EXHIBIT 10(j)
FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY,
HYPOTHECATION AGREEMENT AND LOAN DOCUMENTS
FIRST AMENDMENT TO CREDIT AGREEMENT AND GUARANTY,
HYPOTHECATION AGREEMENT AND LOAN DOCUMENTS, dated as of February 2, 1996
("Amendment Agreement") among SunRiver Data Systems, Inc. ("Borrower"), SunRiver
Acquisition Corporation ("SRAC"), SunRiver Corporation (formerly known as All
Quotes. Inc.) ("SRC"), SunRiver Group, Inc. ("SRG"), The Chase Manhattan Bank,
N.A. ("Chase"), 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 referred to below (each a "Bank" and collectively,
the "Banks"), and The Chase Manhattan Bank, N.A., as agent for the Banks (in
such capacity, together with its successors in such capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to each of (1) the
Credit Agreement and Guaranty dated as of October 20, 1995 among the Borrower,
SRAC, SRC, SRG, Chase and the Agent (as amended, supplemented or modified from
time to time, the "Credit Agreement"); and (2) the Hypothecation Agreement dated
as of October 20, 1995 made by SRG to each of the Banks and the Agent (as
amended, supplemented or modified from time to time, the "Hypothecation
Agreement"). Any term used in this Amendment Agreement and not otherwise defined
in this Amendment Agreement shall have the meaning assigned to such term in the
Credit Agreement.
The parties hereto have agreed to amend each of the Credit
Agreement and the Hypothecation Agreement and certain of the Loan Documents as
hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 4 hereof, hereby amended as
follows:
(a) The Cover Page and Preamble are amended by changing the
date of the Credit Agreement to October 23, 1995.
(b) Section 2.11, Mandatory Prepayments, is amended by adding
at the end of the fourth paragraph therein the following:
"In addition, notwithstanding the foregoing, the proceeds of
SRC's issuance of not more than Nine Hundred Eighty Four
Thousand Three Hundred Seventy Five (984,375) shares of its
capital stock in January and February, 1996 may be
used by SRC to repurchase not more than Eight Hundred Seventy
Five Thousand (875,000) shares of its capital stock during
January and February, 1996 and are not required to make a
Prepayment Obligation as required above. In addition, each of
the exceptions set forth in this paragraph will not count
against the Borrower or either Guarantors right to retain the
first One Million Five Hundred Thousand Dollars ($1,500,000)
in accordance with item (1) of the first sentence of this
paragraph."
(c) Section 11.01, Minimum Tangible Net Worth, is amended by
(i) deleting each "Period" and its corresponding "Minimum Amount" and inserting
in their place the following:
"Period Minimum Amount
------- --------------
From December 31, 1995 to and ($ 500,000)
including March 30, 1996
From March 31, 1996 to and $ 1,500,000
including June 29, 1996
From June 30, 1996 to and $ 3,500,000
including September 29, 1996
From September 30, 1996 to and $ 6,500,000
including December 30, 1996
From December 31, 1996 to and $11,000,000"
including March 30, 1997
and by (ii) deleting "Fifteen Million Dollars ($15,000,000)" in the second
paragraph thereof and inserting in its place the following:
"Eleven Million Dollars ($11,000,000)"
(d) Section 11.02, Fixed Charge Coverage Ratio, is amended in
its entirety to read as follows:
"Borrower will have for each period specified below a ratio of
(1) the sum of (a) Earnings Before Interest, Taxes, Depreciation and
Amortization for such period minus (b) Capital Expenditures for such
period, to (2) the sum of (a) Cash Interest Expense for such period,
plus (b) the Current Portion of Long Term Debt as of the last day of
such period, plus (c) Dividends Paid during such period, of not less
than the ratio specified below for such period:
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Period Ratio
------ -----
For the four quarters (taken 1.00 to 1
together as a whole) ending on
December 31, 1995
For the four quarters (taken 1.05 to 1
together as a whole) ending on March
31, 1996
For the four quarters (taken 1.10 to 1
together as a whole) ending on June
30, 1996
For the four quarters (taken 1.25 to 1"
together as a whole) ending on each
Quarterly Date during the period
from and including September 30,
1996 to and including September 30,
1998
(e) Section 11.03, Interest Coverage Ratio, is amended by
deleting each "Period" and its corresponding "Ratio" and inserting in their
place the following:
"Period Ratio
For the four quarters (taken together as a whole) ending on each
Quarterly Date during the period from and including December 31, 3.75 to 1
1995 to and including June 30, 1996
For the four quarters (taken together as a whole) ending on each
Quarterly Date during the period from and including September 30, 4.00 to 1"
1996 to and including September 30,
1998
(f) Section 11.04, Cash Flow Leverage Ratio, is amended by
deleting each "Date" and its corresponding "Ratio" and inserting in their place
the following:
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"Date Ratio
----- -----
December 31, 1995 4.15 to 1
March 31, 1996 3.75 to 1
June 30, 1996 3.00 to 1
Each Quarterly Date between
and including September 30,
1996 and September 30, 1998 2.50 to 1"
SECTION 2. Amendment to Hypothecation Agreement. The
Hypothecation Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, hereby
amended as follows:
(a) The Preamble is amended by changing the date of the
Hypothecation Agreement to October 23, 1995.
(a) Xxxxxxx 00, Xxxxxxxxxxx and Release of Hypothecation
Agreement, is amended in its entirety to read as follows:
"If at any time after December 31, 1996, (i) there
are no outstanding Defaults or Events of Default, (ii) the
Interest Rate Adjustment Ratio is lees than 2 to 1 on two
consecutive Quarterly Dates, and (iii) the Tangible Net Worth
of Borrower is equal to or greater than Fifteen Million
Dollars ($15,000,000), then the Hypothecator is released from
its pledge and hypothecation under this Hypothecation
Agreement and this Hypothecation Agreement is terminated."
SECTION 3. Amendment to All Loan Documents. Each and every
Loan Document, which has not already been so amended or is not already dated
October 23, 1995, is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 4 hereof, hereby
amended as follows:
(a) The Preamble of each end every Loan Document is amended by
changing the date of such Loan Document to October 23, 1995.
SECTION 4. Conditions of Effectiveness. This Amendment
Agreement shall become effective as of the date of this Amendment Agreement when
and if the Agent shall have received on or before such date each of the
following documents, in form and substance satisfactory to the Lender and its
counsel, and each of the following conditions has been fulfilled:
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(1) Amendment Agreement. This Amendment Agreement duly executed
by each party hereto:
(2) Officer's Certificate. The following statements shall be
true and the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date hereof stating that, after giving effect
to this Amendment Agreement and the transactions contemplated hereby:
(a) The representations and warranties contained in the
Credit Agreement and in each of the Loan Documents
are correct in all material respects on and as of the
date hereof as though made on and as of such date;
and
(b) No Default or Event of Default has occurred and is
continuing; and
(3) Other Documents. The Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
SECTION 5. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereto, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
and all other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment Agreement shall not operate as a waiver of any right, power or remedy
of the Banks or the Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents, and, except as
specifically provided herein, the Credit Agreement and each other Loan Document
shall remain in full force and effect and are hereby ratified and confirmed.
SECTION 6. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent on demand for all out-of-pocket costs, expenses and charges
(including without limitation, all reasonable fees and charges of legal counsel
for the Agent, Chase and each Bank) incurred by the Agent, Chase or the Banks in
connection with the preparation, reproduction, execution and delivery of this
Amendment Agreement and any other instruments and documents to be delivered
hereunder. In addition, the Borrower
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shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery, filing or recording of
this Amendment Agreement and the other instruments and documents to be delivered
hereunder, and agrees to save the Banks and the Agent harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
SECTION 7. Governing Law. This Amendment Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 8. Headings. Section headings in this Amendment Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Amendment Agreement for any other purpose.
