Exhibit 4.2
[Execution]
AMENDMENT NO. 1 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT ("Amendment No. 1"),
dated as of April 25, 2003, by and among PEMSTAR Inc., a Minnesota corporation
("Parent"), Turtle Mountain Corporation, a North Dakota Corporation ("Turtle
Mountain"), PEMSTAR Pacific Consultants Inc., a California corporation ("PPC",
and together with Parent and Turtle Mountain, each individually a "Borrower" and
collectively, "Borrowers"), Gentlelife, Inc., a California corporation, formerly
known as Kinderlife Instruments Inc. ("Guarantor") and Congress Financial
Corporation (Central), an Illinois corporation, in its capacity as
administrative and collateral agent pursuant to the Loan Agreement (as
hereinafter defined) acting for and on behalf of the parties thereto as lenders
(in such capacity "Agent").
W I T N E S S E T H :
WHEREAS, Agent, Borrowers, Guarantor, Fleet Capital Corporation, a
Rhode Island corporation, in its capacity as Documentation Agent for Lenders (in
such capacity, "Documentation Agent"), Wachovia Bank, N.A., a national banking
association, in its capacity as Arranger for Lenders (in such capacity,
"Arranger") and the parties to the Loan Agreement as lenders, whether by
execution of the Loan Agreement or an Assignment and Acceptance (individually,
each a "Lender" and collectively, "Lenders"), have entered into financing
arrangements pursuant to which Lenders (or Agent on behalf of Lenders) have
made, and may make, loans and advances and provide other financial
accommodations to Borrowers as set forth in the Loan and Security Agreement,
dated April 25, 2003, among Agent, Borrowers, Guarantors, Documentation Agent,
Arranger and Lenders (as amended hereby and as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement", and together with all agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto,
as from time to time amended and supplemented, collectively, the "Financing
Agreements").
WHEREAS, Borrowers and Guarantor have requested that Agent and Lenders
amend the Loan Agreement to increase the Maximum Credit available to Borrowers
from $80,000,000 to $90,000,000;
WHEREAS, Agent and Lenders are willing to agree to such amendment,
subject to the terms and conditions herein; and
WHEREAS, by this Amendment Xx. 0, Xxxxx, Xxxxxxx, Borrowers and
Guarantor desire and intend to evidence such amendment.
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) Amendment to Definitions. All references to the term "Maximum
Credit" in the Loan Agreement and any of the other Financing Agreements and each
such reference is hereby amended to mean $90,000,000.
(b) Interpretation. For purposes of this Amendment No. 1, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. Commitments. The Commitment of Congress is hereby amended to be
$60,000,000 and upon the effectiveness of the Assignment and Acceptance between
Congress and U.S. Bank National Association referred to below, the Commitment of
Congress shall be reduced to $50,000,000 and the Commitment of U.S. Bank
National Association shall be $10,000,000 as set forth in such Assignment and
Acceptance.
3. Additional Representations, Warranties and Covenants. Each Borrower and
Guarantor represents, warrants and covenants with and to Agent and Lenders as
follows, which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof:
(a) This Amendment No. 1 has been duly executed and delivered by each
Borrower and Guarantor and is in full force and effect as of the date hereof and
the agreements and obligations of each Borrower and Guarantor contained herein
constitute legal, valid and binding obligations of each Borrower and Guarantor
enforceable against each of them in accordance with their respective terms.
(b) No action of, or filing with, or consent or any governmental or
public body or authority, and no approval or consent of any other party, is or
will be required to authorize, or is or will be otherwise required in connection
with, the execution, delivery and performance of this Amendment No. 1.
4. Conditions Precedent. The effectiveness of the amendment contained
herein shall be subject to the satisfaction of each of the following, in a
manner satisfactory to Agent and its counsel:
(a) Agent shall have received this Amendment No. 1 duly authorized,
executed and delivered by the parties hereto; and
(b) Congress shall have received the Assignment and Acceptance between
Congress, as assignor and U.S. Bank National Association, as assignee and the
assignment by Congress to U.S. Bank National Association thereunder shall be
effective.
5. Effect of this Amendment. Except as expressly set forth herein, no other
amendments, consents, changes or modifications to the Financing Agreements are
intended or implied, and in all other respects the Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of
the effective date hereof and Borrowers shall not be entitled to any other or
further amendment or consent by virtue of the provisions of this Amendment No. 1
or with respect to the subject matter of this Amendment No. 1. To the extent of
conflict between the terms of this Amendment No. 1 and the other Financing
Agreements, the terms of this Amendment No. 1 shall control. The Loan Agreement
and this Amendment No. 1 shall be read and construed as one agreement.
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6. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment No. 1.
7. Governing Law. The validity, interpretation and enforcement of this
Amendment No. 1 and the other Financing Agreements and any dispute arising out
of the relationship between the parties hereto whether in contract, tort, equity
or otherwise, shall be governed by the internal laws of the State of Illinois
but excluding any principles of conflicts of law or other rule of law that would
cause the application of the law of any jurisdiction other than the laws of the
State of Illinois.
8. Binding Effect. This Amendment No. 1 shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
9. Headings. The headings listed herein are for convenience only and do
not constitute matters to be construed in interpreting this Amendment No. 1.
10. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment No. 1, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto. Delivery of an executed counterpart of this
Amendment No. 1 by telefacsimile shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 1. Any party
delivering an executed counterpart of this Amendment No. 1 by telefacsimile also
shall deliver an original executed counterpart of this Amendment No. 1, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 1 as to such
party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and delivered by their authorized officers as of the day and
year first above written.
AGENT BORROWERS
CONGRESS FINANCIAL CORPORATION PEMSTAR INC.
(CENTRAL), as Agent
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxx
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Title: Vice President Title: CFO
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TURTLE MOUNTAIN CORPORATION PEMSTAR PACIFIC CONSULTANTS INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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Title: Secretary Title: Secretary
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LENDERS
CONGRESS FINANCIAL CORPORATION FLEET CAPITAL CORPORATION
(CENTRAL)
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President Title: Senior Vice President
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