EXHIBIT 4.04
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 8, 2002, is entered into by
and among:
(1) FLEXTRONICS INTERNATIONAL LTD., a Singapore
corporation ("FIL") acting, subject to Paragraph 8.15 hereof, through
its Hong Kong branch, and each of the Subsidiaries of FIL designated
as borrowers from time to time, as approved by all Lenders, the
Issuing Bank and Guarantors hereunder (such subsidiaries to be
referred to herein collectively as "Designated Borrowers");
(2) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as
"Lenders");
(3) ABN AMRO BANK N.V. ("ABN AMRO"), as agent for the
Lenders (in such capacity, "Agent");
(4) ABN AMRO and FLEET NATIONAL BANK, as co-lead arrangers
(collectively, in such capacity, the "Co-Arrangers");
(5) DEUTSCHE BANC ALEX. BROWN INC., BANK OF AMERICA, N.A.,
CITICORP USA, INC. and FLEET NATIONAL BANK, as co-syndication agents
(collectively, in such capacity, the "Co-Syndication Agents");
(6) THE BANK OF NOVA SCOTIA, as senior managing agent (in
such capacity, the "Senior Managing Agent");
(7) BNP PARIBAS and CREDIT SUISSE FIRST BOSTON, as
managing agents (collectively, in such capacity, the "Managing
Agents"); and
(8) FLEET NATIONAL BANK, as the issuer of letters of
credit under Subparagraph 2.01(b), (in such capacity, the "Issuing
Bank").
RECITALS
A. FIL has requested Lenders to provide certain credit facilities to
FIL and Designated Borrowers (collectively, "Borrowers").
B. Lenders are willing to provide such credit facilities upon the
terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or
any other Credit Document, each term set forth below, when used in this
Agreement or any other Credit Document, shall have the respective meaning given
to that term below or in the provision of this Agreement or other document,
instrument or agreement referenced below.
"ABN AMRO" shall have the meaning given to that term in
clause (3) of the introductory paragraph hereof.
"Affiliate" shall mean, with respect to any Person, each
other Person that (a) directly or indirectly, owns or controls,
whether beneficially or as a trustee, guardian or other fiduciary,
ten percent (10%) or more of any class of Equity Securities of such
Person or (b) that controls, is controlled by or is under common
control with such Person or any Affiliate of such Person; provided,
however, that in no case shall Agent or any Lender be deemed to be an
Affiliate of any Borrower or any of FIL's Subsidiaries for purposes
of this Agreement. For the purpose of this definition, "control" of a
Person shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of its management or policies,
whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall have the meaning given to that term in clause
(3) of the introductory paragraph hereof.
"Agent's Fee Letter" shall mean the letter agreement dated
as of January 11, 2002 between FIL and Agent.
"Agent's Fees" shall have the meaning given to that term in
Subparagraph 2.06(a).
"Agreement" shall mean this Credit Agreement.
"Alternative Currency" shall mean any Currency (other than
United States Dollars).
"Alternative Currency Equivalent" shall mean, as to any
amount denominated in United States Dollars as of any date of
determination, the amount of the applicable Alternative Currency that
could be purchased with such amount of Dollars based upon the spot
selling rate at which ABN AMRO's London office offers to sell such
Alternative Currency for Dollars in the London foreign exchange
market at approximately 11:00 a.m. London time on such date for
delivery two (2) Business Days later.
"Applicable Lending Office" shall mean, with respect to any
Lender and any Borrowing, such Lender's Lending Office.
"Applicable Margin" shall mean, with respect to any
Borrowing at any time, the per annum margin which is determined
pursuant to the Pricing Grid and added to the Base Rate or LIBO Rate,
as the case may be, for such Borrowing; provided, however, that each
Applicable Margin determined pursuant to the Pricing Grid shall be
increased by two percent (2.00%) per annum on the date an Event of
Default occurs and shall continue at such increased rate unless and
until such Event of Default is cured or waived in accordance with
this Agreement. The Applicable Margins shall be determined as
provided in the Pricing Grid (subject to the proviso in the preceding
sentence) and may change as provided in the Pricing Grid.
"Applicable Payment Office" shall have the meaning given to
that term in Subparagraph 2.13(b).
"Applicable Rate Page" shall mean, with respect to any
currency at any time, the applicable Telerate Page on which appears
the London Interbank Offered Rate for deposits in such currency at
such time or, if no such page is then available, the applicable
Reuters Screen Page on which such information then appears.
"Assignee Lender" shall have the meaning given to that term
in Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment and Assumption" shall have the meaning given to
that term in Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to
each Assignment and Assumption, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term
in Subparagraph 8.05(c).
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"Base Rate" shall mean, on any day, the greater of (a) the
Prime Rate in effect on such date and (b) the Federal Funds Rate for
such day plus one-half percent (0.50%).
"Base Rate Borrowing" shall mean any Borrowing consisting
of Base Rate Loans.
"Base Rate Loan" shall mean any Loan bearing interest based
upon the Base Rate.
"Borrowers" shall have the meaning given to that term in
Recital A.
"Borrowing" shall mean any Facility A Borrowing or any
Facility B Borrowing.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in San Francisco, California,
New York, New York or Chicago, Illinois, other than Saturday or
Sunday, and (a) if such Business Day is related to a Borrowing in
United States Dollars, dealings in Dollar deposits are carried out in
the London interbank market and commercial banks are open for
business in London or (b) if such Business Day is related to a
Borrowing in an Alternative Currency, dealings in such currency are
carried out in the London interbank market and commercial banks are
open for business in London.
"Capital Adequacy Requirement" shall have the meaning given
to that term in Subparagraph 2.12(d).
"Capital Leases" shall mean any and all lease obligations
that, in accordance with GAAP, are required to be capitalized on the
books of a lessee.
"Change of Control" shall mean, with respect to FIL (i) the
acquisition after the date hereof by any person or group of persons
(within the meaning of Section 13 or 14 of the Securities Exchange
Act of 1934 (as amended, the "Exchange Act")) of (A) beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Exchange Act) of fifty
percent (50%) or more of the outstanding Equity Securities of FIL
entitled to vote for members of the board of directors, or (B) all or
substantially all of the assets of FIL; (ii) during any period of
twelve (12) consecutive calendar months, individuals who are
directors of FIL on the first day of such period ("Initial
Directors") and any directors of FIL who are specifically approved by
two-thirds of the Initial Directors and previously-approved Directors
shall cease to constitute a majority of the Board of Directors of FIL
before the end of such period; or (iii) any other event or condition
constituting a "Change of Control" (or similar defined term) under
the Subordinated Indenture shall occur or exist.
"Change of Law" shall have the meaning given to that term
in Subparagraph 2.12(b).
"Closing Date" shall mean March 8, 2002.
"Co-Arrangers" shall have the meaning given to that term in
clause (4) of the introductory paragraph hereof.
"Combined Total Commitment" shall mean the sum of (a) the
Total Facility A Commitment and Total Facility B Commitment plus (b)
the "Total Facility A Commitment" and the "Total Facility B
Commitment" under the FIUI Credit Agreement.
"Commitment Fee Percentage" shall mean the per annum
percentage which is used to calculate the Commitment Fees. The
Commitment Fee Percentage shall be determined as provided in the
Pricing Grid and may change as provided in the Pricing Grid.
"Commitment Fees" shall mean, collectively, the Facility A
Commitment Fees and the Facility B Commitment Fees.
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"Commitments" shall mean, collectively, the Facility A
Commitments and the Facility B Commitments.
"Compliance Certificate" shall have the meaning given to
that term in Subparagraph 5.01(a).
"Contingent Obligation" shall mean, without duplication,
with respect to any Person, (a) any Guaranty Obligation of that
Person; and (b) any direct or indirect obligation or liability,
contingent or otherwise, of that Person (i) in respect of any Surety
Instrument issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings or payments
or (ii) in respect to any Rate Contract that is not entered into in
connection with a bona fide hedging operation that provides
offsetting benefits to such Person. The amount of any Contingent
Obligation shall (subject, in the case of Guaranty Obligations, to
the last sentence of the definition of "Guaranty Obligation") be
deemed equal to the maximum reasonably anticipated liability in
respect thereof (subject to reduction as the underlying liability so
guaranteed is reduced from time to time), and shall, with respect to
item (b)(ii) of this definition be marked to market on a current
basis.
"Contractual Obligation" of any Person shall mean, any
indenture, note, lease, loan agreement, security, deed of trust,
mortgage, security agreement, guaranty, instrument, contract,
agreement or other form of contractual obligation or undertaking to
which such Person is a party or by which such Person or any of its
property is bound.
"Co-Syndication Agents" shall have the meaning given to
that term in clause (5) of the introductory paragraph hereof.
"Credit Documents" shall mean and include this Agreement,
the LC Applications, the Notes, the Security Documents, Lender Rate
Contracts and the Agent's Fee Letter, the FIUI Credit Documents, all
other documents, instruments and agreements delivered to Agent or any
Lender pursuant to Section III; and all other documents, instruments
and agreements delivered by any Borrower, any Guarantor or any of
FIL's Subsidiaries to Agent, the Issuing Bank or any Lender in
connection with this Agreement on or after the date of this
Agreement.
"Credit Event" shall mean (a) the making of any initial
funding of any Loan (and not the selection of a new Interest Period
for such Loan or the conversion of such Loan pursuant to Subparagraph
2.03(b)(iii)) provided that such continuation or conversion does not
increase the principal amount thereof) or (b) the issuance of any
Letter of Credit or any amendment of any Letter of Credit which
increases its stated amount or extends it expiration date.
"Currencies" shall mean United States Dollars, Swiss
francs, United Kingdom pounds and Euros.
"Debt/EBITDA Ratio" shall mean, with respect to FIL for any
period, the ratio, determined on a consolidated basis in accordance
with GAAP, of:
(a) The total Indebtedness of FIL and its
Subsidiaries on the last day of such period; provided,
however, that in computing the foregoing sum, there shall
be excluded therefrom any Indebtedness to the extent the
proceeds of which are (i) legally segregated from FIL's or
such Subsidiaries' other assets and (ii) either (A) only
held in the form of cash or cash equivalents or (B) used
by FIL or its Subsidiaries for any such purpose as may be
approved in advance from time to time by the Required
Lenders;
to
(b) The EBITDA of FIL and its Subsidiaries for
such period.
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"Default" shall mean an Event of Default or any event or
circumstance not yet constituting an Event of Default which, with the
giving of any notice or the lapse of any period of time or both,
would become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to
fund its portion of any Borrowing which it is required to fund under
this Agreement and has continued in such failure for three (3)
Business Days after written notice from Agent.
"Designated Borrower" shall have the meaning given to that
term in clause (1) of the introductory paragraph hereof.
"Dollar Equivalent" shall mean, as to any amount
denominated in an Alternative Currency as of any date of
determination, the amount of Dollars that would be required to
purchase the amount of such Alternative Currency based upon the spot
selling rate at which ABN AMRO's London office offers to sell such
Alternative Currency for Dollars in the London foreign exchange
market at approximately 11:00 a.m. London time on such date for
delivery two (2) Business Days later.
"Dollars" and "$" shall mean, unless otherwise indicated,
the lawful currency of the United States of America and, in relation
to any payment under this Agreement, same day or immediately
available funds.
"Drawing Payment" shall have the meaning given to that term
in Subparagraph 2.01(b)(iii).
"EBITDA" shall mean, with respect to FIL for any four
quarter period, the sum, determined on a consolidated basis in
accordance with GAAP, of the following:
(a) The net income or net loss of FIL and its
Subsidiaries for such period before provision for income
taxes;
plus
(b) The sum (to the extent deducted in
calculating net income or loss in clause (a) above) of (i)
all Interest Expenses of FIL and its Subsidiaries accruing
during such period, (ii) all depreciation and amortization
expenses of FIL and its Subsidiaries accruing during such
period and (iii) other noncash charges for such period,
including accrued charges until such time that such accrued
charges become cash payments;
plus
(c) An amount, not to exceed $50,000,000 in any
consecutive four fiscal quarters, equal to the sum (to the
extent deducted in calculating net income or loss in clause
(a) above) of all cash charges associated with
merger-related expenses and restructuring costs paid in
such period (in each case calculated in accordance with
GAAP) incurred by FIL and/or its Subsidiaries in connection
with any merger, acquisition, or restructuring entered into
by FIL and/or any of its Subsidiaries which are otherwise
permitted under this Agreement and the FIL Credit
Agreement.
For purposes of Subparagraph 5.03(a) (and not for purposes of
Subparagraph 5.03(b)), if FIL or any of its Subsidiaries acquires
(whether by purchase, merger, consolidation or otherwise) all or
substantially all of the assets of or property of any other Person,
during any period in respect of which EBITDA is to be determined,
such EBITDA shall be determined on a pro forma basis in accordance
with GAAP and, if applicable, the rules of the Securities and
Exchange Commission, as if such acquisition occurred as of the first
day of the relevant period.
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"Eligible Assignee" shall mean (a) a commercial bank, (b) a
subsidiary, affiliate or branch of a Lender, or (c) any other
financial institution that makes or purchases commercial loans in the
ordinary course of business, in each case having a combined capital
and surplus of at least $100,000,000.
"Eligible Material Subsidiary" shall mean, at any time, any
Material Subsidiary that is not then an Ineligible Material
Subsidiary.
"Employee Benefit Plan" shall mean any employee benefit
plan within the meaning of section 3(3) of ERISA maintained or
contributed to by any Borrower, any Material Subsidiary or any ERISA
Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean all the Governmental Rules
relating to the protection of human health and the environment,
including all Governmental Rules pertaining to the reporting,
licensing, permitting, transportation, storage, disposal,
investigation or remediation of emissions, discharges, releases, or
threatened releases of Hazardous Materials into the air, surface
water, groundwater, or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transportation or handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests
or other equity interests in and of such Person (regardless of how
designated and whether or not voting or non-voting) and (b) all
warrants, options and other rights to acquire any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may from time to time be amended or
supplemented, including any rules or regulations issued in connection
therewith.
"ERISA Affiliate" shall mean any Person which is treated as
a single employer with any Borrower or any Material Subsidiary under
Section 414 of the IRC.
"Euro" shall mean the single currency of participating
member states of the European Union.
"Event of Default" shall have the meaning given to that
term in Paragraph 6.01.
"Existing Secured Indebtedness" shall mean the secured
Indebtedness existing on the Closing Date specified on Schedule
5.02(a).
"Excluded Taxes" shall mean all Taxes measured by or
imposed upon the overall net income of any Lender or one of its
Applicable Lending Offices and all franchise taxes imposed upon any
Lender, in each case imposed (i) by the jurisdiction under the laws
of which such Lender or one of its Applicable Lending Offices is
organized or is located, or in which its principal executive office
is located, or any nation within which such jurisdiction is located
or any political subdivision thereof or (ii) by reason of any
connection between the jurisdiction imposing such tax and such Lender
or one of its Applicable Lending Offices other than a connection
arising solely from such Lender having executed, delivered or
performed its obligations under, or received payment under or
enforced, this Agreement or any of the other Credit Documents.
"Existing FIL Credit Agreement" shall mean the Credit
Agreement dated as of April 3, 2000, as amended, among FIL, ABN AMRO
and other lending institutions, and ABN AMRO, as agent for itself and
such other lending institutions.
"Existing FIL Credit Documents" shall mean the "Credit
Documents" as defined in the Existing FIL Credit Agreement.
"Facility" shall mean Facility A or Facility B.
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"Facility A" shall mean the revolving credit facility and
letter of credit subfacility provided to Borrowers pursuant to
Subparagraph 2.01(a).
"Facility A Borrowing" shall mean a borrowing consisting of
all the Facility A Loans of the same currency and Type (and same
Interest Period if LIBOR Loans) made by Facility A Lenders on the
same date pursuant to the same Notice of Borrowing. Any reference to
a Facility A Borrowing shall include all of the Facility A Loans
constituting such Facility A Borrowing.
"Facility A Commitment" shall mean, with respect to each
Lender, the Dollar amount set forth under the caption "Facility A
Commitment" opposite such Lender's name on Part A of Schedule I, or,
if changed, such Dollar amount as may be set forth for such Lender in
the Register.
"Facility A Commitment Fees" shall have the meaning given
to that term in Subparagraph 2.06(b)(i).
"Facility A Lender" shall mean, at any time, any Lender
then having a Facility A Commitment, a Facility A Loan outstanding or
a participation in a Letter of Credit issued and outstanding.
"Facility A Loan" shall have the meaning given to that term
in Subparagraph 2.01(a)(i).
"Facility A Maturity Date" shall mean March 8, 2005.
"Facility A Proportionate Share" shall mean:
(a) With respect to any Facility A Lender at any
time prior to the termination of the Facility A
Commitments, the ratio (expressed as a percentage rounded
to the eighth digit to the right of the decimal point) of
(i) such Lender's Facility A Commitment at such time to
(ii) the Total Facility A Commitment at such time; and
(b) With respect to any Facility A Lender at any
time after the termination of the Facility A Commitments,
the ratio (expressed as a percentage rounded to the eighth
digit to the right of the decimal point) of (i) the sum at
such time of (A) the aggregate principal amount of all
Facility A Loans owed to such Lender and outstanding at
such time, (B) such Lender's pro rata share of the
aggregate amount available for drawing under all Letters of
Credit outstanding at such time and (c) such Lender's pro
rata share of the aggregate amount of all Reimbursement
Obligations outstanding at such time to (ii) the sum at
such time of (A) the aggregate principal amount of all
Facility A Loans outstanding at such time, (B) the
aggregate amount available for drawing under all Letters of
Credit outstanding at such time and (C) the aggregate
amount of all Reimbursement Obligations outstanding at such
time.
"Facility B" shall mean the revolving credit facility
provided to Borrowers pursuant to Subparagraph 2.01(c).
"Facility B Borrowing" shall mean a borrowing consisting of
all the Facility B Loans of the same currency and Type (and same
Interest Period if LIBOR Loans) made by Facility B Lenders on the
same date pursuant to the same Notice of Borrowing. Any reference to
a Facility B Borrowing shall include all of the Facility B Loans
constituting such Facility B Borrowing.
"Facility B Commitment" shall mean, with respect to each
Lender, the Dollar amount set forth under the caption "Facility B
Commitment" opposite such Lender's name on Part A of Schedule I, or,
if changed, such Dollar amount as may be set forth for such Lender in
the Register.
"Facility B Commitment Fees" shall have the meaning given
to that term in Subparagraph 2.06(b)(ii).
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"Facility B Lender" shall mean, at any time, any Lender
then having a Facility B Commitment or a Facility B Loan outstanding.
"Facility B Loan" shall have the meaning given to that term
in Subparagraph 2.01(c)(i).
"Facility B Maturity Date" shall mean March 7, 2003.
"Facility B Proportionate Share" shall mean:
(a) With respect to any Facility B Lender at any
time prior to the termination of the Facility B
Commitments, the ratio (expressed as a percentage rounded
to the eighth digit to the right of the decimal point) of
(i) such Lender's Facility B Commitment at such time to
(ii) the Total Facility B Commitment at such time; and
(b) With respect to any Facility B Lender at any
time after the termination of the Facility B Commitments,
the ratio (expressed as a percentage rounded to the eighth
digit to the right of the decimal point) of (i) the
aggregate principal amount of such Lender's Facility B
Loans outstanding at such time to (ii) the sum of the
aggregate principal amount of all Facility B Loans
outstanding at such time.
"Federal Funds Rate" shall mean, for any day, the rate per
annum set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor publication, "H.15
(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day, such rate is not yet published
in H.15 (519), the rate for such day shall be the rate set forth in
the daily statistical release designated as the Composite 3:30 p.m.
Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor publication, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective
Rate". If on any relevant day, such rate is not yet published in
either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for
such day shall be the arithmetic means, as determined by Agent, of
the rates quoted to Agent for such day by three (3) Federal funds
brokers of recognized standing selected by Agent for overnight
federal funds transactions.
"Federal Reserve Board" shall mean the Board of Governors
of the Federal Reserve System.
"FIL" shall have the meaning given to that term in clause
(1) of the introductory paragraph hereof.
"Financial Statements" shall mean, with respect to any
accounting period for any Person, statements of income, shareholders'
equity and cash flows of such Person for such period, and a balance
sheet of such Person as of the end of such period, setting forth in
each case in comparative form figures for the corresponding period in
the preceding fiscal year if such period is less than a full fiscal
year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail
and in accordance with GAAP.
"FIUI" shall mean Flextronics International USA, Inc., a
California corporation.
"FIUI Credit Agreement" shall mean the Credit Agreement
dated the date hereof among FIUI, each of the financial institutions
from time to time party thereto and ABN AMRO, as agent, as amended or
restated from time to time.
"FIUI Credit Documents" shall mean the FIUI Credit
Agreement and all agreements, documents and instruments delivered to
the agent or any Lender under the FIUI Credit Agreement.
"Fixed Charge Coverage Ratio" shall mean, with respect to
FIL for any period, the ratio, determined on a consolidated basis in
accordance with GAAP, of:
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(a) The EBITDA of FIL and its Subsidiaries for
such period;
to
(b) The remainder of:
(i) The sum of (A) all Interest
Expenses of FIL and its Subsidiaries for such
period, plus (B) fifty percent (50%) of the
aggregate principal amount of all Loans
outstanding under Facility B and all loans
outstanding under "Facility B" of the FIUI Credit
Agreement on the last day of such period, plus
(C) the current portion of the long-term
Indebtedness of FIL and its Subsidiaries on the
last day of such period (other than the Loans
outstanding under Facility B and loans
outstanding under Facility B of the FIUI Credit
Agreement),
minus
(ii) All interest income earned by FIL
and its Subsidiaries during such period.
"Foreign Plan" shall mean any employee benefit plan
maintained by any Borrower or any of its Subsidiaries which is
mandated or governed by any Governmental Rule of any Governmental
Authority other than the United States.
"Foreign Subsidiary" shall mean any Subsidiary of FIL that
is organized under the laws of a jurisdiction other than the United
States or a state thereof.
"GAAP" shall mean generally accepted accounting principles
and practices as in effect in the United States of America from time
to time, consistently applied, subject to Paragraph 1.02 hereof.
"Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision
thereof, any department, agency, authority or bureau of any of the
foregoing, or any other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including, without limitation, the Federal Deposit
Insurance Corporation, the Federal Reserve Board, the Comptroller of
the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean, with respect to any
Person, all levies, assessments, fees, claims or other charges
imposed by any Governmental Authority upon such Person or any of its
property or otherwise payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"Guarantor" shall mean each of the Eligible Material
Subsidiaries and other Subsidiaries that has executed the Guaranty or
otherwise become a party thereto.
"Guaranty" shall have the meaning given to that term in
Subparagraph 2.15(a).
"Guaranty Obligation" shall mean, with respect to any
Person, subject to the last sentence of this definition, any direct
or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation
(other than endorsements of instruments for collection or deposits in
the ordinary course of business) in each case to the extent
constituting Indebtedness (the "primary obligations") of another
Person (the "primary obligor"), including any obligation of that
Person, whether or not contingent, (a) to purchase, repurchase or
otherwise acquire such primary obligations or any property
constituting direct or indirect security therefor, or (b) to advance
or provide funds (i) for the payment or discharge of any such primary
obligation, or (ii) to maintain working capital or equity capital of
the
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primary obligor or otherwise to maintain the net worth or solvency or
any balance sheet item, level of income or financial condition of the
primary obligor, or (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof. The amount of any Guaranty Obligation shall be deemed equal
to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated
or if indeterminable, the maximum reasonably anticipated liability in
respect thereof (subject to reduction as the underlying liability so
guaranteed is reduced from time to time); provided, however, that
with respect to (1) any Guaranty Obligation by FIL or any of its
Subsidiaries in respect of a primary obligation of FIL or any of its
Subsidiaries and (2) any Guaranty Obligation of FIL or any of its
Subsidiaries in respect of the primary obligation of a lessor in
connection with a synthetic lease transaction entered into by FIL or
any of its Subsidiaries, such Guaranty Obligation shall, in each
case, be deemed to be equal to the maximum reasonably anticipated
liability in respect thereof which shall be deemed to be limited to
an amount that actually becomes past due from time to time with
respect to such primary obligation.
"Hazardous Materials" shall mean all pollutants,
contaminants and other materials, substances and wastes which are
hazardous, toxic, caustic, harmful or dangerous to human health or
the environment, including petroleum and petroleum and petroleum
products and byproducts, radioactive materials, asbestos and
polychlorinated biphenyls.
"Indebtedness" of any Person shall mean, without
duplication, the following (each, unless otherwise noted, determined
in accordance with GAAP):
(a) All obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments and
all other obligations of such Person for borrowed money
(including obligations to repurchase receivables and other
assets sold with recourse);
(b) All obligations of such Person for the
deferred purchase price of property or services (including
obligations under letters of credit and other credit
facilities which secure or finance such purchase price, and
the capitalized amount reported for income tax purposes
with respect to obligations under "synthetic" leases but
excluding accounts payable for property or services or the
deferred purchase price of property to the extent not past
due);
(c) All obligations of such Person under
conditional sale or other title retention agreements with
respect to property (other than inventory) acquired by such
Person (to the extent of the value of such property if the
rights and remedies of the seller or lender under such
agreement in the event of default are limited solely to
repossession or sale of such property);
(d) All obligations of such Person as lessee
under or with respect to Capital Leases;
(e) All Guaranty Obligations of such Person with
respect to the Indebtedness of any other Person, and all
other Contingent Obligations of such Person; and
(f) All obligations of other Persons of the types
described in clauses (a) - (e) above to the extent secured
by (or for which any holder of such obligations has an
existing right, contingent or otherwise, to be secured by)
any Lien in any property (including accounts and contract
rights) of such Person, even though such Person has not
assumed or become liable for the payment of such
obligations.
"Ineligible Material Subsidiary" shall mean, at any time,
any Material Subsidiary (a) that is then prohibited by any applicable
Governmental Rule from acting as a Guarantor under the Guaranty, (b)
that then would incur, or would cause FIL to incur, a significant
increase in its tax liabilities or similar liabilities or obligations
as a result of acting as a Guarantor under the Guaranty or (c) that
is a Foreign Subsidiary as
10
to which the representations and warranties set forth in Subparagraph
4.01(s) would not be true and correct were it to execute the
Guaranty.
"Interest Expenses" shall mean, with respect to any Person
for any period, the sum, determined on a consolidated basis in
accordance with GAAP, of (a) all interest expenses of such Person
during such period (including interest attributable to Capital
Leases) plus (b) all fees in respect of outstanding letters of credit
paid, accrued or scheduled for payment by such Person during such
period.
"Interest Period" shall mean, with respect to any LIBOR
Borrowing, the time period selected by the applicable Borrower
pursuant to Subparagraph 2.02(a) which commences on the date of such
Borrowing and ends on the last day of such time period, and
thereafter, each subsequent time period selected by the applicable
Borrower pursuant to Subparagraph 2.03(b)(ii) which commences on the
last day of the immediately preceding time period and ends on the
last day of that time period.
"Investment" of any Person shall mean any loan or advance
of funds by such Person to any other Person (other than advances to
employees of such Person for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of
business), any purchase or other acquisition of any Equity Securities
or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person
(including any Guaranty Obligations of such Person and any
indebtedness of such Person of the type described in clause (f) of
the definition of "Indebtedness" on behalf of any other Person);
provided, however, that Investments shall not include (a) accounts
receivable or other indebtedness owed by customers of such Person
which are current assets and arose from sales of inventory in the
ordinary course of such Person's business or (b) prepaid expenses of
such Person incurred and prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Issuing Bank" shall have the meaning given to that term in
clause (8) of the introductory paragraph hereof.
"LC Application" shall have the meaning given to that term
in Subparagraph 2.01(b)(ii).
"LC Issuance Fees" shall have the meaning given to that
term in Subparagraph 2.06(c)(ii).
"LC Usage Fee Rate" shall mean with respect to any Letter
of Credit as of any date of determination, the per annum rate for
Letters of Credit determined pursuant to the Pricing Grid as such
rate may change as provided in the Pricing Grid.
"LC Usage Fees" shall have the meaning given to that term
in Subparagraph 2.06(c)(i).
"Lenders" shall have the meaning given to that term in
clause (2) of the introductory paragraph hereof. Where the context so
permits, "Lenders" shall include the Issuing Bank.
"Lender Rate Contract" shall mean any Rate Contract entered
into by any Borrower or any of FIL's Subsidiaries with a Lender or
its Affiliates with respect to Obligations arising under this
Agreement.
"Lending Office" shall mean, with respect to any Lender and
the Borrowing, (a) initially, such Lender's office designated as such
in Part B of Schedule I (or, in the case of any Lender which becomes
a Lender by an assignment pursuant to Subparagraph 8.05(c), its
office designated as such in the applicable Assignment and
Assumption) and (b) subsequently, such other office or offices as
such Lender may designate to Agent as the office at which such
Lender's Loans will thereafter be maintained and for the account of
which all payments of principal of, and interest on, such Lender's
Loans will thereafter be made.
"Letter of Credit" shall have the meaning given to that
term in Subparagraph 2.01(b)(i).
11
"LIBO Rate" shall mean, with respect to any Interest Period
for any LIBOR Borrowing, a rate per annum equal to the quotient
(rounded upward if necessary to the nearest 1/100 of one percent) of
(a) the arithmetic mean of the rates per annum appearing on the
Applicable Rate Page for the currency of such Borrowing on the second
Business Day prior to the first day of such Interest Period at or about
11:00 A.M. (London time) (for delivery of such currency on the first
day of such Interest Period) for a term comparable to such Interest
Period, divided by (b) one minus any applicable Reserve Requirement in
effect from time to time. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used
in clause (a) shall be, at the Agent's discretion, (i) the rate per
annum at which deposits in the applicable currency are offered to Agent
in the London interbank market or (ii) the rate at which deposits in
the applicable currency are offered to Agent in, or by Agent to major
banks in, any offshore interbank market selected by Agent, in each case
on the second Business Day prior to the commencement of such Interest
Period at or about 10:00 A.M. (New York time) (for delivery on the
first day of such Interest Period) for a term comparable to such
Interest Period and in an amount approximately equal to the amount of
the Loan to be made or funded by Agent as part of such Borrowing. The
LIBO Rate shall be adjusted automatically as to all LIBOR Loans
outstanding as of the effective date of any change in the Reserve
Requirement.
"LIBOR Borrowing" shall mean any Borrowing consisting of LIBOR
Loans.
"LIBOR Loan" shall mean any Loan bearing interest based upon
the LIBO Rate.
"Lien" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, charge or other encumbrance in, of,
or on such property or the income therefrom, including, without
limitation, the interest of a vendor or lessor under a conditional sale
agreement, Capital Lease or other title retention agreement, or any
agreement to provide any of the foregoing.
"Loan" shall mean a Facility A Loan or a Facility B Loan.
"Loan Account" shall have the meaning given to that term in
Subparagraph 2.09(a).
"Managing Agents" shall have the meaning given to that term in
clause (7) of the introductory paragraph hereof.
"Margin Stock" shall have the meaning given to that term in
Regulation U issued by the Federal Reserve Board.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or financial condition of any
Borrower and FIL's Subsidiaries, taken as a whole; (b) the ability of
any Borrower to pay or perform its Obligations in accordance with the
terms of this Agreement and the other Credit Documents; (c) the ability
of the Guarantors (taken as a whole) to pay or perform the Obligations
in accordance with the terms of this Agreement and the other Credit
Documents; or (d) the rights and remedies of Agent or any Lender under
this Agreement, the other Credit Documents or any related document,
instrument or agreement.
"Material Subsidiary" shall mean, at any time during any
fiscal year of FIL, (i) any Subsidiary of FIL that (A) had revenues
during the immediately preceding fiscal year equal to or greater than
five percent (5%) of the consolidated total revenues of FIL and all of
its Subsidiaries during such preceding year or (B) held assets,
excluding investments in Subsidiaries, on the last day of the
immediately preceding fiscal year equal to or greater than ten percent
(10%) of the consolidated total assets of FIL and all of its
Subsidiaries on such date, in each case as set forth or reflected in
the audited Financial Statements provided pursuant to Subparagraph
5.01(a)(i) hereof; (ii) with respect to any Subsidiary of FIL added or
created during such year, (A) had revenues, determined on a pro forma
basis as of the most recent twelve months for which financial
statements are available, greater than five percent (5%) of the
consolidated total revenues of FIL and all of its Subsidiaries during
such preceding year or (B) held assets, excluding investments in
Subsidiaries, determined on a pro forma basis on the last day of the
immediately preceding month equal to
12
or greater than ten percent (10%) of the consolidated total assets of
FIL and all of its Subsidiaries (including the assets of such added or
created Subsidiary or Subsidiaries) on such date; and (iii) FLX Cyprus
Limited, a Cyprus corporation.
"maturity" shall mean, with respect to any Loan, Reimbursement
Obligation, interest, fee or other amount payable by any Borrower under
this Agreement or the other Credit Documents, the date such Loan,
Reimbursement Obligation, interest, fee or other amount becomes due,
whether upon the stated maturity or due date, upon acceleration or
otherwise.
"Moody's" shall mean Moody's Investors Service, Inc. and any
successor thereto that is a nationally recognized rating agency.