SECTION 9. Counterpart. This Amendment Agreement 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 Agreement by signing any such counterpart.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed as of the day and year first above
written.
SUNRIVER DATA SYSTEMS, INC.
By /s/
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER ACQUISITION CORPORATION
By /s/
-------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER CORPORATION
By /s/
-------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER GROUP, INC.
By /s/
------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By /s/
-------------- -------------
Name: Xxxx X. Xxxxx
Title: Vice President
7
THE CHASE MANHATTAN BANK, N.A.,
as Bank
By /s/
--------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
8
SECOND AMENDMENT TO CREDIT AGREEMENT AND GUARANTY
SECOND AMENDMENT TO CREDIT AGREEMENT AND GUARANTY dated as of
May 22, 1996 ("Second Amendment") among SunRiver Data Systems, Inc.
("Borrower"), SunRiver Acquisition Corporation ("SRAC"), SunRiver Corporation
(formerly known as All Quotes, Inc.) ("SRC") , SunRiver Group, Inc. ("SRG"), The
Chase Manhattan Bank, N.A. ("Chase"), 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 referred to below (each
a "Bank" and collectively, the "Banks"), and The Chase Manhattan Bank, N.A., as
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit
Agreement and Guaranty dated as of October 23, 1995 among the Borrower, SRAC,
SRC, SRG, Chase and the Agent, as amended by the First Amendment to Credit
Agreement and Guaranty, Hypothecation Agreement and Loan Documents (the "Credit
Agreement"). Any term used in this Second Amendment and not otherwise defined in
this Second Amendment shall have the meaning assigned to such term in the Credit
Agreement.
The parties hereto have agreed to amend the Credit Agreement
as hereinafter set forth.
SECTION 1. Amendment to Credit Agreement. Section 14.01 of the
Credit Agreement, Amendments and Waivers, is, effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in Section
2 hereof, hereby amended by (i) renumbering clause "(6)" to become clause "(8)",
and (ii) inserting after "Documents;" in the twenty-second line thereof the
following:
"(6) change the definition of "Borrowing Base"; (7)
release any Guarantor from its obligations under
its Guaranty;"
SECTION 2. Conditions of Effectiveness. This Second Amendment
shall become effective on the date on which each party hereto shall have
executed and delivered this Second Amendment.
SECTION 3. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Second
Amendment shall not operate as a waiver of any right, power or remedy of the
Banks or the Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents, and, except as specifically provided
herein, the Credit Agreement and each other Loan Document shall remain in full
force and effect and are hereby ratified and confirmed.
SECTION 4. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent on demand for all out-of-pocket costs, expenses and charges
(including, without limitation, all reasonable fees and charges of legal counsel
for the Agent, Chase and each Bank) incurred by the Agent, Chase or the Banks in
connection with the preparation, reproduction, execution and delivery of this
Second Amendment and any other instruments and documents to be delivered
hereunder. In addition, the Borrower shall pay any and all stamp and other taxes
and fees payable or determined to be payable in connection with the execution
and delivery, filing or recording of this Second Amendment and the other
instruments and documents to be delivered hereunder, and agrees to save the
Banks and the Agent harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
or fees.
SECTION 5. Governing Law. This Second Amendment shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 6. Headings. Section headings in this Second Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Second Amendment for any other purpose.
SECTION 7. Counterparts. This Second 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 Second Amendment
by signing any such counterpart.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the day and year first above written.
SUNRIVER DATA SYSTEMS, INC.
By /s/
-------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER ACQUISITION CORPORATION
By /s/
----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER CORPORATION
By /s/
----------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER GROUP, INC.
By /s/
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By /s/
--------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
3
THE CHASE MANHATTAN BANK, N.A.,
as Bank
By /s/
-----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
4
THIRD AMENDMENT AND WAIVER TO CREDIT AGREEMENT AND GUARANTY
THIRD AMENDMENT AND WAIVER TO CREDIT AGREEMENT AND GUARANTY
dated as of July 9, 1996 ("Third Amendment and Waiver") among SunRiver Data
Systems, Inc. ("Borrower"), SunRiver Acquisition Corporation ("SRAC"), SunRiver
Corporation (formerly known as All Quotes, Inc.; "SRC"), SunRiver Group, Inc.
("SRG"), The Chase Manhattan Bank, N.A. ("Chase"), The First National Bank of
Chicago ("FNBC"), Silicon Valley Bank ("SVB"), 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 referred to below
(each a "Bank" and collectively, the "Banks"), and The Chase Manhattan Bank,
N.A., as agent for the Banks (in such capacity, together with its successors in
such capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit
Agreement and Guaranty dated as of October 23, 1995 among the Borrower, SRAC,
SRC, SRG, Chase, FNBC, SVB and the Agent, as amended by the First Amendment to
Credit Agreement and Guaranty, Hypothecation Agreement and Loan Documents dated
as of February 2, 1996, and as further amended by the Second Amendment to Credit
Agreement and Guaranty dated as of May 22, 1996 (the "Credit Agreement"). Any
term used in this Third Amendment and Waiver and not otherwise defined in this
Third Amendment and Waiver shall have the meaning assigned to such term in the
Credit Agreement.
The parties hereto have agreed to amend and waive certain
provisions of the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3 hereof, hereby amended as
follows:
(a) The following definitions are added in their proper
alphabetical order:
"'Additional Warrant Agreement' means the Additional
Warrant Agreement dated July 9, 1996 among TradeWave, the
Banks and the Agent."
"'Operating Investment' means a debt or equity
investment made by SRC in TradeWave the proceeds of which are
used by TradeWave for any purpose other than to fulfill its
obligation to redeem shares of TradeWave's stock pursuant to
the terms and provisions of the Redemption Agreements."
"'Redemption Agreements' means each of the Redemption
Option Agreements by and among, TradeWave, SRC and each of the
Stockholders party thereto, each in substantially the form of
Exhibit A to the Third Amendment."
"'Redemption Investment' means a debt or equity
investment made by SRC in TradeWave the proceeds of which are
used by TradeWave to enable TradeWave to fulfill its
obligations to redeem shares of TradeWave's stock pursuant to
the terms and provisions of the Redemption Agreements."
"'SRC Issuance' means issuance by SRC on or after
July 9, 1996 and before December 31, 1996 of up to Eight
Hundred Thirty-Three Thousand Three Hundred Thirty-Three
(833,333) shares of its capital stock, the proceeds of which
are to be used by SRC to (1) make a Redemption Investment, (2)
purchase shares of stock of TradeWave to satisfy its
obligation to purchase such shares pursuant to the terms and
provisions of the Redemption Agreements or (3) make an
Operating Investment."
"'Third Amendment' means the Third Amendment and
Waiver to Credit Agreement and Guaranty dated as of July 9,
1996 among Borrower, the Guarantors, the Hypothecator, the
Banks, and the Agent."
"'TradeWave' means the TradeWave Corporation, a
Delaware corporation."
"'Warrants' means, collectively, each of the warrants
issued to each of the Banks by TradeWave in July 9, 1996 and
each of the warrants issued to the Banks by TradeWave pursuant
to the terms of Additional Warrant Agreement."
(b) Section 2.11, Mandatory Prepayments, is amended by
inserting at the end thereof the following:
"In addition, notwithstanding the foregoing, the
proceeds of any SRC Issuance are not required to be used to
make a Prepayment Obligation as required above. Finally, the
Borrower's obligation to make a Prepayment Obligation on or
about June 28, 1996 in the amount of Seven Hundred Thousand
Dollars ($700,000) is deferred until the earlier of (1)
December 31, 1996 or (2) the date on which either SRC or
TradeWave receives an aggregate amount for the issuance of
equity in either SRC
2
or TradeWave, as the case may be, on or after July 9, 1996 in
an amount equal to or greater than One Million Five Hundred
Thousand Dollars ($1,500,000), provided, that, the Borrower
remains obligated to make all other Prepayment Obligations in
accordance with the terms of the Agreement."
