PHJW DRAFT
7/26/99
AMENDMENT NO. 1
TO
LOAN AGREEMENT
---------------------------------
AMENDMENT NO. 1 (this "Amendment No. 1") dated as of July 26, 1999 to the
Loan Agreement (defined below) by and among ELAMEX, S.A. DE C.V. ("Borrower"), a
corporation duly organized and existing under the laws of the United Mexican
States ("Mexico"), THE OTHER CREDIT PARTIES SIGNATORY HERETO, GENERAL ELECTRIC
CAPITAL CORPORATION, a New York corporation ("GE Capital"), COMERICA BANK
("Comerica") (GE Capital and Comerica each hereinafter referred to as a "Lender"
and collectively as the "Lenders"), GE Capital as agent (in such capacity,
"Agent") and Comerica as collateral agent (in such capacity, the "Collateral
Agent").
RECITALS
A. Borrower, the Credit Parties, Agent, the Collateral Agent and the
Lenders are parties to that certain Loan Agreement dated as of July 15, 1999 (as
amended, modified or supplemented, the "Loan Agreement"), pursuant to which the
Lenders have agreed to make a term loan to the Borrower.
B. The parties to the Loan Agreement have agreed that the Loan Agreement be
amended as set forth herein and each such party is willing to agree to such
amendments subject to the terms and conditions hereinafter set forth.
C. Section 10.1 of the Loan Agreement provides that the Loan Agreement may
be amended by the written consent of Agent, the Collateral Agent and the
Lenders.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 RELATION TO THE LOAN AGREEMENT;
DEFINITIONS.
1.1 Relation to Loan Agreement. This Amendment No. 1 constitutes an
integral part of the Loan Agreement.
1.2 Capitalized Terms. For all purposes of this Amendment No. 1,
capitalized terms used herein without definition shall have the meanings
specified in the Loan Agreement, as said agreement shall be in effect on the
Amendment No. 1 Effective Date after giving effect to this Amendment No. 1.
SECTION 2 AMENDMENTS TO THE LOAN AGREEMENT.
2.1 Amendment to Recitals of the Loan Agreement. Recitals A and B of the
Loan Agreement are amended by deleting them in their entirety and replacing them
with the following:
A. The purpose of this Agreement is to provide to Borrower term loans
(the "Loans") up to the aggregate principal amount of U.S.$20,000,000 (the
"Maximum Loan Amount").
B. Borrower desires to obtain the Loans from the Lenders, and the
Lenders are willing to provide the Loans all in accordance with the terms
of this Agreement.
2.2 Amendment to Section 1.1 of the Loan Agreement. Section 1.1 of the Loan
Agreement is amended by deleting it in its entirety and replacing it with the
following:
1.1 The Loans. (a) The Lenders agree, on the terms and conditions
hereinafter set forth, to make Loans to Borrower, the principal amount of
which in the aggregate at no time shall exceed the Maximum Loan Amount, and
each such Loans shall be made by Lenders as follows:
(i) an initial advance (the "Initial Loan") of FIFTEEN MILLION
DOLLARS (U.S.$15,000,000) to be made to Borrower by the Lenders on the
Funding Date subject to the applicable conditions precedent set forth
in Section 2.2; and
(ii) subject to Section 2.3 below, a future advance or future
advances (each, a "Subsequent Loan") up to the Borrowing Availability;
provided that each Subsequent Loan shall be for a minimum amount of
TWO MILLION FIVE HUNDRED THOUSAND DOLLARS (U.S.$2,500,000) or
multiples thereof.
(b) Each of the Loans made hereunder shall be evidenced by, and be
repayable in accordance with the terms of, a Note delivered to each Lender,
on or before the Funding Date or Advance Date, as the case may be, in the
principal face amount of such Lender's portion of such Loan dated as of the
Funding Date or Advance Date, as the case may be.
2.3 Amendment to Section 1.2 of the Loan Agreement. Section 1.2 of the Loan
Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Loans."
