exv10w1



 


Exhibit 10.1



Delphax Technologies Canada Limited.

Second Amendment To Credit Agreement


     This Second Amendment to Credit Agreement (herein, the “Amendment") is
entered into as of August 11, 2003, by and among Delphax Technologies Canada
Limited, f/k/a Check Technology Canada Ltd., an Ontario corporation (the
“Borrower"), Delphax Technologies Inc., f/k/a Check Technology Corporation, a
Minnesota corporation (the “Parent"), as Parent and as a Guarantor (the Parent,
together with all Domestic Subsidiaries in existence from time to time being
hereinafter referred to collectively as the “Guarantors” and each such entity
individually as a “Guarantor"), and Harris Trust and Savings Bank (“HTSB”), as
sole Lender and as Administrative Agent for the Lenders (in such capacity, the
“Administrative Agent").


Preliminary Statements


     A.     HTSB currently extends credit to the Borrower on the terms and
conditions set forth in that certain Credit Agreement dated as of December 20,
2001 by and among the Borrower, the Parent, and HTSB as sole Lender and as
Administrative Agent, as amended by that certain First Amendment to Credit
Agreement dated as of December 18, 2002 (the “Credit Agreement"). All
capitalized terms used herein without definition shall have the same meanings
herein as such terms have in the Credit Agreement. Unless stated otherwise
herein, all references to the “Lenders” shall be deemed to be references to
HTSB in its capacity as sole Lender, together with any of its successors or
assigns.


     B.     The Borrower has requested that HTSB permanently waive certain covenant
defaults described in Section 1 below and enter into certain amendments to the
Credit Agreement, and HTSB has agreed to do so, all on terms and conditions
hereinafter set forth.


     NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:


Section 1. Waiver.


     Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Lenders hereby waive the following violations of the
Credit Agreement: the violation of Section 8.23 (Fixed Charge Coverage Ratio)
for the fiscal quarter ended June 30, 2003 and the violation of Section 8.26
(Minimum EBITDA) for the fiscal quarter ended June 30, 2003, and the Lenders
hereby waive any Default or Event of Default which could or would otherwise
result solely from such violations.


Section 2. Amendments.


     Subject to the satisfaction of the conditions precedent set forth in
Section 3 below, the Credit Agreement shall be and hereby is amended as
follows:









 


     2.1. Section 1.3(a) of the Credit Agreement is hereby amended by inserting
the following sentence at the end of such Section:



		
	 	     Notwithstanding anything in this Agreement to the contrary,
the Borrower shall not be permitted to request or obtain, and the
L/C Issuer shall not be required to issue and the Lenders shall not
be required to participate in, any Letters of Credit pursuant to
this Agreement, it being the parties’ intent that the Borrower’s
right to request the issuance of Letters of Credit under this
Agreement is terminated.



     2.2. Section 1.6(a) of the Credit Agreement is hereby amended as follows:



		
	 	     (i) the following proviso shall be inserted at the end of the first
sentence thereof:




		
	 	     ; provided, that the Borrower shall be permitted to give
not more than one such notice each week and each such notice
shall be submitted only on Monday of each week (or, if Monday
is not a Business Day, then on the immediately following
Business Day)




		
	 	     (ii) the following sentence shall be inserted at the end of such
Section:




		
	 	Each notice from the Borrower submitted pursuant to this
Section 1.6(a) shall be accompanied by a summary, in form and
substance satisfactory to the Administrative Agent,
identifying the intended uses of the Borrowing being
requested by such notice.



     2.3. Section 1.13(b)(ii) of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:



		
	 	     (ii) Scheduled. The aggregate Revolving Credit Commitments of the
Lenders shall be permanently reduced to $11,500,000 effective on January
1, 2003, and further permanently reduced to $10,500,000 effective on July
1, 2003; provided, however, that the Revolving Credit Commitments shall
be increased to $12,000,000 effective on August      , 2003 subject to the
other terms and conditions of this Agreement and the other Loan
Documents.



     2.4. Section 1.13(c) of the Credit Agreement is hereby amended by
inserting the words “(other than the reinstatement described in clause (b)(ii)
above)” at the end of such clause.


     2.5. Clause (b) of the definition of “Borrowing Base” set forth in Section
5.1 of the Credit Agreement is hereby amended and restated in its entirety as
follows:



		
	 	     (b) 0% of the outstanding unpaid amount of Eligible
Receivables which are Insured Receivables (for sake of clarity, it
is the parties’ intention that Insured Receivables shall be
excluded from the Borrowing Base); plus










 




     2.6. Clause (c) of the definition of “Borrowing Base” set forth in Section
5.1 of the Credit Agreement is hereby amended and restated in its entirety as
follows:



		
	 	     (c) the lesser of:




		
	 	     (x) $7,000,000; and




		
	 	     (y) the sum of:




		
	 	          (i) 50% of the value (computed at the lower of
market or cost using the first-in/first-out method of
inventory valuation applied in accordance with GAAP) of
Eligible Inventory plus




		
	 	          (ii) the lesser of (A) $1,000,000 and (B) 33.0% of
the value (computed at the lower of market or cost
using the first-in/first-out method of inventory
valuation applied in accordance with GAAP) of Inventory
that would otherwise constitute Eligible Inventory but
for the fact that such Inventory is obsolete,
slow-moving or non-merchantable;










 




     2.7.
The definition of “L/C Sublimit” set forth in Section 5.1 of the Credit
Agreement is hereby amended and restated in its entirety as follows:



		
	 	     "L/C Sublimit” means zero. For sake of clarity,
notwithstanding anything in this Agreement to the contrary, the
Borrower shall not be permitted to request or obtain, and the L/C
Issuer shall not be required to issue and the Lenders shall not be
required to participate in, any Letters of Credit pursuant to this
Agreement.



