FOURTH AMENDMENT AGREEMENT AND FORBEARANCE AGREEMENT
AGREEMENT, made as of August 1, 1998, among SEMX CORPORATION
(formerly known as Semiconductor Packaging Materials Co., Inc.), a Delaware
corporation, AMERICAN SILICON PRODUCTS, INC., a Delaware corporation, XXXXXX
COMPANY, INC., a California corporation, RETCONN INCORPORATED, a Connecticut
corporation, TYPE III, INC., a California corporation, S.T. ELECTRONICS, INC., a
California corporation, SPM HOLDINGS CORPORATION, a Delaware corporation, and
FIRST UNION NATIONAL BANK, a national banking association.
Background
A. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement dated January 23, 1997, between
Semiconductor Packaging Materials Co., Inc. (now known as SEMX Corporation), and
First Union Bank of Connecticut (predecessor in interest to First Union National
Bank) (as modified, amended, restated or supplemented from time to time, the
"Credit Agreement").
B. The Borrower has informed the Lender that it will be unable to make the
principal payment under the Term Loan due and payable on August 1, 1998, and
will be unable to comply with the financial covenants contained in Sections 9.8,
9.9, 9.10, and 9.11 of the Credit Agreement. The Borrower and the Subsidiary
Guarantors have requested that the Lender (i) forbear from requiring the
Borrower to make scheduled payments of principal under the Term Loan from August
1, 1998, through December 31, 1998, (ii) waive the Borrower's compliance with
the financial covenants contained in Sections 9.8, 9.9, 9.10 and 9.11 of the
Credit Agreement through December 31, 1998, and (iii) consent to the change of
the Borrower's name from Semiconductor Packaging Materials Co., Inc. to SEMX
Corporation.
C. The Lender has agreed to the Borrower's and the Subsidiary Guarantors'
requests subject to the terms and conditions of this Agreement.
Agreement
In consideration of the foregoing Background, which is incorporated
by reference, the parties, intending to be legally bound, agree as follows:
1. Modifications to Credit Documents. All of the terms and conditions
contained in the Credit Documents shall remain in full force and effect except
as follows:
(a) Modifications to Credit Agreement.
(i) The heading contained on the first page of the Credit
Agreement is deleted and the following is substituted therefor:
CREDIT AGREEMENT dated as of January 23, 1997, between SEMX
CORPORATION, a Delaware corporation, and FIRST UNION NATIONAL BANK,
a national banking association.
(ii) The following is added as Section 1.1(c) to the Credit
Agreement:
(c) Subject to and upon the terms and conditions set forth
herein, the Lender agrees to make, on June 19, 1998, a term loan
(the "Interim Loan" to the Borrower, which Interim Loan (i) shall be
incurred and maintained as a Prime Rate Loan and (ii) shall not
exceed, in initial aggregate principal amount, that amount which
equals the Interim Loan Commitment on the Initial Borrowing Date.
Once repaid, the Interim Loan incurred hereunder may not be
reborrowed.
(iii) The phrase "or Interim Loan" is added after the phrase
"Revolving Loans" contained in the twelfth line of Section 1.3(a) of the Credit
Agreement.
(iv) The first "and" contained in the fifth line of Section
1.5(a) of the Credit Agreement is deleted and the following is added after the
parenthetical "(the `Revolving Note')" contained in the seventh line of the
Credit Agreement:
, and (iii) if the Interim Loan, by a promissory note duly executed
and delivered by the Borrower substantially in the form of Exhibit
B-3, with blanks approximately completed in conformity herewith (the
"Interim Note").
(v) The following is added as Section 1.5(d) of the Credit
Agreement and the current Section 1.5(d) is renumbered as Section 1.5(e):
(d) the Interim Note shall (i) be executed by the Borrower,
(ii) be payable to the Lender or its registered assigns and be dated
as of the Initial Borrowing Date, (iii) be in a stated principal
amount equal to the Interim Loan evidenced thereby, (iv) mature on
the Interim Loan Maturity Date, (v) bear interest and be payable as
to interest as provided in the appropriate clause of Section 1.8,
(vi) be subject to voluntary prepayment as provided in Section 4.1,
and mandatory repayment as provided in Section 4.2, and (vii) be
entitled to the benefits of this Agreement and the other Credit
Documents.
