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Exhibit 4.23
EXECUTION COPY
NINTH AMENDMENT TO CREDIT AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT (this "Ninth Amendment") is
made and entered into as of October 31, 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"):
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 (the "Sixth Amendment"), a
Seventh Amendment dated as of December 1, 1999, an Eighth Amendment dated as of
March 24, 2000, 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 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
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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 Credit Agreement. Subject to the terms and
conditions set forth herein, Section 8.3 of the Credit Agreement is amended to
add new clause (vi) as follows:
"(vi) 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 September 30,
2000 and through and including December 30, 2000, and any
Event of Default that may have existed on or after September
30, 2000 as a result of any failure by the Danka Parties to
comply with any of such financial covenants 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
September 30, 2000 to be less than 1.20 to 1.00;
(b) At any time on and after September 30, 2000 and
on or prior to December 30, 2000 the Adjusted Consolidated
Net Worth of Danka PLC and its Subsidiaries to be less than
$335,000,000;
(c) The Consolidated Total Leverage Ratio as at the
end of September 30, 2000 for the four fiscal quarter period
then ending to exceed 3.90 to 1.00;
(d) The cumulative Consolidated EBITDA of Danka PLC
and its Subsidiaries for the four fiscal quarter period
ending on September 30, 2000 to be less than $212,000,000;
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 September 30, 2000 to be less than 2.00 to 1.00.
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For purposes of subsections (a), (c), (d) and (e) in this Section 8.3(vi), the
calculation of the Consolidated EBITDA for the four fiscal quarter period
ending September 30, 2000 shall add to income from continuing operations the
actual restructuring charges for such period in an amount not to exceed
$32,940,000. In addition, for purposes of subsections (a), (b) and (e) in this
Section 8.3(vi), the impact of the $10,000,000 waiver extension fee under the
Sixth Amendment on the interest expense for such period shall be excluded."
3. New Borrowing. Notwithstanding anything to the contrary in
the Credit Agreement, during the period from and after September 30, 2000, the
Companies shall not request, and the Companies shall not be entitled to
receive, any new Borrowing unless the Chief Executive Officer or Chief
Financial Officer of Danka PLC shall have, on or before the date of any such
request, delivered a certificate to the Banks (in care of the Agent) setting
forth in reasonable detail the then current cash balances and cash flow
projections of the Companies and certifying that the Companies require the
proceeds from such request in order for the Companies to be able to pay all of
their costs and expenses incurred in the ordinary course of business and to
operate their businesses in the ordinary course of business in the immediate
two weeks following any such request. At the request of the Banks (acting
through the Agent) the Companies shall provide to the Banks such additional
facts and evidence supporting the conclusions contained in such certificate as
may be reasonably requested by the Agent.
4. Dividends, Distributions, Investments. During the period from
and including September 30, 2000 and to and including December 30, 2000 (i)
Danka PLC shall not pay any dividends or make any distributions, (ii) neither
the Companies nor any of their Subsidiaries shall make any Acquisitions, and
(iii) neither the Companies nor any of their Subsidiaries shall make any
Investments; provided, however, that the Banks hereby consent to consummation
of the following transactions (as further described in Schedule I hereto):
(a) Payment by Dankalux to Danka Holding Spa of
approximately $4,000,000 to comply with minimum-capital
requirements of local law; provided that not more than three
days after such payment Danka Holding Spa shall repay
intercompany indebtedness of Danka Holding Spa to Dankalux in
an amount not less than the amount of such payment.
(b) Payment by Dankalux to Danka Business Finance Ltd.
(Canada) of approximately $22,000,000 to comply with maximum
debt to equity ratio requirements of local law; provided that
not more than one business day after such payment Danka
Business Finance Ltd. (Canada) shall repay outstanding
intercompany payables of Danka Business Finance Ltd. (Canada)
to Danka International Distribution, Inc. in an amount not
less than the amount of such payment.
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The Danka Parties represent and warrant that the payments and transfers
described in this paragraph 4 comply with all applicable laws, rules and
regulations of every Governmental Authority, foreign and domestic.
5. Amendment Fees; Expenses. Promptly upon the execution of this
Ninth Amendment by the Majority Banks, the Danka Parties shall pay to the Agent
for the benefit of each of the Banks which shall have executed this Ninth
Amendment an amendment fee equal to 1/4% of such Banks' Commitment (the
"Amendment Fee"). 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 the Credit Agreement and the
other Loan Documents. 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. Effectiveness. This Ninth Amendment shall become effective as
of September 30, 2000 upon (a) receipt by the Agent of an executed copy of this
Ninth Amendment (which may be signed in counterparts and may be received by
facsimile transmission) signed by the Danka Parties and the Majority Banks, (b)
payment by the Danka Parties to the Agent of the Amendment Fee, and (c) 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.
