FIRST AMENDMENT AND AGREEMENT
-----------------------------
THIS FIRST AMENDMENT AND AGREEMENT is made as of the 19th day of July,
2002, by and between FLEET PRECIOUS METALS INC., a Rhode Island corporation with
its principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000
("FPM"), and SEMX CORPORATION, a Delaware corporation with its principal office
at Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, FPM and the Company are parties to a certain Amended and Restated
Consignment Agreement dated as of June 30, 2000 (as it has been or may be
modified from time to time, the "Consignment Agreement"), pursuant to which FPM
agreed to consign certain commodities to the Company upon the terms and
conditions specified therein (the "Consignment Facility"); and
WHEREAS, the Company's obligations under the Consignment Agreement are
secured by that certain Security Agreement by and between FPM and the Company
dated as of December 23, 1996 (as it has been or may be modified from time to
time, the "Security Agreement"), pursuant to which the Company has granted to
FPM a security interest in certain Collateral (as defined in the Security
Agreement); and
WHEREAS, the Consignment Agreement, the Security Agreement and all other
agreements, instruments and documents executed in connection with the
Consignment Agreement (as they have been or may be modified from time to time)
are sometimes hereinafter collectively referred to as the "Consignment
Documents"; and
WHEREAS, the Company has also obtained financing pursuant to Revolving
Credit, Term Loan and Security Agreement dated October 29, 1999 (as it may have
been or may be modified or replaced from time to time, the "PNC Agreement")
among the Company, PNC Bank, National Association, as Agent ("PNC") and certain
others; and
WHEREAS, the Company has requested that FPM waive certain Events of Default
(as defined in the Consignment Agreement), and to modify certain aspects of the
Consignment Documents; and
WHEREAS, FPM has agreed to do so, but only on the terms and conditions set
forth herein.
NOW THEREFORE, for value received and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consignment Limit. Section 1.10 of the Consignment Agreement is hereby
amended in its entirety to read as follows:
"1.10. 'Consignment Limit' means the lesser of:
(a) an amount equal to the lesser of:
(i) One Million Four Hundred Thousand Dollars ($1,400,000); or
(ii) The value (as determined pursuant to Paragraph 2.2 hereof)
of up to Three Thousand Seven Hundred and Seventy-Six
(3,676) fine xxxx ounces of gold minus the aggregate value
of all Consigned Precious Metals returned to FPM pursuant to
Paragraph 2.11(c) hereof; or
(b) such other limit as FPM may approve in writing in its sole
discretion."
2. Maturity Date. Section 1.27 of the Consignment is hereby amended in its
entirety to read as follows:
"1.27 'Maturity Date' means August 16, 2002."
3. Certain Definitions.
(a) Section 1.32 of the Consignment Agreement is hereby amended in
its entirety to read as follows:
"1.32 'Security Agreement' means the Security Agreement dated December
23, 1996 of the Company in favor of FPM which secures the payment and
performance of the Obligations, as the same may be amended from time to
time."
(b) Article 1 of the Consignment Agreement is hereby amended to add a
new Section 1.35 to read as follows:
"1.35. 'Consignment Documents' means this Agreement, the Security
Agreement and any and all agreements, instruments and documents
executed in connection herewith or therewith, all as they have been or
may be modified from time to time."
4. Payments of Purchase Price. Section 2.3(d) of the Consignment Agreement
is hereby amended to delete the third sentence thereof and substitute the
following sentences in its place:
"All payments of purchase price for Consignment Precious Metal are to
be made, by bank wire to a bank of FPM's designation or by direct debit
or credit to an account maintained at a financial institution
designated by FPM for such purpose, at or before the date and time of
Company's purchase of such Metal or Company's withdrawal of such Metal
from consignment under the Consignment Facility. Title to Consigned
Precious Metal shall not pass to the Company until the full purchase
price for the same had been paid to FPM in immediately available finds
in accordance with this Agreement."
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5. Return of Consigned Precious Metal. Section 2.11 of the Consignment
Agreement is hereby amended to add the following subsection 2.11(c):
"(c) Commencing on Wednesday, July 24, 2002 and continuing for each
week thereafter through and including the Maturity Date, the
Company shall, as a permanent reduction of the Consignment Limit,
either (i) deliver to FPM at FPM's vault in Providence, Rhode
Island Consigned Precious Metal theretofore consigned but not
purchased and paid for in full by the Company having an aggregate
value of not less than $25,000 computed in accordance with
Paragraph 2.2 hereof (the physical return of Consigned Precious
Metal to FPM's vault in Providence shall be at the Company's
expense and risk and shall only be credited to Company's account
upon FPM's assaying the value thereof) or (ii) purchase and
withdraw Consigned Precious Metal from consignment under the
Consignment Facility, Consigned Precious Metal theretofore
consigned but not purchased and paid for by the Company having an
aggregate value of not less than $25,000 computed in accordance
with Paragraph 2.2 hereof."