(vi) Clauses (iii), (iv), (v) and (vi) of Section 1.7 of the
Credit Agreement are deleted and the following are substituted therefor:
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(iii) then due and payable interest payments on the Interim Loan;
(iv) then due and payable interest payments on the Revolving Loans;
(v) then due and payable principal payments on the Term Loan; (v)
amounts then outstanding under the Interim Loan; (vi) amounts then
outstanding under the Revolving Loans; and (vii) Obligations to
Lender other than Fees, expenses and interest and principal amounts.
(vii) The following is added as Section 3.3(c) of the Credit
Agreement:
(c) In addition to any other mandatory commitment reductions
pursuant to Section 4.2, the Interim Loan Commitment shall terminate
in its entirety on the Interim Loan Maturity Date.
(viii) The phrase "or the Interim Loan" is added after the
phrase "or the Revolving Loans" contained in the eighth line of Section 4.1 of
the Credit Agreement.
(ix) The phrase "except that with respect to the Interim Loan
such amount shall be $25,000)" is added after the amount "$250,000" contained in
the eleventh line of Section 4.1 of the Credit Agreement.
(x) Section 4.2(a) of the Credit Agreement is renumbered as
Section 4.2(a)(i) and the following is added as Section 4.2(a)(ii) of the Credit
Agreement:
(ii) On any day on which the sum of the aggregate outstanding
principal amount of the Interim Loan exceeds the Interim Loan
Commitment as then in effect, the Borrower shall prepay on such day,
principal of the Interim Loan in an amount equal to such excess.
(xi) The following is added after the phrase "Section 4.2"
contained in the second line of Section 4.2(g) of the Credit Agreement:
(other than repayments required pursuant to subsections (a) and (b)
hereof)
(xii) Section 10.10 of the Credit Agreement is deleted and the
following is substituted therefor:
10.10. Change in Management. Xxxxxxx Xxxxx or Xxxxxxx Sages
shall fail to be involved in the active daily senior management of
the Borrower and such failure shall continue for 120 days unless,
prior to the end of such 120-day period, the Borrower shall have
replaced either Xx. Xxxxx or Mr. Sages, as the case may be, with an
individual reasonably acceptable to the Lender;
(xiii) The following definition is added after the definition
of "Acquisition Agreement" contained in Section 11.1 of the Credit Agreement:
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"Additional Security Document" shall mean any agreement
executed and delivered by Borrower or any Subsidiary Guarantor to Lender
subsequent to the Closing Date pursuant to which such Person shall grant to
Lender one or more liens, security interests or mortgages to secure the
obligations of such Person to Lender.
(xiv) The definition of "Applicable Margin" contained in
Section 11.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Applicable Margin: shall mean (a) in the case of Revolving
Loans which are maintained as Prime Rate Loans, 0%, (b) in the case
of the Interim Loan, 0%, and (c) in the case of the Term Loan and
Revolving Loans which are maintained as Eurodollar Loans, 2.25%
(xv) The definition of "Borrower" contained in Section 11.1 of
the Credit Agreement is deleted and the following is substituted therefore:
"Borrower" shall mean SEMX Corporation, a Delaware
corporation, and its successors and assigns.
(xvi) The definition of "Commitment" contained in Section 11.1
of the Credit Agreement is deleted and the following is substituted therefor:
"Commitment" shall mean any of the commitments of the Lender,
i.e., whether the Term Loan Commitment, the Revolving Loan
Commitment, the Interim Loan Commitment or the Letter of Credit
Commitment
(xvii) The definition of "Initial Borrowing Date" contained in
Section 11.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Initial Borrowing Date" shall mean, (i) with respect to the
Term Loan and the Revolving Loans, the date occurring on or after
the Effective Date on which the initial Borrowing of Loans hereunder
occurs and (ii) with respect to the Interim Loan, June 19, 1998.
(xviii) The definition of "Lender" contained in Section 11.1
of the Credit Agreement is deleted and the following is substituted therefor:
"Lender" shall mean First Union National Bank, a national
banking association, and its successors and assigns.
(xix) The definition of "Loan" contained in Section 11.1 of
the Credit Agreement is deleted and the following is substituted therefor:
"Loan" shall mean the Term Loan, the Revolving Loans and the
Interim Loan.
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(xx) The definition of "Maturity Date" contained in Section
11.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Maturity Date" shall mean the Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Interim Loan Maturity Date, as
the case may be.