7. 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.
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(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 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.
8. Entire Agreement. This Ninth 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 Ninth 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 Law. This Ninth Amendment shall in all respects be
governed by the laws and judicial decisions of the State of Florida.
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12. Enforceability. Should any one or more of the provisions of
this Ninth 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 Ninth Amendment has been duly authorized,
executed and delivered by the parties hereto and constitutes a legal, valid and
binding obligations 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.
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.
WITNESS: DANKA BUSINESS SYSTEMS PLC
By:
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Name:
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Title:
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DANKA HOLDING COMPANY
By:
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Name:
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Title:
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DANKALUX SARL & CO. SCA
BY: DANKALUX SARL, COMMANDITE
By:
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Name:
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Title:
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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.
HERMAN ENTERPRISES, INC. OF
SOUTH FLORIDA
By:
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Name:
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Title:
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QUALITY BUSINESS, INC.
By:
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Name:
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Title:
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INTERNATIONAL SWINGLINE BORROWERS
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DANKA CHILE COMERCIAL LTDA
DANKA DO BRASIL LIMITADA
DANKA MEXICANA S DE RL DE CV
DANKA DE PANAMA S.A.
DANKA DE COLOMBIA
PUERTO RICO DANKA INC.
DANKA DE VENEZUELA S.A.
DANKA AUSTRALIA PTY LIMITED &
DANKA NEW ZEALAND LIMITED
DANKA OFFICE IMAGING (JAPAN)
DANKA PHILIPPINES INC.
DANKA FRANCE S.A.R.L.
DANKA FRANCE SA
DANKA OFFICE PRODUCTS B.V.
DANKA 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:
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Name: F. Mark Wolfinger
Title: Director
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BANK OF AMERICA, NATIONAL
ASSOCIATION. (formerly known as
NationsBank, N.A.), as Agent and
Issuing Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION (formerly known as
NationsBank, N.A.), as a Bank
(Trade)
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION (formerly known as
NationsBank, N.A.), as a Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION (formerly know as Bank
of America National Trust and
Savings Association), as
International Swing Line Bank
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL
ASSOCIATION (formerly know as Bank
of America National Trust and
Savings Association), as a Bank
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE BANK OF NEW YORK
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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CIBC INC.
By:
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Name:
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Title:
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PNC BANK, KENTUCKY, INC.
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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SUNTRUST BANK
By:
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Name:
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Title:
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THE FUJI BANK AND TRUST COMPANY
By:
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Name:
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Title:
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ABN AMRO BANK N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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DEUTSCHE BANK AG New York Branch
and/or Cayman Island Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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HIBERNIA NATIONAL BANK
By:
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Name:
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Title:
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SAN PAOLO IMI SPA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LLOYDS BANK PLC
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE SUMITOMO BANK, LIMITED
By:
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Name:
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Title:
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BANCA COMMERCIALE ITALIANA
New York Branch
By:
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Name:
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Title:
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By:
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Name:
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Title:
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AMSOUTH BANK OF FLORIDA
By:
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Name:
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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THE DAI-ICHI KANGYO BANK, LIMITED
By:
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Name:
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Title:
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NATIONAL AUSTRALIA BANK LIMITED
ACN 004044937
By:
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Name:
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Title:
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SANWA BANK LIMITED
By:
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Name:
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Title:
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THE TOKAI BANK LIMITED,
NEW YORK BRANCH
By:
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Name:
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Title:
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WACHOVIA BANK OF GEORGIA, N.A.
By:
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Name:
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Title:
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NATIONAL WESTMINSTER BANK PLC
By:
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Name:
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Title:
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BANCA NAZIONALE DEL LAVORO S.p.A. -
LONDON BRANCH
By:
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Name:
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Title:
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CREDIT AGRICOLE INDOSUEZ
By:
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Name:
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Title:
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By:
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Name:
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Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Name:
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Title:
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THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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LAZARD BROTHERS & CO., LIMITED
By:
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Name:
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Title:
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SOUTHTRUST BANK, N.A.
By:
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Name:
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Title:
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BT HOLDINGS (NEW YORK) INC.
By:
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Name:
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Title:
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