(c) The following additional affirmative covenant is added at
the end of Article IX Affirmative Covenants:
"Section 9.10. Purchase of Warrants. Upon the request
of any Bank made at any time on or after January 1, 1997, SRC
agrees to purchase for cash within five (5) days of such
request all or any portion of the Warrants for a purchase
price of Five Dollars and Seventy-One Cents ($5.71) for each
share of TradeWave to be issued to the holder of the Warrant,
provided, however, SRC will only be required to pay the Banks,
in the aggregate, Three Hundred Thousand Dollars ($300,000)
for the purchase of Warrants pursuant to this Section.
Section 9.11. Compliance with Additional Warrant
Agreement. Take any and all actions required to ensure
that TradeWave complies with all the terms and provisions
of the Additional Warrant Agreement."
(d) Section 10.02., Guaranty, is amended by (i) deleting "and"
before clause "(4)" thereof and inserting after "($250,000)" at the end thereof
the following:
"and (5) the guaranty provided by SRC pursuant to the
Redemption Agreements of TradeWave's obligation to redeem its
stock pursuant to the terms of the Redemption Agreements."
(e) Section 12.01, Events of Default, is amended by (i)
deleting the brackets in clause "(3)" thereof, (ii) deleting clause "(10)"
thereof in its entirety, and (iii) deleting "or" after clause "(15)" thereof and
inserting after "manner" at the end of clause "(16)" thereof the following:
"; or (17) If at any time SRC enters into Redemption
Agreements, the collective effect of which could require SRC
in satisfaction of all of its obligations under all such
Agreements to issue more SRC shares than the total of (a)
Eight Hundred Thirty-Three Thousand Three Hundred Thirty-Three
(833,333) SRC shares, less (b) the number of SRC shares issued
by SRC the proceeds of which were used to make an Operating
Investment; or
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(18) The Additional Warrant Agreement shall, at any time after
its execution and delivery and for any reason, cease to be in
full force and effect or shall be declared null and void, or
the validity or enforceability thereof shall be contested by
TradeWave or TradeWave shall deny it has any further
obligation under such Agreement or TradeWave shall fail to
perform any of its obligations under such Agreement."
SECTION 2. Waiver. The Borrower has advised the Banks that
because the Borrower has failed or may fail, as the case may be, to deliver at
least twelve percent (12%) of the aggregate purchase price of Material scheduled
for delivery in each of the Measurement Periods ended March 31, 1996, April 30,
1996, May 31, 1996, and June 30, 1996 there exist or may exist, as the case may
be, Events of Default due to violations of clause "(16)" of Section 12.01,
Events of Default, of the Credit Agreement.
The Borrower has requested that both Banks waive such Events
of Default. Both Banks waive the Borrower's compliance with clause "(16)" of
Section 12.01, Events of Default for each of the Measurement Periods ended March
31, 1996, April 30, 1996, May 31, 1996, and June 30, 1996. Neither Bank waives
any future noncompliance by the Borrower with such Section.
SECTION 3. Conditions of Effectiveness. This Third Amendment
and Waiver shall become effective as of the date of this Third Amendment and
Waiver when and if the Agent shall have received on or before such date each of
the following documents, in form and substance satisfactory to the Agent, each
Bank, and their respective counsel, and each of the following conditions has
been fulfilled:
(1) Third Amendment and Waiver. This Third Amendment and Waiver
duly executed by each party hereto;
(2) First Amendment to Pledge Agreement (AQI). The execution
and delivery of the First Amendment to Pledge Agreement (AQI) in substantially
the form of Exhibit A hereto together with the certificates representing the
TradeWave shares pledged pursuant to such First Amendment and undated stock
powers executed in blank for each such certificate;
(3) Warrants and Additional Warrant Agreement. The execution
and delivery of each of the Warrants of TradeWave in substantially the form of
Exhibits X-0, X-0, and B-3 hereto and the execution and delivery of the
Additional Warrant Agreement;
(4) Consent of SRG. SRG's consent to this Third Amendment and
Waiver and all of the actions contemplated by this
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Third Amendment and Waiver, including but not limited to SRC's pledge of
one-third (1/3) of its shares of TradeWave pursuant to the First Amendment to
Pledge Agreement (AQI) and such consent shall be evidenced by SRG's signature on
the appropriate space on this Third Amendment and Waiver;
(5) Evidence of All Corporate Action by Borrower and SRC. The
Agent shall have received a certificate of the Secretary or Assistant Secretary
of Borrower and SRC (dated as of the date of this Third Amendment and Waiver)
attesting to all corporate action taken by Borrower and SRC including
resolutions of its respective Board of Directors, authorizing the execution,
delivery, and performance of this Third Amendment and Waiver and each other
document to be delivered pursuant to or in connection with this Third Amendment
and Waiver;
(6) Evidence of All Corporate Action by TradeWave. The Agent
shall have received a certificate of the Secretary or Assistant Secretary of
TradeWave (dated as of the date of this Third Amendment and Waiver) attesting to
all corporate action taken by TradeWave including resolutions of its Board of
Directors, authorizing the execution, delivery, and performance of both the
Warrants and each other document to be delivered pursuant to or in connection
with the Warrant and the Additional Warrant Agreement and each other document to
be delivered pursuant to or in connection with the Additional Warrant Agreement;
(7) Opinion of Counsel for Borrower. A favorable opinion of
Fischbein, Badillo, Xxxxxx & Xxxxxxx, counsel for Borrower, dated as of the date
of this Third Amendment and Wavier [sic], in a form acceptable to the Agent and
the Banks;
(8) Legal Xxxx. Xxxxx Xxxxxxxxxx has been paid in full
for all legal fees, costs and expenses in connection with the
preparation of the Third Amendment and Waiver and all past due
legal fees, costs and expenses;
(9) Officer's Certificate. The following statements shall be
true and the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date hereof stating that, after giving effect
to this Third Amendment and Waiver and the transactions contemplated hereby:
(a) The representations and warranties contained
in the Credit Agreement and in each of the
other Loan Documents are correct on and as
of the date hereof as though made on and as
of such date; and
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(b) No Default or Event of Default has occurred
and is continuing; and
(10) Other Documents. The Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
SECTION 4. Reference to and Effect on the Loan Documents. a)Upon
the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Third
Amendment and Waiver shall not, except as specifically provided herein, operate
as a waiver of any right, power or remedy of the Banks or the Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents, and, except as specifically provided herein, the Credit Agreement and
each other Loan Document shall remain in full force and effect and are hereby
ratified and confirmed.
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent, Chase, and the Banks on demand for all out-of-pocket costs,
expenses and charges (including, without limitation, all reasonable fees and
charges of legal counsel for the Agent, Chase and each Bank) incurred by the
Agent Chase or the Banks in connection with the preparation, reproduction,
execution and delivery of this Third Amendment and Waiver and any other
instruments and documents to be delivered hereunder. In addition, the Borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery, filing or recording of
this Third Amendment and Waiver and the other instruments and documents to be
delivered hereunder, and agrees to save the Banks and the Agent harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes or fees.
SECTION 6. Governing Law. This Third Amendment and Waiver shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 7. Headings. Section headings in this Third Amendment
and Waiver are included herein for convenience of reference only and shall not
constitute a part of this Third Amendment and Waiver for any other purpose.
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SECTION 8. Counterparts. This Third 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
Third Amendment and Waiver by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused to be duly
executed as of this Third Amendment and Waiver the day and year first above
written.