"Multiemployer Plan" shall mean any multiemployer plan within
the meaning of section 3(37) of ERISA maintained or contributed to by
any Borrower, any Material Subsidiary or any ERISA Affiliate.
"Net Proceeds" shall mean, with respect to any issuance and
sale of securities by any Person (a) the aggregate cash proceeds
received by such Person from such sale less (b) the sum of (i) the
actual amount of the reasonable fees and commissions payable to Persons
other than such Person making the sale or any Affiliate of such Person
and (ii) the reasonable legal expenses and other costs and expenses
directly related to such sale that are to be paid by such Person.
"Net Worth" shall mean, with respect to FIL at any time, the
remainder at such time, determined on a consolidated basis in
accordance with GAAP, of (a) the total assets of FIL and its
Subsidiaries, minus (b) the total liabilities of FIL and its
Subsidiaries.
"Non-Excluded Taxes" shall mean all Taxes other than Excluded
Taxes.
"Note" shall have the meaning given to that term in
Subparagraph 2.09(b).
"Notice of Borrowing" shall have the meaning given to that
term in Paragraph 2.02.
"Notice of Interest Period Selection" shall have the meaning
given to that term in Subparagraph 2.03(b)(ii).
"Obligations" shall mean and include all loans, advances,
debts, liabilities, and obligations, howsoever arising, owed by any
Borrower individually or all Borrowers jointly and severally to Agent
or any Lender of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of this Agreement
or any of the other Credit Documents, including all interest, fees,
charges, expenses, attorneys' fees and accountants' fees chargeable to
Borrowers or payable by Borrowers thereunder.
"Overnight Rate" shall mean, for any amount payable in an
Alternative Currency on any day, the per annum interest rate at which
overnight deposits in such Alternative Currency in an amount
approximately equal to such amount would be offered for such day by ABN
AMRO's London Office to major banks in the London interbank market.
"Participant" shall have the meaning given to that term in
Subparagraph 8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Permitted Indebtedness" shall have the meaning given to that
term in Subparagraph 5.02(a).
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b).
13
"Person" shall mean and include an individual, a partnership,
a corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint
venture, a trust or other entity or a Governmental Authority.
"Pricing Grid" shall mean Schedule II.
"Pricing Level" shall mean either Level 1, Level 2, Level 3,
Level 4 or Level 5, which shall be determined for each Facility based
upon FIL's corresponding Senior Debt Rating as set forth in the Pricing
Grid as such Pricing Levels may change as provided in the Pricing Grid.
"Prime Rate" shall mean the per annum rate publicly announced
by ABN AMRO from time to time at its Chicago office as its "prime
rate." The Prime Rate is determined by ABN AMRO from time to time as a
means of pricing credit extensions to some customers and is neither
directly tied to any external rate of interest or index nor necessarily
the lowest rate of interest charged by ABN AMRO at any given time for
any particular class of customers or credit extensions. Any change in
the Base Rate resulting from a change in the Prime Rate shall become
effective on the Business Day on which each change in the Prime Rate
occurs.
"Proportionate Share" shall mean:
(a) With respect to any Lender and Facility A at any
time, such Lender's Facility A Proportionate Share at such
time;
(b) With respect to any Lender and Facility B at
any time, such Lender's Facility B Proportionate Share at such
time;
(c) With respect to any Lender without reference
to either Facility:
(i) At any time prior to the
termination of the Facility B Commitments, the ratio
(expressed as a percentage rounded to the eighth
digit to the right of the decimal point) of (i) the
sum of such Lender's Facility A Commitment and
Facility B Commitment at such time to (ii) the sum of
the Total Facility A Commitment and Total Facility B
Commitment at such time;
(ii) With respect to any Lender at any
time after the termination of the Facility B
Commitments and prior to the termination of the
Facility A Commitments, the ratio (expressed as a
percentage rounded to the eighth digit to the right
of the decimal point) of (i) the sum of such Lender's
Facility A Commitment and the principal amount of
such Lender's Loans (if any) outstanding under
Facility B at such time to (ii) the sum of the Total
Facility A Commitment and the aggregate principal
amount of all Loans (if any) outstanding under
Facility B at such time; and
(iii) With respect to any Lender at any
time after the termination of both the Facility A
Commitments and the Facility B Commitments, the ratio
(expressed as a percentage rounded to the eighth
digit to the right of the decimal point) of (i) the
aggregate principal amount of all of such Lender's
Loans outstanding at such time, plus such Lender's
pro rata share of the aggregate amount available for
drawing under all Letters of Credit outstanding at
such time, plus such Lender's pro rata share of the
aggregate amount of all Reimbursement Obligations
outstanding at such time to (ii) the aggregate
principal amount of all Lenders' Loans outstanding at
such time, plus the aggregate amount available for
drawing under all Letters of Credit outstanding at
such time, plus the aggregate amount of all
Reimbursement Obligations outstanding at such time.
14
"Rate Contracts" shall mean swap agreements (as that term is
defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as
amended) and any other agreements or arrangements designed to provide
protection against fluctuations in interest rates, currency exchange
rates or commodity prices.
"Register" shall have the meaning given to that term in
Subparagraph 8.05(d).
"Reimbursement Obligation" shall have the meaning given to
that term in Subparagraph 2.01(b)(iii).
"Reimbursement Payment" shall have the meaning given to that
term in Subparagraph 2.01(b)(iii).
"Reportable Event" shall have the meaning given to that term
in ERISA and applicable regulations thereunder.
"Required Facility A Lenders" shall mean, at any time,
Facility A Lenders whose Proportionate Shares of Facility A equal or
exceed fifty-one percent (51%) at such time, except at any time any
Facility A Lender is a Defaulting Lender. (For the purposes of
determining "Facility A Required Lenders" at any time any Facility A
Lender is a Defaulting Lender, the "Proportionate Shares" of
non-defaulting Facility A Lenders shall be determined excluding from
the Total Facility A Commitment the aggregate amounts of the Defaulting
Lenders' Facility A Commitments; and "Facility A Required Lenders"
shall mean non-defaulting Lenders whose Proportionate Shares as so
determined then equal or exceed fifty-one percent (51%).)
"Required Facility B Lenders" shall mean, at any time,
Facility B Lenders whose Proportionate Shares of Facility B equal or
exceed fifty-one percent (51%) at such time, except at any time any
Facility B Lender is a Defaulting Lender. (For the purposes of
determining "Facility B Required Lenders" at any time any Facility B
Lender is a Defaulting Lender, the "Proportionate Shares" of
non-defaulting Facility B Lenders shall be determined excluding from
the Total Facility B Commitment the aggregate amounts of the Defaulting
Lenders' Facility B Commitments; and "Facility B Required Lenders"
shall mean non-defaulting Lenders whose Proportionate Shares as so
determined then equal or exceed fifty-one percent (51%).)
"Required Lenders" shall mean, at any time, Lenders whose
Proportionate Shares equal or exceed fifty-one percent (51%) at such
time, except at any time any Lender is a Defaulting Lender. (For the
purposes of determining "Required Lenders" at any time any Lender is a
Defaulting Lender, the "Proportionate Shares" of non-defaulting Lenders
shall be determined excluding from the Total Facility A Commitment and
the Total Facility B Commitment the aggregate amounts of the Defaulting
Lenders' Facility A Commitments and B Commitments; and "Required
Lenders" shall mean non-defaulting Lenders whose Proportionate Shares
as so determined then equal or exceed fifty-one percent (51%).)
"Requirement of Law" applicable to any Person shall mean (a)
the Articles or Certificate of Incorporation and By-laws, Partnership
Agreement or other organizational or governing documents of such
Person, (b) any Governmental Rule applicable to such Person, (c) any
license, permit, approval or other authorization granted by any
Governmental Authority to or for the benefit of such Person or (d) any
judgment, decision or determination of any Governmental Authority or
arbitrator, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean (a) with respect to any day
in an Interest Period for any portion of a Borrowing in Dollars, the
aggregate of the reserve requirement rates, if any (expressed as a
decimal), in effect on such day for funding in Dollars maintained by
commercial banks in the United States, (b) with respect to any day in
an Interest Period for any portion of a Borrowing in Swiss francs, the
aggregate of the reserve requirement rates, if any (expressed as a
decimal), in effect on such day for funding in Swiss francs maintained
by commercial banks which lend in Swiss francs, or (c) with respect to
any day in an Interest Period for any portion of a Borrowing in United
Kingdom pounds, the aggregate of the reserve requirement rates, if any
(expressed as a decimal), in effect on such day for funding in United
Kingdom pounds
15
maintained by commercial banks which lend in United Kingdom pounds, or
(d) with respect to any day in an Interest Period for any portion of a
Borrowing in Euros, the aggregate of the reserve requirement rates, if
any (expressed as a decimal), in effect on such day for funding in
Euros maintained by commercial banks which lend in Euros. As used
herein, the term "reserve requirement" shall include, without
limitation, any basic, supplemental or emergency reserve requirements
imposed on any Lender by any Governmental Authority.
"Responsible Officer" shall mean, with respect to any
Borrower, such Borrower's Chief Executive Officer, Chief Financial
Officer, Treasurer, Vice President - Finance, Controller, Assistant
Treasurer, Director of Treasury Operations, Corporate Secretary or any
other officer of any Borrower designated from time to time by its Board
of Directors to execute and deliver any document, instrument or
agreement hereunder.
"S&P" shall mean Standard & Poor's Rating Services, and any
successor thereto that is a nationally recognized rating agency.
"Security Documents" shall mean and include (i) the Guaranty
and (ii) all other instruments, agreements, certificates, opinions and
documents delivered to Agent, the Issuing Bank or any Lender to secure
the Obligations.
"Senior Debt Rating" shall mean with respect to FIL as of any
date of determination, the ratings applicable on such date to FIL's
senior unsecured long-term debt.
"Senior Managing Agent" shall have the meaning given to that
term in clause (6) of the introductory paragraph hereof.
"Significant Subsidiary" shall mean, at any time during any
fiscal year of FIL, (i) any Subsidiary of FIL that (A) had revenues
during the immediately preceding fiscal year equal to or greater than
$10,000,000, or (B) had net worth on the last day of the immediately
preceding fiscal year equal to or greater than $10,000,000.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including contingent,
subordinated, matured and unliquidated liabilities) of such Person, (b)
such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (c) such Person is not engaged in or
about to engage in business or transactions for which such Person's
property would constitute an unreasonably small capital.
"Subordinated Indebtedness" shall mean Indebtedness of any
Borrower or Subsidiary that is subordinated to the Obligations.
"Subordinated Indenture" shall mean, collectively, (a) the
Indenture dated as of October 15, 1997 by and between FIL and State
Street Bank and Trust Company of California, N.A., as trustee, (b) the
Indenture dated as of June 29, 2000 by and between FIL and Chase
Manhattan Bank and Trust Company, National Association with respect to
up to $1,000,000,000, (c) the Indenture dated as of June 29, 2000 by
and between FIL and Chase Manhattan Bank and Trust Company, National
Association with respect to up to E 300,000,000, and (d) any other
document, instrument or agreement evidencing Subordinated Indebtedness.
"Subsidiary" of any Person shall mean (a) any corporation of
which more than 50% of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint
venture,
16
limited liability company or other association of which more than 50%
of the equity interest having the power to vote, direct or control the
management of such partnership, joint venture or other association is
at the time owned and controlled by such Person, by such Person and one
or more of the other Subsidiaries or by one or more of such Person's
other Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis. (All references in
this Agreement and the other Credit Documents to Subsidiaries of FIL
shall, unless otherwise indicated, include any of the other Borrowers
and their Subsidiaries.)
"Surety Instruments" shall mean all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, shipside bonds, surety bonds and similar instruments.
"Taxes" shall mean all present and future income, stamp,
documentary and other taxes and duties, and all other levies, imposts,
charges, fees, deductions and withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority.
"Total Assets" means, with respect to any date of
determination, the total assets of FIL shown on FIL's consolidated
balance sheet in accordance with GAAP on the last day of the fiscal
quarter prior to the date of determination.
"Total Facility A Commitment" shall mean, at any time, the sum
at such time of Facility A Lenders' Facility A Commitments. The Total
Facility A Commitment on the date of this Agreement is $266,666,666.67.
"Total Facility B Commitment" shall mean, at any time, the sum
at such time of Facility B Lenders' Facility B Commitments. The Total
Facility B Commitment on the date of this Agreement is $133,333,333.33.
"Type" shall mean, with respect to any Loan or any Borrowing
at any time, the classification of such Loan or Borrowing by the type
of interest rate it then bears, whether an interest rate based upon the
Base Rate or LIBO Rate.
"Unused" shall mean:
(a) With respect to the Facility A Commitment at
any time, the remainder of (i) the Total Facility A Commitment
at such time minus (ii) the Dollar amount or Dollar Equivalent
(as applicable) of (A) the aggregate principal amount of all
Facility A Loans outstanding at such time, (B) the aggregate
amount available for drawing under all Letters of Credit
outstanding at such time, and (C) the aggregate amount of all
Reimbursement Obligations outstanding at such time;
(b) With respect to the Facility B Commitment at
any time, the remainder of (i) the Total Facility B Commitment
at such time minus (ii) the Dollar amount or Dollar Equivalent
(as applicable) of the aggregate principal amount of all
Facility B Loans outstanding at such time; and
(c) With respect to the Total Combined
Commitment at any time, the remainder of (i) the Total
Combined Commitment at such time minus (ii) the sum of (A) the
Unused Facility A Commitment as determined pursuant to clause
(a) above, (B) the Unused Facility B Commitment as determined
pursuant to clause (b) above, (C) the "Unused Facility A
Commitment" under the FIUI Credit Agreement as determined
pursuant to clause (a) of the definition of "Unused" set forth
in Paragraph 1.01 thereof and (D) the "Unused Facility B
Commitment" under the FIUI Credit Agreement as determined
pursuant to clause (b) of the definition of "Unused" set forth
in Paragraph 1.01 thereof.
1.02. GAAP. Unless otherwise indicated in this Agreement or any
other Credit Document, all accounting terms used in this Agreement or any other
Credit Document shall be construed, and all accounting and financial
computations hereunder or thereunder shall be computed, in accordance with GAAP.
If GAAP changes
17
during the term of this Agreement such that any covenants contained herein would
then be calculated in a different manner or with different components,
Borrowers, Lenders and Agent agree to negotiate in good faith to amend this
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
criteria as were effective prior to such change in GAAP; provided, however,
that, until Borrowers, Lenders and Agent so amend this Agreement, all such
covenants shall be calculated in accordance with GAAP as in effect immediately
prior to such change. Any calculations performed under this Credit Agreement
that are based on the total assets or total revenues of FIL and its Subsidiaries
shall be determined based on the March 31 fiscal year end consolidated pro forma
financial statements of FIL; except with respect to the definition of "Material
Subsidiary" herein, which shall be calculated based on a nine (9) month pro
forma basis.
1.03. Headings. Headings in this Agreement and each of the other
Credit Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Agreement or any other
Credit Document in the singular form shall have comparable meanings when used in
the plural form and vice versa.
1.05. Governing Law. Unless otherwise expressly provided in any
Credit Document, this Agreement and each of the other Credit Documents shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
1.06. English Language. This Agreement and the other Credit
Documents are executed and shall be construed in the English language. All
instruments, agreements, certificates, opinions and other documents to be
furnished or communications to be given or made under this Agreement or any
other Credit Document shall be in the English language.
1.07. Construction. This Agreement is the result of negotiations
among, and has been reviewed by, Borrowers, each Lender, Agent and their
respective counsel. Accordingly, this Agreement shall be deemed to be the
product of all parties hereto, and no ambiguity shall be construed in favor of
or against any Borrower, any Lender or Agent.
1.08. Entire Agreement. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrowers, Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof
(excluding the Agent's Fee Letter but including the commitment letter dated as
of January 11, 2002 between FIL and ABN AMRO).
1.09. Calculation of Interest and Fees. All calculations of interest
and fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Prime Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. References.
(a) References in this Agreement to "Recitals,"
"Sections," "Paragraphs," "Subparagraphs," "Exhibits" and "Schedules"
are to recitals, sections, paragraphs, subparagraphs, exhibits and
schedules therein and thereto unless otherwise indicated.
(b) References in this Agreement or any other Credit
Document to any document, instrument or agreement (i) shall include all
exhibits, schedules and other attachments thereto, (ii) shall include
all documents, instruments or agreements issued or executed in
replacement thereof if such replacement is permitted hereby, and (iii)
shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to
time and in effect at any given time if such amendment, modification or
supplement is permitted hereby.
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(c) References in this Agreement or any other Credit
Document to any Governmental Rule (i) shall include any successor
Governmental Rule, (ii) shall include all rules and regulations
promulgated under such Governmental Rule (or any successor Governmental
Rule), and (iii) shall mean such Governmental Rule (or successor
Governmental Rule) and such rules and regulations, as amended,
modified, codified or reenacted from time to time and in effect at any
given time.
(d) References in this Agreement or any other Credit
Document to any Person in a particular capacity (i) shall include any
permitted successors to and assigns of such Person in that capacity and
(ii) shall exclude such Person individually or in any other capacity.
1.11. Other Interpretive Provisions. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this Agreement or any
other Credit Document shall refer to this Agreement or such other Credit
Document, as the case may be, as a whole and not to any particular provision of
this Agreement or such other Credit Document, as the case may be. The words
"include" and "including" and words of similar import when used in this
Agreement or any other Credit Document shall not be construed to be limiting or
exclusive. In the event of any inconsistency between the terms of this Agreement
and the terms of any other Credit Document, the terms of this Agreement shall
govern.
SECTION II. CREDIT FACILITIES.
2.01. Loans and Letters of Credit.
(a) Facility A Loans.
(i) Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations
set forth in Paragraph 2.05), each Facility A Lender severally
agrees to advance to Borrowers from time to time during the
period beginning on the Closing Date and ending on the
Facility A Maturity Date its pro rata share of such revolving
loans in Currencies as Borrowers may request under Facility A
(individually, a "Facility A Loan"); provided, however, that
no Lender shall have any obligation to make a requested
Facility A Loan if, after giving effect to such Loan, the
Dollar Equivalent of such Lender's Facility A Loans then
outstanding plus such Lender's Proportionate Share of the
aggregate amount available for drawing under all Letters of
Credit outstanding at such time plus such Lender's
Proportionate Share of the aggregate amount of all
Reimbursement Obligations outstanding at such time would
exceed such Lender's Facility A Commitment at such time. All
Facility A Loans shall be made on a pro rata basis by Facility
A Lenders in accordance with their respective Facility A
Proportionate Shares, with each Facility A Borrowing to be
comprised of a Facility A Loan made by each Facility A Lender
equal to such Facility A Lender's Proportionate Share of such
Facility A Borrowing. Except as otherwise provided herein,
Borrowers may borrow, repay and reborrow Facility A Loans
until the Facility A Maturity Date.
(ii) Scheduled Payments. Borrowers shall repay
the principal amount of the Facility A Loans in full on the
Facility A Maturity Date. Borrowers shall pay accrued interest
on the unpaid principal amount of each Facility A Loan in
arrears (A) in the case of a Base Rate Loan, on the last day
of the month of each March, June, September and December, (B)
in the case of a LIBOR Loan, on the last day of each Interest
Period therefor (and, if any such Interest Period is equal to
or longer than three (3) months, every three (3) months); and
(C) in the case of all Facility A Loans, upon prepayment (to
the extent thereof) and at maturity.
(b) Letter of Credit Subfacility.
(i) Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations
set forth in Paragraph 2.05), Issuing Bank agrees to issue on
behalf of the Borrowers from time to time during the period
beginning on the Closing Date and ending on the
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date thirty (30) days prior to the Facility A Maturity Date
such standby letters of credit under Facility A as any
Borrower may request under this Subparagraph 2.01(b)
(individually, a "Letter of Credit"); provided, however, as
follows:
(A) The aggregate amount available for
drawing under all Letters of Credit at any time
outstanding shall not exceed the Dollar Equivalent of
$50,000,000;
(B) Each Letter of Credit shall be an
irrevocable standby letter of credit in Dollars or an
Alternative Currency;
(C) Each Letter of Credit shall expire
on or prior to the date one year after the date of
its issuance (but in no event later than the Facility
A Maturity Date); and
(D) Each Letter of Credit shall be in a
form reasonably acceptable to Issuing Bank.
Except as otherwise provided herein, Borrowers may request
Letters of Credit, cause or allow Letters of Credit to expire
and request additional Letters of Credit until the date thirty
(30) days prior to the Facility A Maturity Date.
(ii) LC Application. Borrowers shall request each
Letter of Credit by delivering to Agent and Issuing Bank an
irrevocable written application in a form reasonably
acceptable to Issuing Bank, appropriately completed (an "LC
Application"), which specifies, among other things:
(A) The available amount of the requested
Letter of Credit (which amount available (1) shall be
equal to the maximum amount which may over time be
drawn under the Letter of Credit and (2) shall not be
less than $1,000,000 (or the Dollar Equivalent
thereof)), and the currency of such requested Letter
of Credit;
(B) The name and address of the
beneficiary of the requested Letter of Credit;
(C) The expiration date of the
requested Letter of Credit;
(D) The documentary conditions for
drawing under the requested Letter of Credit;
(E) The date of issuance for the
requested Letter of Credit, which shall be a Business
Day; and
(F) The applicable Borrower for such
Letter of Credit.
The applicable Borrower shall give each LC Application to
Issuing Bank at least two (2) Business Days before the
proposed date of issuance of the requested Letter of Credit.
Each LC Application shall be delivered by first-class mail or
facsimile to Agent and Issuing Bank at their respective
offices or facsimile numbers and during the hours specified in
Paragraph 8.01; provided, however, that the applicable
Borrower shall promptly deliver to Issuing Bank the original
of any LC Application initially delivered by facsimile. Agent
shall promptly notify each Facility A Lender of the contents
of each LC Application. In the event of any conflict between
the terms of this Agreement and the terms of any LC
Application or any agreement (other than any Letter of Credit)
related thereto (including, without limitation, terms with
respect to fees and covenants), the terms of this Agreement
shall control.
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(iii) Disbursement and Reimbursement.
(A) Disbursement. Issuing Bank shall
notify the requesting Borrower promptly upon receipt
by Issuing Bank of the presentment of any demand for
payment under any Letter of Credit, together with
notice of the amount of such payment and the date
such payment is to be made. Subject to the terms and
provisions of such Letter of Credit and applicable
law, Issuing Bank shall make such payment (a "Drawing
Payment") to the appropriate beneficiary. Upon
payment by Issuing Bank of each Drawing Payment, the
remaining available amount under such Letter of
Credit (if any) shall be reduced by the amount of
such payment.
(B) Time of Reimbursement. On the day
each Drawing Payment is to be made by Issuing Bank,
Borrowers shall make or cause to be made to Issuing
Bank a payment in the amount of such Drawing Payment
(a "Reimbursement Payment"); provided, however, that
if the requesting Borrower does not receive notice
from Issuing Bank by 10:00 a.m. (California time)
that a Reimbursement Payment is due, such
Reimbursement Payment (together with interest thereon
accruing at the Federal Funds Rate for each day from
and including the date such Drawing Payment is made
but excluding the date such Reimbursement Payment is
made) shall instead be due on the next succeeding
Business Day after the requesting Borrower receives
such notice; provided, further, that Borrowers shall
make such Reimbursement Payment to, or cause such
Reimbursement Payment to be made to, Agent for the
benefit of the Facility A Lenders if, prior to the
time such Reimbursement Payment is made, Issuing Bank
has notified the applicable Borrower that it has
requested the Facility Lenders pursuant to
Subparagraph 2.01(b)(iv) to pay to Issuing Bank their
respective Proportionate Shares of the Drawing
Payment made by Issuing Bank. If any such
Reimbursement Payment is made to Agent, Agent shall
promptly pay to each Facility A Lender which has paid
its Proportionate Share of the Drawing Payment, such
Facility A Lender's Proportionate Share of the
Reimbursement Payment and shall promptly pay to
Issuing Bank the balance of such Reimbursement
Payment.
(C) Reimbursement Obligation Absolute.
The obligation of Borrowers to reimburse Issuing Bank
or the Facility A Lenders, as the case may be, for
Drawing Payments (such obligation, together with the
obligation to pay interest thereon, to be referred to
herein collectively as a "Reimbursement Obligation")
shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the
terms of this Agreement under and without regard to
any circumstances, including, without limitation (1)
the passage of the Facility A Maturity Date, (2) any
lack of validity or enforceability of any of the
Credit Documents, (3) the existence of any claim,
setoff, defense or other right which Borrowers may
have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Persons
for whom any such beneficiary or transferee may be
acting), Issuing Bank, Agent, any other Facility A
Lender or any other Person, whether in connection
with this Agreement, the transactions contemplated
herein or in the other Credit Documents, or in any
unrelated transaction, (4) any breach of contract or
dispute between Borrowers, any beneficiary or any
transferee of any Letter of Credit (or any Persons
for whom any such beneficiary or transferee may be
acting), Issuing Bank, any Agent, any Facility A
Lender or any other Person, (5) any demand, statement
or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein
being untrue or inaccurate in any respect, (6)
payment by Issuing Bank under any Letter of Credit
against presentation of a demand for payment which
does not comply with the terms of such Letter of
Credit, (7) any non-application or misapplication by
any beneficiary or any transferee of any Letter of
Credit (or any Persons for whom any such beneficiary
or transferee may be acting) of the proceeds of any
drawing under such Letter of Credit or (8) any delay,
extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by
Issuing Bank, Agent or any Facility A Lender, with
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or without notice to or approval by Borrowers, with
respect to Borrowers' indebtedness under this
Agreement; provided, however, that this Subparagraph
2.01(b)(iii)(C) shall not abrogate any right which
Borrowers may have to seek to enjoin any drawing
under any Letter of Credit or to recover damages from
Issuing Bank pursuant to Subparagraph 2.01(c)(v).
(iv) Facility A Lender Participations; Facility A
Loan Funding.
(A) Participation Agreement. Each
Facility A Lender severally, unconditionally and
irrevocably agrees with Issuing Bank to participate
in the extension of credit arising from the issuance
of each Letter of Credit in an amount equal to such
Lender's Proportionate Share of the stated amount of
such Letter of Credit from time to time, and the
issuance of each Letter of Credit shall be deemed a
confirmation by Issuing Bank of such participation in
such amount.
(B) Participation Funding. Issuing Bank
may request the Facility A Lenders to fund their
participations in Letters of Credit by paying to
Issuing Bank all or any portion of any Drawing
Payment made or to be made by Issuing Bank under any
Letter of Credit. Issuing Bank shall make such a
request by delivering to Agent (with a copy to
Borrowers), at any time after the drawing for which
such payment is requested has been made upon Issuing
Bank, a written request for such payment which
specifies the amount of such Drawing Payment and the
date on which such Drawing Payment is to be made or
was made; provided, however, that Issuing Bank shall
not request the Facility A Lenders to make any
payment under this Subparagraph 2.01(b)(iv) in
connection with any portion of a Drawing Payment for
which Issuing Bank has been reimbursed from a
Reimbursement Payment by Borrowers unless such
Reimbursement Payment has been thereafter recovered
by Borrowers or any other Person. Agent shall
promptly notify each Facility A Lender of the
contents of each such request and of such Facility A
Lender's Proportionate Share of the applicable
portion of such Drawing Payment. Promptly following
receipt of such notice from Agent, each Facility A
Lender shall pay to Agent, for the benefit of Issuing
Bank, such Facility A Lender's Proportionate Share of
the applicable portion of such Drawing Payment.
(C) Funding Through Facility A Loans.
If, at any time prior to the Facility A Maturity
Date, any Reimbursement Obligations are outstanding,
Agent may or, upon the written request of Issuing
Bank (if one or more Borrower is not then the subject
of a bankruptcy proceeding), shall (subject to the
terms and conditions of this Subparagraph
2.01(b)(iv)), initiate a Facility A Borrowing in an
amount not exceeding the aggregate amount of such
outstanding Reimbursement Obligations and use the
proceeds of such Facility A Borrowing to repay all or
a portion of such Reimbursement Obligations. Agent
shall initiate such a Facility A Borrowing by
delivering to each Facility A Lender (with a copy to
the applicable Borrower) a written notice which
specifies the aggregate amount of outstanding
Reimbursement Obligations, the amount of the Facility
A Borrowing (which initially shall consist of Base
Rate Loans), the date of such Facility A Borrowing
and the amount of the Facility A Loan to be made by
such Facility A Lender as part of such Facility A
Borrowing. Each Facility A Lender shall make
available to Agent funds in the amount of its
Facility A Loan as provided in Subparagraph 2.10(a).
After receipt of such funds, Agent shall promptly
disburse such funds to Issuing Bank and the Facility
A Lenders, as appropriate, in payment of the
outstanding Reimbursement Obligations.
(D) Obligations Absolute. Each Facility
A Lender's obligations to fund its participations
under this Subparagraph 2.01(b)(iv) shall be
absolute, unconditional and irrevocable and shall not
be affected by (1) the passage of the Facility A
Maturity Date, (2) the occurrence or existence of any
Default, (3) any failure to satisfy any condition set
forth in Section III, (4) any event or condition
which might have a Material Adverse
22
Effect, (5) the failure of any other Facility A
Lender to make any payment under this Subparagraph
2.01(b)(iv), (6) any right of offset, abatement,
withholding or reduction which such Lender may have
against Issuing Bank, Agent, any Facility A Lender or
any Borrower, (7) any event, circumstance or
condition set forth in Subparagraph 2.01(b)(iii) or
Subparagraph 2.01(b)(v), or (8) any other event,
circumstance or condition whatsoever, whether or not
similar to any of the foregoing; provided, however,
that nothing in this Subparagraph 2.01(b)(iv) shall
prejudice any right which any Facility A Lender may
have against Issuing Bank for any action by Issuing
Bank which constitutes gross negligence or willful
misconduct.
(v) Liability of Issuing Bank, Etc. Provided
that Issuing Bank has used reasonable care in examining all
documents presented to it in connection with a demand on any
Letter of Credit, Borrowers agree that none of Issuing Bank,
Agent or any Facility A Lender (nor any of their respective
directors, officers or employees) shall be liable or
responsible for (A) the use which may be made of any Letter of
Credit or for any acts or omissions of any beneficiary or
transferee thereof in connection therewith; (B) any reference
which may be made to this Agreement or to any Letter of Credit
in any agreements, instruments or other documents relating to
obligations secured by such Letter of Credit; (C) the
validity, sufficiency or genuineness of documents, or of any
endorsement(s) thereon, even if such documents should in fact
prove to be in any or all respects invalid, insufficient,
fraudulent or forged or any statement therein prove to be
untrue or inaccurate in any respect whatsoever; (D) payment by
Issuing Bank against presentation of documents which do not
comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate
reference to any Letter of Credit; or (E) any other
circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except only that Issuing Bank
shall be liable to Borrowers for acts or events described in
clauses (A) through (E) above, to the extent, but only to the
extent, of any damages suffered by Borrowers (excluding
consequential damages) which Borrowers prove were caused by
(1) Issuing Bank's willful misconduct or gross negligence in
determining whether a drawing made under any Letter of Credit
complies with the terms and conditions therefor stated in such
Letter of Credit or (2) Issuing Bank's willful misconduct or
gross negligence in failing to pay under any Letter of Credit
after a drawing by the beneficiary thereof strictly complying
with the terms and conditions of such Letter of Credit.
Without limiting the foregoing, Issuing Bank may accept a
drawing that appears on its face to be in order, without
responsibility for further investigation. The determination of
whether a drawing has been made under any Letter of Credit
prior to its expiration or whether a drawing made under any
Letter of Credit is in proper and sufficient form shall be
made by Issuing Bank in its sole discretion, which
determination shall be conclusive and binding upon Borrowers
to the extent permitted by law. Borrowers hereby waive any
right to object to any payment made under any Letter of Credit
with regard to a drawing that is in the form provided in such
Letter of Credit but which varies with respect to punctuation,
capitalization, spelling or similar matters of form.
(vi) Reports of Issuing Bank. Issuing Bank shall,
on a monthly basis if requested by Agent, provide to Agent
such information regarding the Letters of Credit as Agent may
reasonably request, including the Letters of Credit
outstanding, the stated amounts of outstanding Letters of
Credit, the expiration dates of outstanding Letters of Credit,
the names of the beneficiaries of outstanding Letters of
Credit, the amounts of unpaid Reimbursement Obligations and
the amounts and times of Drawing Payments and Reimbursement
Payments. Promptly upon receipt, Agent shall provide such
information to the Facility A Lenders.
(c) Facility B Loans.
(i) Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations
set forth in Paragraph 2.05), each Facility B Lender severally
agrees to advance to Borrowers from time to time during the
period beginning on the Closing Date and ending on the
Facility B Maturity Date its pro rata share of such revolving
loans in Currencies as Borrowers may request under Facility B
(individually, a "Facility B Loan"); provided, however,
23
that no Facility B Lender shall have any obligation to make a
requested Facility B Loan if, after giving effect to such
Loan, the Dollar Equivalent of such Lender's Facility B Loans
then outstanding would exceed such Lender's Facility B
Commitment at such time. All Facility B Loans shall be made on
a pro rata basis by Facility B Lenders in accordance with
their respective Facility B Proportionate Shares, with each
Facility B Borrowing to be comprised of a Facility B Loan made
by each Facility B Lender equal to such Facility B Lender's
Proportionate Share of such Facility B Borrowing. Except as
otherwise provided herein, Borrowers may borrow, repay and
reborrow Facility B Loans until the Facility B Maturity Date.
