Exhibit 10
EXECUTION VERSION
WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT
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THIS WAIVER AND THIRD AMENDMENT TO CREDIT AGREEMENT ("Third Waiver and
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Amendment"), dated as of January 15, 2002, is entered into by and among ARTESYN
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TECHNOLOGIES, INC., a Florida corporation (the "Company"), as a borrower,
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ARTESYN CAYMAN LP, a Cayman Islands exempted limited partnership, ARTESYN NORTH
AMERICA, INC., a Delaware corporation and ARTESYN TECHNOLOGIES COMMUNICATION
PRODUCTS, INC., a Wisconsin corporation, as the initial Subsidiary Borrowers,
the financial institutions party to the Credit Agreement, as Lenders and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.
RECITALS
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A. The Company, certain Subsidiary Borrowers, the Guarantors, the Lenders,
and the Administrative Agent are parties to a Credit Agreement dated as of
January 23, 2001, as amended and modified by the Waiver and First Amendment to
Credit Agreement (the "First Waiver and Amendment") dated as of October 12,
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2001, and by the Waiver and Second Amendment to Credit Agreement (the "Second
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Waiver and Amendment") dated as of December 3, 2001 (as it may be further
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amended, modified or supplemented from time to time the "Credit Agreement"),
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pursuant to which the Administrative Agent and the Lenders have extended certain
credit facilities to the Company and certain of its Subsidiaries.
B. The Company has requested that the Lenders waive certain provisions of
the Credit Agreement and agree to certain amendments of the Credit Agreement.
C. The Required Lenders are willing to grant such waivers and to amend the
Credit Agreement, subject to the terms and conditions of this Third Waiver and
Amendment .
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
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herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Waiver.
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(a) The Lenders hereby waive (i) performance or observance of the
covenants set forth in Sections 6.11, 6.12 and 6.13 of the Credit Agreement (as
amended by the First Waiver and Amendment and the Second Waiver and Amendment)
solely with respect to the fiscal quarters and Test Periods ending on or nearest
September 30, 2001 and December 31, 2001 and (ii) any Default or Event of
Default arising pursuant to Section 8.01(b) solely due to the representation set
forth in the last sentence of Section 5.05 being remade on or before the
Effective Date (as hereinafter defined) in respect of an event or circumstance
which constitutes a Material Adverse Effect under clause (a) or (b) of the
definition thereof in the Credit Agreement
and which Default or Event of Default is a consequence of events or
circumstances that occurred prior to the Effective Date (collectively, the
"Waived Defaults").
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(b) Nothing contained herein shall be deemed a waiver of (or otherwise
affect the Administrative Agent's or the Lenders' ability to enforce) any
Default or Event of Default (other than the Waived Defaults).
3. Amendments to Section 1.01 of Credit Agreement.
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(i) Section 1.01 of the Credit Agreement shall be amended by deleting the
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following definitions in their entirety:
"Arranger"
"Consolidated Net Worth"
"Consolidated Total Indebtedness"
"First Amendment"
"Second Amendment"
"Test Period".
(ii) Section 1.01 of the Credit Agreement shall be further amended
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(a) by deleting the definition of "Applicable Rate" in its entirety and
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replacing it with the following:
"'Applicable Rate' means, for Eurocurrency Loans, 250 basis points per
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annum, and for Base Rate Loans, 150 basis points per annum."
(b) by deleting from the definition of "Audited Financial Statements"
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the number "1999" and inserting in lieu thereof the number "2000";
(c) by deleting the definition of "Collateral" in its entirety and
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replacing it with the following:
"'Collateral' means, collectively, (i) all "Collateral", as such term is
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defined in any of the Collateral Documents, and (ii) all properties,
rights, interests and privileges from time to time subject to the lien and
security interests granted to the Administrative Agent for the benefit of
the L/C Issuer and the Lenders pursuant to Cash Collateralizations."
(d) by deleting the definition of "Consolidated EBITDA" in its entirety
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and replacing it with the following:
"'Consolidated EBITDA' means for any period, the Consolidated Net Income
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(or loss) of the Company and its Subsidiaries for such period, adjusted by
adding thereto (or subtracting, in the case of a gain) the following
amounts to the extent deducted or
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included, as applicable, when calculating Consolidated Net Income: (a)
Consolidated Interest Expense, (b) income taxes, (c) any extraordinary
gains or losses, determined in accordance with GAAP, (d) restructuring
costs related to plant closures including but not limited to such things as
severance of employees, remaining contractual obligations (such as leases)
and asset write-offs, the total cash cost of which shall not exceed an
additional $12 million from and after January 1, 2002 through the Maturity
Date throughout the remaining term of the Loan, (e) all amortization
expense and/or impairment charges related to goodwill and other
intangibles, (f) depreciation, (g) any non-cash gains or losses resulting
from the cumulative effect of changes in accounting principles, and (h)
legal expenses related to pending legal proceedings and any settlement
thereof (up to a maximum of $5 million)."
(e) by deleting from the definition of "Continuing Directors" the
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words "on the date hereof" and inserting in lieu thereof the words "as of
January 23, 2001";
(f) by deleting the definition of "Default Rate" in its entirety and
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replacing it with the following:
"'Default Rate' means an interest rate equal to (a) the Base Rate plus (b)
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the Applicable Rate plus (c) 2% per annum."
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(g) by inserting into the definition of "Loan Documents" immediately
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after the words "the Pledge Agreement," the words "the Security Agreement, each
Mortgage, each Blocked Account Agreement"; and
(h) by deleting from the definition of "Swing Line Sublimit" the term
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"$15,000,000" and inserting in lieu thereof the term "$5,000,000".
(iii) Section 1.01 of the Credit Agreement shall be further amended by
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inserting the following additional defined terms in their respective
alphabetical order:
(a) "'Aggregate Available Commitment' means, as of any date of
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determination, (i) during all periods prior to the reduction of the
Aggregate Commitment to $70,000,000 or less in accordance with Section 2.06
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or 2.06A hereof, the sum of $70,000,000 plus the Excess Availability, and
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(ii) from and after the date of the reduction of the Aggregate Commitment
to $70,000,000 or less, the Aggregate Commitment."
(b) "'Blocked Account Agreements' has the meaning specified in Section
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4.04(a)."
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(c) "'Collateral Documents' means, collectively, the Pledge Agreement, the
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Security Agreement, the Mortgages, the Blocked Account Agreements, and any
other documents executed and delivered by the Borrower or a Guarantor
granting a lien on its property to secure payment of the Obligations."
(d) "'Eligible Working Capital' means as of any date of determination the
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sum of (a) the amount equal to eighty percent (80%) of the aggregate face
amount of Borrowers' and their Subsidiaries' accounts receivable that are
not more than sixty days past due from customer payment terms and that have
customer payment terms not greater than ninety
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days plus (b) the amount equal to twenty-five percent (25%) of the book
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value of Borrowers' raw materials and work-in-process inventory plus (c)
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the amount equal to sixty percent (60%) of the book value of Borrowers'
finished goods inventory."
(e) "'Escrow Agreement' means that certain Escrow and Cash Collateral
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Agreement, dated as of December 13, 2001, between Artesyn Technologies,
Inc., and Bank of America, N.A., as Escrow Agent."
