Exhibit 10.2
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of April 17, 2001
(this "Amendment and Waiver"), among BOUNDLESS TECHNOLOGIES, INC. ("Boundless
Technologies"), BOUNDLESS MANUFACTURING SERVICES, INC. ("BMS"; collectively with
Boundless Technologies, the "Co-Borrowers"), BOUNDLESS ACQUISITION CORP. ("BAC")
and BOUNDLESS CORPORATION ("BC" collectively, with BAC, the "Guarantors") and
THE CHASE MANHATTAN BANK, SILICON VALLEY BANK and NATIONAL BANK OF CANADA
(collectively, the "Banks") and THE CHASE MANHATTAN BANK, as agent for the Banks
(in such capacity, the "Administrative Agent").
RECITALS:
A. The Co-Borrowers, the Guarantors, the Banks and the Administrative Agent
are parties to that certain Second Amended and Restated Credit Agreement and
Guaranty, dated as of May 25, 2000, as amended by the Amendment and Waiver to
Credit, dated as of July 31, 2000 and the Second Amendment to Credit Agreement,
dated as of November 7, 2000, the Third Amendment and Waiver to Credit
Agreement, dated as of November 16, 2000 and the Fourth Amendment to Credit
Agreement, dated as of March 22, 2001 (as same may be further amended, restated,
supplemented and otherwise modified, from time to time, "Credit Agreement").
B. The Co-Borrowers have advised the Banks that the Co-Borrowers are not in
compliance with the financial covenants set forth in the Credit Agreement and
have requested that the Banks (a) amend certain provisions of the Credit
Agreement and (b) waive compliance with certain provisions of the Credit
Agreement. The Banks have agreed to such amendments and waivers subject to the
terms and conditions of this Amendment and Waiver.
C. Any capitalized terms used herein and not defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
AMENDMENTS TO CREDIT AGREEMENT
The amendments set forth in this Amendment and Waiver shall be deemed to be
an amendment to the Credit Agreement and shall not be construed in any way as a
replacement or substitution therefor. All of the terms and provisions of this
Amendment and Waiver are hereby incorporated by reference into the Credit
Agreement as if such terms were set forth in full therein.
Section 1.1. Notwithstanding anything to the contrary in the Credit
Agreement or any other Loan Document, all Loans advanced from and after the date
hereof shall be Base Rate Loans and each LIBOR Loan outstanding on the date
hereof shall, upon expiration of the applicable Interest Period, be converted
automatically to a Base Rate Loan.
Section 1.2. Section 1.01 of the Credit Agreement is hereby amended to add
the following new defined terms in their appropriate alphabetical order:
"Inventory Cap" shall mean the amount set forth below opposite the
applicable period:
Period Inventory Cap
------ -------------
Closing Date through July 30, 2001 $3,800,000
July 31, 2001 through August 30, 2001 $3,700,000
August 31, 2001 through September 29, 2001 $3,600,000
September 30, 2001 through October 30, 2001 $3,500,000
October 31, 2001 through November 29, 2001 $3,400,000
November 30, 2001 through December 30, 2001 $3,300,000
December 31, 2001 through January 30, 2002 $3,200,000
January 31, 2002 through February 27, 2002 $3,100,000
February 28, 2002 through March 30, 2002 $3,000,000
March 31, 2002 through April 29, 2002 $2,900,000
April 30, 2002 through May 30, 2002 $2,800,000
May 31, 2002 through June 29, 2002 $2,700,000
June 30, 2002 through July 30, 2002 $2,600,000
July 31, 2002 through August 30, 2002 $2,500,000
August 31, 2002 through September 29, 2002 $2,400,000
September 30, 2002 through October 30, 2002 $2,300,000
October 31, 2002 through November 29, 2002 $2,200,000
November 30, 2002 through December 30, 2002 $2,100,000
December 31, 2002 through January 30, 2003 $2,000,000
January 31, 2003 through February 27, 2003 $1,900,000
February 28, 2003 through March 30, 2003 $1,800,000
March 31, 2003 and thereafter $1,700,000
"Fifth Amendment and Waiver" shall mean the Fifth Amendment and Waiver
to Credit Agreement, dated as of April 17, 2001, by and among the
Co-Borrowers, the Guarantors, the Administrative Agent and the Banks.
