SECTION 2.9 (OPTIONAL PREPAYMENTS). Section 2.9
of the Credit Agreement is hereby amended (a) by inserting the phrase "New
Loans," immediately after each of the following phrases: "except in the case of"
and "Partial prepayments of" and (b) inserting a new sentence at the end of said
Section to read as follows:
"During the period from the Sixth Amendment Effective Date through the
Revolving Credit Termination Date, any amounts prepaid pursuant to this
Section 2.9 on either the Term Loans or the Revolving Credit Loans shall be
applied, FIRST, to the prepayment of the Term Loans and, SECOND, to the
prepayment of the Revolving Credit Loans.".
2.5 AMENDMENTS TO SECTION 2.10 (MANDATORY PREPAYMENTS AND
COMMITMENT REDUCTIONS). (a) Section 2.10(a) of the Credit Agreement is
hereby amended by deleting said Section in its entirety and inserting in lieu
thereof the following:
" (a) Unless the Required Lenders shall otherwise agree, if on any date
the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds
from any issuance of any Capital Stock or Indebtedness (excluding
Indebtedness in respect of the French Revolver and the New Loans) or any
other Capital Markets Transaction (as defined in the Senior Subordinated
Note Indenture) including, without limitation, any private placement or
public issuance of debt or equity, such Net Cash Proceeds shall be applied
on the date of such issuance or Incurrence toward the prepayment of the
Term Loans and the reduction of the Commitments as set forth in Section
2.10(d).".
(b) Section 2.10(b) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following:
" (b) Unless the Required Lenders shall otherwise agree, if on any date
the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds
from any Asset Sale or Recovery Event such Net Cash Proceeds shall be
applied on such date toward the prepayment of the Term Loans and the
reduction of the New Commitment and the Revolving Credit Commitments as set
forth in Section 2.10(d).".
(c) Section 2.10(c) of the Credit Agreement is hereby amended by
inserting the phrase "New Commitment and the" before the phrase "Revolving
Credit Commitments" in said Section.
(d) Section 2.10(d) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu the following:
" (d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this Section 2.10 shall be applied,
FIRST, to the prepayment of the Term Loans and, SECOND, to reduce
permanently the Revolving Credit Commitments and New Commitments PRO RATA.
Any such reduction of the Revolving Credit Commitments and New Commitments
shall be accompanied by prepayment of the Revolving Credit Loans and/or
Swing Line Loans and New Loans to the extent, if any, that the Total
Revolving Extensions of Credit exceed the amount of the aggregate Revolving
Credit Loans, Swing Line Loans and New Loans, as so reduced. The
application of any prepayment pursuant to this Section 2.10 shall be made,
FIRST, to Base Rate Loans and, SECOND, to Eurodollar Loans. Each
prepayment of the Loans under this Section 2.10 (except in the case of
Revolving Credit Loans and New Loans that are Base Rate Loans and Swing
Line Loans) shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
(e) On each Business Day, after giving effect on such Business Day to
anticipated receipts by, and disbursements of, the Borrower and its
Domestic Subsidiaries, the Borrower shall apply all available cash on hand
in excess of $1,500,000 to the prepayment of the New Loans. Any such
prepayments shall not permanently reduce the New Commitment and are
available for reborrowing.".
2.6 AMENDMENT TO SECTION 2.23 (SWING LINE COMMITMENT). Section 2.23
of the Credit Agreement is hereby amended by deleting the phrase "during the
Revolving Credit Commitment Period" and inserting in lieu thereof the phrase
"prior to the Sixth Amendment Effective Date".
2.7 AMENDMENT TO SECTION 3.1 (L/C COMMITMENT). Section 3.1 of the
Credit Agreement is hereby amended by inserting the phrase "but prior to the
Sixth Amendment Effective Date" immediately after the phrase "After the
Syndication Date".
2.8 AMENDMENT TO SECTION 4.2 (NO CHANGE). Section 4.2 of the Credit
Agreement is hereby amended by deleting the reference to the date "December 31,
1996" and inserting in lieu thereof the phrase "the Sixth Amendment Effective
Date".
