Exhibit 10.7
FIRST AMENDMENT TO EQUIPMENT AND COMMERCIAL REVOLVING LINE
CREDIT AGREEMENT AND RATIFICATION OF LOAN DOCUMENTS
This First Amendment to Equipment and Commercial Revolving Line of
Credit Agreement and Ratification of Loan Documents (the "FIRST AMENDMENT") is
dated as of June 25, 2003, by and between CITIZENS BANK OF MASSACHUSETTS (the
"BANK"), a Massachusetts banking institution with a principal place of business
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and HITTITE MICROWAVE
CORPORATION (the "BORROWER") a Delaware corporation with a principal place of
business at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Bank extended to the Borrower a revolving line of credit
facility in the amount of Four Million ($4,000,000.00) Dollars (the "REVOLVING
CREDIT") and an equipment line of credit facility in the amount of Four Million
($4,000,000.00) Dollars (the "EQUIPMENT CREDIT") as set forth in an Equipment
and Commercial Revolving Line of Credit Agreement dated September 30, 2001 (the
"ORIGINAL CREDIT AGREEMENT" and together with all modifications and amendments
the "CREDIT AGREEMENT");
WHEREAS, the Borrower and the Bank entered into a Modification
Agreement dated June 7, 2002 extending the Conversion Date of the Equipment
Credit from May 31, 2002 to July 31, 2002, and a subsequent Modification
Agreement dated August 21, 2002 whereby the availability of Loans under the
Equipment Credit was reduced to Two Million (2,000,000.00) Dollars and the
Conversion Date was extended to May 31, 2003;
WHEREAS, subject to the terms and conditions of this First Amendment,
the Borrower and the Bank have agreed to: (a) extend the Termination Date of the
Revolving Credit to from May 31, 2003 to May 31, 2005; (b) extend the Conversion
Date of the Equipment Credit to from July 31, 2002 to May 31, 2004; (c) amend
the interest rate options under the Equipment Credit to a rate per annum after
the Conversion Date, at the election of the Borrower, of either (1) the Prime
Rate; or (2) the LIBOR Lending Rate for one month Interest Periods (defined in
Exhibit A-1) plus two hundred (200) basis points, (d) reduce the maximum amount
of purchase money financing permitted to One Million ($1,000,000.00) Dollars;
and (e) increase the minimum Tangible Net Worth covenant to Twenty Million
($20,000,000.00) Dollars;
NOW THEREFORE, in consideration of good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. The Credit Agreement is hereby amended as follows:
(a) (i) The definition of Termination Date in
Section 1.01 of the Credit Agreement is hereby amended to substitute the date
"May 31, 2005" in lieu of May 31, 2003, thereby extending the Termination Date
to May 31, 2005; and
(ii) The definition of "Obligations" is hereby
amended, by adding the following sentence at the end thereof:
"Without limiting the generality of the foregoing,
the term "Obligations" shall also include all
liabilities of the Borrower under interest rate swap
agreements, interest rate cap agreements and interest
rate collar agreements, or any other agreements or
arrangements entered into between the Borrower and
the Bank and designed to protect the Borrower against
fluctuations in interest rates or currency exchange
rates. "
(b) Section 2.011 is hereby amended by substituting the
following section in lieu thereof:
The Bank shall, from time to time, prior to the Termination
Date, make loans to the Borrower under and pursuant to the
terms of the Revolving Credit Note of even date (the
"REVOLVING CREDIT NOTE"), as it may be extended or renewed,
substituted or replaced, in an aggregate amount not to exceed
the lesser of (i) Four Million ($4,000,000.00) Dollars (the
"REVOLVING CREDIT") or (ii) the Revolving Credit Limit as
described below. The loans made pursuant to this section and
Section 2.012 shall be known as the "LOAN" or "LOANS", as the
context requires or permits.
(c) Section 2.012 of the Credit Agreement is hereby
amended by extending the Conversion Date of the Equipment Credit to May 31,
2004. Advances which are termed out under the Equipment Credit shall be
evidenced by one or more separate commercial promissory notes, each in a form
substantially identical to Exhibit A-1 annexed hereto, which Exhibit A-1 is
substituted in lieu of the Exhibit A-1 attached to the Original Credit
Agreement. The parties hereby confirm that the Equipment Credit has previously
been amended so that the aggregate of all Loans under the Equipment Credit shall
not exceed Two Million (2,000,000.00) Dollars at any time.
