Exhibit 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of March 21, 2001 (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 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 Agreement, dated as of July 31, 2000, the Second Amendment to Credit
Agreement, dated as of November 7, 2000 and the Third Amendment and Waiver to
Credit Agreement, dated as of November 16, 2000 (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, and 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 by
adding the following new definition in its appropriate alphabetical order:
"Net Proceeds" shall mean the gross proceeds received by any
Co-Borrower or any Guarantor from the issuance of any of its capital
stock, less the sum of all out-of-pocket fees and expenses incurred in
connection with such issuance, including, without limitation
underwriters' fees and commissions."
Section 1.2 Section 2.01 of the Credit Agreement is hereby amended to add
the following new sentence at the end thereof:
"Notwithstanding anything to the contrary above, the Banks shall
permit up to $400,000 of the Overadvance described above to be in
existence during the period commencing March 9, 2001 through and
including June 9, 2001, provided that such amount shall be reduced,
dollar for dollar, by an amount equal to the Net Proceeds received by
any Co-Borrower or any Guarantor in connection with the issuance of
any shares of its capital stock."
Section 1.3 Section 2.11 of the Credit Agreement is hereby amended by
adding the following new subsection "(c)" immediately following subsection "(b)"
thereof:
"(c) In the event that any Co-Borrower or any Guarantor shall receive
proceeds from the issuance of any shares of its capital stock, whether
by private placement, public offering or otherwise, the Co-Borrowers
shall apply the first $500,000 of the Net Proceeds therefrom to prepay
any Revolving Credit Loans that are then outstanding, and, in the
event that the Net Proceeds are in excess of $500,000, any amount in
excess of $500,000 shall be applied to the principal installments of
the Term Loan in inverse order of their maturities until the Term Loan
shall have been paid in full. Prepayments of the Term Loan may not be
reborrowed."
ARTICLE 2.
CONDITIONS TO EFFECTIVENESS
Section 2.1. Conditions to Effectiveness. The amendments to the Credit
Agreement described herein are subject to(a) receipt by the Administrative Agent
of the following items, each in form and substance satisfactory to the Banks:
(i) this Amendment, duly executed by each Co-Borrower and each Guarantor; (ii) a
certificate of a duly authorized officer of the Co-Borrowers stating that the
representations and warranties in Article VIII of the Credit Agreement are true
and correct on such date as though made on and as of such date and that no event
has occurred and is continuing which constitutes a Default or Event of Default,
except such Defaults or Events of Default as are described on Schedule A hereto;
(iii) an amendment fee of $50,000 to be distributed to the Banks based upon
their Pro-Rata Share; (iv) duly executed UCC-1 financing statements, or such
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other documents as may be required by the Administrative Agent, to perfect a
security interest in in-transit inventory of the Co-Borrowers, all in form and
substance satisfactory to the Administrative Agent; and (b) payment by the
Co-Borrowers of all reasonable legal fees and disbursements of counsel to the
Administrative Agent incurred in connection with this Amendment.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each Co-Borrower hereby represents and warrants to the Banks that:
Section 3.1. 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, 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 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 hereto 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.
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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 of 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.
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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
THE CHASE MANHATTAN BANK,
as a Bank and as Administrative Agent
By:______________________________________
Name: Xxxxxxx XxXxxx
Title: Vice President
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SILICON VALLEY BANK,
as a Bank
By:______________________________________
Name: Xxxxxx Xxxxxx
Title: Vice President
NATIONAL BANK OF CANADA,
as a Bank
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
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SCHEDULE 3
Existing Defaults and Events of Default
[To be prepared by Co-Borrowers]