2.9 AMENDMENT TO SECTION 4.16 (USE OF PROCEEDS). Section 4.16 of the
Credit Agreement is hereby amended by (a) inserting at the commencement of
Section 4.16(b), the phrase "Prior to the Sixth Amendment Effective Date" and
(b) inserting a new Section 4.16(c) to read as follows:
" (c) The proceeds of the New Loans shall be used for working capital
purposes and other general corporate purposes of the Borrower, and shall be
used only in accordance with the items and in the approximate amounts set
forth in the Budget for the applicable week (except that proceeds may be
used in accordance with items and in the approximate amounts identified in
Budgets for a prior week but not used in such week).".
2.10 AMENDMENT TO SECTION 5.2 (CONDITIONS TO EACH EXTENSION OF
CREDIT). Section 5.2 of the Credit Agreement is hereby amended by inserting a
new Section 5.2(c) to read as follows:
" (c) BORROWING CERTIFICATE. As a condition precedent to the making of
any New Loan, the Administrative Agent shall have received, with a copy for
each Lender, a certificate executed by a Responsible Officer of the
Borrower certifying that (i) the requested Loan and the intended use
thereof are consistent with the terms of this Agreement and is to be used
in accordance with Section 4.16(c), (ii) the proceeds thereof are
necessary, after utilization and application of the Borrowers' available
cash reserves (allowing for reasonable operating cash balances), in order
for the Borrower to satisfy its obligations in the ordinary course of its
business, (iii) except with respect to the Forborne Defaults and the
representations and warranties contained in Section 4.20 of the Credit
Agreement, the representations and warranties contained in Section 4 of the
Credit Agreement are true and correct in all material respects and the
Borrower and the Guarantors have observed and performed all applicable
covenants and agreements contained in the Credit Agreement and in the other
Loan Documents to be observed, performed or satisfied by the Borrower or
the Guarantors and (iv) such officer has no knowledge of any Default or
Event of Default other than a Forborne Default.".
2.11 AMENDMENT TO SECTION 7.5 (LIMITATION ON SALE OF ASSETS). (a)
Section 7.5(d) of the Credit Agreement is hereby amended by deleting said
Section in its entirety and inserting in lieu thereof the following:
" (d) [intentionally omitted]".
(b) Section 7.5(h) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting in lieu thereof the
following:
" (h) [intentionally omitted].".
2.12 AMENDMENT TO SECTION 7.6 (LIMITATION ON DIVIDENDS). Section
7.6 of the Credit Agreement is hereby amended by deleting Sections 7.6(b), (c)
and (d) in their entirety and inserting in lieu thereof the following:
" (b) [intentionally omitted]
(c) [intentionally omitted]
(d) [intentionally omitted].".
2.13 AMENDMENT TO SECTION 7.8 (LIMITATION ON INVESTMENTS, LOANS AND
ADVANCES). Section 7.8(l) of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting in lieu thereof the following:
" (l) [intentionally omitted].".
2.14 AMENDMENT TO SECTION 7.11(LIMITATION ON SALES AND LEASEBACKS).
(a) Section 7.11 of the Credit Agreement is hereby amended by deleting the
phrase ", except if the Net Cash Proceeds of such sale are applied toward the
prepayment of the Term Loans and the reduction of the Revolving Credit
Commitments pursuant to Section 2.10".
2.15 AMENDMENT TO SECTION 10 (MISCELLANEOUS). Section 10 of the
Credit Agreement is hereby amended by inserting immediately following Section
10.1 a new Section 10.1A as follows:
" 10.1A AMENDMENTS AND WAIVERS. No waiver, amendment, supplement or
modification otherwise permitted by Section 10.1 shall (a) forgive the
principal amount or extend the final scheduled date of
maturity of any New Loan, reduce the stated rate of any interest or fee
payable with respect to the New Facility or extend the scheduled date of
any payment thereof, or increase the amount or extend the expiration date
of the New Commitment, in each case without the consent of the New Lender;
or (b) amend, modify or waive any condition precedent to any extension of
credit under the New Facility set forth in Section 5.2 (including, without
limitation, in connection with any waiver of an existing Default or Event
of Default) without the written consent of the New Lender.".