2.4 Amendments to Section 1.3 of the Loan Agreement. Section 1.3 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Loans."
2.5 Amendments to Section 1.4 of the Loan Agreement. Section 1.4 of the
Loan Agreement is amended by deleting it in its entirety and replacing it with
the following:
1.4 Single Obligation. The Loans and all of the other Obligations of
Borrower to Agent, Collateral Agent and the Lenders shall constitute one
general obligation of Borrower secured by all of the Collateral.
2.6 Amendment to Section 1.5 of the Loan Agreement. Section 1.5 of the Loan
Agreement is amended by deleting it in its entirety and replacing it with the
following:
1.5 Interest.
(a) Borrower shall pay interest to the Lenders on the aggregate
outstanding balance of each Loan at a floating rate equal to (i) LIBOR
plus three percent (3.00%) per annum from and including the initial
funding date of such Loan to and including the Initial Maturity Date;
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and (ii) LIBOR plus three and 50/100 percent (3.50%) from the Initial
Maturity Date through and including August 1, 2000 (in each case, the
"Term Loan Rate").
(b) Interest shall be payable on the outstanding balance of each
Loan in arrears on each Interest Payment Date, the Maturity Date and,
if any amounts hereunder remain outstanding, upon demand of Agent.
(c) All computations of interest shall be made by the Lenders on
the basis of a three hundred sixty (360) day year, in each case for
the actual number of days occurring in the period for which such
interest is payable.
(d) Effective upon the occurrence of any Default and for so long
as any Default shall be continuing, the Term Loan Rate shall, upon
notice by Agent to Borrower, be increased by three percentage points
(3.0%) per annum (the "Default Rate"), and all outstanding
Obligations, including unpaid interest shall continue to accrue
interest from the date of such Default at the Default Rate applicable
to such Obligations; provided, however, that the Default Rate shall
not accrue for the first fifteen (15) days following a breach of
Sections 3.12 and 3.20(b).
(e) In no event will the Lenders charge interest at a rate that
exceeds the highest rate of interest permissible under any law that a
court of competent jurisdiction shall, in a final determination, deem
applicable. Amounts paid or to be collected by any Lender in excess of
interest calculated at the highest rate permitted by law will be
applied by such Lender as provided for in Section 1.9.
(f) Borrower may select the duration of each LIBOR Period for all
Loans after the initial LIBOR Period so long as Agent has received
irrevocable written notice from Borrower of such selection not later
than 10:00 a.m. (New York time) three (3) Business Days before the
expiration of the then current LIBOR Period. Borrower's failure to
timely select a new LIBOR Period to be applicable to the Loans shall
be deemed to have selected a three (3) month LIBOR Period. Agent
promptly shall notify each Lender of any notice by Borrower made under
this Section 1.5(f), or if such notice is not timely received, Agent
promptly will notify each Lender of the applicable LIBOR Period.
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(g) If LIBOR becomes unavailable and Borrower and the Lenders
cannot reach agreement as to an alternate rate, the Obligations
hereunder will become due and payable in full, on the last Business
Day of the then current LIBOR Period.
2.7 Amendment to Section 1.8 of the Loan Agreement. Section 1.8 of the Loan
Agreement is amended as follows: all references to the term "Note" shall be
deemed to be references to the term "Notes."
2.8 Amendment to Section 1.9 of the Loan Agreement. Section 1.9 of the Loan
Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be referenced to the term "Loans."
2.9 Amendment to Section 1.10 of the Loan Agreement. Section 1.10 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be referenced to the term "Loans."
2.10 Amendment to Section 1.13 of the Loan Agreement. Section 1.13 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be referenced to the term "Loans."
2.11 Amendment to Section 1.15 of the Loan Agreement. Section 1.15 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be referenced to the term "Loans."
2.12 Amendment to Section 2.2 of the Loan Agreement. Section 2.2 of the
Loan Agreement is amended by deleting it in its entirety and replacing it with
the following:
2.2 Conditions to the Initial Loan. The Lenders shall have no
obligation to make the Initial Loan until, and shall make the Initial
Loan when, each of the following conditions shall have been satisfied
(the "Funding Date"); provided, however, that the Funding Date shall
have occurred within thirty (30) days of the Effective Date;
(a) the Effective Date shall have occurred;
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(b) immediately before and after giving effect to the Initial
Loan, no Default or Event of Default shall have occurred and be
continuing;
(c) the representations and warranties of Borrower and each other
Credit Party contained in this Agreement and the other Loan Documents
shall be true and correct on and as of the Funding Date;
(d) no Material Adverse Effect shall have occurred since the
Effective Date;
(e) the Acquisition shall have been consummated and in accordance
with all applicable laws, and:
(i) Borrower shall have delivered to Agent a complete and
correct copy, certified as such by an appropriate officer of
Borrower, of the Stock Purchase Agreement, together with all
schedules, exhibits, amendments, supplements, modifications,
assignments and all other documents delivered pursuant thereto or
in connection therewith (collectively, the "Acquisition
Documents"), which Acquisition Documents shall not differ in any
material adverse respect from those delivered on the Effective
Date;
(ii) the Stock Purchase Agreement shall be in full force and
effect, and not terminated, rescinded and withdrawn, and in
compliance with all applicable laws;
(iii) no Credit Party and no other Person party to the Stock
Purchase Agreement shall be in default in the performance or
compliance with any provisions thereof;
(iv) all requisite approvals (including, but not limited to,
Hart-Scott-Rodino clearance) by Governmental Authorities having
jurisdiction over Sellers (as defined in the Stock Purchase
Agreement), any Credit Party and other Persons referenced
therein, with respect to the transactions contemplated by the
Stock Purchase Agreement, shall have been obtained, and no such
approvals shall impose any conditions to the consummation of the
transactions contemplated by the Stock Purchase Agreement or to
the conduct by any Credit Party of its business thereafter;
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(v) to the best of each Credit Party's knowledge, none of
the Sellers' (as defined in the Stock Purchase Agreement)
representations or warranties in the Stock Purchase Agreement
shall contain any untrue statement of a material fact or omit any
fact necessary to make the statements therein not misleading; and
(vi) each of the representations and warranties given by
each applicable Credit Party in the Stock Purchase Agreement
shall be true and correct in all material respects;
(f) Agent and the Collateral Agent shall have received the
following:
(i) the Pledge Agreement in the form of Exhibit C hereto
pledging to the Collateral Agent the Pledged Shares for the
benefit of the Lenders pursuant to Section 6.1;
(ii) evidence that the Pledge Agreement has been duly
authorized by all necessary corporate action;
(iii) the Pledged Shares, accompanied by appropriate stock
powers and/or any other instruments, documents or agreements
necessary to validate the pledge of the Pledged Shares to the
Collateral Agent;
(iv) an opinion of counsel to Elamex USA, in form and
substance satisfactory to Agent and the Collateral Agent,
addressed to Agent, the Collateral Agent and the Lenders opining
on the enforceability of the Pledge Agreement; and
(v) such other approvals, opinions, documents or materials
as Agent or the Collateral Agent may reasonably request in
connection with the Pledge Agreement;
(g) Agent on behalf of the Lenders shall have received a duly
executed Note to the order of each Lender;
(h) Agent shall have received from Precision Tool, all duly
executed agreements, documents or instruments required by Agent or the
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Lenders pursuant to which Precision Tool agrees to be bound as a
Credit Party by the applicable terms and conditions of this Agreement;
(i) Agent shall have received an acknowledgment by CT Corporation
