Exhibit 10.10
AMENDMENT NO. 3
TO
K*TEC ELECTRONICS HOLDING CORPORATION
CREDIT AGREEMENT
AMENDMENT NO. 3 (this "Amendment") dated as of March 8, 2002, among
K*TEC Electronics Holding Corporation (formerly known as K*TEC Electronics
Corporation) and EFTC Operating Corp. (a successor in interest by merger to EFTC
Corporation), each a Delaware Corporation (each a "Borrower" and, collectively,
the "Borrowers") and Citicorp USA, Inc. as Administrative Agent and sole Lender
(each as defined below), to the Credit Agreement, dated as of January 26, 2001
(as amended to the date hereof, the "Credit Agreement"), among the Borrowers,
the financial institutions from time to time party thereto as Lenders and
Issuers and Citicorp USA, Inc., as agent for such 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 Borrowers, the Lenders, the Issuers and the Administrative
Agent are parties to the Credit Agreement and, as of the date hereof, the
undersigned Lender is the sole Lender; and
WHEREAS, the Borrowers, the Administrative Agent and the undersigned
sole Lender have agreed, subject to certain limitations and conditions set forth
below, to make certain amendments to the Credit Agreement, as more specifically
set forth below;
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
The Credit Agreement is, effective as of the Amendment Effective Date
(as defined below), hereby amended as follows:
(i) AMENDMENT TO LOAN DOCUMENTS
Each mention of the full name "▇▇▇▇▇▇-▇▇▇▇ Funding II, L.L.C." in the
Credit Agreement, the Guaranty and the Pledge and Security Agreement (including
in the exhibits, annexes and signature pages thereof, if applicable), each as
amended to the date hereof but without giving effect to the amendments set forth
herein, is replaced with the name "K*TEC Operating Company, L.L.C. (formerly
known as ▇▇▇▇▇▇-▇▇▇▇ Funding II, L.L.C.)".
(ii) AMENDMENTS TO ARTICLE I (DEFINITIONS, INTERPRETATION AND
ACCOUNTING TERMS)
The following definitions for the following terms are hereby inserted
in Section 1.1 (Defined Terms) of the Credit Agreement in the appropriate place
to preserve the alphabetical order of the definitions in such section (and, if
applicable, the following definitions shall replace in their entirety existing
definitions for the following terms in such section):
"EFTC Delaware" means EFTC Operating Corp., a Delaware
Corporation.
"EFTC Holdings" means Suntron Corporation, a Delaware
corporation.
"EFTC Merger" means a series of transactions in which, in
accordance with the definition of "Permitted Acquisition," (a) on the
terms set forth in the EFTC Merger Agreement, (i) a newly formed,
direct Wholly-Owned Subsidiary of EFTC Holdings is merged with and into
▇▇▇▇▇▇-▇▇▇▇ with ▇▇▇▇▇▇-▇▇▇▇ as the surviving company and another
newly-formed, direct Wholly-Owned Subsidiary of EFTC Holdings is merged
with and into EFTC with EFTC as the surviving corporation, and (ii)
immediately thereafter, EFTC shall be merged with and into EFTC
Delaware, a newly-formed Delaware corporation, with EFTC Delaware as
the surviving corporation and (A) the holders of the Stock of EFTC
(including any holder of preferred stock) will receive Stock of EFTC
Delaware, (B) there shall be no holder of the Stock of EFTC Delaware
other than previous holders of Stock in EFTC, (C) K*TEC, ▇▇▇▇▇▇-▇▇▇▇
and EFTC Delaware shall be Wholly-Owned Subsidiaries of EFTC Holdings
and (D) the holders of the Stock of ▇▇▇▇▇▇-▇▇▇▇ and EFTC (including any
holder of preferred stock) immediately prior to the mergers will
receive, as the sole consideration therefor, Stock issued by EFTC
Holdings and (b) immediately after the consummation of such mergers,
all outstanding Stock of ▇▇▇▇▇▇-▇▇▇▇ and EFTC Delaware (as the
surviving companies in the mergers) shall have been transferred by EFTC
Holdings to EFTC Parent, so that, after giving effect to all of the
foregoing transactions, (A) EFTC Parent is a direct Wholly-Owned
Subsidiary of EFTC Holdings and the only Subsidiary thereof, (B) each
of ▇▇▇▇▇▇-▇▇▇▇ and EFTC Delaware (as the surviving companies in the
mergers) is a direct Wholly-Owned Subsidiary of EFTC Parent, and
▇▇▇▇▇▇-▇▇▇▇ and EFTC Delaware are the only Subsidiaries of EFTC Parent
and (C) K*TEC is a direct, Wholly-Owned Subsidiary of ▇▇▇▇▇▇-▇▇▇▇ and
the only Subsidiary thereof; provided, however, that the series of
transactions described above may be changed in any respect satisfactory
to the Administrative Agent in its sole discretion reasonably
exercised. The phrase "consummation of the EFTC Merger" means the
consummation of all transactions described in this definition.