2.16 AMENDMENT TO SECTION 10.6 (SUCCESSORS AND ASSIGNS;
PARTICIPATIONS AND ASSIGNMENTS). Section 10.6(e) of the Credit Agreement is
hereby amended by (a) inserting the phrase ", New Note" immediately after the
phrase "Revolving Credit Note" each time that it appears in said Section and (b)
inserting the phrase ", New Commitment" immediately after the phrase "Revolving
Credit Commitment" each time that it appears in said Section.
2.17 AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended by inserting immediately after Exhibit G-3 a new Exhibit G-4 in the form
of Exhibit A attached hereto.
SECTION 3. AGREEMENTS
3.1 FORBEARANCE. The Lenders hereby agree to forbear, during the
period from the date hereof to October 31, 1999, from the exercise of any rights
or remedies under the Credit Agreement in respect of Defaults or Events of
Default that (a) are set forth on Exhibit B hereto, (b) may arise under Section
7.1 of the Credit Agreement for the period ending on September 30, 1999, (c) may
arise as a result of the failure of the Borrower to pay principal due and owing
on September 30, 1999 on the Term Loans or (d) may arise as a result of the
failure of the Borrower to pay interest due and owing on October 1, 1999 under
the Senior Subordinated Note Indenture (collectively, the "Forborne Defaults").
Prior to October 31, 1999, the Borrower shall be permitted to borrow New Loans
notwithstanding the Borrower's failure to satisfy Section 5.2(b) of the Credit
Agreement due to the existence of the Forborne Defaults.
3.2 FORBEARANCE FEE. The Borrower shall pay to the Administrative
Agent for the ratable benefit of the Lenders a fee equal to $75,000 (the
"FORBEARANCE FEE") which fee shall be earned and payable on the Sixth Amendment
Effective Date.
3.3 LENDERS' FINANCIAL ADVISOR. In the event the Administrative
Agent determines to retain a financial advisor, the Borrower shall pay or
reimburse the Administrative Agent for all reasonable fees and out-of-pocket
expenses associated with such retention.
3.4 FINANCIAL ADVISOR; CONFERENCE CALLS. (a) The Borrower shall
continue to retain Nightingale & Associates LLC or another financial advisor
satisfactory to the Administrative Agent and the Required Lenders (the
"FINANCIAL ADVISOR").
(b Senior management of the Borrower and the Financial Advisor shall
participate in weekly conference calls with the Administrative Agent and the
Lenders and respond promptly to all reasonable inquiries of the Administrative
Agent and the Lenders.
3.5 YEAR 2000 COMPLIANCE. The Borrower shall provide to the
Administrative Agent, on or before August 31, 1999, a report describing in
detail the Borrower's efforts to become year 2000 compliant. The Borrower
hereby certifies that any reprogramming required to permit the proper
functioning in and following the year 2000 of (a) computer systems of the
Borrower or any Subsidiary and (b) systems and equipment containing embedded
microchips of the Borrower or any Subsidiary, and the testing of all such
computer systems and equipment, as so reprogrammed, shall be completed by
December 15, 1999.
3.6 CASH MANAGEMENT. The Borrower shall maintain a system of cash
management that (a) collects domestic accounts receivable in accounts maintained
by the Agent and Mellon Bank, N.A. and (b) concentrates available funds on a
daily basis in a single account maintained by the Administrative Agent. The
Borrower shall cooperate with the Administrative Agent in the review of its
existing cash management system and the development of a streamlined cash
management system. The Borrower shall use its best efforts to deliver to the
Administrative Agent on or before September 15, 1999 depository agreements,
blocked account agreements or lockbox agreements in form and substance
satisfactory to the Administrative Agent with each institution at which the
Borrower or any Subsidiary maintains a deposit account.
3.7 FINANCIAL INFORMATION. The Borrower shall provide to the
Administrative Agent and each Lender all financial information reasonably
requested by the Administrative Agent in form satisfactory to the
Administrative Agent and the Required Lenders including, without limitation,
weekly cash flow projections.
