Exhibit 10.2
NINTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
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This NINTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this
"Amendment") is entered into as of this 25/th/ day of January, 1999 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 and that Eighth Amendment and Consent to Credit
Agreement dated as of December 30, 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. Overadvance.
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Notwithstanding the provisions set forth in Section 1.1(a) of the
Credit Agreement, Agent and Lenders hereby consent to Revolving Credit Advances
to Borrower in an amount up to One Million Dollars ($1,000,000) in excess of the
Borrowing Base (the "Overadvance"); provided, however, that the aggregate amount
of all Revolving Credit Advances shall not at any time exceed Ten Million
Dollars ($10,000,000). Agent and Lender's consent to such overadvance (the
"Overadvance Commitment") shall terminate on the earlier of March 31, 1999 or
the Overadvance Termination Date, as hereinafter defined.
Section 2. Repayment of Overadvance.
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Borrower shall have the right at any time, on prior written notice to
Agent and without premium, penalty or fee, to voluntarily prepay all or part of
the Overadvance and permanently reduce or terminate the Overadvance Commitment.
Notwithstanding anything to the contrary in Section 1.10 of the Credit
Agreement, and provided that Borrower has paid all other Obligations then due,
Borrower may direct Agent to apply payments to reduce the amount of the
Overadvance. Such ability of Borrower to direct payments shall terminate on the
earlier of March 31, 1999 or the Overadvance Termination Date, as hereinafter
defined.
Section 3. Consent to Intercompany Loan.
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Agent and Lenders consent to the intercompany loan by Borrower to
XxxxxxxXxxx.xxx, Inc. (f/k/a LaserMaster Technologies, Inc.), a Minnesota
corporation ("Holdings") in an amount not to exceed One Million Five Hundred
Thousand Dollars ($1,500,000) for the purposes of paying those certain Non-
Negotiable Unsecured Subordinated Promissory Notes dated December 18, 1998 made
by Holdings in favor of Xxxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxxx and Xxxxxxx
Xxxxxx in the total original principal amount of One Million Four Hundred
Twenty-Eight Thousand Two Hundred Twenty and 53/100 Dollars ($1,428,220.53)
(collectively, the "Notes"). Such Notes were issued by Holdings as consideration
for the merger of K&R Technical Services, Inc., an Iowa corporation, with and
into XXXxxx.xxx, Inc. (f/k/a Virtual Acquisition Corp. I), a Minnesota
corporation and wholly owned subsidiary of Holdings.
Section 4. Release of Intellectual Property Lien.
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Notwithstanding anything to the contrary in Section 11.16 of the
Credit Agreement or the Intellectual Property Security Agreements (as
hereinafter defined), Agent and Lenders agree to release their Liens created
pursuant to those certain Patent Security Agreements, Trademark Security
Agreements and Copyright Security Agreements of even date herewith (the
"Intellectual Property Security Agreements") executed by each of Borrower,
Asia/Pacific and CLSA in favor of Agent, on behalf of itself and Lenders, only
upon the earlier of the Overadvance Termination Date or the Termination Date.
Section 5. Amendments to Definitions in Credit Agreement.
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(a) Definitions. Schedule A to the Credit Agreement is amended to
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insert the following definitions:
"Overadvance Termination Date" shall mean the date that
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Agent receives payment in full of the Overadvance and notice
from Borrower of the termination of the Overadvance
Commitment.
"RSPnet" shall mean XXXxxx.xxx, Inc. (f/k/a Virtual
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Acquisition Corp. I), a Minnesota corporation.
"K&R" shall mean K&R Technical Services, Inc., an Iowa
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corporation.
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Section 6. 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 7. 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) The payment of a fee equal to the lesser of SIXTY THOUSAND
DOLLARS ($60,000) or six percent (6%) of the Overadvance.
(c) Delivery to Agent of a pledge agreement executed by Holdings with respect
to the stock of RSPnet, along with share certificates for all of the outstanding
capital stock of RSPnet and stock powers endorsed in blank.
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(d) Delivery to Agent of a pledge agreement executed by Borrower with
respect to the intercompany note issued by Holdings to Borrower along with the
original of that note endorsed to Agent.
(e) Delivery to Agent of copyright, patent and trademark security
agreements executed by Borrower, Asia/Pacific, CSLA and Agent.
(f) Delivery to Agent of a warrant representing the right to purchase
50,000 shares of common stock of Holdings.
Section 8. 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 9. 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 10. Costs and Expenses. As provided in Section 11.3 of the
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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 11. 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 12. 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 13. 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.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
COLORSPAN CORPORATION
(f/k/a Laser Master Corporation)
By:_______________________________
Title:____________________________
Revolving Credit Loan GENERAL ELECTRIC CAPITAL
Commitment: $10,000,000 CORPORATION, as Agent
By:_______________________________
Title:____________________________
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