Exhibit 10 aa
SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of March 27, 2002 (this
"Amendment"), 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
JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank), SILICON VALLEY
BANK and NATIONAL BANK OF CANADA (collectively, the "Banks") and JPMORGAN CHASE
BANK (formerly known as 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 Agreement, 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, the Fourth Amendment to Credit
Agreement, dated as of March 22, 2001, the Fifth Amendment and Waiver to Credit
Agreement, dated as of April 17, 2001, and the Sixth Amendment and Waiver to
Credit Agreement, dated as of June 27, 2001 (as same may be further amended,
restated, supplemented and otherwise modified, from time to time, "Credit
Agreement").
B. The Co-Borrowers have requested that the Banks amend certain provisions
of the Credit Agreement. The Banks have agreed to such amendments subject to the
terms and conditions of this Amendment.
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 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 are hereby incorporated by reference into the Credit Agreement as if
such terms were set forth in full therein.
Section 1.1. Section 1.01 of the Credit Agreement is hereby amended to add
the following new defined term in its appropriate alphabetical order:
"Seventh Amendment" shall mean the Seventh Amendment to Credit Agreement,
dated as of March 27, 2002, by and among the Co-Borrowers, the Guarantors,
the Administrative Agent and the Banks.
Section 1.2. 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 Seventh Amendment under the caption "Bank
Commitment", as such amounts may be adjusted in accordance with the terms
of this Agreement.
"Revolving Credit Facility" means Six Million Five Hundred Thousand Dollars
($6,500,000).
Section 1.3. Section 9.08(4) of the Credit Agreement is hereby amended and
restated to provide in its entirety as follows:
"(4) Weekly Inventory Statements. As soon as available and in any event
within three Banking Days after the end of each week, a report in form and
substance satisfactory to the Administrative Agent and the Banks indicating
monthly aged inventory levels as to each Co-Borrower (both in-house and
in-transit), imputed inventory, inventory purchased on open account,
monthly open orders and gross profit and shipping levels relative to the
prior year.
ARTICLE 2.
CONDITIONS TO EFFECTIVENESS
Section 2.1. Conditions to Effectiveness. The amendments 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, duly executed by each Co-Borrower and each Guarantor;
(b) a certificate of a duly authorized officer of the Co-Borrowers,
substantially in the form of Exhibit 1 attached hereto;
(c) such other documents, instruments, approvals, opinions and evidence as
the Administrative Agent and the Banks may reasonably require.
2
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each Co-Borrower and each Guarantor hereby represents and warrants to the
Banks that:
Section 3.1. Except as set forth on Schedule 1 attached hereto, 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, each Co-Borrower hereby covenants, represents and warrants
to the Banks that since December 31, 2000 there has been no material adverse
change in the business, operations, properties or financial condition of any
Co-Borrower, any Guarantor or any of their respective Subsidiaries.
Section 3.2. To induce the Banks and the Administrative Agent to enter into
this Amendment 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 other than those Defaults and
Events of Default described on Schedule 3 hereof, 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 3.3. Each Co-Borrower and each Guarantor has the corporate power
and authority to enter into, perform and deliver this Amendment and any other
documents, instruments, agreements or other writings to be delivered in
connection herewith. This Amendment 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 3.4. This Amendment 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.
3
Section 3.5. 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 3.6. 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, or any other agreements, instruments or documents
to be executed and/or delivered in connection herewith or pursuant hereto.
ARTICLE 4.
MISCELLANEOUS
Section 4.1. This Amendment 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 by signing (either original or via
facsimile) any such counterpart.
Section 4.2. This Amendment 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 4.3. The execution and delivery of this Amendment 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]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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: JPMORGAN CHASE BANK,
as a Bank and as Administrative Agent
Revolving Credit Loans: $2,600,000
Original Term Loan: n/a
By:__________________________________
Name:
Title:
5
Bank Commitment: SILICON VALLEY BANK, as a Bank
Revolving Credit Loans: $2,600,000
Original Term Loan: n/a
By:_____________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
Bank Commitment: NATIONAL BANK OF CANADA, as a Bank
Revolving Credit Loans: $1,300,000 By: PNC Bank, National Association, its
Original Term Loan: n/a Attorney-in-Fact
By:_________________________________
Name:
Title:
By:________________________________
Name:
Title:
6
Schedule 1
JPMORGAN CHASE BANK, as Administrative Agent
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
March 27, 2002
VIA FACSIMILE
and OVERNIGHT MAIL
Boundless Technologies, Inc.