3.8 BUSINESS PLAN. The Borrower shall provide to the
Administrative Agent and each Lender, on or before October 15, 1999, a
strategic business plan which shall provide, among other things, a detailed
description of the Borrower's financing alternatives and asset divestiture
efforts.
3.9 LIMITATION ON INDEBTEDNESS. Notwithstanding anything to the
contrary contained in the Credit Agreement, on and after the Sixth Amendment
Effective Date, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, first create, incur or become
obligated with respect to any new Indebtedness otherwise permitted by Section
7.2 of the Credit Agreement, except (a) the New Loans and (b) Indebtedness
permitted by Sections 7.2(b), (f), (i) and (j) of the Credit Agreement.
3.10 LIMITATION ON CAPITAL EXPENDITURES. Notwithstanding anything
to the contrary contained in the Credit Agreement, on and after the Sixth
Amendment Effective Date, the Borrower shall not, and shall not permit any of
its Subsidiaries to, make or commit to make (by way of the acquisition of
securities of a Person or otherwise) any Capital Expenditure except as set
forth in the Budget.
3.11 AXIOHM S.A.R.L.. Axiohm S.A.R.L. shall at all times maintain
a working capital facility for the purpose of funding working capital needs
in the ordinary course of its business in an amount not less than the Fr.
franc equivalent (determined in good faith by the Borrower) of $1,500,000.
3.12 DEBTOR-IN-POSSESSION FINANCING. In the event the Borrower
shall commence, or there shall be commenced against the Borrower, any case,
proceeding or action relating to bankruptcy or any other insolvency
proceeding, the Borrower shall negotiate with the Lenders in good faith for
the provision by the Lenders of debtor-in-possession financing.
3.13 COMPLIANCE. The Borrower agrees that its failure to perform
any of the agreements set forth in this Section 3 shall constitute an
immediate Event of Default under paragraph (c)(i) of Section 8 of the Credit
Agreement.
3.14 ACKNOWLEDGMENTS. The Borrower hereby acknowledges that (a)
it is truly and justly indebted to the Lenders, without defense, counterclaim
or offset of any kind, in the aggregate principal amount of $58,650,000
(without giving effect to the Sixth Amendment) plus accrued and unpaid
interest and (b) the Obligations (giving effect to the Sixth Amendment) are
secured by valid, perfected, enforceable and unavoidable first priority liens
and security interests upon the Collateral, senior to all other security
interests and liens upon the Collateral (except as set forth in the Security
Agreement) and constitute "Senior Debt" of the Borrower under the Senior
Subordinated Note Indenture.
3.15 RELEASE The Borrower and each Guarantor hereby release and
discharge, individually and collectively, the Administrative Agent, the
Syndication Agent and each Lender, their respective present or former
officers, directors, agents, employees, servants, affiliates, subsidiaries,
general or limited partners, attorneys and representatives as well as their
respective successors and assigns, from and against any and all actions,
causes of action, suits, debts, dues, sums of money, obligations, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, liabilities, rights and demands whatsoever, of whatever
kind or nature, in contract or in tort, in law or equity, known or unknown,
which the Borrower, the Guarantors, or any of them, or any party claiming by
or through the Borrower, the Guarantors, or any of them, ever had, now have
or hereafter can, shall or may have for, upon or by reason of any matter,
cause or thing whatsoever, from the beginning of the world to and including
the Sixth Amendment Effective Date which are based upon, arise under or are
related to the Credit Agreement and the other Loan Documents. The Borrower
and each Guarantor expressly waives any and all rights under any applicable
statute, doctrine or principle of law restricting the right of any person to
release claims which such person does not know or suspect to exist at the
time of executing a release, which claims, if known, may have materially
affected such person's decision to give such a release. In connection with
such waiver and relinquishment, the Borrower and each Guarantor acknowledges
that it is aware that it may hereafter discover claims presently unknown or
unsuspected, or facts in addition to or different from those which it now
knows or believes to be true, with respect to the matters released herein.