(f) "'Excess Availability' means, as of any date of determination, the
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lesser of (x) the amount by which the Aggregate Commitment exceeds
$70,000,000 and (y) the product of (i) the amount by which Eligible Working
Capital exceeds $70,000,000 times (ii) .75, provided, however, that Excess
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Availability may never exceed $15,000,000."
(g) "'Landlord Consent and Estoppel' means, with respect to any Leasehold
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Property, a letter, certificate or other instrument in writing from the
lessor under the related lease, reasonably satisfactory in form and
substance to Administrative Agent, pursuant to which such lessor agrees,
for the benefit of Administrative Agent, (i) that without any further
consent of such lessor or any further action on the part of the Loan Party
holding such Leasehold Property, such Leasehold Property may be encumbered
pursuant to a Mortgage and may be assigned to the purchaser at a
foreclosure sale or in a transfer in lieu of such a sale (and to a
subsequent third party assignee if Administrative Agent, any Lender, or an
Affiliate of either so acquires such Leasehold Property, provided that such
assignment shall be in accordance with the terms and provisions of the
applicable lease), (ii) that such lessor shall not terminate such lease as
a result of a default by such Loan Party thereunder without first giving
Administrative Agent notice of such default and at least 30 days to cure
any monetary default and at least 60 days to cure any non-monetary default,
and (iii) to such other matters relating to such Leasehold Property as
Administrative Agent may reasonably request."
(h) "'Leasehold Property' means any leasehold interest of any Borrower or
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any Guarantor as lessee under any lease of real property, other than any
such leasehold interest designated from time to time by Administrative
Agent in its sole discretion as not being required to be included in the
Collateral."
(i) "'Mortgage' means a security instrument (whether designated as a deed
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of trust or a mortgage or by any similar title) executed and delivered by
any Borrower or any Guarantor, in form and substance reasonably
satisfactory to Administrative Agent, in either case as such security
instrument or amendment may be amended, restated, supplemented or otherwise
modified from time to time, and shall include an indemnification from
environmental claims as to any property owned in fee by any Borrower or
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Guarantor in favor of the Administrative Agent and the Lenders reasonably
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satisfactory to the Administrative Agent and Required Lenders. 'Mortgages'
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means all such instruments, including the Post-Closing Mortgages."
(j) "'Post-Closing Mortgages' has the meaning provided in Section 4.05
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hereof."
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(k) "'Recorded Leasehold Interest' means a Leasehold Property with respect
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to which a Record Document (as hereinafter defined) has been recorded in
all places necessary or desirable, in Administrative Agent's reasonable
judgment, to give constructive notice of such Leasehold Property to third-
party purchasers and encumbrancers of the affected real property. For
purposes of this definition, the term "Record Document" means, with respect
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to any Leasehold Property, (a) the lease evidencing such Leasehold Property
or a memorandum thereof, executed and acknowledged by the owner of the
affected real property, as lessor, or (b) if such Leasehold Property was
acquired or subleased from the holder of a Recorded Leasehold Interest, the
applicable assignment or sublease document, executed and acknowledged by
such holder, in each case in form sufficient to give such constructive
notice upon recordation and otherwise in form reasonably satisfactory to
Administrative Agent."
(l) "'Security Agreement' has the meaning specified in Section 4.04(a)."
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(m) "'Senior Debt' means as of any date of determination the Outstanding
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Amount of Loans and L/C Obligations."
(n) "'Subordinated Indebtedness' means indebtedness in an principal
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aggregate amount not to exceed $50,000,000 incurred by the Company from
Finestar International Limited, a British Virgin Islands corporation or its
affiliated assigns on terms and conditions (including terms relating to the
interest rate, fees, amortization, subordination, covenants, events of
default and remedies) satisfactory to the Administrative Agent and the
Required Lenders."
(o) "'Third Amendment Closing Date' means January 15, 2002."
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4. Additional Amendments to Credit Agreement.
(i) Section 2.01 of the Credit Agreement is amended by deleting such
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Section in its entirety and replacing it with the following:
"2.01 COMMITTED LOANS. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
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Loan") to one or more Borrowers from time to time on any Business Day during the
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period from the Closing Date to the Maturity Date, in an aggregate Dollar
Equivalent amount not to exceed at any time outstanding the amount of such
Lender's Commitment; provided, however, that after giving effect to any
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Committed Loan, (i) the aggregate Outstanding Amount of all Loans and L/C
Obligations shall not exceed the Aggregate Available Commitments, and (ii) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus such
Lender's Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus
such Lender's Pro Rata Share of the Outstanding Amount of all Swing Line Loans
shall not exceed such Lender's Commitment. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay under Section 2.05, and reborrow
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under this Section 2.01. Committed Loans may be Base Rate Loans or Eurocurrency
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Rate Loans, as further provided herein."
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(ii) Subsection (a)(i) of Section 2.03 of the Credit Agreement is amended
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by deleting from clause (w) thereof the words "Aggregate Commitments" and
inserting in lieu thereof the words "Aggregate Available Commitments ".
(iii) Subsection (i) of Section 2.03 of the Credit Agreement is amended by
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deleting therefrom the words "the Applicable Rate" and inserting in lieu thereof
the term "2.50% per annum".
(iv) Subsection (a) of Section 2.04 of the Credit Agreement is amended by
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deleting from clause (i) thereof the words "Aggregate Commitments" and inserting
in lieu thereof the words "Aggregate Available Commitments ".
(v) Subsection (a) of Section 2.06A of the Credit Agreement is amended
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by deleting such subsection in its entirety and replacing it with the following:
"(a) If the Company or any of its Subsidiaries shall at any
time, or from time to time, sell, transfer, lease or otherwise dispose of
any of its Property, including as part of a sale and leaseback transaction,
or sell or discount (with or without recourse) any of its notes or accounts
receivable (or agree to do any of the foregoing), other than a sale of (1)
inventory, or (2) obsolete or unneeded equipment in the ordinary course of
business in an aggregate amount not to exceed $5,000,000 in book value per
year (each, an "Asset Disposition"), then (i) the Company shall promptly
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notify the Administrative Agent of such Asset Disposition (including the
amount of the net proceeds therefrom, calculated exclusive of (x) direct
costs relating to such Asset Disposition, excluding amounts payable to the
Company, any of its Subsidiaries or any of their Affiliates (y) sale, use
or other transactional taxes paid or payable by the Company or its
Subsidiaries as a direct result of such Asset Disposition and (z) amounts
required to be applied to repay principal, interest and prepayment premiums
and penalties on Indebtedness secured by a Lien on the Property which is
the subject of such Asset Disposition ("Net Cash Proceeds") to be received
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by the Company or such Subsidiary in respect thereof) (an "Asset
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Disposition Notice"), (ii) the Company shall, promptly upon its receipt
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thereof, deposit such Net Cash Proceeds in a cash collateral account
maintained by the Company at First Union National Bank (as to which the
Company shall have granted to the Agent and the Lenders a first lien and
security interest to secure payment in full of the Obligations) (the "First
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Union Account"), and (iii) upon the earlier of (A) the date specified for
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such purpose by the Company in the Asset Disposition Notice or (B) five
Business Days after receipt of such Net Cash Proceeds by the Company or its
Subsidiaries, the Committed Loans shall be prepaid and the Aggregate
Commitments shall be automatically and permanently reduced by an amount
equal to the amount of such Net Cash Proceeds; provided, however, no
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prepayment of Committed Loans and no reduction of the Aggregate Commitments
shall be required in connection with Asset Dispositions until aggregate Net
Cash Proceeds from Asset Dispositions in the First Union Account equals or
is greater than $5,000,000, and then all such Net Cash Proceeds shall
immediately be applied to prepay the Committed Loans and reduce the
Aggregate Commitments in accordance with this paragraph."