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Section 1.3. The following defined terms in Section 1.01 of the Credit
Agreement are hereby amended and restated in their entirety to provide as
follows:
"Bank Commitment" shall mean, with respect to each Bank, the
obligation of such Bank to make Loans to the Revolving Credit
Borrowers and the Term Loan Borrower and to acquire participations in
Letters of Credit in an aggregate amount not to exceed the amount set
forth opposite such Bank's name on the signature pages of the Fifth
Amendment and Waiver under the caption "Bank Commitment", as such
amounts may be adjusted in accordance with the terms of this
Agreement.
"Borrowing Base" means an amount equal to the sum of (1) eighty
percent (80%) of the face amount of all Eligible Accounts of the
Revolving Credit Borrowers plus (2) the lesser of (a) (i) thirty
percent (30%) of Eligible Inventory of the Co-Borrowers (other than
Eligible Inventory which is described in clause (2)(a)(ii)) plus (ii)
fifty percent (50%) of BMS's Eligible Inventory which is the subject
of the Supply Agreement or (b) the Inventory Cap; provided, that the
Required Banks may increase or decrease such percentages and the
foregoing inventory limitation, if, after review of each field audit
of the Co-Borrowers' receivables, inventory and related books and
records, the Required Banks determine that there has been a material
change in the quality of the Co-Borrowers' inventory or receivables
minus (3) accrued and unpaid interest on the Loans.
"Revolving Credit Facility" means Twelve Million Dollars
($12,000,000).
Section 1.4. Section 2.08(a) of the Credit Agreement is hereby amended by
amending and restating the first sentence thereof in its entirety to provide as
follows:
"For the period from the Closing Date to the Termination Date, the
Co-Borrowers agree to collectively pay, to the Administrative Agent
for the account of each Bank a commitment fee on the average daily
difference between (1) the Revolving Credit Facility and (2) the sum
of (a) the aggregate principal amount of all outstanding Revolving
Credit Loans, plus (b) the Letter of Credit Obligations, at the rate
of one-half of one percent (1/2%) per annum, based on a year of three
hundred sixty (360) days, payable in arrears on each Quarterly Date
during the term of the Revolving Credit Commitment, commencing June
30, 2000, and ending on the Termination Date (the "Commitment Fee").
Section 1.5. Section 2.08 of the Credit Agreement is hereby further amended
by adding a new subsection "(g)" immediately following subsection "(f)" thereof
as follows:
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"(g) Additional Amendment Fee. The Co-Borrowers agree to pay to the
Administrative Agent for the account of each Bank, an additional
amendment fee of One Hundred Fifty Thousand Dollars ($150,000), such
fee payable as follows: $25,000, upon execution of the Fifth Amendment
and Waiver, and $25,000 on May 1, 2001 and on the first day of each
month thereafter, through and including September 1, 2001. Upon
receipt of such fee, the Administrative Agent will promptly thereafter
distribute to the Banks their respective Pro Rata Shares of such fee.
Section 1.6. Section 11.01(a) of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
Section 11.01. Minimum Earnings Before Interest, Taxes, Depreciation
and Amortization. The Co-Borrowers shall maintain Earnings Before
Interest, Taxes, Depreciation and Amortization, for the Co-Borrowers
on a consolidated basis, for each of the periods set forth below of
not less than the amount set forth below opposite the applicable
period:
Period Minimum Amount
------ --------------
January 1, 2001 through March 31, 2001 ($1,700,000)
April 1, 2001 through June 30, 2001 $550,000
July 1, 2001 through September 30, 2001 $775,000
October 1, 2001 through December 31, 2001 $1,500,000
At the end of each fiscal quarter thereafter $1,600,000
Section 1.7. Section 11.02 of the Credit Agreement is hereby amended and
restated in its entirety to provide as follows:
Section 11.02. Minimum Net Income. The Co-Borrowers shall maintain Net
Income, for the Co-Borrowers on a consolidated basis, for each of the
periods set forth below, of not less than the amount set forth below
opposite the applicable period:
Period Minimum Amount
------ --------------
January 1, 2001 through March 31, 2001 ($3,000,000)
April 1, 2001 through June 30, 2001 ($1,850,000)
July 1, 2001 through September 30, 2001 ($525,000)
October 1, 2001 through December 31, 2001 $200,000
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At the end of each fiscal quarter thereafter $300,000
Section 1.8. Sections 11.03 and 11.04 of the Credit Agreement are hereby
deleted in their entirety.
Section 1.9. Section 12.01 of the Credit Agreement is hereby amended by
adding a new subsection "(11)" at the end thereof, as follows:
"(11) the Co-Borrowers shall fail to receive on or before June 30,
2002 net proceeds of at least $3,750,000 from the issuance of
shares of its capital stock (whether by private placement,
public offering or otherwise)."
