EXHIBIT 10.66
SEVENTH AMENDMENT AND FORBEARANCE AGREEMENT
AGREEMENT, made as of June 29, 1999, among SEMX CORPORATION
(formerly known as Semiconductor Packaging Materials Co., Inc.) a Delaware
corporation, (the "Borrower") and AMERICAN SILICON PRODUCTS, INC. ("ASP"), a
Delaware corporation, XXXXXX COMPANY, INC., a California corporation, TYPE III,
INC., a California corporation, SPM HOLDINGS CORPORATION ("SPM Holdings"), a
Delaware corporation, AMERICAN SILICON PRODUCTS, BV ("ASP BV") a Netherland
corporation, THERMAL PACKAGING SOLUTIONS, INC. ("TPS") a Nevada corporation,
(collectively, the "Subsidiary Guarantors") and FIRST UNION NATIONAL BANK, a
national banking association as Lender and agent for Fleet National Bank (the
"Lender").
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. In order to permit the Borrower to complete the sale of its wafer
reclamation divisions and fully repay the bank indebtedness, including the
Interim Loan, Revolving Loan and First Union National Bank's mortgage loans and
equipment leases, the Borrower and the Subsidiary Guarantors have requested that
the Lender: (i) extend the maturity of the Interim Note to August 31, 1999; and
(ii) extend the maturity of the Revolving Loan from June 30, 1999 to August 31,
1999.
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. 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 shall be duly executed by the parties
hereto;
(b) Borrower shall deliver an Assistant Secretary's
Certificate of the Borrower and each of the Subsidiary
Guarantors authorizing this transaction;
(c) Borrower shall deliver a true and complete copy of the
March 31, 1999 Report on Form 10-Q within three (3) days
after filing by the Borrower with the Securities and
Exchange Commission;
(d) Counsel for the Borrower and Subsidiary Guarantors will
deliver their opinion that this Agreement and the
documents referred to herein are authorized, duly
executed and enforceable against their clients;
(e) The Borrower shall have paid all of the current and past
expenses and fees as provided in Section 19;
(f) Simultaneously herewith Borrower shall pay a $50,000. as
fee agreed to previously in the Sixth Amendment and
Forbearance Agreement;
(g) Simultaneously herewith Borrower shall pay an extension
fee in the sum of $35,000.; and
(h) Borrower shall provide such other agreements and
instruments as the Lender reasonably deems necessary to
carry out the terms and provisions of this Agreement.
2. 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) Modification to Credit Agreement. Section 11.1 is hereby
modified to provide that the following terms will have the following revised
definitions:
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"Interim Loan Maturity Date: shall mean August 31, 1999.
"Revolving Loan Maturity Date" shall mean August 31, 1999.
3. Reaffirmation by the Borrower. The Borrower acknowledges that (a)
it is legally, validly and enforceably indebted to Lender under the Revolving
Note and the Interim Note, without offset, claim, defense, counterclaim or right
of recoupment, (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 and the other Credit Documents, and (c) as of the date hereof,
the principal amount outstanding under (w) the Revolving Note is $5,627,519.
plus interest; (x) the undrawn amount under the Letter of Credit is 5,000,000.
Singapore Dollars; (y) the Interim Note is $976,190. plus interest; and (z) the
amount outstanding under the Mortgage Loan made by First Union to Borrower is
$1,305,333.23. In addition, Fleet National Bank's affiliate, Fleet Precious
Metals, Inc., has a separate facility to the Borrower in the amount of $983,003.
as of June 28, 1999 pursuant to a consignment agreement (the "Consignment
Agreement") in connection with the consignment of gold (the "Gold Liability")
and Lender has a separate equipment leasing facility to Semiconductor Packaging
Materials Co. Inc. dated October 24, 1995 which have amounts outstanding under
Schedule 1 of $231,193.09, Schedule 2 of $245,751.97 and Schedule 3 of
$450,949.83 plus any applicable interest, fees and other costs (the "Lease
Liability"), all of the separate obligations of the Borrower and Subsidiary
Guarantors under the Gold Liability and the Lease Liability are due and owing
without offset, claim, defense, counterclaim or right of recoupment. 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 and the Interim Note. The
Borrower represents that except as described on the Current Report for the
period ended March 31, 1999 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
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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.
4. Payments. Borrower shall continue to make payments under the
Interim Note in the principal sum of $11,905. per month plus interest on the
unpaid principal amount thereof at the rate and calculated in the manner set
forth in the Credit Agreement commencing on July 1, 1999, and monthly thereafter
on the first day of each month.
5. 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 is or 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, 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 and
remain in full force and effect.
6. Other Representations and Agreements by Borrower and Subsidiary
Guarantors. The parties agree that to the best of their knowledge they are not
aware that any Default or Event of Default has occurred and is continuing, other
than as set forth herein on Schedule 6 annexed hereto and made a part hereof and
that the Lender has not given its consent to or waived any Default or Event of
Default other than set forth on Schedule . The Borrower and the Subsidiary
Guarantors represent, warrant and confirm that 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
except to the extent that the Borrower and Subsidiary Guarantors make no
representation or warranty as to the effectiveness of the ASPBV guaranty under
Dutch law. The Borrower and each Subsidiary Guarantor confirm 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
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Documents. The parties acknowledge and agree that the Credit Agreement, the
Credit Documents, the Consignment Agreement and this Agreement (all as
previously amended, modified or supplemented in writing 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 parties hereto
acknowledge and agree that the parties hereto have not made any representation
except as expressly set forth in this Agreement and even if any such
representations were made, the parties have not relied on any such
representation except as expressly set forth in this Agreement. The Borrower and
each of the Subsidiary Guarantors represent and confirm that as of the date
hereof, neither the Borrower nor any of the Subsidiary Guarantors has any claim
or defense (and to the extent any such defense exists 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 and the Loans and the remedies provided for
under the Credit Agreements.