(xxi) The definition of "Minimum Borrowing Amount" contained
in Section 11.1 of the Credit Agreement is deleted and the following is
substituted therefor:
"Minimum Borrowing Amount" shall mean (a) for the Term Loan,
$21,000,000, (b) for Revolving Loans, $250,000, and (c) for the
Interim Loan, $1,000,000.
(xxii) The definition of "Note" contained in Section 11.1 of
the Credit Agreement is deleted and the following is substituted therefor:
"Note" or "Notes" shall mean the Term Note, the Revolving Note
and the Interim Note.
(xxiii) The definition of Security Document contained in
Section 11.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Security Document" shall mean and include the Borrower
Security Agreement, the Subsidiaries Security Agreement, the Stock
Pledge Agreement, and, after the execution and delivery thereof,
each Additional Security Document.
(xxiv) The following definition is added after the definition
of "Stated Amount" contained in Section 11.1 of the Credit Agreement:
"Stock Pledge Agreement" shall mean the Stock Pledge Agreement
dated as of August 1, 1998, between the Borrower and the Lender, as
amended, modified or supplemented from time to time.
(xxv) The following definitions are added after the definition
of "Taxes" contained in Section 11.1 of the Credit Agreement:
"Interim Loan" shall have the meaning provided in Section
1.1(c).
"Interim Loan Commitment" shall mean the agreement of the
Lender to make Temporary Revolving Loans in the aggregate amount
outstanding from time to time not in excess of $1,000.000.
"Interim Loan Maturity Date" shall mean December 31, 1998.
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"Interim Note" shall have the meaning provided in Section
1.5(b).
(xxvi) The notice information for the Borrower contained in
Section 12.3 of the Credit Agreement and opposite the signature line on page 72
of the Credit Agreement is deleted and the following is substituted therefor:
SEMX Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxx and Xx. Xxxxxxx Sages
Tel: 000.000.0000 (x 111)
Fax: 000.000.0000
(xxvii) The following is added after the notice information
for the Borrower contained in Section 12.3 of the Credit Agreement:
-and-
Salon, Marrow & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Salon
Tel.: 000.000.0000
Fax: 000.000.0000
(xxviii) The phrase "First Union Bank of Connecticut"
contained in Section 12.3 of the Credit Agreement is deleted and the phrase
"First Union National Bank" is substituted therefor.
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(xxix) The following is added after the notice information
contained in Section 12.3 of the Credit Agreement:
- and -
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx - NC 0630
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
- and -
Xxxxxxxx & Xxxx LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
(xxx) The Loan Agreement dated June 19, 1998, between the
Borrower and the Lender is rescinded and of no force and effect.
(xxxi) The Replacement Promissory Note in the form of the
attached Exhibit B-3 is deemed attached to the Credit Agreement as Exhibit B-3.
(b) Modification to Other Credit Documents. Simultaneously herewith,
the Borrower is delivering to the Lender the Allonges as set forth in Section
2(c) and (d) below.
2. Conditions Precedent. The obligation of the Lender under this
Agreement is subject to the receipt and review, to the satisfaction of the
Lender, of the following:
(a) this Agreement duly executed by the parties hereto;
(b) the $1,000,000 Replacement Promissory Note duly drawn to
the order of the Lender;
(c) the First Allonge to $21,000,000 Term Promissory Note
duly drawn to the order of the Lender;
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(d) the First Allonge to $15,000,000 Revolving Promissory
Note duly drawn to the order of the Lender;
(e) the First Amendment to Participation Agreement;
(f) the Stock Pledge Agreement;
(g) the Debtor's Questionnaire for the Borrower and each
Subsidiary Guarantor in the form of the attached Exhibit
"1";
(h) Secretary's Certificate of the Borrower and each of the
Subsidiary Guarantors;
(i) Copy of the Current Report on Form 10-Q filed by the
Borrower with the Securities and Exchange Commission;
(j) Amendment Statements on Form UCC-3; and
(k) such other agreements and instruments as the Lender
deems necessary.
3. Consent to Change of Name. The Lender hereby consents to the
change of name by the Borrower from "Semiconductor Packaging Materials Co.,
Inc." to SEMX Corp.