Section 1.10. Section 9.08 of the Credit Agreement is hereby amended by
adding the following new subsection "(22)" at the end thereof as follows:
"(22) Consolidating Statements of Co-Borrowers. Simultaneously with
delivery of the consolidating financial statements referred to
in subsections (1) and (2) above, a statement indicating the
subtotals of the consolidating statements pertaining to each
Co-Borrower."
Section 1.11. Exhibit A (Revolving Credit Note) to the Credit Agreement is
hereby amended and restated and replaced with Exhibit A attached to this
Amendment and Waiver.
ARTICLE 2.
WAIVERS TO CREDIT AGREEMENT
Section 2.1 The Banks hereby waive compliance with Section 11.01(a)
(Minimum Earnings Before Interest, Taxes, Depreciation and Amortization) solely
with respect to the Fiscal Year ended December 31, 2000.
Section 2.2 The Banks hereby waive compliance with Section 11.01(c) (Fixed
Charge Coverage Ratio) solely with respect to the Fiscal Year ended December 31,
2000.
Section 2.3 The Banks hereby waive compliance with Section 11.01(d) (Cash
Flow Leverage Ratio) solely with respect to the Fiscal Year ended December 31,
2000.
Section 2.4 The waivers set forth above are further conditioned upon
receipt by the Banks of the audited consolidated and consolidating statements of
the Co-Borrowers for the Fiscal Year ended December 31, 2000, which statements
shall indicate that the net loss of the Co-Borrowers and the Guarantors, on a
consolidated basis, is not greater than $3,500,000, in the aggregate.
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Section 2.5 The waivers set forth are limited specifically to the matters
set forth above and for the specific instances and purposes given and do not
constitute directly or by implication a waiver or amendment of any other
provision of the Credit Agreement or a waiver of any Default or Event of Default
(except as contemplated by this Section 2) under the Credit Agreement.
ARTICLE 3.
CONDITIONS TO EFFECTIVENESS
Section 3.1. Conditions to Effectiveness. The amendments and waivers to the
Credit Agreement described herein are subject to receipt by the Administrative
Agent of the following items, each in form and substance satisfactory to the
Banks:
(a) this Amendment and Waiver, duly executed by each Co-Borrower and each
Guarantor;
(b) the original executed Revolving Credit Notes, duly executed by the
Revolving Credit Borrowers in favor of each Bank, in the forms attached hereto
as Exhibit A;
(c) a certificate of the Secretary of each Co-Borrower and each Guarantor,
substantially in the form of Exhibit 1 attached hereto;
(d) a certificate of a duly authorized officer of the Co-Borrowers,
substantially in the form of Exhibit 2 attached hereto; and
(e) such other documents, instruments, approvals, opinions and evidence as
the Administrative Agent and the Banks may reasonably require.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Each Co-Borrower hereby represents and warrants to the Banks that:
Section 4.1. Each of the representations and warranties set forth in
Article VIII of the Credit Agreement is true as of the date hereof with respect
to the Co-Borrower and, to the extent applicable, each Guarantor and each of
their respective Subsidiaries and with the same effect as though made on the
date hereof, and is hereby incorporated herein in full by reference as if fully
restated herein in its entirety. In addition, in order to induce the Banks and
the Administrative Agent to enter into this Amendment and Waiver, each
Co-Borrower hereby covenants, represents and warrants to the Banks that since
December 31, 1999 there has been no material adverse change in the
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business, operations, properties or financial condition of any Co-Borrower, any
Guarantor or any of their respective Subsidiaries.
Section 4.2. To induce the Banks and the Administrative Agent to enter into
this Amendment and Waiver and to continue to make advances to the Co-Borrowers
pursuant to the Credit Agreement, as amended hereby, the Co-Borrowers hereby
acknowledge and agree that, as of the date hereof, and after giving effect to
the terms hereof, there exists (i) no Default or Event of Default, and (ii) no
right of offset, defense, counterclaim, claim or objection in favor of the
Co-Borrowers arising out of or with respect to any of the obligations of the
Co-Borrowers and the Guarantors under the Credit Agreement.
Section 4.3. Each Co-Borrower and each Guarantor has the corporate power
and authority to enter into, perform and deliver this Amendment and Waiver and
any other documents, instruments, agreements or other writings to be delivered
in connection herewith. This Amendment and Waiver and all documents contemplated
hereby or delivered in connection herewith, have each been duly authorized,
executed and delivered and the transactions contemplated herein have been duly
authorized.
