AMENDMENT NUMBER TEN TO CREDIT AGREEMENT dated as of April 23, 2008 between ULTRALIFE BATTERIES, INC. and THE LENDERS PARTY THERETO and JPMORGAN CHASE BANK, N.A., as Administrative Agent
Exhibit 10.1
AMENDMENT NUMBER TEN TO CREDIT AGREEMENT
dated as of April 23, 2008
between
ULTRALIFE BATTERIES, INC.
and
THE LENDERS PARTY THERETO
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
as Administrative Agent
AMENDMENT NUMBER TEN TO CREDIT AGREEMENT
This Amendment, dated as of April 23, 2008 (“Amendment”), is made by and between ULTRALIFE
BATTERIES, INC. (the “Borrower”) and the Lenders party to the Credit Agreement and JPMORGAN
CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank) as Administrative Agent for the Lenders
(in such capacity, the “Agent”).
Statement of the Premises
The Borrower, the Lenders and the Agent have previously entered into, among other agreements,
a Credit Agreement, dated as of June 30, 2004, which was amended by Amendment Number One dated as
of September 24, 2004, Amendment Number Two dated as of May 4, 2005, Amendment Number Three dated
as of August 5, 2005 and Amendment Number Four dated as of November 1, 2005 and that certain waiver
letter dated May 3, 2006, Amendment Number Five dated June 29, 2006, that certain waiver letter
dated October 20, 2006, that certain waiver letter dated November 30, 2006 as extended, that
certain Forbearance and Amendment Number Six to Credit Agreement dated February 14, 2007 and that
certain Extension of Forbearance and Amendment Number Seven to Credit Agreement dated as of March
23, 2007 and that certain Extension of Forbearance and Amendment Number Eight to Credit Agreement
dated as of May 18, 2007 and that certain Amendment Number Nine to Credit Agreement dated as of
August 15, 2007 (collectively, the “Credit Agreement’). The Borrower has advised the Agent
and the Lenders that the Borrower wishes to amend certain terms of the Credit Agreement as
contained therein. The Borrower, the Lenders and the Agent desire to amend the Credit Agreement to
increase the commitment amount with respect to the Revolving Loans and to amend the pricing under
the Credit Agreement.
Statement of Consideration
Accordingly, in consideration of the premises and under the authority of Section 5-1103 of the
New York General Obligations Law, the parties agree as follows:
AGREEMENT
1. Defined Terms. The terms “this Agreement”, “hereunder” and similar
references in the Credit Agreement shall be deemed to refer to the Credit Agreement as amended by
this Amendment. Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to such terms in the Credit Agreement.
2. Amendment. Effective upon the satisfaction of all conditions specified in Section 4
hereof, the Credit Agreement is hereby amended as follows:
A. The Definition “Applicable Revolving Rate” as set forth in Section 1.01 of the
Credit Agreement is hereby superseded and replaced in its entirety and amended to read:
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“Applicable Revolving Rate” means, for any day, with respect to any ABR
Revolving Loan or Eurodollar Revolving Loan, or with respect to the facility fees
payable hereunder, as the case may be, the applicable rate per annum set forth below
under the caption “ABR Spread”, “Eurodollar Spread” or “Facility Fee Rate”, as the
case may be:
| Facility Fee Rate | Eurodollar Spread | ABR Spread | ||||||||||
Applicable
Revolving Rate |
60 bps | 250 bps | 0 bps | |||||||||
B. The Definition “Applicable Term Rate” as set forth in Section 1.01 of the Credit
Agreement is hereby superseded and replaced in its entirety and amended to read:
“Applicable Term Rate” means, for any day, with respect to any ABR Term Loan
or Eurodollar Term Loan, as the case may be, the applicable rate per annum set forth
below under the caption “ABR Spread” or “Eurodollar Spread”, as the case may be.
| Eurodollar Spread | ABR Spread | |||||||
Applicable Term Rate |
250 bps | 0 bps | ||||||
C. The Definition “Commitment” as set forth in Section 1.01 of the Credit Agreement is
hereby amended so that the last sentence thereof is superseded and replaced in its entirety with
the following: “As of the effective date of the Amendment No. 10 to this Agreement, the aggregate
amounts of the Lenders’ Commitments is 22,500,000”.