System of its acceptance of appointment as Precision Tool's agent for
service of process;
(j) Agent shall have received environmental audit reports
(including, without limitation, Phase 1, Phase 2 and Remedies
environmental reports) concerning Precision Tool in scope and
substance satisfactory to Agent and the Lenders;
(k) (Reserved);
(l) Agent shall have received evidence satisfactory to it that
the insurance policies provided for in Section 3.18 are in full force
and effect with respect to Precision Tool;
(m) Agent shall have received evidence satisfactory to Agent and
each Lender of payment by Borrower of the Funding Date Closing Fee and
all other fees, costs, and expenses (including, but not limited to,
traveling expenses and fees of counsel to Agent and the Lenders
presented as of the Funding Date) to the extent then due and payable
as of the Funding Date; provided, however, that nothing contained in
this Section 2.2 shall relieve Borrower from its obligation under this
Agreement to pay for Fees and all other fees (including, but not
limited to, fees of counsel to Agent and the Lenders), costs and
expenses arising or invoiced after the Funding Date;
(n) Agent shall have received evidence satisfactory to Agent and
each Lender that the bank accounts set forth in Supplemental
Disclosure Schedule (3.19) exist and are subject to the agreements
(including the Collateral Account Service Agreement, the Pledged
Account Agreement (Operating Account) and the Pledged Account
Agreement (Reserve Account)) and conditions set forth in Article 6
hereof;
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(o) Agent shall have received evidence satisfactory to it that
Borrower has directed all Receivable Obligors to make all payments on
Receivables directly to the Collateral Account;
(p) [Reserved];
(q) Agent shall have received the Payment Source Agreement duly
executed by Borrower and the other parties thereto before a Mexican
notary public;
(r) Agent shall have received in form and substance satisfactory
to it and each Lender, (i) an opinion of special Mexican counsel to
Borrower and the Mexican Subs, (ii) opinion(s) from special U.S.
counsel to the Credit Parties with respect to such matters as Agent
may request including without limitation matters relating to U.S.
Federal and New York state law;
(s) the face value of Borrower's Eligible Receivables as of the
Funding Date as determined by Agent (in its sole discretion) shall be
greater than U.S.$4,000,000;
(t) Agent shall have received such other approvals, opinions,
supplements to Disclosure Schedules, documents or other materials as
Agent, the Collateral Agent or any Lender may request; and
(u) funding of the Initial Loan shall not cause the Collateral
Value to be less than 1.2.
2.13 Amendment to Article 2 of the Loan Agreement. Article 2 to the Loan
Agreement is amended by adding the following Section 2.3.
2.3 Additional Conditions Precedent to Subsequent Loans. The
obligation of the Lenders to make a Subsequent Loan hereunder, is
subject to the following conditions precedent:
2.13.1 Agent shall have received, at least five (5) Business Days
before the intended Advance Date, (with sufficient copies for each of
the Lenders) the following documents from Borrower, each of which
shall be in form and substance satisfactory to Agent and Lenders:
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(i) a notice of borrowing specifying the amount of the
requested Subsequent Loan and the intended Advance Date, which
notice of borrowing shall be irrevocable;
(ii) a certificate of Borrower that all representations and
warranties of the Credit Parties contained herein are true and
correct in all material respects as of its date of delivery to
Agent and committing to Agent and the Lenders that, unless they
have received a written notice to the contrary (a "Contrary
Notice") on or before the Advance Date, such representations and
warranties shall be true and correct in all material respects as
of the Advance Date for such Subsequent Loan with the same effect
as though such representations and warranties had been made on
and as of such date;
(iii) Promissory Note(s) in an aggregate amount of such
Subsequent Loan duly executed by Borrower and the Guarantors to
the appropriate Lenders (to each in the amount of its portion of
such Subsequent Loan); and
(iv) such other documents or agreements as Agent or Lenders
reasonably may require.