(ii) Scheduled Payments. Borrowers shall repay the
principal amount of the Facility B Loans in full on the
Facility B Maturity Date. Borrowers shall pay accrued interest
on the unpaid principal amount of each Facility B Loan in
arrears (A) in the case of a Base Rate Loan, on the last day
of the month of each March, June, September and December, (B)
in the case of a LIBOR Loan, on the last day of each Interest
Period therefor (and, if any such Interest Period is equal to
or longer than three (3) months, every three (3) months); and
(C) in the case of all Facility B Loans, upon prepayment (to
the extent thereof) and at maturity.
2.02. Notice of Borrowing. Borrowers shall request each Borrowing by
delivering to Agent an irrevocable written notice in the form of Exhibit A,
appropriately completed (a "Notice of Borrowing"), which specifies, among other
things:
(a) Whether such Borrowing is a Borrowing under Facility
A or Facility B;
(b) The currency and principal amount of such Borrowing,
which shall be in the minimum Dollar Equivalent of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(c) Whether such requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(d) If such Borrowing is to consist of LIBOR Loans, the
initial Interest Period selected by the applicable Borrower for such
Borrowing in accordance with Subparagraph 2.03(b)(i);
(e) The date of such Borrowing, which shall be a Business
Day; and
(f) The applicable Borrower for such Borrowing.
Borrowers shall give each Notice of Borrowing to Agent at least four (4)
Business Days before the date of the requested Borrowing in the case of a
Borrowing in an Alternative Currency and at three (3) Business Days before the
date of the requested Borrowing in the case of a Borrowing in Dollars consisting
of LIBOR Loans and at least one (1) Business Day before the date of the
requested Borrowing in the case of a Borrowing in Dollars consisting of Base
Rate Loans. Each Notice of Borrowing shall be signed by a Responsible Officer of
the applicable Borrower and delivered by first-class mail or facsimile to Agent
at the office or facsimile number and during the hours specified in Paragraph
8.01; provided, however, that Borrowers shall promptly deliver to Agent the
original of any Notice of Borrowing initially delivered by facsimile. Agent
shall promptly notify each Lender of the contents of each Notice of Borrowing.
2.03. Interest.
(a) Interest Rates. Borrowers shall pay interest on the
unpaid principal amount of each Loan from the date of such Loan until
the maturity thereof, at one of the following rates per annum:
(i) During such periods as any Loan is a Base
Rate Loan, at a rate per annum on such Loan equal to the Base
Rate plus the Applicable Margin therefor, such rate to change
from time to time as the Applicable Margin or Base Rate shall
change; and
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(ii) During such periods as any Loan is a LIBOR
Loan, at a rate per annum on such Loan equal at all times
during each Interest Period for such Loan to the LIBO Rate for
such Interest Period plus the Applicable Margin therefor, such
rate to change from time to time as the Applicable Margin
shall change.
All Loans in each Borrowing shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates. Only Borrowings
in Dollars may be Base Rate Loans. Each LIBOR Loan Borrowing shall be
in a minimum amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof.
(b) Terms.
(i) LIBOR Loan Interest Periods. The initial and
each subsequent Interest Period selected by a Borrower for any
Borrowing consisting of LIBOR Loans shall be one (1), two (2),
three (3) or six (6) months; provided, however, that (A) any
Interest Period which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding
Business Day unless such next Business Day falls in another
calendar month, in which case such Interest Period shall end
on the immediately preceding Business Day; (B) any Interest
Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a
calendar month; (C) no Interest Period for a Facility A
Borrowing shall end after the Facility A Maturity Date; and
(D) no Interest Period of a Facility B Borrowing shall end
after the Facility B Maturity Date.
(ii) Notice of Interest Period Selection. The
applicable Borrower shall notify Agent by an irrevocable
written notice in a form acceptable to Agent, appropriately
completed (a "Notice of Interest Period Selection"), at least
four (4) Business Days prior to the last day of each Interest
Period for any Borrowing in an Alternative Currency and at
least three (3) Business Days prior to the last day of each
Interest Period for a Borrowing in Dollars consisting of LIBOR
Loans of the Interest Period selected by such Borrower for the
next succeeding Interest Period for such Borrowing. Each
Notice of Interest Period Selection shall be given by
first-class mail or facsimile to the office or the facsimile
number and during the hours specified in Paragraph 8.01;
provided, however, that the applicable Borrower shall promptly
deliver to Agent the original of any Notice of Interest Period
Selection initially delivered by facsimile. If any Borrower
fails to notify Agent of the next Interest Period for a
Borrowing in accordance with this Subparagraph 2.03(b)(ii),
the next Interest Period for such Borrowing shall be one (1)
month and if no currency is specified then the Borrowing shall
be deemed to continue in the same currency as the existing
Loan. Agent shall promptly notify each Lender of the contents
of each Notice of Interest Period Selection.
(iii) Conversion of Borrowings. Each Borrowing
initially shall be of the type specified in the applicable
Notice of Borrowing and, in the case of a LIBOR Loan, shall
have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower(s) may elect to convert
such Borrowing to a different type or to continue such
Borrowing and, in the case of a LIBOR Loan, may elect Interest
Periods therefor, all as provided in this Paragraph 2.03. The
Borrowers may elect different options with respect to
different portions of the affected Borrowing, in which case
each such portion shall be allocated ratably among Lenders
holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate
Borrowing. Notwithstanding the foregoing, in no event shall
any Borrower be permitted to convert a Loan in one currency
into a Loan of a different currency (as opposed to repaying
such Loan and thereafter obtaining a new Loan).
2.04. Purpose. Borrowers shall use the proceeds of the initial Loan
to repay on the Closing Date all indebtedness outstanding under the Existing FIL
Credit Agreement, and thereafter Borrowers shall use the proceeds of the Loans
and for their respective working capital and general corporate needs (including
capital expenditures).
2.05. Amount Limitations, Commitment Reductions, Etc.
25
(a) Commitment Limitations. The Dollar amount or Dollar
Equivalent (as applicable) of the aggregate principal amount of all
Facility A Loans outstanding plus the aggregate Dollar amount or Dollar
Equivalent (as applicable) available for drawing under all Letters of
Credit outstanding at such time plus the aggregate Dollar amount or
Dollar Equivalent (as applicable) of all Reimbursement Obligations
outstanding at such time shall not exceed the Total Facility A
Commitment at such time. The Dollar amount or Dollar Equivalent (as
applicable) of the aggregate principal amount of all Facility B Loans
outstanding at any time shall not exceed the Total Facility B
Commitment at such time.
(b) Determination of Dollar Equivalent. For the purposes
of applying the amount limitations set forth in Subparagraph 2.05(a)
and calculating the Unused Total Facility A Commitment, Letter of
Credit subfacility and the Unused Total Facility B Commitment and for
all other purposes herein, the Dollar Equivalent of each Loan and
Letter of Credit in an Alternative Currency shall be determined by
Agent on the date of such Loan or Letter of Credit, on the last day of
each month and, if an Event of Default has occurred and is continuing,
at any other time determined by Agent, and the Dollar Equivalent of
such Loan and Letter of Credit at any time shall be the Dollar
Equivalent most recently so determined by Agent. Each such
determination by Agent shall, in the absence of manifest error, be
conclusive and binding on the parties hereto.
(c) Reduction or Cancellation of Commitments. Upon five
(5) Business Days prior written notice to Agent, Borrowers may
permanently reduce the Total Facility A Commitment and/or the Total
Facility B Commitment by the Dollar Equivalent amount of Five Million
Dollars ($5,000,000) or integral multiples in excess thereof, or cancel
the Total Facility A Commitment and/or the Total Facility B Commitment
in its entirety; provided, however, that:
(i) Borrowers may not reduce the Total Facility
A Commitment prior to the Facility A Maturity Date, if, after
giving effect to such reduction, the Dollar Equivalent of the
aggregate principal amount of all Facility A Loans then
outstanding plus the aggregate amount available for drawing
under all Letters of Credit outstanding at such time plus the
aggregate amount of all Reimbursement Obligations outstanding
at such time would exceed the Total Facility A Commitment;
(ii) Borrowers may not reduce the Total Facility
B Commitment prior to the Facility B Maturity Date if, after
giving effect to such reduction, the Dollar Equivalent of the
aggregate principal amount of all Facility B Loans then
outstanding would exceed the Total Facility B Commitment;
(iii) Borrowers may not cancel the Total Facility
A Commitment prior to the Facility A Maturity Date, if, after
giving effect to such cancellation, any Facility A Loan,
Reimbursement Obligation or Letter of Credit would then remain
outstanding; and
(iv) Borrowers may not cancel the Total Facility
B Commitment prior to the Facility B Maturity Date, if, after
giving effect to such cancellation, any Facility B Loan would
then remain outstanding.
Unless sooner terminated pursuant to this Agreement, the Facility A
Commitments shall terminate on the Facility A Maturity Date and the
Facility B Commitments shall terminate on the Facility B Maturity Date.
(d) Effect of Commitment Reductions. From the effective
date of any reduction of the Total Facility A Commitment or the Total
Facility B Commitment, the Commitment Fees payable pursuant to
Subparagraph 2.06(b) shall be computed on the basis of the Total
Facility A Commitment and/or the Total Facility B Commitment as so
reduced. Once reduced or cancelled, the Total Facility A Commitment or
the Total Facility B Commitment may not be increased or reinstated
without the prior written consent of all Facility A Lenders or Facility
B Lenders, as applicable. Any reduction of the Total Facility A
Commitment shall be applied ratably to reduce each Facility A Lender's
Facility A Commitment in accordance with Subparagraph 2.11(a)(i). Any
reduction of the Total Facility B Commitment shall be applied to reduce
each Facility B Lender's Facility B Commitment in accordance with
Subparagraph 2.11(a)(ii).
26
2.06. Fees.
(a) Agent's Fee. Borrowers shall pay to Agent, for its
own account, agent's fees and other compensation in the amounts and at
the times set forth in the Agent's Fee Letter (the "Agent's Fees").
(b) Commitment Fees. Borrowers shall pay to Agent:
(i) For the ratable benefit of Facility A
Lenders as provided in Subparagraph 2.11(a)(vi), commitment
fees in Dollars (the "Facility A Commitment Fees") equal to
the Commitment Fee Percentage of the daily average Unused
amount of the Total Facility A Commitment for the period
beginning on the date of this Agreement and ending on the
Facility A Maturity Date; and
(ii) For the ratable benefit of Facility B
Lenders as provided in Subparagraph 2.11(a)(vii), commitment
fees in Dollars (the "Facility B Commitment Fees") equal to
the Commitment Fee Percentage of the daily average Unused
amount of the Total Facility B Commitment for the period
beginning on the date of this Agreement and ending on the
Facility B Maturity Date.
Borrowers shall pay the Commitment Fees in arrears on the last day of
each March, June, September and December (commencing March 31, 2002)
and on the Facility A Maturity Date and the Facility B Maturity Date,
as the case may be (or if the Total Facility A Commitment or Total
Facility B Commitment is cancelled on a date prior to the Facility A
Maturity Date or the Facility B Maturity Date, as the case may be, on
such prior date).
(c) Letter of Credit Fees.
(i) Letter of Credit Usage Fees. Borrowers shall
pay to Agent, for the ratable benefit of the Facility A
Lenders as provided in Subparagraph 2.11(a)(vi), nonrefundable
letter of credit fees for the Letters of Credit (the "LC Usage
Fees") equal to the greater of (A) the applicable LC Usage Fee
Rate (as such rate changes from time to time) on the daily
average available amount of each Letter of Credit for the
period beginning on the date such Letter of Credit is issued
and ending on the date such Letter of Credit expires and (B)
five hundred dollars ($500). Borrowers shall pay the LC Usage
Fees quarterly in arrears on the last day in each March, June,
September and December (commencing March 31, 2002) and on the
date the last Letter of Credit expires (or if a demand for
payment is made on the last outstanding Letter of Credit on a
date prior to the date the last Letter of Credit expires, on
such prior date).
(ii) Letter of Credit Issuance Fees. Borrowers
shall pay to Agent, for the sole benefit of Issuing Bank,
nonrefundable issuance fees for the Letters of Credit (the "LC
Issuance Fees") equal to the greater of (A) 1/8th of one
percent (0.125%) per annum on the daily average undrawn amount
of each Letter of Credit for the period beginning on the date
such Letter of Credit is issued and ending on the date such
Letter of Credit expires and (B) one hundred fifty dollars
($150). Borrowers shall pay the LC Issuance Fees for each
Letter of Credit quarterly in arrears on the last day in each
March, June, September and December (commencing March 31,
2002) and on the date the last Letter of Credit expires (or if
a demand for payment is made on the last outstanding Letter of
Credit on a date prior to the date the last Letter of Credit
expires, on such prior date).
(iii) Other Letter of Credit Fees. In addition to
the LC Usage Fees and the LC Issuance Fees, Borrowers shall
pay to Agent, for the sole benefit of Issuing Bank, other
standard fees of Issuing Bank for drawings under, transfers of
and amendments to any Letter of Credit and other
administrative actions performed by Issuing Bank in connection
with any Letter of Credit, payable at such times and in such
amounts as are consistent with Issuing Bank's standard fee
policy at the time of such amendment or other action.
27
2.07. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any
Loan (whether such prepayment is an optional prepayment under
Subparagraph 2.07(b), a mandatory prepayment required by Subparagraph
2.07(c) or a mandatory prepayment required by any other provision of
this Agreement or the other Credit Documents, including a prepayment
upon acceleration), the applicable Borrower shall pay to the Lender
that made such Loan (i) all accrued interest to the date of such
prepayment on the amount prepaid and (ii) if such prepayment is the
prepayment of a LIBOR Loan on a day other than the last day of an
Interest Period for such LIBOR Loan, all amounts payable to such Lender
pursuant to Paragraph 2.14.
(b) Optional Prepayments. At its option, any Borrower may
prepay, in whole or in part, any Borrowing made to it, provided that:
(i) Such Borrower delivers to Agent prior
written notice of such prepayment, which notice shall be
delivered (A) not less than four (4) Business Days prior to
the prepayment of any Borrowing in Alternative Currency; and
(B) not less than three (3) Business Days prior to the
prepayment of any Borrowing consisting of LIBOR Loans; and (C)
not less than one (1) Business Day prior to any prepayment of
a Base Rate Borrowing; and
(ii) Any prepayment in part shall be in a minimum
aggregate principal amount equal to the Dollar Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(c) Mandatory Prepayments.
(i) If, at any time, the aggregate principal
amount of all Facility A Loans then outstanding plus the
aggregate amount available for drawing under all Letters of
Credit outstanding at such time plus the aggregate amount of
all Reimbursement Obligations outstanding at such time exceeds
any limitations set forth in Subparagraphs 2.05(a) or 2.05(c),
the applicable Borrower(s) shall immediately (A) prepay Loans
then outstanding and/or pay any Reimbursement Obligations then
outstanding to the extent necessary to eliminate such excess,
and (B) to the extent any excess still remains, provide to
Agent cash collateral in the amount of such excess. Agent
shall hold any such cash in a non-interest bearing account as
collateral for the Obligations. Borrowers hereby grant to
Agent for the benefit of the Lenders, a security interest in
such funds and in such account.
(ii) If, at any time, the aggregate principal amount
of all Facility B Loans then outstanding exceeds any
limitations set forth in Subparagraphs 2.05(a) or 2.05(c), the
applicable Borrower(s) shall immediately prepay such Facility
B Loans in such amounts as Agent shall determine are necessary
to eliminate such excess.
(d) Application of Prepayments. All prepayments of
Borrowings shall, to the extent possible, be applied to prepay the Base
Rate Borrowings or LIBOR Borrowings designated by any Borrower.
2.08. Other Payment Terms.
(a) Place and Manner.
(i) Borrowers shall make all payments due to
each Lender or Agent hereunder by payments to Agent at Agent's
New York office located at the address specified in Paragraph
8.01, with each such payment due to a Lender to be for the
account of such Lender and such Lender's Lending Office.
(ii) Borrowers shall make all payments hereunder
in the lawful Currency required by Subparagraph 2.08(c) and in
same day or immediately available funds and without deduction
or
28
offset not later than 11:00 a.m. (California time, in the case
of any payment to be made to Agent's New York office) and on
the date due. Agent shall promptly disburse to each Lender
each payment received by Agent for the account of such Lender.
(b) Date. Whenever any payment due hereunder shall fall
due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall be
included in the computation of interest or fees, as the case may be.
(c) Currency of Payment.
(i) Borrowers shall pay principal of, interest
on and all other amounts related to each Borrowing or
Reimbursement Payment in the Currency of such Borrowing or
Reimbursement Payment, as applicable. Borrowers shall pay
Commitment Fees and all other amounts payable under this
Agreement and the other Credit Documents in Dollars. If, for
any reason, any Borrower is prohibited by any Governmental
Rule from making any required payment hereunder in an
Alternative Currency, such Borrower shall make such payment in
Dollars in the Dollar Equivalent of such Alternative Currency
amount as determined by Agent.
(ii) If any amounts required to be paid by
Borrowers under this Agreement, any other Credit Document or
any order, judgment or award given or rendered in relation
hereto or thereto has to be converted from the currency (the
"first currency") in which the same is payable hereunder or
thereunder into another currency (the "second currency") for
the purpose of (A) making or filing a claim or proof against
Borrowers with any Governmental Authority, (B) obtaining an
order or judgment in any court or other tribunal or (C)
enforcing any order or judgment given or made in relation
hereto, Borrowers shall, to the fullest extent permitted by
law, indemnify and hold harmless each of the Persons to whom
such amounts are payable from and against any loss suffered as
a result of any discrepancy between (1) the rate of exchange
used for such purpose to convert the amounts in question from
the first currency into the second currency and (2) the rate
or rates of exchange at which such Person may, using
reasonable efforts in the ordinary course of business,
purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in
part, of any such order, judgment, claim or proof. The
foregoing indemnity shall constitute a separate obligation of
Borrowers distinct from their other obligations hereunder and
shall survive the giving or making of any judgment or order in
relation to all or any of such obligations. The obligations of
Borrowers under this Subparagraph 2.08(c) shall survive the
payment and performance of the Obligations and the termination
of this Agreement.
(d) Late Payments. If any amount required to be paid by
any Borrower under this Agreement or the other Credit Documents
(including, without limitation, principal or interest payable on any
Loan, any Reimbursement Payments or interest thereon, any fees or other
amounts) remains unpaid after such amount is due, such Borrower shall
pay interest on the aggregate, outstanding balance of such amount from
the date due until such amount is paid in full at a per annum rate
equal to (i) in the case any amount payable in Dollars, the Base Rate
plus two percent (2.00%), such rate to change from time to time as the
Base Rate shall change, and (ii) in the case of any amount payable in
an Alternative Currency, the Overnight Rate for such amount plus three
percent (3.00%), such rate to change from time to time as the Overnight
Rate shall change.
(e) Application of Payments. All payments hereunder shall
be applied first to unpaid fees, costs and expenses then due and
payable under this Agreement or the other Credit Documents, second to
accrued interest then due and payable under this Agreement or the other
Credit Documents and finally to reduce the principal amount of
outstanding Loans and unpaid Reimbursement Obligations.
(f) Failure to Pay Agent. Unless Agent shall have
received notice from a Borrower at least one (1) Business Day prior to
the date on which any payment is due to Lenders hereunder that such
Borrower will not make such payment in full, Agent shall be entitled to
assume that such Borrower has made or will make such payment in full to
Agent on such date and Agent may, in reliance upon such
29
assumption, cause to be paid to the applicable Lenders on such due date
an amount equal to the amount then due such Lenders. If and to the
extent such Borrower shall not have so made such payment in full to
Agent, each such Lender shall repay to Agent forthwith on demand such
amount distributed to such Lender together with interest thereon, for
each day from the date such amount is distributed to such Lender until
the date such Lender repays such amount to Agent, at a per annum rate
equal to (i) the Federal Funds Rate for the first three (3) days and
the Base Rate thereafter for any amount in Dollars or (ii) the
Overnight Rate for the first three (3) days and the Overnight Rate plus
one percent (1%) thereafter for any amount in an Alternative Currency.
A certificate of Agent submitted to any Lender with respect to any
amount owing by such Lender under this Subparagraph 2.08(f) shall
constitute prima facie evidence of such amount.
2.09. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of each Borrower to
repay the Loans made to it by each Lender and to pay interest thereon
at the rates provided herein shall be evidenced by an account or
accounts maintained by such Lender on its books (individually, a "Loan
Account"), except that any Lender may request that its Loans be
evidenced by a note or notes pursuant to Subparagraph 2.09(b). Each
Lender shall record in its Loan Accounts (i) the date, amount and
currency of each Loan made by such Lender, (ii) the interest rates
applicable to each such Loan thereof and the effective dates of all
changes thereto, (iii) the Interest Period for each LIBOR Loan, (iv)
the date, amount and currency of each principal and interest payment on
each Loan and (v) such other information as such Lender may determine
is necessary for the computation of principal and interest payable to
it by each Borrower hereunder; provided, however, that any failure by a
Lender to make, or any error by any Lender in making, any such notation
shall not affect Borrowers' Obligations hereunder. The Loan Accounts
shall constitute prima facie evidence of the matters noted therein.
(b) Notes. If any Lender so requests, such Lender's Loans
under each Facility shall be evidenced by promissory notes in the form
of Exhibit B (individually, a "Note"), which shall be (i) payable to
the order of such Lender, (ii) dated the Closing Date, and (iii)
otherwise appropriately completed.
2.10. Loan Funding.
(a) Lender Funding and Disbursements to Borrowers. Each
Lender shall, before 11:00 a.m. (New York time) on the date of each
Borrowing, make available to Agent at Agent's New York office specified
in Paragraph 8.01, in immediately available funds, such Lender's
applicable Proportionate Share of such Borrowing. After Agent's receipt
of such funds and upon satisfaction of the applicable conditions set
forth in Section III, Agent shall promptly disburse such funds to the
applicable Borrower no later than 1:00 p.m. (California time) in
immediately available funds. Agent shall disburse the proceeds of each
Borrowing as directed by the applicable Borrower in the applicable
Notice of Borrowing.
(b) Lender Failure to Fund. Unless Agent shall have
received notice from a Lender prior to the date of a Borrowing that
such Lender will not make available to Agent such Lender's applicable
Proportionate Share of such Borrowing, Agent shall be entitled to
assume that such Lender has made or will make such amount available to
Agent on the date of such Borrowing in accordance with Subparagraph
2.08(a), and Agent may on such date, in reliance upon such assumption,
disburse or otherwise credit to the applicable Borrower a corresponding
amount. If any Lender does not make the amount of its applicable
Proportionate Share of a Borrowing available to Agent on or prior to
the date of such Borrowing, such Lender shall pay to Agent, on demand,
interest which shall accrue on such amount from the date of such
Borrowing until such amount is paid to Agent at rates equal to (i) the
Federal Funds Rate for the first three (3) days and the Base Rate
thereafter for any amount in Dollars or (ii) the Overnight Rate plus
one percent (1%) for any amount in an Alternative Currency. A
certificate of Agent submitted to any Lender with respect to any amount
owing by such Lender under this Subparagraph 2.08(b) shall constitute
prima facie evidence of such amount. If the amount of any Lender's
applicable Proportionate Share of any Borrowing is not paid to Agent by
such Lender within three (3) Business Days after the date of such
Borrowing, the applicable Borrower shall repay such amount to Agent, on
demand, together with interest thereon, for each day from the date such
amount was disbursed to such Borrower until the date such amount is
repaid to Agent, at the interest rate applicable at the time to the
Loans comprising such Borrowing.
30
(c) Lenders' Obligations Several. The failure of any
Lender to make the Loan to be made by it as part of any Borrowing shall
not relieve any other Lender of its obligation hereunder to make its
Loan as part of such Borrowing, but no Lender shall be obligated in any
way to make any Loan which another Lender has failed or refused to make
or otherwise be in any way responsible for the failure or refusal of
any other Lender to make any Loan required to be made by such other
Lender.
2.11. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as
otherwise provided herein:
(i) Each Borrowing under Facility A, each
participation in each Letter of Credit and reduction of the
Total Facility A Commitment shall be made or shared among
Facility A Lenders pro rata according to their respective
Facility A Proportionate Shares;
(ii) Each Borrowing under Facility B and
reduction of the Total Facility B Commitments shall be made or
shared among Facility B Lenders pro rata according to their
respective Facility B Proportionate Shares;
(iii) Each payment of principal on Loans in any
Borrowing shall be shared among Lenders which made or funded
the Loans in such Borrowing pro rata according to the
respective unpaid principal amounts of such Loans then owed to
such Lenders;
(iv) Each payment of interest on Loans in any
Borrowing shall be shared among Lenders which made or funded
the Loans in such Borrowing pro rata according to (A) the
respective unpaid principal amounts of such Loans then owed to
such Lenders so made or funded by such Lenders and (B) the
dates on which such Lenders so made or funded such Loans;
(v) Each Reimbursement Payment shall be shared
among the Facility A Lenders (including Issuing Bank) which
made or funded the applicable Drawing Payment pro rata
according to the respective amounts of such Drawing Payment so
made or funded by such Lenders;
(vi) Each payment of Facility A Commitment Fees
and LC Usage Fees shall be shared among Facility A Lenders
(except for Defaulting Lenders but including, with respect to
LC Usage Fees, Issuing Bank in its capacity as a Lender) pro
rata according to (A) their respective Facility A
Proportionate Shares and (B) in the case of each Facility A
Lender which becomes a Facility A Lender hereunder after the
date hereof and before the Facility A Maturity Date, the date
upon which such Facility A Lender so became a Facility A
Lender;
(vii) Each payment of Facility B Commitment Fees
shall be shared among Facility B Lenders (except for
Defaulting Lenders) pro rata according to (A) their respective
Facility B Proportionate Shares and (B) in the case of each
Facility B Lender which becomes a Facility B Lender hereunder
after the date hereof and before the Facility B Maturity Date,
the date upon which such Facility B Lender so became a
Facility B Lender;
(viii) Each payment of interest (other than
interest on Loans) shall be shared among Lenders and Agent
owed the amount upon which such interest accrues pro rata
according to (A) the respective amounts so owed such Lenders
and Agent and (B) the dates on which such amounts became owing
to such Lenders and Agent; and
(ix) All other payments under this Agreement and
the other Credit Documents shall be for the benefit of the
Person or Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) on account of the Loan owed to it as
31
part of any Borrowing in excess of its ratable share of payments on
account of all Loans in such Borrowing obtained by all applicable Lenders
entitled to such payments (or, with respect to the Facility A Lenders,
Reimbursement Obligations) such Lender shall forthwith purchase from such
other Lenders such participations in their Loans (or, with respect to the
Facility A Lenders, Reimbursement Obligations) as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase
shall be rescinded and each other applicable Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such other Lender's ratable share
(according to the proportion of (i) the amount of such other Lender's
required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Subparagraph 2.11 (b) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right
of setoff) with respect to such participation as fully as if such Lender
were the direct creditor of such Borrower in the amount of such
participation.
2.12. Change of Circumstances.
(a) Inability to Obtain Funds, Determine Rates, Etc. If, on or
before the first day of any Interest Period for any LIBOR Borrowing in any
currency, Agent shall determine (which determination shall be conclusive
and binding upon Borrowers absent manifest error) that (i) funds in the
currency of such Borrowing are not readily available in the amounts
necessary for such Borrowing in the London interbank market, (ii) the LIBO
Rate for such Interest Period cannot be adequately and reasonably
determined due to other circumstances affecting the London interbank
market, or (iii) the rate of interest for such Borrowing does not
adequately and fairly reflect the cost to Lenders of making or maintaining
such Borrowing, Agent shall immediately give notice of such condition to
the applicable Borrowers and the applicable Lenders. After the giving of
any such notice and until Agent shall otherwise notify the applicable
Borrowers that the circumstances giving rise to such condition no longer
exist, such Borrowers' right to obtain, continue or convert to Borrowings
in the affected currency shall be suspended. Any LIBOR Borrowings in the
affected currency outstanding at the commencement of any such suspension
shall be repaid at the end of the then current Interest Period for such
Borrowings unless such suspension has then ended.
(b) Illegality. If, after the date of this Agreement, the adoption
of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in
accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority, or
compliance by any Lender with any request or directive (whether or not
having the force of law) of any Governmental Authority (a "Change of Law")
shall make it unlawful or impossible for any Lender to make or maintain
any LIBOR Loan in any currency, such Lender shall immediately notify Agent
and the applicable Borrower of such Change of Law. Upon receipt of such
notice, (i) such Borrower's right to obtain, continue or convert to LIBOR
Loans in the affected currency shall be suspended until such time as Agent
shall notify such Borrower and the applicable Lenders that the
circumstances giving rise to such suspension no longer exist, and (ii)
such Borrower shall, if so requested by such Lender, immediately repay
such LIBOR Loans in the affected currency if such Lender shall notify such
Borrower that such Lender may not lawfully continue to fund and maintain
such LIBOR Loans . Any prepayment of LIBOR Loans made pursuant to the
preceding sentence prior to the last day of an Interest Period for such
LIBOR Loans shall be deemed a prepayment thereof for purposes of Paragraph
2.14.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Lender to any tax, duty or other charge
with respect to any LIBOR Loan, or shall change the basis of
taxation of payments by any Borrower to any such Lender on such a
LIBOR Loan, or in respect to such a LIBOR Loan, under this Agreement
(except for changes in the rate of taxation on the overall net
income of such Lender imposed by its jurisdiction of incorporation,
the jurisdiction of its Applicable Lending Office, or a jurisdiction
in
32
which such Participant is doing business without regard to the
transactions contemplated by this Agreement); or
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Reserve Requirement or other reserve to the extent
included in the calculation of the LIBO Rate for any Loans), special
deposit or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances or loans by, or
any other acquisition of funds by any Lender for any LIBOR Loan; or
(iii) Shall impose on any Lender any other condition related
to any LIBOR Loan, any Letter of Credit or such Lender's
Commitments;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, continuing or maintaining any such LIBOR Loan, any
Letter of Credit or its Commitments or to reduce any amount receivable by
such Lender hereunder; then Borrowers shall from time to time, within ten
(10) Business Days after demand by such Lender, pay to such Lender
additional amounts sufficient to reimburse such Lender for such increased
costs or to compensate such Lender for such reduced amounts; provided,
however, that Borrowers shall have no obligation to make any payment to
any demanding party under this Subparagraph 2.10(c) on account of any such
increased costs or reduced amounts unless Borrowers receive notice of such
increased costs or reduced amounts from the demanding party within twelve
(12) months after such increased costs or reduced amounts have been
incurred or realized accompanied by a certificate executed by an officer
of the applicable Lender setting forth in reasonable detail the basis and
calculation of the amount of such increased costs or reduced amounts,
which certificate shall constitute prima facie evidence of such costs or
amounts. The obligations of Borrowers under this Subparagraph 2.12(c)
shall survive the payment and performance of the Obligations and the
termination of this Agreement.
(d) Capital Requirements. If, after the date of this Agreement, any
Lender determines that (i) any Change of Law affects the amount of capital
required or expected to be maintained by such Lender or any Person
controlling such Lender (a "Capital Adequacy Requirement") and (ii) the
amount of capital maintained by such Lender or such Person which is
attributable to or based upon the Loans, the Letters of Credit, the
Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender's or such
Person's policies with respect to capital adequacy), Borrowers shall pay
to such Lender or such Person, within ten (10) Business Days after demand
of such Lender, such amounts as such Lender or such Person shall determine
are necessary to compensate such Lender or such Person for the increased
costs to such Lender or such Person of such increased capital; provided,
however, that Borrowers shall have no obligation to make any payment to
any demanding party under this Subparagraph 2.12(d) on account of any such
increased costs unless Borrowers receive notice of such increased costs
from the demanding party within twelve (12) months after such increased
costs been incurred or realized accompanied by a certificate executed by
an officer of the applicable Lender setting forth in reasonable detail the
basis and calculation of the amount of such increased costs, which
certificate shall constitute prima facie evidence of such costs. The
obligations of Borrowers under this Subparagraph 2.12(d) shall survive the
payment and performance of the Obligations and the termination of this
Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any Change of
Law which will make it unlawful or impossible for such Lender to make or
maintain any LIBOR Loan or (ii) any Change of Law or other event or
condition which will obligate Borrowers to pay any amount pursuant to
Subparagraph 2.12(c) or Subparagraph 2.12(d) shall notify Borrowers and
Agent thereof as promptly as practical. If any Lender has given notice of
any such Change of Law or other event or condition and thereafter becomes
aware that such Change of Law or other event or condition has ceased to
exist, such Lender shall notify Borrowers and Agent thereof as promptly as
practical. Each Lender affected by any Change of Law which makes it
unlawful or impossible for such Lender to make or maintain any LIBOR Loan
or to which Borrowers are obligated to pay any amount pursuant to
Subparagraph 2.12(c) or Subparagraph 2.12(d) shall use reasonable
commercial efforts (including changing the jurisdiction of its Applicable
Lending Offices) to avoid the effect of such Change of Law or to avoid or
materially reduce any amounts which Borrowers are obligated to pay
pursuant to Subparagraph 2.12(c) or Subparagraph 2.12(d)
33
if, in the reasonable opinion of such Lender, such efforts would not be
disadvantageous to such Lender or contrary to such Lender's normal banking
practices.
