Exhibit 10.71
WAIVER, MODIFICATION AND SEVENTH AMENDEMENT
TO CONSIGNMENT AGREEMENT
THIS SEVENTH AMENDMENT ("Seventh Amendment") is entered into as February
1,2000, by and between FLEET PRECIOUS METALS INC., a Rhode Island corporation,
with its principal office located at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000 ("FPM"), and SEMX CORP., as successor in interest to Semiconductor
Packaging Materials Co., Inc., a Delaware corporation with its principal office
located at 0 Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx (the "Company").
BACKGROUND
FPM and the Company are parties to a Consignment Agreement dated as of
December 23, 1996 (as amended, supplemented or otherwise modified from time to
time, the "Consignment Agreement") pursuant to which FPM consigns certain
commodities to the Company on the terms and conditions and in reliance upon the
representations and warranties of the Company set forth in the Consignment
Agreement.
The Company has had continuing discussions with FPM relating to the
operating and financial condition of the Company. In order to permit the
Company to complete the restructuring of its business operations including
the closing of its replacement financing facility from PNC Bank, the Company
has requested that FPM amend the Consignment Agreement to, among other
things, extend the Maturity Date and waive certain Events of Default (the
"Waiver"). In order to induce FPM to issue the Waiver and extend the
Consignment Agreement through June 30, 2000 as herein provided, the Company
has agreed to certain modifications of the Consignment Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises hereinafter contained, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Consignment Agreement.
2. AMENDMENT TO CONSIGNMENT AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 3 below, the Consignment Agreement is
hereby amended in its entirety to provide as follows:
(a) Paragraph 1.28 of the Consignment Agreement is hereby amended in
its entirety to provide as follows:
"MATURITY DATE" means June 30, 2000.
(b) The Floating Consignment Fee as set forth in Paragraph 2.3(a) of
the Consignment Agreement shall be calculated at the rate of five and on-half
percent (5.5%) per annum or at such other rates as FPM shall announce from time
to time in writing in substantially the form of Exhibit C attached to the
Consignment Agreement, such fee to be accrued on a daily basis, billed monthly
and paid to FPM not later than the fifth (5th) Business Day following the
receipt of billing.
(c) Paragraph 6.10(c) of the Consignment Agreement is hereby amended
in its entirety to provide as follows:
(c) no later than the close of business on every other
Tuesday, an inventory summary for the Company for the two weeks
ending the preceding Friday, in such form as FPM may reasonably
request; and
(d) Paragraph 6.15 of the Consignment Agreement is hereby amended in
its entirety to provide as follows:
6.15. FIXED CHARGE COVERAGE RATIO. Cause to be maintained as
of the end of each month, on a rolling twelve-month basis (except
for each monthly calculation in fiscal year 1999, which shall be
calculated on a cumulative year to date basis commencing January 1,
1999), a Fixed Charge Ratio (as defined in the Revolving Credit,
term Loan and Security Agreement with Lender) equal to or greater
than 1.05 to 1. The Company shall simultaneously provide FPM with
copies of all monthly compliance worksheets provided to Lender with
respect to the Fixed Charge Ratio.
(e) Paragraph 6.17 of the Consignment Agreement is hereby amended in
its entirety to provide as follows:
6.17. EQUITY POSITION. At all times own Precious Metal free
and clear of all liens (except liens in favor of FPM and the Lender)
("Owned Precious Metal") with a gold content equal to not less than
five percent (5%) of the aggregate amount of Consigned Precious
Metal.
3. REPRESENTATIVE AND WARRANTIES. The Company hereby represents and
warrants as follows:
(a) This Seventh Amendment and the Consignment Agreement, as amended
hereby, constitute legal, valid and binding obligations of the Company and are
enforceable against the Company in accordance with their respective terms.
(b) Upon the effectiveness of this Seventh Amendment, Borrowers
hereby reaffirm all covenants, representations and warranties made in the
Consignment Agreement and the Other Agreements to the extent the same are not
amended or waived hereby and acknowledge that all such covenants,
representations and warranties shall be deemed to have been remade and are true
and correct as of the effective date of this Seventh Amendment.
(c) The Company has the corporate power, and have been duly
authorized by all requisite corporate action, to execute and deliver this
Seventh Amendment and to perform it's
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obligations hereunder. This Seventh Amendment has been duly executed and
delivered by the Company.
(d) The Company's execution, delivery and performance of this
Seventh Amendment does not and will not (i) violate any law, rule, regulations
or court order to which the Company is subject, (ii) conflict with or result in
a breech of the Company's Articles of Incorporation or By-laws or any agreement
or instrument to which the Company is a party or by which its properties are
bound, or (iii) result in the creation or imposition of any lien, security
interest or encumbrance on any of its property, whether now owned or hereafter
acquired.
(e) The Company has no defense, counterclaim or setoff with respect
to the Obligations as of the effective date of this Seventh Amendment.
(f) The recitals set forth in the Background paragraph above are
truthful and accurate and are an operative part of this Seventh Amendment.