SUNRIVER DATA SYSTEMS, INC.
By /s/
--------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER ACQUISITION CORPORATION
By /s/
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER CORPORATION (formerly
known as All Quotes, Inc.)
By /s/
-------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
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THE CHASE MANHATTAN BANK, N.A.,
as Bank
By /s/
--------------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Bank
By /s/
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Agent
SILICON VALLEY BANK
By /s/
-------------------------
Name: J. Xxxx Xxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By /s/
-----------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Assistant Vice President
AGREED AND CONSENTED TO:
SUNRIVER GROUP, INC.
By /s/
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
8
FOURTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY
FOURTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY dated as of
August 21, 1996 ("Fourth Amendment") among SunRiver Data Systems, Inc.
("Borrower"), SunRiver Acquisition Corporation ("SRAC"), Sunriver Corporation
(formerly known as All Quotes, Inc.; "SRC"), SunRiver Group, Inc. ("SRG"), The
Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank, N.A.;
"Chase"), The First National Bank of Chicago ("FNBC"), Silicon Valley Bank
("SVB"), 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 referred to below (each a "Bank" and collectively, the
"Banks"), and The Chase Manhattan Bank (successor by merger to The Chase
Manhattan Bank, N.A.), as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit
Agreement and Guaranty dated as of October 23, 1995 among the Borrower, SRAC,
SRC, SRG, Chase, FNBC, SVB and the Agent, as amended by the First Amendment to
Credit Agreement and Guaranty, Hypothecation Agreement and Loan Documents dated
as of February 2, 1996, as further amended by the Second Amendment to Credit
Agreement and Guaranty dated as of May 22, 1996, and as further amended by the
Third Amendment to Credit Agreement and Guaranty dated as of July 9, 1996 (the
"Credit Agreement"). Any term used in this Fourth Amendment and not otherwise
defined in this Fourth Amendment shall have the meaning assigned to such term in
the Credit Agreement.
The parties hereto have agreed to amend a certain provision of
the Credit Agreement as hereinafter set forth.
SECTION 1. Amendment to Credit Agreement. The Credit Agreement
is, effective as of the Closing Date, hereby amended by deleting "Monthly Date"
in the third line of the third paragraph of Section 2.07, Interest, and
inserting in its place the following:
"Quarterly Date".
SECTION 2. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Fourth
Amendment shall not operate as a waiver of any right, power or remedy of the
Banks or the Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents, and, except as specifically provided
herein, the Credit Agreement and each other Loan Document shall remain in full
force and effect and are hereby ratified and confirmed.
SECTION 3. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent, Chase, and the Banks on demand for all out-of-pocket costs,
expenses and charges (including, without limitation, all reasonable fees and
charges of legal counsel for the Agent, Chase and each Bank) incurred by the
Agent, Chase or the Banks in connection with the preparation, reproduction,
execution and delivery of this Fourth Amendment and any other instruments and
documents to be delivered hereunder. In addition, the Borrower shall pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution and delivery, filing or recording of this Fourth
Amendment and the other instruments and documents to be delivered hereunder, and
agrees to save the Banks and the Agent harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees.
SECTION 4. Governing Law. This Fourth Amendment shall
be governed by and construed in accordance with the laws of the
State of New York.
SECTION 5. Headings. Section headings in this Fourth Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Fourth Amendment for any other purpose.
SECTION 6. Counterparts. This Fourth 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 Fourth Amendment
by signing any such counterpart.
2
IN WITNESS WHEREOF, the parties hereto have caused his Fourth
Amendment to be duly executed as of the day and year first above written.
SUNRIVER DATA SYSTEMS, INC.
By /s/
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER ACQUISITION CORPORATION
By /s/
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER CORPORATION (formerly known
as All Quotes, Inc.)
By /s/
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
SUNRIVER GROUP, INC.
By /s/
---------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
THE CHASE MANHATTAN BANK (successor
by merger to The Chase Manhattan Bank,
N.A.), as Bank
By /s/
-------------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Assistant Vice President
3
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT AND GUARANTY
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT AND GUARANTY dated
as of March 31, 1997 ("Fifth Amendment and Waiver") among Boundless Technologies
(formerly known as SunRiver Data Systems, Inc.; "Borrower"), SunRiver
Acquisition Corporation ("SRAC") , SunRiver Corporation (formerly known as All
Quotes, Inc.; "SRC"), SunRiver Group, Inc. ("SRG"), The Chase Manhattan Bank
(successor by merger to The Chase Manhattan Bank, N.A.; "Chase"), The First
National Bank of Chicago ("FNBC"), Silicon Valley Bank ("SVB"), 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
referred to below (each a "Bank" and collectively, the "Banks"), and The Chase
Manhattan Bank (successor by merger to The Chase Manhattan Bank, N.A.), as agent
for the Banks (in such capacity, together with its successors in such capacity,
the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit Agreement
and Guaranty dated as of October 23, 1995 among the Borrower, SRAC, SRC, SRG,
Chase, FNBC, SVB and the Agent, as amended by the First Amendment to Credit
Agreement and Guaranty, Hypothecation Agreement and Loan Documents dated as of
February 2, 1996, as further amended by the Second Amendment to Credit Agreement
and Guaranty dated as of May 22, 1996, as further waived by a Waiver dated June,
1996, as further amended and waived by the Third Amendment and Waiver to Credit
Agreement and Guaranty dated as of July 9, 1996, and as further amended by a
Fourth Amendment to Credit Agreement and Guaranty dated as of August 21, 1996
(as so amended, the "Credit Agreement"). Any term used in this Fifth Amendment
and Waiver and not otherwise defined in this Fifth Amendment and Waiver shall
have the meaning assigned to such term in the Credit Agreement.
The parties hereto have agreed to amend and waive certain
provisions of the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) The following definitions are added in their proper
alphabetical order:
"Fifth Amendment" means the Fifth Amendment and
Waiver to Credit Agreement and Guaranty dated as of March 31,
1997 among Borrower, the Guarantors, the Hypothecator, the
Banks, and the Agent.
"SRC" means SunRiver Corporation (formerly known as
All Quotes, Inc.).
(b) The definition of "Applicable Margin" is amended by adding at
the end thereof the following:
"Notwithstanding the foregoing, for the period from
April 1, 1997 to and including November 30, 1997, Applicable
Margin means: (1) with respect to a Revolving Credit Loan
which is a Base Rate Loan, one and three quarters percent
(1.75%), and (2) with respect to a Term Loan which is a Base
Rate Loan, one and three quarters percent (1.75%); provided,
however, if on December 1, 1997 the aggregate principal amount
of the Revolving Credit Loans exceeds the Revolving Credit
Facility (Loans) then the Applicable Margin shall remain at
the rates set forth in this paragraph until the aggregate
principal amount of the Revolving Credit Loans is equal to or
less than the Revolving Credit Facility (Loans). Neither a
Revolving Credit Loan nor a Term Loan shall be outstanding as
a LIBOR Loan during this period."
(c) The definition of "Borrowing Base Certificate" is amended in
its entirety to read as follows:
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit A to the Fifth Amendment,
certified by the chief financial officer of the Borrower, with
respect to the Borrowing Base.
(d) The definition of "Eligible Account" is amended by adding
after "Banks" in the last line of clause "(9)" thereof the following: "or the
obligations of the Account Debtor on such Account are fully covered by credit
insurance policies issued by insurance companies acceptable to the Required
Banks and such policy is in form and substance acceptable to the Required
Banks".
(e) The definition of "Revolving Credit Facility" is amended by
deleting "Twenty Million Dollars ($20,000,000)" in the first and second lines
thereof and inserting in its place the following: "Eighteen Million Dollars
($18,000,000)".
