Exhibit 4.29
TWELFTH AMENDMENT TO CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO CREDIT AGREEMENT (this "Twelfth Amendment")
-----------------
is made and entered into as of June 6, 2001 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 Delaware corporation ("Danka
-------- -----
Holding") (Danka PLC, Dankalux and Danka Holding are herein each a "Company" and
-------
collectively the "Companies"), AMERICAN BUSINESS CREDIT CORPORATION, AMERITREND
---------
CORPORATION, CORPORATE CONSULTING GROUP, INC., D.I. INVESTMENT MANAGEMENT, INC.,
DANKA IMAGING DISTRIBUTION, INC., DANKA MANAGEMENT COMPANY, INC., DANKA OFFICE
IMAGING COMPANY, DYNAMIC BUSINESS SYSTEMS, INC., XXXXXX ENTERPRISES, INC. OF
SOUTH FLORIDA, QUALITY BUSINESS, INC. (collectively with Danka Holding, the
"Grantors"), the entities listed on the signature pages hereof as International
---------
Swing Line Borrowers (collectively the "International Borrowers" and together
-----------------------
with the Grantors and the Companies, the "Danka Parties"), BANK OF AMERICA,
-------------
NATIONAL ASSOCIATION (formerly known as NationsBank, National Association, a
national banking association formerly known as NationsBank, National Association
(Carolinas)), each other Bank listed on the signature pages hereof (each
individually, a "Bank" and collectively, the "Banks"), and BANK OF AMERICA,
---- -----
NATIONAL ASSOCIATION (formerly known as 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 dated as of December 5, 1996, as amended and supplemented by a
First Amendment dated as of December 5, 1997, a Second Amendment dated as of
July 28, 1998, a Third Amendment dated as of December 31, 1998, a Fourth
Amendment dated as of March 29, 1999, a Fifth Amendment dated as of June 15,
1999, a Sixth Amendment dated as of July 9, 1999, a Seventh Amendment dated as
of December 1, 1999, an Eighth Amendment dated as of March 24, 2000, a Ninth
Amendment dated as of October 31, 2000, a Tenth Amendment dated as of December
15, 2000, an Eleventh Amendment dated as of March 28, 2001, a Waiver Letter
Agreement dated as of October 20, 1998 and a Waiver Letter Agreement dated as of
February 18, 1999 (as further amended hereby and as from time to time further
amended, supplemented or modified, 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, Article VII of the Credit Agreement contains affirmative
covenants, compliance with which cannot be waived or amended without the written
consent of the Majority Banks; and
WHEREAS, the Danka Parties have requested that the Banks waive
compliance with certain of the affirmative covenants as provided herein; and
WHEREAS, Article VIII of the Credit Agreement contains financial
covenants, compliance with which cannot be waived or amended without the written
consent of the Majority Banks; and
WHEREAS, the Danka Parties have requested that the Banks provide
written consent to the amendment of the financial covenants as provided herein;
and
WHEREAS, the Banks and the Danka Parties have agreed to amend certain
provisions of the Credit Agreement and to certain other agreements of the
parties, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other good and sufficient consideration, receipt of which is hereby
acknowledged, the Danka Parties and the Banks do hereby agree as follows:
1. Definitions. Any capitalized terms used herein without definition
-----------
shall have the meaning set forth in the Credit Agreement.
2. Amendment of Section 7.1(b) of the Credit Agreement. The Banks
---------------------------------------------------
hereby waive compliance with the provisions of Section 7.1(b) of the Credit
Agreement solely to the extent the failure to comply with said section is the
result of (i) the certification of KPMG Audit PLC or other internationally
recognized independent public accountants accompanying the annual audit report
for the fiscal year ended March 31, 2001 containing an Impermissible
Qualification of the type described in clause (a) of the definition thereof
and/or (ii) the failure of KPMG Audit PLC or other internationally recognized
independent public accountants to deliver a certificate to the effect that 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, in each case, for the fiscal year ended March 31,
2001.
