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EXHIBIT 10.4.9
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (this
"Agreement") is made as of July 15, 1998 by and between BITSTREAM INC., a
Delaware corporation with a place of business at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Borrower") and BANKBOSTON, N.A., successor by merger
with BayBank, N.A., formerly known as BayBank, with an address at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Bank and the Borrower have entered into a loan arrangement
as of July 14, 1995, evidenced by, among other documents (the "Loan Documents"),
a certain Credit Agreement dated as of July 14, 1995 by and between Borrower and
Bank, as amended and restated by a certain Amended and Restated Credit Agreement
dated March 18, 1996, as amended by a certain First Amendment to Amended and
Restated Credit Agreement dated June 28, 1996, as amended by a certain Second
Amendment to Amended and Restated Credit Agreement dated August 29, 1997, as
amended by a certain Third Amendment to Amended and Restated Credit Agreement
dated March 20, 1998 (as amended, the "Credit Agreement"). Terms used but not
defined herein are used with the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Borrower has requested, and the Bank has agreed, to amend
certain terms of the Loan Documents, as more particularly set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency of which is hereby acknowledged, the parties hereto agree,
effective as of the date hereof, as follows:
The Credit Agreement shall be amended by deleting the following text
appearing as Section 9.1 on Page 30 thereof:
"9.1 PROFITABILITY. The Borrower shall not incur an operating
loss of greater than: (i) $1,000,000.00 for fiscal year 1997,
exclusive of acquisition and non-recurring charges incurred during
the second quarter of 1997, and (ii) $500,000.00 for the first two
quarters of fiscal 1998."
and substituting in lieu thereof the following text:
"9.1 PROFITABILITY. The Borrower shall not incur an operating
loss of greater than: (i) $1,000,000.00 for fiscal year 1997,
exclusive of acquisition and non-recurring charges incurred during
the second quarter of 1997, and (ii) $2,800,000.00 for the first two
quarters of fiscal 1998."
CONDITIONS. The effectiveness of this Agreement shall be subject to
the compliance by the Borrower with its representations, warranties,
covenants and agreements contained herein and in the Loan Documents after
giving effect to the amendments thereto contemplated hereby, and to the
prior satisfaction of the following further conditions:
CORPORATE DUE DILIGENCE. The Borrower shall deliver to the
Bank evidence that all necessary corporate actions in connection
with the making of this Agreement and the transactions contemplated
hereby and thereby have been taken by the Borrower.
BANK'S EXPENSES. The Borrower shall pay all of the Bank's
reasonable out-of-pocket expenses, including the attorneys' fees
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and disbursements of the Bank's counsel, Xxxxxx & Xxxxxxxxxx, in
connection with this Agreement, the transactions contemplated hereby
and the matters referred to herein and the Loan Documents.
GENERAL. All instruments and legal and corporate proceedings
in connection with this Agreement and the transactions contemplated
hereby shall be satisfactory in form and substance to the Bank and
its counsel, and the Bank and its counsel shall have received copies
of all documents, including records of corporate authority, which
the Bank and its counsel may have requested in connection therewith.
REPRESENTATIONS AND WARRANTIES. The Borrower hereby represent
and warrants that:
AUTHORITY. The Borrower has taken all action necessary to
enter into this Agreement and all agreements and instruments
executed by the Borrower in connection herewith.
INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in each of the Loan
Documents, after giving effect to the within amendments, are true
and correct on and as of the date hereof.
NO DEFAULT, ETC. No breach of any of the Loan Documents,
as amended by this Amendment, exists on the date hereof.
COVENANTS AND AGREEMENTS. The Borrower hereby reaffirms each of the
covenants and agreements of the Borrower set forth in each of the Loan
Documents. As hereby amended, the Loan Documents are hereby ratified and
confirmed in all respects.
MISCELLANEOUS. The invalidity or uneforceability of any term or
provision hereof shall not affect the validity or enforceability of any
other term or provision hereof. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof.
This Agreement may be executed in any number of counterparts which
together shall constitute one instrument and shall be governed by and construed
in accordance with the laws (other than the conflict of law rules) of The
Commonwealth of Massachusetts and shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
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Executed as a sealed instrument as of the day and year first written
above.
WITNESS: BITSTREAM INC.
/s/ Xxxx Xxxxxxxxxx By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President, Finance And
Administration
WITNESS: BANKBOSTON, N.A.
By:
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Name:
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Title:
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