AMENDMENT and WAIVER
to
CREDIT AGREEMENT
This Amendment and Waiver to Credit Agreement ("Amendment and Waiver")
is dated as of August 31, 1999 by the BANKS listed on the signature pages hereof
(the "Banks").
WITNESSETH
WHEREAS, EFTC Corporation (the "Borrower"), the Banks and Bank One,
Colorado, N.A., as Agent (the "Agent"), are parties to a Credit Agreement dated
as of September 30, 1997, as amended by the Restated and Amended Credit
Agreement dated as of March 12, 1999, as amended (the "Credit Agreement")
(capitalized terms used herein that are not otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement);
WHEREAS, the Borrower intends to enter into an Asset Purchase Agreement
between Jabil Circuit, Inc., and the Borrower, CTLLC Acquisition Corp., Circuit
Test, Inc., Airhub Service Group, L.C. and Circuit Test International, L.C.,
dated as of August 31, 1999 (the AAsset Purchase Agreement); and
WHEREAS, pursuant to the Asset Purchase Agreement, the Borrower and
certain Affiliates of the Borrower, will sell certain specified assets of the
EFTC Services Division to Jabil Circuit, Inc. (the ATransaction); and
WHEREAS, the Borrower has requested a waiver of certain provisions of
the Credit Agreement to permit the transactions contemplated by the Asset
Purchase Agreement.
NOW THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Amendment. The defined term "Eligible Inventory" in Section 1.1 of
the Credit Agreement is amended by the addition of a new subsection (ix), that
shall read in its entirety as follows:
(ix) any Inventory that is excluded from or is consigned pursuant to
the Asset Purchase Agreement dated August 31, 1999 between Jabil
Circuits, Inc. and the Borrower, CTLLC Acquisition, Circuit Test,
Airhub Services and Circuit Test International.
2. Waiver and Authorization. Pursuant to Section 8.1 of the Credit
Agreement, the Banks hereby provide a waiver of Section 5.2(g) of the Credit
Agreement and applicable provisions of the Collateral Documents to permit the
Borrower to enter into the Asset Purchase Agreement and to consummate the
Transaction. The Banks authorize the Agent to execute and deliver to the
Borrower Uniform Commercial Code termination statements and such other
documents, all in form and substance satisfactory to the Agent, and take such
other actions as the Agent deems necessary to release the Security Interest of
the Agent, on behalf of the Banks, in the assets sold to Jabil Circuit, Inc.
pursuant to the Asset Purchase Agreement.
3. Conditions Precedent. In the judgement of the Agent, each of the
following conditions shall have been satisfied:
(a) The Agent shall have reviewed and approved the form and
substance of the Asset Purchase Agreement and all schedules,
exhibits, agreements and instruments evidencing the
Transaction;
(b) The Agent shall have received evidence satisfactory to it,
that the Transaction shall be ready for closing in
accordance with the terms of the attached Exhibit A;
(c) A Reaffirmation of Guaranty, in form and substance
satisfactory to the Agent, shall have been executed and
delivered to the Agent by all of the Guarantors;
(d) All Net Proceeds arising out of the Asset Purchase
Agreement, which shall be no less than $28,000,000, shall be
paid to the Banks as a Mandatory Repayment pursuant to
Section 2.7 of the Credit Agreement.
(e) The Borrower shall have paid the reasonable legal fees and
expenses incurred by the Agent in connection with the
preparation of this Amendment and Waiver and related
instruments.
4. Representations and Warranties. In order to induce the Banks to
agree to this Amendment and Waiver, the Borrower makes the following
representations and warranties, which shall survive the execution and delivery
of this Amendment and Waiver:
(a) Prior to and as of the date first referenced above, no
Event of Default has occurred and is continuing and no Event
of Default will exist immediately after giving effect to the
amendment contained herein; and
(b) Each of the representations and warranties set forth in
Article IV of the Credit Agreement are true and correct as
though such representations and warranties were made at and as
of the Amendment and Waiver Effective Date, except to the
extent that any such representations or warranties are made as
of a specified date or with respect to a specified period of
time, in which case such representations and warranties shall
be made as of such specified date or with respect to such
specified period. Each of the representations and warranties
made under the Credit Agreement shall survive to the extent
provided therein and not be waived by the execution and
delivery of this Amendment and Waiver.
5. Effectiveness. The waiver to the Credit Agreement and release of
Security Interest set forth in Section 1 shall become effective as of the date
first referenced above as of the date the Agent shall have received this
Amendment and Waiver, executed and delivered by the Borrower and the Banks and
all of the conditions precedent set forth in Section 2 above, have been
satisfied. The Agent shall confirm to the Borrower in writing when in its
judgement all of the conditions precedent to the Waiver have been satisfied (the
"Amendment and Waiver Effective Date").
6. Indemnity. Borrower agrees to indemnify the Agent and the Banks,
from and against any and all losses, liabilities, claims and damages or
expenses, including without limitation, reasonable attorneys fees and
disbursements of counsel, incurred by any of them, arising out of or by reason
of any litigation or other proceedings (including any negotiations, threatened,
investigations, litigation or other proceedings) relating to any claims or
controversies raised by the Agent, a Bank, Jabil Circuits, Inc. or any other
Person concerning the specific Property that is subject to the release of the
Agent's Security Interest with respect to the Transaction, but excluding any
such losses, liabilities, claims, damages or expenses that are determined
pursuant to a final, non-appealable order of a court of competent jurisdiction
to have resulted solely from the gross negligence or willful misconduct of the
Person to be indemnified. This indemnity shall survive the execution and
delivery of this Amendment and Waiver.
7. Counterparts. This Amendment and Waiver may be executed in
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
of which, when taken together, shall constitute one and the same instrument.
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8. Expenses. The Borrower agrees to pay all reasonable costs and
expenses, including filing and recording fees, incurred by the Agent in
connection with the preparation, execution and delivery of this Amendment and
Waiver and any other documents or instruments which may be delivered in
connection herewith, including without limitation, the reasonable fees and
expenses of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Agent.
9. Governing Law. The rights and duties of the Borrower, the Banks and
the Agent under this Amendment and Waiver shall be governed by the law of the
State of Colorado.
10. Ratification. The Credit Agreement is and shall continue to be in
full force and effect and is hereby in all respects confirmed, approved and
ratified. All terms and conditions of the Credit Agreement remain the same.
IN WITNESS WHEREOF the Banks have caused this Waiver to be duly
executed as of the date first written above.
BANK ONE, COLORADO, N.A., KEYBANK NATIONAL ASSOCIATION
as Agent and Bank
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx Xxxx X. Xxxxx
Vice President Assistant Vice President
NATIONAL BANK OF CANADA MITSUI LEASING CAPITAL
CORPORATION
By /s/ Xxxxxx X. Xxxxxxx, Xx. By /s/ R. Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx, Xx. R. Xxxxx Xxxxxx
Vice President Senior Vice President
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Vice President
AGREED AND ACCEPTED:
EFTC CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Chief Financial Officer
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