Amendment No. 2 to Loan and Security Agreement



 






Exhibit 10.21




AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT AND CONSENT




     THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT AND CONSENT (this “Amendment”) is made and
entered into as of August 13, 2003, by and among ARTESYN TECHNOLOGIES, INC., a Florida corporation
(“Technologies”); ARTESYN NORTH AMERICA, INC., a Delaware corporation (“North America”); ARTESYN
COMMUNICATION PRODUCTS, INC., a Wisconsin corporation (“Communication Products”; Technologies,
North America and Communication Products are hereinafter referred to collectively as “Borrowers”
and individually as a “Borrower”); ARTESYN ASSET MANAGEMENT, INC., a Delaware corporation (“AAM”);
REAL-TIME DIGITAL, INC., a New Jersey corporation (“RTD”); ARTESYN DELAWARE, INC., a Delaware
corporation (“ADI”); AZCORE TECHNOLOGIES, INC., a Delaware corporation (“AzCore”); ARTESYN
DELAWARE, LLC, a Delaware limited liability company (“Artesyn LLC”; AAM, RTD, ADI, AzCore and
Artesyn LLC are hereinafter referred to collectively as “Guarantors” and individually as a
“Guarantor”); and FLEET CAPITAL CORPORATION, a Rhode Island corporation (“Lender”).



Recitals:




     Borrowers and Lender are parties to a certain Loan and Security Agreement dated March 28, 2003
(as amended and in effect, the “Loan Agreement”), pursuant to which Lender has made certain
revolving credit loans and other extensions of credit to Borrowers.



     Borrowers have informed Lender that Technologies desires to issue up to $90,000,000 aggregate
principal amount of convertible senior subordinated notes to certain qualified institutional buyers
in reliance on Rules 144A and 506 of the Securities Act of 1933, as amended, a portion of the
proceeds of which will be applied by Technologies to the repayment in full of the Finestar
Subordinated Debt, and Borrowers have requested the consent of Lender to the issuance of such notes
and to the repayment in full of the Finestar Subordinated Debt. To induce Lender to grant such
consent, Borrowers and Guarantors have agreed to execute and deliver and to perform its obligations
under this Amendment.



     NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and valuable
consideration, the receipt and sufficiency of which are hereby severally acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:



     1. Definitions. All capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meaning ascribed to such terms in the Loan Agreement.



     2. Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:



          (a) By amending Section 9.2.3 by (i) deleting the word “and” at the end of clause




 









 







(xi); (ii) redesignating clause (xii) as clause (xiii); and (iii) inserting the following new
clause (xii):









               (xii) the Senior Subordinated Notes; and




          (b) By deleting the definition of “Change of Control” from Appendix A to the Loan Agreement
and by substituting the following new definition in lieu thereof:




               Change of Control — the occurrence of any of the following events after
the date of the Agreement: (i) any Person or Group of Persons shall, as a result of
a tender or exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become the direct or indirect beneficial owner (within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of Equity
Interests of Technologies representing 50% or more of the Voting Power of
Technologies; (ii) occupation of a majority of the seats (other than vacancies) on
the board of directors of Technologies by Persons who were neither (a) nominated by
the board of directors of Technologies as of the Closing Date nor (b) appointed by
directors so nominated; or (iii) a Change of Control under (and as defined in) the
Senior Subordinated Note Indenture shall occur.



     (c) By deleting the definition of “Subordinated Debt” from Appendix A to the Loan Agreement
and by substituting the following new definition in lieu thereof:



     Subordinated Debt — the Senior Subordinated Notes, the Finestar
Subordinated Debt and any other Debt of a Borrower that is fully and absolutely
subordinated in right of payment to the Obligations in a manner satisfactory to
Lender.



     (d) By adding the following new definitions to Appendix A to the Loan Agreement, in proper
alphabetical sequence:



     Senior Subordinated Notes — up to $90,000,000 aggregate
principal amount of 5.50% per annum unsecured Convertible Senior
Subordinated Notes due 2010 outstanding under the Senior Subordinated Note
Indenture.



     Senior Subordinated Note Documents — collectively, the Senior
Subordinated Notes, the Senior Subordinated Note Indenture, the Registration
Rights Agreement, as defined in the Senior Subordinated Note Indenture, and
all other agreements, instruments and certificates executed in connection
with the issuance of the Senior Subordinated Notes.



     Senior Subordinated Note Indenture — the Indenture dated as of
August 13, 2003, by and between Technologies and The Bank of New York, as
Trustee, pursuant to which the Senior Subordinated Notes are issued.