Section 4.4. This Amendment and Waiver and any other documents, agreements
or instruments now or hereafter executed and delivered to the Banks by the
Co-Borrowers and the Guarantors in connection herewith constitute (or shall,
when delivered, constitute) valid and legally binding obligations of
Co-Borrowers and the Guarantors, each of which is and shall be enforceable
against Co-Borrowers and the Guarantors, as applicable, in accordance with their
respective terms.
Section 4.5. No representation, warranty or statement by the Co-Borrowers
and the Guarantors contained herein or in any other document to be furnished by
the Co-Borrowers and the Guarantors in connection herewith contains, or at the
time of delivery shall contain, any untrue statement of material fact, or omits
or at the time of delivery shall omit to state a material fact necessary to make
such representation, warranty or statement not misleading.
Section 4.6. No consent, waiver or approval of any entity is or will be
required in connection with the execution, delivery, performance, validity or
enforcement of this Amendment and Waiver, or any other agreements, instruments
or documents to be executed and/or delivered in connection herewith or pursuant
hereto.
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ARTICLE 5.
MISCELLANEOUS
Section 5.1. This Amendment and Waiver may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment and Waiver by
signing (either original or via facsimile) any such counterpart.
Section 5.2. This Amendment and Waiver shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New York
(without giving effect to the conflict of laws provisions thereof).
Section 5.3. The execution and delivery of this Amendment and Waiver by the
Banks shall not be deemed to be a waiver of any Default or Event of Default that
has occurred or that may hereafter arise pursuant to the terms fo the Credit
Agreement and the parties hereto agree that the Banks retain all of their rights
and remedies under the Credit Agreement with respect to any Default or Event of
Default, whether now existing or hereafter arising.
[next page is signature page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed as of the day and year first above written.
BOUNDLESS TECHNOLOGIES, INC.
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS MANUFACTURING SERVICES, INC.
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS ACQUISITION CORP.
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS CORPORATION
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
Bank Commitment: THE CHASE MANHATTAN BANK,
---------------- as a Bank and as Administrative Agent
Revolving Credit Loans: $4,800,000
Original Term Loan: $1,600,000
By:______________________________________
Name: Xxxxxx Xxxxx XxXxxxxx
Title: Vice President
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Bank Commitment: SILICON VALLEY BANK, as a Bank
---------------
Revolving Credit Loans: $4,800,000
Original Term Loan: $1,600,000 By:______________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
Bank Commitment: NATIONAL BANK OF CANADA, as a Bank
----------------
Revolving Credit Loans: $2,400,000
Original Term Loan: $800,000 By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
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THIRD AMENDED AND
RESTATED REVOLVING CREDIT NOTE
$4,800,000 as of April 17, 2001
FOR VALUE RECEIVED, BOUNDLESS TECHNOLOGIES, INC. AND BOUNDLESS
MANUFACTURING SERVICES, INC. (collectively, the "Revolving Credit Borrowers")
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of THE CHASE MANHATTAN
BANK ("Bank") at the Administrative Agent's Office, for the account of the
Applicable Lending Office of the Bank, the principal sum of Four Million Eight
Hundred Thousand Dollars ($4,800,000) or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank to the Revolving
Credit Borrowers pursuant to Section 2.01 of the Credit Agreement referred to
below, in lawful money of the United States of America and in immediately
available funds, on the Termination Date (as defined in the Credit Agreement
referred to below). The Revolving Credit Borrowers also jointly and severally
promise to pay interest on the unpaid principal balance hereof, for the period
such balance is outstanding, at said principal office for the account of said
Applicable Lending Office, in like money, at the rates of interest as provided
in the Credit Agreement referred to below, on the dates and in the manner
provided in said Credit Agreement.
The Revolving Credit Borrowers hereby authorize the Bank to endorse on the
Schedule annexed to this Revolving Credit Note the amount and type of all
Revolving Credit Loans made to the Revolving Credit Borrowers by the Bank and
all Continuations, Conversions and payments of principal amounts in respect of
such Revolving Credit Loans, which endorsements shall, in the absence of
manifest error, be conclusive as to the outstanding principal amount of all
Revolving Credit Loans owed to the Bank; provided, however, that the failure to
make such notation with respect to any Revolving Credit Loan or payment shall
not limit or otherwise affect the obligation of the Revolving Credit Borrowers
under the Credit Agreement or this Revolving Credit Note.
If any installment of this Revolving Credit Note becomes due and payable on
a day which is not a Banking Day, the maturity thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate
herein specified during such extension.