2.13. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrowers under
this Agreement and the other Credit Documents shall be made free and clear
of, and, except as provided herein, without deduction or withholding for
or on account of, Non-Excluded Taxes. If any Non-Excluded Taxes are
required to be withheld from any amounts payable to Agent or any Lender
hereunder or under the other Credit Documents, the amounts so payable to
Agent or such Lender shall be increased to the extent necessary to yield
to Agent or such Lender (after payment of all Non-Excluded Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever any
Non-Excluded Taxes are payable by Borrowers, as promptly as possible
thereafter, Borrowers shall send to Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an
original official receipt received by Borrowers showing payment thereof.
If Borrowers fail to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, Borrowers shall indemnify
Agent and Lenders for any taxes (including interest or penalties) that may
become payable by Agent or any Lender as a result of any such failure. The
obligations of Borrowers under this Paragraph 2.13 (i) shall be subject to
the mitigation provisions contained in Paragraph 8.03 and (ii) shall
survive the payment and performance of the Obligations and the termination
of this Agreement.
(b) Withholding Exemption Certificates. Each Borrower may from time
to time, by written notice to the Agent and each Lender, designate an
office from which payments under this Agreement shall be made (an
"Applicable Payment Office"). FIL's Applicable Payment Office shall be
deemed to be in Hong Kong unless otherwise designated in writing by FIL.
If a Borrower other than FIL does not designate an Applicable Payment
Office, such Borrower's Applicable Payment Office shall be deemed to be
located in the jurisdiction in which such Borrower is organized. On or
prior to the Closing Date (or, with respect to any Lender which is not a
party to this Agreement on the Closing Date, on or prior to the date any
other Lender becomes a Lender hereunder), each Lender which is not
organized under the laws of the jurisdiction of a Borrower's Applicable
Payment Office shall notify the applicable Borrower whether such Lender is
entitled to receive payments on its Loans under this Agreement from such
Borrower's Applicable Payment Office for the account of such Lender's
Lending Office without deduction or withholding of any income taxes (or
with reduced deduction or withholding of any such taxes) imposed by the
jurisdiction of such Borrower's Applicable Payment Office and promptly
deliver to such Borrower such certificates and other evidence as such
Borrower shall reasonably request to establish such fact. If, after the
Closing Date, any Borrower designates an Applicable Payment Office that is
different than such Borrower's then existing Applicable Payment Office,
each Lender which is not organized under the laws of the jurisdiction of
such new Applicable Payment Office shall, as soon as practicable and in
any event within thirty (30) days of such designation (or if not
practicable within such period, then as soon as practicable thereafter but
in any event within a period of sixty (60) days of such designation),
notify the applicable Borrower whether such Lender is entitled to receive
payments on its Loans under this Agreement from such Borrower's new
Applicable Payment Office for the account of such Lender's Lending Office
without deduction or withholding of any income taxes (or with reduced
deduction or withholding of any such taxes) imposed by the jurisdiction of
such Borrower's new Applicable Payment Office and promptly deliver to such
Borrower such certificates and other evidence as such Borrower shall
reasonably request to establish such fact. Each such Lender further agrees
(A) promptly to notify the applicable Borrowers and Agent of any change of
circumstances (including any change in any treaty, law or regulation or
any change of such Lender's Applicable Lending Office) which would prevent
such Lender from receiving such payments hereunder without any deduction
or withholding of such taxes (or with reduced deduction or withholding of
any such taxes) and (B) if such Lender is still legally entitled to do so,
then on or before the date that any certificate or other form delivered by
such Lender under this Subparagraph 2.13(b) expires, to deliver to such
Borrowers and Agent a new certificate or form, certifying that such Lender
is entitled to receive such payments under this Agreement without
deduction or withholding of such taxes (or with reduced deduction or
withholding of any such taxes). If any Lender fails to provide to Agent
and the applicable Borrower pursuant to this Subparagraph 2.13(b) (or, in
the case of an Assignee Participant, Subparagraph 8.05(b))
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any notifications, certificates or other evidence required by such
provision, such Lender shall not be entitled to any indemnification under
Subparagraph 2.13(a) for any Non-Excluded Taxes imposed on such Lender
primarily as a result of such failure.
(c) Mitigation. If Agent or any Lender claims any additional amounts
to be payable to it pursuant to this Paragraph 2.13, such Person shall
file (or, with respect to any claim made by any Lender then a party to
this Agreement as a result of the designation of a new Applicable Payment
Office by any Borrower, such Person shall use reasonable commercial
efforts to file) any certificate or document requested in writing by the
applicable Borrower reflecting a reduced rate of withholding or to change
the jurisdiction of an Applicable Lending Office if the making of such a
filing or such change in the jurisdiction of an Applicable Lending Office
would avoid the need for or materially reduce the amount of any such
additional amounts which may thereafter accrue and if, in the reasonable
opinion of such Person, in the case of a change in the jurisdiction of an
Applicable Lending Office, such change would not be disadvantageous to
such Person or contrary to such Person's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.13 shall
require Agent or any Lender to make available any of its tax returns (or
any other information relating to its taxes which it deems to be
confidential).
(e) Lender Rate Contracts. Nothing contained in this Paragraph 2.13
shall override or supercede any term or provision of any Lender Rate
Contract regarding withholding taxes relating to Rate Contracts.
2.14. Funding Loss Indemnification. If any of the Borrowers shall (a)
repay, prepay or convert any LIBOR Loan on any day other than the last day of an
Interest Period therefor (whether a scheduled payment, an optional prepayment or
conversion, a mandatory prepayment or conversion, a payment upon acceleration or
otherwise), (b) fail to borrow any LIBOR Loan after delivering the Notice of
Borrowing therefor to Agent (whether as a result of the failure to satisfy any
applicable conditions or otherwise) or (c) fail to pay when due any principal or
interest on any LIBOR Loan, such Borrower shall, within ten (10) Business Days
after demand of such Lender, reimburse such Lender for and hold such Lender
harmless from all reasonable break funding costs and losses incurred by such
Lender as a result of such repayment, prepayment, conversion or failure;
provided, however, that Borrowers shall have no obligation to make any payment
to any demanding party under this Paragraph 2.14 on account of any such costs or
losses unless Borrowers receive notice of such costs or losses from the
demanding party within twelve (12) months after such costs or losses have been
incurred or realized. Borrowers understand that such costs and losses may
include, without limitation, losses incurred by a Lender as a result of funding
and other contracts entered into by such Lender to fund a LIBOR Loan. Each
Lender demanding payment under this Paragraph 2.14 shall deliver to Borrowers,
with a copy to Agent, a certificate of an officer of such demanding party
setting forth the amount of costs and losses for which demand is made, which
certificate shall set forth in reasonable detail the calculation of the amount
demanded. Such a certificate so delivered to Borrowers shall constitute prima
facie evidence of such costs and losses. The obligations of Borrowers under this
Paragraph 2.14 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
2.15. Security.
(a) Guaranties, Etc. The Obligations shall be secured by a Guaranty
in the form of Exhibit C (the "Guaranty"), duly executed all Eligible
Material Subsidiaries and other Subsidiaries of FIL that have executed the
Guaranty or otherwise elected to become a party thereto, with such changes
thereto as may be appropriate based on the law of the applicable
jurisdictions. In addition, as soon as practicable and in any event within
forty-five (45) days of the Closing Date, FIL shall deliver, or cause to
be delivered, to Agent, (A) a Subsidiary Joinder in the form of Attachment
1 to the Guaranty, appropriately completed and duly executed by each of
(i) FLX Cyprus Limited, (ii) Flextronics (Malaysia) Sdn Bhd and (iii) IEC
Holdings Ltd., (B) favorable written opinions, addressed to Agent for the
benefit of the Lenders, covering such legal matters as Agent and the
Lenders may reasonably request and otherwise in form and substance
satisfactory to Agent and the Lenders, from counsel for each of the
above-referenced Subsidiaries and (C) such other instruments, agreements,
certificates and documents as Agent may reasonably request to secure,
maintain, protect and evidence the obligations of such Subsidiary under
the Guaranty.
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(b) Changes in Material Subsidiaries.
(i) If, at any time after the date of this Agreement, any
Subsidiary of FIL that is not a Guarantor under the Guaranty shall
become an Eligible Material Subsidiary, FIL promptly shall deliver,
or cause to be delivered, to Agent, within sixty (60) days of
becoming aware of any such event, (A) a Subsidiary Joinder in the
form of Attachment 1 to the Guaranty, appropriately completed and
duly executed by such Subsidiary, and (B) such other instruments,
agreements, certificates, opinions and documents as Agent may
reasonably request to secure, maintain, protect and evidence the
obligations of such Subsidiary under the Guaranty.
(ii) If, at any time after the date of this Agreement, any
Subsidiary of FIL that is a Guarantor under the Guaranty shall cease
to be, or shall not have become, an Eligible Material Subsidiary,
Agent shall if requested by FIL release such Subsidiary from its
obligations under the Guaranty.
(c) Further Assurances. Borrowers shall deliver, and shall cause the
Guarantors to deliver, to Agent such other guaranties, guaranty
supplements and other instruments, agreements, certificates, opinions and
documents as Agent and any Lender may reasonably request to implement the
provisions of Subparagraph 2.15(a) and otherwise to establish, maintain,
protect and evidence the rights provided to Agent, for the benefit of
Agents and Lenders, pursuant to the Security Documents. Borrowers shall
fully cooperate with Agent and Lenders and perform all additional acts
reasonably requested by Agent or any Lender to effect the purposes of this
Paragraph 2.15. Without limiting the generality of the foregoing, FIL
covenants and agrees that it will ensure that the aggregate revenues of
the Subsidiaries that have executed and delivered the Guaranty pursuant to
this Agreement and the FIUI Credit Agreement for each year will equal or
exceed 53% of the consolidated total revenues of FIL and all of its
Subsidiaries as reflected for such year in FIL's annual audited Financial
Statements.
2.16. Replacement of Lenders. If any Lender shall (a) become a Defaulting
Lender more than one (1) time in a period of twelve (12) consecutive months, (b)
continue as a Defaulting Lender for more than three (3) Business Days at any
time, (c) suspend its obligation to make or maintain LIBOR Loans in any currency
pursuant to Subparagraph 2.12(b) for a reason which is not applicable to any
other Lender or (d) demand any payment under Subparagraph 2.12(a), 2.12(c) or
2.12(d) for a reason which is not applicable to any other Lender, then Agent may
(or upon the written request of Borrowers, shall) replace such Lender (the
"affected Lender"), or cause such affected Lender to be replaced, with another
lender (the "replacement Lender") satisfying the requirements of an Assignee
Lender under Subparagraph 8.05(c), by having the affected Lender sell and assign
all of its rights and obligations under this Agreement and the other Credit
Documents to the replacement Lender pursuant to Subparagraph 8.05(c); provided,
however, that if Borrowers seek to exercise such right, they must do so within
sixty (60) days after any Borrower first knows or should have known of the
occurrence of the event or events giving rise to such right, and neither Agent
nor any Lender shall have any obligation to identify or locate a replacement
Lender for Borrowers; and provided, further, that no Lender shall be replaced
under this Agreement unless such Lender is also replaced under the FIUI Credit
Agreement. Upon receipt by any affected Lender of a written notice from Agent
stating that Agent is exercising the replacement right set forth in this
Paragraph 2.16, such affected Lender shall sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents to the
replacement Lender pursuant to an Assignment and Assumption and Subparagraph
8.05(c) for a purchase price equal to the sum of the principal amount of the
affected Lender's Loans so sold and assigned, all accrued and unpaid interest
thereon and its ratable share of all fees to which it is entitled.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of the applicable
Lenders to make the Loans comprising the initial Borrowing and of Issuing Bank
to issue the initial Letter of Credit are subject to receipt by Agent, on or
prior to the Closing Date, of each item listed in Schedule 3.01, each in form
and substance satisfactory to Agent and each Lender, and with sufficient copies
for, Agent and each Lender.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing and the issuance of the initial
Letter of Credit) is subject to the further conditions that:
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(a) Borrowers shall have delivered to Agent (and Issuing Bank, in
the case of an LC Application) the Notice of Borrowing, Notice of Interest
Period Selection or LC Application, as the case may be, for such Credit
Event in accordance with this Agreement; and
(b) With respect to each Credit Event involving the making of a Loan
or the issuance of a Letter of Credit, on the date such Credit Event is to
occur and after giving effect to such Credit Event, the following shall be
true and correct:
(i) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 and in the other Credit
Documents are true and correct in all material respects as if made
on such date (except for representations and warranties expressly
made as of a specified date, which shall be true as of such date);
and
(ii) No Default has occurred and is continuing or will result
from such Credit Event.
The submission by any of the Borrowers to Agent of each Notice of Borrowing and
each LC Application shall be deemed to be a representation and warranty by such
Borrower that each of the statements set forth above in this Subparagraph
3.03(b) is true and correct as of the date of such notice.
3.03. Covenant to Deliver. Borrowers agree (not as a condition but as a
covenant) to deliver to Agent (as applicable) each item required to be delivered
to Agent as a condition to the occurrence of any Credit Event if such Credit
Event occurs. Borrowers expressly agree that the occurrence of any such Credit
Event prior to the receipt by Agent of any such item (and Issuing Bank, in the
case of an LC Application) shall not constitute a waiver by Agent or any Lender
of Borrowers' obligation to deliver such item.
3.04. Conditions Precedent to Adding Designated Borrower. The obligations
of the applicable Lenders to make Loans to any Designated Borrower or issue any
Letters of Credit on behalf of any Designated Borrower are subject to, on or
prior to the date of such designation, the following: (a) receipt by Agent of
each item listed in Schedule 3.01 with respect to such Designated Borrower, each
in form and substance satisfactory to Agent and each Lender, and with sufficient
copies for, Agent and each Lender, (b) execution of an amendment to this
Agreement by each of the parties hereto, whereby Designated Borrower shall agree
to be bound by all of the terms herein and shall designate its initial
Applicable Payment Office, (c) written approval by all Lenders and Guarantors
party to this Agreement and any of the Credit Documents as to the designation of
the Designated Borrower, and (d) execution by Designated Borrower and FIL of a
Subsidiary Joinder to the Guaranty, substantially in the form of Attachment 1 to
Exhibit C hereto.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrowers' Representations and Warranties. In order to induce Agent
and Lenders to enter into this Agreement, Borrowers hereby represent and warrant
to Agent and Lenders as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrowers and
their Subsidiaries (i) is a corporation duly organized, validly existing
and, in any jurisdiction in which such legal concept is applicable, in
good standing under the laws of its jurisdiction of organization; (ii) has
the power and authority to own, lease and operate its properties and carry
on its business as now conducted; and (iii) is duly qualified and licensed
to do business as a foreign corporation or branch in each jurisdiction
where the failure to be so qualified or licensed is reasonably and
substantially likely to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by each of
the Borrowers and each Guarantor of each Credit Document executed, or to
be executed, by such Person and the consummation of the transactions
contemplated thereby (i) are within the power of such Person and (ii) have
been duly authorized by all necessary actions on the part of such Person.
37
(c) Enforceability. Each Credit Document executed, or to be
executed, by each of the Borrowers and each Guarantor has been, or will
be, duly executed and delivered by such Person and constitutes, or will
constitute, a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity.
(d) Non-Contravention. The execution and delivery by each of
Borrowers and each Guarantor of the Credit Documents executed by such
Person and the performance and consummation of the transactions
contemplated thereby do not (i) violate any Requirement of Law applicable
to such Person; (ii) violate any provision of, or result in the breach or
the acceleration of, or entitle any other Person to accelerate (whether
after the giving of notice or lapse of time or both), any Contractual
Obligation of such Person; or (iii) result in the creation or imposition
of any Lien (or the obligation to create or impose any Lien) upon any
property, asset or revenue of such Person.
(e) Approvals. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority or
other Person (including the shareholders of any Person) is required in
connection with the execution and delivery of the Credit Documents
executed by each of the Borrowers and each Guarantor and the performance
or consummation of the transactions contemplated thereby, except such as
(i) have been made or obtained and are in full force and effect or (ii)
are being made or obtained in a timely manner and once made or obtained
will be in full force and effect.
(f) No Violation or Default. Neither any Borrower, nor any Guarantor
nor any of FIL's Subsidiaries is in violation of or in default with
respect to (i) any Requirement of Law applicable to such Person or (ii)
any Contractual Obligation of such Person, where, in each case, such
violation or default is reasonably or substantially likely to have a
Material Adverse Effect. Without limiting the generality of the foregoing,
neither any Borrower, nor any Guarantor nor any of FIL's Subsidiaries (A)
has violated any Environmental Laws, (B) to the knowledge of any Borrower,
any Guarantor or any of FIL's Subsidiaries, has any liability under any
Environmental Laws or (C) has received notice or other communication of an
investigation or, to the knowledge of any Borrower, any Guarantor or any
of FIL's Subsidiaries, is under investigation by any Governmental
Authority having authority to enforce Environmental Laws, where such
violation, liability or investigation is reasonably and substantially
likely to have a Material Adverse Effect. No Default has occurred and is
continuing.
(g) Litigation. No actions (including derivative actions), suits,
proceedings or investigations are pending or, to the knowledge of any
Borrower, threatened against any Borrower, any Guarantor or any of FIL's
Subsidiaries at law or in equity in any court or before any other
Governmental Authority which (i) based upon the written advice of such
Person's outside legal counsel, is reasonably likely to be determined
adversely and if so adversely determined is reasonably and substantially
likely (alone or in the aggregate) to have a Material Adverse Effect or
(ii) seeks to enjoin, either directly or indirectly, the execution,
delivery or performance by any Borrower or any Guarantor of the Credit
Documents or the transactions contemplated thereby.
(h) Title; Possession Under Leases. Each Borrower, each Guarantor
and each of FIL's Subsidiaries own and have good and indefeasible title,
or a valid leasehold interest in, all their respective material properties
and assets as reflected in the most recent Financial Statements delivered
to Agent (except those assets and properties disposed of in the ordinary
course of business or otherwise in compliance with this Agreement since
the date of such Financial Statements) and all respective material assets
and properties acquired by such Borrower, each Guarantor and FIL's
Subsidiaries since such date (except those disposed of in the ordinary
course of business or otherwise in compliance with this Agreement). Such
assets and properties are subject to no Lien, except for Permitted Liens.
(i) Financial Statements. The Financial Statements of FIL and its
Subsidiaries which have been delivered to Agent, (i) are in accordance
with the books and records of FIL and its Subsidiaries, which have been
maintained in accordance with good business practice; (ii) have been
prepared in conformity with GAAP; and (iii) fairly present in all material
respects the financial conditions and results of operations
38
of FIL and its Subsidiaries as of the date thereof and for the period
covered thereby. Neither FIL nor any of its Subsidiaries has any
Contingent Obligations, liability for taxes or other outstanding
obligations which are material in the aggregate, except as disclosed or
reflected in the Financial Statements of FIL dated December 31, 2001,
furnished by FIL to Agent prior to the date hereof, or in the Financial
Statements delivered to Agent pursuant to (i) or (ii) of Subparagraph
5.01(a), or except as permitted under Section V of this Agreement.
(j) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee Benefit
Plan that any Borrower or any ERISA Affiliate maintains or
contributes to, or has any obligation under (which occurred within
twelve months of the date of this representation), the aggregate
benefit liabilities of such plan within the meaning of Section 4001
of ERISA did not materially exceed the aggregate value of the assets
of such plan. Neither any Borrower nor any ERISA Affiliate has any
material liability with respect to any post-retirement benefit under
any Employee Benefit Plan which is a welfare plan (as defined in
section 3(1) of ERISA), other than liability for health plan
continuation coverage described in Part 6 of Title I(B) of ERISA,
which liability for health plan contribution coverage is not
reasonably and substantially likely to have a Material Adverse
Effect.
(ii) Each Employee Benefit Plan complies, in both form and
operation, in all material respects, with its terms, ERISA and the
IRC, and no condition exists or event has occurred with respect to
any such plan which would result in the incurrence by any Borrower
or any ERISA Affiliate of any material liability, fine or penalty.
Each Employee Benefit Plan, related trust agreement, arrangement and
commitment of any Borrower or any ERISA Affiliate is legally valid
and binding and is in all material respects in full force and
effect. No Employee Benefit Plan is being audited or investigated by
any government agency or is subject to any pending or threatened
claim or suit. Neither any Borrower nor any ERISA Affiliate nor, to
the knowledge or any Borrower, any fiduciary of any Employee Benefit
Plan has engaged in a prohibited transaction under section 406 of
ERISA or section 4975 of the IRC.
(iii) Neither any Borrower nor any ERISA Affiliate contributes
to or has any material contingent obligations to any Multiemployer
Plan. Neither any Borrower nor any ERISA Affiliate has incurred any
material liability (including secondary liability) to any
Multiemployer Plan as a result of a complete or partial withdrawal
from such Multiemployer Plan under Section 4201 of ERISA or as a
result of a sale of assets described in Section 4204 of ERISA.
Neither any Borrower nor any ERISA Affiliate has been notified that
any Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or that
any Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
(iv) All employer and employee contributions required by any
applicable Governmental Rule in connection with all Foreign Plans
have been made, or, if applicable, accrued, in all material
respects, in accordance with the country-specific accounting
practices. The fair market value of the assets of each funded
Foreign Plan, the liability of each insurer for any Foreign Plan
funded through insurance or the book reserve established for any
Foreign Plan, together with any accrued contributions, is
sufficient, except to the extent that is not reasonably and
substantially likely to have a Material Adverse Effect, to procure
or provide for the accrued benefit obligations, as of the date
hereof, with respect to all current and former participants in such
Foreign Plan according to the actuarial assumptions and valuations
most recently used to determine employer contributions to such
Foreign Plan, which actuarial assumptions are commercially
reasonable. Each Foreign Plan required to be registered has been
registered and has been maintained in good standing with applicable
Governmental Authorities except to the extent that is not reasonably
and substantially likely to have a Material Adverse Effect. Each
Foreign Plan reasonably complies in all material respects with all
applicable Governmental Rules.
39
(k) Other Regulations. No Borrower or any Material Subsidiary is
subject to regulation under the Investment Company Act of 1940, the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Interstate
Commerce Act, any state public utilities code or any other Governmental
Rule that limits its ability to incur Indebtedness.
(l) Patent and Other Rights. Each Borrower and each of FIL's
Subsidiaries own, license or otherwise have the full right to use, under
validly existing agreements, without known conflict with any rights of
others, all patents, licenses, trademarks, trade names, trade secrets,
service marks, copyrights and all rights with respect thereto, which are
required to conduct their businesses as now conducted, except such
patents, licenses, trademarks, trade names, trade secrets, service marks,
copyrights and all rights with respect thereto which if not validly owned
or used would not be reasonably likely to have a Material Adverse Effect.
(m) Governmental Charges. Each Borrower and each of FIL's
Subsidiaries have filed or caused to be filed all material tax returns,
reports and declarations which are required to be filed by them. Each
Borrower and each of FIL's Subsidiaries have paid, or made provision for
the payment of, all taxes and other Governmental Charges which have or may
have become due pursuant to said returns or otherwise and all other
indebtedness, except such Governmental Charges or indebtedness, if any,
which are being contested in good faith and as to which adequate reserves
(determined in accordance with GAAP) have been provided or which are not
reasonably and substantially likely to have a Material Adverse Effect if
unpaid.
(n) Margin Stock. No Borrower owns any Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of such
Borrower, and no proceeds of any Loan and no Letter of Credit will be used
to purchase or carry, directly or indirectly, any Margin Stock or to
extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock.
(o) Subsidiaries, Etc. Schedule 4.01(o) (on the Closing Date as of
December 31, 2001 and as thereafter updated on a quarterly basis by
Borrowers in a written notice to Agent no later than the date financial
statements are required to be delivered pursuant to Subparagraph 5.01(a))
sets forth each of FIL's Significant Subsidiaries, its jurisdiction of
organization, the percentages of shares owned directly or indirectly by
FIL and whether FIL owns such shares directly or, if not, the Subsidiary
of FIL that owns such shares. The only Material Subsidiaries on the date
of this Agreement are Flextronics International USA, Inc., Flextronics
International Latin America (L) Ltd., Flextronics International Sweden AB,
Flextronics International Kft. and Flextronics Hungaria Kft. 1.
(p) Solvency, Etc. Each of the Borrowers, each Guarantor and each
Material Subsidiary is Solvent and, after the execution and delivery of
the Credit Documents and the consummation of the transactions contemplated
thereby, will be Solvent.
(q) Senior Debt. Borrowers have taken all actions necessary for the
Obligations to constitute "Designated Senior Debt" for the purposes of and
as defined in the Subordinated Indenture. Borrowers shall take all
additional actions that may be necessary for the Obligations to continue
at all times to constitute "Designated Senior Debt" or otherwise to be
entitled to all the benefits of any senior debt under all Subordinated
Indentures.
(r) No Withholding, Etc. Except as otherwise disclosed by a Borrower
to the Agent from time to time, no Borrower has actual knowledge of any
requirement under any Governmental Rule to make any deduction or
withholding of any nature whatsoever from any payment required to be made
by any Borrowers hereunder or under any other Credit Document. Neither
this Agreement nor any of the other Credit Documents is subject to any
registration or stamp tax or any other similar or like taxes payable in
any relevant jurisdiction.
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(s) Foreign Subsidiaries.
(i) No Immunities, etc. Each Foreign Subsidiary that is a
Borrower or Guarantor is subject to civil and commercial law with
respect to its obligations under this Agreement and the other Credit
Documents, and the execution, delivery and performance by each such
Foreign Subsidiary of this Agreement and the other Credit Documents
constitute and will constitute private and commercial acts and not
public or governmental acts. Neither such Foreign Subsidiary nor any
of its property, whether or not held for its own account, has any
immunity (sovereign or other similar immunity) from any suit or
proceeding, from jurisdiction of any court or, if applicable in the
relevant jurisdiction, from set-off or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid
of execution of judgment, execution of judgment or other similar
immunity) under laws of the jurisdiction in which such Foreign
Subsidiary is organized and existing in respect of its obligations
under this Agreement and the other Credit Documents. Each such
Foreign Subsidiary has waived every immunity (sovereign or
otherwise) to which it or any of its properties would otherwise be
entitled from any legal action, suit or proceeding, from
jurisdiction of any court and from set-off or any legal process
(whether service or notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or otherwise)
under the laws of the jurisdiction in which such Foreign Subsidiary
is organized and existing in respect of its obligations under this
Agreement and the other Credit Documents. The waiver by each such
Foreign Subsidiary described in the immediately preceding sentence
is the legal, valid and binding obligation of such Foreign
Subsidiary.
(ii) No Recordation Necessary. This Agreement and each of the
other Credit Documents executed by a Foreign Subsidiary is in proper
legal form under the law of the jurisdiction in which such Foreign
Subsidiary is organized and existing for the enforcement hereof or
thereof against such Foreign Subsidiary under the law of such
jurisdiction, and to ensure the legality, validity, enforceability,
priority or admissibility in evidence of this Agreement and such
other Credit Documents. It is not necessary to ensure the legality,
validity, enforceability, priority or admissibility in evidence of
this Agreement or any other Credit Document executed by a Foreign
Subsidiary that this Agreement, any other Credit Document or any
other document be filed, registered or recorded with, or executed or
notarized before, any court or other authority in the jurisdiction
in which such Foreign Subsidiary is organized and existing or that
any registration charge or stamp or similar tax be paid on or in
respect of this Agreement, any other Credit Document or any other
document, except for any such filing, registration or recording, or
execution or notarization, as has been made or is not required to be
made until this Agreement, any other Credit Document or any other
document is sought to be enforced and for any charge or tax as has
been timely paid.
(iii) Exchange Controls. The execution, delivery and
performance by each Borrower of this Agreement and each of the other
Credit Documents executed by a Foreign Subsidiary is, under
applicable foreign exchange control regulations of the jurisdiction
in which each such Borrower or Foreign Subsidiary is organized and
existing, not subject to any notification or authorization except
(A) such as have been made or obtained or (B) such as cannot be made
or obtained until a later date (provided any notification or
authorization described in immediately preceding clause (A) shall be
made or obtained as soon as is reasonably practicable).
(t) No Material Adverse Effect. No event has occurred and no
condition exists which is reasonably and substantially likely to have a
Material Adverse Effect.
(u) Accuracy of Information Furnished. The Credit Documents and the
other certificates, statements and information (excluding projections)
furnished to Agent or any Lender by or on behalf of Borrowers, the
Guarantors and FIL's Subsidiaries in connection with the Credit Documents
and the transactions contemplated thereby, taken as a whole, do not
contain and will not contain any untrue statement of a material fact and
do not omit and will not omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading. All projections have been based upon reasonable
assumptions and represent, as of their respective dates of
41
presentations, Borrowers' best estimates of the future performance of
Borrowers, the Guarantors and FIL's Subsidiaries.
4.02. Reaffirmation. Each Borrower shall be deemed to have reaffirmed, for
the benefit of the Lenders and Agent, each representation and warranty contained
in Paragraph 4.01 on and as of the date of each Credit Event involving the
making of a Loan or the issuance of a Letter of Credit (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrowers of all Obligations, Borrowers will comply,
and will cause compliance, with the following affirmative covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Financial Statements, Reports, etc. Each Borrower shall furnish
to Agent the following, each in such form and such detail as Agent or the
Required Lenders shall reasonably request:
(i) As soon as available and in no event later than fifty-five
(55) days after the last day of each fiscal quarter of FIL, a copy
of the Financial Statements of FIL and its Subsidiaries (prepared on
a consolidated basis) for such quarter and for the fiscal year to
date, certified by the chief financial officer, treasurer or
controller of FIL to present fairly in all material respects the
financial condition, results of operations and other information
reflected therein and to have been prepared in accordance with GAAP
(subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than one
hundred (100) days after the close of each fiscal year of FIL, (A)
copies of the audited Financial Statements of FIL and its
Subsidiaries (prepared on a consolidated and consolidating basis)
for such year, audited by independent certified public accountants
of recognized national standing reasonably acceptable to Agent, (B)
copies of the unqualified opinions (or qualified opinions reasonably
acceptable to Agent) and (C) if available from such accountants,
certificates of such accountants to Agent stating that in making the
examination necessary for their opinion they have reviewed this
Agreement and have obtained no knowledge of any Default which has
occurred and is continuing, or if, in the opinion of such
accountants, a Default has occurred and is continuing, a statement
as to the nature thereof;
(iii) Contemporaneously with the quarterly and year-end
Financial Statements required by the foregoing clauses (i) and (ii),
a compliance certificate of the chief financial officer, treasurer
or controller of each Borrower (a "Compliance Certificate") which
(A) states that no Default has occurred and is continuing, or, if
any such Default has occurred and is continuing, a statement as to
the nature thereof and what action Borrowers propose to take with
respect thereto; and (B) sets forth, for the quarter or year covered
by such Financial Statements or as of the last day of such quarter
or year (as the case may be), the calculation of the financial
ratios and tests provided in Paragraph 5.03 for FIL;
(iv) As soon as possible and in no event later than five (5)
Business Days after any officer of such Borrower knows of the
occurrence or existence of (A) any Reportable Event under any
Employee Benefit Plan or Multiemployer Plan; (B) any actual or
threatened litigation, suits, claims or disputes against any
Borrower or any of FIL's Subsidiaries involving potential monetary
damages payable by any Borrower or FIL's Subsidiaries of $10,000,000
or more (alone or in the aggregate); (C) any other event or
condition which is reasonably and substantially likely to have a
Material Adverse Effect; or (D) any Default; the statement of the
chief financial officer, treasurer or controller of such Borrower
setting forth details of such event, condition or Default and the
action which such Borrower proposes to take with respect thereto;
42
(v) As soon as available and in no event later than five (5)
Business Days after they are sent, made available or filed, copies
of (A) all registration statements and reports filed by any of the
Borrowers or any of FIL's Subsidiaries with the United States
Securities and Exchange Commission (including, without limitation,
all 10-Q, 10-K and 8-K reports); and (B) all reports, proxy
statements and financial statements sent or made available by any of
the Borrowers or any of FIL's Subsidiaries to its security holders;
(vi) As soon as possible and in no event later than (A)
fifty-five (55) days after the last day of each fiscal quarter (or
one hundred (100) days in the case of the last fiscal quarter of
each fiscal year), written notice of any new Significant Subsidiary
acquired or established directly or indirectly by FIL during such
quarter or any other change in the information set forth in Schedule
4.01(o) during such quarter; and (B) ten (10) days after the date
that any entity becomes a Material Subsidiary, written notice
setting forth each Subsidiary of FIL that has become a Material
Subsidiary and indicating for each such new Material Subsidiary
whether such Material Subsidiary is an Eligible Material Subsidiary
or Ineligible Material Subsidiary;
(vii) As soon as available and in no event later than five (5)
Business Days after any Borrower changes its legal name or the
address of its chief executive office, written notice setting forth
such Borrower's new legal name and/or new address; and
(viii) Such other instruments, agreements, certificates,
opinions, statements, documents and information relating to the
operations or condition (financial or otherwise) of such Borrower or
FIL's Subsidiaries, and compliance by such Borrower with the terms
of this Agreement and the other Credit Documents as Agent on behalf
of itself or one or more Lenders may from time to time reasonably
request.