Nevertheless, it is the intention of the Borrower and each Guarantor to
fully, finally and
forever settle and release all such matters, and all claims relative thereto
which now exist, may exist or theretofore have existed between or among the
Borrower, the Guarantors, or any of them, and the Lenders, as specifically
provided herein.
3.16 AMENDMENT TO GUARANTEE AND COLLATERAL AREEMENT. The Borrower
and each Guarantor shall execute and deliver to the Administrative Agent the
Amendment to the Guarantee and Collateral Agreement, in the form attached
hereto as Exhibit C (the "COLLATERAL AGREEMENT AMENDMENT"). Each Lender
hereby authorizes the Administrative Agent to execute the Collateral
Agreement Amendment.
SECTION 4. MISCELLANEOUS.
4.1 EFFECTIVENESS. This Amendment shall become effective as of
the date first set forth above upon (a) receipt by the Administrative Agent
of counterparts of this Amendment, duly executed and delivered by the
Borrower, the Guarantors, Union Bank of California, N.A., the Required
Lenders and the Administrative Agent, (b) receipt by the Administrative Agent
of payment of all reasonable costs and expenses (including the reasonable
fees and disbursements of counsel) incurred by the Administrative Agent and
the Lenders in connection with this Amendment, (c) receipt by the
Administrative Agent of a duly executed Assumption Agreement (as defined in
the Guarantee and Collateral Agreement) by Cognitive L.L.C., (d) receipt by
the Administrative Agent of the Collateral Agreement Amendment, duly executed
and delivered by the Borrower, the Guarantors and the Administrative Agent,
(e) receipt by the Administrative Agent of resolutions duly adopted by the
Board of Directors of the Borrower and the Guarantors authorizing the
transactions contemplated by this Amendment and (f) receipt by the
Administrative Agent of evidence satisfactory to the Administrative Agent and
the Required Lenders that the facility referred to in Section 3.11 is in
place at the time the conditions contained in clauses (a) through (e) of this
Section 4.1 are satisfied.
4.2 CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly
amended or waived hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect. The amendments contained herein shall not constitute an amendment or
waiver of any other provision of the Credit Agreement or the other Loan
Documents or for any purpose except as expressly set forth herein.
4.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all the counterparts shall together
constitute one and the same instrument. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof, and the
failure to deliver an executed counterpart by other means shall not affect
the validity, enforceability or binding effect of this Amendment.
4.4 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed and delivered by their respective duly authorized officers as
of the date first above written.
AXIOHM TRANSACTION SOLUTIONS, INC.
By: [sig.]
Name:
Title:
AXIOHM S.A.R.L. (formerly known as AXIOHM S.A.,
successor by merger to AXIOHM-INVESTISSEMENTS)
By: [sig.]
Name:
Title:
AXIOHM E.U.R.L. (formerly known as DARDEL
TECHNOLOGIES, S.A.).
By: [sig.]
Name:
Title:
AXIOHM IPB, INC.
By: [sig.]
Name:
Title:
STADIA COLORADO CORP.
By: [sig.]
Name:
Title:
COGNITIVE SOLUTIONS, INC.
By: [sig.]
Name:
Title:
COGNITIVE L.L.C.
By: [sig.]
Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as
Administrative Agent and as a Lender
By: [sig.]
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and as a Lender
By: [sig.]
Name:
Title:
SOUTHERN PACIFIC BANK
By: [sig.]
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By: [sig.]
Name:
Title:
By: [sig.]
Name:
Title:
BALANCED HIGH-YIELD FUND I LTD.
By: BHF (USA) Capital Corporation, as
attorney-in-fact
By: [sig.]
Name:
Title:
By: [sig.]
Name:
Title:
BSB BANK & TRUST COMPANY
By: [sig.]
Name:
Title:
IMPERIAL BANK, A CALIFORNIA BANKING CORPORATION
By: [sig.]
Name:
Title:
MELLON BANK, N.A.
By: [sig.]
Name:
Title:
SOCIETE GENERALE
By: [sig.]
Name:
Title:
BANQUE NATIONALE DE PARIS
By: [sig.]
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: [sig.]
Name:
Title:
CREDIT LYONNAIS
By:
Name:
Title:
