AMENDMENT AND WAIVER
to
CREDIT AGREEMENT
This Amendment and Waiver to Credit Agreement ("Amendment") is dated as
of December 20, 1999 by the BANKS listed on the signature pages hereof (the
"Banks") and EFTC CORPORATION.
WITNESSETH
WHEREAS, EFTC Corporation (the "Borrower"), the Banks and Bank One,
Colorado, N.A., as Agent (the "Agent"), are parties to a Credit Agreement dated
as of September 30, 1997, as amended by the Restated and Amended Credit
Agreement dated as of March 12, 1999, as amended (the "Credit Agreement")
(capitalized terms used herein that are not otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement); and
WHEREAS, the Borrower has requested an extension of the Maturity Date
and the amendment of certain provisions of the Credit Agreement.
NOW THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Amendments. Upon and after the Amendment Effective Date
(as defined below)
a) The defined term "Applicable Margin" in Section 1.1 of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"Applicable Margin" means 2.25%.
b) The defined term "Eligible Account Receivable" in Section
1.1 of the Credit Agreement is amended by adding the following proviso
to the end of subsection (viii):
provided, however, that Accounts Receivables from Honeywell, Inc. that
are otherwise Eligible Accounts Receivables, will not be excluded for
failing to comply with this subsection (viii);
c) The defined term "Maturity Date" in Section 1.1 of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"Maturity Date" means the first to occur of (i) March 30, 2000
and (ii) the date on which the due date of the Loans has been
accelerated and payment demanded by the Banks by reason of an
Event of Default pursuant to Article VI.
d) The defined term "Maximum Revolving Credit Amount" in
Section 1.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
"Maximum Revolving Credit Amount" means the lesser of (i) the
Revolving Loans Commitment in effect at the time of
determination or (ii) the Borrowing Base in effect at the time
of determination.
e) The defined term "Revolving Loans Commitment" in Section
1.1 of the Credit Agreement is amended and restated in its entirety to
read as follows:
"Revolving Loans Commitment" means the commitment of the Banks
to Advance Revolving Loans and Swing Loans to the Borrower or
to issue Letters of Credit for the account of the Borrower
from time to time as provided in Section 2.1 in the aggregate
amounts as follows:
On and after Aggregate Commitment
December 31, 1999 $35,000,000.00
January 10, 2000 $34,000,000.00
February 1, 2000 $33,000,000.00
March 1, 2000 $32,000,000.00
f) The defined term "Revolving Loans Scheduled Maturity Date"
in Section 1.1 of the Credit Agreement is amended and restated in its
entirety to read as follows:
"Revolving Loans Scheduled Maturity Date" means March 30, 2000.
g) The defined term "Subordinated Debt" in Section 1.1 of the
Credit Agreement is amended in its entirety to read as follows:
"Subordinated Debt" means the (i) the Xxxxxxx Subordinated
Notes, (ii) the promissory note dated November 11, 1999 issued
by the Borrower to the Xxxxxxx Family Limited Partnership I
pursuant to the Note Agreement dated as of November 11, 1999,
and (iii) any other Debt of the Borrower that is subordinated
on terms and conditions, and that is subject to other terms
and conditions, satisfactory in form and substance to the
Required Banks.
h) Section 5.1 of the Credit Agreement is amended by the
addition of a new subsection (u) that shall read in its entirety as
follows:
(u) Consultant. On or after March 1, 2000, the Agent
may retain a consultant of its choice to review the Borrower's
and Guarantors' financial statements, agings, facilities,
business plans, forecasts, proposed debt and equity offerings
and, among other things, assess the going concern value and
viability of the Borrower and the Guarantors. Such review
shall be in scope and detail satisfactory to the Agent. The
Borrower shall, and shall cause the Guarantors, to cooperate
fully with such consultant, and its agents and employees. Upon
reasonable notice to the Borrower, the consultant shall have
unrestricted access to the books and records during normal
business hours of the Borrower and Guarantors, and their
facilities and employees. The reports, conclusions and
analysis of the consultant shall be delivered only to the
Agent for the consideration and use by the Banks. The Borrower
shall promptly pay or reimburse the Agent for the actual cost
of the consultant's review and report, including all
out-of-pocket expenses for travel, food and lodging.
i) Schedule 2.1 of the Credit Agreement is amended and
restated in the form of the attached Exhibit A and the Commitments of
the Banks shall be reduced in the amounts and at the times set forth in
such Schedule 2.1, as amended.
j) The Agent shall from time to time provide to Borrower
revisions of Exhibit B-4 to the Credit Agreement, the Form of Borrowing
Base Certificate, that shall accommodate the amendments to the
Borrowing Base calculation that arise out of this Amendment. The
Borrower shall utilize the revised Form of Borrowing Base Certificate
on and after its receipt thereof.
2. Waiver. Pursuant to Section 8.1 of the Credit Agreement, the Banks
hereby waive the financial covenants set forth in Sections 5.2(a) of the Credit
Agreement for the period ending December 31, 1999.
