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Exhibit 10.64
FIFTH AMENDMENT AND MODIFICATION AGREEMENT
FIFTH AMENDMENT AND MODIFICATION AGREEMENT dated as of November 23,
1999 (this "Amendment") by and among HADCO CORPORATION, a Massachusetts
corporation (the "Borrower"); the direct and indirect subsidiaries of the
Borrower listed on the signature pages hereto (collectively, the "Guarantors");
BANKBOSTON, N.A., AS AGENT (the "Agent") and BANKBOSTON, N.A., individually, and
the other lending institutions (collectively, the "Banks") listed on SCHEDULE 1
to the Amended and Restated Revolving Credit Agreement dated as of December 8,
1997 (as amended and in effect from time to time, the "Credit Agreement") among
the Borrower, the Banks and the Agent. Terms not otherwise defined herein which
are defined in the Credit Agreement shall have the respective meanings assigned
to such terms in the Credit Agreement, as amended hereby.
WHEREAS, the Borrower has requested that the Agent and the Banks amend
certain provisions of the Credit Agreement; and
WHEREAS, upon the terms and subject to the conditions contained herein,
the Agent and the Banks are willing to amend such provisions of the Credit
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement, the other Loan Documents and this Amendment and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SS.1. AMENDMENT OF SS.1.1 OF THE CREDIT AGREEMENT. Section 1.1 of the
Credit Agreement is hereby amended by:
(a) inserting the following new definitions in the proper
alphabetical order:
"FIFTH AMENDMENT EFFECTIVE DATE. The "Effective Date", as
defined in the Fifth Amendment and Modification Agreement dated as of
November 23, 1999 among the Borrower, the Guarantors, the Agent and the
Banks."
"SECTION 9.5.2 SUBSIDIARY. Any Subsidiary acquired pursuant to
Section 9.5.2 that is organized under the laws of a jurisdiction other
than the United States of America and the States (or the District of
Columbia) thereof."
(b) deleting the definition of "Guarantors" in its entirety
and substituting in lieu thereof the following new definition:
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"GUARANTORS. (i) Hadco Santa Xxxxx, Hadco Phoenix, CCIR of
Texas, and, until the completion of the Restructuring Transaction, CCIR
of California; and (ii) any other direct or indirect Subsidiary of the
Borrower (other than Hadco FSC, New Zycon, Hadco Scotland, Hadco
Ireland, Hadco Malaysia, Hadco Singapore, New Continental, CCIR
International and any Section 9.5.2 Subsidiary)."
SS.2. AMENDMENT OF SS.9.1(i) OF THE CREDIT AGREEMENT. Section 9.1(i) of
the Credit Agreement is hereby deleted in its entirety and the following new
ss.9.1(i) is hereby substituted in lieu thereof:
"(i) Indebtedness of (i) a Guarantor, following its execution
and delivery of its Guaranty to the Agent, to the Borrower; (ii) Hadco
FSC to the Borrower in an aggregate amount not to exceed $2,000,000;
(iii) Hadco Malaysia and the Section 9.5.2 Subsidiaries to the Borrower
in an aggregate amount for all such entities not to exceed $65,000,000,
PROVIDED, HOWEVER, that no more than $25,000,000 may be incurred by
Hadco Malaysia in any one fiscal year of the Borrower and if during any
such fiscal year the amount of such Indebtedness permitted to be
incurred by Hadco Malaysia is not so utilized, such unutilized amount
may be utilized in the next succeeding fiscal year; PROVIDED, FURTHER,
that no more than $15,000,000 in the aggregate may be incurred by the
Section 9.5.2 Subsidiaries and any such Indebtedness shall be evidenced
by a duly executed promissory note (A) issued by such Section 9.5.2
Subsidiary to the Borrower and (B) duly endorsed to the Agent pursuant
to the Security Agreement; (iv) New Zycon or New Continental to the
Borrower in an aggregate amount, for each such company, not to exceed
$50,000; (v) CCIR International to the Borrower in an aggregate amount
not to exceed $2,000,000; and (vi) Hadco Scotland, Hadco Singapore
and/or Hadco Ireland to the Borrower in an aggregate amount for all
such entities not to exceed $5,000,000;".