Boundless Manufacturing Services, Inc.
Boundless Acquisition Corp.
Boundless Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Vice President
Re: Second Amended and Restated Credit Agreement, dated as of May 25,
2000, by and among Boundless Technologies, Inc. and Boundless
Manufacturing Services, Inc. (collectively, the "Co-Borrowers"),
Boundless Acquisition Corp. and Boundless Corporation (collectively,
the "Guarantors"), JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), Silicon Valley Bank and National Bank of Canada
(collectively, the "Banks") and JPMorgan Chase Bank, as Administrative
Agent for the Banks (as amended, the "Credit Agreement")
Gentlemen:
Simultaneously herewith, the Administrative Agent, on behalf of the
Lenders, is delivering to the Co-Borrowers and the Guarantors a Seventh
Amendment to the Credit Agreement, which evidences certain changes to the Credit
Agreement (the "Amendment").
In addition, there exists certain Events of Default under the Credit
Agreement arising from (a) the Co-Borrowers' and the Guarantors' failure to
comply with Section 11.01(a) (Minimum Earnings Before Interest, Taxes,
Depreciation and Amortization) and Section 11.02 (Minimum Net Income), each for
the period ended December 31, 2001, and (b) the Co-Borrower's failure to repay
the Overadvance (as permitted pursuant to Section 2.01 of the Credit Agreement)
by March 27, 2002 as provided in that certain Reservation of Rights Letter dated
February 25, 2002 addressed to the Co-Borrowers and the Guarantors by the
Administrative
7
Agent on behalf of the Banks (collectively, the "Existing
Defaults").
The Administrative Agent, on behalf of the Banks, hereby informs you that
the Overadvance must be repaid by the Co-Borrowers in order to provide that the
outstanding principal amount of the Overadvance shall not exceed (a) $500,000 by
5:00 p.m. on April 5, 2002 and (b) $400,000 by 5:00 p.m. on April 12, 2002.
In addition, we note that requests for additional Loans are subject to the
conditions set forth in Section 7.02 of the Credit Agreement, which section
requires among other items that no Default or Event of Default shall have
occurred and be continuing on the date that any extension of credit is made.
Accordingly, unless the Existing Defaults have been waived by Required Lenders,
in their sole discretion, you are hereby advised that the Banks and Chase may,
but shall not be obligated to, entertain additional requests for Loans or for
the issuance, amendment, renewal or extension of Letters of Credit as provided
in the Credit Agreement; provided that the making of any such Loan and/or the
issuance, amendment, renewal or extension of a Letter of Credit during this
period shall not be deemed a waiver of any Default or Event of Default then
existing, nor shall any such funding require the Banks and Chase to make any
future Loan and/or issue, amend, renew or extend a Letter of Credit at any other
time.
The Administrative Agent and the Banks hereby expressly reserve all rights
and remedies arising from the Existing Defaults and from any other Default or
Event of Default that may have occurred and be continuing, or may in the future
occur, under the Credit Agreement or any other Loan Document, whether at law or
in equity, including, without limitation, the right to terminate the
Commitments. Neither the making of an additional Loans and/or the issuance,
amendment, renewal or extension of a Letter of Credit, nor the failure or delay
on the part of the Banks or the Administrative Agent in exercising any of the
rights and remedies with respect to any Event of Default shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any other right or remedy.
The agreements of the Banks as evidenced by this Letter shall not be
effective unless the Co-borrowers and the Guarantors shall have duly executed
this Amendment.
Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Credit Agreement.
JPMORGAN CHASE BANK, as Administrative Agent
on behalf of the Banks
By: __________________________
Title: Vice President
8
cc: Silicon Valley Bank
9020 Capital of Xxxxx Xxxxxxx, Xxxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxx, Vice President
National Bank of Canada
c/o PNC Business Credit Corp.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx, Vice President
9
