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EXHIBIT 4.22
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Eighth Amendment") is
made and entered into as of March 24, 2000 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., HERMAN
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"):
WITNESSETH:
WHEREAS, the Companies, the Banks and the Agent have entered into a
Credit Agreement 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 (the "Fourth Amendment"), a Fifth Amendment dated as of
June 15, 1999 (the "Fifth Amendment"), a Sixth Amendment dated as of July 9,
1999 (the "Sixth Amendment"), a Seventh Amendment dated December 1, 1999 (the
"Seventh Amendment"), a Waiver Letter dated as of October 20, 1998 (the
"October Waiver Letter Agreement") and a Waiver Letter Agreement dated as of
February 18, 1999 (the "February Waiver Letter Agreement" and, together with
the October Waiver Letter Agreement, the "Waiver Letter Agreements") (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, in accordance with the provisions of Section 5 of the Seventh
Amendment, certain Net Subscription Proceeds received by Danka PLC or any of
its Subsidiaries from the issuance of Participating Shares were applied to the
permanent
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reduction of Term Loan Outstandings and the related reduction of the Term Loan
Commitments; and
WHEREAS, Danka Holding desires to sell certain real estate located in
St. Petersburg, Florida known as the Roosevelt Corporate Center III (the
"Project"), which property is subject to a mortgage granted to certain lenders
(the "TROL Lenders") pursuant to the tax retention lease operating documents
(the "TROL Documents") to which certain Danka Parties are party; and
WHEREAS, to release the mortgage held by the TROL Lenders so to
effectuate the sale of the Project Danka Holding needs to repay a certain sum
(the "Termination Value") of principal indebtedness owed to the TROL Lenders;
and
WHEREAS, Danka Holding desires to pay the Termination Value to the
TROL Lenders upon the sale of the Project from the net sale proceeds and from
funds held in a cash collateral account in which the TROL Lenders hold a first
priority security interest; and
WHEREAS, the Credit Agreement, as amended, permits Danka Holding to
make cash collateral payments for the benefit of the TROL Lenders (including
payments required as a result of the sale of collateral securing the
obligations owed to the TROL Lenders ) but does not permit any required
principal payments under the TROL Documents; and
WHEREAS, the Company has requested that the Agent and the Banks
consent to the further reduction of the Term Loan Commitments, to the
rescheduling of the April 1, 2000 payment of Term Loan Outstandings, and to
certain prepayments of the Companies' tax retention operating lease
obligations, each as specified below;
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. Reduction of Term Loan Commitments. The aggregate amount of
all Term Loan Commitments is hereby permanently reduced to $155,000,000, and,
Schedule 2.1 to the Credit Agreement is hereby amended by reducing the Term
Loan Commitment of each Bank by its Pro Rata Share of such reduction.
3. Rescheduling April 1, 2000 Payment. The $25,000,000 payment
of Term Loan Outstandings scheduled to be made on April 1, 2000 in accordance
with the provisions of Section 2.9(c) and Schedule V of the Credit Agreement is
hereby rescheduled to be and become due and payable on March 30, 2000, and
Schedule V of the Credit Agreement is hereby amended to include such rescheduled
installment.
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4. Offshore Currencies. Sections 2.3(a) and 2.5(a) of the Credit
Agreement are hereby amended to provide that the Agent shall (i) receive notice
of certain Offshore Currency Loans not less than four Business Days (or five
Business Days in the case of Japanese Yen and Australian Dollar) prior to the
requested Borrowing Date or conversion or continuation date of a Loan and (ii)
determine the Dollar Equivalent Amount of such Loans three Business Days (or
four in the case of Japanese Yen or Australian Dollars) prior to the Borrowing
Date or the date of conversion or continuation of a Loan.
5. Partial Repayment of Tax Retention Operating Lease.
Notwithstanding any provision of the Loan Documents or related agreements to the
contrary, the Companies may make payments to the TROL Lenders of the
"Termination Value" of properties purchased under the TROL Documents, including
the principal amount of loans and "Holder Advances" under the TROL, in an
aggregate amount of up to $22,000,000; provided that funds for such payments
shall be derived solely from (i) cash collateral previously set aside for the
TROL Lenders, and investment earnings thereon, and (ii) Net Proceeds (determined
without any reduction in respect of outstanding TROL obligations constituting
Indebtedness) from the sale, on or before May 31, 2000 at a gross cash purchase
price of not less than $12,000,000, of the Project and the application of such
Net Proceeds to such payment of TROL obligations shall be in lieu of any other
application thereof as may otherwise be required under the Loan Documents. The
sale of the Project on the foregoing terms is hereby permitted, provided that
100% of Net Proceeds from such sale (determined as provided above) shall be
applied promptly, and in any event within three (3) Business Days of the receipt
thereof to the repayment of TROL obligations as contemplated above.
6. Effectiveness. This Eighth Amendment shall become effective
as of March 24, 2000 upon receipt by the Agent of an executed copy of this
Eighth Amendment (which may be signed in counterparts and may be received by
facsimile transmission) signed by the Danka Parties and the Majority Banks.
7. Acknowledgment; Release.
(a) The Companies and the Grantors acknowledge that they have no
existing defense, counterclaim, offset, cross-compliant, 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 of any kind or nature whatsoever that can be asserted to reduce or
eliminate all or any part of their
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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 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.
8. Entire Agreement. This Eighth 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.
9. 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.