(f) The definition of "Revolving Credit Facility (Loans)" is
amended in its entirety to read as follows:
"Revolving Credit Facility (Loans)" means (1) from
March 31, 1997 to and including August 29, 1997, the lesser of
(a) the Revolving Credit Facility less the aggregate amount of
all outstanding Letter of Credit Obligations or (b) the
Borrowing Base less the aggregate
2
amount of all outstanding Letter of Credit Obligations, (2)
from August 30, 1997 to and including November 29, 1997, the
lesser of (a) the Revolving Credit Facility less the aggregate
amount of all outstanding Letter of Credit Obligations or (b)
the Borrowing Base less the sum of (i) the aggregate amount of
all outstanding Letter of Credit Obligations plus (ii) fifty
percent (50%) of the outstanding Term Loan, and (3) from
August 30, 1997 at all times thereafter, the lesser of (a) the
Revolving Credit Facility less the aggregate amount of all
outstanding Letter of Credit Obligations or (b) the Borrowing
Base less the sum of (i) the aggregate amount of all
outstanding Letter of Credit Obligations plus (ii) one hundred
percent (100%) of the outstanding Term Loan.
(g) Section 2.11. Mandatory Prepayment is amended by deleting the
last paragraph therein and inserting in its place the following:
"To the extent that the aggregate principal amount of
the Revolving Credit Loans exceeds the Revolving Credit
Facility (Loans), Borrower shall immediately prepay the
Revolving Credit Loans over the then effective Revolving
Credit Facility (Loans)."
(h) Article IX. Affirmative Covenants is amended by adding at the
end thereof the following:
"Section 9.12. Payment of Fees. The Borrower shall
pay to the Agent amendment fees in connection with the Fifth
Amendment in the amount of (1) Two Hundred Thousand Dollars
($200,000) on September 1, 1997 and (2) Two Hundred Thousand
Dollars ($200,000) on March 6, 1998, such fees are for the
account of the Banks, and the Agent will deliver to each Bank
its Pro Rata Share of such fees."
(i) Section 10.04. Investments is amended by deleting clause
"(5)" in its entirety and inserting in its place the following:
"(5) loans or advances by the Borrower to SRC, provided that
the aggregate amount of all such loans or advances made in any
Fiscal Year will not exceed Five Hundred Thousand Dollars
($500,000) less the aggregate amount of all cash dividends
paid by the Borrower in such Fiscal Year;".
3
(j) Section 11.01. Minimum Tangible Net Worth is amended by
(i) deleting each "Period" and its corresponding "Minimum Amount" and inserting
in their place the following:
"Period Minimum Amount
From March 31, 1997 to and
including June 29, 1997 $3,000,000
From June 30, 1997 to and
including September 29, 1997 $3,400,000
From September 30, 1997 to and
including December 30, 1997 $4,100,000
From December 31, 1997 to and
including March 30, 1998 $6,900,000
From March 31, 1998 to and
including June 29, 1998 $8,000,000
From June 30, 1998 to and
including September 30, 1998 $9,500,000
and (ii) by deleting the second paragraph thereof in its entirety.
(k) Section 11.02. Fixed Charge Coverage Ratio is amended in
its entirety to read as follows:
"Section 11.02. Fixed Charge Coverage Ratio. Borrower
will have for each period specified below a ratio of (1) the
sum of (a) Earnings Before Interest, Taxes, Depreciation and
Amortization for such period minus (b) Capital Expenditures
for such period, to (2) the sum of (a) Cash Interest Expense
for such period, plus (b) the Current Portion of Long Term
Debt as of the last day of such period, plus (c) Dividends
Paid during such period, of not less than the ratio specified
below for such period:
4
"Period Ratio
For the four quarters (taken together
as a whole) ending on March 31, 1997 .50 to 1
For the four quarters (taken together
as a whole) ending on June 30, 1997 .50 to 1
For the four quarters (taken together
as a whole) ending on September 30, 1997 .75 to 1
For the four quarters (taken together
as a whole) ending on each Quarterly Date
during the period from and including
December 31, 1997 to and including
September 30, 1998 1.25 to 1"
(l) Section 11.03. Interest Coverage Ratio is amended by (i)
deleting each "Period" and its corresponding "Ratio" and inserting in their
place the following:
"Period Ratio
For the four quarters (taken together
as a whole) ending on March 31, 1997 1.50 to 1
For the four quarters (taken together
as a whole) ending on June 30, 1997 1.75 to 1
For the four quarters (taken together
as a whole) ending on September 30, 1997 2.25 to 1
For the four quarters (taken together
as a whole) ending on December 31, 1997 3.50 to 1
For the four quarters (taken together
as a whole) ending on each Quarterly Date
during the period from and including
March 30, 1998 to and including
September 30, 1998 4.00 to 1"
(m) Section 11.04. Cash Flow Coverage Ratio is amended by (i)
deleting each "Date" and its corresponding "Ratio" and inserting in their place
the following:
5
"Date Ratio
March 30, 1997 4.50 to 1
June 30, 1997 3.75 to 1
September 30, 1997 3.00 to 1
Each Quarterly Date between
and including December 31, 1997
and September 30, 1998 2.50 to 1"
(n) Section 12.01. Events of Default is amended by deleting
"or" after clause "(17)" thereof and inserting after "Agreement" at the end of
clause "(18)" thereof the following:
"; or (19) the Borrower fails to pay either of the fees set forth in Section
9.12 hereof."
SECTION 2. Waiver. The Borrower has advised each Bank and the
Agent that because (1) SRC issued $1,400,000 of notes convertible into common
stock of SRC in two separate Regulation S transactions on February 28, 1997 and
March 14, 1997 and SRC received $300,000 in February, 1997 with respect to the
sale of shares of common stock to Xxxx Capital Corp. (of which shares equal in
value to $71,657.88 will be issued in the future) and failed to make a mandatory
prepayment in an amount equal to 80% of the proceeds of such issuances in excess
of $1,500,000, (2) the Borrower made repeated advances to TradeWave on and prior
to February 27, 1997, (3) the Borrower made advances to SRC in excess of
$200,000 for the Fiscal Year ended December 31, 1996, (4) the Borrower had a
Tangible Net Worth of (a) $4,112,000 for the period from September 30, 1996 to
and including December 30, 1996 and (b) $4,227,000 for the period from December
31, 1996 to and including March 30, 1996, (5) the Borrower had for the four
quarters (taken together as a whole) ended on June 30, 1996, September 30, 1996
and on December 31, 1996 a ratio of (a) the sum of (i) Earnings Before Interest,
Taxes, Depreciation and Amortization for such period minus (ii) Capital
Expenditures for such period, to (b) the sum of (i) Cash Interest Expenses for
such period, plus (ii) the Current Portion of Long Term Debt as of September 30,
1996 and December 31, 1996, plus (iii) Dividends Paid during such period, of
3.08 to 1, 3.14 to 1 and 3.57 to 1, respectively, (6) the Borrower had for the
four quarters (taken together as a whole) ended on September 30, 1996 and on
December 31, 1996, a ratio of (a) Earnings Before Interest, Taxes, Depreciation
and Amortization for such periods to (b) the sum of (i) Cash Interest Expenses
for such periods plus (ii) Dividends Paid during such periods, of 3.17 to 1 and
2.14 to 1, respectively, (7) the Borrower had for the four quarters (taken
6
together as a whole) ended on June 30, 1996, September 30, 1996 and on December
31, 1996, a ratio of (a) Funded Debt as of such dates, to (b) Earnings Before
Interest, Taxes, Depreciation and Amortization for such periods, of 1.04 to 1,
.93 to 1 and .73 to 1, respectively, (8) several modifications were made to the
Basic Order Agreement for Text Terminal Products and Parts dated October 20,
1995, (9) an amendment was made to the Borrower's certificate of incorporation
reflecting the Borrower's name change to Boundless Technologies, and (10)
TradeWave failed to fulfill its obligations under the Additional Warrant
Agreement, there are Events of Default due to violations of Section 2.11,
Mandatory Prepayment, Section 10.04, Investments, Section 10.10, Changes,
Amendments or Modifications, Section 11.01, Minimum Tangible Net Worth, Section
11.02, Fixed Charge Coverage Ratio, Section 11.03, Interest Coverage Ratio,
Section 11.04, Cash Flow Leverage Ratio, and clause (18) of Section 12.01,
Events of Default, of the Credit Agreement.