D. Schedule 2.01 of the Credit Agreement is hereby superseded and replaced in its
entirety with the Schedule 2.01 attached to this Amendment.
3. Representations. The Borrower hereby represents and warrants to the Lenders and the
Agent that: (i) the covenants, representations and warranties set forth in the Credit Agreement are
true and correct on and as of the date of execution hereof as if made on and as of said date and as
if each reference therein to the Credit Agreement were a reference to the Credit Agreement as
amended by this Amendment; (ii) no Default or Event of Default specified in the Credit Agreement
has occurred and is continuing, (iii) since the date of the Credit Agreement, there has been no
material adverse change in the financial condition or business operations of the Borrower which has
not been disclosed to Lenders; (iv) the making and performance by the Borrower of this Amendment
have been duly authorized by all necessary corporate action, and do not, and will not, (a)
contravene the Borrower’s certificate of incorporation or by-laws, (b) violate any law, including
without limitation the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934,
as amended, or any rule, regulation (including Regulations T, U or X of the Board of Governors of
the Federal Reserve System) order, writ, judgment, injunction, decree, determination or award, and
(c) conflict with or result in the breach of, or constitute a default under, any material contract,
loan agreement, indenture, note, mortgage, deed of trust or any other material instrument or
agreement binding on the Borrower or any Subsidiary or any of their properties or result in or
require the creation or imposition of any lien upon or with respect to any of their properties; (v)
this Amendment has been duly executed and delivered by the Borrower and is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in accordance with its terms;
(vi) no authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is required for (a) the due
execution, delivery or performance by the Borrower of this Amendment or
any other agreement or document related
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hereto or contemplated hereby to which the Borrower is or
is to be a party or otherwise bound except for required filings and approvals under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 and the rules and regulations thereunder, or
(b) the exercise by the Agent or any Lender of its rights under the Credit Agreement as modified by
this Amendment; and (vii) the security interests and charges granted by the Borrower and its
Subsidiaries pursuant to the Security Agreements continue to constitute valid, binding and
enforceable, first in priority Liens on the Collateral, subject only to Liens permitted under the
terms of the Security Agreements and Credit Agreement.
4. Conditions of Effectiveness of Amendments. The effectiveness of each and all of the
modifications contained in the Amendment is subject to the satisfaction, in form and substance
satisfactory to the Agent, of each of the following conditions precedent:
A. Agent shall have received four (4) duplicate original counterparts of this Amendment
executed by Borrower, Lenders and Agent.
B. Agent shall have received a secretarial certificate of the Borrower in a form reasonably
acceptable to Agent, certifying that the organizational documents and the incumbency of officers of
the Borrower previously delivered to Agent are true and correct as of the date of execution hereof.
C. As of the effective date of this Amendment, no Default or Event of Default shall have
occurred and be continuing.
D. The representations and warranties contained in Section 3 hereof and in the Credit
Agreement shall be true, correct and complete as of the effective date of this Amendment as though
made on such date.
E. The Agent shall have received all fees for the benefit of the Lenders and itself as agent
as set forth in that certain fee letter dated April 23, 2008 by the Agent.
5. Covenants.
A. Borrower hereby covenants and agrees to cooperate with the Agent in any manner reasonably
necessary in order to promptly continue, or in the case of after-acquired property, create a first
lien in favor of the Agent, on behalf of the Lenders, in all personal property assets acquired by
Borrower or its subsidiaries.
B. With respect to Innovative Solutions Consulting, Inc.’s name change to RedBlack
Communications, Inc. (the “Company”), Borrower hereby covenants and agrees to deliver to
the Agent the following on or before May 1, 2008: (i) UCC-3 name change amendment for the
Company’s existing filing filed with the Maryland Secretary of State’s Office, (ii) the filed
amendment to the Company’s Charter reflecting the name change, (iii) a current good standing
certificate for the Company, and (iv) UCC search results acceptable to the Agent.