4. Appraisal; Audits. (a) The Borrower agrees to retain at its
expense, within 30 days after the date of this Agreement, subject to the
reasonable approval of the Lender, a reputable appraiser, to conduct appraisals
of the Borrower's fixed assets (on a fair market value basis and an orderly
liquidation basis) and to supply to Lender a complete copy of such appraisals no
later than 90 days after the date of this Agreement.
(b) Within 30 days after the date of this Agreement, the
Borrower agrees to allow the Lender, or its designee, to conduct an audit of the
Borrower's current assets (i.e., accounts receivable and inventory), and to
cooperate fully with respect thereto, the cost of which audit shall be deemed
one of the "Obligations" and which shall be borne by the Borrower.
5. Reaffirmation by the Borrower. The Borrower acknowledges that (a)
it is legally, validly and enforceably indebted to the Lender under the
Revolving Note, the Interim Note and the Term Note, without defense,
counterclaim or offset, (b) it is legally, validly and enforceably liable to the
Lender for all costs and expenses of collection and attorneys' fees related to
or in any way arising out of this Agreement, the Credit Agreement, the Revolving
Note, the Interim Note, the Term Note, and the other Credit Documents, and (c)
as of the date hereof, the amount outstanding under (x) the Revolving Note is
$11,554,932.98 (consisting of $11,525,000.00 principal and $29,932.98 accrued
interest), (y) the Interim Note is $1,000,000.00 (consisting of $1,000,000
principal and $0 accrued interest), and (z) the Term
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Note is $15,086,357.77 (consisting of $15,050,000.00 principal and $36,357.77
accrued interest), and the undrawn amount under the Letter of Credit is
$2,958,500.00 . Except as modified by this Agreement, the Borrower hereby
remakes all representations, warranties and covenants contained in the Credit
Documents, and acknowledges that the liens and security interests granted
pursuant to the Security Documents encompass the indebtedness of the Revolving
Note, the Interim Note and the Term Note. The Borrower represents that except as
described on Current Report on Form 10-Q for the period ended June 30,1998 of
the Borrower which was filed with the Securities and Exchange Commission, there
are no pending, or to the Borrower's knowledge threatened, legal proceedings to
which the Borrower is a party, which materially or adversely affect the
transactions contemplated by this Agreement or the ability of the Borrower or
any Subsidiary Guarantor to conduct its business.
6. Reaffirmation by the Subsidiary Guarantors. Each Subsidiary
Guarantor acknowledges that it is legally and validly indebted to the Lender
under the Subsidiary Guaranty without defense, counterclaim or offset, and
affirms that the Subsidiary Guaranty remains in full force and effect and
includes, without limitation, the indebtedness, liabilities and obligations
arising under, or in any way connected with, the Credit Agreement, the Revolving
Note, the Interim Note, the Term Note, this Agreement and the other Credit
Documents, whether now existing or hereafter arising and acknowledges that the
liens and security interests granted pursuant to the Security Documents to which
such Subsidiary Guarantor is a party encompasses the foregoing indebtedness and
obligations.
7. Other Representations and Agreements by Borrower and Subsidiary
Guarantors. The Borrower and each of the Subsidiary Guarantors represents and
confirms that no Default or Event of Default has occurred and is continuing, and
that, other than as set forth herein, the Lender has not given its consent to or
waived any Default or Event of Default and the Credit Agreement and the other
Credit Documents are in full force and effect and enforceable against the
Borrower and the Subsidiary Guarantors in accordance with the terms thereof. The
Borrower and each Subsidiary Guarantor confirms all of the rights and remedies
of Lender under the Credit Documents, including, without limitation, any power
of attorney granted to Lender under any of the Credit Documents. The Borrower
and each of the Subsidiary Guarantors acknowledges that the Credit Agreement,
the Credit Documents and this Agreement (all as previously amended, modified or
supplemented from time to time) constitute the entire agreement and
understanding between Lender and Borrower and each Subsidiary Guarantor and
supersedes all prior agreements, conversations and understandings relating to
the subject matter hereof. The Borrower and each of the Subsidiary Guarantors
represents and confirms that as of the date hereof, neither the Borrower nor any
of the Subsidiary Guarantors has any claim or defense (and the Borrower and the
Subsidiary Guarantors each hereby waives every claim and defense) against the
Lender arising out of or relating to the Credit Agreement, this Agreement and
the other Credit Documents or the making, administration or enforcement of the
Revolving Note, the Interim Note, the Term Note and the Loans and the remedies
provided for under the Credit Agreements.