The Borrower has requested that each Bank and the Agent waive
such Events of Default. Each Bank and the Agent waives the Borrower's compliance
with each of the aforementioned Sections of the Credit Agreement for the periods
set forth in the preceding paragraph. None of the Banks nor the Agent waive any
future noncompliance by the Borrower with such Sections or any other provision
of the Loan Documents.
SECTION 3. Conditions of Effectiveness. This Fifth Amendment and
Waiver shall become effective as of the date of this Fifth Amendment and Waiver
when and if the Agent shall have received on or before such date each of the
following documents, in form and substance satisfactory to the Agent, each Bank,
and their respective counsel, and each of the following conditions has been
fulfilled:
(1) Fifth Amendment and Waiver. This Fifth Amendment and Waiver
duly executed by each party hereto;
(2) Borrowing Base Certificate. A Borrowing Base Certificate
substantially in the form of Exhibit A hereto;
(3) Purchase of Warrants. SRC will pay to the Agent for the
benefit of the Banks a fee of Two Hundred Seventy Thousand Eight Hundred
Forty-Eight Dollars ($270,848) in connection with SRC's purchase of the
Warrants;
(4) Amendment Fee. The Borrower shall have paid to the Agent an
amendment fee in the amount of One Hundred Thousand Dollars ($100,000) for the
account of the Banks, and the Agent will deliver to each Bank its Pro Rata Share
of such fee;
7
(5) Evidence of All Corporate Action by Borrower. The Agent
shall have received a certificate of the Secretary or Assistant Secretary of
Borrower (dated as of the date of this Fifth Amendment and Waiver) attesting to
all corporate action taken by Borrower including resolutions of its Board of
Directors, authorizing the execution, delivery, and performance of this Fifth
Amendment and Waiver and each other document to be delivered pursuant to or in
connection with this Fifth Amendment and Waiver;
(6) Officer's Certificate. The following statements shall be
true and the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date hereof stating that, after giving effect
to this Fifth Amendment and Waiver and the transactions contemplated hereby:
(a) The representations and warranties contained in the
Credit Agreement and in each of the other Loan
Documents are correct on and as of the date hereof as
though made on and as of such date; and
(b) No Default or Event of Default has occurred and is
continuing; and
(7) Legal Xxxx. Xxxxx Xxxxxxxxxx has been paid in full for all
legal fees, costs and expenses in connection with the preparation of this Fifth
Amendment and Waiver and all past due legal fees, costs and expenses; and
(8) Other Documents. The Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
SECTION 4. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Fifth
Amendment and Waiver shall not, except as specifically provided herein, operate
as a waiver of any right, power or remedy of the Banks or the Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents, and, except as specifically provided herein, the Credit Agreement and
each other Loan Document shall remain in full force and effect and are hereby
ratified and confirmed.
8
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent, Chase, and the Banks on demand for all out-of-pocket costs,
expenses and charges (including, without limitation, all reasonable fees and
charges of legal counsel for the Agent, Chase and each Bank) incurred by the
Agent, Chase or the Banks in connection with the preparation, reproduction,
execution and delivery of this Fifth Amendment and Waiver and any other
instruments and documents to be delivered hereunder. In addition, the Borrower
shall pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery, filing or recording of
this Fifth Amendment and Waiver and the other instruments and documents to be
delivered hereunder, and agrees to save the Banks and the Agent harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes or fees.
SECTION 6. Governing Law. This Fifth Amendment and Waiver shall
be governed by and construed in accordance with the laws of the State of New
York.
SECTION 7. Headings. Section headings in this Fifth Amendment and
Waiver are included herein for convenience of reference only and shall not
constitute a part of this Fifth Amendment and Waiver for any other purpose.
SECTION 8. Counterparts. This Fifth 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
Fifth Amendment and Waiver by signing any such counterpart.
9
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment and Waiver to be duly executed as of the day and year first above
written.
BOUNDLESS TECHNOLOGIES, INC.
(formerly known as Sunriver Data
Systems, Inc.)
By: /s/
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: V.P. Finance
SUNRIVER ACQUISITION CORPORATION
By: /s/
---------------------------
Name: Xxxxx Xxxxxxxxx
Title: V.P. Finance
SUNRIVER CORPORATION
(formerly known as All
Quotes, Inc.)
By: /s/
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: V.P. Finance
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank, N.A.), as
Bank
By: /s/
------------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Assistant Vice President
10
THE FIRST NATIONAL BANK OF CHICAGO,
as Bank
By: /s/
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank, N.A.), as Agent
By:
-------------------------
Name:
Title:
AGREED AND CONSENTED TO:
SUNRIVER GROUP, INC.
By: -----------------------------
Name:
Title:
11
SIXTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY
AND SECOND AMENDMENT TO HYPOTHECATION AGREEMENT
SIXTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY AND SECOND
AMENDMENT TO HYPOTHECATION AGREEMENT dated as of December 22, 1997 ("Amendment
Agreement") among Boundless Technologies, Inc. (formerly known as SunRiver Data
Systems, Inc.; "Borrower"), SunRiver Acquisition Corporation ("SRAC"), Boundless
Corporation (formerly known as SunRiver Corporation; "BC"), Xxxxxx Xxxx Group,
Inc. (formerly known as SunRiver Group, Inc.; "MKG"), The Chase Manhattan Bank
(successor by merger to The Chase Manhattan Bank, N.A.; "Chase"), Silicon Valley
Bank ("SVB"), 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 referred to below (each a "Bank" and collectively,
the "Banks"), and The Chase Manhattan Bank (successor by merger to The Chase
Manhattan Bank, N.A.), as agent for the Banks (in such capacity, together with
its successors in such capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit
Agreement and Guaranty dated as of October 23, 1995 among the Borrower, SRAC,
BC, MKG, Chase, The First National Bank of Chicago, SVB and the Agent, as
amended by the First Amendment to Credit Agreement and Guaranty, Hypothecation
Agreement and Loan Documents dated as of February 2, 1996, as further amended by
the Second Amendment to Credit Agreement and Guaranty dated as of May 22, 1996,
as further waived by a Waiver dated June, 1996, as further amended and waived by
the Third Amendment and Waiver to Credit Agreement and Guaranty dated as of July
9, 1996, as further amended by a Fourth Amendment to Credit Agreement and
Guaranty dated as of August 21, 1996, and as further amended by a Fifth
Amendment and Waiver to Credit Agreement and Guaranty dated as of March 31, 1997
(as so amended, the "Credit Agreement"). Any term used in this Amendment
Agreement and not otherwise defined in this Amendment Agreement shall have the
meaning assigned to such term in the Credit Agreement.
The parties hereto have agreed to amend certain provisions of
each of the Credit Agreement and the Hypothecation Agreement as hereinafter set
forth.
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3 hereof, hereby amended as
follows:
(1) The following definitions are added in their proper
alphabetical order:
"Amendment Agreement" means the Sixth Amendment to
Credit Agreement and Guaranty and the Second Amendment to
Hypothecation Agreement dated as of December 22, 1997 among
Borrower, the Guarantors, the Hypothecator, the Banks and the
Agent."
