EXHIBIT 10.9
AMENDMENT NO. 2
TO
K*TEC ELECTRONICS HOLDING CORPORATION
CREDIT AGREEMENT
AMENDMENT NO. 2 (this "Amendment") dated as of December 19, 2001,
among K*TEC Electronics Holding Corporation (formerly known as K*TEC Electronics
Corporation), a Delaware Corporation (the "Borrower"), and Citicorp USA, Inc. as
sole Lender (as defined below) and as Administrative Agent (as defined below),
amends certain provisions of the Credit Agreement dated as of January 26, 2001
(as amended to the date hereof, the "Credit Agreement") among the Borrower, the
financial institutions from time to time party thereto as lenders (the
"Lenders"), the financial institutions from time to time party thereto as
issuers (the "Issuers") and Citicorp USA, Inc., as agent for the Lenders and
Issuers (in such capacity, the "Administrative Agent"). Capitalized terms used
herein but not defined herein are used as defined in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Issuers and the
Administrative Agent are parties to the Credit Agreement and, as of the date
hereof, the undersigned Lenders constitute the Requisite Lenders;
WHEREAS, K*TEC Electronics L.P. wishes to sell certain equipment,
valued at no more than $800,000 and described on Exhibit A hereto, to EFTC
Corporation; and
WHEREAS, the Administrative Agent and the undersigned Lenders
(constituting all the Lenders) agree, subject to certain limitations and
conditions set forth below: (a) to amend Section 8.4 (Sale of Assets) of the
Credit Agreement to permit such Asset Sale and (b) to release any and all liens
held on such assets in accordance with clause (b)(iii)(A) of Section 10.7
(Concerning the Collateral and Collateral Documents);
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and other good and valuable
consideration, the adequacy and receipt of which is hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. AMENDMENTS
(a) The Credit Agreement is, effective as of the Amendment Effective
Date, hereby amended as follows:
(i) AMENDMENT TO ARTICLE VIII (NEGATIVE COVENANTS)
(1) Section 8.4 (Sale of Assets) of the Credit Agreement is
hereby amended by deleting the "and" at the end of clause (e) thereof,
adding "and" at the end of clause (f) thereof, and inserting a new clause
(g) immediately after clause (f) thereof to read in its entirety as
follows::
(g) as long as no Default or Event of Default is
continuing or would result therefrom, an Asset Sale in respect of
the sale by K*TEC Electronics L.P. to
EFTC Corporation of certain surface-mount manufacturing equipment
used to produce printed circuit boards, described on Schedule 8.4(g)
(Certain Manufacturing Equipment) hereto, for Fair Market Value,
payable in cash upon such sale; provided, however, that with respect
to such sale pursuant to this clause (g), (i) the aggregate
consideration received for the sale of all assets sold during any
Fiscal Year shall not exceed $800,000 and (ii) all Net Cash Proceeds
of such Asset Sale are applied to the prepayment of the Obligations
to the extent required by Section 2.9 (Mandatory Prepayments).
(2) Section 8.9 (Transactions with Affiliates) of the Credit
Agreement is hereby amended by deleting the word "and" immediately before
clause (ii) thereof and inserting a comma in its place, by deleting the
word "and" immediately before clause (iii) thereof and inserting a comma
in its place, by deleting the period at the end thereof and replacing it
with the following:
and (iv) any Asset Sale pursuant to clause (g) of
Section 8.4 (Sale of Assets), provided, however, that such Asset
Sale be on a basis no less favorable to such Borrower or such
Subsidiary Guarantor as would be obtained in a comparable arm's
length transaction with a Person not an Affiliate.
(ii) AMENDMENT TO SCHEDULES
(1) A new Schedule 8.4(g) (Certain Manufacturing Equipment) to
the Credit Agreement, substantially in the form of Exhibit A hereto, shall
be inserted between Schedule 8.3 (Existing Investments) and Schedule 8.9
(Transactions with Affiliates) of the Credit Agreement.
(b) Amendment No. 1 and Waiver, dated as November 7, 2001, to the
Credit Agreement ("Amendment No. 1") is, effective as of the date hereof, hereby
amended as follows:
(1) Section 2(a)(ii)(4) of Amendment No. 1 is hereby amended
by deleting the words "Subclause (ii) of clause (b)" in the first
line thereof and replacing them with "Clause (b)".
(2) Section 2(a)(ix)(7) of Amendment No. 1 is hereby amended
by deleting the words "a new clause (ii)" in the second line thereof
and replacing them with "a new clause (iii)".
SECTION 2. RELEASE OF LIENS
Effective as of the Amendment Effective Date, the Administrative
Agent agrees to release liens held by the Administrative Agent for the benefit
of the Lenders on the assets listed on Exhibit A hereto in accordance with
clause (b)(iii)(A) of Section 10.7 (Concerning the Collateral and Collateral
Documents).
SECTION 3. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
(a) This Amendment shall become effective when, and only when, each
of the following conditions precedent shall have been satisfied (the "Amendment
Effective Date"):
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(i) Certain Documents. The Administrative Agent shall have received,
on or before the Amendment Effective Date, all of the following, each in form
and substance satisfactory to it:
(1) this Amendment, executed by the Borrower, each Guarantor, the
Administrative Agent and each Lender;
(2) such additional documentation as the Administrative Agent or the
Lenders may reasonably require.