3. Amendment of Section 8.3 of the Credit Agreement. Subject to the
------------------------------------------------
terms and conditions set forth herein, Section 8.3 of the Credit Agreement is
amended by amending and restating clause (viii) thereof as follows:
"(viii) Notwithstanding anything to the contrary contained in
this Section 8.3, compliance with the financial covenants in
-----------
clauses (i) through (v) of this Section 8.3 shall be deemed
-----------
satisfied for the period beginning on or after March 28, 2001 and
through and including the earlier of (1) July 16, 2001 and (2)
the date on which there shall have occurred a "Designated Event"
as such term is defined in that certain indenture dated March 13,
1995, between Danka PLC, as issuer, and The Bank of New York, as
trustee, pursuant to which Danka PLC issued the Convertible
Subordinated Notes, and any Event of Default that may have
existed on or
-2-
after March 28, 2001 as a result of any failure by the Danka
Parties to comply therewith during such period shall be waived,
if the Danka Parties do not permit:
(a) The Consolidated Fixed Charge Coverage Ratio as at
the end of the four fiscal quarter period ending on March
31, 2001 to be less than 0.90 to 1.00;
(b) At any time on and after March 28, 2001 and on or
prior to July 16, 2001 the Adjusted Consolidated Net Worth
of Danka PLC and its Subsidiaries to be less than
$200,000,000;
(c) The Consolidated Total Leverage Ratio as at the end
of March 31, 2001 for the four fiscal quarter period then
ending to exceed 5.50 to 1.00;
(d) The cumulative Consolidated EBITDA of Danka PLC and
its Subsidiaries for the four fiscal quarter period ending
on March 31, 2001 to be less than $149,000,000; and
(e) The ratio of (A) Consolidated EBITDA to (B) gross
interest expense in each case of Danka PLC and its
Subsidiaries as at the end of the four fiscal quarter period
ending on March 31, 2001 to be less than 1.90 to 1.00.
For purposes of subsections (a), (c), (d) and (e) in this Section 8.3(viii), the
calculation of the Consolidated EBITDA for the four fiscal quarter period ending
March 31, 2001 shall add to income from continuing operations the actual
restructuring or special charges for such period in an amount not to exceed
$158,904,000. In addition, for purposes of subsections (a), (b) and (e) in this
Section 8.3(viii), the impact of the $10,000,000 waiver extension fee under the
-----------------
Sixth Amendment on the interest expense for such period shall be excluded.
Notwithstanding anything to the contrary in this Agreement, upon any occurrence
of the circumstances described in subclause (2) of clause (viii) of this Section
-------
8.3, then immediately, automatically and without any prior notice thereof, an
---
"Event of Default" as such term is defined in Section 9.1 of this Agreement
-----------
shall be deemed to have occurred."
4. Effectiveness. This Twelfth Amendment shall become effective upon
-------------
(a) receipt by the Agent of an executed copy of this Twelfth Amendment (which
may be signed in counterparts and may be received by facsimile transmission)
signed by the Danka Parties and the Majority Banks, and (b) receipt by the Agent
of a copy of a waiver (in form and substance satisfactory to the Agent) of
violations of the financial covenants incorporated in the tax retention
operating lease documents.
-3-
5. Expenses. The Danka Parties agree promptly to pay or reimburse
--------
reasonable expenses of the Steering Committee and its members (including the
reasonable fees and expenses of outside counsel for the Steering Committee and
each of its members) incurred in connection with this Twelfth Amendment. The
Companies acknowledge and agree that the Agent has caused its counsel to retain
PricewaterhouseCoopers LLP as independent business consultant (the "Consultant")
----------
to assess on behalf of the Agent, its counsel and the Banks the operations,
finances, and business affairs of Danka PLC and its Subsidiaries and to furnish
reports of its findings and recommendations solely to the Agent, its counsel and
the Banks. The Companies jointly and severally agree to pay all reasonable
fees, costs, and expenses of the Consultant incurred in connection with the
performance by the Consultant of its duties described in this paragraph. The
Companies shall, and shall cause all Subsidiaries to, cooperate fully and in a
timely manner with the Consultant, including its agents and employees.