"Amendment Agreement Date" means December 22,
1997.
(2) The definition of "Applicable Margin" is amended by adding
at the end thereof the following:
"In addition, notwithstanding the foregoing, if on
and after December 1, 1997, the aggregate amount of
Outstanding Credit Facilities is less than eighty percent
(80%) of the face amount of Eligible Accounts, then during
such period the "Applicable Margin" shall mean: (1) with
respect to a Revolving Credit Loan which is a Base Rate Loan,
three quarters of one percent (.75%), (2) with respect to a
Revolving Credit Loan which is a LIBOR Rate Loan, two percent
(2.00%), (3) with respect to a Term Loan which is a Base Rate
Loan, three quarters of one percent (.75%), and (4) with
respect to a Term Loan which is a LIBOR Rate Loan, two percent
(2.00%).
(3) The definition of "Revolving Credit Facility" is amended
in its entirety to read as follows:
"Revolving Credit Facility" means Fifteen Million
Dollars ($15,000,000), less the total of (1) an amount equal
to the aggregate of any and all mandatory prepayments of the
Revolving Credit Loans made pursuant to any and all of the
first four (4) paragraphs of Section 2.11, plus (2) the amount
of the Letter of Indemnity Obligations.
(4) The definition of "Revolving Credit Facility (Loans)" is
amended in its entirety to read as follows:
"Revolving Credit Facility (Loans)" means (1) from
the Amendment Agreement Date to and including November 29,
1997, the lesser of (a) the Revolving Credit Facility less the
aggregate amount of all outstanding Letter of Credit
Obligations or (b) the Borrowing Base less the sum of (i) the
aggregate amount of all outstanding Letter of Credit
Obligations plus
2
(ii) fifty percent (50%) of the outstanding Term Loan, and (2)
from November 30, 1997 and at all times thereafter, the lesser
of (a) the Revolving Credit Facility less the aggregate amount
of all outstanding Letter of Credit Obligations or (b) the
Borrowing Base less the sum of (i) the aggregate amount of all
outstanding Letter of Credit Obligations plus (ii) one hundred
percent (100%) of the outstanding Term Loan.
(5) The definition of "Termination Date" is amended by
deleting "September 30, 1998" and inserting in its place the following:
"December 31, 1998".
(6) Section 2.02, Term Loan, is amended in its entirety to
read as follows:
"Borrower and each Bank acknowledge that Three
Million Two Hundred Fifty Thousand Dollars ($3,250,000)
of the Term Loan remains outstanding as of the
Amendment Agreement Date. Amounts prepaid on the Term
Loan cannot be reborrowed."
(7) Section 2.09, Notes, is amended by deleting the second
paragraph therein in its entirety and inserting in its place the following:
"The Term Loan made by each Bank under this Agreement
shall be evidenced by, and repaid with interest in accordance
with a single form of promissory note of Borrower in
substantially the form of Exhibit B to the Amendment Agreement
duly completed and payable to the order of such Bank for the
account of its Applicable Lending Office (each a "Term Loan
Note"). Each of the Term Loan Notes evidencing the Term Loan
shall be dated the Amendment Agreement Date. The Term Loan
will be repaid in four (4) consecutive quarterly installments,
where the first installment is in an amount equal to Two
Hundred Fifty Thousand Dollars ($250,000) and the remaining
three (3) installments are each in an amount equal to One
Million Dollars ($1,000,000). The first installment is due on
March 31, 1998, with subsequent installments on each Quarterly
Date thereafter, to and including December 31, 1998; provided,
however, that the last such installment shall be in the amount
necessary to repay in full the unpaid principal amount of the
Term Loan and any accrued interest and fees."
(8) Section 2.11, Mandatory Prepayment, is amended by deleting
"One Million Five Hundred Thousand Dollars ($1,500,000)" in the twelfth line of
3
the fourth paragraph thereof and inserting in its place the following: "Five
Million Dollars ($5,000,000) on and after the Amendment Agreement Date".
SECTION 2. Amendment to Hypothecation Agreement. The
Hypothecation Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby
amended by deleting Xxxxxxx 00, Xxxxxxxxxxx and Release of Hypothecation
Agreement, in its entirety and inserting in its place the following:
"Section 15. Termination and Release of Hypothecation
Agreement. On the Amendment Agreement Date, the Agent on
behalf of the Banks shall release Eight Million (8,000,000) of
the Pledged Shares to the Hypothecator. If at any time after
December 1, 1997 there are no outstanding Defaults or Events
of Default, then the Hypothecator is released from its pledge
and hypothecation under this Hypothecation Agreement and this
Hypothecation Agreement is terminated."
SECTION 3. Conditions of Effectiveness. This Amendment Agreement
shall become effective as of the date of this Amendment Agreement when and if
the Agent shall have received on or before such date each of the following
documents, in form and substance satisfactory to the Agent, each Bank, and their
respective counsel, and each of the following conditions has been fulfilled:
(1) Amendment Agreement. This Amendment Agreement duly executed
by each party hereto and consented to by MKG;
(2) Prepayment of Loans. Borrower shall prepay the Loans so that
the outstanding principal amount of the Term Loan is equal to Three Million Two
Hundred Fifty Thousand Dollars ($3,250,000) and the outstanding principal amount
of the Revolving Credit Facility (Loans) is less than or equal to Fifteen
Million Dollars ($15,000,000);
(3) Notes. Borrower shall have duly executed and delivered to
each Bank a Revolving Credit Note in the form of Exhibit A hereto and a Term
Loan Note in the form of Exhibit B hereto;
(4) Assignment and Assumption Agreement. An Assignment and
Assumption Agreement duly executed by SVB and The First National Bank of
Chicago;
(5) Evidence of All Corporate Action by Borrower. The Agent shall
have received a certificate of the Secretary or Assistant Secretary of Borrower
4
(dated as of the date of this Amendment Agreement) attesting to all corporate
action taken by Borrower including resolutions of its Board of Directors,
authorizing the execution, delivery, and performance of this Amendment Agreement
and each other document to be delivered pursuant to or in connection with this
Amendment Agreement;
(6) Amendment Fee. The Borrower shall have paid to the Agent an
amendment fee in an amount equal to Fifty Thousand Dollars ($50,000) for the
account of the Banks, and the Agent will deliver to each Bank its Pro Rata Share
of such fee;
(7) Officer's Certificate. The following statements shall be true
and the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date hereof stating that, after giving effect
to this Amendment Agreement and the transactions contemplated hereby:
(a) The representations and warranties contained
in the Credit Agreement and in each of the
other Loan Documents are correct on and as
of the date hereof as though made on and as
of such date; and
(b) No Default or Event of Default has occurred
and is continuing; and
(8) Legal Xxxx. Xxxxx Xxxxxxxxxx has been paid in full for all
legal fees, costs and expenses in connection with the preparation of this
Amendment Agreement and all past due legal fees, costs and expenses; and
(9) Other Documents. The Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
SECTION 4. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Amendment
Agreement shall not operate as a waiver of any right, power or remedy of the
Banks or the Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents, and, except as specifically provided
herein, the Credit Agreement and each other Loan Document shall remain in full
force and effect and are hereby ratified and confirmed.
5
SECTION 5. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent, Chase, and the Banks on demand for all out-of-pocket costs,
expenses and charges (including, without limitation, all reasonable fees and
charges of legal counsel for the Agent, Chase and each Bank) incurred by the
Agent, Chase or the Banks in connection with the preparation, reproduction,
execution and delivery of this Amendment Agreement and any other instruments and
documents to be delivered hereunder. In addition, the Borrower shall pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution and delivery, filing or recording of this
Amendment Agreement and the other instruments and documents to be delivered
hereunder, and agrees to save the Banks and the Agent harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes or fees.