     3. Ratification and Reaffirmation. Each Borrower hereby ratifies and reaffirms the
Obligations, each of the Loan Documents and all of such Borrower’s covenants, duties, indebtedness
and liabilities under the Loan Documents, in each case as amended hereby.



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     4. Acknowledgments and Stipulations. Each Borrower acknowledges and stipulates that
the Loan Agreement and the other Loan Documents executed by such Borrower are legal, valid and
binding obligations of such Borrower that are enforceable against such Borrower in accordance with
the terms thereof; all of the Obligations are owing and payable without defense, offset or
counterclaim (and to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by such Borrower); the security interests and liens granted by
such Borrower in favor of Lender are duly perfected, first priority security interests and liens;
and the unpaid principal amount of the Revolver Loans on and as of August 13, 2003, totaled
approximately $10,000,000 and the unpaid amount of the LC Obligations on and as of August 13, 2003,
totaled $0.



     5. Representations and Warranties. Each Borrower represents and warrants to Lender,
to induce Lender to enter into this Amendment (terms defined in the Loan Agreement, as amended by
this Amendment, being used in this Section 5 as so defined), that (i) no Default or Event of
Default exists on the date hereof; (ii) that the execution, delivery and performance of this
Amendment have been duly authorized by all requisite corporate action on the part of such Borrower
and this Amendment has been duly executed and delivered by such Borrower; (iii) that all of the
representations and warranties made by such Borrower in the Loan Agreement are true and correct on
and as of the date hereof, (iv) that Technologies has the corporate power and authority to issue
the Senior Subordinated Notes, (v) that Technologies has the right and power, and has taken all
necessary action to authorize it, to execute and deliver the Indenture, the Senior Subordinated
Notes and each other Senior Subordinated Note Document and to perform its obligations each Senior
Subordinated Note Document in accordance with their respective terms, (vi) that the Indenture, the
Senior Subordinated Notes and each other Senior Subordinated Note Document have been or will be
duly executed and delivered by the duly authorized officers of Technologies and each Senior
Subordinated Note Document is or, each when executed and delivered in accordance with the terms
thereof will be, a legal, valid and binding obligation of Technologies, enforceable against it in
accordance with its terms (including those pertaining to subordination), except as the
enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors’ rights or general principles of equity, (v) the
Senior Subordinated Notes are or, when executed and delivered in accordance with the terms of the
Indenture will be, subordinated to the prior payment in full, in cash, of the Obligations, and (vi)
that the issuance and sale of the Senior Subordinated Notes have been or will be registered or
qualified under applicable federal and state securities laws or are exempt therefrom.



     6. Acknowledgments, Representations, Consents and Reaffirmations by Guarantors. Each
Guarantor hereby (i) acknowledges and stipulates that its Guaranty delivered in favor of Lender on
or about the Closing Date is a legal, valid and binding obligation of such Guarantor that is
enforceable against such Guarantor in accordance with the terms thereof, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors’ rights or general principles of equity, (ii)
represents and warrants that this Amendment has been duly authorized by all requisite corporate or
other action on the part of such Guarantor; that this Amendment has been duly executed and
delivered by such Guarantor; and that all of the representations and warranties made by such
Guarantor in its Guaranty are true and correct on and as of the date hereof, (iii) consents to each



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Borrower’s execution and delivery of this Amendment and of the other documents, instruments or
agreements such Borrower agrees to execute and deliver pursuant hereto, and (iv) affirms that
nothing contained herein shall modify in any respect whatsoever its Guaranty and reaffirms that its
Guaranty is and shall remain in full force and effect.



     7. Reference to Loan Agreement. Upon the effectiveness of this Amendment, each
reference in the Loan Agreement to “this Agreement,” “hereunder,” or words of like import shall
mean and be a reference to the Loan Agreement, as amended by this Amendment.



     8. Breach of Amendment. This Amendment shall be part of the Loan Agreement and a
breach of any covenant herein or a breach in any material respect of any representation or warranty
herein shall constitute an Event of Default.