6. Acknowledgment; Release.
-----------------------
(a) The Companies and the Grantors acknowledge that they
have no existing defense, counterclaim, offset, cross-
complaint, claim or demand of any kind or nature
whatsoever that can be asserted to reduce or eliminate
all or any part of any of their respective liability to
pay the full indebtedness outstanding under the terms
of the Credit Agreement and any other documents which
evidence, guaranty or secure the Obligations. The
Companies and the Grantors hereby release and forever
discharge the Agent, the International Swing Line
Banks, the Banks and all of their officers, directors,
employees, attorneys, consultants and agents from any
and all actions, causes of action, debts, dues, claims,
demands, liabilities and obligations of every kind and
nature, both in law and in equity, known or unknown,
whether matured or unmatured, absolute or contingent.
(b) The International Swing Line Borrowers acknowledge that
they have no existing defense, counterclaim, offset,
cross-complaint, claim or demand or any kind or nature
whatsoever that can be asserted to reduce or eliminate
all or any part of their respective liability to pay
the full indebtedness owed by any of them under the
terms of the International Swing Line Agreement or any
separate facility which has been made available to any
of them by any International Swing Line Bank or a
Designated Local Lender (as defined in the
International Swing Line Agreement) and any agreements
related thereto. The International Swing Line Borrowers
hereby release and forever discharge the Agent, the
International Swing Line Banks and the Designated Local
Lenders (as defined in the International Swing Line
Agreement) and all of
-4-
their officers, directors, employees, attorneys,
consultants and agents from any and all actions, causes
of action, debts, dues, claims, demands, liabilities
and obligations of every kind and nature, both in law
and in equity, known or unknown, whether matured or
unmatured, absolute or contingent.
(c) The Danka Parties further acknowledge and agree that
any breach by the Danka Parties in the timely
performance, observance, or fulfillment of any of the
terms or conditions stated herein shall, unless the
Majority Banks shall otherwise agree in writing,
constitutes an Event of Default under the Credit
Agreement.
7. Entire Agreement. This Twelfth 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.
8. Deemed Amendment of Other Loan Documents; Full Force and Effect.
---------------------------------------------------------------
To the extent necessary to give effect to the provisions hereof, the
International Swing Line Agreement and Security Agreement shall be deemed
amended and supplemented by the terms hereof. 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.
9. Counterparts. This Twelfth Amendment may be executed in any number
------------
of counterparts (including, without limitation, counterparts sent by facsimile
transmission), 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.
10. Governing Law. This Twelfth Amendment shall in all respects be
-------------
governed by the laws and judicial decisions of the State of Florida.
11. Enforceability. Should any one or more of the provisions of this
--------------
Twelfth Amendment be determined to be illegal or unenforceable as to one of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
12. Authorization. This Twelfth Amendment has been duly authorized,
-------------
executed and delivered by the parties hereto and constitutes a legal, valid and
binding obligation of the parties hereto, except as may be limited by general
principles of equity or by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally.
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
WTTNESS: DANKA BUSINESS SYSTEMS PLC
By:_________________________________________
Name:_______________________________________
Title:______________________________________
DANKA HOLDING COMPANY
By:_________________________________________
Name:_______________________________________
Title:______________________________________
DANKALUX SARL & CO. SCA
BY: DANKALUX SARL, COMMANDITE
By:_________________________________________
Name:_______________________________________
Title:______________________________________
-6-
AMERICAN BUSINESS CREDIT CORPORATION
AMERITREND CORPORATION
CORPORATE CONSULTING GROUP, INC.
D.J. INVESTMENT MANAGEMENT, INC.
DANKA IMAGING DISTRIBUTION, INC.
DANKA MANAGEMENT COMPANY, INC.
DANKA OFFICE IMAGING COMPANY
DYNAMIC BUSINESS SYSTEMS, INC.