6. Security. Article 4 of the Consignment Agreement is hereby amended in
its entirety to read as follows:
"4. SECURITY.
The Obligations shall be secured by the Security Agreement.
Additionally, the Obligations shall at all times be secured by and
subject to FPM's prior receipt and the continued effectiveness of one
or more standby irrevocable letters of credit issued on behalf of the
Company by PNC (or such other financial institution(s) as may be
acceptable to FPM in its discretion), substantially in the form
attached hereto as Exhibit A and otherwise in form and substance
satisfactory to FPM in its discretion (collectively, if more than one,
the "Letter of Credit"). The Letter of Credit shall have an expiry date
of no earlier than September 20, 2002 and shall by its terms be payable
to FPM upon presentation of FPM's draft accompanied by a signed
statement of FPM, certifying that the amount of the draft represents
the sum of: (i) the dollar value of Consigned Precious Metal; and (ii)
any other amounts due to FPM by the Company. The face amount of the
Letter of Credit available to the drawn by FPM shall be not less than
$400,000.
7. Equity Gold. Paragraph 6.10 of the Consignment Agreement is hereby
amended in its entirety to read as follows:
"6.10. Equity Gold. Own, at all times, inventory free and clear of all
liens (except liens in favor of FPM, the Bank or the Lender) with a
gold content equal to not less than ten percent (10%) of the aggregate
amount of then-outstanding Consigned Precious Metal."
8. Reporting. Paragraph 6.11 (c) of the Consignment Agreement is hereby
amended in its entirety to read as follows:
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"(c) by Wednesday of each week, a gold inventory summary for the
Company for the previous week, including as to the Company's compliance
with Sections 6.10 and 6.18 of this Agreement, in such form as FPM
shall reasonably request, certified by the chief financial officer of
the Company or by an Authorized Representative of the Company;"
9. On-Premise Requirement. Article 6 of the Consignment Agreement is hereby
amended to add the following Section 6.18:
"On-Premise Requirement. Physically maintain at all times on the
Company's premises at Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx inventory
owned by Company free and clear of all liens (except liens in favor of
FPM, the Bank or the Lender) with a gold content equal to not less than
ninety percent (90%) of the aggregate amount of then-outstanding
Consigned Precious Metal."
10. Floating Consignment Fee. Section 2.3(a) of the Consignment Agreement
is hereby amended in its entirety to read as follows:
"(a) During such time as Consigned Precious Metal is consigned to the
Company hereunder and until the same is withdrawn from consignment and
paid for in full by the Company as hereinafter provided, the Company
will pay (i) effective as of July 1, 2002, to FPM a fee computed daily
on the value of such Consigned Precious Metal at the rate of six and
three-quarters percent (6.75%) per annum or at such other rate as FPM
shall announce from time to time in writing, and (ii) effective on the
date of execution of the First Amendment and Agreement, to FPM a fee
computed daily on the value of such Consigned Precious Metal at the
rate of ten percent (10%) per annum or such other rate as FPM shall
announce from time to time in writing, such fees to be accrued on a
daily basis and paid to FPM not later than the fifth Business Day
following the receipt of billing; further provided, however, that such
rate automatically shall be increased to fourteen percent (14%) upon
the occurrence of an Event of Default. A consignment fee calculated in
accordance with this subparagraph shall be known as a 'Floating
Consignment Fee'."