"EFTC Parent" means Suntron Intermediate Holding Corp., a
Delaware corporation.
(iii) AMENDMENT TO ARTICLE VI (REPORTING COVENANTS)
A new clause (i) is inserted at the end of Section 6.1 (Financial
Statements) of the Credit Agreement to read in its entirety as follows:
(i) Corporate Chart and Other Collateral Updates. On or before
each date on or before which Financial Statements are required to be
delivered pursuant to clause (c) or (d) above, (i) to the extent of any
changes from the previous chart or
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document delivered pursuant to this clause (i) (or, if no such chart of
document has yet been delivered, to the extent the information that
would be set forth in such chart or other document would differ from
the information provided to the Lenders on the Closing Date or the EFTC
Joinder Date), a corporate organizational chart or other equivalent
document, current as of the date of receipt of such chart by the
Administrative Agent and, if later, as of such delivery date for such
Financial Statements, in form and substance reasonably acceptable to
the Administrative Agent, in sufficient copies for each Lender and
certified as true, correct and complete by a Responsible Officer of the
Borrower, setting forth, for each Person that is a Loan Party, subject
to Section 7.11 (Additional Collateral and Guaranties) or a Subsidiary
or other Affiliate of any of them, (A) the full legal name of such
Person (and any trade name, fictitious name or other name each such
Person may have had or operated under), (B) the jurisdiction of
organization and the organizational number (if any) of such Person, (C)
the location of the chief executive office (or sole place of business)
of such Person and (D) the number of shares of each class of such
Person's Stock authorized (if applicable), the number outstanding as of
the date of delivery, and the number and percentage of the outstanding
shares of each such class owned (directly or indirectly) by any Loan
Party and (ii) a certificate of a Responsible Officer of the Borrower
in form and substance reasonably satisfactory to the Administrative
Agent and in sufficient copies for each Lender that, to the best of the
knowledge of the Borrower, all statements and updates (including
updated schedules) required to be delivered pursuant to the Pledge and
Security Agreement by any Loan Party in the preceding Fiscal Quarter
have been delivered thereunder. The reporting requirements set forth in
this clause (i) are in addition to, and are not intended to and shall
not replace, relax or otherwise modify, any obligation of any Loan
Party under any Loan Document (including any other notice or reporting
requirement). Compliance with the reporting obligations in this clause
(i) shall not, by itself, operate to update any Schedule or any
schedule of any other Loan Document and is not intended to and shall
not cure, waive or otherwise modify in any way, any breach of any
covenant in any Loan Document or any other Default or Event of Default,
including any failure of any representation or warranty of any Loan
Document to be correct in any respect when made.
(iv) AMENDMENT TO ARTICLE VIII (NEGATIVE COVENANTS)
A new Section 8.22 (Post Closing Deliveries) is inserted at the end of
Article VIII (Negative Covenants) to the Credit Agreement to read in its
entirety as follows:
SECTION 8.22 POST CLOSING DELIVERIES
The Administrative Agent shall have received each item set
forth on Schedule 8.22 (Post Closing Deliveries) on or before the date
set forth opposite such item on such Schedule (unless otherwise agreed
to by the Administrative Agent), each in form and substance reasonably
satisfactory to the Administrative Agent and with sufficient copies for
each Lender.
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(v) AMENDMENT TO ARTICLE XI (MISCELLANEOUS)
Clause (a) to Section 11.8 (Notices, Etc.) is amended and restated to
read in its entirety as follows:
(a) if to Holdings, the Company, the Borrowers or any Subsidiary of
each of them:
Suntron Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇ Equity Investors IV, L.P.
c/▇ ▇▇▇▇▇▇ Capital Partners
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
RCBA Strategic Partners, L.P.
c/o BLUM Capital Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇]
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic Mail Address: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
(vi) AMENDMENTS TO SCHEDULES
(1) The contents of Schedule I (Revolving Credit Commitments)
to the Credit Agreement, are hereby amended and restated in their entirety and
replaced by the contents of Schedule A (Revolving Credit Commitments) hereto.