XXXXXX ENTERPRISES, INC. OF SOUTH FLORIDA
By:_________________________________________
Name:_______________________________________
Title:______________________________________
QUALITY BUSINESS, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
-7-
INTERNATIONAL SWINGLINE BORROWERS
---------------------------------
DANKA CHILE COMERCIAL LTDA
DANKA DO BRASIL LIMITADA
DANKA MEXICANA S DE RL DE CV
DANKA DE PANAMA X.X.
XXXXX DE COLOMBIA
PUERTO RICO DANKA INC.
DANKA DE VENEZUELA X.X.
XXXXX AUSTRALIA PTY LIMITED &
DANKA NEW ZEALAND LIMITED
DANKA OFFICE IMAGING (JAPAN)
DANKA PHILIPPINES INC.
DANKA FRANCE S.A.R.L.
DANKA FRANCE XX
XXXXX OFFICE IMAGING GMBH,
DANKA DEUTSCHLAND GMBH,
DANKA DISTRIBUTION GMBH,
DANKA DEUTSCHLAND HOLDING GMBH
DANKA OFFICE PRODUCTS B.V.
DANKA ITALIA S.P.A., BASSILLICHI INFOTEC
S.P.A., DANKA S.P.A. & DANKA OFFICE
IMAGING S.P.A.
DANKA HOLDINGS BV, DANKA EUROPE BV,
DANKA DISTRIBUTION BV (FKA INFOTEC
EUROPE BV), INFOTEC NEDERLAND BV,
DANKA GROUP BV, DANKA SERVICES
INTERNATIONAL BV, DANKA OFFICE
PRODUCTS BV, INFOTEC PARTICIPATIE BV,
AND DANKA NEDERLAND BV
DANKA OFFICE PRODUCTS BV
DANKA BUSINESS SYSTEMS PLC,
DANKALUX SARL & CO. SCA &
DANKA HOLDING COMPANY
By: ___________________________________________
Name: F. Xxxx Xxxxxxxxx
Title: Director
-8-
BANK OF AMERICA, NATIONAL ASSOCIATION. (formerly known
as NationsBank, N.A.), as Agent and Issuing Bank, and
individually as an International Swing Line Bank and a
Bank
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
THE BANK OF NOVA SCOTIA
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
THE BANK OF NEW YORK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
CIBC INC.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-9-
PNC BANK, N.A.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
FIRST UNION NATIONAL BANK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
SUNTRUST BANK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
THE FUJI BANK AND TRUST COMPANY
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
ABN AMRO BANK N.V.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-00-
XXX XXXXXXX
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
HIBERNIA NATIONAL BANK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
SAN PAOLO IMI SPA
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-11-
LLOYDS TSB BANK PLC
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
BANCA COMMERCIALE ITALIANA
New York Branch
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
AMSOUTH BANK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-00-
XXX XXXX XX XXXXX-XXXXXXXXXX, XXX.,
XXX XXXX BRANCH
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
BANKERS TRUST COMPANY
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
THE DAI-ICHI KANGYO BANK, LIMITED
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
NATIONAL AUSTRALIA BANK LIMITED
ACN 004044937
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-00-
XXX XXXXX XXXX XXXXXXX, XXX XXXX BRANCH
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
WACHOVIA BANK, N.A.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
NATIONAL WESTMINSTER BANK PLC
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
BANCA NAZIONALE DEL LAVORO S.p.A. -
LONDON BRANCH
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
CREDIT AGRICOLE INDOSUEZ
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-00-
XXXXX XXXXXX XXXX AND TRUST COMPANY
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
CHASE SECURITIES, INC.,
as agent for The Chase Manhattan Bank
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
LAZARD BANK LIMITED
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
SOUTHTRUST BANK
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
BT HOLDINGS (NEW YORK) INC.
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
XXXXXX BROTHERS BANKHAUS AG, LONDON BRANCH
By:___________________________________________________
Name:_________________________________________________
Title:________________________________________________
-15-