11. Certain Defaults.
(a) Section 7.1(i) of the Consignment Agreement is hereby amended to
read in its entirety as follows:
"(i) the occurrence of a default in the payment or performance of
any of the Company's obligations or agreements to the Lender,
whether now or hereafter existing and howsoever arising, incurred
or evidenced, whether or not such default is waived by the
Lender; or";
(b) Section 7.1(k) of the Consignment Agreement is hereby amended to
add the word "or" at the end thereof;
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(c) Section 7.1 of the Consignment Agreement is hereby amended to add
a new Section 7.1(l) thereto, as follows:
"(l) the cancellation, or other impairment of the ability of FPM
to draw upon, the Letter of Credit;" and
(d) Upon satisfaction of all Conditions Precedent (as defined below),
FPM shall (i) be deemed to have waived any Event of Default
arising under the Consignment Documents caused solely by the
Company's failure to comply with its affirmative covenants under
Section 6.15, 6.16 and 6.17 of the Consignment Agreement for all
periods through June 30, 2002 and (ii) rescind that certain
letter delivered to PNC Bank, National Association ("PNC") dated
June 27, 2002 pursuant to which FPM provided PNC with
"Enforcement Notice" and commenced the "Enforcement Period" as
provided for and defined in that certain Intercreditor Agreement
by and between FPM and PNC dated as of November 1, 1999.
12. Deferral of Certain Charge. FPM hereby defers the Company's obligation
to pay a waiver and extension fee in the amount of $3,375.00 (which the Company
hereby acknowledges as due and outstanding) (the "Deferred Fee") to the date of
execution of this First Amendment.
13. Expenses. Article 9 of the Consignment Agreement is hereby amended in
its entirety to read as follows:
"9. EXPENSES
The Company shall pay on demand all reasonable expenses of FPM in
connection with the preparation, administration, default, collection,
waiver or amendment of terms, or in connection with FPM's exercise,
preservation or enforcement of any of its rights, remedies or options
under this Agreement, including, without limitation, reasonable fees of
outside legal counsel or the reasonable allocated costs of in-house
legal counsel, accounting, consulting, brokerage or other similar fees
or expenses, and any reasonable fees or expenses associated with travel
or other costs relating to any appraisals or examinations conducted in
connection with the Consignment Facility or any collateral therefor,
and the amount of all such expenses shall, until paid, bear interest at
the rate set forth in Paragraph 2.3(e) and be an obligation secured by
any Collateral."
14. Set-Off, Etc. Paragraph 10.7 of the Consignment Agreement is hereby
amended in its entirety to read as follows:
"10.7. Setoff. The Company hereby grants to FPM a continuing lien,
security interest, right of debit and right of setoff for all
liabilities and Obligations, whether now existing or hereafter arising,
upon and against any and all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or
control of FPM or any other affiliate of FleetBoston Financial
Corporation or in transit to any of them. FPM is hereby authorized at
any time
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and from time to time, without demand or notice to the Company, to set
off the same or any part thereof and apply the same to any of the
Obligations even though unmatured and regardless of the adequacy of any
other collateral securing such Obligations. ANY AND ALL RIGHTS TO
REQUIRE FPM TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF THE COMPANY OR ANY GUARANTORS, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
15. Conditions Precedent. This agreement shall be effective upon the
satisfaction of each of the following (collectively, "Conditions Precedent"):
(a) execution and delivery of this Amendment by each of the Company
and FPM;
(b) receipt by FPM of the Letter of Credit;
(c) execution by the Company and delivery to FPM of the Company's
resolutions substantially is the form attached as Exhibit B
hereto;
(d) receipt by FPM, either physically at FPM's vault in Providence,
Rhode Island or through a recognized third party, of the return
of 100 fine xxxx ounces gold of Consigned Precious Metal; and
(e) receipt by FPM of the Company's payment of the Deferred Fee and
of FPM's costs (including reasonable attorneys' fees and
expenses) relating to the negotiation, drafting and execution of
this Amendment and all matters incidental thereto.
16. Miscellaneous.
(a) Article 10 of the Consignment Agreement is hereby amended to add
a new Section 10.16 and a new Section 10.17 to read as follows:
"10.16. Integration. This Agreement and the other Consignment Documents
are intended by the parties as the final, complete and exclusive
statement of the transactions evidenced by the Consignment Documents.
All prior or contemporaneous promises, agreements and understandings,
whether oral or written, are deemed to be superceded by the Consignment
Documents, and no party is relying on any promise, agreement or
understanding not set forth in the Consignment Documents.
10.17. Pledge to Federal Reserve. FPM may at any time pledge all or any
portion
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of its rights under any of the Consignment Documents to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
enforcement thereof shall release FPM from its obligations hereunder or
under the other Consignment Documents."
