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FIRST AMENDMENT
TO
FINANCING AGREEMENT
First Amendment dated as of June 23, 1997 to Financing Agreement (the
"First Amendment"), by and among NetFRAME Systems Incorporated, a Delaware
corporation (the "Company"), and Micron Electronics, Inc., a Minnesota
corporation (the "Lender") and NetFRAME International, Inc., amending certain
provisions of the Financing Agreement dated as of March 27, 1997 (as amended and
in effect from time to time, the "Financing Agreement") by and among the Company
and the Lender (as assignee of the CIT Group/Business Credit, Inc. ("CIT")) and
certain related agreements. Terms not otherwise defined herein which are defined
in the Financing Agreement shall have the same respective meanings as are set
forth therein.
WHEREAS, the Company, the Lender and NetFRAME International
Incorporated, as guarantor, have agreed to modify certain terms and conditions
of the Financing Agreement and other Loan Documents as specifically set forth in
this First Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. AMENDMENT TO SECTION 1 OF THE FINANCING AGREEMENT AND RELATED
AMENDMENTS TO THE FINANCING AGREEMENT AND OTHER LOAN DOCUMENTS. Section 1 of the
Financing Agreement is hereby amended to add a definition of the term "Lender",
defining such term as "Micron Electronics, Inc., a Minnesota corporation." The
Financing Agreement and each other Loan Document are hereby amended by deleting
the term "CITBC" wherever it may appear and substituting in place thereof the
term "Lender."
2. AMENDMENT TO SECTION 1 OF THE FINANCING AGREEMENT. Section 1 of the
Financing Agreement is hereby amended as follows:
(a) the definition therein of the term "Line of Credit" shall
read in its entirety as follows: "LINE OF CREDIT shall mean the aggregate
commitment of Lender to make loans and advances to the Company pursuant to
Section 3 of this Financing Agreement in the aggregate amount of up to
$3,500,000."
(b) the definition therein of the term "Early Termination Fee"
shall read in its entirety as follows: "EARLY TERMINATION FEE" shall mean (a)
mean the Fee Lender is entitled to change the Company in the event the Company
terminates the Line of Credit or this Financing Agreement prior to the date two
(2) years after the Closing Date; and (b) equal such amount as Lender shall have
paid to CIT in connection with the assignment of this Financing Agreement and
the Loan Documents from CIT to Lender.
3. AMENDMENT TO SECTION 3, PARAGRAPH 3.1 OF THE FINANCING AGREEMENT.
Section 3, paragraph 3.1 of the Financing Agreement is hereby amended to read in
its entirety as follows: "Lender agrees, subject to the terms and conditions of
this Financing Agreement from time to
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time, and within x) the Availability and y) the Line of Credit, but subject to
Lender's right to make "Overadvances," to make loans and advances to the Company
on a revolving basis (i.e., subject to the limitations set forth herein, the
Company may borrow, repay and re-borrow Revolving Loans). Such loans and
advances to the Company shall be in amounts up to the sum of A) eighty-five
percent (85%) of the outstanding Eligible Accounts Receivable of the Company,
and B) the lesser of (i) forty percent (40%) of the Company's Eligible Inventory
as determined at the lower of cost or market, (ii) eighty percent (80%) of the
orderly liquidation value percentage of the Company's Inventory, as determined
by reference to the most recent inventory appraisal performed by or for the
benefit of Lender, and (iii) five million dollars ($5,000,000) (herein the
"Borrowing Base"). Borower shall be entitled to request loans hereunder in an
aggregate amount equal to two million dollars ($2,000,000) on or before June 30,
1997 and in such amounts and at such times as Borrower and Lender may agree
thereafter. All requests for loans and advances must be received by an officer
of Lender no later than 11:00 a.m. Pacific time of the business day preceding
the day on which such loans and advances are required, and shall be accompanied
by information, in detail satisfactory to Lender, as to the Borrower's intended
use of the proceeds thereof. Borrower hereby agrees to use all amounts loaned to
it hereunder only for the purposes set forth in such information. Should Lender
for any reason honor requests for advances in excess of the limitations set
forth herein, such advances shall be considered "Overadvances" and shall be made
in Lender's sole discretion, subject to any additional terms Lender deems
necessary."