2.13.2 after giving effect to the making of the Subsequent Loan and
unless disclosed in a Contrary Notice (i) all representations and
warranties made by each Credit Party herein shall be true and accurate in
all material respects on the date of the Subsequent Loan with the same
effect as though such representations and warranties had been made on and
as of such date, and (ii) no Default or Event of Default shall have
occurred and be continuing on such date;
2.13.3 unless disclosed in a Contrary Notice, no Material Adverse
Effect shall have occurred since the Funding Date or the last Advance Date;
2.13.4 after giving effect to the making of such Subsequent Loan, the
aggregate principal amount of all Loans made hereunder shall not exceed the
sum of the Commitments then in effect of all the Lenders; and
(e) Agent shall have received evidence satisfactory to Agent and
each Lender of payment by Borrower of Fees, all other fees, costs, and
expenses (including, but not limited to, traveling expenses and fees
of counsel to Agent and the Lenders presented as of the Advance Date)
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to the extent then due and payable as of such Advance Date; provided,
however, that nothing contained in this Section 2.3 shall relieve
Borrower from its obligation under this Agreement to pay any Fees, all
other fees (including, but not limited to, fees of counsel to Agent
and the Lenders), costs and expenses arising or invoiced after such
Advance Date.
If any other term of any Loan Document should conflict, or appear to
conflict, with this Article 2, the terms of this Article 2 shall
control, and Borrower shall have no rights under this Agreement or any
other Loan Document until each of the conditions of this Article 2 has
been complied with to Agent's and each Lender's satisfaction or
specifically waived in a writing by the Lenders (and acknowledged by
Agent) identifying by section number the condition to be waived and
the specific circumstance with respect to which the condition is
waived.
2.14 Amendment to the Introductory Paragraph in Article 3 of the Loan
Agreement. The introductory paragraph of Article 3 of the Loan Agreement is
amended as follows: all references to the term "Loan" shall be deemed to be
references to the term "Loans."
2.15 Amendment to Section 3.10 of the Loan Agreement. Section 3.10 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Loans."
2.16 Amendment to Section 3.14 of the Loan Agreement. Section 3.14 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deeded to be references to the term "Loans."
2.17 Amendment to Section 3.16 of the Loan Agreement. Section 3.16 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Loans."
2.18 Amendment to Article 4 of the Loan Agreement. Article 4 of the Loan
Agreement is amended by adding the following Section 4.4:
4.4 Final Audit Report of Precision Tool. Within thirty (30) days of
the Funding Date, Borrower shall deliver a complete copy of the final
audit report of Precision Tool prepared in connection with the
Acquisition together with a copy of any separate communications from
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the auditors to Borrower's management and/or board of directors in
relation to its final audit report or the Acquisition, and the
financial statements on which the final audit report has been
prepared.
2.19 Amendment to Section 6.1 of the Loan Agreement. Section 6.1 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Loans."
2.20 Amendment to Section 6.6 of the Loan Agreement. Section 6.6 of the
Loan Agreement is amended by deleting it in its entirety and replacing it with
the following:
6.6 Minimum Collateral Value: The Collateral Value shall not be less
than 1.2 times the outstanding principal amount of the Loans on any
date of determination thereof (the "Minimum Collateral Value"). In the
event the Collateral Value, on any date of determination thereof, is
less than the Minimum Collateral Value, Borrower shall, within five
(5) days, deposit into the Reserve Account the funds necessary to
cause the Collateral Value to be equal to the Minimum Collateral
Value. In the event that the Collateral Value, on any date of
determination thereof, is greater than the Minimum Collateral Value,
Borrower may (i) subject to Section 1.1 and Section 2.3, request a
Subsequent Loan; provided that after giving effect to such Subsequent
Loan, the Collateral Value will not be less than the Minimum
Collateral Value; or (ii) request that Agent instruct the Collateral
Agent to deposit into the Operating Account, the "Excess Funds" on
deposit in the Reserve Account, if any. For the purposes of this
Section 6.6, "Excess Funds" shall mean any funds on deposit in the
Reserve Account, the withdrawal of which, would not cause the
Collateral Value to be less than the Minimum Collateral Value.