SS.3. AMENDMENT OF SS.9.5.2 OF THE CREDIT AGREEMENT. Section 9.5.2 of
the Credit Agreement is hereby deleted in its entirety and the following new
ss.9.5.2 is hereby substituted in lieu thereof:
"9.5.2 ACQUISITIONS. The Borrower will not, and will not
permit any of the other Transaction Parties to agree to or effect any
asset acquisition or stock acquisition (other than the acquisition of
assets in the ordinary course of business consistent with past
practices); PROVIDED, HOWEVER, that so long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the
Borrower may make one or more asset or stock acquisitions in an amount
not to exceed $30,000,000 in the aggregate; PROVIDED, HOWEVER, that (i)
the business to be acquired (the "Target") is in the same or similar
lines of business as the Borrower and the other Transaction Parties,
(ii) after giving effect to such Permitted Acquisition, and assuming
full funding of such Permitted Acquisition
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on the initial Drawdown Date of the sole or initial Loan, the proceeds
of which are to be used to fund all or any portion of such Permitted
Acquisition, the ratio of Consolidated Funded Debt as at the most
recent fiscal quarter end of the Borrower to EBITDA for the four
consecutive fiscal quarters of the Borrower ending with such quarter
end (as shown on a PRO FORMA basis based upon (A) the most recently
delivered financial statements of the Borrower and its Subsidiaries
delivered in accordance with ss.8.4 and (B) audited financial
statements for such Target as at the most recent fiscal quarter end of
the Borrower which are accompanied by an unqualified audited opinion
letter from Xxxxxx Xxxxxxxx LLP or another nationally recognized
accounting firm satisfactory to the Agent and the Majority Banks or
which are otherwise satisfactory to the Agent and the Majority Banks)
would not exceed 3.25:1.0; and (iii) contemporaneously with the closing
of such Permitted Acquisition, the Borrower shall provide to the Agent
and the Banks a compliance certificate in the form of EXHIBIT C, duly
certified by the principal financial or accounting officer of the
Borrower, indicating the Borrower's compliance with (x) the financial
covenants contained in ss.10 immediately prior to and, on A Pro FORma
basis, immediately following such Permitted Acquisition and (y) on a
PRO FORMA basis, the requirement set forth in ss.9.5.2(ii); anD
PROVIDED FURTHER that, contemporaneously with the closing of such
Permitted Acquisition, the Borrower shall (i) take such action as may
be necessary or advisable in the opinion of the Agent to pledge or
cause to be pledged to the Agent, for the benefit of the Banks and the
Agent, on a perfected, first-priority basis all of the capital stock or
other equity interests of such Subsidiary (except that 65% (or such
larger percentage as may be permitted without creating material adverse
tax consequences for the Borrower under the Code) of the capital stock
of such Subsidiary that is organized under the laws of a jurisdiction
other than the United States of America and the States (or the District
of Columbia) thereof shall be pledged) pursuant to a pledge agreement
in form and substance satisfactory to the Agent, which such pledge
agreement shall be a Stock Pledge Agreement and a Security Document
hereunder, (ii) cause any such Subsidiary which is or is to become a
Guarantor to guaranty all of the Obligations hereunder pursuant to a
Guaranty in the form of EXHIBIT E, which Guaranty shall be a Guaranty
and Security Document hereunder, (iii) cause any such Subsidiary which
is or is to become a Guarantor to take all steps as may be necessary or
advisable in the opinion of the Agent to grant to the Agent, for the
benefit of the Banks and the Agent, a first priority, perfected
security interest in substantially all of its assets as collateral
security for such guaranty, pursuant to security documents, mortgages,
pledges and other documents in form and substance satisfactory to the
Agent, each of which documents shall be Security Documents hereunder;
and (iv) deliver to the Agent all such evidence of corporate
authorization, legal opinions (including local counsel opinions where
applicable), and other documentation as
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the Agent may request. To the extent that any such Permitted
Acquisition alters the accuracy or completeness of any of the Schedules
hereto, the Borrower shall deliver to the Agent, contemporaneously with
the delivery of the loan documentation referred to above, revised
schedules reflecting changes resulting from such Permitted Acquisition;
PROVIDED that the Agent shall only be required to accept such revised
schedules, and such revised schedules shall only become part of this
Credit Agreement, in the event that the Borrower shall have taken any
and all action necessary to bring such newly acquired Subsidiary into
compliance with each representation and warranty set forth herein,
including in ss.7 hereof; and PROVIDED FURTHER that no change resulting
from any Permitted Acquisition would have a material adverse effect on
the Borrower and the other Transaction Parties, taken as a whole."
