Exhibit 10.1
WAIVER TO THE
REVOLVING LOAN AGREEMENT
WAIVER, dated as of June 25, 2004 (this "Waiver"), to the Loan
Agreement, dated January 14, 2003, as previously amended modified or otherwise
supplemented (the "Loan Agreement") by and between KELTIC FINANCIAL PARTNERS,
LP, a Delaware limited partnership ("Lender"), and IEC ELECTRONICS CORP.
("Borrower"), a corporation organized and existing pursuant to the laws of the
state of Delaware. The above referenced documents and all other agreements,
instruments, certificates and documents pursuant to or incident thereto or in
connection therewith are herein referred to as the "Loan Documents".
W I T N E S S E T H :
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WHEREAS, Lender and Borrower are parties to the Loan Agreement
and the related Loan Documents; and
WHEREAS, Borrower will be in Default of Sections 9.19 and 9.21
of the Loan Agreement for the period ended June 25, 2004, and has requested
Lender to waive such Defaults; and
WHEREAS, Lender has agreed to grant Borrower a waiver of the
above referenced Defaults, but only subject to the terms and conditions
contained herein;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties to this Waiver hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to such terms in the Loan Agreement.
2. Waiver. Subject to the terms, conditions, representations and
warranties contained herein, Lender hereby agrees to waive the Default of
Sections 9.19 and 9.21 of the Loan Agreement for the period ended June 25, 2004.
3. Representations and Warranties. To induce Lender to enter into
this Waiver, Borrower hereby represents, warrants and acknowledges that:
A. The execution, delivery and performance by Borrower
of this Waiver and the continued performance of the Loan Agreement: i) are
within its powers; ii) have been duly authorized by all necessary corporate
action; and iii) are not in contravention of any provision of its certificate of
formation, articles of incorporation or other organizational documents.
B. Except as expressly waived hereby, no Defaults or
Events of Default have occurred and are continuing as of the date hereof.
C. This Waiver has been duly executed and delivered by
or on behalf of Borrower by an authorized signator.
D. The Loan Agreement, as may be amended hereby,
constitutes a legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditor's rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
E. All Obligations outstanding under the Loan Agreement
are duly payable in accordance with the terms of the Loan Agreement without any
defense, offset, counterclaim or recoupment whatsoever.
F. The representations and warranties of Borrower
contained in the Loan Agreement and each other Loan Document shall be true and
correct on and as of the date first written above with the same effect as if
such representations and warranties had been made on and as of such date, except
that any such representation and warranty which is expressly made only as of a
specified date need only be true as of such date.
4. Conditions Precedent. The obligations of Lender under this
Waiver are subject to and conditioned upon each of the following conditions
precedent:
(a) Execution of this Waiver by an authorized officer(s) of
Borrower.
(b) Receipt of legal documentation expenses in the amount of
$500.00. Borrower authorizes and directs Lender to charge such
amount to the Revolving Loan.
5. No Other Consents/Waivers.Except as otherwise provided for
herein, the Loan Agreement shall be unmodified and shall continue in full force
and effect in accordance with its terms, and except as expressly provided for
herein, this Waiver shall not be deemed to be a waiver of, or consent under, any
term or condition of any Loan Document and shall not be deemed to prejudice any
right or rights which Lender may now have or may have in the future under or in
connection with any Loan Document or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
6. Non-Waiver. Except as otherwise provided for herein, Lender's
agreement to enter into this Waiver is not and shall not be construed as a
waiver of any current or future default under the Revolving Note, the Term Note,
the Loan Agreement or any other Loan Document, nor shall it preclude Lender from
proceeding against Borrower on any such default other than those expressly
waived herein. This Waiver is also not a relinquishment of any rights or
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remedies Lender may have in connection with the Revolving Note, the Term Note,
the Loan Agreement or any other Loan Document except with respect to any
Defaults or Events of Default expressly waived herein.
7. Waiver of Rights. By its execution of this Waiver, Borrower
expressly waives any and all rights to assert a claim, counterclaim or defense
which now exists against Lender arising out of or in any way connected with the
Loan Agreement, the Revolving Note, the Term Note, or any other Loan Document or
in any other transaction between Lender and Borrower. The foregoing waiver shall
apply to any action instituted by any of the undersigned and to any action or
proceeding brought against any of the undersigned by Lender.
8. Acknowledgement of Debt. By execution of this Waiver, Borrower
acknowledges that there is due and owing as of June 25, 2004 the principal sum
of $915,529.67, which sums are not subject to any defense, counterclaim or
set-off.
9. Further Discussions. Borrower acknowledges that discussions
may take place between itself and Lender after the date hereof concerning
additional modifications of the Revolving Note,the Term Note, the Loan Agreement
and the Loan Documents. Lender in its sole and absolute discretion may terminate
any such discussions at any time and for any reason or no reason and Lender
shall have no liability for failing to engage in or terminating any such
discussions. While the parties hereto may reach preliminary agreement as to any
additional modifications of one or more provisions of the Loan Agreement, the
Revolving Note, the Term Note and/or the Loan Documents, none of the undersigned
shall be bound by any such agreement on any individual point until agreement is
reached on every issue and the agreement on all such issues has been reduced to
a written agreement signed by Lender and Borrower. Further, the Loan Agreement
may only be amended by a written agreement executed by Borrower and Lender and
no negotiations or other actions undertaken by Lender shall constitute a waiver
of Lender's rights under this agreement, the Loan Agreement, the Revolving Note,
the Term Note or other Loan Documents except to the extent specifically set
forth in a written agreement complying with the provisions of this paragraph.
10. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO ITS CONFLICT OF LAW PRINCIPLES.
11. WAIVER OF JURY TRIAL. BORROWER AND LENDER ACKNOWLEDGE AND
AGREE THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM,
BROUGHT OR INSTITUTED BY BORROWER OR LENDER ON OR WITH RESPECT TO ANY LOANS, THE
OBLIGATIONS OR THE RELEVANT DOCUMENTS OR THE DEALINGS OF THE PARTIES WITH
RESPECT HERETO OR THERETO SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY AND
EACH PARTY HEREBY WAIVES THE RIGHT TO TRIAL BY JURY.
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12. Counterparts. This Waiver may be executed by the parties
hereto on any number of separate counterparts and all said counterparts, when
taken together, shall be deemed to constitute one and the same original
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed and delivered as of the day and year first written above.
KELTIC FINANCIAL PARTNERS, LP
By its General Partner,
Keltic Financial Services LLC
/s/ JOHN P. REILLY
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By: John P. Reilly
Title: Managing Partner
IEC ELECTRONICS CORP.
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By:
Title:
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