SECTION 6. Governing Law. This Amendment Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 7. Headings. Section headings in this Amendment Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Amendment Agreement for any other purpose.
SECTION 8. Counterparts. This Amendment Agreement 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
Agreement by signing any such counterpart.
[INTENTIONALLY LEFT BLANK.]
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed as of the day and year first above written.
BOUNDLESS TECHNOLOGIES, INC.
(formerly known as SunRiver
Data Systems, Inc.)
By /s/
--------------------------
Name: Xxxxxx Xxxxxxx
Title: VP Finance and
Administration
SUNRIVER ACQUISITION CORPORATION
By /s/
--------------------------
Name: Xxxxxx Xxxxxxx
Title: VP Finance
BOUNDLESS CORPORATION (formerly
known as SunRiver Corporation)
By /s/
------------------------
Name: Xxxxxx Xxxxxxx
Title: VP Finance and CFO
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank,
N.A.), as Bank
By /s/
----------------------
Name: Xxxxxxx X. XxXxxx, Xx.
Title: Assistant VP
7
SILICON VALLEY BANK,
as Bank
By /s/
--------------------------
Name: J. Xxxx Xxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank,
N.A.), as Agent
By
---------------------------
Name:
Title:
AGREED AND CONSENTED TO:
XXXXXX XXXX GROUP, INC.
(formerly known as
Sunriver Group, Inc.)
By____________________________
Name:
Title:
8
SEVENTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY
SEVENTH AMENDMENT TO CREDIT AGREEMENT AND GUARANTY dated as of
February 24, 1998 ("Seventh Amendment") among Boundless Technologies, Inc.
(formerly known as SunRiver Data Systems, Inc.; "Borrower"), SunRiver
Acquisition Corporation ("SRAC"), Boundless Corporation (formerly known as
SunRiver Corporation; "BC"), The Chase Manhattan Bank (successor by merger to
The Chase Manhattan Bank, N.A.; "Chase"), Silicon Valley Bank ("SVB"), National
Bank of Canada ("NBC") 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 referred to below (each a "Bank" and
collectively, the "Banks"), and The Chase Manhattan Bank (successor by merger to
The Chase Manhattan Bank, N.A.), as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent").
PRELIMINARY STATEMENT. Reference is made to the Credit Agreement
and Guaranty dated as of October 23, 1995 among the Borrower, SRAC, BC, Xxxxxx
Xxxx Group, Inc. (formerly known as SunRiver Group, Inc.; "MKG"), Chase, The
First National Bank of Chicago, SVB and the Agent, as amended by the First
Amendment to Credit Agreement and Guaranty, Hypothecation Agreement and Loan
Documents dated as of February 2, 1996, as further amended by the Second
Amendment to Credit Agreement and Guaranty dated as of May 22, 1996, as further
waived by a Waiver dated June, 1996, as further amended and waived by the Third
Amendment and Waiver to Credit Agreement and Guaranty dated as of July 9, 1996,
as further amended by a Fourth Amendment to Credit Agreement and Guaranty dated
as of August 21, 1996, as further amended by a Fifth Amendment and Waiver to
Credit Agreement and Guaranty dated as of March 31, 1997, and as further amended
by a Sixth Amendment and Waiver to Credit Agreement and Guaranty and Second
Amendment to Hypothecation Agreement dated as of December 22, 1997 (as so
amended, the "Credit Agreement"). Any term used in this Seventh Amendment and
not otherwise defined in this Seventh Amendment shall have the meaning assigned
to such term in the Credit Agreement.
The parties hereto have agreed to amend certain provisions of
each of the Credit Agreement and the Hypothecation Agreement as hereinafter set
forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(1) Section 10.09, Dividends, is amended by adding after
"Year" in the last line thereof the following:
"and (2) the Borrower can declare and pay cash dividends in
connection with the repurchase of fractional shares with
respect to the Borrower's March 1998 one-for-ten reverse stock
split of its common shares, provided that the aggregate amount
of all such dividends declared and paid in connection with
such stock split shall not exceed Two Hundred Fifty Thousand
Dollars ($250,000).
(2) Section 10.10, Changes, Amendments or Modifications, is
amended by inserting after "Agreements" in the last line thereof the following:
"; provided that the Borrower can amend its certificate of
incorporation to permit the Borrower's March 1998 one-for-ten
reverse stock split of its common shares."
SECTION 2. Conditions of Effectiveness. This Seventh Amendment
shall become effective as of the date of this Seventh Amendment when and if the
Agent shall have received on or before such date each of the following
documents, in form and substance satisfactory to the Agent, each Bank, and their
respective counsel, and each of the following conditions has been fulfilled:
(1) Seventh Amendment. This Seventh Amendment duly executed by
each party hereto;
(2) Officer's Certificate. The following statements shall be
true and the Agent shall have received a certificate signed by a duly authorized
officer of the Borrower dated the date hereof stating that, after giving effect
to this Seventh Amendment and the transactions contemplated hereby:
(a) The representations and warranties contained in the
Credit Agreement and in each of the other Loan
Documents are correct on and as of the date hereof as
though made on and as of such date; and
(b) No Default or Event of Default has occurred and is
continuing; and
(3) Other Documents. The Agent shall have received such other
approvals, opinions or documents as the Agent may reasonably request.
2
SECTION 3. Reference to and Effect on the Loan Documents. (a)
Upon the effectiveness of Section 1 hereof, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import, and each reference in the other Loan Documents
to the Credit Agreement, shall mean and be a reference to the Credit Agreement
as amended hereby.
(b) The execution, delivery and effectiveness of this Seventh
Amendment shall not operate as a waiver of any right, power or remedy of the
Banks or the Agent under any of the Loan Documents, nor constitute a waiver of
any provision of any of the Loan Documents, and, except as specifically provided
herein, the Credit Agreement and each other Loan Document shall remain in full
force and effect and are hereby ratified and confirmed.
SECTION 4. Costs, Expenses and Taxes. The Borrower agrees to
reimburse the Agent, Chase, and the Banks on demand for all out-of-pocket costs,
expenses and charges (including, without limitation, all reasonable fees and
charges of legal counsel for the Agent, Chase and each Bank) incurred by the
Agent, Chase or the Banks in connection with the preparation, reproduction,
execLution and delivery of this Seventh Amendment and any other instruments and
documents to be delivered hereunder. In addition, the Borrower shall pay any and
all stamp and other taxes and fees payable or determined to be payable in
connection with the execution and delivery, filing or recording of this Seventh
Amendment and the other instruments and documents to be delivered hereunder, and
agrees to save the Banks and the Agent harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees.
SECTION 5. Governing Law. This Seventh Amendment shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6. Headings. Section headings in this Seventh Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Seventh Amendment for any other purpose.
SECTION 7. Counterparts. This Seventh 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 Seventh Amendment
by signing any such counterpart.
[INTENTIONALLY LEFT BLANK.]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Seventh Amendment to be duly executed as of the day and year first above
written.
BOUNDLESS TECHNOLOGIES, INC.
(formerly known as SunRiver
Data Systems, Inc.)
By /s/
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: VP Finance and
Administration
SUNRIVER ACQUISITION CORPORATION
By
------------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
BOUNDLESS CORPORATION (formerly
known as SunRiver Corporation)
By /s/
----------------------------
Name: Xxxxxx Xxxxxxx
Title: CFO
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank,
N.A.), as Bank
By
-------------------------
Name:
Title:
4
SILICON VALLEY BANK, as Bank
By
--------------------------
Name:
Title:
NATIONAL BANK OF CANADA, as Bank
By
-------------------------
Name:
Title:
By
--------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
(successor by merger to The
Chase Manhattan Bank,
N.A.), as Agent
By
--------------------------
Name:
Title:
5