2.21 Amendment to Section 7.1(b) of the Loan Agreement. Section 7.1(b) of
the Loan Agreement is amended by deleting it in its entirety and replacing it
with the following:
(b) Any Credit Party shall fail or neglect to perform, keep or observe
any of the covenants, promises, agreements, requirements, conditions
or other terms or provisions contained in this Agreement (including,
but not limited to, Section 4.4 hereof) or any of the other Loan
Documents, regardless of whether such breach involves a covenant,
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promise, agreement, condition, requirement, term or provision with
respect to any Credit Party that has not signed this Agreement; or
2.22 Amendment to Section 7.1(n) of the Loan Agreement. Section 7.1(n) of
the Loan Agreement is amended by deleting the period at the end of such section
and replacing it with "; or".
2.23 Amendment to Section 7.1 of the Loan Agreement. Section 7.1 of the
Loan Agreement is amended by adding the following Section 7.1(o):
(o) the relevant Governmental Authorities for the State of
Kentucky take any judicial, administrative or any other action with
respect to possible ground water contamination in connection with the
property commonly known as 6901 Preston Highway in Louiseville,
Kentucky.
2.24 Amendment to Section 7.2(a) of the Loan Agreement. Section 7.2(a) of
the Loan Agreement is amended as follows: all references to the term "Loan"
shall be deemed to be references to the term "Loans."
2.25 Amendment to Section 10.1 of the Loan Agreement. Section 10.1 of the
Loan Agreement is amended as follows: all references to the term "Loan" shall be
deemed to be references to the term "Initial Loan."
2.26 Amendment to Section 10.11(b) of the Loan Agreement. Section 10.11(b)
of the Loan Agreement is amended as follows: all references to the term "Note"
shall be deemed to be references to the term "Notes."
2.27 Amendment to Annex A to the Loan Agreement. Annex A to the Loan
Agreement is amended deleting it in its entirety and replacing it with Exhibit A
to this Amendment No. 1.
2.28 Amendment to Schedule A to the Loan Agreement. (a) Schedule A to the
Loan Agreement is amended by deleting the definitions of "Commitment," "Excess
Withholding Taxes," "Interest Payment Date," "LIBOR Period," "Take-Out
Financing" and "Termination Date" and replacing them with the following.
"Commitment" means as to any Lender, the commitment of such Lender
with respect the Loans as set forth on Annex A to this Agreement.
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"Excess Withholding Taxes" means any withholding taxes, or any portion
thereof, which would not have been imposed but for (a) failure by any
Lender (i) to provide to Borrower upon request of Borrower, and if and
when required under applicable law, a letter specifying that the
Lenders are the effective beneficiary of the interest payments
hereunder and under the Notes, as set forth in the "Resolution that
Establishes General Rules and Other Provisions of a Tax Nature for
1999" (Resolucion que Establece Reglas Generales y Otras Disposiciones
de Caracter Fiscal para el ano de 1999) or any equivalent general
rules in effect thereafter while this Agreement shall remain in full
force and effect, (ii) following a reasonable written request of
Borrower to complete and file with the appropriate governmental
authority, or to provide to Borrower such forms, certificates,
information, applications or declarations prescribed by any such law,
rule or regulation enacted or issued by Mexico or any political
subdivision thereof or authority therein, or a double taxation treaty
to which Mexico is a party that are a precondition for a reduction of
or exemption from such Taxes to which any Lender is entitled
(provided, that such Lender shall be under no obligation to provide
any information to Borrower which it deems, in such Lender's judgment,
to be confidential or legally or commercially prejudicial to such
Lender), or (iii) to use its reasonable commercial efforts to maintain
its status as a Registered Entity; or (b) the participation or
assignment of the Loans or any portion thereof to an entity which is
not a Mexican bank or a Registered Entity at the time of such
participation or assignment or which subsequently fails to comply with
the provisions of clauses (a)(i) through (a)(iii) above as applicable
to any Lender.