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(2) A new Schedule 8.22 (Post Closing Deliveries) is hereby
added to the Credit Agreement with the contents thereof to read in their
entirety as set forth in Schedule B (Post Closing Deliveries) hereto.
SECTION 2. CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
This Amendment shall become effective on the date (the "Amendment
Effective Date") on or after the EFTC Joinder Date, when, and only when, the
Administrative Agent shall have received this Amendment, executed by each
Borrower, each Guarantor, the Administrative Agent and each Lender and such
additional documentation as the Administrative Agent or the Lenders may
reasonably require.
SECTION 3. FEES AND EXPENSES
Each 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 4. REPRESENTATIONS AND WARRANTIES
On and as of the date hereof, and as of the Amendment Effective Date,
after giving effect to this Amendment, each 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
each Borrower and each Guarantor and constitutes a legal, valid and binding
obligation of each Borrower and each Guarantor, enforceable against each
Borrower and each Guarantor in accordance with its terms and the Credit
Agreement, as amended by this Amendment and constitutes the legal, valid and
binding obligation of each Borrower and each Guarantor, enforceable against each
Borrower and each Guarantor in accordance with its terms;
(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 the Amendment 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 hereby;
(c) no Default or Event of Default has occurred and is continuing
(except for those that are duly waived); and
(d) no litigation has been commenced against any Loan Party or any of
its Subsidiaries seeking to restraint or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action by any Loan Party
required or contemplated by this Amendment, the Credit Agreement, any Loan
Document or Related Document, in each case as amended hereby (if applicable).
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SECTION 5. REFERENCE TO THE EFFECT ON THE LOAN DOCUMENTS
(a) As of the Amendment 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
(including, without limitation, by means of words like "thereunder", "thereof"
and words of like import), shall mean and be a reference to the Credit Agreement
as amended hereby as of the Amendment Effective Date, and this Amendment and the
Credit Agreement shall be read together and construed as a single instrument.
Each of the table of contents and lists of Schedules of the Credit Agreement
shall be amended to reflect the changes made in this Amendment as of the
Amendment Effective Date.
(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 6. 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 7. CONSENT OF GUARANTORS
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 (as amended and otherwise expressly modified hereby), all of
which obligations and liabilities shall remain in full force and effect and each
of which is hereby reaffirmed (as amended and otherwise expressly modified
hereby).
SECTION 8. GOVERNING LAW
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
SECTION 9. 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.
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SECTION 10. NOTICES
All communications and notices hereunder shall be given as provided in
the Credit Agreement or, as the case may be, the Guaranty.
SECTION 11. 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 12. 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 13. 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/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
EFTC OPERATING CORP.
(a successor in interest by merger
to EFTC Corporation),
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Chief
Financial Officer,
Secretary and Treasurer
[SIGNATURE PAGE TO AMENDMENT NO. 3 TO
K*TEC ELECTRONICS HOLDING CORPORATION CREDIT AGREEMENT]
CITICORP USA, INC.,
as Administrative Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 3 TO
K*TEC ELECTRONICS HOLDING CORPORATION CREDIT AGREEMENT]
Guarantors:
K*TEC ELECTRONICS HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇-▇▇▇▇ FUNDING II, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
RODNIC LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
CATHIO LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
K*TEC ELECTRONICS L.P.
(FORMERLY KNOWN AS RANDIC LP)
By: RodniC LLC,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
SUNTRON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Chief Financial
Officer, Secretary and Treasurer
[SIGNATURE PAGE TO AMENDMENT NO. 3 TO
K*TEC ELECTRONICS HOLDING CORPORATION CREDIT AGREEMENT]
SUNTRON INTERMEDIATE HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Chief Financial
Officer, Secretary and Treasurer
CIRCUIT TEST, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Treasurer and Secretary
CTLLC ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Treasurer and Secretary
CURRENT ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Treasurer and Secretary
RM ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Treasurer and Secretary
[SIGNATURE PAGE TO AMENDMENT NO. 3 TO
K*TEC ELECTRONICS HOLDING CORPORATION CREDIT AGREEMENT]
SCHEDULE A
REVOLVING CREDIT COMMITMENTS
Citicorp USA, Inc. $75,000,000
TOTAL $75,000,000
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