Ss.4. AMENDMENT OF SS.9.10 OF THE CREDIT AGREEMENT. Section 9.10 of the
Credit Agreement is hereby amended by deleting the last sentence thereof in its
entirety and substituting in lieu thereof the following:
"Neither the Borrower nor any of the other Transaction Parties
shall (a) without limiting the Indebtedness and Investment limitations
set forth in ss.ss.9.1(i), 9.3(f) and 9.3(g), transfer assets to Hadco
Scotland, Hadco Ireland, Hadco Singapore (following the incorporation
thereof), Hadco Malaysia or any Section 9.5.2 Subsidiary in an
aggregate amount exceeding, for all such entities, $2,000,000 or (b)
permit Hadco Scotland, Hadco Ireland, Hadco Singapore (following the
incorporation thereof), Hadco Malaysia or any Section 9.5.2 Subsidiary
at any one time to own, hold or have an interest in, property or
assets, whether tangible or intangible and including cash and cash
equivalents, in excess of those reasonably required for the conduct of
each such entity's business operations in the ordinary course."
SS.5. CONDITIONS TO EFFECTIVENESS. This Amendment shall be deemed to be
effective as of the date first written above (the "Effective Date") upon the
Agent's receipt of the following, each in form and substance satisfactory to the
Agent:
(a) facsimile copies of original counterparts (to be followed
promptly by original counterparts) or original counterparts of this
Amendment, duly executed by each of the Borrower, the Guarantors, the
Agent and the Majority Banks;
(b) each of the Borrower and the Guarantors shall have
certified (a) that its charter or other incorporation documents and
by-laws have not been amended since the date such charter or other
incorporation documents and by-laws were certified to the Agent (or
shall deliver the same if amended), (b) that it is in good standing or
is authorized to do business in its state of incorporation and in each
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state in which it does business, (c) resolutions of its Board of
Directors authorizing this Amendment and the transactions contemplated
hereby, and (d) that its Perfection Certificate is true and correct in
all material respects as of the date hereof (or shall deliver an
amended and restated Perfection Certificate);
(c) such other documents, agreements and items as the Agent
may require.
SS.6. REPRESENTATIONS AND WARRANTIES; NO DEFAULT; AUTHORIZATION. Each
of the Borrower and the Guarantors hereby represents and warrants to each of the
Agent and the Banks as follows:
(a) Each of the representations and warranties of the Borrower
and the Guarantors contained in the Credit Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement, the other Loan Documents or this
Amendment was true as of the date as of which it was made and is true
as of the Effective Date (except to the extent of changes resulting
from transactions contemplated or permitted by the Credit Agreement, as
amended hereby, and the other Loan Documents and changes occurring in
the ordinary course of business that singly or in the aggregate are not
materially adverse and to the extent that such representations and
warranties relate expressly to an earlier date), and no Default or
Event of Default has occurred and is continuing as of the date of this
Amendment or would occur after giving effect to the transactions
contemplated by this Amendment; and
(b) This Amendment has been duly authorized, executed and
delivered by the Borrower and each of the Guarantors, and shall be in
full force and effect upon the satisfaction of the conditions set forth
in ss.5 hereof, and the agreements of the Borrower and each of the
Guarantors contained herein, in the Credit Agreement as herein amended,
or in the other Loan Documents respectively, constitute the legal,
valid and binding obligations of the Borrower and each of the
Guarantors party hereto or thereto, enforceable against the Borrower or
such Guarantor, in accordance with their respective terms, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any proceeding
therefor may be brought.