This is one of the Revolving Credit Notes referred to in that certain
Second Amended and Restated Credit Agreement and Guaranty, dated as of May 25,
2000 (as same has been and may be further amended, restated, supplemented or
modified, from time to time, the "Credit Agreement") among the Revolving Credit
Borrowers, Boundless Acquisition Corporation ("BAC") and Boundless
1
Corporation ("BC"), The Chase Manhattan Bank ("Chase"), Silicon Valley Bank
("SVB") and National Bank of Canada ("NBC"), and each other lender which may
hereafter execute and deliver an instrument of assignment with respect to the
Credit Facilities as defined in and under the Credit Agreement (Chase, SVB, NBC
and such other lenders, each a "Bank" and collectively, the "Banks"), and The
Chase Manhattan Bank, as administrative, documentation and collateral agent for
the Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent"), and is issued pursuant to and entitled to the benefits
of the Credit Agreement to which reference is made for a more complete statement
of the terms and conditions under which the Revolving Credit Loans were or are
to be made and are to be repaid. All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Credit Agreement.
This Note is subject to optional and mandatory prepayment pursuant to
Sections 2.10 and 2.11 of the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
This Revolving Credit Note is secured pursuant to certain of the Security
Documents referred to in the Credit Agreement, reference to which is hereby made
for a description of the Collateral provided for under the above referenced
documents and the rights of the Revolving Credit Borrowers, BAC, BC, each of the
Banks, and the Administrative Agent with respect to such Collateral.
The Revolving Credit Borrowers hereby waive presentment, notice of
dishonor, protest and any other notice or formality with respect to this
Revolving Credit Note.
This Revolving Credit Note amends and restates and is given in substitution
for, but not in satisfaction of, that certain Second Amended and Restated
Revolving Credit Note, dated as of May 25, 2000, by the Revolving Credit
Borrowers in favor of the Bank, in the original principal amount of $6,000,000
and is entitled to the benefits of the Credit Agreement and the Loan Documents
and is subject to all of the agreements, terms and conditions therein contained.
This Revolving Credit Note shall be governed by, and interpreted and
construed in accordance with, the Laws of the State of New York, provided, that,
as to the maximum rate of interest which may be charged or collected if the Laws
applicable to the Bank permit it to charge or collect a higher rate than the
Laws of the State of New York, then such Laws applicable to the Bank shall apply
to the Bank under this Revolving Credit Note.
2
IN WITNESS WHEREOF, each Revolving Credit Borrower has caused this Note to
be executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
BOUNDLESS TECHNOLOGIES, INC.
By:
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS MANUFACTURING SERVICES, INC.
By:
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
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SCHEDULE TO REVOLVING CREDIT NOTE
Date Unpaid
Loan Made, Principal Name of
Continued, Amount of Balance of Person
Converted Type of Amount of Principal Revolving Making
or Paid Loan Loan Prepaid Credit Note Notation
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THIRD AMENDED AND
RESTATED REVOLVING CREDIT NOTE
$4,800,000 as of April 17, 2001
FOR VALUE RECEIVED, BOUNDLESS TECHNOLOGIES, INC. and BOUNDLESS
MANUFACTURING SERVICES, INC. (collectively, the "Revolving Credit "Borrowers")
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of SILICON VALLEY BANK
("Bank") at the Administrative Agent's Office, for the account of the Applicable
Lending Office of the Bank, the principal sum of Four Million Eight Hundred
Thousand Dollars ($4,800,000) or, if less, the aggregate unpaid principal amount
of all Revolving Credit Loans made by the Bank to the Revolving Credit Borrowers
pursuant to Section 2.01 of the Credit Agreement referred to below, in lawful
money of the United States of America and in immediately available funds, on the
Termination Date (as defined in the Credit Agreement referred to below). The
Revolving Credit Borrowers also jointly and severally promise to pay interest on
the unpaid principal balance hereof, for the period such balance is outstanding,
at said principal office for the account of said Applicable Lending Office, in
like money, at the rates of interest as provided in the Credit Agreement
referred to below, on the dates and in the manner provided in said Credit
Agreement.
The Revolving Credit Borrowers hereby authorize the Bank to endorse on the
Schedule annexed to this Revolving Credit Note the amount and type of all
Revolving Credit Loans made to the Revolving Credit Borrowers by the Bank and
all Continuations, Conversions and payments of principal amounts in respect of
such Revolving Credit Loans, which endorsements shall, in the absence of
manifest error, be conclusive as to the outstanding principal amount of all
Revolving Credit Loans owed to the Bank; provided, however, that the failure to
make such notation with respect to any Revolving Credit Loan or payment shall
not limit or otherwise affect the obligation of the Revolving Credit Borrowers
under the Credit Agreement or this Revolving Credit Note.