     2.8. Section 8.5(a) of the Credit Agreement is hereby amended and restated
in its entirety as follows:



		
	 	     (a) by Monday of each week during the term of this Agreement,
(i) a Borrowing Base Certificate showing the computation of the
Borrowing Base in reasonable detail as of the close of business on
the previous Friday, (ii) a weekly cash flow projection for the
Parent, the Borrower and the Subsidiaries for the next sixty (60)
calendar days, and (iii) a reconciliation comparing the actual cash
flow of the Parent, the Borrower and the Subsidiaries for the
preceding week with the cash flow projection for such week
previously provided to the Administrative Agent during the
immediately preceding week, in each case prepared by the Parent and
certified by its chief financial officer or another officer of the
Parent acceptable to the Administrative Agent;



     2.9. Section 8.23 of the Credit Agreement is hereby amended and restated
to read in its entirety as follows:



		
	 	     Section 8.23. Interest Coverage Ratio. As of the
last day of each fiscal quarter of the Parent ending
during the periods set forth below, the Parent shall
maintain a ratio of (a) EBITDA for the four fiscal
quarters of the Parent then ended, to (b) cash
Interest Expense for the same four fiscal quarters
then ended of not less than the following:




	 	 	 	 	 
	 	 	 	 	INTEREST COVERAGE
	 	 	 	 	RATIO SHALL NOT BE
	FROM AND INCLUDING	 	TO AND INCLUDING	 	LESS THAN:
	7/1/03	 	
and at all times thereafter
	 	1.00 to 1.00



     2.10. The references to the Commitments on the signature page of HTSB to
the Credit Agreement shall be amended and restated in their entirety to read as
follows:



		
	 	Revolving Credit Commitment $12,000,000



     2.11. Exhibit E to the Credit Agreement is hereby amended and restated to
read as set forth in the revised Exhibit E attached hereto.









 


Section 3. Conditions Precedent.


     This Amendment shall become effective as of the date first above written
upon the satisfaction of all of the following conditions precedent:



		
	 	     3.1. The Borrower, the Parent and the Lenders shall have executed
and delivered this Amendment.
	 
	 	     3.2. The Administrative Agent shall have received an opinion of
counsel to the Borrower and an opinion of counsel to the Parent, in each
case in form and substance satisfactory to the Administrative Agent,
regarding such matters as reasonably requested by the Administrative
Agent.
	 
	 	     3.3. The Administrative Agent shall have received for each Lender
copies of the Parent’s and the Borrower’s articles of incorporation and
bylaws (or comparable organization documents) and any amendments thereto,
certified in each instance by its Secretary or Assistant Secretary.
	 
	 	     3.4. The Administrative Agent shall have received for each Lender
copies of resolutions of the Parent’s and the Borrower’s Board of
Directors (or similar governing body) authorizing the execution, delivery
and performance of this Amendment and the consummation of the
transactions contemplated hereby, together with specimen signatures of
the persons authorized to execute such documents on the Parent’s and the
Borrower’s behalf, all certified in each instance by its Secretary or
Assistant Secretary.
	 
	 	     3.5. Legal matters incident to the execution and delivery of this
Amendment and the other documents delivered in connection herewith shall
be satisfactory to the Agent and its counsel.



Section 4. Representations.


     In order to induce HTSB to execute and deliver this Amendment, each of the
Parent and the Borrower hereby represents to the Lenders that as of the date
hereof, and after giving effect to this Amendment, (a) this Amendment
constitutes the legal, valid and binding obligations of each of the Borrower
and the Parent, enforceable in accordance with its terms, (b) the
representations and warranties set forth in Section 6 of the Credit Agreement
are and shall be and remain true and correct (except that the representations
contained in Section 6.5 shall be deemed to refer to the most recent financial
statements of the Parent and the Subsidiaries delivered to the Lenders), (c)
the Parent and the Borrower are in compliance with the terms and conditions of
the Credit Agreement (including, without limitation, the requirement to pay of
all applicable withholding taxes in accordance with Section 13.1 of the Credit
Agreement), and (d) other than the “Existing Events of Default” described in
the Amended and Restated Forbearance Agreement dated as of October 16, 2002 by
and among the Borrower, the Parent and HTSB as sole Lender and as
Administrative Agent, no Default or Event of Default has occurred and is
continuing under the Credit Agreement or shall result after giving effect to
this Amendment.