(b) Section 3 of the Security Agreement is hereby amended in its
entirety to read as follows:
"Section 3. Filing; Further Assurances. The Debtor irrevocably
designates and appoints each Secured Party as Debtor's true and lawful
attorney with full power of substitution and revocation to prepare,
execute, deliver, and file or record in the name of the Debtor all
financing statements, amendments, continuation statements, title
certificate lien applications and other documents deemed by the Secured
Party to be necessary or advisable to secure, evidence, perfect or to
continue the perfection of the Security Interests. The Debtor hereby
irrevocably authorizes each Secured Party to file the aforesaid
documents without the signature of the Debtor. The Debtor will pay the
cost of filing or recording the aforesaid documents or filing or
recording this Agreement in all public offices wherever filing or
recording is deemed by the Secured Parties to be necessary or
desirable."
(c) Except as amended hereby, the Consignment Documents shall remain
in full force and effect and are in all respects hereby ratified
and affirmed.
(d) The Company hereby affirms each representation, warranty and
covenant set forth in the Consignment Documents as if fully set
forth herein in full. The Company acknowledges and confirms that
there are no defenses, claims or setoffs available to the Company
which would operate to limit its obligations under the
Consignment Documents and hereby releases any and all such
defenses, claims and setoffs, and hereby further releases any and
all causes of action or any other type of claim against FPM or
its employees, representatives, officers and agents of any type
whatsoever, whether or not now known, and regardless of the
nature of the same.
(e) The Company shall pay all out-of-pocket expenses, costs and
charges incurred by FPM (including reasonable fees and
disbursements of counsel) in connection with the preparation and
implementation of this Amendment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned parties have caused this First
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: FLEET PRECIOUS METALS INC.
By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
WITNESS: SEMX CORPORATION
By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE OF NEW YORK
COUNTY OF __________
On the ____ day of July, 2002, before me personally came ______________________,
to me known, who, being by me duly sworn, did depose and say that he/she is the
________________________ of SEMX CORPORATION, and that the foregoing is his/her
free act and deed and the free act and deed of SEMX Corporation.
---------------------------------
Notary Public
My Commission Expires____________
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EXHIBIT A
FORM OF LETTER OF CREDIT
Amount: U.S.$[150,000] Date of Issuance: July ___, 2002
Fleet Precious Metals Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit No. ____ at the
request and for the account of SEMX Corporation, a Delaware corporation
("Company"), for an amount not to exceed in the aggregate U.S. [$150,000 ONE
HUNDRED FIFTY THOUSAND DOLLARS] in favor of Fleet Precious Metals Inc. ("FPM")
available by FPM's sight draft drawn on us and bearing the clause "Drawn under
Letter of Credit No. ____ of PNC Bank, National Association issued July ___,
2002 accompanied by a signed statement by an authorized representative of FPM
certifying:
(a) That an Event of Default has occurred as defined in that certain
Consignment Agreement between Fleet Precious Metals Inc. and SEMX Corporation
dated as of June 30, 2000, as the same may have been amended from time to time
("Agreement"); and
(b) That the amount of the draft represents the sum of: (i) the dollar
value of precious metals on consignment from Fleet Precious Metals Inc. to SEMX
Corporation under the Agreement; and (ii) any other amounts due to Fleet
Precious Metals Inc. from SEMX Corporation.
Partial and multiple drawings are permitted.
We hereby undertake with FPM that a draft drawn under and in compliance with the
terms of this Letter of Credit will be duly honored by us if presented to this
office on or before September 20, 2002.
This Letter of Credit is subject to the International Standby Practices ISP98
(1998), International Chamber of Commerce, Publication No. 590.