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(vi) Subsection (b) of Section 2.06A of the Credit Agreement is amended
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by inserting after the words "such Net Issuance Proceeds by the Company or its
Subsidiaries," the words "the Committed Loans shall be prepaid and".
(vii) Subsection (c) of Section 2.06A of the Credit Agreement is amended
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by inserting after the words "such Net Loss Proceeds by the Company or its
Subsidiaries," the words "the Committed Loans shall be prepaid and".
(viii) Subsection (a) of Section 2.09 of the Credit Agreement is amended
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(x) by deleting therefrom the words "the Applicable Rate" and inserting in lieu
thereof the term "0.50% per annum", (y) by deleting therefrom the words ", and
if there is any change in the Applicable Rate during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Rate separately
for each period during such quarter that such Applicable Rate was in effect",
and (z) by deleting therefrom the words "or during any time when Credit
Extensions are restricted in accordance with Section 4(j) of the First
Amendment.
(ix) Subsection (b) of Section 2.09 of the Credit Agreement is amended
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(x) by deleting therefrom the words "the Applicable Rate" and inserting in lieu
thereof the term "0.25% per annum" and (y) by deleting therefrom the words "or
during any time when Credit Extensions are restricted in accordance with Section
4(j) of the First Amendment.
(x) Subsection (b) of Section 2.09 of the Credit Agreement is amended
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(x) by deleting the words "( the "Agent/Arranger Fee Letter")" and (y) by
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inserting after the words "dated October 24, 2000" the words ", as amended by
letter dated January 9, 2002 (as amended, the "Agent/Arranger Fee Letter")" .
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(xi) Subsection (d) of Section 2.09 of the Credit Agreement is amended by
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deleting such subsection in its entirety and inserting in lieu thereof the
following:
"(d) Amendment Fees. The Company agrees to pay on the Third
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Amendment Closing Date to the Administrative Agent, for its own account and
for the account of all Lenders, an amendment fee equal to .25% of the
Aggregate Commitments as of the Third Amendment Closing Date, calculated
based on each Lender's Commitment and allocated by the Administrative
Agent. Such amendment fee is for the credit facilities committed by the
Lenders under this Agreement and is fully earned on the date paid. The
amendment fee paid to each Lender is solely for its own account and is
nonrefundable for any reason whatsoever."
(xii) Article IV of the Credit Agreement is amended by adding thereto a
new Section 4.04 entitled "Conditions of Credit Extensions Subsequent to Third
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Amendment Closing Date", as follows:
"4.04 CONDITIONS OF CREDIT EXTENSIONS SUBSEQUENT TO THIRD AMENDMENT
CLOSING DATE. The obligation of each Lender to honor any Request for Credit
Extension on or after the Third Amendment Closing Date is subject to the
following conditions precedent:
"(a) Each of the Borrowers and the Guarantors shall have duly authorized,
executed and delivered the Security Agreement in the form of Exhibit K (as
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modified, amended or
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supplemented from time to time in accordance with the terms hereof and
thereof, the "Security Agreement") together with evidence satisfactory to
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the Administrative Agent that the Administrative Agent (for the benefit of
the Lenders) has a valid first priority security interest in the Collateral
identified in the Security Agreement (subject only to Liens permitted under
Section 7.04 hereof), including (w) blocked account agreements required by
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the Administrative Agent in the form of Exhibit K-1 (as modified, amended
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or supplemented from time to time in accordance with the terms hereof and
thereof, the "Blocked Account Agreements"), (x) such documents duly
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executed by the Borrower and each Guarantor as the Administrative Agent may
reasonably request with respect to the perfection of its security interests
in the Collateral (including financing statements under the UCC, patent,
trademark and copyright security agreements and other applicable documents
under the laws of any jurisdiction with respect to the perfection of Liens
created by the Security Agreement), (y) copies of UCC search reports as of
a recent date listing all effective financing statements that name the
Borrower or any Guarantor as debtor, together with copies of such financing
statements, and (z) evidence of termination and release of any existing
Liens (subject only to Liens permitted under Section 7.04 hereof).
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"(b) The Administrative Agent and the Required Lenders shall have been
satisfied with the terms and conditions of the Subordinated Indebtedness as
of the date of closing thereof and the documents, agreements and
instruments relating thereto (including terms relating to the interest
rate, fees, amortization, subordination, covenants, events of default and
remedies), and the Company shall have received $50,000,000 in cash proceeds
from the issuance of the Subordinated Indebtedness.
"(c) The parties to the Escrow Agreement shall cause the escrow agent
thereunder to deliver all of the monies held in escrow as directed by the
Borrowers and shall terminate the Escrow Agreement.
"(d) The Outstanding Amount of Loans and L/C Obligations shall have been
reduced by prepayment (which prepayment may be made with proceeds of the
Subordinated Indebtedness, with the funds released to the Borrowers from
the Escrow Agreement (such release of funds not being a required prepayment
under Section 2.06A), or otherwise) to $70,000,000, and the Aggregate
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Commitments shall have been reduced to $85,000,000."
(xiii) Article IV of the Credit Agreement is further amended by adding
thereto a new Section 4.05 entitled "Conditions Subsequent to Third Amendment
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Closing Date", as follows:
"4.05 CONDITIONS SUBSEQUENT TO THIRD AMENDMENT CLOSING DATE. The
Borrowers covenant that Borrowers shall use their commercially reasonable best
efforts to deliver to the Administrative Agent (which shall in no event require
the Borrowers or the Guarantors to pay a fee, charge or similar amount as a
requirement of obtaining consent), within 90 days after the Third Amendment
Closing Date:
"(i) Mortgages. Fully executed and notarized Mortgages, in proper
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form for recording in all appropriate places in all applicable
jurisdictions, encumbering each item of real property of Borrowers and
Guarantors identified on Schedule 4.05 hereto (each a
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"Post-Closing Mortgaged Property" and, collectively, the "Post-Closing
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Mortgaged Properties");
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"(ii) Opinions of Local Counsel. An opinion of counsel (which
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counsel shall be reasonably satisfactory to Administrative Agent and the
Required Lenders) in each state in which a Post-Closing Mortgaged Property
is located with respect to the enforceability of the form(s) of Mortgages
to be recorded in such state and such other matters as Administrative Agent
may reasonably request, in each case in form and substance reasonably
satisfactory to Administrative Agent and the Required Lenders;
"(iii) Landlord Consents and Estoppels; Recorded Leasehold Interests.