"Interest Payment Date" means the last day of each LIBOR Period
applicable to the Loans.
"LIBOR Period" means each period commencing on a LIBOR Business Day
and ending one (1) or three (3) months thereafter as selected by
Borrower pursuant to Section 1.5(f); provided that the foregoing
provision relating to LIBOR Periods is subject to the following:
(a) the initial LIBOR Period for each Initial Loan shall commence
on the Funding Date and shall end three (3) months thereafter (the
"Initial Interest Payment Date"); the initial LIBOR Period for any
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Subsequent Loan shall commence on the Advance Date for such Loan and
shall end on the Initial Interest Payment Date;
(b) if any LIBOR Period would otherwise end on a day that is not
a LIBOR Business Day, such LIBOR Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such extension
would be to carry such LIBOR Period into another calendar month in
which event such LIBOR Period shall end on the immediately preceding
LIBOR Business Day;
(c) any LIBOR Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(d) any LIBOR Period that begins on the last LIBOR Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR
Period) shall end on the last LIBOR Business Day of a calendar month.
"Loan"shall mean the Initial Loan or any Subsequent Loan; "Loans"
means collectively, the Initial Loan and any Subsequent Loan(s).
"Take-Out Financing" shall mean any subsequent refinancing of the
Loans that may be provided by the Lenders on or before July 31, 2000,
which refinancing each Lender shall provide subject to its sole and
absolute discretion after obtaining internal credit approval.
"Termination Date" shall mean the date on which the Loans and any
other Obligations under the Agreement are paid in full, in cash, and
Borrower shall have no further right to borrow any moneys or obtain
other credit extensions or financial accommodations under the
Agreement.
(b) Schedule A to the Loan Agreement is amended by adding the following
definitions in alphabetical order.
"Advance Date" shall mean for any Subsequent Loan, the LIBOR Business
Day on which the conditions precedent set forth in Section 2.3 are met
or waived in writing by the Agent and the Lenders and such Subsequent
Loan is made.
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"Borrowing Availability" shall mean the lesser of (A) the Maximum Loan
Amount or (B) the positive sum of, on any date of determination
thereof, the Collateral Value minus the Minimum Collateral Value.
"Initial Loan" shall have the meaning assigned thereto in Section
1.1(a).
"Initial Maturity Date" shall have the meaning assigned thereto in
Section 1.2(a).
"Subsequent Loan" shall have the meaning assigned thereto in Section
1.1(b).
2.29 Amendment to Schedule C to the Loan Agreement. Schedule C to the Loan
Agreement is amended as follows: references to the term "Loan" shall be deemed
to be references to the term "Loans."
SECTION 3 CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS.
3.1 Amendment Effective Date. The provisions of Section 2 of this Amendment
No. 1 shall become effective as of the date on which each of the following
conditions shall have been satisfied or waived by Agent, the Collateral Agent or
the Lenders signing this Amendment No. 1 (the "Effective Date"):
(a) Execution of Counterparts. Counterparts of this Amendment No. 1
shall have been executed and delivered by each of the Credit Parties,
Agent, the Collateral Agent and the Lenders.
(b) Proceedings, Instruments, etc. All proceedings and actions taken
on or prior to the Effective Date in connection with the transactions
contemplated by this Amendment No. 1 and all instruments incident thereto
shall be in form and substance satisfactory to Agent and the Lender and
their special counsel, and Agent and its special counsel shall have
received copies of all documents that it or they may request in connection
with such proceedings, actions and transactions, in each case in form and
substance satisfactory to Agent and its special counsel.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES.
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To induce each Lender to enter this Amendment No. 1, each Credit Party
represents and warrants to Agent and each Lenders as follows:
4.1 Corporate Proceedings; Validity of Amendment. Each of the Credit
Parties has taken all corporate action necessary to be taken by it to authorize
the execution and delivery of this Amendment No. 1. This Amendment No. 1 has
been duly executed and delivered by each Credit Party and constitutes the legal,
valid and binding obligation of such Credit Party, enforceable against such
Credit Party in accordance with its terms.