10. Counterparts. This Eighth 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.
11. Governing. This Eighth Amendment shall in all respects be
governed by the laws and judicial decisions of the State of Florida.
12. Enforceability. Should any one or more of the provisions of
this Eighth 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.
13. Authorization. This Eighth 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.
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IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be duly executed and delivered by their property and duly authorized officers
as of the day and year first above written.
WITNESS: DANKA BUSINESS SYSTEMS PLC
By: /s/ Brian L. Merriman
---------------------------------- -------------------------------------
Name: Brian L. Merriman
---------------------------------- -----------------------------------
Title: Director
----------------------------------
DANKA HOLDING COMPANY
By: /s/ Laurens F. Schaad, Jr.
-------------------------------------
Name: Laurens F. Schaad, Jr.
-----------------------------------
Title: Vice President, Treasurer
----------------------------------
DANKALUX SARL & CO. SCA
By: Dankalux Sarl, Commandite
By: /s/ L. Jean Berry
-------------------------------------
Name: L. Jean Berry
-----------------------------------
Title: Manager
----------------------------------
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AMERICA 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.
HERMAN ENTERPRISES, INC. OF
SOUTH FLORIDA
By: /s/ Laurens F. Schaad, Jr.
-------------------------------------
Name: Laurens F. Schaad, Jr.
-----------------------------------
Title: Vice President, Treasurer
----------------------------------
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BANK OF AMERICA, NATIONAL ASSOCIATION,
as Agent and Issuing Bank
By: /s/ John E. Williams
-------------------------------------
Name: John E. Williams
-----------------------------------
Title: Managing Director
----------------------------------
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Bank and International Swing
Line Bank
By: /s/ John E. Williams
-------------------------------------
Name: John E. Williams
-----------------------------------
Title: Managing Director
----------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ Olivia L. Braun
-------------------------------------
Name: Oliva L. Braun
-----------------------------------
Title: Director
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Linda D. Tulloch
-------------------------------------
Name: Linda D. Tulloch
-----------------------------------
Title: Vice President
----------------------------------
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CIBC INC,
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PNC BANK, KENTUCKY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FIRST UNION NATIONAL BANK
By: /s/ G. C. Ullrich
-------------------------------------
Name: G. C. Ullrich
-----------------------------------
Title: Senior Vice President
----------------------------------
SUNTRUST BANK
By: /s/ T. Michael Logan
-------------------------------------
Name: T. Michael Logan
-----------------------------------
Title: Managing Director
----------------------------------
THE FUJI BANK AND TRUST COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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ABN AMRO BANK N.V.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PARIBAS
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
DEUTSCHE BANK AG
New York Branch and/or
Cayman Island Branch
By: /s/ Alexander Karow
-------------------------------------
Name: Alexander Karow
-----------------------------------
Title: Assistant Vice President
----------------------------------
By: /s/ Silvia L. Speer
-------------------------------------
Name: Silvia L. Speer
-----------------------------------
Title: Director
----------------------------------
HIBERNIA NATIONAL BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SAN PAOLO IMISPA
By: /s/ Carlo Persico
-------------------------------------
Name: Carlo Persico
-----------------------------------
Title: D.G.M.
----------------------------------
By: /s/ Glen Binder
-------------------------------------
Name: Glen Binder
-----------------------------------
Title: Vice President
----------------------------------
LLOYDS TSB, BANK PLC
By: /s/ Paul D. Briamonte & David Rodway
-------------------------------------
Name: Paul D. Briamonte & David Rodway
-----------------------------------
Title: Director, Project Finance;
Assistant Director
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE SUMITOMO BANK, LIMITED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANCA COMMERCIALE ITALIANA
New York Branch
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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AMSOUTH BANK OF FLORIDA
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BANKERS TRUST COMPANY
By: /s/ Silva L. Spear
-------------------------------------
Name: Silva L. Spear
-----------------------------------
Title: Director
----------------------------------
THE DAI-ICHI KANGYO BANK, LIMITED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NATIONAL AUSTRALIA BANK LIMITED
ACN 004044937
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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SANWA BANK LIMITED
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE TOKAI BANK LIMITED,
NEW YORK BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WACHOVIA BANK, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NATIONAL WESTMINISTER BANK PLC
By: /s/ Paul D. J. Sullivan
-------------------------------------
Name: Paul D. J. Sullivan
-----------------------------------
Title: Senior Manager
----------------------------------
BANCA NAZIONALE DEL LAVORO S.p.A. --
LONDON BRANCH
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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CREDIT AGRICOLE INDOSUEZ
By: /s/ Richard Manix
-------------------------------------
Name: Richard Manix
-----------------------------------
Title: First Vice President
----------------------------------
By: /s/ Craig Welch
-------------------------------------
Name: Craig Welch
-----------------------------------
Title: First Vice President
----------------------------------
STATE STREET BANK AND TRUST COMPANY
By: /s/ William R. Dewey IV
-------------------------------------
Name: William R. Dewey IV
-----------------------------------
Title: Vice President
----------------------------------
THE CHASE MANHATTAN BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LAZARD BROTHERS & CO., LIMITED
By: /s/ K.M.H. Wilson
-------------------------------------
Name: K.M.H. Wilson
-----------------------------------
Title: Director
----------------------------------
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ Timothy M. Mann
-------------------------------------
Name: Timothy M. Mann
-----------------------------------
Title: Group Vice President
----------------------------------
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