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In the case of each Post-Closing Mortgaged Property consisting of a
Leasehold Property, (a) a Landlord Consent and Estoppel with respect
thereto and (b) evidence that such leasehold property is a Recorded
Leasehold Interest;
"(iv) Title Insurance. (a) ALTA mortgagee title insurance (fee or
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leasehold, as applicable) policies or title commitments therefor (the
"Post-Closing Mortgage Policies") issued by one or more title companies
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reasonably satisfactory to the Administrative Agent (collectively, the
"Title Company") with respect to the Post-Closing Mortgaged Properties
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designated by Administrative Agent, naming Administrative Agent for the
benefit of the Lenders as the insured, in amounts not less than the
respective amounts designated in each of the particular Post-Closing
Mortgaged Policies, insuring Administrative Agent that the applicable Post-
Closing Mortgages create valid and enforceable first priority mortgage
Liens on the respective Post-Closing Mortgaged Properties encumbered
thereby, subject to all exceptions of record (provided that they do not
materially and adversely affect the use of the property in the manner it is
currently being used by the Borrower or the Guarantor, as the case may be),
which Post-Closing Mortgage Policies shall, to the extent permitted by
applicable law, (1) include an endorsement for mechanics' liens, for future
advances under this Agreement and for any other matters reasonably
requested by Administrative Agent and (2) provide for affirmative insurance
and such reinsurance as Administrative Agent may reasonably request, all of
the foregoing in form and substance reasonably satisfactory to
Administrative Agent; and (b) evidence reasonably satisfactory to
Administrative Agent that such Credit Party has (i) delivered to the Title
Company all certificates and affidavits required by the Title Company in
connection with the issuance of the Post-Closing Mortgage Policies and (ii)
paid to the Title Company or to the appropriate governmental authorities
all expenses and premiums of the Title Company in connection with the
issuance of the Post-Closing Mortgage Policies and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Mortgages in the appropriate real estate
records;
"(v) Insurance. Standard fire insurance with extended coverage,
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without co-insurance, in an amount equal to 100% of the replacement cost of
the improvements and single limit comprehensive general liability coverage
for not less than $1,000,000, with insurance companies reasonably
satisfactory to the Administrative Agent;
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"(vi) Title Reports. To the extent a Post-Closing Mortgage Policy
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is not issued, a title report issued by the Title Company with respect to
the Post-Closing Mortgage Properties designated by Administrative Agent,
dated not more than 120 days prior to January 15, 2002 and satisfactory in
form and substance to Administrative Agent;
"(vii) Copies of Documents Relating to Title Exceptions. Copies of
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all recorded documents listed as exceptions to title or otherwise referred
in the title reports delivered pursuant to Section 4.05(v)."
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(xiv) Section 5.19 of the Credit Agreement is amended by deleting therefrom
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the words "On the Closing Date, the Pledge Agreement" and inserting in lieu
thereof the words "Each of the Collateral Documents (subject to the provisions
of Section 4.05 with respect to certain Collateral Documents created after
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January 15, 2001)".
(xv) Subsection (a) of Section 6.06 of the Credit Agreement is amended (x)
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by deleting from the end of clause (ii) thereof the word "and", (y) by
renumbering clause (iii) thereof as clause (iv), and (z) by inserting
immediately after clause (ii) a new clause (iii), as follows:
"(iii) within 15 Business Days after the end of each month (A) a
consolidated unaudited balance sheet of the Company, and the related
statement of income and statement of cash flow, as of the close of such
period, all of the foregoing prepared by the Company in reasonable detail
in accordance with GAAP (subject only to normal year-end audit adjustments
and the absence of footnotes) and certified by the Company's Responsible
Officer as fairly presenting the financial condition as at the dates
thereof and the results of operations for the periods covered thereby and
(B) a senior management commentary on each of the foregoing, each in a form
satisfactory to the Administrative Agent and the Required Lenders; and".
(xvi) Section 6.11 of the Credit Agreement is amended by deleting such
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Section in its entirety and inserting in lieu thereof the following:
"6.11 Minimum Liquidity. The Borrowers shall not permit, at the last
day of any fiscal quarter, the sum of
(i) the aggregate amount of unencumbered cash on hand of the Borrowers and
their Subsidiaries as of such date plus
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(ii) (a) during all periods in which the Aggregate Commitment is less than
or equal to $70,000,000, the amount by which the Aggregate
Commitments exceed the Outstanding Amount of Loans and L/C
Obligations as of such date, or
(b) during all periods in which the Aggregate Commitment exceeds
$70,000,000, the amount equal to the sum of (x) Excess
Availability plus (y) the amount by which $70,000,000 exceeds the
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Outstanding Amount of Loans and L/C Obligations as of such date,
to be less than $30,000,000."
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(xvii) Section 6.12 of the Credit Agreement is amended by deleting such
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Section in its entirety and inserting in lieu thereof the following:
"6.12 Eligible Working Capital to Senior Debt. The Borrowers shall not
permit, (i) at the last day of any fiscal quarter, and (ii) as of the date of
any Borrowing and after giving effect to such Borrowing, the ratio of Eligible
Working Capital to Senior Debt to be less than 1.0 to 1.0 unless, with respect
to the date identified in clause (i) hereto, within three Business Days of the
date of the delivery under Section 6.06(b) of the compliance certificate for
such fiscal quarter, and with respect to the date identified in clause (ii)
hereto, on the date of such Borrowing, the Borrowers prepay the Committed Loans
in an amount which, after giving effect to such prepayment, would result in the
ratio of Eligible Working Capital to Senior Debt to be equal to or greater than
1.0 to 1.0."
(xviii) Section 6.13 of the Credit Agreement is amended by deleting such
------------
Section in its entirety and inserting in lieu thereof the following:
"6.13 Cumulative Consolidated EBITDA. The Borrowers shall not permit
Consolidated EBITDA for any period set forth below to be less than the amount
set forth opposite such period below:
Period Minimum Cumulative
------ ------------------
EBITDA Amount
-------------
From January 1, 2002 through September 30, 2002 $ (15,100,000)
From January 1, 2002 through December 31, 2002 $ (15,100,000)
From April 1, 2002 through March 31, 2003 $ (15,400,000)
From July 1, 2002 through June 30, 2003 $ (5,100,000)
From October 1, 2002 through September 30, 2003 $ 3,400,000
From January 1, 2003 through December 31, 2003 $ 10,100,000".
(xix) Section 6.14 of the Credit Agreement is amended (x) by retitling such
------------
Section "Collateral Documents", and (y) inserting, at the beginning of each of
subsections 6.14(a) and 6.14(b) thereof, the words "Subject to Section 4.05
------------
hereof with respect to the Post-Closing Mortgaged Property,".
(xx) Section 7.03 of the Credit Agreement is amended (w) by deleting from
------------
the end of clause (f) thereof the word "and", (x) by renumbering clause (g)
thereof as clause (h), (y) by inserting immediately after clause (f) a new
clause (g), as follows:
"(g) the Subordinated Indebtedness; and".
and (z) by deleting clause (d) thereof in its entirety and inserting in lieu
thereof the following:
"(d) Indebtedness incurred in connection with Capital Leases of the
Company and its Subsidiaries not to exceed an aggregate amount of
$10,000,000 during any calendar year;".
11
(xxi) Section 7.04 of the Credit Agreement is amended (x) by renumbering
------------
clause (f) thereof as clause (g), and (y) by inserting immediately after clause
(e) a new clause (f), as follows:
"(f) the Liens of the Administrative Agent and the Lenders under this
Agreement and the Security Documents; or".