If any installment of this Revolving Credit Note becomes due and payable on
a day which is not a Banking Day, the maturity thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate
herein specified during such extension.
This is one of the Revolving Credit Notes referred to in that certain
Amended and Restated Credit Agreement and Guaranty, dated as of May 25, 2000 (as
same has been and may be further amended, restated, supplemented or modified,
from time to time, the "Credit Agreement") among the Revolving Credit Borrowers,
Boundless Acquisition Corporation ("BAC") and Boundless Corporation ("BC"), The
Chase Manhattan Bank ("Chase"), Silicon Valley Bank ("SVB") and National Bank of
Canada ("NBC"), and each other lender which may hereafter execute and deliver an
1
instrument of assignment with respect to the Credit Facilities as defined in and
under the Credit Agreement (Chase, SVB, NBC and such other lenders, each a
"Bank" and collectively, the "Banks"), and The Chase Manhattan Bank, as
administrative, documentation and collateral agent for the Banks (in such
capacity, together with its successors in such capacity, the "Administrative
Agent"), and is issued pursuant to and entitled to the benefits of the Credit
Agreement to which reference is made for a more complete statement of the terms
and conditions under which the Revolving Credit Loans were or are to be made and
are to be repaid. All capitalized terms used herein and not defined herein shall
have the meanings given to them in the Credit Agreement.
This Note is subject to optional and mandatory prepayment pursuant to
Sections 2.10 and 2.11 of the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
This Revolving Credit Note is secured pursuant to certain of the Security
Documents referred to in the Credit Agreement, reference to which is hereby made
for a description of the Collateral provided for under the above referenced
documents and the rights of the Revolving Credit Borrowers, BAC, BC, each of the
Banks, and the Administrative Agent with respect to such Collateral.
The Revolving Credit Borrowers hereby waive presentment, notice of
dishonor, protest and any other notice or formality with respect to this
Revolving Credit Note.
This Revolving Credit Note amends and restates and is given in substitution
for, but not in satisfaction of, that certain Second Amended and Restated
Revolving Credit Note, dated as of May 25, 2000, by the Revolving Credit
Borrowers in favor of the Bank, in the original principal amount of $6,000,000
and is entitled to the benefits of the Credit Agreement and the Loan Documents
and is subject to all of the agreements, terms and conditions therein contained.
This Revolving Credit Note shall be governed by, and interpreted and
construed in accordance with, the Laws of the State of New York, provided, that,
as to the maximum rate of interest which may be charged or collected if the Laws
applicable to the Bank permit it to charge or collect a higher rate than the
Laws of the State of New York, then such Laws applicable to the Bank shall apply
to the Bank under this Revolving Credit Note.
2
IN WITNESS WHEREOF, each Revolving Credit Borrower has caused this Note to
be executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
BOUNDLESS TECHNOLOGIES, INC.
By:
-------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS MANUFACTURING
SERVICES, INC.
By:
-------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
3
SCHEDULE TO REVOLVING CREDIT NOTE
Date Unpaid
Loan Made, Principal Name of
Continued, Amount of Balance of Person
Converted Type of Amount of Principal Revolving Making
or Paid Loan Loan Prepaid Credit Note Notation
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1
THIRD AMENDED AND
RESTATED REVOLVING CREDIT NOTE
$2,400,000 as of April 17, 2001
FOR VALUE RECEIVED, BOUNDLESS TECHNOLOGIES, INC. and BOUNDLESS
MANUFACTURING SERVICES, INC. (collectively, the "Revolving Credit Borrowers")
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of NATIONAL BANK OF
CANADA ("Bank") at the Administrative Agent's Office, for the account of the
Applicable Lending Office of the Bank, the principal sum of Two Million Four
Hundred Thousand Dollars ($2,400,000) or, if less, the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Bank to the Revolving
Credit Borrowers pursuant to Section 2.01 of the Credit Agreement referred to
below, in lawful money of the United States of America and in immediately
available funds, on the Termination Date (as defined in the Credit Agreement
referred to below). The Revolving Credit Borrowers also jointly and severally
promise to pay interest on the unpaid principal balance hereof, for the period
such balance is outstanding, at said principal office for the account of said
Applicable Lending Office, in like money, at the rates of interest as provided
in the Credit Agreement referred to below, on the dates and in the manner
provided in said Credit Agreement.