(ii) Corporate and Other Proceedings. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Amendment shall be
satisfactory in all respects in form and substance to the Administrative Agent
and each Lender.
(iii) No Event of Default. After giving effect to this Amendment, no
Default or Event of Default (except for those that may have been duly waived)
shall have occurred and be continuing on the date hereof or the Amendment
Effective Date.
(iv) Fees and Expenses Paid. The Borrower shall have paid all
Obligations due on or before the later of the date hereof and the Amendment
Effective Date including, without limitation, all costs and expenses of the
Administrative Agent in connection with the preparation, reproduction, execution
and delivery of this Amendment and all other Loan Documents entered into in
connection herewith (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and all other Loan Documents) and all costs, expenses and fees due under
any Loan Document.
SECTION 4. FEES AND EXPENSES
The Borrower agrees to pay on demand in accordance with the terms of
Section 11.3 (Costs and Expenses) of the Credit Agreement all costs and expenses
of the Administrative Agent in connection with the preparation, reproduction,
execution and delivery of this Amendment and all other Loan Documents entered
into in connection herewith, including, without limitation, the reasonable fees,
expenses and disbursements of counsel for the Administrative Agent with respect
thereto.
SECTION 5. REPRESENTATIONS AND WARRANTIES
On and as of the date hereof, and as of the Amendment Effective
Date, after giving effect, in respect of the date hereof, to the amendment set
forth herein effective as of the Amendment Effective Date and, in respect of an
Effective Date, to the waivers and amendments made by this Amendment as of such
Effective Date (collectively, the "Effective Amendments"), the Borrower hereby
represents and warrants to the Administrative Agent and each Lender as follows:
(a) this Amendment has been duly authorized, executed and delivered
by the Borrower and each Guarantor and constitutes a legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against the Borrower
and each Guarantor in accordance with its terms and the Credit Agreement, as
amended by the Effective Amendments, constitutes the legal, valid and binding
obligation of the Borrower and each Guarantor, enforceable against the Borrower
and each Guarantor in accordance with its terms;
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(b) each of the representations and warranties contained in Article
IV (Representations and Warranties) of the Credit Agreement, the other Loan
Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the date hereof and such Effective Date, in
each case as if made on and as of such date and except to the extent that such
representations and warranties specifically relate to a specific date, in which
case such representations and warranties shall be true and correct in all
material respects as of such specific date; provided, however, that references
therein to the "Credit Agreement" shall be deemed to refer to the Credit
Agreement as amended by the Effective Amendments; and
(c) no Default or Event of Default has occurred and is continuing
(except for those that are duly waived).
SECTION 6. REFERENCE TO THE EFFECT ON THE LOAN DOCUMENTS
(a) As of each Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in the other Loan Documents to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as amended hereby as of
such Effective Date, and this Amendment and the Credit Agreement shall be read
together and construed as a single instrument.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Credit Agreement and all other Loan
Documents are and shall remain in full force and effect and are hereby ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders, Issuers, Arranger or the Administrative
Agent under any of the Loan Documents, nor constitute a waiver or amendment of
any other provision of any of the Loan Documents or for any purpose except as
expressly set forth herein.
(d) This Amendment is a Loan Document.
SECTION 7. EXECUTION IN COUNTERPARTS
This Amendment may be executed in any number of counterparts and by
different parties 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. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed counterpart by
telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. GUARANTORS CONSENT
Each Guarantor hereby consents to this Amendment and agrees that the
terms hereof shall not affect in any way its obligations and liabilities under
the Loan Documents (other than because of the amendments to the Guaranty set
forth herein), all of which obligations and liabilities shall remain in full
force and effect and each of which is hereby reaffirmed (as amended by the
amendments to the Guaranty set forth herein).
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SECTION 9. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
SECTION 10. HEADINGS
The headings contained in this Amendment are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto.
SECTION 11. NOTICES
All communications and notices hereunder shall be given as provided
in the Credit Agreement.
SECTION 12. SEVERABILITY
The fact that any term or provision of this Agreement is held
invalid, illegal or unenforceable as to any person in any situation in any
jurisdiction shall not affect the validity, enforceability or legality of the
remaining terms or provisions hereof or the validity, enforceability or legality
of such offending term or provision in any other situation or jurisdiction or as
applied to any person.
SECTION 13. SUCCESSORS
The terms of this Amendment shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective successors and
assigns.
SECTION 14. WAIVER OF JURY TRIAL
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers and general partners thereunto duly
authorized, as of the date first above written.
K*TEC ELECTRONICS HOLDING
CORPORATION,
as Borrower
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: President
CITICORP USA, INC.,
as Administrative Agent and Lender
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Guarantors:
K*TEC ELECTRONICS HOLDING CORPORATION
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
XXXXXX-XXXX FUNDING II, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
RODNIC LLC
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: President
CATHIO LLC
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: President
K*TEC ELECTRONICS L.P. (FORMERLY
KNOWN AS RANDIC LP)
By: RodniC LLC,
its general partner
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: President