In lieu of furnishing to Agent hard copies of the quarterly Financial
Statements described in clause (i) above and the annual Financial
Statements and auditor's report described in clauses (ii)(A) and (ii)(B)
above and the other documents referred to in clause (v) above, FIL may
make such documents available to Lenders at its website located at
www.flextronics.com and through the United States Securities and Exchange
Commission's EDGAR system ("EDGAR") or by transmitting such documents
electronically to Lenders. The Agent shall provide to any Lender hard
copies of such documents upon request if such Lender does not have access
to FIL's website or EDGAR.
(b) Books and Records. Each Borrower and FIL's Subsidiaries shall at
all times keep proper books of record and account which shall be complete
and correct in all material respects in accordance with GAAP.
(c) Inspections. Each Borrower and FIL's Subsidiaries shall permit
Agent and each Lender, or any agent or representative thereof, upon
reasonable notice and during normal business hours, to visit and inspect
any of the properties and offices of such Borrower and FIL's Subsidiaries,
to examine the books and records of such Borrower and FIL's Subsidiaries
and make copies thereof and to discuss the affairs, finances and business
of such Borrower and FIL's Subsidiaries with, and to be advised as to the
same by, their officers, auditors and accountants, all at such times and
intervals as Agent or any Lender may reasonably request (which visits and
inspections shall be at the expense of Agent or such Lender unless a
Default has occurred and is continuing).
(d) Insurance. Each Borrower and FIL's Subsidiaries shall (i) carry
and maintain insurance of the types and in the amounts customarily carried
from time to time during the term of this Agreement by others engaged in
substantially the same business as such Person and operating in the same
geographic area as such Person, including fire, public liability, property
damage and worker's compensation, (ii) carry and maintain each policy for
such insurance with financially sound insurers and (iii) deliver to Agent
from time to time, as Agent may request, schedules setting forth all
insurance then in effect.
(e) Taxes, Governmental Charges and Other Indebtedness. Each
Borrower and FIL's Subsidiaries shall promptly pay and discharge when due
(i) all taxes and other Governmental Charges prior
43
to the date upon which penalties accrue thereon, (ii) all indebtedness
which, if unpaid, could become a Lien upon the property of such Borrower
or FIL's Subsidiaries and (iii) subject to any subordination provisions
applicable thereto, all other Indebtedness, which in each case, if unpaid,
is reasonably and substantially likely to have a Material Adverse Effect,
except such taxes, Governmental Charges or Indebtedness as may in good
faith be contested or disputed, or for which arrangements for deferred
payment have been made, provided that in each such case appropriate
reserves are maintained in accordance with GAAP.
(f) Use of Proceeds. Each Borrower shall use the proceeds of the
Loans only for the respective purposes set forth in Section II. No
Borrower shall use any part of the proceeds of any Loan or any Letter of
Credit, directly or indirectly, for the purpose of purchasing or carrying
any Margin Stock or for the purpose of purchasing or carrying or trading
in any securities under such circumstances as to involve such Borrower,
any Lender or Agent in a violation of Regulations T, U or X issued by the
Federal Reserve Board.
(g) General Business Operations. Each of the Borrowers and FIL's
Subsidiaries shall (i) preserve and maintain its corporate existence and
all of its rights, privileges and franchises reasonably necessary to the
conduct of its business, (ii) conduct its business activities in
compliance with all Requirements of Law and Contractual Obligations
applicable to such Person and (iii) keep all property useful and necessary
in its business in good working order and condition, ordinary wear and
tear excepted, except, in each case, where any failure is not reasonably
and substantially likely to have a Material Adverse Effect.
(h) Pari Passu Ranking. Each Borrower shall take, or cause to be
taken, all actions necessary to ensure that the Obligations of such
Borrower are and continue to rank at least pari passu in right of payment
with all other unsecured and unsubordinated Indebtedness of such Borrower.
5.02. Negative Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrowers of all Obligations, Borrowers will comply, and
will cause compliance, with the following negative covenants, unless Required
Lenders shall otherwise consent in writing:
(a) Indebtedness. None of the Borrowers or any of FIL's Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness except for
the following ("Permitted Indebtedness"):
(i) Indebtedness that is not secured by a Lien in any asset or
property of any of the Borrowers or any of FIL's Subsidiaries;
(ii) (A) Indebtedness under Capital Leases or under purchase
money loans incurred by Borrower or any of FIL's Subsidiaries to
finance the acquisition, construction, development or improvement by
such Person of real property, fixtures, or equipment or other
tangible assets provided that in each case (1) such Indebtedness is
incurred by such Person at the time of, or not later than one
hundred twenty (120) days after, the acquisition by such Person of
the property so financed and (2) such Indebtedness does not exceed
the purchase price of the property (or the cost of constructing,
developing or improving the same) so financed, and (B) Indebtedness
under initial or successive refinancings of any such Capital Leases
or purchase money loans provided that the principal amount of any
such refinancing does not exceed the principal amount of the
Indebtedness being refinanced;
(iii) Existing Secured Indebtedness, together with initial or
successive refinancings thereof, provided that (A) the principal
amount of any such refinancing does not exceed the principal amount
of the Indebtedness being refinanced (except to the extent necessary
to pay fees, expenses, underwriting discounts and prepayment
penalties in connection therewith) and (B) the other terms and
provisions of any such refinancing with respect to maturity,
redemption, prepayment, default and subordination are no less
favorable in any material respect to Lenders than the Indebtedness
being refinanced;
44
(iv) Indebtedness of any Borrower or Guarantor to any other
Borrower or any Eligible Material Subsidiary or Indebtedness of any
Eligible Material Subsidiary to any Borrower or any other Eligible
Material Subsidiary or any Guarantor, in each case to the extent
otherwise permitted pursuant to Subparagraph 5.02(e) and
Subparagraph 5.02(i); and
(v) Other Indebtedness that is secured by a Lien on any assets
or property of any of the Borrowers or any of FIL's Subsidiaries,
provided that the aggregate principal amount of all secured
Indebtedness (other than Existing Secured Indebtedness or
Indebtedness secured by cash or cash equivalents to the extent such
cash or cash equivalents are proceeds of such Indebtedness),
outstanding during any fiscal quarter of FIL does not exceed ten
percent (10%) of the consolidated assets of FIL and its Subsidiaries
on the last day of the immediately preceding fiscal quarter.
(b) Liens. None of the Borrowers or any of FIL's Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of their assets or property of any character, whether now owned or
hereafter acquired, except for the following Liens ("Permitted Liens"):
(i) Liens that secure only Indebtedness which constitutes
Permitted Indebtedness under clause (ii) (but only to the extent
such Liens are on the assets so financed, the proceeds thereof and
any improvements thereon), (iii), (iv) or (v) of Subparagraph
5.02(a);
(ii) Liens in favor of any of the Borrowers, any Eligible
Material Subsidiary or any Guarantor on all or part of the assets of
Subsidiaries of any Borrower, any Eligible Material Subsidiary or
any Guarantor securing Indebtedness owing by Subsidiaries of any of
the Borrowers, Eligible Material Subsidiary or any Guarantor, as the
case may be, to any of the Borrowers or to such other Eligible
Material Subsidiary or Guarantor;
(iii) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or Liens on properties
to secure claims for labor, material or supplies in respect of
obligations not overdue (taking into account applicable grace
periods), or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves are being maintained in accordance with generally accepted
accounting principles so long as such Liens are not being
foreclosed;
(iv) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations and good faith
deposits in connection with tenders, contracts or leases to which
any Borrower or any Subsidiary is a party or deposits or pledges to
secure, or in lieu of, surety, penalty or appeal bonds, performance
bonds or other similar obligations;
(v) Liens of carriers, landlords, warehousemen, mechanics and
materialmen, and other like Liens on properties which would not have
a Material Adverse Effect and are in respect of obligations not
overdue (taking into account applicable grace periods), or which are
being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are being
maintained in accordance with generally accepted accounting
principles so long as such Liens are not being foreclosed;
(vi) encumbrances on real property consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's or lessee's Liens under leases to which a
Borrower or any of FIL's Subsidiaries is a party (including
"synthetic" leases), and other minor Liens or encumbrances none of
which interferes materially with the use of the property, in each
case which do not individually or in the aggregate have a Material
Adverse Effect;
(vii) Liens in favor of the Agent for the benefit of the
Lenders and the Agent under the Credit Documents;
45
(viii) Liens in favor of the agent for the benefit of the
lenders and the agent under the FIUI Credit Documents;
(ix) Liens arising out of cash management, netting or set off
arrangements made between banks or financial institutions and FIL or
any of its Subsidiaries in the ordinary course of business, or over
any asset held with a clearing house, or other Liens comprising
rights of set-off arising by operation of law or by agreement;
(x) Liens securing Indebtedness or other obligations on cash
or cash equivalents to the extent such cash or cash equivalents
represent proceeds from such Indebtedness or other obligations;
(xi) rights of third parties in equipment or inventory
consigned to or by, or otherwise owned by such third party and which
is being stored on property owned or leased by, a Borrower or any of
FIL's Subsidiaries;
(xii) Liens created pursuant to attachment, garnishee orders
or other process in connection with pre-judgment court proceedings;
and
(xiii) precautionary Liens over assets securitized in
connection with any securitized transaction permitted under
Subparagraph 5.02 (c).
(c) Asset Dispositions. None of the Borrowers or any of FIL's
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
their assets or property, whether now owned or hereafter acquired, except
for (i) assets or property sold, leased, transferred or otherwise disposed
of in the ordinary course of business for fair market value; (ii) sales of
accounts receivable in securitization or financing transactions, provided
that the aggregate principal amount of any accounts receivable sold in any
fiscal quarter of FIL shall not exceed thirty percent (30%) of the
aggregate principal amount of accounts receivable originated by FIL and
its Subsidiaries during such fiscal quarter; (iii) sales or transfers of
duplicative or excess assets existing as a result of transactions
otherwise permitted pursuant to Subparagraph 5.02(d), provided that the
aggregate principal amount of any such duplicative assets sold or
transferred in any fiscal year does not exceed five percent (5%) of all
fixed assets of FIL and its Subsidiaries net of depreciation held by FIL
and its Subsidiaries as of the end of the immediately preceding fiscal
quarter; (iv) sales or transfers of damaged, obsolete or worn out assets
and scrap, in each case in the ordinary course of business, (v) sales or
transfers of assets or property to any Borrower or any Subsidiary from any
other Borrower or Subsidiary; (vi) assets sold and leasedback by FIL or
its Subsidiaries in the ordinary course of business; and (vii)
dispositions of Investments permitted under Subparagraph 5.02(e) for a
purchase price that is not less than fair market value of the Investments
being sold.
(d) Mergers, Acquisitions, Etc. None of the Borrowers or any of
FIL's Subsidiaries shall consolidate with or merge into any other Person
or permit any other Person to merge into them, acquire any Person as a new
Subsidiary or acquire all or substantially all of the assets of any other
Person, except for the following:
(i) Borrowers and FIL's Subsidiaries may merge with each
other, provided that (A) in any such merger involving any Borrower,
such Borrower is the surviving corporation and (B) no Default has
occurred and is continuing on the date of, or will result after
giving effect to, any such merger; and
(ii) Borrowers and FIL's Subsidiaries may acquire any Person
as a new Subsidiary or of all or substantially all of the assets of
any Person, provided that:
(A) No Default has occurred and is continuing on the
date of, or will result after giving effect to, any such
acquisition;
46
(B) Such Person is not primarily engaged in any business
substantially different from (1) the present business of the
acquiring Borrower or Subsidiary or (2) any business
reasonably related thereto; and
(C) Borrowers or FIL's Subsidiaries possess the power to
direct or cause the direction of the management and policies
of such Person.
(e) Investments. None of the Borrowers or any of FIL's Subsidiaries
shall make any Investment except for the following:
(i) Investments permitted by the investment policy of FIL set
forth in Schedule 5.02(e) or, if any changes to the investment
policy of FIL are hereafter duly approved by the Board of Directors
of FIL, in any subsequent investment policy which is the most recent
investment policy delivered by FIL to Agent with a certificate of
FIL's chief financial officer to the effect that such investment
policy has been duly approved by FIL's Board of Directors and is
then in effect;
(ii) Investments listed in Schedule 5.02(e) existing or
committed on the Closing Date;
(iii) Investments received by Borrowers and FIL's Subsidiaries
in connection with the bankruptcy or reorganization of customers and
suppliers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary
course of business;
(iv) Investments by Borrowers, the Material Subsidiaries and
the Guarantors directly or indirectly in each other;
(v) Investments consisting of loans to employees and officers
for travel, housing, relocation and other similar expenses incurred
in the ordinary course of business;
(vi) Investments of Borrowers and FIL's Subsidiaries in
interest rate protection, currency swap and foreign exchange
arrangements, provided that all such arrangements are entered into
in connection with bona fide hedging operations and not for
speculation;
(vii) Deposit accounts;
(viii) Investments permitted by Subparagraph 5.02(d); and
(ix) Other Investments, provided that:
(A) No Default has occurred and is continuing on the
date of, or will result after giving effect to, any such
Investment; and
(B) The aggregate consideration paid by Borrowers and
FIL's Subsidiaries for all such Investments in any fiscal year
(without duplication) does not exceed the sum of (1) ten
percent (10%) of the total assets of FIL and its Subsidiaries
at the end of the immediately preceding fiscal quarter, plus
(2) seventy-five percent (75%) of the Net Proceeds received
from the issuance by FIL of any Equity Securities of the type
described in clause (a) of the definition of "Equity
Securities" during calendar year 2001 or thereafter.
(f) Dividends, Redemptions, Etc. None of the Borrowers or any of
FIL's Subsidiaries shall pay any dividends or make any distributions on
its Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to any
holder of its Equity
47
Securities as such; make any distribution of assets, Equity Securities,
obligations or securities to any holder of its Equity Securities as such;
or set apart any sum for any such purpose; except as follows:
(i) Any of the Borrowers or any of FIL's Subsidiaries may pay
dividends on its capital stock payable solely in such Person's own
capital stock, provided that, in the case of any such dividend
payable by an Ineligible Material Subsidiary, such dividend is
delivered and pledged to Agent to the extent required by
Subparagraph 2.15(b);
(ii) Any Subsidiary of FIL may pay dividends to or repurchase
its capital stock from such Subsidiary's parent; and
(iii) FIL may pay dividends on its capital stock payable in
cash or repurchase its capital stock for cash, provided that, in
each case, no Default has occurred and is continuing on the date of,
or will result after giving effect to, any such payment or
repurchase.
(g) Change in Business. None of the Borrowers or any of FIL's
Subsidiaries shall engage to any material extent, either directly or
indirectly, in any business substantially different from (i) their present
business or (ii) any business reasonably related thereto.
(h) Employee Benefit Plans.
(i) None of the Borrowers or any ERISA Affiliate shall (A)
adopt or institute any Employee Benefit Plan that is an employee
pension benefit plan within the meaning of Section 3(2) of ERISA,
(B) take any action which will result in the partial or complete
withdrawal, within the meanings of sections 4203 and 4205 of ERISA,
from a Multiemployer Plan, (C) engage or permit any Person to engage
in any transaction prohibited by section 406 of ERISA or section
4975 of the IRC involving any Employee Benefit Plan or Multiemployer
Plan which would subject any Borrower or any ERISA Affiliate to any
tax, penalty or other liability including a liability to indemnify,
(D) incur or allow to exist any accumulated funding deficiency
(within the meaning of section 412 of the IRC or section 302 of
ERISA), (E) fail to make full payment when due of all amounts due as
contributions to any Employee Benefit Plan or Multiemployer Plan,
(F) fail to comply with the requirements of section 4980B of the IRC
or Part 6 of Title I(B) of ERISA, or (G) adopt any amendment to any
Employee Benefit Plan which would require the posting of security
pursuant to section 401(a)(29) of the IRC, where singly or
cumulatively, the above would be reasonably and substantially likely
to have a Material Adverse Effect.
(ii) None of the Borrowers or any of FIL's Subsidiaries shall
(A) engage in any transaction prohibited by any Governmental Rule
applicable to any Foreign Plan, (B) fail to make full payment when
due of all amounts due as contributions to any Foreign Plan or (C)
otherwise fail to comply with the requirements of any Governmental
Rule applicable to any Foreign Plan, where singly or cumulatively,
the above would be reasonably and substantially likely to have a
Material Adverse Effect.
(i) Transactions With Affiliates. None of the Borrowers or any of
FIL's Subsidiaries shall enter into any Contractual Obligation with any
Affiliate (other than one of the Borrowers or one of its Subsidiaries) or
engage in any other transaction with any such Affiliate except (A) upon
terms at least as favorable to such Borrower or such Subsidiary as an
arms-length transaction with unaffiliated Persons, except as disclosed or
reflected in the Financial Statements of FIL dated December 31, 2001,
furnished by FIL to Agent prior to the date hereof, or in the Financial
Statements delivered to Agent pursuant to clause (i) or (ii) of
Subparagraph 5.01(a), or (B) in connection with transactions made pursuant
to Subparagraphs 5.02(d) or 5.02(e).
(j) Accounting Changes. None of the Borrowers or any of FIL's
Subsidiaries shall change (i) their fiscal year (currently April 1 through
March 31) or (ii) their accounting practices except as required by GAAP.
48
(k) Burdensome Contractual Obligations. None of the Borrowers or any
of FIL's Subsidiaries will enter into any Contractual Obligation
(excluding this Agreement and the other Credit Documents) that restricts
the ability of any wholly-owned Subsidiary of FIL or any other Subsidiary
of FIL that had revenues during the immediately preceding fiscal year
equal to or greater than $25,000,000 or net worth on the last day of the
immediately preceding fiscal year equal to or greater than $25,000,000, to
pay or make dividends or distributions in cash or kind, to make loans,
advances or other payments of whatsoever nature or to make transfers or
distributions of all or any part of their assets to any of the Borrowers
or to any Subsidiary of such Subsidiary; provided, however, that the
foregoing shall not apply to (i) restrictions or conditions imposed by any
Governmental Rule or (ii) customary restrictions and conditions contained
in (A) licenses, leases and franchise agreements or (B) relating to the
sale of a Subsidiary pending such sale so long as such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale
is otherwise permitted hereunder.
(l) Senior Debt. None of the Borrowers or any of FIL's Subsidiaries
will designate or permit to exist any other Indebtedness as "Designated
Senior Debt" for the purposes of and as defined in of the Subordinated
Indenture, other than the Obligations arising under this Agreement and the
other Credit Documents and obligations arising under facilities providing
at least Fifty Million Dollars ($50,000,000) in the aggregate of loans or
other debt or synthetic lease financing.
5.03. Financial Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrowers of all Obligations, Borrowers will comply, and
will cause compliance, with the following financial covenants, unless Required
Lenders shall otherwise consent in writing:
(a) Debt/EBITDA Ratio. FIL shall not permit its Debt/EBITDA Ratio to
be greater than 3.25 to 1.00 for any consecutive four-quarter period
ending on the last day of any fiscal quarter.
(b) Fixed Charge Coverage Ratio. FIL shall not permit its Fixed
Charge Coverage Ratio to be less than 1.50 to 1.00 for any consecutive
four-quarter period ending on the last day of any fiscal quarter.
(c) Net Worth. FIL shall not permit its Net Worth on the last day of
any fiscal quarter (such date to be referred to herein as a "determination
date") to be less than the sum on such determination date of the
following:
(i) $2,982,000,000;
plus
(ii) Fifty percent (50%) of FIL's consolidated quarterly net
income (ignoring any quarterly losses) for each fiscal quarter
ending after December 31, 2001 through and including the fiscal
quarter ending on the determination date;
plus
(iii) Fifty percent (50%) of the Net Proceeds of all Equity
Securities issued by FIL and its Subsidiaries (to Persons other than
FIL or its Subsidiaries) during any period after the Closing Date
and ending on the determination date.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more of
the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Any Borrower shall (i) fail to pay when due any
principal of any Loan or any Reimbursement Payment, or (ii) except at
final maturity when no grace period shall apply, fail to pay
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within five (5) Business Days after the same becomes due any interest, fee
or other payment required under the terms of this Agreement or any of the
other Credit Documents; or
(b) Specific Defaults. Any Borrower or any of FIL's Subsidiaries
shall fail to observe or perform any covenant, obligation, condition or
agreement set forth in Paragraph 5.02 or Paragraph 5.03; or
(c) Other Defaults. Any Borrower or any of FIL's Subsidiaries shall
fail to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or the other Credit Documents and
such failure shall continue for thirty (30) Business Days after the
earlier of (i) any Borrower's written acknowledgement of such failure and
(ii) Agent's or any Lender's written notice to Borrowers of such failure;
provided, however, that in the event that such failure cannot reasonably
be cured within such thirty (30) day period, and such failure relates to
the observance or performance of any of the covenants, obligations,
conditions or agreements contained in Subparagraph 4.01(f) hereof with
respect to Hazardous Materials or any Environmental Laws or any judgment,
consent decree, settlement or compromise in respect of any claim based
thereon, it shall not constitute an Event of Default hereunder so long as
Borrowers shall have commenced to cure such failure within such thirty
(30) day period and shall thereafter diligently pursue such cure to
completion, provided further that such failure shall in all events be
cured within one hundred and eighty days (180) days after Agent's or such
Lender's written notice thereof; or
(d) Representations and Warranties. Any representation, warranty,
certificate, information or other statement (financial or otherwise) made
or furnished by or on behalf of any Borrower to Agent or any Lender in or
in connection with this Agreement or any of the other Credit Documents, or
as an inducement to Agent or any Lender to enter into this Agreement,
shall be false, incorrect, incomplete or misleading in any material
respect when made (or deemed made) or furnished and either (i) Agent or
any Lender has delivered to Borrowers written notice thereof and such
representation, warranty, certificate, information or other statement
cannot be remedied or (ii) such representation, warranty, certificate,
information or other statement continues to be false, incorrect,
incomplete or misleading in any material respect thirty (30) days after
the earlier of (A) any Borrower's written acknowledgement that such
representation, warranty, certificate, information or other statement was
false, incorrect, incomplete or misleading in any material respect and (B)
Agent's or any Lender's written notice to Borrowers that such
representation, warranty, certificate, information or other statement was
false, incorrect, incomplete or misleading in any material respect; or
(e) Cross-Default. (i) Any Borrower, any Guarantor or any Material
Subsidiary shall fail to make any payment on account of any Indebtedness
of such Person (other than the Obligations) when due (whether at scheduled
maturity, by required prepayment, upon acceleration or otherwise) and such
failure shall continue beyond any period of grace provided with respect
thereto, if the amount of such Indebtedness exceeds $40,000,000 or the
effect of such failure is to cause, or permit the holder or holders
thereof to cause, Indebtedness of any Borrower, any Guarantor and any
Material Subsidiary (other than the Obligations) in an aggregate amount
exceeding $40,000,000 to become due (whether at scheduled maturity, by
required prepayment, upon acceleration or otherwise); or (ii) any
Borrower, any Guarantor or any Material Subsidiary shall otherwise fail to
observe or perform any agreement, term or condition contained in any
agreement or instrument relating to any Indebtedness of such Person (other
than the Obligations), or any other event shall occur or condition shall
exist, if the effect of such failure, event or condition is to cause, or
permit the holder or holders thereof to cause, Indebtedness of any
Borrower, any Guarantor and any Material Subsidiary (other than the
Obligations) in an aggregate amount exceeding $40,000,000 to become due
(and/or to be secured by cash collateral other than cash collateral
obligations not arising from an event of default under any agreement or
instrument relating to Indebtedness incurred in connection with a
synthetic lease transaction or letters of credit); or
(f) Insolvency, Voluntary Proceedings. Any Borrower or any
Significant Subsidiary shall (i) apply for or consent to the appointment
of a receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing its
inability, to pay its debts generally as they mature, (iii) make a general
assignment for the benefit of its or any of its creditors, (iv) become
insolvent (as such term may be defined or interpreted under any applicable
statute), (v) commence a
50
voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or consent to
any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding
commenced against it, or (vi) take any action for the purpose of effecting
any of the foregoing; or FIL, any Designated Borrower or any Material
Subsidiary shall be dissolved or liquidated in full or in part; or
(g) Involuntary Proceedings. Proceedings for the appointment of a
receiver, trustee, liquidator or custodian of any Borrower or any
Significant Subsidiary or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to any Borrower or any
Significant Subsidiary or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not be
dismissed or discharged within sixty (60) days of commencement; or
(h) Judgments. (i) One or more judgments, orders, decrees or
arbitration awards requiring Borrowers and/or FIL's Subsidiaries to pay an
aggregate amount of $25,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Borrowers and otherwise
satisfying the requirements set forth in Subparagraph 5.01(d) to which the
insurer does not dispute coverage) shall be rendered against Borrowers
and/or FIL's Subsidiaries in connection with any single or related series
of transactions, incidents or circumstances and the same shall not be
satisfied, vacated or stayed for a period of sixty (60) consecutive days;
(ii) any judgment, writ, assessment, warrant of attachment, tax lien or
execution or similar process shall be issued or levied against a
substantial part of the property of any Borrower or any of FIL's
Subsidiaries and the same shall not be released, stayed, vacated or
otherwise dismissed within sixty (60) days after issue or levy; or (iii)
any other judgments, orders, decrees, arbitration awards, writs,
assessments, warrants of attachment, tax liens or executions or similar
processes which, alone or in the aggregate, are reasonably and
substantially likely to have a Material Adverse Effect are rendered,
issued or levied; or
(i) Credit Documents. Any Credit Document or any material term
thereof shall cease to be, or be asserted by any Borrower or any Guarantor
not to be, a legal, valid and binding obligation of any Borrower or any
Guarantor enforceable in accordance with its terms; or
(j) Employee Benefit Plans. Any Reportable Event which constitutes
grounds for the termination of any Employee Benefit Plan by the PBGC or
for the appointment of a trustee by the PBGC to administer any Employee
Benefit Plan shall occur, or any Employee Benefit Plan shall be terminated
within the meaning of Title IV of ERISA or a trustee shall be appointed by
the PBGC to administer any Employee Benefit Plan; or
(k) Change of Control. Any Change of Control shall occur; or
(l) Material Adverse Effect. Any event(s) or condition(s) which is
(are) reasonably and substantially likely to have a Material Adverse
Effect shall occur or exist.
6.02. Remedies. At any time after the occurrence and during the
continuance of any Event of Default (other than an Event of Default referred to
in Subparagraph 6.01(f) or 6.01(g)), Agent may, with the consent of the Required
Lenders, or shall, upon instructions from the Required Lenders, by written
notice to Borrowers, (a) terminate the Commitments and the obligations of
Lenders to make Loans and to participate in Letters of Credit and of Issuing
Bank to issue Letters of Credit, and/or (b) declare all outstanding Obligations
payable by Borrowers to be immediately due and payable without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Notes to the contrary
notwithstanding and (c) direct Borrowers to deliver to Agent funds in an amount
equal to the aggregate stated amount of all Letters of Credit. Upon the
occurrence or existence of any Event of Default described in Subparagraph
6.01(f) or 6.01(g), immediately and without notice, (1) the Commitments and the
obligations of Lenders to make Loans and to participate in Letters of Credit,
and of the Issuing Bank to issue Letters of Credit shall automatically terminate
and (2) all outstanding Obligations payable by Borrowers hereunder shall
automatically become immediately due and payable, without
51
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding. In addition to the foregoing remedies, upon the
occurrence or existence of any Event of Default, Agent may exercise any other
right, power or remedy available to it under any of the Credit Documents or
otherwise by law, either by suit in equity or by action at law, or both.
6.03. Lender Rate Contract Remedies. Notwithstanding any other provision
of this Section VI, each Lender or its Affiliate which has entered into a Lender
Rate Contract shall have the right, with prior notice to Agent, but without the
approval or consent of Agent or any other Lender, (a) to declare an event of
default, termination event or other similar event thereunder which will result
in the early termination of such Lender Rate Contract, (b) to determine net
termination amounts in accordance with the terms of such Lender Rate Contract
and to set-off amounts between Lender Rate Contracts of such Lender, and (c) to
prosecute any legal action against any Borrower or any of FIL's Subsidiaries to
enforce net amounts owing to such Lender or its Affiliate under such Lender Rate
Contracts.
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.01. Appointment, Powers and Immunities. Each Lender hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender or have any fiduciary duty to
any Lender. Notwithstanding anything to the contrary contained herein Agent
shall not be required to take any action which is contrary to this Agreement or
any other Credit Document or any applicable Governmental Rule. Neither Agent nor
any Lender shall be responsible to any other Lender for any recitals,
statements, representations or warranties made by any Borrower or any Guarantor
contained in this Agreement or in any other Credit Document, for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Credit Document or for any failure by any Borrower or any
Guarantor to perform their respective obligations hereunder or thereunder. Agent
may employ agents and attorneys-in-fact and shall not be responsible to any
Lender for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither Agent nor any of its directors,
officers, employees, agents or advisors shall be responsible to any Lender for
any action taken or omitted to be taken by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct. Except as otherwise provided
under this Agreement, Agent shall take such action with respect to the Credit
Documents as shall be directed by the Required Lenders.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but shall be required to act or to
refrain from acting upon instructions of the Required Lenders and shall in all
cases be fully protected by Lenders in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of
Lenders.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default unless Agent has received a written notice from a
Lender or any Borrower, referring to this Agreement, describing such Default and
stating that such notice is a "Notice of Default". If Agent receives such a
notice of the occurrence of a Default, Agent shall give prompt notice thereof to
Lenders. Agent shall take such action with respect to such Default as shall be
reasonably directed by the Required Lenders; provided, however, that until Agent
shall have received such directions, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of Lenders.
7.04. Indemnification. Without limiting the Obligations of Borrowers
hereunder, each Lender agrees to indemnify Agent, ratably in accordance with
their Proportionate Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature
52
whatsoever which may at any time be imposed on, incurred by or asserted against
Agent in any way relating to or arising out of this Agreement or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or the enforcement of any of the terms hereof or
thereof; provided, however, that no Lender shall be liable for any of the
foregoing to the extent they arise from Agent's gross negligence or willful
misconduct. Agent shall be fully justified in refusing to take or in continuing
to take any action hereunder unless it shall first be indemnified to its
satisfaction by Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
obligations of each Lender under this Paragraph 7.04 shall survive the payment
and performance of the Obligations, the termination of this Agreement and any
Lender ceasing to be a party to this Agreement (with respect to events which
occurred prior to the time such Lender ceased to be a Lender hereunder).
7.05. Non-Reliance. Each Lender represents that it has, independently and
without reliance on Agent, or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of Borrowers
and FIL's Subsidiaries and its own decision to enter into this Agreement and
agrees that it will, independently and without reliance upon Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and decisions in taking or not
taking action under this Agreement. Neither Agent nor any of its affiliates nor
any of their respective directors, officers, employees, agents or advisors shall
(a) be required to keep any Lender informed as to the performance or observance
by any Borrower or any Guarantor of the obligations under this Agreement or any
other document referred to or provided for herein or to make inquiry of, or to
inspect the properties or books of any Borrower or any of FIL's Subsidiaries;
(b) have any duty or responsibility to provide any Lender with any credit or
other information concerning any Borrower or any of FIL's Subsidiaries which may
come into the possession of Agent, except for notices, reports and other
documents and information expressly required to be furnished to Lenders by Agent
hereunder; or (c) be responsible to any Lender for (i) any recital, statement,
representation or warranty made by any Borrower or any officer, employee or
agent of any Borrower in this Agreement or in any of the other Credit Documents,
(ii) the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any Credit Document, or (iii) any failure by
any Borrower or any Guarantor to perform its obligations under this Agreement or
any other Credit Document.
7.06. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Borrowers and Lenders,
and Agent may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent, which Agent, if not a Lender, shall be
reasonably acceptable to Borrowers; provided, however, that Borrowers shall have
no right to approve a successor Agent if a Default has occurred and is
continuing. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
at which point (and not earlier) the retiring Agent shall be discharged from the
duties and obligations thereafter arising hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Section VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
7.07. Agent in its Individual Capacity. Agent, Issuing Bank and their
respective affiliates may make loans to, accept deposits from and generally
engage in any kind of banking or other business with Borrowers and any of FIL's
Subsidiaries and affiliates as though Agent was not Agent hereunder and Issuing
Bank was not Issuing Bank hereunder . With respect to Loans, if any, made by
Agent in its capacity as a Lender and Letters of Credit, if any, issued by
Issuing Bank in its capacity as Issuing Bank, Agent and Issuing Bank shall have
the same rights and powers under this Agreement and the other Credit Documents
as any other Lender and may exercise the same as though it were not Agent or
Issuing Bank, respectively, and the terms "Lender" and "Lenders" shall include
Agent in its capacity as a Lender and Issuing Bank in its capacity as a Lender,
respectively.