(xxii) Section 7.05 of the Credit Agreement is amended (x) by deleting
------------
clause (i) in its entirety, (y) by renumbering clauses (j) and (k) thereof as
clauses (k) and (l) respectively, and (y) by inserting immediately after clause
(h) new clauses (i) and (j), as follows:
"(i) loans, advances, capital contributions, asset transfers and
contributions and other investments in unconsolidated joint ventures not to
exceed in the aggregate $10,000,000 per calendar year, provided, however,
that in the event such investment is made by a Loan Party and Collateral or
the proceeds thereof is used to make such investment, then the Lien of the
Administrative Agent and the Lenders in such Collateral shall be deemed
released and such Loan Party will pledge its interests in such joint
venture under the Pledge Agreement (and shall, if necessary, execute the
Pledge Agreement as a Pledgor) as Collateral thereunder;
"(j) notwithstanding anything in this Agreement to the contrary,
investments in Foreign Subsidiaries solely to the extent permitted under
Section 7.07 of this Agreement;".
------------
(xxiii) Section 7.05(g) of the Credit Agreement is amended by deleting such
---------------
clause in its entirety and by inserting in lieu thereof the following:
"(g) acquisitions of all or substantially all of the assets or business
of any other Person engaged in the same or similar business as the Company, or
of a division of a Person engaged in such a business, or of all or substantially
all the Voting Stock of such a Person, or Acquisitions of such a Person, its
assets or business, so long as (i) no Default or Event of Default exists or
would exist before or after giving effect to such acquisition or Acquisition,
(ii) the Board of Directors or other governing body of such Person whose
Property or Voting Stock is being so acquired has approved the terms of such
acquisition or Acquisition, (iii) after giving effect to such acquisition or
Acquisition, the amount of unencumbered cash of the Borrowers shall be equal to
or greater than the Senior Debt, and (iv) the Company has provided to the
Administrative Agent and the Lenders such financial and other information
regarding the Person whose Property or Voting Stock is being so acquired,
including historical financial statements, and a description of such Person, as
the Administrative Agent or the Required Lenders has reasonably requested;"
(xxiv) Section 7.06 of the Credit Agreement is amended by deleting such
------------
Section in its entirety and inserting in lieu thereof the following:
"7.06 Dividends and Other Shareholder Distributions; Redemptions and
Repurchases. The Company shall not declare or pay any dividends or make a
distribution of any kind (including by redemption or purchase), other than
dividends in the form of the Company's stock, on its outstanding capital stock."
12
(xxv) Section 7.07 of the Credit Agreement is amended by deleting such
------------
Section in its entirety and inserting in lieu thereof the following:
"7.07 Limitations on Asset Transfers to Subsidiaries. Neither the
Company nor any Domestic Subsidiary, will convey, sell, lease, assign, transfer
or otherwise dispose of (collectively, a "transfer") any of its property,
--------
business or assets (including, without limitation leasehold interests), whether
now owned or hereafter acquired, (i) to any Foreign Subsidiary, except in the
ordinary course of business and except to Foreign Subsidiaries whose common
stock is Collateral under the Pledge Agreement and (ii) to any Domestic
Subsidiary other than Domestic Subsidiaries substantially all of whose assets
constitutes Collateral."
(xxvi) Article VII of the Credit Agreement is amended by adding thereto a
new Section 7.10 entitled "Capital Expenditures", as follows:
------------
7.10 Capital Expenditures. The Company shall not purchase or make any
expenditure for fixed or capital assets (including capitalized leases) in an
aggregate amount for all Borrowers in excess of (i) $20,000,000 for the fiscal
year ending December 27, 2002, and (ii) $25,000,000 for the fiscal year ending
December 26, 2003.
(xxvii) Article VII of the Credit Agreement is amended by adding thereto a
new Section 7.11 entitled "Subordinated Indebtedness", as follows:
------------
7.11 Subordinated Indebtedness. The Borrowers shall not amend or modify
any note, instrument, purchase agreement, other agreement or document identified
on Schedule 7.11 hereto in any manner which amends or modifies any of the
-------------
economic terms, maturity dates or payment dates thereof or which, individually
or in the aggregate, materially affects (x) the rights and privileges of the
Borrowers or any of their Subsidiaries or (y) the interests of the
Administrative Agent and the Lenders under the Loan Documents or in the
Collateral.
(xxviii) Subsection (c) of Section 8.01 of the Credit Agreement is amended
------------
by deleting therefrom the words "or Section 4(a), (b), (c), (d), (f), (g), or
(h) of the First Amendment or Section 4(b), (c), (d), or (f) of the Second
Amendment ".
(xxix) Subsection (h) of Section 8.01 of the Credit Agreement is amended
------------
by deleting such subsection in its entirety and inserting in lieu thereof the
following:
"(h) Guaranty and Security. The Guaranty, any Collateral Document or any
---------------------
provision thereof shall cease to be in full force or effect, or any
Borrower, Guarantor, Pledgor or any Person acting by or on behalf of any
Borrower, Guarantor or Pledgor shall deny or disaffirm such Borrower,
Guarantor or Pledgor's obligations under the Guaranty or any Collateral
Document, as the case may be or any default in the due performance or
observance of any term, covenant or agreement contained in the Guaranty or
any Collateral Document, or default in the due performance or observance of
any term, covenant or agreement contained in the Guaranty or any Collateral
Document;".
13
(xxx) Section 8.01 of the Credit Agreement is further amended (x) by
------------
renumbering clauses (j) as clause (k), (y) by deleting from the end of clause
(i) thereof the word "or", (z) by inserting immediately after clause (i) new
clause (j), as follows:
"(j) Failure of Lien. Any Collateral Document shall for any reason cease
---------------
to create a valid Lien on any of the Collateral purported to be covered
thereby or, except as permitted by the Loan Documents, such Lien shall
cease to be a perfected and first priority Lien (subject to the Liens
permitted under Section 7.04 hereof)or the Borrower or any Guarantor shall
------------
so state in writing, or".
(xxxi) Article IX of the Credit Agreement is amended by adding thereto a
new Section 9.11 entitled " Concerning the Collateral and the Collateral
------------
Documents", as follows:
9.11 Concerning the Collateral and the Collateral Documents. Without
limiting the generality of the foregoing sections of this Article IX, the
----------
Agent shall have the sole and exclusive right and authority to (i) act as the
disbursing and collecting agent for the Lenders with respect to all payments and
collections arising in connection with the Collateral Documents; (ii) execute
and deliver each Collateral Document and accept delivery of each such agreement
delivered by any Borrower, any Guarantor or any of their respective
Subsidiaries; (iii) act as collateral agent for the Lenders for purposes of the
perfection of all security interests and Liens created by such agreements and
all other purposes stated in the Collateral Documents; (iv) manage, supervise
and otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
Liens created or purported to be created by the Collateral Documents; and (vi)
except as may be otherwise specifically restricted by the terms hereof or of any
other Loan Document, exercise all remedies given to the Agent and the Lenders as
secured parties with respect to the Collateral under the Collateral Documents
relating thereto, applicable law or otherwise.
