EXHIBIT 10.1
AMENDMENT NO.9
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Amendment No. 9 ("Amendment") to the Amended and Restated Revolving
Credit Agreement is made as of January 27, 2003 by and among Pemstar Inc., duly
organized under the laws of the State of Minnesota ("Customer"), Turtle Mountain
Corporation, duly organized under the laws of the State of North Dakota ("Turtle
Mountain") and Pemstar Pacific Consultants Inc., duly organized under the laws
of the State of California ("Pemstar Pacific Consultants") (Customer, Turtle
Mountain and Pemstar Pacific Consultants, collectively the "Credit Parties",
individually a "Credit Party") and IBM Credit LLC, a Delaware limited liability
company (formerly IBM Credit Corporation, a Delaware corporation) ("IBM
Credit").
RECITALS:
A. The Credit Parties have entered into that certain Amended and Restated
Revolving Credit Agreement dated as of June 29, 2001 (as heretofore amended,
modified and supplemented from time to time, the "Agreement").
B. The parties have agreed to modify the Agreement as more specifically set
forth below, upon and subject to the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Credit Parties and IBM Credit hereby agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Agreement, as amended hereby.
Section 2. Amendment. The Agreement is hereby amended as follows:
A. The Agreement is hereby amended by adding the following at the end of
Section 7.16. (F):
"Notwithstanding anything to the contrary herein, no Credit Party nor any
Subsidiary of a Credit Party shall at any time: (i) provide guaranties to
support the construction or financing of any facility of Pemstar (Tianjin)
Enterprise Ltd. ("Pemstar China Facility") or (ii) make any Investment or equity
contribution in Pemstar (Tianjin) Enterprise Ltd. for the purpose of supporting
construction or financing of the Pemstar China Facility or (iii) use the
proceeds of any Advance under this Agreement to support the construction or
financing of the Pemstar China Facility or (iv) provide any form of financial
support for the construction or financing of the Pemstar China Facility,
including, but not limited to guaranties, irrevocable letters of credit or
comfort letters."
B. Section 8.4. of the Agreement is amended in its entirety to read as
follows:
"8.4. Guaranties. No Credit Party will, directly or indirectly, assume,
guaranty, endorse, or otherwise become liable upon the obligations of any other
Person, except (i) by the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business, (ii) by
the giving of indemnities in connection with the sale of inventory or other
asset dispositions permitted hereunder, (iii) for guaranties in favor of IBM
Credit, and (iv) guaranty to suppliers of the Credit Parties's subsidiaries'
obligations in the aggregate less than
one million dollars ($1,000,000.00). None of the foregoing exceptions (i)
through (iv) shall apply to the construction or financing of the Pemstar China
Facility."
C. Section 8.15. of the Agreement is amended in its entirety to read as
follows:
"8.15. Loans. No Credit Party, without the prior written consent of IBM Credit,
will make any loans, advances, contributions or payments of money or goods to
any Subsidiary, affiliate or parent corporation or to any officer, director, or
stockholder of such Credit Party or of any such Credit Party or of any such
company (except for compensation for personal services actually rendered) except
for transactions expressly authorized in this Agreement. Notwithstanding the
foregoing, and provided that no Default or Event of Default has occurred and is
continuing or will result from the following:
(a) Credit Parties may make loans, advances or contributions to each other;
(b) Credit Parties may make loans and advances either individually or jointly
and otherwise make payment of money to Unrestricted Foreign Subsidiaries (other
than to Pemstar (Tianjin) Enterprise Ltd. for the purpose of supporting the
construction or financing of the Pemstar China Facility)) provided that after
giving effect to such loan or advance or payment of money, the aggregate amount
of all loans, advances and other payment of money made by all of the Credit
Parties to all Unrestricted Foreign Subsidiaries does not exceed, in the
aggregate, the following amounts for the period specified:
(i) as of March 31, 2002, the aggregate amount of all loans, advances and
other payment of money made by all of the Credit Parties to all Unrestricted
Foreign Subsidiaries does not exceed $51,000,000;
(ii) from April 1, 2002 through and including June 30, 2002, the aggregate
amount of all loans, advances and other payment of money made by all of the
Credit Parties to all Unrestricted Foreign Subsidiaries does not exceed
$39,000,000; and
(iii) from July 1, 2002 and thereafter, the aggregate amount of all loans,
advances and other payment of money made by all of the Credit Parties to all
Unrestricted Foreign Subsidiaries does not exceed $32,000,000.