7.08. Co-Arrangers, Co-Syndication Agents, Senior Managing Agent and
Managing Agents. The Co-Arrangers, the Co-Syndication Agents, the Senior
Managing Agent and the Managing Agents do not assume any responsibility or
obligation under this Agreement or any of the other Credit Documents or any
duties as agents for the Lenders. The title "Co-Arrangers", "Co-Syndication
Agents", "Senior Managing Agent" and "Managing Agents" implies no fiduciary
responsibility on the part of any Co-Arranger, Co-Syndication Agent, Senior
53
Managing Agent and Managing Agents to any Person, and the use of such title does
not impose on any Co-Arranger, Co-Syndication Agent, Senior Managing Agent and
Managing Agents any duties or obligations under this Agreement or any of the
other Credit Documents.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon any Borrower,
any Lender, Issuing Bank or Agent under this Agreement or the other Credit
Documents shall be in writing and faxed, mailed or delivered, if to any
Borrower, Agent or Issuing Bank, at its respective facsimile number or address
set forth below or, if to any Lender, at the address or facsimile number
specified for such Lender in Part B of Schedule I (or to such other facsimile
number or address for any party as indicated in any notice given by that party
to the other parties). All such notices and communications shall be effective
(a) when sent by an overnight courier service of recognized standing, on the
second Business Day following the deposit with such service; (b) when delivered
by hand, upon delivery; (c) when faxed, upon confirmation of receipt; or (d) by
any other means, upon receipt; provided, however, that any notice delivered to
Agent or Issuing Bank under Section II shall not be effective until received by
Agent or Issuing Bank.
Agent: ABN AMRO Bank N.V.
Syndications Group
55 East 52nd Street, 7th Floor
New York, NY 10055
U.S.A.
Attn: John Darmanin
Tel. No: (212) 409-7390
Fax. No: (212) 409-7497
With a copy in each case to:
ABN AMRO Bank N.V.
1 California Street, 2nd Floor
San Francisco, CA 94111
Attn: Peter Hsu
Tel: (415) 983-2964
Fax: (415) 983-2960
ABN AMRO Bank N.V.
Agency Services
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Joycelyn G. Gay
Tel. No: (312) 992-5094
Fax. No: (312) 601-3610
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Issuing Bank: Fleet National Bank
100 Federal Street, 9th Floor
Boston, MA 02110
Attn: Angela Moore
MA DE 10009H
Telephone: (617) 434-5059
Fax No: (617) 434-1709
FIL: Flextronics International Ltd.
11 Ubi Road 1 #07-01/02
Meiban Industrial Building
Singapore 408723
Attn: Chairman
Telephone: + (65) 844-3366
Fax No: + (65) 842-1103
with copies to:
Flextronics International Ltd.
2090 Fortune Drive
San Jose, CA 95131
Attn: Treasurer
Tel. No: (408) 576-7233
Fax. No: (408) 526-9215
Each Notice of Borrowing, Notice of Interest Period Selection and LC Application
shall be given by the applicable Borrower to Agent, and in the case of an LC
Application, to Issuing Bank, to the office of such Person located at the
address referred to above during such office's normal business hours; provided,
however, that any such notice received by any such Person after 11:00 a.m.
(California time) on any Business Day shall be deemed received by such Person on
the next Business Day. In any case where this Agreement authorizes notices,
requests, demands or other communications by Borrowers to Agent, Issuing Bank or
any Lender to be made by telephone or facsimile, Agent, Issuing Bank or any
Lender may conclusively presume that anyone purporting to be a person designated
in any incumbency certificate or other similar document received by Agent or a
Lender is such a person.
8.02. Expenses. Borrowers jointly and severally agree to pay on demand,
whether or not any Loan is made or Letter of Credit is issued hereunder, (a) all
reasonable fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent in connection with the syndication of the Loans, the
preparation, negotiation, execution and delivery of, and the exercise of its
duties under, this Agreement and the other Credit Documents, and the
preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder and (b) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and Lenders in the
enforcement or attempted enforcement of any of the Obligations or in preserving
any of Agent's or Lenders' rights and remedies (including, without limitation,
all such fees and expenses incurred in connection with any "workout" or
restructuring affecting the Credit Documents or the Obligations or any
bankruptcy or similar proceeding involving any Borrower or any of FIL's
Subsidiaries). As used herein, the term "reasonable attorneys' fees and
expenses" shall include, without limitation, allocable costs and expenses of
Agent's and Lenders' in-house legal counsel and staff. The obligations of
Borrowers under this Paragraph 8.02 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrowers
jointly and severally agree to protect, indemnify, defend and hold harmless
Agent, Lenders and their Affiliates and their respective directors, officers,
employees, agents and advisors ("Indemnitees") from and against any and all
liabilities, losses, damages or expenses of any kind or nature (including, with
respect to Taxes, only those Taxes that constitute Non-Excluded Taxes) and from
any suits, claims or demands (including in respect of or for reasonable
attorney's fees and other expenses) arising on account of or in connection with
any matter or thing or action or failure to act by Indemnitees,
55
or any of them, arising out of or relating to the Credit Documents or any
transaction contemplated thereby, including without limitation any use by any
Borrower of any proceeds of the Loans or any Letter of Credit, except to the
extent such liability arises from the willful misconduct or gross negligence of
such Indemnitee. Each request for any indemnity payment by an Indemnitee under
this Paragraph 8.03 must be accompanied by a reasonably detailed written
explanation identifying the liability, loss, damage or expense regarding which
the indemnification is being requested and explaining the basis for such
indemnification claim. In addition, if any Lender determines reasonably, in good
faith, and in its sole discretion that it has received a refund of, credit or
benefit of a deduction resulting from, any Non-Excluded Taxes to which it has
been indemnified by Borrowers or with respect to which Borrowers have paid
additional amounts pursuant to this Paragraph 8.03 or Paragraph 2.13, it shall
pay the amount of such refund, credit or benefit of such deduction to Borrowers
(but only to the extent of indemnity payments made, or additional amounts paid,
by Borrowers with respect to the Non-Excluded Taxes giving rise to such refund,
credit or deduction), net of all incurred out-of-pocket expenses of such Lender
and without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund, credit or benefit of such deduction);
provided, however, that Borrowers shall, upon the written request of such
Lender, agree to repay the amount paid over to Borrowers (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
such Lender in the event such Lender is required by force of law to repay such
refund, credit or benefit of such deduction to such Governmental Authority. The
obligations of Borrowers under this Paragraph 8.03 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
8.04. Waivers; Amendments. (a) Any term, covenant, agreement or condition
of this Agreement or any other Credit Document which relates solely to Facility
A may be amended or waived, and any consent under this Agreement or any other
Credit Document which relates solely to Facility A may be given, if such
amendment, waiver or consent is in writing and is signed by Borrowers and the
Required Facility A Lenders (or Agent on behalf of the Required Facility A
Lenders with the written approval of the Required Facility A Lenders); (b) any
term, covenant, agreement or condition of this Agreement or any other Credit
Document which relates solely to Facility B may be amended or waived, and any
consent under this Agreement or any other Credit Document which relates solely
to Facility B may be given, if such amendment, waiver or consent is in writing
and is signed by Borrowers and the Required Facility B Lenders (or Agent on
behalf of the Required Facility B Lenders with the written approval of the
Required Facility B Lenders); and (c) any term, covenant, agreement or condition
of this Agreement or any other Credit Document which does not relate solely to
Facility A or Facility B may be amended or waived, and any consent under this
Agreement or any other Credit Document which does not relate solely to Facility
A or Facility B may be given, if such amendment, waiver or consent is in writing
and is signed by Borrowers and the Required Lenders (or Agent on behalf of the
Required Lenders with the written approval of the Required Lenders); provided,
however that:
(i) Any amendment, waiver or consent which would (A) increase the
Total Facility A Commitment, (B) postpone, delay or extend the Facility A
Maturity Date, (C) reduce the principal of or interest on the Facility A
Loans or any Letter of Credit, the Facility A Commitment Fees or any other
fees or amounts payable for the account of all Facility A Lenders
hereunder or postpone, delay or extend the scheduled date for payment of
any such principal, interest, fees or amounts with respect to Facility A
need not be approved by any Facility B Lender but must be in writing and
signed or approved in writing by all Facility A Lenders;
(ii) Any amendment, waiver or consent which would (A) increase the
Total Facility B Commitment, (B) postpone, delay or extend the Facility B
Maturity Date, (C) reduce the principal of or interest on the Facility B
Loans, the Facility B Commitment Fees or any other fees or amounts payable
for the account of all Facility B Lenders hereunder or postpone, delay or
extend the scheduled date for payment of any such principal, interest,
fees or amounts with respect to Facility B need not be approved by any
Facility A Lender but must be in writing and signed or approved in writing
by all Facility B Lenders;
(iii) Any amendment, waiver or consent which would (A) reduce the
principal of or interest on the Loans or any fees or other amounts payable
for the account of all Lenders hereunder or extend the scheduled date for
payment of any such principal, interest, fees or amounts, (B) reduce any
fees or other amounts payable for the account of all Lenders hereunder or
postpone, delay or extend the scheduled date for payment of any such fees
or amounts, (C) amend this Paragraph 8.04, (D) amend the definition of
56
Currencies or Required Lenders, or (E) release any Guarantor (except for
releases as provided in Paragraph 2.15), must be in writing and signed or
approved in writing by all Lenders;
(iv) Any amendment, waiver or consent which would (A) increase or
decrease the Facility A Commitment of any Facility A Lender (except for a
pro rata decrease in the Facility A Commitments of all Facility A Lenders)
or (B) increase or decrease the Facility B Commitment of any Facility B
Lender (except for a pro rata decrease in the Facility B Commitments of
all Facility B Lenders) must be in writing and signed by such Lender;
(v) Any amendment, waiver or consent which affects the rights or
obligations of the Issuing Bank must be signed by the Issuing Bank; and
(vi) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of
any other right hereunder or thereunder nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any other
right hereunder or thereunder. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit Documents
shall be binding upon and inure to the benefit of Borrowers, Lenders,
Agent, all future holders of the Notes and their respective successors and
permitted assigns, except that any Borrower may not assign or transfer any
of its rights or obligations under any Credit Document without the prior
written consent of Agent and each Lender.
(b) Participations. Any Lender may at any time sell to one or more
banks or other financial institutions ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under
this Agreement and the other Credit Documents. In the event of any such
sale by a Lender of participating interests, such Lender's obligations
under this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain
the holder of its Notes for all purposes under this Agreement and
Borrowers and Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any such sale is effected may
require the selling Lender to obtain the consent of the Participant in
order for such Lender to agree in writing to any amendment, waiver or
consent of a type specified in Subparagraph 8.04(a), Subparagraph 8.04(b),
Subparagraph 8.04(c) or Subparagraph 8.04(d) to the extent applicable but
may not otherwise require the selling Lender to obtain the consent of such
Participant to any other amendment, waiver or consent hereunder. Borrowers
also agree that any Lender which has transferred any participating
interest in its Commitments or Loans shall, notwithstanding any such
transfer, be entitled to the full benefits accorded such Lender under
Paragraph 2.12, Paragraph 2.13, and Paragraph 2.14, as if such Lender had
not made such transfer.
(c) Assignments. Any Lender may, at any time, sell and assign to any
other Lender or any Eligible Assignee (individually, an "Assignee Lender")
all or a portion of its rights and obligations under this Agreement and
the other Credit Documents (such a sale and assignment to be referred to
herein as an "Assignment") pursuant to an assignment and assumption in the
form of Exhibit D (an "Assignment and Assumption"), executed by each
Assignee Lender and such assignor Lender (an "Assignor Lender") and
delivered to Agent for its acceptance and recording in the Register;
provided, however, that:
(i) Without the written consent of Agent, Issuing Bank and, if
no Default has occurred and is continuing, FIL (which consent of
Agent, Issuing Bank and FIL shall not be unreasonably withheld), no
Lender may make any Assignment of its Commitment or Loans to any
57
Assignee Lender which is not, immediately prior to such Assignment,
a Lender hereunder or an Affiliate thereof;
(ii) Without the written consent of Agent, Issuing Bank and,
if no Default has occurred and is continuing, FIL (which consent of
Agent, Issuing Bank and FIL shall not be unreasonably withheld), no
Facility A Lender may make any Assignment of its Facility A
Commitment and Facility A Loans to any Assignee Lender if, after
giving effect to such Assignment, the Facility A Commitment (or,
after the termination of the Facility A Commitments, the Facility A
Loans) of such Lender or such Assignee Lender would be less than Two
Million Five Hundred Thousand Dollars ($2,500,000), except that a
Facility A Lender may make an Assignment which reduces its Facility
A Commitment (or, after the termination of the Facility A
Commitments, its Facility A Loans) to zero without the written
consent of FIL and Agent;
(iii) Without the written consent of Agent and, if no Default
has occurred and is continuing, FIL (which consent of Agent and FIL
shall not be unreasonably withheld), no Facility B Lender may make
any Assignment of its Facility B Commitment and Facility B Loans to
any Assignee Lender if, after giving effect to such Assignment, the
Facility B Commitment (or, after the termination of the Facility B
Commitments, the Facility B Loans) of such Lender or such Assignee
Lender would be less than Two Million Five Hundred Thousand Dollars
($2,500,000), except that a Facility B Lender may make an Assignment
which reduces its Facility B Commitment (or, after the termination
of the Facility B Commitments, its Facility B Loans) to zero without
the written consent of FIL and Agent;
(iv) Without the written consent of Agent, Issuing Bank and,
if no Default has occurred and is continuing, FIL (which consent of
Agent and FIL shall not be unreasonably withheld), no Facility A
Lender may make any Assignment of its Facility A Commitment and
Facility A Loans which does not assign and delegate an equal pro
rata interest in such Facility A Lender's Facility A Commitment,
Facility A Loans and all other rights, duties and obligations of
such Facility A Lender under this Agreement and the other Credit
Documents relating to Facility A;
(v) Without the written consent of Agent and, if no Default
has occurred and is continuing, FIL (which consent of Agent and FIL
shall not be unreasonably withheld), no Facility B Lender may make
any Assignment of its Facility B Commitment and Facility B Loans
which does not assign and delegate to such Assignee Lender an equal
pro rata interest in such Facility B Lender's Facility B Commitment,
Facility B Loans and all other rights, duties and obligations of
such Facility B Lender under this Agreement and the other Credit
Documents relating to Facility B;
(vi) Without the written consent of Agent and, if no Default
has occurred and is continuing, FIL, no Lender may make any
Assignment of its Facility A Commitment and Facility A Loans under
this Agreement to any Assignee Lender unless such Lender
concurrently assigns and delegates to such Assignee Lender an equal
pro rata interest in its "Facility A Commitment" and "Facility A
Loans" under the FIUI Credit Agreement; and
(vii) Without the written consent of Agent and, if no Default
has occurred and is continuing, FIL, no Lender may make any
Assignment of its Facility B Commitment and Facility B Loans under
this Agreement to any Assignee Lender unless such Lender
concurrently assigns and delegates an equal pro rata interest in its
"Facility B Commitment" and "Facility B Loans" under the FIUI Credit
Agreement.
Upon such execution, delivery, acceptance and recording of each Assignment
and Assumption, from and after the Assignment Effective Date determined
pursuant to such Assignment and Assumption, (A) each Assignee Lender
thereunder shall be a Lender hereunder with Commitments or Loans as set
forth on Attachment 1 to such Assignment and Assumption (under the caption
"Commitments or Loans After Assignment") and shall have the rights, duties
and obligations of such a Lender under this Agreement and
58
the other Credit Documents, and (B) the Assignor Lender thereunder shall
be a Lender with Commitments or Loans as set forth on Attachment 1 to such
Assignment and Assumption (under the caption "Commitments or Loans After
Assignment"), or, if the Commitments or Loans of the Assignor Lender have
been reduced to zero, the Assignor Lender shall cease to be a Lender and
to have any obligation to make any Loan; provided, however, that any such
Assignor Lender which ceases to be a Lender shall continue to be entitled
to the benefits of any provision of this Agreement which by its terms
survives the termination of this Agreement. Each Assignment and Assumption
shall be deemed to amend Schedule I to the extent, and only to the extent,
necessary to reflect the addition of each Assignee Lender, the deletion of
each Assignor Lender which reduces its Commitments or Loans to zero, and
the resulting adjustment of Commitments or Loans arising from the purchase
by each Assignee Lender of all or a portion of the rights and obligations
of an Assignor Lender under this Agreement and the other Credit Documents.
On or prior to the Assignment Effective Date determined pursuant to each
Assignment and Assumption, Borrowers, at their own expense, shall, if
requested by Assignee Lenders, execute and deliver to Agent, in exchange
for the surrendered Notes, if any, of the Assignor Lender thereunder, new
Notes to the order of each Assignee Lender thereunder and, if the Assignor
Lender is continuing as a Lender hereunder, new Notes to the order of the
Assignor Lender. The Notes surrendered by the Assignor Lender shall be
returned by Agent to Borrowers marked "replaced". Each Assignee Lender
which becomes a Lender and was not previously such a Lender hereunder
shall, prior to becoming such a Lender, deliver such certificates and
other evidence as is required by Subparagraph 2.13(b).
(d) Register. Agent shall maintain at its address referred to in
Paragraph 8.01 a copy of each Assignment and Assumption delivered to it
and a register (the "Register") for the recordation of the names and
addresses of Lenders and the Commitments or Loans of each Lender from time
to time. The entries in the Register shall be conclusive in the absence of
manifest error, and Borrowers, Agent and Lenders may treat each Person
whose name is recorded in the Register as the owner of the Commitments or
Loans recorded therein for all purposes of this Agreement. The Register
shall be available for inspection by any Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment and Assumption
executed by an Assignor Lender and an Assignee Lender (and, to the extent
required by Subparagraph 8.05(c), by Borrowers, Agent and Issuing Bank)
together with payment to Agent by Assignor Lender of a registration and
processing fee of $3,000, Agent shall (i) promptly accept such Assignment
and Assumption and (ii) on the Effective Date determined pursuant thereto
record the information contained therein in the Register and give notice
of such acceptance and recordation to Lenders and Borrowers. Agent may,
from time to time at its election, prepare and deliver to Lenders and
Borrowers a revised Schedule I reflecting the names, addresses and
respective Commitments or Loans of all Lenders then parties hereto.
(f) Confidentiality. Subject to Paragraph 8.12, Agent and Lenders
may disclose the Credit Documents and any financial or other information
relating to Borrowers or any Subsidiary to each other or to any potential
Participant or Assignee Lender.
(g) Pledges to Federal Reserve Banks. Notwithstanding any other
provision of this Agreement, any Lender may at any time assign all or a
portion of its rights under this Agreement and the other Credit Documents
to a Federal Reserve Bank. No such assignment shall relieve the assigning
Lender from its obligations under this Agreement and the other Credit
Documents.
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with prior notice to
Agent but without prior notice to or consent of Borrowers, any such notice
and consent being expressly waived by Borrowers to the extent permitted by
applicable law, upon the occurrence and during the continuance of an Event
of Default, to set-off and apply against the Obligations of any Borrower
any amount owing from such Lender to such Borrower. The aforesaid right of
set-off may be exercised by such Lender against a Borrower or against any
trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of such
Borrower or against anyone else claiming through or against such Borrower
or such trustee in
59
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off may not have been exercised by such
Lender at any prior time. Each Lender agrees promptly to notify the
applicable Borrower after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
(b) Security Interest. As security for the Obligations, each
Borrower hereby grants to Agent and each Lender, for the benefit of all
Lenders, a continuing security interest in any and all deposit accounts or
moneys of such Borrower now or hereafter maintained with such Lender. Each
Lender shall have all of the rights of a secured party with respect to
such security interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWERS, LENDERS AND AGENT, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
8.11. Borrowers' Liabilities. All Borrowers are jointly and severally
liable for the payment and performance of all other Obligations under this
Agreement and the other Credit Documents, and Borrowers also are liable for the
payment and performance of all Obligations under this Agreement and the other
Credit Documents as provided in the Guaranty.
8.12. Confidentiality. Neither any Lender nor Agent shall disclose to any
Person any information with respect to Borrowers, any Guarantor or any of FIL's
Subsidiaries which is furnished pursuant to this Agreement or under the other
Credit Documents, except that any Lender or Agent may disclose any such
information (a) to its own directors, officers, employees, auditors, counsel and
other advisors and to its Affiliates; (b) to any other Lender or Agent; (c)
which is otherwise available to the public; (d) if required or appropriate in
any report, statement or testimony submitted to any Governmental Authority
having or claiming to have jurisdiction over such Lender or Agent; (e) if
required in response to any summons or subpoena; (f) in connection with any
enforcement by Lenders and Agent of their rights under this Agreement or the
other Credit Documents or any litigation among the parties relating to the
Credit Documents or the transactions contemplated thereby; (g) to comply with
any Requirement of Law applicable to such Lender or Agent; (h) to any Assignee
Lender or Participant or any prospective Assignee Lender or Participant,
provided that such Assignee Lender or Participant or prospective Assignee Lender
or Participant agrees to be bound by this Paragraph 8.12; or (i) otherwise with
the prior consent of the applicable Borrower; provided, however, that (i) any
Lender or Agent served with any summons or subpoena demanding the disclosure of
any such information shall use reasonable efforts to notify Borrowers promptly
of such summons or subpoena if not prohibited by any Requirement of Law and, if
requested by Borrowers and not disadvantageous to such Lender or Agent, to
cooperate with Borrowers in obtaining a protective order restricting such
disclosure, and (ii) any disclosure made in violation of this Agreement shall
not affect the obligations of Borrowers or any Guarantor under this Agreement
and the other Credit Documents.
8.13. Consent to Jurisdiction. Each Borrower irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of California and the
courts of the United States of America located in the Northern District of
California and agrees that any legal action, suit or proceeding arising out of
or relating to this Agreement or any of
60
the other Credit Documents may be brought against such party in any such courts.
Final judgment against any Borrower in any such action, suit or proceeding shall
be conclusive and may be enforced in any other jurisdiction by suit on the
judgment, a certified or exemplified copy of which shall be conclusive evidence
of the judgment, or in any other manner provided by law. Nothing in this
Subparagraph 8.13 shall affect the right of Agent or any Lender to commence
legal proceedings or otherwise sue any Borrower in any other appropriate
jurisdiction, or concurrently in more than one jurisdiction, or to serve
process, pleadings and other papers upon any Borrower in any manner authorized
by the laws of any such jurisdiction. Each Borrower agrees that process served
either personally or by registered mail shall, to the extent permitted by law,
constitute adequate service of process in any such suit. Without limiting the
foregoing, each Borrower hereby appoints, in the case of any such action or
proceeding brought in the courts of or in the State of California, CT
Corporation, with offices on the date hereof at 818 West Seventh Street, Los
Angeles, California 90017, to receive for it and on its behalf, service of
process in the State of California with respect thereto, provided each Borrower
may appoint any other person, reasonably acceptable to Agent, with offices in
the State of California to replace such agent for service of process upon
delivery to Agent of a reasonably acceptable agreement of such new agent
agreeing so to act. Each Borrower irrevocably waives to the fullest extent
permitted by applicable law (a) any objection which it may have now or in the
future to the laying of the venue of any such action, suit or proceeding in any
court referred to in the first sentence above; (b) any claim that any such
action, suit or proceeding has been brought in an inconvenient forum; (c) its
right of removal of any matter commenced by any other party in the courts of the
State of California to any court of the United States of America; (d) any
immunity which it or its assets may have in respect of its obligations under
this Agreement or any other Credit Document from any suit, execution, attachment
(whether provisional or final, in aid of execution, before judgment or
otherwise) or other legal process; and (e) any right it may have to require the
moving party in any suit, action or proceeding brought in any of the courts
referred to above arising out of or in connection with this Agreement or any
other Credit Document to post security for the costs of such Borrower or to post
a bond or to take similar action.
8.14. Usury. In no event shall any provision of this Agreement or any
other Credit Document ever obligate any Borrower to pay or allow any Lender to
collect interest on any Loan or any other Obligation of a Borrower hereunder at
a rate greater than the maximum non-usurious rate permitted by applicable law
(herein referred to as the "highest lawful rate"), or obligate any Borrower to
pay any taxes, assessments, charges, insurance premiums or other amounts to the
extent that such payments, when added to the interest payable on the Loans or
any other Obligations, would be held to constitute the payment by a Borrower of
interest at a rate greater than the highest lawful rate. This provision shall
control over any provision to the contrary. Without limiting the generality of
the foregoing, in the event the maturity of all or any part of the principal
amount of the Obligations of a Borrower shall be accelerated for any reason,
then such principal amount so accelerated shall be credited with any interest
theretofore paid thereon in advance and remaining unearned at the time of such
acceleration. If, pursuant to the terms of this Agreement, any funds are applied
to the payment of any part of the principal amount of the Obligations of a
Borrower prior to the maturity thereof, then (a) any interest which would
otherwise thereafter accrue on the principal amount so paid by such application
shall be canceled, and (b) the Obligations of such Borrower remaining unpaid
after such application shall be credited with the amount of all interest, if
any, theretofore collected on the principal amount so paid by such application
and remaining unearned at the date of said application; and if the funds so
applied shall be sufficient to pay in full all the Obligations of such Borrower,
then the Lenders shall refund to such Borrower all interest theretofore paid
thereon in advance and remaining unearned at the time of such acceleration.
Regardless of any other provision in this Agreement or any other Credit
Document, no Borrower shall be required to pay any unearned interest on any
Obligations or any portion thereof, or be required to pay interest thereon at a
rate in excess of the highest lawful rate construed by courts having competent
jurisdiction thereof.
8.15. Hong Kong Branch; Full Recourse Obligations. All Loans to FIL shall
be made to FIL at its Hong Kong branch located at Room 908 Dominion Center,
43-59 Queens Road East, Wanchai, Hong Kong and all payments of principal and
interest by FIL will be made through its Hong Kong branch, provided, however,
that notwithstanding the foregoing, FIL acknowledges that the Obligations
hereunder are full recourse to Flextronics International Ltd., a Singapore
corporation, and are in no manner limited to any extent to any branch thereof
and shall in no manner impair the Agent's or any Lender's ability to collect any
Obligation from FIL.
[The first signature page follows.]
61
IN WITNESS WHEREOF, Borrowers, Agent, Co-Arrangers, Co-Syndication Agents,
Senior Managing Agent, Managing Agents and Lenders have caused this Agreement to
be executed as of the day and year first above written.
BORROWER: FLEXTRONICS INTERNATIONAL LTD.
By: _______________________________________
Name: _______________________________
Title:_______________________________
AGENT: ABN AMRO BANK N.V.,
As Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-1
CO-ARRANGERS: ABN AMRO BANK N.V.,
As a Co-Arranger
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
FLEET NATIONAL BANK,
As a Co-Arranger
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-2
CO-SYNDICATION AGENTS: DEUTSCHE BANC ALEX. BROWN INC.,
As a Co-Syndication Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
BANK OF AMERICA, N.A.,
As a Co-Syndication Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
CITICORP USA, INC.,
As a Co-Syndication Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
FLEET NATIONAL BANK,
As a Co-Syndication Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-3
SENIOR MANAGING AGENT: THE BANK OF NOVA SCOTIA,
As Senior Managing Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
MANAGING AGENTS: BNP PARIBAS,
As a Managing Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
CREDIT SUISSE FIRST BOSTON,
As a Managing Agent
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-4
ISSUING BANK: FLEET NATIONAL BANK,
As Issuing Bank
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-5
LENDERS: ABN AMRO BANK N.V.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
AIB INTERNATIONAL FINANCE,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
BANKERS TRUST COMPANY,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
BANK OF AMERICA, N.A.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-6
BEAR STEARNS CORPORATE LENDING INC.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
BNP PARIBAS,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
CITICORP USA, INC.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
COMERICA BANK,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-7
CREDIT SUISSE FIRST BOSTON,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
DANSKE BANK A/S,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
FLEET NATIONAL BANK,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
FUJI BANK LIMITED (MIZUHO FINANCIAL GROUP),
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-8
GOLDMAN SACHS CREDIT PARTNERS L.P.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
LEHMAN COMMERCIAL PAPER INC.,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-9
THE BANK OF NOVA SCOTIA,
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
UNION BANK OF CALIFORNIA, N.A.
As a Lender
By: _______________________________________
Name: _______________________________
Title:_______________________________
By: _______________________________________
Name: _______________________________
Title:_______________________________
S-10
SCHEDULE I
LENDER'S COMMITMENTS
FACILITY A FACILITY B
LENDER COMMITMENT COMMITMENT TOTAL
- ------ ---------- ---------- -----
ABN AMRO Bank N.V. $ 30,416,666.67 $ 15,208,333.33 $ 45,625,000.00
AIB International Finance $ 5,000,000.00 $ 2,500,000.00 $ 7,500,000.00
Bankers Trust Company $ 28,000,000.00 $ 14,000,000.00 $ 42,000,000.00
Bank of America, N.A. $ 28,000,000.00 $ 14,000,000.00 $ 42,000,000.00
Bear Stearns Corporate Lending Inc. $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
BNP Paribas $ 13,500,000.00 $ 6,750,000.00 $ 20,250,000.00
Citicorp USA, Inc. $ 28,000,000.00 $ 14,000,000.00 $ 42,000,000.00
Comerica Bank $ 3,333,333.33 $ 1,666,666.67 $ 5,000,000.00
Credit Suisse First Boston $ 16,666,666.67 $ 8,333,333.33 $ 25,000,000.00
Danske Bank A/S $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
Fleet National Bank $ 30,416,666.67 $ 15,208,333.33 $ 45,625,000.00
Fuji Bank, Limited (Mizuho $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
Financial Group)
Goldman Sachs Credit Partners L.P. $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
Lehman Commercial Paper Inc. $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
Skandinaviska Enskilda Banken AB (publ) $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
----------------- -----------------
I-1
The Bank of Nova Scotia $ 25,000,000.00 $ 12,500,000.00 $ 37,500,000.00
Union Bank of California, N.A. $ 8,333,333.33 $ 4,166,666.67 $ 12,500,000.00
------------------ ------------------ ------------------
TOTAL $ 266,666,666.67 $ 133,333,333.33 $ 400,000,000
I-2
PART B - ADDRESSES FOR NOTICES, ETC.
ABN AMRO BANK N.V.
Domestic Lending Office:
ABN AMRO Bank N.V.
208 South LaSalle Street Suite 1500
Chicago, IL 60604
Eurodollar Lending Office:
ABN AMRO Bank N.V.
208 South LaSalle Street Suite 1500
Chicago, IL 60604
Address for Notices:
ABN AMRO Bank N.V.
1 California Street, 2nd Floor
San Francisco, CA 94111
Attn: Peter Hsu
Tel. No: (415) 983-2964
Fax No: (415) 983-2960
ABN AMRO Bank N.V.
Agency Services
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Joycelyn G. Gay
Tel. No: (312) 992-5094
Fax. No: (312) 601-3610
With a copy of all documentation to:
ABN AMRO Bank N.V.
208 South LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Nick Blea
Tel. No: (312) 992-5176
Fax. No: (312) 992-5111
Wiring Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA: 026009580
F/O ABN AMRO Bank , N.V., Chicago Branch CPU
Account No.: 650001178941
Reference: Agency Services 00433489 Flextronics Intl. Limited
I-3
AIB INTERNATIONAL FINANCE
Domestic and Eurodollar Lending Office:
AIB International Finance
International Corporate Banking
AIB Bankcentre
Ballsbridge, Dublin 4
Address for Notices of Borrowing and Notices of Interest Period Selection:
AIB International Finance
Business Support, AIB Bankcentre
Ballsbridge, Dublin 4
Attn: Ian Finnegan
Tel. No.: (353) 1-6412297
Fax No.: (353) 1-6603529
Address for all other notices: (Credit Matters)
AIB International Finance
AIB International Centre
IFSC, Dublin 1
Attn: Eimear Creaven/Patrick Lynam
Tel. No.: (353) 1-6412279
Fax No.: (353) 1-6603529
Wiring Instructions:
Chase Manhattan Bank, New York
ABA No.: 021000021
Swift: CHASUS33
Account No.: 001-1-907599
Account Name: AIB Dublin
Reference: Flextronics International Ltd.
Attn: Ian Finnegan
I-4
BANKERS TRUST COMPANY
Domestic and Eurodollar Lending Office:
Bankers Trust Company
31 W. 52nd Street
New York, NY 10019
Address for Notices of Borrowing and Notices of Interest Period Selection:
Bankers Trust Company
90 Hudson Street, 5th Floor
Jersey City, NJ 07302
Attn: Bilal Aman
Tel. No.: (201) 593-2173
Fax No.: (201) 593-2310
Address for all other notices: (Credit Matters)
Bankers Trust Company
31 W. 52nd Street
New York, NY 10019
Attn: Alex Bici
Tel. No.: (646) 324-2199
Fax No.: (646) 324-7456
Wiring Instructions:
Bankers Trust Company
New York, NY
RT/ABA No.: 021001033
For further credit to: Deutsche Bank, AG New York
Account No.: 99401268
Reference: Flextronics International Ltd.
Attn: Bilal Aman
I-5
BANK OF AMERICA, N.A.
Domestic and Eurodollar Lending Office:
Bank of America, N.A.
