Exhibit 10.4
SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this
"Amendment") is entered into as of this 30th of June, 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
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 3 1, 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 and that Fifth Amendment to Credit Agreement dated
as of February 17, 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. Name Change; Location Change.
Agent and Lenders consent to the change of name of
ColorMasters, Inc. to ColorSpan Latin America, Inc. ("CSLA") and to the
establishment of an office for CSLA at 0000 Xxxxxxxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxx, Xxxxxxx 00000. Borrower represents to Agent and Lenders that the FEIN for
CSLA is 41-17615-II.
SECTION 2. Transfer of Assets.
Agent and Lenders hereby consent to the transfer from Borrower
to CSLA of accounts, inventory, general intangibles and books and records
relating to business conducted by Borrower in Latin America.
SECTION 3. Amendments to Credit Agreement.
(a) Definitions. Schedule A to the Credit Agreement is
amended as follows:
(i) to delete the definition of ColorMasters and
insert the following definition in its place:
"CSLA" shall mean ColorSpan Latin America,
Inc., a Minnesota corporation.
(ii) to delete the definition of "Asia/Pacific" and
insert the following definition in its place:
"Asia/Pacific" shall mean ColorSpan
Asia/Pacific, Inc., a Minnesota corporation
(iii) clause (a) of the definition of Borrowing Base
is amended to read in its entirety as follows:
(a) sixty 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 or the amount
calculated in this clause (a) with respect
to CSLA exceed $250,000 at any time.
(b) General Amendment. All references in the Credit Agreement
and other Loan Documents to ColorMasters shall be changed to refer to CSLA.
(c) New Negative Covenant. The following additional negative
covenant is added to the Credit Agreement:
6.24 CSLA. Borrower shall not cause or permit CSLA to
incur obligations or indebtedness other than (a)
obligations owing to Borrower, (b) obligations
arising solely by operation of law, (c) Indebtedness
permitted under Sections 6.3(i) and 6.7(iii), and (d)
obligations under any lease of real estate which do
not exceed $300,000 per year.
(d) Amend Section 6.3(i). Clause (i) of Section 6.3 is amended
to read as follows:
(i) Indebtedness of Borrower, Asia/Pacific and CSLA
permitted under Section 6.7.
(e) Amendment to Section 6.7(iii). The parenthetical carve-out
in clause (iii) of Section 6.7 is amended to read as follows:
"(provided that the aggregate amount incurred by
Asia/Pacific shall not exceed $300,000 at any time
and the aggregate amount incurred by CSLA shall not
exceed $300,000 at any time.)"
SECTION 4. Representations and Warranties. 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 5. 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.
(b) Delivery to Agent from CSLA of a UCC-3 amendment for
filing in Minnesota and a UCC- I for filing in Florida.
SECTION 6. 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 7. 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 8. 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 9. 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 10. 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 11. 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:____________________________