(d) Section 2.03 (b) of the Credit Agreement is hereby
amended to provide that interest on Loans under the Equipment Credit shall
accrue at a rate equal to (i) prior to the Conversion Date, the Prime Rate,
payable monthly in arrears as described in the Master Equipment Promissory Note,
as amended by a First Amendment and Allonge to Master Equipment Promissory Note
of even date herewith; and (ii) after the Conversion Date, or earlier for such
portions of the Equipment Credit as the Borrower elects to term out prior to the
Conversion Date, at an interest rate, at the election of the Borrower, of either
(1) the Prime Rate; or (2) at the LIBOR Lending Rate for one (1) month Interest
Periods plus 200 basis points (the "APPLICABLE MARGIN"), as further described on
Exhibit A-1 and the Rider attached thereto.
(e) Section 6.01(3) of the Credit Agreement is hereby
amended by substituting the language "One Million ($1,000,000.00)" in lieu of
the language "Two Million ($2,000,000.00)", thereby reducing the maximum
aggregate amount of purchase money financings permitted under the Credit
Agreement from Two Million ($2,000,000.00) Dollars to One Million
($1,000,000.00) Dollars.
(f) Section 7.02 of the Credit Agreement is hereby
amended by substituting the language, "Twenty Million ($20,000,000.00)" in lieu
of the language, "Seventeen Million
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($17,000,000.00)", so as to impose the requirement that the Borrower shall at
all times maintain a minimum tangible net worth of not less than Twenty Million
($20,000,000.00) Dollars.
2. Simultaneously herewith, the Borrower shall deliver to the
Bank the following documents:
(a) An Amendment and Allonge to Revolving Credit Note;
(b) An Amendment and Allonge to Master Equipment
Promissory Note;
(c) A Secretary's Certificate attesting to the authority
of the person executing this First Amendment and the other documents
contemplated hereby, including the above referenced Amendments and Allonges; and
(d) An updated insurance certificate on ▇▇▇▇▇ Form no. 27
concerning property and casualty insurance naming the Bank as the loss payee;
and
(e) Such other documents and instruments as the Bank
shall reasonably require.
3. Except as expressly set forth herein, the Borrower hereby
acknowledges and agrees that the Original Credit Agreement, as previously
amended, remains unmodified and in full force and effect. Further, the Borrower
hereby acknowledges and agrees that the other loan documents heretofore executed
and delivered by the Borrower, evidencing the Obligations, including, without
limitation, the Master Equipment Promissory Note dated September 30, 2001 in the
original principal amount of Four Million ($4,000,000.00) Dollars, as previously
amended by a Modification Agreement dated August 21, 2002, as further amended by
an Amendment and Allonge to Master Equipment Promissory Note of even date, the
Revolving Credit Note dated September 30, 2001 in the original principal amount
of Four Million ($4,000,000.00) Dollars, as further amended by an Amendment and
Allonge to Revolving Credit Note of even date, the Security Agreement executed
and delivered by the Borrower (the "Security Agreement"), dated September 30,
2001, and all other related documents and instruments executed and delivered by
Borrower, and all extensions and modifications thereof and amendments and
supplements thereto and all UCC financing statements (collectively the "Loan
Documents") remain in full force and effect, and the Borrower hereby ratifies
and confirms that all Obligations of the Borrower to the Bank, whether now
existing or hereafter arising, remain secured by a first lien on all assets of
the Borrower granted pursuant to the Security Agreement.
4. The Borrower represents and warrants that:
(a) the representations and warranties contained in
Credit Agreement and in the Security Agreement remain true and accurate in all
material respects;
(b) no Default or Event of Default has occurred and is
continuing, or will result from this First Amendment, and no event has occurred
which with the giving of notice and or the lapse of time; or both, would
constitute a Default or Event of Default under the Credit Agreement or any of
the other Loan Documents; and
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(c) there has been no material adverse change in the
assets, liabilities, financial condition or business of the Borrower, since the
date of the Financial Statements most recently given by the Borrower.
5. The Borrower represents and warrants to the Bank, and agrees,
that the Borrower has no defenses, set-offs or counterclaims to the payment of
its liabilities and obligations to the Bank under the Loan Documents. To the,
extent any such defenses, set-offs or counterclaims ever existed, Borrower
hereby waives them, and the Borrower hereby releases, remises and forever
discharges the Bank, its agents, directors, officers, employees and attorneys,
of and from and all claims now existing of the Borrower, against the Bank, its
agents, directors, officers, employees and attorneys.
6. The Borrower agrees, warrants, represents and certifies to
the Bank that the obligations and liabilities of the Borrower arising out of
and/or under the Loan Documents are the legal, valid, binding obligations of the
Borrower, where applicable, and the Borrower hereby ratifies, reaffirms,
confirms, and agrees to be bound to the Bank for its obligations under the Loan
Documents, as amended herein and/or hereafter.