8. Forbearance and Waiver; Release. (a) In consideration of the
execution, delivery and performance of this Agreement by the Borrower and the
Subsidiary Guarantors, the
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Lender agrees (x) to forbear from requiring the Borrower to make regularly
scheduled payments under the Term Loan from the date of this Agreement to the
earliest to occur (a "Termination Event") of (I) January 1, 1999, (II) the
occurrence of an Event of Default under Section 10.5, 10.7 or 10.9 of the Credit
Agreement, and (III) the occurrence of a breach of this Agreement by the
Borrower or any of the Subsidiary Guarantors, and all such forborn payments
shall be due and payable on the Term Loan Maturity Date, and (y) to waive until
the occurrence of a Termination Event the Borrower's compliance with the
financial covenants contained in Sections 9.8, 9.9, 9.10 and 9.11 of the Credit
Agreement.
(b) IN CONSIDERATION OF THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY THE BORROWER AND THE SUBSIDIARY GUARANTORS, THE
BORROWER AND EACH OF THE SUBSIDIARY GUARANTORS RELEASES, REMISES AND DISCHARGES
THE LENDER FROM ALL ACTIONS, CAUSES OF ACTION, SUITS, REBORROWINGS,
CONTROVERSIES, AGREEMENTS, PROMISES, DAMAGES, JUDGEMENTS, CLAIMS AND DEMANDS IN
LAW OR IN EQUITY WHICH ANY OF THEM EVER HAD, NOW HAS OR WHICH ANY OF THEM SHALL
HAVE AGAINST THE LENDER ARISING OUT OF ANY ACTIONOF THE LENDER OCCURRING PRIOR
TO THE DATE OF THIS AGREEMENT.
9. Prejudgment Remedy Waiver; Waivers. THE BORROWER AND EACH OF THE
SUBSIDIARY GUARANTORS ACKNOWLEDGES THAT THE LOANS AND THE TRANSACTIONS EVIDENCED
BY THE REVOLVING NOTE, THE INTERIM NOTE, THE TERM NOTE, THE CREDIT AGREEMENT,
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS ARE COMMERCIAL TRANSACTIONS AND
EACH WAIVES ITS RIGHTS TO NOTICE AND HEARING PRIOR TO THE ISSUANCE OF ANY
PREJUDGMENT REMEDY, OR AS OTHERWISE ALLOWED BY ANY STATE OR FEDERAL LAW WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE LENDER MAY DESIRE TO USE, AND
FURTHER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT,
PROTEST AND NOTICE OF ANY RENEWALS OR EXTENSIONS. THE BORROWER AND EACH OF THE
SUBSIDIARY GUARANTORS ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
WILLINGLY, VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
10. Jury Trial Waiver. THE BORROWER AND EACH OF THE SUBSIDIARY
GUARANTORS WAIVES TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING
ON ANY MATTER ARISING IN CONNECTION WITH, OR IN ANY WAY RELATED TO, THE
FINANCING TRANSACTIONS OF WHICH THE CREDIT AGREEMENT, THE REVOLVING NOTE, THE
INTERIM NOTE, THE TERM NOTE, THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS IS A
PART OR THE ENFORCEMENT OF ANY OF THE LENDER'S RIGHTS. THE BORROWER AND EACH OF
THE SUBSIDIARY GUARANTORS ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
WILLINGLY, VOLUNTARILY AND WITHOUT
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DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS
WAIVER WITH ITS ATTORNEYS.
11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Connecticut (without
regard to such State's conflicts of law principles).
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The parties have executed this Agreement as of the date first written
above.
Borrower:
SEMX CORPORATION
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
Subsidiary Guarantors:
AMERICAN SILICON PRODUCTS, INC.
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
XXXXXX COMPANY, INC.
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
RETCONN INCORPORATED
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
TYPE III, INC.
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
S.T. ELECTRONICS, INC.
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
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SPM HOLDINGS CORPORATION
By /s/ Xxxxxxx X. Sages
--------------------------
Name: Xxxxxxx X. Sages
Title: Secretary
Lender:
FIRST UNION NATIONAL BANK
By /s/ Xxxxx Xxxxxxxxx, Xx.
--------------------------
Name: Xxxxx Xxxxxxxxx, Xx.
Title: Senior Vice President