(b) Provided that no Event of Default has occurred and is continuing
(but subject to the provisions of clause (ii) of this paragraph (b)), each of
the Lenders hereby directs, in accordance with the terms hereof, the Agent to
release any Lien held by the Agent for the benefit of the Lenders and the Agent
hereby agrees that it shall release any such Lien:
(i) against all of the Collateral, upon termination of the
Commitments and payment and satisfaction in full of all
Loans and all other Obligations and which are then due and
payable;
(ii) against any non-material portion of the Collateral sold or
disposed of by the Borrower or a Guarantor (to the extent
permitted by this Agreement), provided the Borrowers shall
have complied with the provisions of Section 2.06A hereof
-------------
with respect to the Net Cash Proceeds of such sale or
transfer.
Upon request by the Administrative Agent at any time, the Lenders will confirm
in writing the Administrative Agent's authority to release particular types or
items of Collateral pursuant to this subsection, provided that the absence of
any such confirmation for whatever reason shall not affect the Administrative
Agent's rights under this Section 9.11.
------------
14
(xxxii) Schedule 2.01 of the Credit Agreement is amended by deleting such
-------------
schedule in its entirety and inserting in lieu thereof the form of schedule
attached hereto as Exhibit A.
(xxxiii) The Credit Agreement is amended (w) by attaching thereto a new
Exhibit K in the form of Exhibit B hereto, (x) by attaching thereto a new
---------
Exhibit K-1 in the form of Exhibit C hereto, (y) by attaching thereto a new
-----------
Schedule 4.04 in the form of Exhibit D hereto and (z) by attaching thereto a new
-------------
Schedule 7.11 in the form of Exhibit D-1 hereto.
-------------
5. Representations and Warranties. The Company and each of the other
------------------------------
Artesyn Parties hereby represent and warrant to the Administrative Agent and the
Lenders as follows:
(a) No Default or Event of Default (other than the Waived
Defaults) has occurred and is continuing.
(b) The execution, delivery and performance by the Company and
the other Artesyn Parties of this Third Waiver and Amendment has been duly
authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, notice to or action by,
any Person (including any Governmental Authority) in order to be effective and
enforceable. This Third Waiver and Amendment and the Credit Agreement as amended
by the First Waiver and Amendment and the Second Waiver and Amendment and as
modified by this Third Waiver and Amendment each constitute the legal, valid and
binding obligation of the Company and each of the other Artesyn Parties which
are parties thereto, respectively, enforceable against them in accordance with
their respective terms, without defense, counterclaim or offset.
(c) None of the Organization Documents of the Company or any of
the other Artesyn Parties has been amended or modified since January 23, 2001.
(d) Other than the last sentence of Section 5.05 of the Credit
Agreement, and after giving effect to updated Schedules 5.01, 5.05, 5.06, 5.09,
5.10, 5.15 and 5.18, all representations and warranties of the Company and each
of the other Artesyn Parties contained in the Credit Agreement are true and
correct in all material respects as of the Effective Date.
(e) There are no Subsidiary Borrowers other than those Artesyn
Parties executing this Third Waiver and Amendment as Subsidiary Borrowers.
(f) Neither the Company nor any of its Subsidiaries has entered
into or incurred any Contractual Obligation which consists of or contains a
negative pledge (as defined in Section 4(f) of the First Waiver and Amendment).
------------
(g) The Company and each of the other Artesyn Parties is entering
into this Third Waiver and Amendment on the basis of its own investigation and
for its own reasons, without reliance upon the Administrative Agent, the
Lenders, any of their respective Affiliates or any other Person and hereby
acknowledge and agree that they are not aware (i) of any claim or cause of
action against the Administrative Agent, any Lender or any of their respective
Affiliates, directors, officers, agents or employees, arising from or in
connection with the Loan Documents or otherwise and (ii) that there are any
claims, demands, offsets or defenses at law or
15
in equity that would defeat or diminish the rights and remedies of
Administrative Agent or the Lenders under the Loan Documents.
6. Effective Date. This Third Waiver and Amendment will become effective
--------------
as of January 15, 2002 provided that each of the following conditions precedent
is satisfied before the close of business on such date (the "Effective Date"):
--------------
(a) The Administrative Agent has received from the Company, the
Subsidiaries of the Company party hereto and each of the Required Lenders a duly
executed original (or, if elected by the Administrative Agent, an executed
facsimile copy) of this Third Waiver and Amendment by no later than 9:00 AM (New
York time) on January 15, 2002.
(b) The Administrative Agent has received from the Company, each of
the other Artesyn Parties and each Guarantor a copy of a resolution passed by
the board of directors of such corporation (or other evidence satisfactory to
the Administrative Agent in the case of such a Person which is not a
corporation), certified by the secretary or an Assistant Secretary of such
corporation (or such other Person satisfactory to the Administrative Agent in
the case of such a Person which is not a corporation) as being in full force and
effect on the date hereof, authorizing the execution, delivery and performance
of this Third Waiver and Amendment and/or the Guarantors' Consent, as the case
may be.
(c) The Administrative Agent shall have received from the Company a
certificate of a Responsible Officer of the Company dated as of the Effective
Date stating that all representations and warranties contained herein are true
and correct on and as of the Effective Date as though made on and as of such
date.
(d) The Administrative Agent shall have received from each of the
Guarantors a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of a Guarantors' Acknowledgment and Consent in the form attached
hereto as Exhibit E (the "Guarantors' Consent").
--------- -------------------
(e) The Administrative Agent shall have received an opinion of counsel
to the Borrowers and the Guarantors in form and substance satisfactory to the
Administrative Agent and the Required Lenders;
(f) The Company shall have paid (i) the expenses of the Administrative
Agent, the Lenders, their respective attorneys, and the Consultant (as
hereinafter defined) payable under Section 8(h) or Section 8(i) of this
------------ ------------
Agreement as to which expenses the Borrowers shall have received invoices from
the Administrative Agent, (ii) the amounts due and payable under the
Agent/Arranger Fee Letter, and (iii) the amendment fee equal to .25% of the
Aggregate Commitments as of the Effective Date.
(g) Each of the Borrowers and the Guarantors shall have duly
authorized, executed and delivered the Security Agreement in the form of Exhibit
-------
B hereto together with evidence satisfactory to the Administrative Agent that
-
the Administrative Agent (for the benefit of the Lenders) has a valid first
priority security interest in the Collateral identified in the Security
Agreement (subject only to Liens permitted under Section 7.04 of the Credit
Agreement), including (w) Blocked Account Agreements required by the
Administrative Agent
16
in the form of Exhibit C hereto, (x) such documents duly executed by the
---------
Borrower and each Guarantor as the Agent may request with respect to the
perfection of its security interests in the Collateral identified in the
Security Agreement (including financing statements under the UCC, patent,
trademark and copyright security agreements and other applicable documents under
the laws of any jurisdiction with respect to the perfection of Liens created by
the Security Agreement), (y) copies of UCC search reports as of a recent date
listing all effective financing statements that name the Borrower or any
Guarantor as debtor, together with copies of such financing statements, and (z)
evidence of termination and release of any existing Liens (subject only to Liens
permitted under Section 7.04 hereof).
(h) The Administrative Agent shall be satisfied with the terms and
conditions of the Subordinated Indebtedness and the documents, agreements and
instruments relating thereto (including terms relating to the interest rate,
fees, amortization, subordination, covenants, events of default and remedies),
and the Company shall have received $50,000,000 in proceeds from the issuance of
the Subordinated Indebtedness.