7. Release of Lender.
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 RELEASE, REMISE AND DISCHARGE THE LENDER ITS
SUBSIDIARIES AND AFFILIATES AND ALL OF THEIR PAST AND PRESENT OFFICERS,
DIRECTORS, REPRESENTATIVES, EMPLOYEES, ATTORNEYS OF AND FROM ALL ACTIONS, CAUSES
OF ACTION, SUITS, REBORROWINGS, CONTROVERSIES, AGREEMENTS, PROMISES, DAMAGES,
JUDGMENTS, 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
ACTION OF THE LENDER OCCURRING TO AND INCLUDING THE DATE OF THIS AGREEMENT.
8. Letters of Credit. The maturity of all letters of credit issued
in connection with revolving commitment including the ISP Letter of Credit shall
not be extended for a term beyond August 31, 1999.
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9. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York (without regard to such
State's conflicts of law principles).
10. Representation. The execution and delivery of this Agreement and
all of the other Loan Documents are within the Borrowers' and each Subsidiary
Guarantor's powers, corporate or otherwise, have been duly authorized or will be
ratified by all necessary corporate action, and do not contravene, or constitute
a default under any provision of applicable law or regulation of any of its
corporate documents or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Borrowers and the Subsidiary Guarantors. The
execution and delivery of this Agreement by the Lender are within Lender's power
and has been duly authorized.
11. Acceleration. In the event that the Borrower or any Subsidiary
Guarantor defaults in the prompt payment of the aforesaid obligations or in the
due performance of or compliance with any of the terms or conditions hereof or
of the Credit Documents or if the Borrower or any Subsidiary Guarantor defaults
under any obligations to Fleet National Bank or its affiliates under the Gold
Liability or otherwise or any other loan or facility with Lender under the Lease
Liability or otherwise and after the expiration of any applicable grace, notice
and right to cure provisions in this Agreement or any applicable agreement under
which such default occurred, the Lender may declare all of the obligations in
accordance with the original terms of the Loan Documents to be immediately due
and payable.
12. Remedies. In the event of a demand or default, the Lender shall
have such rights and remedies as are provided and permitted by the Loan
Documents and applicable law.
13. Loan Documents Remain Effective. Except for any modification
specifically set forth herein or in the exhibits, the Loan Documents remain in
full force and effect. Nothing herein shall be construed as a waiver of any
rights or remedies which the Lender may have at law, equity, under the Loan
Documents, as modified hereby, or otherwise, all of which are specifically
reserved.
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14. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
15. Amendments, Etc. No amendment, modification, termination, or
waiver of any provision of this Agreement, nor consent to any departure by the
parties from this Agreement, shall in any event be effective unless the same
shall be in writing and signed by the Lender, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
16. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Lender and the Borrower, the Subsidiary Guarantors
and their respective successors and assigns, except that the Borrower and
Subsidiary Guarantor may not assign or transfer any of its rights under this
Agreement without the prior written consent of the Lender.
17. No Waiver. No delay or omission in the exercise of any power or
remedy herein provided or otherwise available to the Lender shall impair or
affect the Lender's right thereafter to exercise same, including the execution
of the Agreement.
18. Submission to Jurisdiction. (i) Any legal action or proceeding
with respect to this agreement or any document related hereto may be brought in
the courts of the State of New York or of the United States of America for the
Southern District of New York, and, by execution and delivery of this Agreement,
the Borrower and Subsidiary Guarantors hereby accept for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The parties hereto hereby irrevocably waive any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which any of them may now or hereafter have
to the bringing of any such action or proceeding in such respective
jurisdiction.
(ii) The Borrower and Subsidiary Guarantors irrevocably consent to
the service of process of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
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postage prepaid, to the Borrower at its address, and such service will become
complete three days after the date such process is so mailed.
(iii) Nothing contained in this Paragraph 21 shall affect the right
of the Lender to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Subsidiary Guarantor in any
other jurisdiction.
19. Expenses. The Borrower shall promptly pay all expenses of the
Lender with respect to: (i) the drafting, negotiation and enforcement of this
Agreement and the documents executed in connection therewith, including, but not
limited to, reasonable attorneys fees and disbursements and foreign counsel
fees; (ii) inspection and evaluation of any collateral, from time to time,
including collateral audits and appraisals; (iii) any filing, recording, title
insurance or other fees and taxes or search fees incurred in protecting,
perfecting and insuring the Lender's lien or security interest in the
Collateral; and (iv) all out of pocket expenses in connection therewith incurred
by the Lender, including, but not limited to, site visits to view and observe
the Collateral. Borrower authorizes Lender to debit any account for the payment
of any such fees and disbursements if such amounts are not paid as and when due.
20. 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 REVOLVLING NOTE, THE
INTERIM NOTE, THE TERM NOTE, THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS IS A
PARTY 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 DURESS, AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
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The parties have executed this Agreement as of the date first
written above.
Borrower:
SEMX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
Subsidiary Guarantors:
AMERICAN SILICON PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
XXXXXX COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title Chairman
TYPE III, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
SPM HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
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THERMAL PACKAGING SOLUTIONS,
INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
ASP, B.V.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
Lender:
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
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SCHEDULE 6
NONE.
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