Section 5. RELEASE. FOR VALUE RECEIVED, INCLUDING WITHOUT LIMITATION, THE
AGREEMENTS OF THE LENDERS IN THIS AGREEMENT, THE
BORROWER AND THE PARENT









 




HEREBY RELEASE THE ADMINISTRATIVE AGENT AND EACH
LENDER, ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS,
EMPLOYEES, ATTORNEYS, CONSULTANTS, AND PROFESSIONAL ADVISORS (COLLECTIVELY, THE
“RELEASED PARTIES”) OF AND FROM ANY AND ALL DEMANDS, ACTIONS, CAUSES OF ACTION,
SUITS, CONTROVERSIES, ACTS AND OMISSIONS, LIABILITIES, AND OTHER CLAIMS OF
EVERY KIND OR NATURE WHATSOEVER, BOTH IN LAW AND IN EQUITY, KNOWN OR UNKNOWN,
WHICH THE BORROWER OR THE PARENT HAS OR EVER HAD AGAINST THE RELEASED PARTIES
FROM THE BEGINNING OF THE WORLD TO THIS DATE, INCLUDING, WITHOUT LIMITATION,
THOSE ARISING OUT OF THE EXISTING FINANCING ARRANGEMENTS AMONG THE BORROWER,
THE PARENT AND THE LENDERS, AND THE BORROWER AND THE PARENT FURTHER ACKNOWLEDGE
THAT, AS OF THE DATE HEREOF, THEY DO NOT HAVE ANY COUNTERCLAIM, SET-OFF OR
DEFENSE AGAINST THE RELEASED PARTIES, EACH OF WHICH THE BORROWER AND THE PARENT
HEREBY EXPRESSLY WAIVE.


Section 6. Miscellaneous.


     6.1. The Borrower and the Parent have heretofore or concurrently herewith
executed and delivered to the Lenders the Security Agreements, the Pledge
Agreement and certain other Collateral Documents. The Borrower and the Parent
hereby acknowledge and agree that the Liens created and provided for by the
Collateral Documents continue to secure, among other things, the Obligations
arising under the Credit Agreement as amended hereby; and the Collateral
Documents and the rights and remedies of the Lenders thereunder, the
obligations of the Borrower and the Parent thereunder, and the Liens created
and provided for thereunder remain in full force and effect and shall not be
affected, impaired or discharged hereby. Nothing herein contained shall in any
manner affect or impair the priority of the liens and security interests
created and provided for by the Collateral Documents as to the indebtedness
which would be secured thereby prior to giving effect to this Amendment.
Without limiting the foregoing, the Parent confirms that its guaranty set forth
in Section 12 of the Credit Agreement, and all of the obligations of the Parent
thereunder, remain in full force and effect.


     6.2. Except as specifically amended herein, the Credit Agreement and the
other Loan Documents are hereby ratified and confirmed and shall continue in
full force and effect in accordance with their terms. Reference to this
specific Amendment need not be made in the Credit Agreement, the Notes, or any
other instrument or document executed in connection therewith, or in any
certificate, letter or communication issued or made pursuant to or with respect
to the Credit Agreement, any reference in any of such items to the Credit
Agreement being sufficient to refer to the Credit Agreement as amended hereby.


     6.3. The Borrower agrees to pay on demand all reasonable costs and
expenses of the Agent in connection with the negotiation, preparation,
execution and delivery of this Amendment and the other instruments and
documents contemplated hereby, including the reasonable fees and expenses of
counsel for the Agent.


     6.4. This Amendment may be executed in any number of counterparts, and by
the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed









 




to be an original. A
facsimile copy of this Amendment and signatures thereon shall be considered for
all purposes as originals.


     6.5. This Amendment shall be governed by the internal laws of the State of
Illinois.


[Signature Page to Follow]









 


     This Amendment is entered into as of the date and year first above
written.



	 	 	 	 	 	 	 
	 	 	
DELPHAX TECHNOLOGIES CANADA LIMITED
	 	 	 	 	(f/k/a Check Technology Canada Ltd.),
as Borrower
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ Robert M. Barniskis
	 	 	 	 	Name
	 	Robert M. Barniskis
	 	 	 	 	 	 	

	 	 	 	 	Title
	 	Chief Financial Officer
	 	 	 	 	 	 	

	 	 	 	 	 	 	 
	 	 	 
DELPHAX TECHNOLOGIES INC. (f/k/a Check
	 	 	 	 	Technology Corporation), as Parent and
as a Guarantor
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ Robert M. Barniskis
	 	 	 	 	Name
	 	Robert M. Barniskis
	 	 	 	 	 	 	

	 	 	 	 	Title
	 	Chief Financial Officer
	 	 	 	 	 	 	

	 	 	 	 	 	 	 
	Accepted and agreed to	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	
HARRIS TRUST AND SAVINGS BANK, in its
	 	 	 	 	individual capacity as sole Lender and
as Administrative Agent
	 	 	 	 	 	 	 
	 	 	
By
	 	/s/ Andrew T. Claar
	 	 	 	 	Name
	 	Andrew T. Claar
	 	 	 	 	 	 	

	 	 	 	 	Title
	 	Vice President