     9. Conditions Precedent. The effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions precedent, unless satisfaction thereof is
specifically waived in writing by Lender (terms defined in the Loan Agreement, as amended by this
Amendment, being used in this Section 9 as so defined):



     (a) Lender shall have received this Amendment, in form and substance satisfactory to Lender,
duly executed and delivered by Borrowers, Guarantors and Lender;



     (b) Lender shall have received the final drafts of the Indenture and the Senior Subordinated
Notes, which drafts shall be in form and substance satisfactory to Lender, certified as true and
complete copies of such final drafts by a Senior Officer of Technologies;



     (c) Lender shall have received a certificate of a Senior Officer of each Obligor, in form and
substance satisfactory to Lender, stating that, to the best of his or her knowledge and based on
an examination sufficient to enable him or her to make an informed statement, both before and
after giving effect to the transactions contemplated by the Senior Subordinated Note Indenture,



     (i) all of the representations and warranties made or deemed to be made by an
Obligor under the Loan Agreement and this Amendment are true and correct on and as
of the date of issuance of the Senior Subordinated Notes, except (x) for changes in
the nature of an Obligor’s business or operations that may have occurred after the
date of the Loan Agreement in the Ordinary Course of Business or so long as Lender
has consented to such changes or such changes did not result in a violation of any
provision of the Loan Agreement, and (y) representations and warranties which by
their terms are applicable only to a specific date shall be deemed made only at and
as of such date.



     (ii) no Default or Event of Default exists on the date of issuance of the
Senior Subordinated Notes.



     (d) Lender shall have received a certificate of the Secretary or Assistant Secretary of each
Obligor, in form and substance satisfactory to Lender, having attached thereto the Organization
Documents of such Obligor (or, if applicable, containing the certification of such



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Secretary or Assistant Secretary that no amendment or modification of such Organization Documents
has become effective since the date on which such documents were last delivered to Lender), that
all corporate or company action, including shareholders’ or members’ approval, if necessary, has
been taken by such Obligor and/or its shareholders or members to authorize the execution, delivery
and performance of this Amendment and the other agreements, instruments and documents contemplated
hereby and containing the names and specimen signatures of each of the officers of such Obligor who
is authorized to and will execute and deliver this Amendment and the other agreements, instruments
and documents contemplated hereby or, if applicable, to the further effect that the incumbency
certificate most recently delivered to Lender remains in effect, unchanged; and



     (e) Not less than $75,000,000 aggregate principal amount of Senior Subordinated Notes shall
have been duly issued and paid for in accordance with the terms of the Senior Subordinated Note
Indenture on or before August 31, 2003.



     10. Expenses of Lender. In consideration of Lender’s willingness to enter into this
Amendment and modify the terms of the Loan Agreement as set forth herein, Borrowers agrees to pay
to Lender, on demand, all costs and expenses incurred by Lender in connection with the preparation,
negotiation and execution of this Amendment and any other Loan Documents executed pursuant hereto
and any and all amendments, modifications, and supplements thereto, including, without limitation,
the reasonable costs and fees of Lender’s legal counsel and any taxes or expenses associated with
or incurred in connection with any instrument or agreement referred to herein or contemplated
hereby.



     11. Consent to Issuance of Senior Subordinated Notes and Repayment of Finestar
Subordinated Debt. Subject to the satisfaction of the conditions precedent set forth in
Section 9 hereof, Lender hereby consents to the following transactions: (a) the issuance by
Technologies of the Senior Subordinated Notes in accordance with the terms of the Senior
Subordinated Note Indenture and (b) the prepayment in full by Technologies of the Finestar
Subordinated Debt in accordance with the terms of the Promissory Note Payoff Agreement dated August
1, 2003, between Finestar and Technologies, an executed copy of which has been furnished by
Borrowers to Lender.



     12. Additional Covenants. Technologies hereby covenants and agrees in favor of Lender
to do each of the following:



     (a) apply a portion of the proceeds of the Senior Subordinated Notes to the repayment in full
of the Finestar Subordinated Debt no later than the second Business Day following the first date on
which any Senior Subordinated Notes are issued and paid for, whereupon the Finestar Subordinated
Debt shall cease to be Permitted Debt and all references in the Loan Agreement and the other Loan
Documents to the Finestar Subordinated Debt shall be of no further force and effect, and deliver
promptly to Lender evidence satisfactory to Lender that the Finestar Subordinated Debt has been so
paid in full; and



     (b) deliver to Lender, promptly following the issuance of the Senior Subordinated Notes, (i)
true and correct executed or conformed copies of all of the Senior Subordinated Note Documents,
which shall be in the same form as the final drafts thereof delivered to and approved by



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Lender prior to the issuance of the Senior Subordinated Notes, certified by a Senior Officer
of Technologies; and (ii) a certificate of a Senior Officer or such other evidence satisfactory to
Lender that not less than $75,000,000 aggregate principal amount of Senior Subordinated Notes have
been issued and paid for.