(i) The parties to the Escrow Agreement shall cause the escrow agent
thereunder to deliver the monies held in escrow as directed by the Borrowers and
shall terminate the Escrow Agreement.
(j) The Outstanding Amount of Loans and L/C Obligations shall be
reduced by prepayment (which prepayment may be made with proceeds of the
Subordinated Indebtedness, with the funds released to the Borrowers from the
Escrow Agreement, or otherwise) to $70,000,000, and there shall be no other
Obligations (whether for interest, fees, expenses or otherwise) owing under the
Existing Credit Agreement, on one Business Day's notice to the Administrative
Agent (and in respect of such notice, the Administrative Agent and the Required
Lenders hereby waive, on a one time basis, the requirement that such notice be
received five Business Days prior to the date of such prepayment).
(k) The Administrative Agent shall have received an irrevocable notice
in the form of Exhibit F hereto from the Company in accordance with Section 2.06
---------
of the Credit Agreement permanently reducing the Aggregate Commitments to
$85,000,000 (and in respect of such notice, the Administrative Agent and the
Required Lenders hereby waive, on a one time basis, the requirement that such
notice be received five Business Days prior to the date of such reduction).
For purposes of determining compliance with the conditions specified in this
Section 6, each Lender that has executed the Third Amendment and Waiver shall be
deemed to have consented to, approved or accepted, or to be satisfied with, each
document or other matter either sent, or made available for inspection, by the
Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Lender.
7. Release. Each of the Borrowers hereby unconditionally and irrevocably
-------
remises, acquits, and fully and forever releases and discharges the
Administrative Agent and the Lenders and all respective affiliates and
subsidiaries of the Administrative Agent and the Lenders, their respective
officers, servants, employees, agents, attorneys, financial advisors,
principals,
17
directors and shareholders, and their respective heirs, legal representatives,
successors and assigns (collectively, the "Released Lender Parties") from any
-----------------------
and all claims, demands, causes of action, obligations, remedies, suits, damages
and liabilities of any nature whatsoever, whether now known, suspected or
claimed, whether arising under common law, in equity or under statute, which any
Borrower ever had or now has against the Released Lender Parties which may have
arisen at any time on or prior to the Effective Date of this Third Amendment and
Waiver and which were in any manner related to the Loan Documents or the
enforcement by the Administrative Agent of rights, remedies or recourses related
thereto.
8. Miscellaneous.
-------------
Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Third Waiver and Amendment. This Third
Waiver and Amendment shall be deemed to be a "Loan Document" for all purposes of
the Credit Agreement and all other Loan Documents.
(b) This Third Waiver and Amendment shall be binding upon and inure to
the benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with this
Third Waiver and Amendment.
(c) THIS THIRD WAIVER AND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT
--------
THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(d) This Third Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Administrative Agent of a facsimile transmitted document
purportedly bearing the signature of a party hereto shall bind such party with
the same force and effect as the delivery of a hard copy original. Any failure
by the Administrative Agent to receive the hard copy executed original of such
document shall not diminish the binding effect of receipt of the facsimile
transmitted executed original of such document of the party whose hard copy page
was not received by the Administrative Agent.
(e) This Third Waiver and Amendment, together with the Credit
Agreement, contains the entire and exclusive agreement of the parties hereto
with reference to the matters discussed herein and therein. This Third Waiver
and Amendment supersedes all prior drafts and communications with respect
thereto. This Third Waiver and Amendment may not be amended except in
accordance with the provisions of Section 11.01 of the Credit Agreement.
18
(f) If any term or provision of this Third Waiver and Amendment shall
be deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this Third
Waiver and Amendment or the Credit Agreement or the First Waiver and Amendment
or the Second Waiver and Amendment, respectively.
(g) No Artesyn Party shall include any reference (written or oral) to
the Administrative Agent, any Lender or any Loan Document in any public
statement, disclosure, filing or press release unless the inclusion of such
reference is required by applicable Law (in the reasonable opinion of the
Company and its counsel). To the extent any such reference is made none of the
Administrative Agent or any Lender shall be deemed to have approved, consented
to or otherwise authorized the same, unless such approval, consent or
authorization shall be in writing executed by the Administrative Agent and each
Lender referred to therein.
(h) The Company covenants to pay to or reimburse the Administrative
Agent and the Lenders, upon demand, for all costs and expenses (including
reasonable attorneys' fees and allocated costs of in-house counsel) (i) incurred
in connection with the development, preparation, negotiation, execution and
delivery of this Third Waiver and Amendment, including without limitation
appraisal, audit, search and filing fees incurred in connection therewith, (ii)
incurred in connection with the retention of PricewaterhouseCoopers LLP (the
"Consultant") and representing fees and expenses for services rendered by the
-----------
Consultant and (iii) any and all other accrued but unpaid amounts due and owing
in accordance with Section 11.04 of the Credit Agreement.
19
IN WITNESS WHEREOF, the Company and the other Artesyn Parties hereto have
caused this Third Waiver and Amendment to be duly executed in the City of New
York, New York and the other parties hereto have caused this Third Waiver and
Amendment to be duly executed, each as of the date first above written
ARTESYN TECHNOLOGIES, INC., as a
Borrower
By:___________________________
Name:
Title:
ARTESYN NORTH AMERICA, INC., as a
Subsidiary Borrower
By:___________________________
Name:
Title:
ARTESYN CAYMAN LP, as a Subsidiary
Borrower
By: ARTESYN NORTH AMERICA, INC.
General Partner
By:___________________________
Name:
Title:
By: ARTESYN DELAWARE LLC
General Partner
By:___________________________
Name:
Title:
S-1
ARTESYN TECHNOLOGIES
COMMUNICATION PRODUCTS, INC., as a
Subsidiary Borrower
By:___________________________
Name:
Title:
S-2
BANK OF AMERICA, N.A., as
Administrative Agent, Lender, L/C Issuer and
Swing Line Lender
By:_____________________________
Name:
Title:
S-3
BNP PARIBAS, as a Lender
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
S-4
THE BANK OF NEW YORK, as a Lender
By:____________________________
Name:
Title:
▇-▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By:____________________________
Name:
Title:
S-6
COMERICA BANK, as a Lender
By:____________________________
Name:
Title:
S-7
DZ BANK DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK AG,
FRANKFURT AM MAIN,
NEW YORK BRANCH (successor by merger
to DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG), as a Lender
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
S-8
FIRST UNION NATIONAL BANK, as a Lender
By:____________________________
Name:
Title:
S-9
FLEET NATIONAL BANK, as a Lender
By:____________________________
Name:
Title:
S-10
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:____________________________
Name:
Title:
▇-▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, as a Lender
By:____________________________
Name:
Title:
S-12
SUNTRUST BANK, as a Lender
By:____________________________
Name:
Title:
S-13
WACHOVIA BANK, N.A., as a Lender
By:___________________________
Name:
Title:
S-14
EXHIBIT A
---------
SCHEDULE 2.01
-------------
COMMITMENTS
-----------
AND PRO RATA SHARES
-------------------
Lender Commitment Pro Rata Share
--------------------------------------------------------------------------------
Bank of America, N.A. $13,909,091 16.363636364%
First Union National $20,090,909 23.636363636%
Bank/Wachovia Bank, N.A.