SS.7. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. All
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references in the Credit Agreement or such other Loan Documents or in any
related agreement or instrument to the Credit Agreement or such other Loan
Documents shall hereafter refer to such agreements as amended hereby, pursuant
to the provisions of the Credit Agreement.
SS.8. NO PRESENT CLAIMS. In order to eliminate any possibility that any
past conditions, acts, omissions, events, circumstances or matters would impair
or otherwise adversely affect any of the rights, interests, contracts,
collateral security or remedies of the Agent or any of the Banks, each of the
Borrower and the Guarantors hereby acknowledges and agrees that: (i) neither it
nor any of the other Transaction Parties has any claim or cause of action
against the Agent, any of the Banks or any of their directors, officers,
employees or agents; (ii) neither it nor any of the other Transaction Parties
has any offset right, counterclaim or defense of any kind against any of its
obligations, indebtedness or liabilities to the Agent and/or the Banks,
including, without limitation, the Obligations; and (iii) each of the Agent and
the Banks has heretofore properly performed and satisfied in a timely manner all
of its obligations to each of the Borrower and the other Transaction Parties.
SS.9. EXPENSES. Without limiting the expense reimbursement requirements
set forth in ss.16 of the Credit Agreement, the Borrower agrees to pay on demand
all costs and expenses, including reasonable attorneys' fees, of the Agent
incurred in connection with this Amendment.
SS.10. NO IMPLIED WAIVER, ETC. Except as expressly provided herein,
nothing contained herein shall constitute a waiver of, impair or otherwise
affect any of the Obligations, any other obligations of the Borrower or any of
the Transaction Parties or any right of the Agent or the Banks consequent
thereon. The waivers and consents provided herein are limited strictly to their
terms. Neither the Agent nor any of the Banks shall have any obligation to issue
any further waiver or consent with respect to the subject matter hereof or any
other matter.
SS.11. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
SS.12. GOVERNING LAW. THIS AMENDMENT SHALL FOR ALL PURPOSES BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CHOICE OR CONFLICTS OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
a document under seal as of the date first above written.
HADCO CORPORATION
By: /s/ X. Xxxxxx Bitter
-----------------------------------
Name: X. Xxxxxx Bitter
Title: CFO/Treasurer, Sr. Vice
President
BANKBOSTON, N.A., individually and
as Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxx
Title: Group Vice President Title: Vice President
BANK ONE, N.A. (f/k/a The First
National Bank Of Chicago)
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Vice President
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KEYBANK NATIONAL ASSOCIATION.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Portfolio Officer
THE BANK OF NOVA SCOTIA
By: /s/ X.X. Xxxxxxx
-----------------------------------
Name: X.X. Xxxxxxx
Title: Authorized Signatory
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA
By: /s/ W. Xxxxx Xxxxxx
-----------------------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: V.P.
USTRUST
By: Xxxxxxx, X.X.
-----------------------------------
Name: Xxxxxxx, X.X.
Title: Vice President
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FLEET BANK-NH
By: /s/ Xxxxxx Clatorre
-----------------------------------
Name: Xxxxxx Clatorre
Title: Vice President
FIRST UNION NATIONAL BANK,
successor by merger to CORESTATES
BANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ R. Xxxx Xxxxxxxx
-----------------------------------
Name: R. Xxxx Xxxxxxxx
Title: Vice President
CITIZENS BANK NEW HAMPSHIRE
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
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Each of the undersigned hereby acknowledges the foregoing Amendment as of the
Effective Date and agrees that its obligations under the Guaranty to which it is
a party will extend to the Agreement, as so amended, and the other Loan
Documents, as so amended.
HADCO SANTA XXXXX, INC.
By: /s/ X. Xxxxxx Bitter
-----------------------------------
Title: Treasurer
HADCO PHOENIX, INC.
By: /s/ X. Xxxxxx Bitter
-----------------------------------
Title: Treasurer
CCIR OF CALIFORNIA CORP.
By: /s/ X. Xxxxxx Bitter
-----------------------------------
Title: Treasurer
CCIR OF TEXAS CORP.
By: /s/ X. Xxxxxx Bitter
-----------------------------------
Title: Treasurer