4. AMENDMENT TO SECTION 2, PARAGRAPH 2.2 OF THE FINANCING AGREEMENT.
Section 2, paragraph 2.2 of the Financing Agreement is hereby amended to insert
immediately after sub-paragraph (D) thereof a new sub-paragraph which shall read
as follows: "(E) ABSENCE OF MATERIAL ADVERSE CHANGE - no material adverse change
shall have occurred in the financial condition, business, prospects,
profitability, assets (including without limitation the Collateral) or
operations of the Company and/or the Guarantor (it being expressly understood
and agreed that any material adverse change in the terms, conditions,
assumptions or budgets supplied by the Company and on which Lender based its
decision to execute the Agreement and Plan of Merger dated June 10, 1997 among
the Lender, the Company and Xxxxxxx Acquisition Corporation, may, in Lender's
reasonable business discretion, be construed by Lender as a material adverse
change)."
5. AMENDMENT TO SECTION 8, PARAGRAPH 8.1(J) OF THE FINANCING AGREEMENT.
Section 8, paragraph 8.1(J) of the Financing Agreement is hereby amended to read
in its entirety as follows: "(J) Upon the occurrence of a default or an Event of
Default under, or the termination of, the Guaranty or the Agreement and Plan of
Reorganization dated June 10, 1997 among the Company, the Lender and Xxxxxxx
Acquisition Corporation, or upon the occurrence of a Default under the Security
Agreement dated March 27, 1997 executed and delivered by the Guarantor to
CITBC".
6. AMENDMENT TO SECTION 9 OF THE FINANCING AGREEMENT. Section 9 of the
Financing Agreement is hereby amended to read in its entirety as follows:
"Section 9. TERMINATION. Except as otherwise permitted herein, the Company and
Lender may terminate this Financing Agreement and the Line of Credit only as of
the initial or any subsequent Anniversary Date and then only by giving the other
at least sixty (60) days prior written notice of
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termination. Notwithstanding the foregoing, Lender may terminate this Financing
Agreement and the Line of Credit immediately upon the occurrence of an Event of
Default, provided, however, that if the Event of Default is an event listed in
Paragraph 8.1(a) (b) (c) of Section 8 of this Financing Agreement, Lender may
regard this Financing Agreement and the Line of Credit as terminated and notice
to that effect is not required. In addition, Lender may terminate this Financing
Agreement and the Line of Credit (a) on September 30, 1997 or the last day of
any month thereafter by giving the Company at least five (5) days prior written
notice of termination and (b) if at any time, immediately upon written notice to
the Company, (i) the Company breaches the Agreement Plan of Reorganization dated
July 10, 1997 among the Lender, the Company and Xxxxxxx Acquisition Computer, as
from time to time amended (the "Merger Agreement"); (ii) Lender is entitled to
terminate the Merger Agreement, or (iii) the Merger Agreement has been
terminated. This Financing Agreement, unless terminated as herein provided,
shall automatically continue from Anniversary Date to Anniversary Date.
Notwithstanding the foregoing, the Company may terminate this Financing
Agreement and the Line of Credit prior to any applicable Anniversary Date upon
sixty (60) days' prior written notice to Lender and payment of any applicable
Early Termination Fee. All Obligations shall become due and payable as of any
termination hereunder or under Section 8 hereof and, pending a final accounting,
Lender may withhold any balances in the Company's Revolving Loan Account (unless
supplied with an indemnity satisfactory to Lender) to cover all of the Company's
Obligations, whether absolute or contingent. All of Lender's liens and security
interests shall continue after any termination until all Obligations have been
paid and satisfied in full.
7. AMENDMENT TO SECTION 10, PARAGRAPH 10.6 OF THE FINANCING AGREEMENT.
Section 10, paragraph 10.6 of the Financing Agreement is hereby amended to read
in its entirety as follows: "10.6, Except as otherwise herein provided, any
notice or other communication required hereunder shall be in writing, and shall
be deemed to have been validly served, given or delivered when hand delivered
(by messenger, overnight delivery service or otherwise) or sent by telegram,
telex or telecopy (facsimile), addressed to the party to be notified as follows:
(A) if to Lender, at:
Micron Electronics, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Fenwick & West LLP
Two Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
(B) if to the Company at:
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NetFRAME Systems Incorporated
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: President and Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxx, Esq.
or to such other address as any party may designate for itself by like notice.
8. AMENDMENT TO EXHIBIT A TO FINANCING AGREEMENT. Exhibit A to the
Financing Agreement is hereby amended in its entirety to read as set forth in
Exhibit A hereto.
9. WAIVER. Lender hereby waives any Event of Default existing and
disclosed in writing to Lender as of the date hereof.