SunTrust Bank $10,818,182 12.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $ 9,272,727 10.▇▇▇▇▇▇▇▇▇%
The Bank of New York $ 6,181,818 7.272727273%
KeyBank National Association $ 6,181,818 7.272727273%
Fleet National Bank $ 6,181,818 7.272727273%
Comerica Bank $ 4,636,364 5.454545455%
BNP PARIBAS $ 3,090,909 3.636363636%
DG Bank Deutsche AG $ 3,090,909 3.636363636%
State Bank of India $ 1,545,455 1.818181818%
--------------------------------------------------------------------------------
Total $85,000,000 100.000000000%
EXHIBIT B
---------
EXHIBIT K
---------
FORM OF SECURITY AGREEMENT
--------------------------
EXHIBIT C
---------
EXHIBIT K-1
-----------
FORM OF BLOCKED ACCOUNT AGREEMENT
S-18
EXHIBIT D
---------
SCHEDULE 4.05
-------------
--------------------------------------------------------------------------------
Owned
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. Artesyn Technologies Communications Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
. Artesyn North America, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
Occupied Leased
--------------------------------------------------------------------------------
. Artesyn Technologies, Inc. - Corporate Offices
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
. Artesyn Technologies Communications Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
. Real-Time Digital
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. Artesyn North America, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 125 Newbury Street
Eden Prairie, Minnesota Framingham, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Fremont, California
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Tucson, Arizona
EXHIBIT D-1
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SCHEDULE 7.11
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SUBORDINATED INDEBTEDNESS DOCUMENTS
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1. Securities Purchase Agreement dated as of January 14, 2002, by and between
Artesyn Technologies, Inc., a Florida corporation, and Finestar
International Limited.
2. 3.0% Convertible Note Due January 15, 2007, from Artesyn Technologies, Inc.
to Finestar International Limited, dated January 15, 2002.
3. Warrant to Purchase 1,550,000 Shares of Artesyn Technologies, Inc. Common
Stock, issued to Finestar International Limited, dated January 15, 2002.
4. Registration Rights Agreement dated as of January 15, 2002, by and between
Artesyn Technologies, Inc. and Finestar International Limited.
EXHIBIT E
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FORM OF
GUARANTORS' ACKNOWLEDGMENT AND CONSENT
The undersigned, each a Guarantor with respect to the Company's and
the Borrowers' obligations to the Administrative Agent and the Lenders under the
Credit Agreement dated as of January 23, 2001 among Artesyn Technologies, Inc.,
a Florida corporation, as a borrower, Artesyn Cayman LP, a Cayman Islands
exempted limited partnership, Artesyn North America, Inc., a Delaware
corporation and Artesyn Technologies Communication Products, Inc., a Wisconsin
corporation, as the initial Subsidiary Borrowers, Artesyn Technologies, Inc. and
certain of its subsidiaries, as guarantors, the financial institutions party to
the Credit Agreement, as Lenders and Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, as amended and modified by the Waiver
and First Amendment to Credit Agreement dated as of October 12, 2001, as further
amended and modified by the Waiver and Second Amendment to Credit Agreement
dated as of December 3, 2001, as amended and modified by the "Third Waiver"
defined below and as it may be further amended, modified or supplemented from
time to time (the "Credit Agreement"), pursuant to which the Administrative
----------------
Agent and the Lenders have extended certain credit facilities to the Company and
certain of its Subsidiaries, each hereby:
(i) acknowledge and consent to the execution, delivery and
performance by the Company and the Subsidiary Borrowers of the Waiver and Third
Amendment to Credit Agreement, dated as of January 15, 2001, by and among
Artesyn Technologies, Inc., a Florida corporation, as a borrower, Artesyn Cayman
LP, a Cayman Islands exempted limited partnership, Artesyn North America, Inc.,
a Delaware corporation and Artesyn Technologies Communication Products, Inc., a
Wisconsin corporation, as the initial Subsidiary Borrowers, the financial
institutions party to the Credit Agreement, as Lenders and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (the "Third
-----
Waiver"); and
------
(ii) reaffirm and agree that the respective Guaranty as to which the
undersigned is party and all other documents and agreements executed and
delivered by the undersigned to the Agent and the Lenders in connection with the
Credit Agreement are in full force and effect, without defense, offset or
counterclaim and will so continue.
Each of the undersigned hereby unconditionally and irrevocably remises,
acquits, and fully and forever releases and discharges the Administrative Agent
and the Lenders and all respective affiliates and subsidiaries of the
Administrative Agent and the Lenders, their respective officers, servants,
employees, agents, attorneys, financial advisors, principals, directors and
shareholders, and their respective heirs, legal representatives, successors and
assigns (collectively, the "Released Lender Parties") from any and all claims,
-----------------------
demands, causes of action, obligations, remedies, suits, damages and liabilities
of any nature whatsoever, whether now known, suspected or claimed, whether
arising under common law, in equity or under statute, which any Borrower ever
had or now has against the Released Lender Parties which may have arisen at any
time on or prior to the Effective Date (as such term is defined in the Third
Waiver)
B-1
of the Third Waiver and which were in any manner related to the Loan Documents
or the enforcement by the Administrative Agent of rights, remedies or recourses
related thereto.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings, if any, assigned to them in the Credit Agreement.
ARTESYN TECHNOLOGIES, INC., as a
Guarantor
By:______________________________
Name:
Title:
B-2
ARTESYN NORTH AMERICA, INC., as a
Guarantor
By:_______________________________
Name:
Title:
ARTESYN TECHNOLOGIES
COMMUNICATION PRODUCTS, INC.,
as a Guarantor
By:_______________________________
Name:
Title:
ARTESYN SOLUTIONS, INC., as a Guarantor
By:_______________________________
Name:
Title:
ARTESYN COMMUNICATION PRODUCTS
LLC, as a Guarantor
By:_______________________________
Name:
Title:
B-3
EXHIBIT F
FORM OF
COMMITMENT REDUCTION NOTICE
TO: BANK OF AMERICA, N.A., as Administrative Agent
DATE: January 15, 2002
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of January 23, 2001
among Artesyn Technologies, Inc., a Florida corporation, as a borrower, Artesyn
Cayman LP, a Cayman Islands exempted limited partnership, Artesyn North America,
Inc., a Delaware corporation and Artesyn Technologies Communication Products,
Inc., a Wisconsin corporation, as the initial Subsidiary Borrowers, Artesyn
Technologies, Inc. and certain of its subsidiaries, as guarantors, the financial
institutions party to the Credit Agreement, as Lenders and Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, as amended (the
"Credit Agreement"). Unless otherwise defined herein, capitalized terms used
----------------
herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
The Company hereby irrevocably notifies you, in accordance with
Section 2.06 of the Credit Agreement and Section 6(k) of the Waiver and Third
Amendment, dated as of January 15,2002 (the "Third Amendment"), by and among the
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Company, the Subsidiary Borrowers, the financial institutions party to the
Credit Agreement, as Lenders and Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer.of a permanent reduction in the Aggregate
Commitments to an amount equal to $85,000,000 effective upon the Effective Date
(as defined in the Third Amendment).
The Company hereby certifies that the Outstanding Amount of all Loans
and L/C Obligations is $70,000,000.
Sincerely,
ARTESYN TECHNOLOGIES, INC.
By:_______________________________
Name:
Title:
B-1