     Technologies’ failure to comply strictly with the terms of this Section 12 shall, at the
option of Lender, constitute an Event of Default.



     13. Effectiveness; Governing Law. This Amendment shall be effective upon acceptance
by Lender in Atlanta, Georgia (notice of which acceptance is hereby waived), whereupon the same
shall be governed by and construed in accordance with the laws of the State of New York (without
giving effect to the conflict of laws principles thereof other than Section 5-1401 of the New York
General Obligations Law).



     14. Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.



     15. No Novation, etc. Except as otherwise expressly provided in this Amendment,
nothing herein shall be deemed to amend or modify any provision of the Loan Agreement or any of the
other Loan Documents, each of which shall remain in full force and effect. This Amendment is not
intended to be, nor shall it be construed to create, a novation or accord and satisfaction, and the
Loan Agreement as herein modified shall continue in full force and effect.



     16. Counterparts; Telecopied Signatures. This Amendment may be executed in any number
of counterparts and by different parties to this Amendment on separate counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts shall constitute
one and the same agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.



     17. Further Assurances. Each Borrower and Guarantor agrees to take such further
actions as Lender shall reasonably request from time to time in connection herewith to evidence or
give effect to the amendments set forth herein or any of the transactions contemplated hereby.



     18. Section Titles. Section titles and references used in this Amendment shall be
without substantive meaning or content of any kind whatsoever and are not a part of the agreements
among the parties hereto.



     19. Release of Claims. To induce Lender to enter into this Amendment, each Borrower
and Guarantor hereby releases, acquits and forever discharges Lender and all officers, directors,
agents, employees, successors and assigns of Lender from any and all liabilities, claims, demands,
actions or causes of action of any kind or nature (if there be any), whether absolute or
contingent, disputed or undisputed, at law or in equity, or known or unknown, that such Borrower or
Guarantor now has or ever had against Lender arising under or in connection with any of the Loan
Documents or otherwise. Each Borrower and Guarantor represents and warrants to Lender that no
Borrower or Guarantor has



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transferred or assigned to any Person any claim that any Borrower or Guarantor ever had or
claimed to have against Lender.




     20. Waiver of Jury Trial. To the fullest extent permitted by applicable law, the
parties hereto each hereby waives the right to trial by jury in any action, suit, counterclaim or
proceeding arising out of or related to this Amendment.



[SIGNATURES WILL COMMENCE ON FOLLOWING PAGE]




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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under

seal and delivered by their respective duly authorized officers on the date first written above.







	 	 	 	 	 	 	 
	ATTEST:	 	ARTESYN TECHNOLOGIES, INC.
(“Borrower”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	ARTESYN NORTH AMERICA, INC. (“Borrower”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	ARTESYN COMMUNICATION PRODUCTS, INC.
(“Borrower”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	ARTESYN ASSET MANAGEMENT, INC.
(“Guarantor”)
	 
	 	 	 	 	 	 
	

	 	By:
	 	Richard F. Gerrity	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: President	 	 
	 
	 	 	 	 	 	 




 [SIGNATURES WILL CONTINUE ON FOLLOWING PAGE]

  
 








 






	 	 	 	 	 	 	 
	:	 	REAL-TIME DIGITAL, INC.
(“Guarantor”)
	 
	 	 	 	 	 	 
	

	 	By:
	 	Richard F. Gerrity	 	 
	

	 	 	 	 	 	 
	

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	ARTESYN DELAWARE, INC.
(“Guarantor”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	AZCORE TECHNOLOGIES, INC.
(“Guarantor”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 
	ATTEST:	 	ARTESYN DELAWARE, LLC
(“Guarantor”)
	 
	 	 	 	 	 	 
	Richard J. Thompson

	 	By:
	 	Richard F. Gerrity	 	 
	 

	 	 	 	 	 	 
	Secretary

	 	 	 	Name: Richard F. Gerrity	 	 
	[CORPORATE SEAL]

	 	 	 	Title: Treasurer	 	 
	 
	 	 	 	 	 	 




 [SIGNATURES WILL CONTINUE ON FOLLOWING PAGE]











 






    	 	 	 	 	 	 	 
	 	 	FLEET CAPITAL CORPORATION

          (“Lender”)
	 
	 	 	 	 	 	 
	 
	 	By: 	 	Douglas Strange	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	Name: 	Douglas Strange	 	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	Title: 	Vice President	 	 
	 
	 	 	 	 	 	 	 







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