Sincerely,
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------
Authorized Signature
EXHIBIT B
---------
CERTIFIED CORPORATE RESOLUTIONS
-------------------------------
To: Fleet Precious Metals Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Att'n: Xxxx X. Xxxxxxx
Vice President
The undersigned Secretary of SEMX CORPORATION, a Delaware corporation (the
"Corporation"), hereby certifies that at a meeting of the Board of Directors of
the Corporation duly called and held as of the ____ day of July, 2002 at which
meeting a quorum was duly present and acting throughout, the following votes
were duly adopted:
VOTED: That the Chairman, the President, any Vice President or Treasurer
of the Corporation, signing singly, and their respective
successors in office, be and they hereby are authorized,
empowered and directed on behalf of the Corporation to do and
perform all acts and things and to execute, acknowledge and
deliver all instruments and documents of whatsoever kind and
nature necessary or incidental to or required by Fleet Precious
Metals Inc., a Rhode Island corporation ("FPM"), for the
transaction of all of the business of the Corporation with FPM,
and, without limiting the generality of the foregoing, in
particular (i) to sign, endorse or deposit any and all drafts,
notes, acceptances, documents of title, contracts for the opening
of commercial credits and for the creation of acceptances, and
spot or forward contracts in foreign exchange, and the use is
hereby authorized of a rubber stamp endorsement on drafts, notes
and acceptances whose proceeds are credited to any account of the
Corporation with FPM; (ii) to borrow and otherwise effect
consignments, loans and advances or any extensions of credit, at
any time and in any amount or form, for this Corporation from
FPM; (iii) to sell to or discount with FPM any or all commercial
paper, receivables and other evidences of debt at any time held
by the Corporation; and (iv) to pledge, hypothecate, mortgage,
assign, transfer, endorse and deliver to FPM as security for the
payment of any obligation at any time owed to FPM, any and all
property of every description, real or personal, and any interest
therein at any time held by the Corporation; and it is further
VOTED: That the Corporation enter into a First Amendment and Agreement
(the "Amendment Agreement") with FPM pursuant to which the
parties will amend that certain Amended and Restated Consignment
Agreement by and between FPM and the Corporation dated as of June
30, 2000 (the "Consignment Agreement"): (i) to extend the
maturity of the consignment
facility to August 15, 2002; (ii) to reduce the facility limit
and to amend the equity gold, financial reporting and several
other terms and covenants contained therein; (iii) to provide for
the issuance of a standby letter of credit to further secure the
obligations of the Corporation to FPM; (iv) to provide for
Certain standard documentation provisions common to all
facilities extended by FleetBoston Financial Corporation
affiliates; and (v) to make certain other conforming or otherwise
necessary changes in the Consignment Agreement; which Amendment
Agreement is to be substantially in the form presented to this
meeting, with such changes in the text, form and terms thereof as
the officer of the Corporation executing such document may deem
necessary or desirable and proper (the necessity or desirability
and propriety of such changes to be conclusively evidence by the
execution and delivery of such document); and it is further
VOTED: That the Chairman, the President, any Vice President or Treasurer
be, and any one of them acting singly hereby is, authorized,
empowered and directed to execute, acknowledge and deliver to FPM
the Amendment on behalf of the Corporation; and it is further
VOTED: That the Chairman, the President, any Vice President or Treasurer
be, and any one of them hereby is, authorized, empowered and
directed to execute, acknowledge and deliver to FPM any and all
other documents (including, without limitation, any UCC Financing
Statements) and to take any and all other action as such officer
deems appropriate to effectuate the purposes of these
resolutions; and any and all documents and agreements heretofore
executed, acknowledged and delivered and acts or things
heretofore done to effectuate the purposes of these resolutions
are hereby in all respects ratified, confirmed and approved as
the act or acts of the Corporation; and it is further
VOTED: That FPM is hereby authorized to rely upon these resolutions and
the following certificate of the Secretary of the Corporation
until FPM receives written notice of the revocation thereof.
I hereby certify that I have personally examined the Articles or
Certificate of Incorporation and By-laws and all amendments thereto of the
Corporation and the agreements, indentures and other instruments to which the
Corporation is a party; that neither the resolutions set forth above nor any
action taken or to be taken pursuant thereto are or will be in contravention of
any provision or provisions of the Articles or Certificate of Incorporation or
By-laws of the Corporation or any agreement, indenture or other instrument to
which the Corporation is a party; that neither the Articles or Certificate of
Incorporation of the Corporation
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nor any amendment thereto contains any provisions requiting any vote or consent
of shareholders of the Corporation to authorize any creation of a security
interest in all or any part of the Corporation's property or any interest
therein or to authorize any other action taken or to be taken pursuant to such
resolutions; that the foregoing resolutions are and remain in full force and
effect on and as of the date of this certificate, and have not been amended or
revoked; and that the following were duly elected to and are now holding the
offices set opposite their signatures:
Title Name Signature
----- ---- ---------
Chairman
----------------------- -----------------------
President
----------------------- -----------------------
Vice President
----------------------- -----------------------
Secretary, Treasurer and Xxxx X. Xxxx
Controller -----------------------
I certify that attached hereto is a true and correct copy of the bylaws of
the Corporation.
IN WITNESS WHEREOF, I have set my hand and affixed the seal of the
Corporation as of the ____ day of July, 2002.
----------------------------------
Xxxx X. Xxxx
Secretary
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