7. The Borrower agrees and warrants, ratifies, confirms and
reaffirms to the Bank that all liens, encumbrances and security interests,
under the Loan Documents granted to the Bank, including, without limitation, the
Security Agreement and the liens granted pursuant thereto, continue to remain
valid, perfected and enforceable by the Bank, without the necessity of any
further action or recording, and secure all obligations arising under the Credit
Agreement, including without limitation, the Revolving Credit and the Equipment
Credit;
8. Except as otherwise prohibited by law, if at all, the Borrower
agrees that any and all now existing and/or hereafter arising deposits, or other
sums, certificates, instruments and/or securities at any time credited by, or
due to, the Borrower from the Bank, now existing and/or hereafter arising (all
the foregoing collectively called "DEPOSITS") shall, at all times, constitute
security for all the obligations of the Borrower, and/or any and all other
liabilities, now existing and/or hereafter arising of the Borrower to the Bank,
and, after any Event of Default or default, may be held, applied and/or set off
by the Bank, against the liabilities at any time of the Borrower, whether or not
other collateral is held by otherwise available to the Bank.
9. The Borrower acknowledges that: (a) the Bank has made no
agreements, warranties, representations or promises in connection with this
Agreement except as set forth herein, and (b) Borrower have received from the
Bank good and adequate consideration in connection with the execution of this
Agreement; and (c) the responsibility of the attorney for the Bank is to protect
the interest of the Bank, and the Borrower may, at Borrower's own expense,
engage one or more attorneys of their own selection to represent the Borrower.
10. This Agreement may be executed in any number of counterparts,
and when each party has signed and delivered at least one such counterpart, each
counterpart shall be considered an original, and when taken together with other
signed counterparts, shall constitute one agreement, which shall be binding upon
and effective as to all parties. This Agreement and the rights and obligations
hereunder may not be modified, amended or waived, whether in whole or in part,
orally or otherwise, except by written instrument signed by the Bank, its
successors or
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assigns. This Agreement is binding upon and shall inure to the benefit of the
parties hereto, their heirs, executors, administrators, successors and assigns.
This Agreement shall be deemed to have been executed and delivered within the
Commonwealth of Massachusetts, and the rights and obligations of the parties
hereto shall be construed and enforced in accordance with, and governed by, the
laws of the Commonwealth of Massachusetts. Each party has cooperated in the
drafting and preparation of this Agreement; hence, in any construction to be
made of this Agreement, the same shall not be construed against any party.
11. The Borrower agrees to execute, acknowledge and deliver such
further instruments and perform such additional acts as the Bank shall
reasonably require in order to effectuate the intent of this Agreement. The
Borrower shall be responsible to pay any and all costs and expenses reasonably
incurred by the Bank in connection with this First Amendment, including, without
limitation, all reasonable attorneys fees, and hereby authorizes the Bank to
charge the Borrower's account for reimbursement of the same.
12. Except as otherwise set forth herein, capitalized terms shall
have the meaning ascribed to them in the Original Credit Agreement, as amended.
All references to the Bank shall mean Citizens Bank of Massachusetts, as
successor by merger to USTrust, and all references to the Prime Rate shall mean
the Citizens Bank of Massachusetts Prime Rate, as announced by the Bank from
time to time, said rate to automatically change effective on the date of an
announcement of a change in the Prime Rate.
13. This First Amendment, together with the Original Credit
Agreement, as previously amended, and the other Loan Documents contain the
entire agreements between the parties concerning the subject matter of said
agreements and supersede all prior understandings, may be modified or amended
only by written agreement and shall be binding upon and inure to the benefit of
the parties hereto and their successors and assigns.
14. The Bank hereby waives any the default in the Credit Agreement
which arose from the Borrower's failure to deliver a Quarterly Backlog Schedule
for the fiscal quarter ending December 31, 2002 pursuant to Section 5.08(8) of
the Credit Agreement; however, the forgoing waiver is a one time waiver of
Bank's right to declare an Event of Default arising from the Borrower's failure
to adhere and satisfy the covenants required to be observed, and the waiver on
this occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion or to a waiver of any other defaults which may
come to the Bank's attention.
IN WITNESS WHEREOF, the parties have executed or caused this agreement
to be executed by their respective officers hereunto duly authorized, as of the
day first written above and it and shall take effect as a sealed instrument.
HITITTE MICROWAVE CORPORATION
By: /s/ Yalcin Ayasi
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▇▇▇▇▇▇ ▇▇▇▇▇▇, President
CITIZENS BANK OF MASSACHUSETTS
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By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
THE COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss July __, 2003
Then personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇▇, President of Hittite
Microwave Corporation, known to me, and acknowledged the foregoing to be his
duly authorized and free act and deed as President and Treasurer and the free
act and deed of Hittite Microwave Corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Notary Public
My commission expires:
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