AMENDED AND RESTATED CREDIT FACILITY AGREEMENT AMENDMENT 1
EXHIBIT
10.1
AMENDED AND RESTATED CREDIT
FACILITY AGREEMENT
AMENDMENT
1
This
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT AMENDMENT 1 (“Amendment”) is made effective
as of February 26, 2010 by and among IEC ELECTRONICS CORP., a corporation formed
under the laws of the State of Delaware (“Borrower”) and MANUFACTURERS
AND TRADERS TRUST COMPANY (“Lender”), a New York banking
corporation, with offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000. This Amendment amends the Amended and Restated Credit Facility
Agreement, dated December 16, 2009, made between the Borrower and Lender (“Agreement”). Capitalized
terms not otherwise defined in this Amendment shall have the meanings given to
them in the Agreement.
1. The
Agreement is hereby amended as follows:
(a) Section
11.14 of the Agreement is hereby deleted.
(b) A
new Section 11.14 is hereby added to the Agreement to read in its entirety as
follows:
11.14 Mortgage Related
Matters. GTC shall not cause or permit a reconveyance to GTC
of fee title to the premises commonly known as 0000 Xxxxxxx Xxxxxx XX,
Xxxxxxxxxxx, Xxx Xxxxxx held pursuant to a Lease Agreement between the City of
Albuquerque, New Mexico and GTC dated as of March 1, 1999 unless (i) GTC gives
the Lender at least 15 Business Days prior notice of its intention to cause the
reconveyance, (ii) at the time of such reconveyance GTC delivers to the Lender
an executed mortgage (the “Fee
Mortgage”) in favor of Lender, in form substantially the same as the
Mortgage (modified to create a mortgage covering the fee title interest of GTC),
and (iii) at the time of such reconveyance GTC delivers to the Lender a
mortgagee title insurance policy covering the Fee Mortgage free of exceptions,
encumbrances and Liens other than Permitted Exceptions and other exceptions
approved in writing in advance by Lender.
(c) Section
12.8 of the Agreement is hereby amended to read in its entirety as
follows:
12.8 Judgments. Allow
to exist any judgments against any of the Credit Parties in excess of $250,000
in the aggregate which are not fully covered by insurance or for which an appeal
or other proceeding for the review thereof shall not have been taken and for
which a stay of execution pending such appeal shall not have been obtained, or
allow to exist any judgment in any amount against GTC that creates a Lien
against any of GTC real property or interest therein.
(d) Section
15.1 is hereby amended to add a new subsection (k) thereto to read as
follows:
(k) any
failure of GTC to be able to, or to, cause reconveyance of fee title to the
premises covered by the Mortgage in strict accordance with Section 11.14 of this
Agreement at such time as the tax benefits available through the City of
Albuquerque expire, it being the intention of the parties that this Event of
Default shall be an event of default under the Mortgage entitling the Lender to
its remedies, including foreclosure, thereunder.
(e) A
new sentence is hereby added to the end of Section 16.7(a) to read as
follows:
The
indemnification obligations of the Credit Parties hereunder include obligations
to indemnify and hold harmless the Lender for any cost, expense, or liability
(including among others reasonable attorneys fees) incurred in connection with
actions taken (including if applicable foreclosure of the Mortgage), and
payments made, by the Lender reasonably necessary to assure that the Lender’s
Mortgage, and at such time as the tax benefits available through the City of
Albuquerque expire the Lender’s interest in the premises covered by the Fee
Mortgage, are subject to no Liens other than Permitted Liens.
2. Credit Agreement
Ratified. Except as expressly amended hereby, the Credit
Agreement is in all respects ratified and confirmed, and all of the terms,
provisions and conditions thereof shall be and remain in full force and effect,
and this Amendment and all of its terms, provisions and conditions shall be
deemed to be a part of the Credit Agreement. All capitalized terms
used herein and not defined shall have the meanings given them in the Credit
Agreement.
3 Representations and
Warranties. The Borrower confirms the accuracy in all material
respects of and remakes as of the date hereof all of its representations and
warranties contained in the Credit Agreement except (i) those representations
and warranties that by their terms are made as of a specific date, in which case
Borrower confirms that they were accurate as of the specified date, and (ii) as
they relate to changes in factual circumstances permitted by the Credit
Agreement. The Borrower further represents and warrants to the Lender
that all necessary action on the part of the Borrower relating to authorization
of the execution and delivery of this Amendment, and the performance of the
Obligations of the Borrower thereunder has been taken. This Amendment
and the Loan Documents constitute legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms except as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and except to the
extent enforcement thereof may be limited by the application of general
principles of equity. The Borrower has no defenses, offsets, claims,
or counterclaims with respect to its Obligations under the Loan
Documents. The execution and delivery by the Borrower of this
Amendment, and the performance by the Borrower of the Loan Documents as amended
hereby, will not violate any provision of law the violation of which could
reasonably be expected to have a Material Adverse Effect or the Borrower’s
Certificate of Incorporation or By-laws. The execution, delivery and
performance of this Amendment, and the consummation of the transactions
contemplated hereby (i) will not violate, be in conflict with, result in a
breach of, or constitute a default under any agreement to which the Borrower is
a party or by which any of its properties is bound, or any order, writ,
injunction, or decree of any court or governmental instrumentality, in each case
except as could not reasonably be expected to have a Material Adverse Effect,
and (ii) will not result in the creation or imposition of any Lien, charge or
encumbrance upon any of its properties.
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4. No Events of
Default. The Borrower confirms that it has performed and
complied in all material respects with all terms and conditions herein required
to be performed or complied with by it prior to or at the time hereof, and as of
the date hereof, after giving effect to the provisions hereof, there exists no
Event of Default or Default.
5. Miscellaneous.
(a) This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
(b) The
Borrower hereby agrees to pay to the Lender all out-of-pocket costs and
expenses, including reasonable legal fees, incurred or sustained by the Lender
in connection with the preparation of this Amendment and the matters related
hereto.
(c) This
Amendment shall constitute a Loan Document under the Credit Agreement and all
obligations included in this Amendment shall constitute Obligations under the
Credit Agreement and be secured by the Security Documents securing the
Obligations.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives by their signatures below.
[Signature
Pages Follow]
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MANUFACTURERS
AND TRADERS TRUST COMPANY,
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By:
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Xxxxx
Xxxxxxxx
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Assistant
Vice President
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By:
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Xxxxx
Xxxxxxx
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Chief
Executive Officer
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