3. Conditions Precedent. In the judgement of the Agent, each of the
following conditions shall have been satisfied:
(a) A Reaffirmation of Guaranty, in form and substance
satisfactory to the Agent, shall have been executed and
delivered to the Agent by all of the Guarantors;
(b) A subordination agreement, in form and substance
satisfactory to the Agent, shall have been executed and
delivered to the Agent by Xxxxxxx X. Xxxxxxx with respect to
the Subordinated Debt;
(c) The Borrower shall have paid the Agent an Amendment Fee of
$175,000.00 for the pro rata benefit of the Banks;
(d) Amendments, satisfactory in form and substance to the
Agent, prohibiting the payment of principal under the Note
Agreement dated September 5, 1997 between the Borrower and
Xxxxxxx X. Xxxxxxx and the Note Agreement dated November 11,
1999 between the Borrower and the Xxxxxxx Family Limited
Partnership I, prior to April 30, 2000, shall have been
executed and delivered by the parties thereto;
(e) The Borrower shall have paid the Agent an Administrative
Fee of $25,000.00 for the sole benefit of the Agent; and
(f) The Borrower shall have paid the reasonable legal fees and
expenses incurred by the Agent in connection with the
preparation of this Amendment and related instruments.
4. Representations and Warranties. In order to induce the Banks to
agree to this Amendment and Waiver, the Borrower makes the following
representations and warranties, which shall survive the execution and delivery
of this Amendment and Waiver:
(a) No Event of Default has occurred and is continuing and no
Event of Default will exist immediately after giving effect to
the amendment contained herein;
(b) Each of the representations and warranties set forth in
Article IV of the Credit Agreement are true and correct as
though such representations and warranties were made at and as
of the Amendment Effective Date, except to the extent that any
such representations or warranties are made as of a specified
date or with respect to a specified period of time, in which
case such representations and warranties shall be made as of
such specified date or with respect to such specified period.
Each of the representations and warranties made under the
Credit Agreement shall survive to the extent provided therein
and not be waived by the execution and delivery of this
Amendment;
(c) The Borrower is a duly organized, validly existing
corporation and has the corporate power and authority to
execute, deliver and carry out the terms and provisions of
this Amendment, and has taken or caused to be taken all
necessary corporate action to authorize the execution,
delivery and performance of this Amendment;
(d) No consent of any other Person or filing or action by any
Governmental Authorities, is required to authorize the
execution, delivery and performance of this Amendment;
(e) This Amendment has been duly executed by a duly Authorized
Signatory on behalf of the Borrower and constitutes the legal,
valid and binding obligation of the Borrower, enforceable in
accordance with its terms, except as enforcement thereof may
be subject to the effect of any applicable (i) bankruptcy,
insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and (ii) general
principals of equity; and
(f) The execution and delivery and performance of the
agreements in this Amendment will not violate any law, statute
or regulation applicable to the Borrower or any order or
decree of any Governmental Authorities, or conflict with or
result in the breach or any contractual obligation of the
Borrower.
5. Effectiveness. The amendments and waivers to the Credit Agreement
set forth herein shall become effective as of December 30, 1999 after the Agent
shall have received this Amendment, executed and delivered by the Borrower and
the Banks and all of the conditions precedent set forth in Section 3 above, have
been satisfied (the "Amendment Effective Date").
6. Counterparts. This Amendment may be executed in counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same instrument.
7. Expenses. The Borrower agrees to pay all reasonable costs and
expenses, including filing and recording fees, incurred by the Agent in
connection with the preparation, execution and delivery of this Amendment and
Waiver and any other documents or instruments which may be delivered in
connection herewith, including without limitation, the reasonable fees and
expenses of Xxxxx, Xxxxxx & Xxxxxx LLP, counsel for the Agent.
8. Governing Law. The rights and duties of the Borrower, the Banks and
the Agent under this Amendment and Waiver shall be governed by the law of the
State of Colorado.
9. Release. The Borrower has informed the Agent that it will not pay in
full the Obligations under the Credit Agreement as of the December 30, 1999
Maturity Date set forth in the Credit Agreement prior to this Amendment. In
consideration of the amendments and waivers provided herein, the Borrower
releases and discharges the Banks and the Agent, and their respective directors,
officers, employees, agents, successors and assigns from all claims and causes
of action of any nature whatsoever, which the Borrower, its successors and
assigns ever had or have as of the date hereof against the Banks and the Agent
that arise, directly or indirectly, out of or are related to the Credit
Agreement. The Borrower acknowledges that the Obligations arising under the
Credit Agreement are not subject to any such counterclaim, offset, defense or
rights of recoupment against the Banks.
10. Ratification. The Credit Agreement, as amended by this Amendment,
is and shall continue to be in full force and effect and is hereby in all
respects confirmed, approved and ratified. Except to the extent amended hereby,
all terms and conditions of the Credit Agreement remain the same. All references
to the Credit Agreement in any of the Loan Instruments shall mean the Credit
Agreement as amended by this Amendment.
IN WITNESS WHEREOF the Banks have caused this Amendment to be duly
executed as of the date first written above.
BANK ONE, COLORADO, N.A., KEYBANK NATIONAL ASSOCIATION
as Agent and Bank
By /s/ Xxxxxx Xxxxxx By /s/ Xxxx X. Xxxxx
Xxxxxx Xxxxxx Xxxx X. Xxxxx
Vice President Senior Vice President
NATIONAL BANK OF CANADA MITSUI LEASING CAPITAL
CORPORATION
By Xxxxxx X. Xxxxxxx, Xx. By /s/ R. Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx, Xx. R. Xxxxx Xxxxxx
Vice President Senior Vice President
By /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Vice President
AGREED AND ACCEPTED:
EFTC CORPORATION
By /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Vice President
and Corporate Controller
