Exhibit 10.1
THIRD AMENDMENT TO
LOAN AGREEMENT
THIRD AMENDMENT, dated as of September 30, 2005 (this "Amendment"),
to the Loan Agreement, dated January 14, 2003 (as previously amended, modified
or otherwise supplemented), 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 :
WHEREAS, Lender and Borrower are parties to that certain Loan
Agreement, dated January 14, 2003, as previously amended, modified or otherwise
supplemented (the "Loan Agreement"); and
WHEREAS, Borrower has requested that Lender modify certain
requirements of the Loan Agreement; and
WHEREAS, Lender has agreed to modify certain provisions of the Loan
Agreement, 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 Amendment 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. Amendments.
A. Section 9.19 of the Loan Agreement is deleted in its entirety.
B. Section 9.21 of the Loan Agreement is deleted in its entirety and
replaced with the following:
"9.21 EBITDA. Permit Borrower's EBITDA to be less than $250,000 during any
fiscal quarter beginning with the fiscal quarter ending September 30,
2005, in each case calculated for each fiscal quarter on an individual,
non-cumulative basis."
3. Representations and Warranties. To induce Lender to enter into this
Amendment, Borrower hereby represents, warrants and acknowledges that:
A. The execution, delivery and performance by Borrower of this
Amendment and the performance of the Loan Agreement, as amended hereby: 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. No Defaults or Events of Default have occurred and are continuing
as of the date hereof.
C. This Amendment has been duly executed and delivered by or on
behalf of Borrower.
D. The Loan Agreement, as 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 Amendment is
subject to and conditioned upon each of the following conditions precedent:
(a) Execution of this Amendment by an authorized officer(s) of Borrower.
(b) Receipt of legal documentation fees and expenses in the amount of
$1,250.00.
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
Amendment 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. Lender's agreement to enter into this Amendment is not and
shall not be construed as a waiver of any current or future default under the
Revolving Note, the Equipment Loan, the Real Estate Loan, the Loan Agreement or
any other Loan Document, nor shall it preclude Lender from proceeding against
Borrower on any such default. This Amendment is also not a relinquishment of any
rights or remedies Lender may have in connection with the Revolving Note, the
Equipment Loan, the Real Estate Loan, the Loan Agreement or any other Loan
Document.
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7. Waiver of Rights. By its execution of this Amendment, 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 Equipment Loan, the Real Estate Loan 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 Amendment, Borrower
acknowledges that there is due and owing as of September 30, 2005 the principal
sum of $815,222.00, 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 Equipment Loan, the Real Estate Loan,
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 Equipment Loan, the Real Estate Loan
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 Equipment Loan, the
Real Estate Loan 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 AMENDMENT 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 Amendment 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 Amendment 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
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By: John P. Reilly
Title: Managing Partner
IEC ELECTRONICS CORP.
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By: Brian Davis
Title: Vice President & CFO
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