4.2 No Default or Event of Default. After giving effect to the amendments
set forth in Section 2 of this Amendment No. 1, no event has occurred and no
condition exists which constitutes a Default or an Event of Default under the
Loan Agreement or the Loan Documents.
4.3 No Material Adverse Effect. There has not occurred, since the Effective
Date (as defined in the Loan Agreement), a Material Adverse Effect, and the
execution of this Amendment No. 1 shall not cause a Material Adverse Effect to
occur.
4.4 Ratification and Confirmation of Credit Agreement. The Loan Agreement
and all other Loan Documents and all representations, warranties, terms and
conditions therein remain in full force and effect, and each Credit Party hereby
confirms and ratifies each of the provisions of the Loan Agreement and the other
Loan Documents.
SECTION 5 MISCELLANEOUS.
5.1 Cross-References. References in this Amendment No. 1 to any Section
are, unless otherwise specified, to such Section of this Amendment No. 1.
5.2 Successors and Assigns. This Amendment No. 1 shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
5.3 Counterparts. This Amendment No. 1 may be executed simultaneously in
two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute together but one and the same instrument.
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5.4 GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
5.5 Expenses. The Borrower agrees to pay all expenses of Agent, the
Collateral Agent and the Lenders in connection with the transactions
contemplated by this Amendment No. 1 (including, without limitation, the
reasonable fees and expenses of counsel for Agent, the Collateral Agent and the
Lenders).
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly executed as of the date
first written above.
ELAMEX, S.A DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Gordon J. Smith
Name: Gordon J. Smith
Title:Chief Financial Officer
COMERICA BANK, as Collateral Agent
By: /s/ Juan C. Sanchez
Name: Juan C. Sanchez
Title:Assistant Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Lender
By: /s/ Gordon J. Smith
Name: Gordon J. Smith
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Title:Chief Financial Officer
COMERICA BANK, as Lender
By: /s/ Juan C. Sanchez
Name: Juan C. Sanchez
Title:Assistant Vice President
The undersigned are signatories to this Amendment No. 1 in their capacity
as Credit Parties and not as a Borrower. Each of the undersigned who also are
Guarantors hereby: (i) acknowledge and consent to the execution, delivery and
performance of this Amendment No. 1; (ii) confirm the truth and validity of the
representations and warranties set forth herein, to the extent such
representations an warranties pertain to the undersigned, respectively, and
(iii) ratify and agree to perform the covenants and agreements set forth in this
Amendment No. 1, to the extent such covenants and agreements specifically
pertain to the undersigned, respectively.
ELAMEX DE JUAREZ, S.A. DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
ELAMEX DE NUEVO LAREDO, S.A. DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
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Title:Vice-President and Chief Financial Officer
ELAMEX DE OCCIDENTE, S.A. DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
ELECTRONICA ALCAZAR, S.A. DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
MANUFACTURAS DE TAMAULIPAS, S.A. DE C.V.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
MANUFACTURAS DE NORESTE, S.A. DE C.V.
By: /s/ Carlos D. Martens
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Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
ELAMEX USA, CORP.
By: /s/ Carlos D. Martens
Name: Carlos D. Martens
Title:Vice-President and Chief Financial Officer
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LIST OF EXHIBITS TO AMENDMENT NO. 1
Exhibit A Annex A
Exhibit A
ANNEX A
COMMITMENTS
Lenders
General Electric Capital Corporation Initial Loan: U.S.$7,500,000
Subsequent Loan(s): U.S.$2,500,000
(in the aggregate)
Commitment: U.S.$10,000,000
Comerica Bank Initial Loan: U.S.$7,500,000
Subsequent Loan(s): U.S.$2,500,000
(in the aggregate)
Commitment: U.S.$10,000,000