Exhibit 10.38.10
THIRD AMENDMENT
TO
CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
July _______, 1998 is by among UFP TECHNOLOGIES, INC. ("UFP"), a Delaware
corporation having its principal place of business at 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, MOULDED FIBRE TECHNOLOGY, INC. ("MFT"), A Maine
corporation having its principal place of business at 000 X.X. Xxxxx Xxx,
Xxxxxxxxxxx, Xxxxx 00000 (UFP and MFT are collectively referred to herein as the
"Borrowers" and individually as a "Borrower") and BANKBOSTON, N.A., a national
bank with its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Bank").
WHEREAS, the Borrowers and the bank are parties to that certain Credit
Agreement dated as of June 30, 1995, as amended pursuant to a First Amendment
dated May 31, 1996, and a Second Amendment dated September 30, 1997 (as herein
amended, the "Credit Agreement"); and
WHEREAS, the Borrowers and the Bank have agreed, subject to the terms and
conditions set forth herein, to amend certain provisions of the Credit Agreement
as set forth herein;
NOW THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrowers and the Bank hereby agree to amend the
Credit Agreement as follows;
1. Amendment to 2.1 of the Credit Agreement. Section 2.1 is hereby amended
to exclude the reference to the Borrowing Base.
2. Amendment to 2.2(b) of the Credit Agreement. Section 2.2(b) is hereby
amended by replacing the principal amount of $5,000,000.00 with the principal
amount of $7,500,000.00.
3. Amendment to 9.1(a)(v) of the Credit Agreement. Section 9.1(a)(v) is
hereby amended by replacing "month" with "fiscal quarter".
4. Amendment to 9.3 (a) and (b) of the Credit Agreement. Sections 9.3 (a)
and (b) are hereby deleted in their entirety and the following substituted in
place thereof:
"(a) permit the ratio of Total Liabilities to Tangible Net Worth to
exceed 1.50 to 1.0 at the end of any fiscal quarter;
"(b) permit Tangible Net Worth to be less than $11,000,000.00 at any
time;
5. This Amendment shall become effective upon the satisfaction of each of
the following conditions:
(a) This amendment shall have been executed and delivered by the
respective parties hereto;
(b) The Borrowers shall have executed and delivered to the Bank a Third
Amended and Restated Note in the Form of Exhibit A hereto;
(c) Each of the Borrowers shall have delivered to the Bank certified
copies of corporate resolutions satisfactory to the Bank authorizing
this Amendment and the Third Amended and Restated Note.
(d) Each of the Borrowers shall have delivered to the Bank copies,
certified by a duly authorized officer of each Borrower to be true
and complete on the date hereof, of each
of (i) its charter or other incorporation documents as in
effect on such date of certification, and (ii) its by-laws as
in effect on such date; and
(e) Each of the Borrowers shall have delivered to the Bank an
incumbency certificate, dated as of the date hereof, signed by
a duly authorized officer of the borrower, and giving the name
and bearing a specimen signature of each individual who shall
be authorized: (i) to sign, in the name and on behalf of such
Borrower each of the deocuments to which such Borrower is or is
to become a party; and (ii) to give notices and to take other
action on its behalf under the documents to which it is a party.
6. Except as expressly amended hereby, the Credit Agreement, the other
loan documents and all documents, instuments in all respects and shall continue
in full force and effect. This construed together as a single document, and all
references in the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by the Amendment.
7. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL TAKE EFFECT AS A SEALED
INSTRUMENT IN ACCORDANCE WITH SUCH LAWS.
8. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which counterparts taken
together shall be deemed to constituted one and the same instrument complete
sets of counterparts shall be held by the Bank.
IN WITNESS WHEREOF, the parties have executed this Amendment under seal
this day of July, l998.
UFP TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: V.P. and Chief Financial Officer
MOULDED FIBRE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: V.P. and Chief Financial Officer
BANKBOSTON, N.A.
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: XXXXXXX XXXXX
Title: DIRECTOR
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THIRD AMENDED AND RESTATED NOTE
$7,500,000 July , 1998
FOR VALUE RECEIVED, each of the undersigned UFP TECHNOLOGIES, INC.
("UFP"), a Delaware corporation, and MOULDED FIBRE TECHNOLOGY, INC. ("MFT"), a
Maine corporation (UFP and MFT are collectively referred to herein as the
"Borrowers"), hereby promises to pay to the order of BANKBOSTON, N.A., a
national bank (the "Bank") at the Bank's head office at 000 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000:
(a) prior to or on June 30, 1999 the principal amount of Seven
Million Five Hundred Thousand Dollars ($7,500,000) or, if less, the
aggregate unpaid principal amount of Loans advanced by the Bank to the
Borrowers pursuant to 2.1 of the Credit Agreement dated June 30, 1995, as
amended as of May 31, 1996, as amended as of September 30, 1997 and as
amended as of June , 1998 (as amended and in effect from time to time,
the "Credit Agreement"), among the Borrowers and the Bank;
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through and
including the maturity date hereof at the times and at the rate provided
in the Credit Agreement.
This Note constitutes the third amendment and restatement in its entirety
of the note dated June 30, 1995 of the Borrowers to the bank.
This Note evidences borrowings under and has been issued by the Borrowers
in accordance with the terms of the Credit Agreement. The Bank and any holder
hereof is entitled to the benefits of the Credit Agreement, the Security
Documents and the other Loan Documents, and my enforce the agreements of the
Borrowers contained therein, and any holder hereof may exercise the respective
remedies provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. All capitalized terms used in this
Note and not otherwise defined herein shall have the same meanings herein as in
the Credit Agreement.
The Borrowers irrevocably authorized the Bank to make or cause to be made,
at or about the time of the Drawdown date of any Loan or at the time of receipt
of any payment of principal of this Note, and appropriate notation on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, reflecting the making of such Loan or (as
the case may be) the receipt of such payment. The outstanding amount of the
Loans set forth on the grid attached to this Note, or the continuation of such
grid, or any other similar record, including computer records, maintained by the
Bank with respect to any Loans shall be prima facie evidence of the principal
amount thereof owing and unpaid to the Bank, but the failure to record, or any
error in so recording, any such amount on any such grid, continuation or other
record shall not limit or otherwise affect the obligation of the Borrowers
hereunder or under the Credit Agreement to make payments of principal of and
interest on this Note when due.
The Borrowers have the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank of such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment of any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT. THE
BORROWERS HEREBY WAIVE ANY OBJECTIONS THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN ANY
INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, each of the undersigned have caused this Note to be
signed in its respective corporate name and its respective corporate seal to be
impressed thereon by its duly authorized officer as of the day and year first
above written.
UFP TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: V.P. and Chief Financial Officer
MOULDED FIBRE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: V.P. and Chief Financial Officer
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