1850 Gateway Blvd.
Concord, CA 94520
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
Bank of America, N.A.
Mail Code CA4-706-05-11
1850 Gateway Blvd.
Concord, CA 94520
Attn: Michelle L. Widmer
Tel. No.: (925) 675-8204
Fax No.: (888) 969-9280
Address for all other notices: (Credit Matters)
Bank of America, N.A.
Portfolio Management - Technology 3697
555 California Street, 12th Floor
Mail Code CA5-705-12-08
San Francisco, CA 94104
Attn: James P. Johnson, Managing Director
Tel. No.: (415) 622-6177
Fax No.: (415) 622-4057
Wiring Instructions:
Bank of America, N.A., Dallas Texas
ABA No.: 111000012
For further credit to Account No.: 3750836479
Reference: Flextronics International Ltd.
Attn: SBW004 Credit Services - Michelle L. Widmer
I-6
BEAR STEARNS CORPORATE LENDING INC
Domestic and Eurodollar Lending Office:
Bear Stearns & Co. Inc.
245 Park Avenue, 4th Floor
New York, NY 10167
Address for Notices of Borrowing and Notices of Interest Period Selection:
Bear Stearns & Co. Inc.
245 Park Avenue, 4th Floor
New York, NY 10167
Attn: Ms. Gloria Dombrowski
Tel. No.: (212) 272-6043
Fax No.: (212) 272-4844
Address for all other notices: (Credit Matters)
Bear Stearns & Co. Inc.
245 Park Avenue, 4th Floor
New York, NY 10167
Attn: Victor F. Bulzacchelli
Tel. No.: (212) 272-3042
Fax No.: (212) 272-9184
Copy of documents to:
Bear Stearns & Co. Inc.
245 Park Avenue, 4th Floor
New York, NY 10167
Attn: Kevin Cullen
Tel. No.: (212) 272-5742
Fax No.: (212) 272-9184
Wiring Instructions:
Citibank, N.A.
ABA No.: 0210-00089
Account No.: 0925-3186
Favor of: Bear Stearns Securities, Corp.
Further Credit to Account No.: 096-00220-28
Reference: Flextronics International Ltd.
Attn: Steve Resnick
I-7
BNP PARIBAS
Domestic and Eurodollar Lending Office:
BNP Paribas
180 Montgomery Street
San Francisco, CA 94104
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
BNP Paribas
180 Montgomery Street
San Francisco, CA 94104
Attn: Don Hart, Vice President - Treasury
Tel. No.: (415) 956-2511
Fax No.: (415) 989-9041
Swift: BNPAUS6S
Address for all other notices:
BNP Paribas, Los Angeles Branch
725 South Figueroa Street, Suite 2090
Los Angeles, CA 90017
Attn: Robert Mimaki, Vice President - Corporate Banking High Technology
Group
Tel. No.: (213) 688-6419
Fax No.: (213) 488-9602
With a copy to:
BNP Paribas
180 Montgomery Street
San Francisco, CA 94104
Attn: Nancy Mak, Vice President - Loan Operations
Tel. No.: (415) 956-0707
Fax No.: (415) 956-4230
Telex: 278900 BNPS UR
Wiring Instructions:
The Federal Reserve Bank of New York
ABA No.: 026007689 BNP Paribas
/BNF/ BNP PARIBAS SAN FRANCISCO
/ACA/ 14334000176
For further credit to BNP Paribas Los Angeles
/RFB/ Principal Payment (or Commitment Fee, Interest Payment, etc.)
/OBI/ By order: Flextronics International Ltd.
Attn: Jenny Seow
I-8
CITICORP USA, INC.
Domestic and Eurodollar Lending Office:
Citicorp USA, Inc.
One Sansome Street, 25th Floor
San Francisco, CA 94104
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
Citicorp USA, Inc.
2 Penn's Way, Suite 200
New Castle, Delaware 19720
Attn: Karen Riley
Tel. No.: (302) 894-6084
Fax No.: (302) 894-6120
Address for all other notices (Credit Matters):
Citicorp USA, Inc.
One Sansome Street, 25th Floor
San Francisco, CA 94104
Attn: Avram Spiegel
Tel. No.: (415) 627-6358
Fax No.: (415) 632-0307
Wiring Instructions:
Citibank N.A.
New York, New York
ABA No.: 021-000-089
For further credit to: Technology
Account No.: 40580062
Reference: Flextronics International Ltd.
Attn: Karen Riley
I-9
COMERICA BANK
Domestic and Eurodollar Lending Office:
Comerica Bank
One Detroit Center
Detroit, Michigan
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
Comerica Bank
International Finance Department
333 W. Santa Clara Street
San Jose, CA 95113
Attn: Christina Hwang
Tel. No.: (408) 556-5221
Fax No.: (408) 556-5232
Address for all other notices:
Comerica Bank
International Finance Department
333 W. Santa Clara Street
San Jose, CA 95113
Attn: Devin Scattini
Tel. No.: (408) 556-5120
Fax No.: (408) 556-5232
Wiring Instructions:
Comerica Bank
One Detroit Center
500 Woodward Avenue
Detroit, Michigan
RT/ABA No.: 072000096
Account number: 02-21585-90010
Reference: Flextronics International Limited
Attn: Ms. Nicole Maguire
I-10
CREDIT SUISSE FIRST BOSTON
Domestic and Eurodollar Lending Office:
Credit Suisse First Boston, Cayman Islands Branch
Eleven Madison Avenue
New York, NY 10010
Address for Notices of Borrowing and Notices of Interest Period Selection:
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Attn: Ed Markowski / Nirmala Durgana
Tel. No.: (212) 538-3380 / 3525
Fax No.: (212) 538-3477 / 561-8926
Address for all other notices: (Credit Matters)
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Attn: Robert Hetu / Mark Heron
Tel. No.: (212) 325-4542 / 9933
Fax No.: (212) 325-8309 / 8319
Wiring Instructions:
The Bank of New York, New York, NY
ABA No.: 021000018
Account No.: 890-0329-262
Account Name: CSFB NY Loan Clearing
Reference: Flextronics International Ltd.
I-11
DANSKE BANK A/S
Domestic and Eurodollar Lending Office:
Danske Bank A/S, Cayman Islands Branch
299 Park Avenue, 14th Floor
New York, NY 10171-1499
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
Danske Bank A/S
299 Park Avenue, 14th Floor
New York, NY 10171-1499
Attn: Loan Administration
Tel. No.: (212) 984-8462
Fax No.: (212) 984-9570
Address for all business/credit matters:
Danske Bank A/S
299 Park Avenue, 14th Floor
New York, NY 10171-1499
Attn: Michael K. Crawford - Vice President
Tel. No.: (212) 984-8455
Fax No.: (212) 984-9567
Address for documentation matters:
Danske Bank A/S
299 Park Avenue, 14th Floor
New York, NY 10171-1499
Attn: George B. Wendell - Vice President
Tel. No.: (212) 984-8431
Fax No.: (212) 984-9566
Wiring Instructions:
Danske Bank A/S
New York, NY 10171
ABA No.: 026003719 (Danske Bank, New York Branch)
For: Loan Administration
Reference: Flextronics International Ltd.
I-12
FLEET NATIONAL BANK
Domestic and Eurodollar Lending Office:
Fleet National Bank
100 Federal Street
Boston, MA 02110
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
Fleet National Bank
100 Federal Street, 9th Floor
Boston, MA 02110
Attn: Angela Moore, Loan Administrator
Tel. No.: (617) 434-5059
Fax No.: (617) 434-1709
Address for all other notices:
Fleet National Bank
435 Tasso Street, Suite 250
Palo Alto, CA 94301
Attn: Lee A. Merkle-Raymond or Gregory Roux
Tel. No.: (650) 470-4130/4180
Fax No.: (650) 853-1425
Wiring Instructions:
Fleet National Bank
Boston, MA
ABA No.: 011-000-138
For further credit to: Credit Services
Account No.: 1510351-66156
Reference: Flextronics International Ltd.
I-13
FUJI BANK, LIMITED (MIZUHO FINANCIAL GROUP)
Domestic and Eurodollar Lending Office:
The Fuji Bank, Limited
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Address for Notices of Borrowing and Notices of Interest Period Selection:
The Fuji Bank, Limited
95 Christopher Columbus Drive, 16th Floor
Jersey City, NJ 07302
Attn: Teri Smith
Tel. No.: (201) 432-1980
Fax No.: (201) 432-6805
Address for all other notices: (Credit Matters)
The Fuji Bank, Limited
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attn: Mano Mylvaganam, Vice President
Tel. No.: (213) 253-4130
Fax No.: (213) 253-4175
Wiring Instructions:
The Fuji Bank, Limited, New York, NY
ABA No.: 026009700
For further credit to: Loan Admin Dept - LA
Account No.: 5204-001-515066
Reference: Flextronics International Ltd.
Attn: Teri Smith
I-14
GOLDMAN SACHS CREDIT PARTNERS, L.P.
Domestic and Eurodollar Lending Office:
Goldman Sachs Credit Partners L.P.
8 Broad Street - 6th Floor
New York, NY 10004
Address for Notices of Borrowing and Notices of Interest Period Selection:
Goldman Sachs Credit Partners L.P.
8 Broad Street - 6th Floor
New York, NY 10004
Attn: Sandra Stulberger / Erin Smith or Asa Klasson
Tel. No.: (212) 902-5977 / 357-9345 or 902-4694
Fax No.: (212) 357-4597 / 357-4597
Address for all other notices: (Credit Matters)
c/o Goldman Sachs & Co.
8 Broad Street - 6th Floor
New York, NY 10004
Attn: Barbara Aaron / Sally Wenden
Tel. No.: (212) 357-3111 / 9735
Fax No.: (212) 428-1243
Wiring Instructions:
Citibank, N.A.
ABA No.: 021000089
Account No.: 40717188
Account Name: Goldman Sachs Credit Partners
Reference: Flextronics International Ltd.
Attn: Bank Loan Operations - Sandra Stulberger
I-15
LEHMAN COMMERCIAL PAPER INC.
Domestic and Eurodollar Lending Office:
(Through March 25, 2002)
Lehman Commercial Paper Inc.
101 Hudson Street
Jersey City, NJ 07302
(Thereafter)
Lehman Commercial Paper Inc.
745 7th Street, 16th Floor
New York, NY 10019
Address for Notices of Borrowing and Notices of Interest Period Selection:
(Through March 25, 2002)
Lehman Commercial Paper Inc.
101 Hudson Street
Jersey City, NJ 07302
Attn: Nancy Wong
Tel. No.: (201) 524-2248
Fax No.: (201) 524-4298
(Thereafter)
Lehman Commercial Paper Inc.
745 7th Street, 16th Floor
New York, NY 10019
Attn: TBA
Tel. No.: TBA
Fax No.: TBA
Address for all other notices: (Credit Matters)
(Through March, 2002)
c/o Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attn: Andrew Keith, Lehman Loan Portfolio Group Room #2533
Tel. No.: (212) 455-7569
Fax No.: (646) 758-4656
(Thereafter)
Lehman Commercial Paper Inc.
745 7th Street, 23rd Floor
New York, NY 10019
Attn: TBA
Tel. No.: TBA
Fax No.: TBA
I-16
Wiring Instructions:
Citibank, N.A., New York, NY
ABA No.: 021000089
Account No.: 30434133
Account Name: LCPI Bank Loans
Reference: Flextronics International Ltd.
I-17
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Domestic and Eurodollar Lending Office:
Skandinaviska Enskilda Banken AB (publ)
Kungstradgardsgatan 8
106 40 Stockholm, Sweden
Address for Notices of Borrowing and Notices of Interest Period Selection:
Skandinaviska Enskilda Banken AB (publ)
Karlavagen 108
106 40 Stockholm, Sweden
Attn: Christine Pearson / Peter Bergengren
Tel. No.: 46 8 7638642 / 46 8 7638586
Fax No.: 46 8 6110384
Address for all other notices: (Credit Matters)
Skandinaviska Enskilda Banken AB (publ)
2 Cannon Street
London EC4M 6XX, United Kingdom
Attn: Johan Sonander, Debt Capital Markets
Tel. No.: 44 20 7246 4177
Fax No.: 44 20 7236 4178
With a copy to:
Skandinaviska Enskilda Banken AB (publ)
Ostergatan 39
205 20 Malmo, Sweden
Attn: Max Lundberg, SEB Client Relationship Management
Tel. No.: (46) 40-6676088
Fax No.: (46) 40-305-480
Wiring Instructions:
Bank of New York, New York, NY
ABA No.: 021000018
Account No.: 890 0443871
Swift Code: IRVTUS3N
Reference: Flextronics International Ltd.
I-18
THE BANK OF NOVA SCOTIA
Domestic and Eurodollar Lending Office:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, N.E., Suite 2700
Atlanta, GA 30308
Address for Notices of Borrowing, Notices of Interest Period Selection and
Notices of Term Loan Conversion:
The Bank of Nova Scotia
Atlanta Agency
600 Peachtree Street, N.E., Suite 2700
Atlanta, GA 30308
Attn: Lily Hsie
Tel. No.: (404) 877-1523
Fax No.: (404) 888-8998
Address for all other notices:
The Bank of Nova Scotia
San Francisco Agency
580 California Street, Suite 2100
San Francisco, CA 94104
Attn: Christopher Osborn
Tel. No.: (415) 986-1100
Fax No.: (415) 397-0791
Wiring Instructions:
The Federal Reserve Bank of New York
New York, New York
ABA No.: 026-002-532
Account Name: The Bank of Nova Scotia, 1 Liberty Plaza, New York, New
York 10006
For further account of: BNS San Francisco Agency Loan Servicing Account
Account No.: 0610135
Reference: Flextronics International Ltd.
I-19
UNION BANK OF CALIFORNIA, N.A.
Domestic and Eurodollar Lending Office:
Union Bank of California, N.A.
99 Almaden Boulevard, Suite 200
San Jose, CA 95113
Address for Notices of Borrowing and Notices of Interest Period Selection:
Union Bank of California, N.A.
601 Potrero Grande Drive
Monterey Park, CA 91754
Attn: Shirley Davis, Commercial Loan Service Officer
Tel. No.: (323) 7202870
Fax No.: (323) 724-6198
Address for all other notices: (Credit Matters)
Union Bank of California, N.A.
99 Almaden Boulevard, Suite 200
San Jose, CA 95113
Attn: Sarabelle Hitchner, Vice President
Tel. No.: (408) 279-7208
Fax No.: (408) 280-7163
Wiring Instructions:
Union Bank of California, N.A.
ABA No.: 122000496
Account No.: Wire Clearing Account 77070196431
Reference: Flextronics International Ltd.
Attn: Commercial Loan Operations
I-20
SCHEDULE II
PRICING GRID
FACILITY A
APPLICABLE
MARGIN APPLICABLE
FOR MARGIN
LIBOR RATE FOR
BORROWINGS LIBOR RATE
AND LC BORROWINGS
USAGE FEE AND LC
WHEN USAGE FEE
COMBINED WHEN
APPLICABLE TOTAL COMBINED
FIL'S MARGIN COMMITMENT TOTAL
SENIOR FOR USAGE IS COMMITMENT COMMITMENT
DEBT PRICING BASE RATE [LESS THAN OR USAGE FEE
RATING LEVEL BORROWINGS EQUAL TO] 33% IS > 33% PERCENTAGE
- ----------------------------------------------------------------------------------------------
[GREATER THAN OR
EQUAL TO] BBB / Baa2 1 0% 0.875% 1.000% 0.175%
BBB- / Baa3 2 0% 1.125% 1.250% 0.225%
BB+ / Ba1 3 0% 1.250% 1.500% 0.250%
BB / Ba2 4 0% 1.500% 1.750% 0.400%
[LESS THAN OR
EQUAL TO] BB- / Ba3 5 0% 1.750% 2.250% 0.500%
FACILITY B
APPLICABLE
MARGIN APPLICABLE
FOR MARGIN
LIBOR RATE FOR
BORROWINGS LIBOR RATE
WHEN BORROWINGS
COMBINED WHEN
APPLICABLE TOTAL COMBINED
FIL'S MARGIN COMMITMENT TOTAL
SENIOR FOR USAGE IS COMMITMENT COMMITMENT
DEBT PRICING BASE RATE [LESS THAN OR USAGE FEE
RATING LEVEL BORROWINGS EQUAL TO] 33% IS > 33% PERCENTAGE
- ---------------------------------------------------------------------------------------------
[GREATER THAN OR
EQUAL TO] BBB / Baa2 1 0% 0.875% 1.000% 0.125%
BBB- / Baa3 2 0% 1.125% 1.250% 0.175%
BB+ / Ba1 3 0% 1.250% 1.500% 0.200%
BB / Ba2 4 0% 1.500% 1.750% 0.250%
[LESS THAN OR
EQUAL TO] BB- / Ba3 5 0% 1.750% 2.250% 0.375%
II-1
EXPLANATION
The Applicable Margin with respect to the LIBOR Rate Loans, the LC Usage Fee (as
applicable) and the Commitment Fee Percentage will be determined based on FIL's
Senior Debt Rating assigned by S&P and Moody's as follows:
1. In the event FIL does not have a Senior Debt Rating from either S&P or
Moody's, then such rating agency will be deemed for purposes hereof to have
established a Senior Debt Rating for FIL below BB- and Ba3, respectively.
2. If the Senior Debt Rating established or deemed to have been established by
S&P and Moody's are split within different categories above, then the lower
rating shall apply (with Pricing Level 3 being lower than Pricing Level 2).
3. Any change in FIL's Senior Debt Rating shall be effective on the date such
change is first announced by the rating agency making such change.
In addition, the Applicable Margin with respect to LIBOR Rate Loans and the LC
Usage Fee (as applicable) will change based upon the Total Combined Commitment
usage. For example, if the Unused Total Combined Commitment is $450,000,000
(meaning that the Total Combined Commitment usage is $300,000,000 or 40%), the
two columns above applicable only when Total Combined Commitment usage is
greater than 33% shall apply.
II-2
SCHEDULE 3.01
INITIAL CONDITIONS PRECEDENT
A. PRINCIPAL CREDIT DOCUMENTS.
(1) The Credit Agreement, duly executed by Borrower, each Lender,
Agent, each Co-Arranger, each Co-Syndication Agent, the Senior Managing
Agent and each Managing Agent;
(2) Such Notes as Lenders shall request, each duly executed by the
applicable Borrower; and
(3) The Guaranty, duly executed by each of the following
Subsidiaries: (a) Flextronics International USA, Inc., (b) Flextronics
International Latin America (L), Ltd., (c) Multilayer Technology, Inc., (d)
Flextronics USA, Inc., (e) Flextronics Enclosures, Inc., (f) Flextronics
Manufacturing Mexico, SA de CV, (g) Flextronics Distribution, Inc., (h)
Flextronics International Singapore Pte Ltd., (i) Flextronics International
Marketing (L) Ltd., (j) Flextronics Holding USA, Inc., (k) Flextronics
Holdings UK Limited and (l) Flextronics Technology (Shah Alam) Sdn Bdh,
each with such changes thereto as may be appropriate based on the law of
the applicable jurisdictions.
B. BORROWER AND MATERIAL SUBSIDIARY CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation (or comparable certificate) of
FIL, any Designated Borrower, each Eligible Material Subsidiary and any
Subsidiary of FIL executing the Guaranty, certified as of a recent date
prior to the Closing Date by the Secretary of State (or comparable public
official) of its jurisdiction of incorporation (or, if any such Subsidiary
is organized under the laws of any jurisdiction outside the United States,
such other evidence as Agent may request to establish that such Person is
duly organized and existing under the laws of such jurisdiction), together
with an English translation thereof (if appropriate);
(2) To the extent such jurisdiction has the legal concept of a
corporation being in good standing and a Governmental Authority in such
jurisdiction issues any evidence of such good standing, a Certificate of
Good Standing (or comparable certificate) for FIL, any Designated Borrower,
each Eligible Material Subsidiary and any Subsidiary of FIL executing the
Guaranty, certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable public official) of its jurisdiction of
incorporation (or, if any such Person is organized under the laws of any
jurisdiction outside the United States, such other evidence as Agent may
request to establish that such Person is duly qualified to do business and
in good standing under the laws of such jurisdiction), together with an
English translation thereof (if appropriate);
(3) A certificate of the Secretary or an Assistant Secretary (or
comparable officer) of FIL, any Designated Borrower, each Eligible Material
Subsidiary and any Subsidiary of FIL executing the Guaranty, dated the
Closing Date, certifying (a) that attached thereto is a true and correct
copy of the Bylaws of such Subsidiary as in effect on the Closing Date (or,
if any such Subsidiary is organized under the laws of any jurisdiction
outside the United States, any comparable document provided for in the
respective corporate laws of that jurisdiction); (b) that attached thereto
are true and correct copies of resolutions duly adopted by the Board of
Directors of such Subsidiary (or other comparable enabling action) and
continuing in effect, which (i) authorize the execution, delivery and
performance by such Person of the Credit Documents to be executed by such
Person and the consummation of the transactions contemplated thereby and
(ii) designate the officers, directors and attorneys authorized so to
execute, deliver and perform on behalf of such Person; and (c) that there
are no proceedings for the dissolution or liquidation of such Person,
together with a certified English translation thereof (if appropriate); and
(4) A certificate of the Secretary or an Assistant Secretary (or
comparable officer) of FIL, any Designated Borrower, each Eligible Material
Subsidiary and any Subsidiary of FIL executing the Guaranty, dated the
Closing Date, certifying the incumbency, signatures and authority of the
officers,
3.01-1
directors and attorneys of such Person authorized to execute, deliver and
perform the Credit Documents to be executed by such Person, together with a
certified English translation thereof (if appropriate).
C. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the audited consolidated and consolidating Financial
Statements of FIL and its Subsidiaries for the fiscal year ended March 31,
2001, audited by Arthur Andersen LLP, together with a copy of the
unqualified opinion delivered by such accountants in connection with such
Financial Statements;
(2) A copy of the unaudited Financial Statements of FIL and its
Subsidiaries for the fiscal quarter ended December 31, 2001 and for the
fiscal year to such date (prepared on a consolidated and consolidating
basis), certified by the chief financial officer, treasurer, controller or
principal accounting officer of FIL to present fairly the financial
condition, results of operations and other information reflected therein
and to have been prepared in accordance with GAAP (subject to normal
year-end audit adjustments);
(3) A copy of the 10-K report filed by FIL with the Securities and
Exchange Commission for the fiscal year ended March 31, 2001;
(4) A copy of the 10-Q report filed by FIL with the Securities and
Exchange Commission for the quarter ended December 31, 2001;
(5) The consolidated plan and forecast of FIL and its Subsidiaries
for the fiscal year to end March 31, 2003 (reflecting among other events
the anticipated Borrowings under this Agreement), including quarterly cash
flow projections and quarterly projections of FIL's compliance with each of
the covenants set forth in Paragraph 5.03 of this Agreement; and
(6) Such other financial, business and other information regarding
Borrowers or any of FIL's Subsidiaries as Agent or any Lender may
reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
D. OPINIONS. Favorable written opinions from each of the following counsel for
Borrowers, Guarantors and FIL's Subsidiaries, each dated the Closing Date,
addressed to Agent for the benefit of Agent and Lenders, covering such legal
matters as Agent may reasonably request and otherwise in form and substance
satisfactory to Agent:
(1) Fenwick & West, counsel for FIL and its Subsidiaries;
(2) Paul, Chong & Nathan, Malaysian counsel for FIL and Flextronics
Technology (Shah Alam) Sdn Bdh;
(3) Mayer, Brown, Rowe & Maw, English counsel for FIL and its
Subsidiaries;
(4) Foo, Teo & Associates, Labuan counsel for FIL and its
Subsidiaries;
(5) Cuesta Campos Y Asociados, S.C., Mexican counsel for FIL and its
Subsidiaries; and
(6) Allen & Gledhill, Singapore counsel for FIL and its Subsidiaries.
E. OTHER ITEMS.
(1) A duly completed and timely delivered Notice of Borrowing for the
applicable Borrowing;
3.01-2
(2) An organization chart for FIL and its Subsidiaries, setting forth
the relationship among such Persons;
(3) Copy of Subordinated Indenture, certified to be true and complete
by the Treasurer of FIL;
(4) Evidence that the Obligations of Borrowers under this Agreement
and the other Credit Documents constitute "Designated Senior Debt" under
the Subordinated Indenture;
(5) Evidence that (a) the amounts owing to the lenders and agent
under the Existing FIL Credit Agreement on the Closing Date have been
repaid in full and/or converted into Loans under this Agreement and (b) the
commitments of the lenders and agent under the Existing FIL Credit
Agreement are terminated and of no further force and effect;
(6) A certificate of the Chief Financial Officer of FIL, addressed to
Agent and dated the Closing Date, certifying that:
(a) The representations and warranties set forth in Paragraph
4.01 and in the other Credit Documents are true and correct in all
material respects as of such date (except for such representations and
warranties made as of a specified date, which shall be true as of such
date); and
(b) No Default has occurred and is continuing as of such date;
(7) All fees and expenses payable to Agent and Lenders on or prior to
the Closing Date (including all fees payable to Agent pursuant to the
Agent's Fee Letter);
(8) All fees and expenses of Agent's counsels through the Closing
Date; and
(9) Such other evidence as Agent or any Lender may reasonably request
to establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained in
this Agreement and the other Credit Documents.
3.01-3
SCHEDULE 4.01(o)
SUBSIDIARIES
[TO BE PROVIDED BY BORROWERS]
4.01(o)-1
SCHEDULE 5.02(a)
EXISTING SECURED INDEBTEDNESS
[TO BE PROVIDED BY BORROWERS]
5.02(a)-1
SCHEDULE 5.02(e)
EXISTING INVESTMENTS
[TO BE PROVIDED BY BORROWERS]
5.02(e)-1
EXHIBIT A
NOTICE OF BORROWING
[Date]
ABN AMRO Bank N.V.
as Agent
[__________]
Attn: [_________]
1. Reference is made to that certain Credit Agreement, dated as of
March 8, 2002 (the "Credit Agreement"), among Flextronics International Ltd.
("FIL"), each of the Subsidiaries of FIL designated as borrower from time to
time, as approved by all of Lenders and Guarantors (collectively, "Designated
Borrowers"), the financial institutions listed in Schedule I to the Credit
Agreement (the "Lenders") and ABN AMRO Bank N.V., as agent for the Lenders (in
such capacity, "Agent"). Unless otherwise indicated, all terms defined in the
Credit Agreement have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.02 of the Credit Agreement, the undersigned
Borrower hereby irrevocably requests a Borrowing to be made upon the following
terms:
(a) The requested Borrowing is to be under Facility [__];
(b) The currency and principal amount of such Borrowing are to be
__________;
(c) Such Borrowing is to consist of [Base Rate] [LIBOR] Loans;
(d) If such Borrowing is to consist of LIBOR Loans, the initial
Interest Period for such Borrowing is to be __________ month[s];
(e) The date of such Borrowing is to be __________, ____; and
(f) The Applicable Payment Office is located at __________________
___________.
3. The undersigned Borrower hereby certifies to Lenders and Agent that,
on the date of this Notice of Borrowing and after giving effect to the requested
Borrowing:
(a) The representations and warranties of Borrowers and FIL's
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit Documents are true and correct in all material respects
as if made on such date (except for representations and warranties
expressly made as of a specified date, which shall be true as of such
date); and
(b) No Default has occurred and is continuing.
4. Please disburse the proceeds of the requested Borrowing to__________
________________________________________________________________________________
_____________________________________.
A-1
IN WITNESS WHEREOF, the undersigned Borrower has executed this Notice
of Borrowing on the date set forth above.
[________________________________]
By:_______________________________________
Name:__________________________________
Title:_________________________________
A-2
EXHIBIT B
FORM OF NOTE
______________, ________ February __, 2002
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to
pay to the order of ____________________, a ____________________ ("Lender"), the
aggregate outstanding principal balance of all Loans made by Lender to Borrower
pursuant to the Credit Agreement referred to below (as amended from time to
time, the "Credit Agreement"), on or before the Facility [A][B] Maturity Date
specified in the Credit Agreement; and to pay interest on said sum, or such
lesser amount, at the rates and on the dates provided in the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Lender's
Applicable Lending Offices, to Agent as indicated in the Credit Agreement, in
the lawful currencies required by the Credit Agreement and in same day or
immediately available funds.
Borrower hereby authorizes Lender to record on the schedule(s) annexed
to this note the date, currency and amount of each Loan, the Facility pursuant
to which made, and the date and amount of each payment or prepayment of
principal made by Borrower and agrees that all such notations shall constitute
prima facie evidence of the matters noted; provided, however, that the failure
of Lender to make any such notation shall not affect Borrower's obligations
hereunder.
This note is one of the Notes referred to in the Credit Agreement,
dated as of March 8, 2002, among Borrower and the other borrowers from time to
time parties thereto, Lender and the other lenders from time to time parties
thereto (collectively, the "Lenders") and ABN AMRO, as agent for the Lenders.
This note is subject to the terms of the Credit Agreement, including the rights
of prepayment and the rights of acceleration of maturity set forth therein.
Terms used herein have the meanings assigned to those terms in the Credit
Agreement, unless otherwise defined herein.
The transfer, sale or assignment of any rights under or interest in
this note is subject to certain restrictions contained in the Credit Agreement,
including Paragraph 8.05 thereof.
B-1
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Lender in the enforcement or attempt to
enforce any of Borrower's obligations hereunder not performed when due. Borrower
hereby waives notice of presentment, demand, protest or notice of any other
kind. This note shall be governed by and construed in accordance with the laws
of the State of California.
[_____________]
By:____________________________
Name: ______________________
Title: _____________________
B-2
LOANS AND PAYMENTS OF PRINCIPAL
Loans Payments
------------------------------- ------------------------------------
Amount of
Amount of Principal Paid
Date Currency Loan Facility Currency or Prepaid Facility
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
B-3
EXHIBIT C
FORM OF GUARANTY
THIS GUARANTY, dated as of March 8, 2002, is executed by each of the
undersigned (each such entity and each entity which hereafter executes and
delivers a Subsidiary Joinder in substantially the form of Attachment 1 hereto
to be referred to herein as a "Guarantor"), in favor of ABN AMRO BANK N.V.,
acting as agent (in such capacity, and each successor thereto in such capacity,
"Agent") for the financial institutions which are from time to time parties to
the Credit Agreement referred to in Recital A below (collectively, "Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of March 8, 2002 (as amended
from time to time, the "Credit Agreement"), among Flextronics International Ltd.
("FIL"), each of the Subsidiaries of FIL designated as borrower from time to
time as approved by all Lenders and Guarantors (collectively, "Designated
Borrowers"), Lenders and Agent, Lenders have agreed to extend certain credit
facilities to FIL and Designated Borrowers (together, "Borrowers") upon the
terms and subject to the conditions set forth therein. Each Guarantor (other
than FIL) is a Subsidiary of FIL and expects to derive substantial direct and
indirect benefit from the transactions contemplated by the Credit Agreement.
B. Lenders' obligations to extend the credit facilities to Borrowers
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of (1) this Guaranty, duly executed by each existing Eligible Material
Subsidiary, and (2) Subsidiary Joinders, duly executed by each future Eligible
Material Subsidiary.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, each Guarantor hereby agrees with Agent, for the ratable
benefit of the Lenders and Agent, as follows:
1. DEFINITIONS AND INTERPRETATION.
(a) Definitions. When used in this Guaranty, the following
terms shall have the following respective meanings:
"Agent" shall have the meaning given to that term in
the introductory paragraph hereof.
"Aggregate Guaranty Payments" shall mean, with
respect to any Guarantor at any time, the aggregate net amount
of all payments made by such Guarantor under this Guaranty
(including, without limitation, under Paragraph 5 hereof) at
or prior to such time.
"Borrowers" shall have the meaning given to that term
in the Recital A hereof.
"Credit Agreement" shall have the meaning given to
that term in the Recital A hereof.
"Debtor Relief Proceeding" shall mean any suit,
action, case or other proceeding commenced by, against or for
any Borrower or its property seeking the dissolution,
liquidation, reorganization, rearrangement or other relief of
such Borrower or its debts under any applicable bankruptcy,
insolvency or debtor relief law or other similar Governmental
Rule now or hereafter in effect or seeking the appointment of
a receiver, trustee, liquidator, custodian or other similar
official for such Borrower or any substantial part of its
property or any general assignment by any Borrower for the
benefit of its creditors, whether or not any such suit,
action, case or other proceeding is voluntary or involuntary.
C-1
"Disallowed Post-Commencement Interest and Expenses"
shall mean interest computed at the rate provided in the
Credit Agreement and claims for reimbursement, costs, expenses
or indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Debtor Relief Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against Borrowers in such
Debtor Relief Proceeding.
"Fair Share" shall mean, with respect to any
Guarantor at any time, an amount equal to (i) a fraction, the
numerator which is the Maximum Guaranty Amount of such
Guarantor and the denominator of which is the aggregate
Maximum Guaranty Amounts of all Guarantors, multiplied by (ii)
the aggregate amount paid by all Funding Guarantors under this
Guaranty at or prior to such time.
"FMM Process Agent" shall have the meaning given to
that term in Subparagraph 6(l)(iii) hereof.