10. REPRESENTATIONS AND WARRANTIES. The Company hereby repeats, on and
as of the date hereof, each of the representations and warranties made by it in
Section 5 of the Financing Agreement, and such representations and warranties
remain true as of the date hereof in all material respects (except as disclosed
to Lender prior to the date hereof, and to the extent of changes resulting from
transactions contemplated or permitted by the Financing Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date),
provided, that all references therein to the Financing Agreement shall refer to
such Financing Agreement as amended hereby. In addition, the Company hereby
represents and warrants that the execution and delivery by the Company of this
First Amendment and the performance by the Company of all of its agreements and
obligations under the Financing Agreement as amended hereby are within in the
corporate authority of the Company and has been duly authorized by all necessary
corporate action on the part of the Company.
11. RATIFICATION, ETC. Except as expressly amended hereby, the
Financing Agreement and all documents, instruments and agreements related
thereto, including, but not limited to the Loan Documents, are hereby ratified
and confirmed in all respects and shall continue in full force and effect. The
Financing Agreement and this First Amendment shall be read and construed as a
single agreement. All references in the Financing Agreement or any related
agreement or instrument to the Financing Agreement shall hereafter refer to the
Financing Agreement as amended hereby.
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12. NO WAIVER. Nothing contained herein constitute a waiver of, impair
or otherwise affect any Obligations, any other obligation of the Borrower or any
rights of the Lender consequent thereon, except as specifically provided in
Section 10.
13. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
14. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as a documents under seal as of the date first above written.
NETFRAME SYSTEMS INCORPORATED
By: [Signature]
------------------------------
Title: CFO
---------------------------
MICRON ELECTRONICS, INC.
By: /s/ Xxxx Xxxx
------------------------------
Title:
---------------------------
NETFRAME INTERNATIONAL INCORPORATED
By: [Signature]
------------------------------
Title: President/CEO
---------------------------
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EXHIBIT A
REVOLVING CREDIT NOTE
$3,500,000 June 23, 1997
FOR VALUE RECEIVED, the undersigned, NETFRAME SYSTEMS INCORPORATED (the
"Company"), hereby absolutely and unconditionally promises to pay to the order
of MICRON ELECTRONICS, INC. (herein "Lender"), with offices located in Nampa,
Idaho, in lawful money of the United States of America and in immediately
available funds, the principal amount of Three Million Five Hundred Thousand
Dollars ($3,500,000), or such other principal amount advanced pursuant to
Section 3, Paragraph 3.1 of the Financing Agreement (as herein defined). Such
Revolving Loan advances shall be repaid on a daily basis as a result of the
application of the proceeds of collections of the Accounts and the making of
additional Revolving Loans as described in Section 3 of the Financing Agreement.
The Revolving Loans may be borrowed, repaid and reborrowed by the Company. A
final balloon payment in an amount equal to the outstanding aggregate balance of
principal and interest remaining unpaid, if any, under this Note as shown on the
books and records of Lender shall be due and payable on the termination of the
Financing Agreement, as set forth in Section 3 thereof.
The Company further absolutely and unconditionally promises to pay to the order
of Lender at said office, interest, in like money, on the unpaid principal
amount owing hereunder from time to time from the date hereof on the dates and
at the rates specified in Section 6 of the Financing Agreement.
If any payment on this Note becomes due and payable on a day other than a
business day, the maturity thereof shall be extended to the next succeeding
business day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Promissory Note referred to in the Financing Agreement, dated
as of March 27, 1997, as amended on the date hereof, as the same may be further
amended and restated and in effect from time to time, among the Company and
Lender (the "Financing Agreement"), and is subject to, and entitled to, all of
the terms, provisions and benefits thereof and is subject to optional and
mandatory prepayment, in whole or in part, as provided therein. All capitalized
terms used herein shall have the meaning provided therefor in the Financing
Agreement, unless otherwise defined herein.
The date and amount of the advance(s) made hereunder may be recorded on the grid
page or pages which are attached hereto and hereby made part of this Note or the
separate ledgers maintained by Lender. The aggregate unpaid principal amount of
all advances made pursuant hereto may be set forth in the balance column on said
grid page or such ledgers maintained by Lender. All such advances, whether or
not so recorded, shall be due as part of this Note.
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The Company confirms that any amount received by or paid to Lender in connection
with the Financing Agreement and/or any balances standing to its credit on any
of its accounts on Lender's books under the Financing Agreement may in
accordance with the terms of the Financing Agreement be applied in reduction of
this Note, but no balance or amounts shall be deemed to effect payment in whole
or in part of this Note unless Lender shall have actually charged such account
or accounts for the purposes of such reduction or payment of this Note.