C. Borrower agrees to pay all out-of-pocket expenses and fees of the Agent and Lenders in
connection with the negotiation, preparation and execution of this Amendment and any related
document, including the reasonable fees and disbursements of counsel to the Agent.
6. Reaffirmation. The Borrower acknowledges, reaffirms and agrees that the Security Agreements secure repayment of
all existing and future indebtedness, liabilities and obligations of the Borrower to the Lenders
and Agent, including without limitation, all indebtedness of the Borrower under the Credit
Agreement, as modified by this Amendment. By signing below, each of XxXxxxxx Research Co., Inc.
(formerly known as MR Acquisition Corporation), RedBlack Communications, Inc. (formerly known as
Innovative Solutions Consulting, Inc.), Reserve Power Systems, Inc. and Stationary Power Services,
Inc. hereby acknowledges and reaffirms the execution and delivery of certain guaranty and
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security
documents in connection with the Credit Agreement (the “Guarantor Documents”) and the guaranty of
indebtedness and the grant of the security thereunder and acknowledges, reaffirms and agrees that
the Guarantor Documents guarantee and secure repayment of all existing and future indebtedness,
liabilities and obligations of the Borrower to the Lenders and Agent, including without limitation,
all indebtedness of the Borrower under the Credit Agreement as modified by this Amendment.
7. Reference to and Effect on Loan Documents.
A. Upon the effectiveness 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 amendments set forth in Section 2 hereof are only applicable and shall only be
effective in the specific instance and for the specific purpose for which made, are expressly
limited to the facts and circumstances referred to herein, and shall not operate as (i) a waiver
of, or consent to non-compliance with any other provision of the Credit Agreement or any other Loan
Document, (ii) a waiver or modification of any right, power or remedy of either the Agent or any
Lender under the Credit Agreement or any Loan Document, or (iii) a waiver or modification of, or
consent to, any Event of Default or Default under the Credit Agreement or any Loan Document.
8. Governing Law. This Amendment shall be governed and construed in accordance with the
laws of the State of New York without regard to any conflicts-of-laws rules which would require the
application of the laws of any other jurisdiction.
9. Headings. Section headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any other purpose.
10. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all or which taken together shall
constitute but one and the same instrument.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective representatives thereunto duly authorized as of the date first above written.
| ULTRALIFE BATTERIES, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Vice President Finance and Chief Financial Officer | ||||
| ADMINISTRATIVE AGENT: | JPMORGAN CHASE BANK, N.A., as Agent |
|||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxxxx, Vice President | ||||
| LENDERS: | JPMORGAN CHASE BANK, N.A. |
|||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxxxx, Vice President | ||||
| MANUFACTURERS AND TRADERS TRUST COMPANY |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Xxx Xxxxx, Vice President | ||||
Acknowledged and Agreed to as of this 23rd day of April, 2008
XxXxxxxx Research Co., Inc.
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Title: Treasurer | ||||
| RedBlack Communications, Inc. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Title: Treasurer | ||||
| Reserve Power Systems, Inc. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Title: Treasurer | ||||
| Stationary Power Services, Inc. | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Title: Treasurer | ||||
Schedule 2.01
Commitments pursuant to Amendment No. 10 to Credit Agreement
dated as of April 23, 2008
dated as of April 23, 2008
| Amount | Percentage | |||||||
Commitments to Make Revolving Loans — $22,500,000 |
||||||||
JPMorgan Chase Bank, N.A. |
$ | 13,500,000.00 | 60 | % | ||||
Manufacturers and Traders Trust Company |
$ | 9,000,000.00 | 40 | % | ||||
Term Loan Commitments — $2,500,000 |
||||||||
JPMorgan Chase Bank, N.A. |
$ | 1,500,000 | 60 | % | ||||
Manufacturers and Traders Trust Company |
$ | 1,000,000 | 40 | % | ||||