(c) Credit Parties may make loans and advances individually or jointly and
payment of money to Foreign Subsidiaries (other than Unrestricted Foreign
Subsidiaries) provided that after giving effect to such loan or advance or
payment of money, the aggregate amount of all loans, advances and other payment
of money made to all such Foreign Subsidiaries (excluding Unrestricted Foreign
Subsidiaries pursuant to clause (b) hereof) shall not be greater than
($10,000,000) (negative Ten Million Dollars) in the aggregate."
Section 3. Representations and Warranties. Each Credit Party makes to IBM
Credit the following representations and warranties all of which are material
and are made to induce IBM Credit to enter into this Amendment.
Section 3.1 Accuracy and Completeness of Warranties and Representations. All
representations made by each Credit Party in the Agreement were true and
accurate and complete in every respect as of the date made, and, as amended by
this Amendment, all representations made by each Credit Party in the Agreement
are true, accurate and complete in every material respect as of the date hereof,
and do not fail to disclose any material fact necessary to make representations
not misleading.
Section 3.2 Violation of Other Agreements. The execution and delivery of this
Amendment and the performance and observance of the covenants to be performed
and observed hereunder do not violate or cause any Credit Party not to be in
compliance with the terms of any agreement to which any Credit Party is a party.
Section 3.3 Litigation. Except as has been disclosed by the Credit Parties to
IBM Credit in writing, there is no litigation, proceeding, investigation or
labor dispute pending or threatened against any Credit Party, which, if
adversely determined, would materially adversely affect any Credit Party's
ability to
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perform any Credit Party's obligations under the Agreement and the other
documents, instruments and agreements executed in connection therewith or
pursuant hereto.
Section 3.4 Enforceability of Amendment. This Amendment has been duly
authorized, executed and delivered by the Credit Parties and is enforceable
against each Credit Party in accordance with its terms.
Section 3.5 No Default Under Other Lender Agreements. The Credit Parties
acknowledge and agree that the execution, delivery and performance of documents
relating to the construction and financing of the Pemstar China Facility and the
purchase of Customer's stock pursuant to the Customer's employee stock purchase
plan and this Amendment and the transactions contemplated thereby will not
trigger a default or an event of default under the terms of any financing
agreement or any other agreement between any Credit Party and any lender.
Section 4. Ratification of Agreement. Except as specifically amended hereby,
all of the provisions of the Agreement shall remain unamended and in full force
and effect. Nothing herein shall be deemed a waiver of any default or consent.
Each Credit Party hereby ratifies, confirms and agrees that the Agreement, as
amended hereby, represents a valid and enforceable obligation of each Credit
Party, and is not subject to any claims, offsets or defenses.
Section 5. Governing Law. This Amendment shall be governed by and interpreted
in accordance with the laws which govern the Agreement.
Section 6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement.
Section 7. Conditions to Effectiveness. This Amendment shall only become
effective upon the fulfillment of all the following conditions precedent to the
satisfaction of IBM Credit:
1. This Amendment shall have been executed by all the parties hereto;
2. Before and after giving effect to this Amendment, the representations
and warranties in Section 3 of the Agreement shall be true and correct as though
made on the date hereof. The execution by the Credit Parties of this Amendment
shall be deemed a representation that the Credit Parties have complied with the
foregoing condition; and
3. IBM Credit shall have received a fully executed copy of the consent
letter (in the form attached hereto) and all the conditions precedent to the
effectiveness to the consent shall have been fulfilled to the satisfaction of
IBM Credit in its sole discretion.
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IN WITNESS WHEREOF, this Amendment has been executed by duly authorized
officers of the undersigned as of the day and year first above written.
Pemstar Inc. Turtle Mountain Corporation
By: /s/ Xxxx X. Xxx By: /s/ Xxxxx X. Xxxxx /s/ Xxxx X. Xxxxxx
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Print Name: Xxxx X. Xxx Print Name: Xxxxx X. Xxxxx Xxxx X. Xxxxxx
---------------------- --------------------------------
Title: CFO Title: Secretary President
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Date: 1/20/03 Date: 1/20/03
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ATTEST: ATTEST:
_________________________________ ____________________________________________
Print Name: _____________________ Print Name: ________________________________
Pemstar Pacific Consultants Inc. IBM Credit LLC
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------- ----------------------------------------
Print Name: Xxxxx X. Xxxxx Print Name: Xxxxxx X. Xxxxxxxx
--------------------- --------------------------------
Title: Secretary Title: Manager, Global Special Handling
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Date: 1/20/03 Date: 1/27/03
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ATTEST: ATTEST:
_________________________________ ____________________________________________
Print Name: _____________________ Print Name: ________________________________
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