Upon the occurrence of any one or more of the Events of Default specified in the
Financing Agreement or upon termination of the Financing Agreement, all amounts
then remaining unpaid on this Note may become, or be declared to be, immediately
due and payable as provided in the Financing Agreement.
NETFRAME SYSTEMS INCORPORATED
By: [Signature]
------------------------------
Title: CFO
---------------------------
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SECOND AMENDMENT
TO
FINANCING AGREEMENT
Second Amendment (the "Second Amendment") dated as of July 31, 1997 to
Financing Agreement (as amended and in effect from time to time, the "Financing
Agreement"), by and among NetFRAME Systems Incorporated, a Delaware corporation
(the "Company"), Micron Electronics, Inc., a Minnesota corporation (the
"Lender") and NetFRAME International, Inc. (the "Subsidiary"), dated as of March
27, 1997 as amended by the First Amendment dated as of June 23, 1997 (the "First
Amendment"). Terms not otherwise defined herein which are defined in the
Financing Agreement shall have the same respective meanings as are set forth
therein.
WHEREAS, the Company, the Lender and NetFRAME International
Incorporated, as guarantor, have agreed to modify certain terms and conditions
of the Financing Agreement as specifically set forth in this Second Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. AMENDMENT TO SECTION 1(A) OF THE FINANCING AGREEMENT. Section 1(a)
of the Financing Agreement is hereby amended as follows:
(a) the definition therein of the term "Line of Credit" shall read in
its entirety as follows: "LINE OF CREDIT shall mean the aggregate commitment of
Lender to make loans and advances to the Company pursuant to Section 3 of this
Financing Agreement in the aggregate amount of up to $12,000,000."
2. AMENDMENT TO SECTION 3, PARAGRAPH 3.1 OF THE FINANCING AGREEMENT.
Section 3, paragraph 3.1 of the Financing Agreement is hereby amended to read in
its entirety as follows: "Lender agrees, subject to the terms and conditions of
this Financing Agreement from time to time, and within x) the Availability and
y) the Line of Credit, but subject to Lender's right to make "Overadvances," to
make loans and advances to the Company on a revolving basis (i.e., subject to
the limitations set forth herein, the Company may borrow, repay and re-borrow
Revolving Loans). Such loans and advances to the Company shall be in amounts up
to the sum of A) eighty-five percent (85%) of the outstanding Eligible Accounts
Receivable of the Company, and B) the lesser of (i) forty percent (40%) of the
Company's Eligible Inventory as determined at the lower of cost or market, (ii)
eighty percent (80%) of the orderly liquidation value percentage of the
Company's Inventory, as determined by reference to the most recent inventory
appraisal performed by or for the benefit of Lender, and (iii) twelve million
dollars ($12,000,000) (herein the "Borrowing Base"). Borrower shall be entitled
to request loans hereunder in an aggregate amount equal to two million dollars
($2,000,000) on or before June 30, 1997 and in such amounts and at such times as
Borrower and Lender may agree thereafter. All requests for loans and advances
must be received by an officer of Lender no later than 11:00 a.m. Pacific time
of the business day preceding the day on which such loans and advances are
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required, and shall be accompanied by information, in detail satisfactory to
Lender, as to the Borrower's intended use of the proceeds thereof. Borrower
hereby agrees to use all amounts loaned to it hereunder only for the purposes
set forth in such information. Should Lender for any reason honor requests for
advances in excess of the limitations set forth herein, such advances shall be
considered "Overadvances" and shall be made in Lender's sole discretion, subject
to any additional terms Lender deems necessary."
3. AMENDMENT TO EXHIBIT A TO FINANCING AGREEMENT. Exhibit A to the
Financing Agreement is hereby amended in its entirety to read as set forth in
Exhibit A hereto.
4. REPRESENTATIONS AND WARRANTIES. The Company hereby repeats, on and
as of the date hereof, each of the representations and warranties made by it in
Section 5 of the Financing Agreement, and such representations and warranties
remain true as of the date hereof in all material respects (except as disclosed
to Lender prior to the date hereof, and to the extent of changes resulting from
transactions contemplated or permitted by the Financing Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an earlier date),
provided, that all references therein to the Financing Agreement shall refer to
such Financing Agreement as amended hereby. In addition, the Company hereby
represents and warrants that the execution and delivery by the Company of this
Second Amendment and the performance by the Company of all of its agreements and
obligations under the Financing Agreement as amended hereby are within in the
corporate authority of the Company and has been duly authorized by all necessary
corporate action on the part of the Company.