(g) The Company expressly reaffirms all security interests and liens
granted to FPM pursuant to the Consignment Agreement.
4. WAIVERS.
(a) The Company waives and affirmatively agrees not to allege or
otherwise pursue any or all defenses, affirmative defenses, counterclaims,
claims, causes of action, setoffs or other rights that they may have as of the
effective date of this Seventh Amendment to contest (1) any Events of Default
which could be declared by FPM; (2) any provisions of the Consignment Agreement
or the Other Agreements; (3) the security interest of FPM in any property,
whether real or personal, tangible or intangible, or any right or other
interest, now or hereafter arising in connection with any collateral security of
FPM; or (2) the conduct of FPM in administering the Consignment Facility.
(b) Subject to the satisfaction of the conditions set forth in
Section 6, FPM waives any default or Event of Default which occurred prior to
and including the date of this Seventh Amendment.
5. RELEASES. The Company hereby releases, remises, acquits and forever
discharges FPM and FPM's employees, agents, representatives, consultants,
attorneys, fiduciaries, officers, directors, partners, predecessors, successors
and assigns, subsidiary corporations, parent corporations, and related corporate
divisions (all of the foregoing hereinafter called the "Released Parties"), from
any and all actions and causes of action, judgements, executions, suits,
character, known or unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, for or because of any matter or things done, omitted
or suffered to be done by any of the Released Parties prior to and including the
date of this Seventh Amendment, and in any way directly or indirectly arising
out of or in any way connected to the Consignment Agreement or the Other
Agreements (all of the foregoing hereinafter called the "Released Matters"). The
Company acknowledges that the agreements in this Paragraph are intended to be in
full satisfaction of all or any alleged injuries or damages arising in
connection with the Released matters.
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6. CONDITIONS OF EFFECTIVENESS. This Seventh Amendment shall become
effective when and only when FPM shall have received (a) three (3) copies of
this Seventh Amendment executed by the Company, and (b) such other certificates,
instruments, documents, agreements and opinions of counsel as may be required by
FPM or its counsel, each of which shall be in form and substance reasonably
satisfied to FPM and its counsel.
7. EFFECT ON THE CONSIGNMENT AGREEMENT.
(a) Upon the effectiveness of this Seventh Amendment, each reference
in the Consignment Agreement to "this agreement, "hereunder," "hereof,"
"herein", or words of like import shall mean and be a reference to the
Consignment Agreement as amended hereby.
(b) Except as specifically amended herein, the Consignment
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) Except as specifically set forth herein, the execution, delivery
and effectiveness of this Seventh Amendment shall not operate as a waiver of any
right, power or remedy of FPM, nor constitute a waiver of any provision of the
Consignment Agreement, or any other documents, instruments or agreements
executed and/or delivered under or in connection therewith.
8. PRESUMPTIONS. The Company acknowledges that it has consulted with and
been advised by its counsel and such other experts and advisors as it has deemed
necessary in connection with the negotiation, execution and delivery of this
Seventh Amendment. Therefore, this Seventh Amendment shall be construed without
regard to any presumption or rule requiring that it be construed against any one
party causing this Seventh Amendment or any part hereof to be drafted.
9. ENTIRE AGREEMENT. The Consignment Agreement sets forth the entire
agreement among the parties hereto with respect to the subject matter hereof.
Neither party has relied on any agreements, representation, warranties or
guarantees not herein contained and hereinafter made shall have no force and
effect unless in writing, signed by each party hereto. Each party acknowledges
that it is not relying upon oral representations or statements inconsistent with
the terms and provisions of the Consignment Agreement.
10. BENEFIT OF AGREEMENT. This Seventh Amendment shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and their
respective permitted successors and assigns as set forth in the Consignment
Agreement. No other Person shall be entitled to claim any right or benefit
hereunder, including, without limitation, any third-party beneficiary of this
Seventh Amendment. FPM's agreement to waive pursuant to Section 4(b) hereof does
not in any manner limit the Company's obligations to comply with, and FPM's
right to insist upon compliance with, each and every one of the terms of the
Consignment Agreement except as specifically amended, modified or waived herein.
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11. GOVERNING LAW. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
Rhode Island.
12. HEADINGS. Section headings in this Seventh Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Seventh Amendment for any other purpose.
13. COUNTERPARTS. This Seventh Amendment may be executed in any number of
and by different parties hereto on separate counterparts, all of which, when so
executed shall be deemed an original, but all such counterparts shall constitute
one and the same instrument. Any signature delivered by a party by facsimile*
transmission shall be deemed an original signature hereto.
IN WITNESS WHEREOF, this Seventh Amendment has been duly executed as of
the day and year first written above.
SEMX CORP.
By:
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Name: By/s/ Xxxx Xxxx
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Title: Secretary
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FLEET PRECIOUS METALS INC.
By:
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Name: By/s/ Xxxx Xxxxxxxx
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Title: Vice President
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