The Revolving Credit Borrowers hereby authorize the Bank to endorse on the
Schedule annexed to this Revolving Credit Note the amount and type of all
Revolving Credit Loans made to the Revolving Credit Borrowers by the Bank and
all Continuations, Conversions and payments of principal amounts in respect of
such Revolving Credit Loans, which endorsements shall, in the absence of
manifest error, be conclusive as to the outstanding principal amount of all
Revolving Credit Loans owed to the Bank; provided, however, that the failure to
make such notation with respect to any Revolving Credit Loan or payment shall
not limit or otherwise affect the obligation of the Revolving Credit Borrowers
under the Credit Agreement or this Revolving Credit Note.
If any installment of this Revolving Credit Note becomes due and payable on
a day which is not a Banking Day, the maturity thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate
herein specified during such extension.
This is one of the Revolving Credit Notes referred to in that certain
Second Amended and Restated Credit Agreement and Guaranty, dated as of May 25,
2000 (as same has been and may be further amended, restated, supplemented or
modified, from time to time, the "Credit Agreement") among the Revolving Credit
Borrowers, Boundless Acquisition Corporation ("BAC") and Boundless Corporation
("BC"), The Chase Manhattan Bank ("Chase"), Silicon Valley Bank ("SVB") and
National Bank of Canada ("NBC"), and each other lender which may hereafter
execute and deliver an instrument of assignment with respect to the Credit
Facilities as defined in and under the Credit Agreement (Chase, SVB, NBC and
such other lenders, each a "Bank" and collectively, the "Banks"), and The Chase
Manhattan Bank, as administrative, documentation and collateral agent for the
Banks
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(in such capacity, together with its successors in such capacity, the
"Administrative Agent"), and is issued pursuant to and entitled to the benefits
of the Credit Agreement to which reference is made for a more complete statement
of the terms and conditions under which the Revolving Credit Loans were or are
to be made and are to be repaid. All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Credit Agreement.
This Note is subject to optional and mandatory prepayment pursuant to
Sections 2.10 and 2.11 of the Credit Agreement.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note together with all accrued but unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
This Revolving Credit Note is secured pursuant to certain of the Security
Documents referred to in the Credit Agreement, reference to which is hereby made
for a description of the Collateral provided for under the above referenced
documents and the rights of the Revolving Credit Borrowers, BAC, BC, each of the
Banks, and the Administrative Agent with respect to such Collateral.
The Revolving Credit Borrowers hereby waive presentment, notice of
dishonor, protest and any other notice or formality with respect to this
Revolving Credit Note.
This Revolving Credit Note amends and restates and is given in substitution
for, but not in satisfaction of, that certain Second Amended and Restated
Revolving Credit Note, dated as of May 25, 2000, by the Revolving Credit
Borrowers in favor of the Bank, in the original principal amount of $3,000,000
and is entitled to the benefits of the Credit Agreement and the Loan Documents
and is subject to all of the agreements, terms and conditions therein contained.
This Revolving Credit Note shall be governed by, and interpreted and
construed in accordance with, the Laws of the State of New York, provided, that,
as to the maximum rate of interest which may be charged or collected if the Laws
applicable to the Bank permit it to charge or collect a higher rate than the
Laws of the State of New York, then such Laws applicable to the Bank shall apply
to the Bank under this Revolving Credit Note.
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IN WITNESS WHEREOF, each Revolving Credit Borrower has caused this Note to
be executed and delivered by its duly authorized officer, as of the day and year
and at the place first above written.
BOUNDLESS TECHNOLOGIES, INC.
By:
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Name: Xxxxxx Xxxxxxx
Title: Vice President
BOUNDLESS MANUFACTURING
SERVICES, INC.