5. RATIFICATION, ETC. Except as expressly amended hereby, the Financing
Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Loan Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Financing Agreement, the First Amendment and this Second Amendment shall be read
and construed as a single agreement. All references in the Financing Agreement
or any related agreement or instrument to the Financing Agreement shall
hereafter refer to the Financing Agreement as amended hereby.
6. NO WAIVER. Nothing contained herein constitute a waiver of, impair
or otherwise affect any Obligations, any other obligation of the Borrower or any
rights of the Lender consequent thereon.
7. COUNTERPARTS. This Second Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
8. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a documents under seal as of the date first above written.
NETFRAME SYSTEMS INCORPORATED
By: [Signature]
------------------------------
Title: CFO
---------------------------
MICRON ELECTRONICS, INC.
By: /s/ Xxxx Xxxx
------------------------------
Title:
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NETFRAME INTERNATIONAL INCORPORATED
By: X. Xxxxxxx
------------------------------
Title: Secretary
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RATIFICATION OF GUARANTY
The undersigned guarantor hereby acknowledges and consents to the
foregoing Second Amendment as of July 29, 1997, and agrees that the Guarantee
dated as of March 27, 1997 from the undersigned Guarantor remains in full force
and effect for the benefit of Lender, and the Guarantor confirms and ratifies
all of its obligations thereunder.
NETFRAME INTERNATIONAL INCORPORATED
By: X. Xxxxxxx
------------------------------
Title: Secretary
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EXHIBIT A
REVOLVING CREDIT NOTE
$12,000,000 July 29, 1997
FOR VALUE RECEIVED, the undersigned, NETFRAME SYSTEMS INCORPORATED (the
"Company"), hereby absolutely and unconditionally promises to pay to the order
of MICRON ELECTRONICS, INC. (herein "Lender"), with offices located in Nampa,
Idaho, in lawful money of the United States of America and in immediately
available funds, the principal amount of Twelve Million Dollars ($12,000,000),
or such other principal amount advanced pursuant to Section 3, Paragraph 3.1 of
the Financing Agreement (as herein defined). Such Revolving Loan advances shall
be repaid on a daily basis as a result of the application of the proceeds of
collections of the Accounts and the making of additional Revolving Loans as
described in Section 3 of the Financing Agreement. The Revolving Loans may be
borrowed, repaid and reborrowed by the Company. A final balloon payment in an
amount equal to the outstanding aggregate balance of principal and interest
remaining unpaid, if any, under this Note as shown on the books and records of
Lender shall be due and payable on the termination of the Financing Agreement,
as set forth in Section 3 thereof.
The Company further absolutely and unconditionally promises to pay to the order
of Lender at said office, interest, in like money, on the unpaid principal
amount owing hereunder from time to time from the date hereof on the dates and
at the rates specified in Section 6 of the Financing Agreement.
If any payment on this Note becomes due and payable on a day other than a
business day, the maturity thereof shall be extended to the next succeeding
business day, and with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
This Note is the Promissory Note referred to in the Financing Agreement, dated
as of March 27, 1997, as amended on the date hereof, as the same may be further
amended and restated and in effect from time to time, among the Company and
Lender (the "Financing Agreement"), and is subject to, and entitled to, all of
the terms, provisions and benefits thereof and is subject to optional and
mandatory prepayment, in whole or in part, as provided therein. All capitalized
terms used herein shall have the meaning provided therefor in the Financing
Agreement, unless otherwise defined herein.
The date and amount of the advance(s) made hereunder may be recorded on the grid
page or pages which are attached hereto and hereby made part of this Note or the
separate ledgers maintained by Lender. The aggregate unpaid principal amount of
all advances made pursuant hereto may be set forth in the balance column on said
grid page or such ledgers maintained by Lender. All such advances, whether or
not so recorded, shall be due as part of this Note.
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The Company confirms that any amount received by or paid to Lender in connection
with the Financing Agreement and/or any balances standing to its credit on any
of its accounts on Lender's books under the Financing Agreement may in
accordance with the terms of the Financing Agreement be applied in reduction of
this Note, but no balance or amounts shall be deemed to effect payment in whole
or in part of this Note unless Lender shall have actually charged such account
or accounts for the purposes of such reduction or payment of this Note.
Upon the occurrence of any one or more of the Events of Default specified in the
Financing Agreement or upon termination of the Financing Agreement, all amounts
then remaining unpaid on this Note may become, or be declared to be, immediately
due and payable as provided in the Financing Agreement.
NETFRAME SYSTEMS INCORPORATED
By: [Signature]
------------------------------
Title: CFO
---------------------------
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