By:
-------------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
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SCHEDULE TO REVOLVING CREDIT NOTE
Date Unpaid
Loan Made, Principal Name of
Continued, Amount of Balance of Person
Converted Type of Amount of Principal Revolving Making
or Paid Loan Loan Prepaid Credit Note Notation
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Secretary's Certificate
I, J. Xxxxxx Xxxxx, do hereby certify that I am the President of each of
Boundless Technologies, Inc. and Boundless Manufacturing Services, Inc. and the
chief executive officer of Boundless Acquisition Corp. and Boundless Corporation
(each a "Company" and collectively, the "Companies"), and pursuant to the Fifth
Amendment and Waiver to Credit Agreement, dated as of the date hereof, by and
among the Companies and the several other parties thereto, FURTHER CERTIFY THAT:
1. The Certificates of Incorporation and By-laws of each Company previously
delivered to The Chase Manhattan Bank, as agent for the Banks, on May 25, 2000
have not been amended, modified, revoked or rescinded as of the date hereof;
2. Each Company is duly formed, validly existing and in good standing in
the state of its formation and has filed all statements and/or documents
required by any governmental authority;
3. Attached hereto as Exhibit A is a true and complete copy of the
Resolutions adopted pursuant to unanimous written consent of the Board of
Directors of each Company, duly adopted as of the date thereof, which
resolutions are the only resolutions of the Board of Directors of each Company
relating to the subject matter thereof, have not been amended, rescinded or
revoked and are in full force and effect as of the date hereof;
4. The following named person has been duly elected to and currently holds
the office in the Corporation set forth opposite his name, and the signature
appearing opposite his name is the genuine signature of such person:
Name Office Signature
---- ------ ---------
Xxxxxx Xxxxxxx Chief Financial Officer
----------------------
IN WITNESS WHEREOF, I have executed this certification this 17th day of
April, 2001.
-----------------------------
J. Xxxxxx Xxxxx
1
RESOLVED, that in connection with a Fifth Amendment and Waiver (the
"Amendment and Waiver") to the Second Amended and Restated Credit Agreement and
Guaranty (the "Credit Agreement), dated as of May 25, 2000, among Boundless
Technologies, Inc., Boundless Manufacturing Services, Inc., Boundless
Acquisition Corp., Boundless Corporation and The Chase Manhattan Bank, Silicon
Valley National Bank and National Bank of Canada (collectively, the "Banks") and
The Chase Manhattan Bank, as agent for the Banks (the "Administrative Agent"),
any of the officers or agents of this Corporation, and each of them, are hereby
authorized, directed and empowered, either jointly or severally, for, on behalf
of and in the name of this Corporation, to make, execute and deliver the
Amendment and Waiver to the Administrative Agent and the Banks and any and all
other agreements, documents and instruments with or in favor of the
Administrative Agent or any of the Banks and delivered in connection with the
Amendment and Waiver; and
RESOLVED, that all actions heretofore taken and all documentation
heretofore delivered by any of said officers and agents, or by any individual
who currently holds or has held any of said offices, in furtherance of the
foregoing is hereby ratified, adopted, approved and confirmed and declared to be
binding and enforceable obligations of the Corporation in accordance with the
respective terms and provisions thereof; and
RESOLVED, that each of the officers of the Corporation are hereby
authorized and directed to execute and deliver any further certificates,
instruments or documents, and take any further actions, in the name and on
behalf of the Corporation, as may be required or contemplated under the
Amendment and Waiver, or any of the other agreements, documents and instruments
delivered in connection therewith, or as such officer may otherwise deem
desirable in order to carry out the intent of the foregoing resolutions.
2
BOUNDLESS TECHNOLOGIES, INC.
BOUNDLESS MANUFACTURING SERVICES, INC.
OFFICER'S CERTIFICATE
I, XXXXXX XXXXXXX, the duly elected, qualified and acting Vice President of
each of BOUNDLESS TECHNOLOGIES, INC. and BOUNDLESS MANUFACTURING SERVICES, INC.
(collectively, the "Co-Borrowers"), DO HEREBY CERTIFY THAT, in connection with
the Third Amendment and Waiver to Credit Agreement, dated as of the date hereof
(the "Amendment and Waiver"), by and among the Co-Borrowers, Boundless
Acquisition Corp., Boundless Corporation, The Chase Manhattan Bank, Silicon
Valley Bank, National Bank of Canada (collectively, the "Banks") and The Chase
Manhattan Bank, as Administrative Agent for the Banks, the representations and
warranties by each Co-Borrower and each Guarantor set forth in the Credit
Agreement, are true and correct, in all material respects, on and as of the date
hereof (unless limited to an earlier date, in which event they shall be true, in
all material respects, as of such earlier date), and, after giving effect to the
Amendment and Waiver, no Event of Default or Default has occurred and is
continuing as of the date hereof or could result from the transactions
contemplated by the Amendment and Waiver.
Capitalized terms used in this certificate and not defined shall have the
meaning assigned to them in the Credit Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name as of this 17th day of
April, 2001.
Name: Xxxxxx Xxxxxxx
Title: Vice President of each of Boundless
Technologies, Inc. and Boundless
Manufacturing Services, Inc.