"Fair Share Shortfall" shall mean, with respect to
any Guarantor at any time, the amount, if any, by which the
Fair Share of such Guarantor at such time exceeds the
Aggregate Guaranty Payments of such Guarantor at such time.
"FIL" shall have the meaning given to that term in
the Recital A hereof.
"Funding Guarantor" shall have the meaning given to
that term in Paragraph 5 hereof.
"Guaranteed Obligations" shall mean and include, with
respect to any Guarantor, all loans, advances, debts,
liabilities, and obligations, howsoever arising, owed by any
Borrower (other than such Guarantor in its capacity as a
Borrower if such Guarantor is a Borrower) to Agent or any
Lender of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment
of money) individual or joint and several, direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of the Credit
Documents, including all interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to any
Borrower or payable by any Borrower thereunder.
"Guarantor" shall have the meaning given to that term
in the introductory paragraph hereof.
"Lenders" shall have the meaning given to that term
in the introductory paragraph hereof.
"Maximum Guaranty Amount" shall mean, with respect to
any Guarantor at any time, (i) the full amount of the
Guaranteed Obligations at such time or (ii) if any court of
competent jurisdiction determines in any action to enforce
this Guaranty that enforcement against such Guarantor for the
full amount of the Guaranteed Obligations is not lawful under
or would be subject to avoidance under Section 548 of the
United States Bankruptcy Code or any applicable provision of
any comparable law of any state or other jurisdiction, then
the maximum amount lawful and not subject to such avoidance.
"Mexican Guarantor" shall mean Flextronics
Manufacturing Mex, S.A. de C.V. and its successors or assigns.
"Subordinated Obligations" shall have the meaning
given to that term in Paragraph 4 hereof.
"Subsidiary Joinder" shall mean an instrument
substantially in the form of Attachment 1 hereto.
C-2
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction
set forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty
and are hereby incorporated by reference. Each Guarantor acknowledges
receipt of copies of the Credit Agreement and the other Credit
Documents.
2. GUARANTY.
(a) Payment Guaranty. Each Guarantor unconditionally
guarantees and promises to pay and perform as and when due, whether at
stated maturity, upon acceleration or otherwise, any and all of the
Guaranteed Obligations. If any Debtor Relief Proceeding relating to any
Borrower is commenced, each Guarantor further unconditionally
guarantees and promises to pay and perform, upon the demand of Agent,
any and all of the Guaranteed Obligations (including any and all
Disallowed Post-Commencement Interest and Expenses) in accordance with
the terms of the Credit Documents, whether or not such obligations are
then due and payable by any Guarantor and whether or not such
obligations are modified, reduced or discharged in such Debtor Relief
Proceeding. This Guaranty is a guaranty of payment and not of
collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of Lenders to extend credit to all
Borrowers have terminated and all of the Guaranteed Obligations have
been fully paid. If any payment on any Guaranteed Obligation is set
aside, avoided or rescinded or otherwise recovered from Agent or any
Lender, such recovered payment shall constitute a Guaranteed Obligation
hereunder and, if this Guaranty was previously released or terminated,
it automatically shall be fully reinstated, as if such payment was
never made.
(c) Joint, Several and Independent Obligations. The liability
of each Guarantor hereunder is joint and several and is independent of
the Guaranteed Obligations. A separate action or actions may be brought
and prosecuted against each Guarantor for the full amount of the
Guaranteed Obligations irrespective of whether action is brought
against any Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations or whether any Borrower, any other Guarantor or
any other guarantor of the Guaranteed Obligations is joined in any such
action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to
enforce this Guaranty, any court of competent jurisdiction determines
that enforcement against any Guarantor for the full amount of the
Guaranteed Obligations is not lawful under or would be subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
applicable provision of any comparable law of any state or other
jurisdiction, the liability of such Guarantor under this Guaranty shall
be limited to the maximum amount lawful and not subject to such
avoidance.
(e) Termination. Notwithstanding any termination of this
Guaranty in accordance with Paragraph 3 hereof, this Guaranty shall
continue to be in full force and effect and applicable to any
Guaranteed Obligations arising thereafter which arise because prior
payments of Guaranteed Obligations are rescinded or otherwise required
to be surrendered by Agent or any Lender after receipt.
3. AUTHORIZATIONS, WAIVERS, ETC.
(a) Authorizations. Each Guarantor authorizes Agent and
Lenders, in their discretion, without notice to such Guarantor,
irrespective of any change in the financial condition of any Borrower,
such Guarantor, any other Guarantor or any other guarantor of the
Guaranteed Obligations since the date hereof, and without affecting or
impairing in any way the liability of such Guarantor hereunder, from
time to time to:
C-3
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time
for payment or performance of, or otherwise amend or modify
the Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or
decrease of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange,
enforce, waive or release any such security; apply such
security and direct the order or manner of sale thereof; and
purchase such security at public or private sale;
(iii) Otherwise exercise any right or remedy they may
have against any Borrower, such Guarantor, any other
Guarantor, any other guarantor of the Guaranteed Obligations
or any security, including, without limitation, the right to
foreclose upon any such security by judicial or nonjudicial
sale;
(iv) Settle, compromise with, release or substitute
any one or more makers, endorsers or guarantors of the
Guaranteed Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty
or the other Credit Documents in whole or in part to the
extent provided in the Credit Agreement and the other Credit
Documents.
(b) Waivers. Each Guarantor hereby waives:
(i) Any right to require Agent or any Lender to (A)
proceed against any Borrower, any other Guarantor or any other
guarantor of the Guaranteed Obligations, (B) proceed against
or exhaust any security received from any Borrower, such
Guarantor, any other Guarantor or any other guarantor of the
Guaranteed Obligations or otherwise marshal the assets of any
Borrower, such Guarantor, any other Guarantor or any other
guarantor of the Guaranteed Obligations or (C) pursue any
other remedy in Agent's or any Lender's power whatsoever;
(ii) Any defense arising by reason of the application
by any Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence,
impairment or loss of any right of reimbursement, subrogation,
contribution or other right or remedy of Guarantor against any
Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any security, whether resulting from
an election by Agent or any Lender to foreclose upon security
by nonjudicial sale, or otherwise;
(iv) Any setoff or counterclaim of any Borrower or
any defense which results from any disability or other defense
of any Borrower or the cessation or stay of enforcement from
any cause whatsoever of the liability of any Borrower
(including, without limitation, the lack of validity or
enforceability of any of the Credit Documents);
(v) Any defense based upon any law, rule or
regulation which provides that the obligation of a surety must
not be greater or more burdensome than the obligation of the
principal;
(vi) Until all obligations of Agent or any Lender to
extend credit to all Borrowers have terminated and all of the
Guaranteed Obligations have been fully paid, any right of
subrogation, reimbursement, indemnification or contribution
and other similar right to enforce any remedy which Agent,
Lenders or any other Person now has or may hereafter have
against any Borrower on account of the Guaranteed Obligations,
and any benefit of, and any right to participate in, any
security now or hereafter received by Agent, any Lender or any
other Person on account of the Guaranteed Obligations;
C-4
(vii) All presentments, demands for performance,
notices of non-performance, notices delivered under the Credit
Documents, protests, notice of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation or
incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of limitations to
the extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Lender
of the financial condition of any Borrower, any other
Guarantor or any other guarantor of the Guaranteed Obligations
or any change therein or any other circumstances bearing upon
the risk of nonpayment or nonperformance of the Guaranteed
Obligations;
(xi) Until all obligations of Agent or any Lender to
extend credit to any Borrower have terminated and all of the
Guaranteed Obligations have been fully paid, any right to
revoke this Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States
Bankruptcy Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant
of a security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing
to determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 3, each Guarantor hereby further waives (A) all rights and
defenses arising out of an election of remedies by Agent or any Lender,
even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Guaranteed Obligation, has
destroyed such Guarantor's rights of subrogation and reimbursement
against any Borrower by the operation of Section 580d of the Code of
Civil Procedure or otherwise, (B) all rights and defenses such
Guarantor may have by reason of protection afforded to any Borrower
with respect to the Guaranteed Obligations pursuant to the
antideficiency or other laws of California limiting or discharging the
Guaranteed Obligations, including, without limitation, Section 580a,
580b, 580d, or 726 of the California Code of Civil Procedure, and (C)
all other rights and defenses available to such Guarantor by reason of
Sections 2787 to 2855, inclusive, Section 2899 or Section 3433 of the
California Civil Code or Section 3605 of the California Commercial
Code.
(c) The Mexican Guarantor hereby expressly agrees that any
rights or privileges that it might have under the laws of Mexico shall
not be applicable to this Guaranty, including, but not limited to, any
benefit of "orden," "excusion," "division," "quita," "novacion,"
"prorroga," "espera" or "modificacion," provided in Articles 2813,
2814, 2816, 2817, 2818, 2820, 2821, 2822, 2823, 2827, 2836, 2840, 2842,
2844, 2845, 2846, 2847, 2848, and 2849 of the Civil Code of the Federal
District of Mexico and the corresponding articles of the Civil Codes in
all States of the United Mexican States ("Mexico"), which are not
reproduced herein by express declaration that the contents of such
articles are known to the Mexican Guarantor.
(d) Financial Condition of Borrowers, Etc. Each Guarantor is
fully aware of the financial condition and affairs of each Borrower.
Each Guarantor has executed this Guaranty without reliance upon any
representation, warranty, statement or information concerning any
Borrower furnished to such Guarantor by Agent or any Lender and has,
independently and without reliance on Agent or any Lender, and based on
such documents and information as it has deemed appropriate, made its
own appraisal of the financial condition and affairs of each Borrower
and of other circumstances affecting the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Each Guarantor is in a
position to obtain, and assumes full responsibility for obtaining, any
additional information about the financial condition and affairs of
each Borrower and of other circumstances affecting the risk of
C-5
nonpayment or nonperformance of the Guaranteed Obligations and will,
independently and without reliance upon Agent or any Lender, and based
on such documents and information as it shall deem appropriate at the
time, continue to make its own appraisals and decisions in taking or
not taking action in connection with this Guaranty.
4. SUBORDINATION. Each Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to such Guarantor by each Borrower (the
"Subordinated Obligations") to the Guaranteed Obligations as provided in this
Paragraph 4.
(a) Prohibited Payments, Etc. Except during the continuance of
a Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to any Borrower), each Guarantor may receive
regularly scheduled payments from any Borrower on account of
Subordinated Obligations. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Debtor Relief Proceeding relating to any Borrower), however,
unless Agent otherwise agrees, no Guarantor shall demand, accept or
take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Debtor
Relief Proceeding relating to any Borrower, each Guarantor agrees that
Agent and Lenders shall be entitled to receive payment of all
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) before such Guarantor receives
payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Default (including the commencement and continuation of any
Debtor Relief Proceeding relating to any Borrower), each Guarantor
shall, if Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for Agent and
Lenders and deliver such payments to Agent on account of the Guaranteed
Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses), together with any necessary endorsements or
other instruments of transfer, but without reducing or affecting in any
manner the liability of such Guarantor under the other provisions of
this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Debtor Relief Proceeding relating to any Borrower), Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations
and (B) to pay any amounts received on such obligations to Agent for
application to the Guaranteed Obligations (including any and all
Disallowed Post-Commencement Interest and Expenses).
5. CONTRIBUTION AMONG GUARANTORS. Guarantors desire to allocate among
themselves, in a fair and equitable manner, their rights of contribution from
each other when any payment is made by any Guarantor under this Guaranty.
Accordingly, if any payment is made by any Guarantor under this Guaranty (a
"Funding Guarantor") that exceeds its Fair Share, the Funding Guarantor shall be
entitled to a contribution from each other Guarantor in the amount of such other
Guarantor's Fair Share Shortfall, so that all such contributions shall cause
each Guarantor's Aggregate Guaranty Payments to equal its Fair Share. The
amounts payable as contributions hereunder shall be determined by the Funding
Guarantor as of the date on which the related payment or distribution is made by
the Funding Guarantor, and such determination shall be binding on the other
Guarantors absent manifest error. The allocation and right of contribution among
Guarantors set forth in this Paragraph 5 shall not be construed to limit in any
way the liability of any Guarantor under this Guaranty or the amount of the
Guaranteed Obligations.
C-6
6. MISCELLANEOUS.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon any Guarantor or Agent under this Guaranty or the other Credit
Documents shall be in writing and faxed, mailed or delivered, if to
Agent, at its facsimile number or address set forth below, or, if to
any Guarantor, at its facsimile number or address set forth below its
signature below or in the respective Subsidiary Joinder for such
Guarantor (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties).
All such notices and communications shall be effective (i) when sent by
any overnight courier service of recognized standing, on the second
Business Day following the deposit with such service; (ii) when mailed,
first class postage prepaid and addressed through the United States
Postal Service, upon receipt; (iii) when delivered by hand, upon
delivery; and (iv) when faxed, upon confirmation of receipt.
Agent: ABN AMRO Bank N.V.
Syndications Group
55 East 52nd Street, 7th Floor
New York, NY 10055
U.S.A.
Attn: John Darmanin
Tel. No: (212) 409-7390
Fax. No: (212) 409-7497
With copies to:
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
U.S.A.
Attn: Mathew Harvey
Tel No: (415) 984-3733
Fax No: (415) 362-3524
(b) Payments.
(i) Each Guarantor shall make all payments of the
Guaranteed Obligations to Agent, or its order, at the office
of Agent and at the times specified in the Credit Documents
for the payment of such Guaranteed Obligations. Each Guarantor
shall make all other payments hereunder at such office as
Agent may designate. Each payment shall be made in same day or
immediately available funds not later than 11:00 a.m.(local
time of the office of Agent at which such payment is to be
made) on the date due.
(ii) Each Guarantor shall make all payments of the
Guaranteed Obligations hereunder in the currency in which such
Guaranteed Obligations are required to be paid by any Borrower
pursuant to the Credit Documents and shall make all other
payments hereunder in Dollars; provided, however, that, if
Agent shall request a Guarantor to pay any amount hereunder
which would otherwise be payable in another currency in the
lawful currency of the United States, such Guarantor shall pay
to Agent the Dollar Equivalent of such amount.
(iii) If any sum due from any Guarantor under this
Guaranty or any other Credit Document to which such Guarantor
is a party or any order, judgment or award given or rendered
in relation hereto or thereto has to be converted from the
currency (the "first currency") in which the same is payable
hereunder or thereunder into another currency (the "second
currency") for the purpose of (A) making or filing a claim or
proof against such Guarantor with any Governmental Authority,
(B) obtaining an order or judgment in any court or other
tribunal or (C) enforcing any order or judgment given or made
in relation hereto, such Guarantor shall, to the fullest
extent permitted by law, indemnify and hold harmless each of
the Persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (1) the rate
of exchange used
C-7
for such purpose to convert the amounts in question from the
first currency into the second currency and (2) the rate or
rates of exchange at which such Person may, using reasonable
efforts in the ordinary course of business, purchase the first
currency with the second currency upon receipt of a sum paid
to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The foregoing indemnity shall
constitute a separate obligation of each Guarantor distinct
from its other obligations hereunder and shall survive the
giving or making of any judgment or order in relation to all
or any of such obligations.
(iv) If any amounts required to be paid by any
Guarantor under this Guaranty or any order, judgment or award
given or rendered in relation hereto remain unpaid after such
amounts are due, such Guarantor shall pay interest on the
aggregate, outstanding balance of such amounts from the date
due until those amounts are paid in full at a per annum rate
equal to:
(1) In the case of amounts payable in
Dollars, the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate
shall change.
(2) In the case of amounts payable in any
other currency, the Overnight Rate for such currency
plus three percent (3.0%), such rate to change from
time to time as the Overnight Rate shall change.
(c) Expenses. Each Guarantor shall pay on demand (i) all
reasonable and documented fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
preparation, execution and delivery of, and the exercise of its duties
under, this Guaranty and the preparation, execution and delivery of
amendments and waivers hereunder and (ii) all reasonable and documented
fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent and Lenders in connection with the enforcement or
attempted enforcement of this Guaranty or any of the Guaranteed
Obligations or in preserving any of Agent's or Lenders' rights and
remedies (including, without limitation, all such fees and expenses
incurred in connection with any "workout" or restructuring affecting
the Credit Documents or the Guaranteed Obligations or any bankruptcy or
similar proceeding involving Guarantor, any other Guarantor, any
Borrower, or any of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by each Guarantor and Agent. Each waiver or consent
under any provision hereof shall be effective only in the specific
instances for the purpose for which given. No failure or delay on
Agent's or any Lender's part in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single
or partial exercise of any such right preclude any other further
exercise thereof or of any other right.
(e) Successors and Assigns. This Guaranty shall be binding
upon and inure to the benefit of Agent, Lenders, Guarantors and their
respective successors and assigns; provided, however, that no Guarantor
may assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and Lenders, and,
provided, further, that Agent or any Lender may sell, assign and
delegate their respective rights and obligations hereunder only as
permitted by the Credit Agreement. All references in this Guaranty to
any Person shall be deemed to include all permitted successors and
assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and Lenders under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and Lenders by virtue of any
applicable law, rule or regulation of any Governmental Authority, the
Credit Agreement, any other Credit Document or any other agreement, all
of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Agent's or any
Lender's rights hereunder. Each Guarantor waives any right to require
Agent or any Lender to proceed against any Person or to pursue any
remedy in Agent's or such Lender's power.
C-8
(g) Setoff; Security Interest.
(i) In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with prior
notice to Agent but without prior notice to or consent of any
Guarantor, any such notice and consent being expressly waived
by each Guarantor to the extent permitted by applicable law,
upon the occurrence and during the continuance of an Event of
Default, to set-off and apply against the obligations of each
Guarantor any amount owing from such Lender to such Guarantor.
The aforesaid right of set-off may be exercised by such Lender
against a Guarantor or against any trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
receiver or execution, judgment or attachment creditor of such
Guarantor or against anyone else claiming through or against
such Guarantor or such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver,
or execution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off may not have been
exercised by such Lender at any prior time. Each Lender agrees
promptly to notify the applicable Guarantor after any such
set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of
such set-off and application.
(ii) As security for the obligations of each
Guarantor hereunder, each Guarantor hereby grants to Agent and
each Lender, for the benefit of all Lenders, a continuing
security interest in any and all deposit accounts or moneys of
such Guarantor now or hereafter maintained with such Lender.
Each Lender shall have all of the rights of a secured party
with respect to such security interest.
(h) Payments Free of Taxes. All payments made by each
Guarantor under this Guaranty shall be made free and clear of, and
without deduction or withholding for or on account of, all present and
future Non-Excluded Taxes. If any Non-Excluded Taxes are required to be
withheld from any amounts payable to Agent or any Lender hereunder, the
amounts so payable to Agent or such Lender shall be increased to the
extent necessary to yield to Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Guaranty or
the other Credit Documents, as applicable. If under the laws of the
applicable jurisdiction, a payment by a Guarantor pursuant to this
Subparagraph 6(h) to Agent or any Lender may be made without deduction
or withholding of any Taxes (or with reduced deduction or withholding
of any Taxes), the Agent and such Lender (as applicable) shall, upon
written request by the applicable Guarantor, use reasonable efforts to
file with the appropriate tax authorities and deliver to Guarantor such
certificates and other evidence requested by Guarantor establishing
Agent's or Lender's entitlement to such eliminated or reduced
withholding. Whenever any Non-Excluded Taxes are payable by any
Guarantor, as promptly as possible thereafter, such Guarantor shall
send to Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
received by such Guarantor showing payment thereof. If Guarantors fail
to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fail to remit to Agent the required receipts or other
required documentary evidence, Guarantors shall indemnify Agent and
Lenders for any taxes (including interest or penalties) that may become
payable by Agent or any Lender as a result of any such failure. The
obligations of Guarantors under this Subparagraph 6(h) shall survive
the payment and performance of the Guaranteed Obligations and the
termination of this Guaranty. Nothing contained in this Subparagraph
6(h) shall require Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
(i) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(j) Jury Trial. EACH OF GUARANTORS, LENDERS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY.
C-9
(k) Counterparts. This Guaranty may be executed in any number
of identical counterparts, any set of which signed by all the
Guarantors shall be deemed to constitute a complete, executed original
for all purposes.
(l) Governing Law, Consent to Jurisdiction, Etc.
(i) This Guaranty shall be governed by and construed
in accordance with the laws of the State of California, except
for the purposes of any suit or legal action brought in Mexico
in which case it shall be governed by the laws of Mexico.
(ii) Each Guarantor irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of
California and the courts of the United States of America
located in the Northern District of California and, in respect
of the Mexican Guarantor, the Mexican Guarantor and the Agent,
on behalf of Lenders, also irrevocably submit to the
jurisdictions of the courts of the Federal District of Mexico,
Mexico, and agrees that any legal action, suit or proceeding
arising out of or relating to this Guaranty or any of the
other Credit Documents may be brought against such party in
any such courts. Final judgment against a Guarantor in any
such action, suit or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment, a
certified or exemplified copy of which shall be conclusive
evidence of the judgment, or in any other manner provided by
law. Nothing in this Subparagraph 6(l) shall affect the right
of Agent or any Lender to commence legal proceedings or
otherwise sue any Guarantor in any other appropriate
jurisdiction, or concurrently in more than one jurisdiction,
or to serve process, pleadings and other papers upon any
Guarantor in any manner authorized by the laws of any such
jurisdiction. Subject to and except as otherwise provided in
paragraph (iii) below in respect of the Mexican Guarantor,
each Guarantor agrees that process served either personally or
by registered mail shall, to the extent permitted by law,
constitutes adequate service of process in any such suit.
Without limiting the foregoing, each Guarantor hereby
appoints, in the case of any such action or proceeding brought
in the courts of or in the State of California, CT
Corporation, with offices on the date hereof at 818 West
Seventh Street, Los Angeles, California 90017, to receive for
it and on its behalf, service of process in the State of
California with respect thereto, provided each Guarantor may
appoint any other person, reasonably acceptable to Agent, with
offices in the State of California to replace such agent for
service of process upon delivery to Agent of a reasonably
acceptable agreement of such new agent agreeing so to act.
Each Guarantor irrevocably waives to the fullest extent
permitted by applicable law (A) any objection which it may
have now or in the future to the laying of the venue of any
such action, suit or proceeding in any court referred to in
the first sentence above; (B) any claim that any such action,
suit or proceeding has been brought in an inconvenient forum;
(C) its right of removal of any matter commenced by any other
party in the courts of the State of California to any court of
the United States of America; (D) any immunity which it or its
assets may have in respect of its obligations under this
Agreement or any other Credit Document from any suit,
execution, attachment (whether provisional or final, in aid of
execution, before judgment or otherwise) or other legal
process; and (E) any right it may have to require the moving
party in any suit, action or proceeding brought in any of the
courts referred to above arising out of or in connection with
this Agreement or any other Credit Document to post security
for the costs of any Guarantor or to post a bond or to take
similar action.
(iii) The Mexican Guarantor hereby irrevocably
appoints CT Corporation, Los Angeles Agency, (the "FMM Process
Agent"), with an office on the date hereof in 818 West Seventh
Street, Los Angeles, California 90017, in the case of any
action, suit or proceeding arising out of or relating to this
Guaranty or any of the other Credit Documents brought in the
courts of or in the State of California, as its agent to
receive for it and on its behalf service of process in the
State of California with respect thereto. Such service may be
made by mailing or delivering a copy of such process to the
Mexican Guarantor in care of the FMM Process Agent at the FMM
Process Agent's above address, and the Guarantor hereby
irrevocably authorizes and directs the FMM Process Agent to
accept such service on its behalf; provided, that for any
notice or service of process to be effective under Mexican
law, such notice or service of process shall be deemed to have
been given or made when delivered either (i) personally,
return receipt requested, (ii) by
C-10
courier delivery or certified mail, return receipt requested,
or (iii) by facsimile followed by personal or courier
delivery, return receipt requested. The Mexican Guarantor
agrees that a final judgment in any such proceeding shall be
conclusive and may be enforced in other jurisdictions by suit
on the judgment or in any other manner provided by law. For
purposes of perfecting the appointment of the FMM Process
Agent under the applicable laws of Mexico, the Mexican
Guarantor agrees to execute and deliver the power of attorney
attached hereto as Attachment 2, formalized before a notary
public in Mexico and duly recorded at the Public Registry of
Commerce (Registro Publico de Comercio) of the corporate
domicile of the Mexican Guarantor, and to execute and deliver
any and all other documents (including Mexican notarial deeds)
as may be required by the Agent in its sole discretion.
[The first signature page follows.]
C-11
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed as of the day and year first above written.
FLEXTRONICS INTERNATIONAL USA INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
2090 Fortune Drive
San Jose, California 95131
U.S.A.
Attn: Treasurer
Telephone: (408) 576-7233
Facsimile: (408) 526-9215
FLEXTRONICS HOLDING USA, INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
2090 Fortune Drive
San Jose, California 95131
U.S.A.
Attn: Treasurer
Telephone: (408) 576-7233
Facsimile: (408) 526-9215
FLEXTRONICS INTERNATIONAL LATIN AMERICA (L) LTD.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
Level 10, Wisma Oceanic
Jalan OKK Awang Besar
Labuan, F.T.
Malaysia
Attn: Bernard Liew Jin Yang
Telephone: 65 876 9371
Facsimile: 65 543 1888
C-12
FLEX INTERNATIONAL MARKETING (L) LTD.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
Level 10, Wisma Oceanic
Jalan OKK Awang Besar
Labuan, F.T.
Malaysia
Attn: Bernard Liew Jin Yang
Telephone: 65 876 9371
Facsimile: 65 543 1888
FLEXTRONICS MANUFACTURING MEX, S.A. DE C.V.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
Carretara Base Aerea Militar 5850
Zappopan, Jalisco 4500
Mexico
Attn: Tom Mannion
Telephone: (5233) 3818-9261
Facsimile: (5233) 3818-9524
FLEXTRONICS SINGAPORE PTE LTD.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
36 Robinson Road
#18-01 City House
Singapore 068877
Attn: Bernard Liew Jin Yang
Telephone: 65 876 9371
Facsimile: 65 543 1888
C-13
FLEXTRONICS HOLDINGS UK LIMITED
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
50 Stratton Street
London W1X 6NX
England
Attn:
------------------------
Telephone: ( ) -
--- --- ----
Facsimile: ( ) -
--- --- ----
MULTILAYER TECHNOLOGY, INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
40 Parker Road
Irvine, CA 92618
Attn: Timothy L. Stewart
Telephone: (408) 576-7000
Facsimile: (408) 428-1341
FLEXTRONICS USA, INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
6328 Monarch Park Place
Niwot, CO 80503
Attn: Timothy L. Stewart
Telephone: (408) 576-7000
Facsimile: (408) 428-1341
C-14
FLEXTRONICS ENCLOSURES, INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
1901 S. Meyers Road, Suite 700
Oak Brook Terrace, IL 60181
Attn: Timothy L. Stewart
Telephone: (408) 576-7000
Facsimile: (408) 428-1341
FLEXTRONICS DISTRIBUTION, INC.
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
2241 Lundy Avenue
San Jose, CA 95131
Attn: Timothy L. Stewart
Telephone: (408) 576-7000
Facsimile: (408) 428-1341
FLEXTRONICS TECHNOLOGY (SHAH ALAM) SDN BDH,
By:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Address:
No. 2 Jalan Astaka, U8/84
Seksyen U*
40150 Shal Alam, Selangor, Malaysia
Attn: Bernard Liew Jin Yang
Telephone: 65 876 9371
Facsimile: 65 543 1888
C-15
ATTACHMENT 1
SUBSIDIARY JOINDER
THIS SUBSIDIARY JOINDER (this "Agreement"), dated as of
____________, ____, is executed by [NEW ELIGIBLE MATERIAL SUBSIDIARY], a
_________ [corporation] [partnership] [etc.] ("New Subsidiary") in favor of ABN
AMRO BANK N.V., acting as agent (in such capacity, and each successor thereto in
such capacity, "Agent") for the financial institutions which are from time to
time parties to the Credit Agreement referred to in Recital A below
(collectively, the "Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of March 8, 2002
(as amended from time to time, the "Credit Agreement"), among Flextronics
International Ltd. ("FIL"), each of the Subsidiaries of FIL designated as
borrowers from time to time as approved by all Lenders and Guarantors
(collectively, "Designated Borrowers"), Lenders and Agent, Lenders have agreed
to extend certain credit facilities to FIL and Designated Borrowers
(collectively, "Borrowers") upon the terms and subject to the conditions set
forth therein.
B. Lenders' obligations to extend the credit facilities to
Borrowers under the Credit Agreement are subject, among other conditions, to
receipt by Agent of (1) a Guaranty, dated as of March 8, 2002, duly executed by
each existing Eligible Material Subsidiary and any other Subsidiary designated
as a Guarantor from time to time, and (2) Subsidiary Joinders, duly executed by
each future Eligible Material Subsidiary.
C. New Subsidiary is a new Eligible Material Subsidiary and
expects to derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, New Subsidiary hereby agrees with Agent, for the ratable
benefit of the Lenders and Agent, as follows:
1. DEFINITIONS AND INTERPRETATION. Unless otherwise defined
herein, all capitalized terms used herein and defined in the Guaranty shall have
the respective meanings given to those terms in the Guaranty. New Subsidiary
acknowledges receipt of copies of the Guaranty, the Credit Agreement and the
other Credit Documents.
2. REPRESENTATIONS AND WARRANTIES. On and as of the date of
this Agreement (the "Effective Date") and for the ratable benefit of the Agent
and Lenders, New Subsidiary hereby makes each of the representations and
warranties made by each Guarantor in the Guaranty.
3. AGREEMENT TO BE BOUND. New Subsidiary agrees that, on and
as of the Effective Date, it shall become a Guarantor under the Guaranty and
shall be bound by all the provisions of the Guaranty to the same extent as if
New Subsidiary had executed the Guaranty on the Closing Date.
4. WAIVER. Without limiting the generality of the waivers in
the Guaranty, New Subsidiary specifically agrees to be bound by the Guaranty and
waives any right to notice of acceptance of its execution of this Agreement and
of its agreement to be bound by the Guaranty.
5. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
C(1)-1
IN WITNESS WHEREOF, New Subsidiary has caused this Agreement
to be executed by its duly authorized officer.
[NEW SUBSIDIARY]
By:
------------------------------------
Name:
---------------------------
Title:
---------------------------
Address:
[ ]
-------------------------------
[ ]
-------------------------------
[ ]
-------------------------------
Attn: [ ]
------------------------
Telephone: [( ) - ]
--- --- ----
Facsimile: [( ) - ]
--- --- ----
C(1)-2
ATTACHMENT 2
To be executed and delivered
by the Guarantor in the presence of,
and to be certified by,
a Mexican Notary Public
FORM OF SPECIAL IRREVOCABLE POWER OF ATTORNEY
[__________________], S.A. DE C.V. (the "Grantor"), a sociedad
anonima de capital variable duly incorporated and validly existing under the
laws of the United Mexican States ("Mexico"), hereby grants an irrevocable power
of attorney for litigation and collections in favor of [____________________]
(the "Attorney-In-Fact"), in terms of the first paragraph of article 2554 of the
Civil Code for the Federal District of Mexico and the corresponding articles of
the Civil Codes of all States of Mexico. This power of attorney is limited in
its scope but is as broad as necessary and may be exercised in any jurisdiction,
so that the Attorney-In-Fact, in the name and on behalf of the Grantor, receives
any and all notices and service of process of any nature in connection with any
suits, actions, proceedings and judgments of all kinds, including, without
limitation, judicial, administrative or arbitration proceedings in any way
relating to the Guaranty Agreement (the "Guaranty Agreement") dated
[___________], 2000 entered into by and among the Grantor, the other Guarantors,
the Lenders party thereto and ABN AMRO Bank N.V. as agent. The Grantor hereby
appoints as its domicile to receive any notices relating thereto,
[_______________] United States of America, or any other domicile of the
Attorney-In-Fact notified to the Grantor. This Power of Attorney is granted in
satisfaction of a condition set forth in the Guaranty Agreement, and it is
therefore irrevocable, in accordance with article 2596 of the Civil Code for the
Federal District of Mexico and the corresponding Articles of the Civil Code of
all States of Mexico.
C(2)-1
ATTACHMENT 2
To be executed and delivered
by the Guarantor in the presence of,
and to be certified by,
a Mexican Notary Public
FORM SPECIAL IRREVOCABLE POWER OF ATTORNEY
"NUMERO_______________________________
LIBRO_________________________________
FOLIO_________________________________
En la Ciudad de [_________] a los [____________] dias de mes
de [___________] de mil novecientos noventa y nueve, yo, el Licenciado
[__________________________], titular de la Notaria numero [____________] del
[_______________], hago constar el PODER ESPECIAL IRREVOCABLE, que se consigna
al tenor de la siguiente:
CLAUSULA UNICA
Por medio del presente instrumento, la sociedad denominada [__________________],
SOCIEDAD ANONIMA DE CAPITAL VARIABLE (la "Otorgante"), representada como ha
quedado dicho, otorga en favor de la sociedad denominada [_______________], un
poder especial irrevocable para pleitos y cobranzas, en los terminos de primer
parrafo del Articulo dos mil quinientos cincuenta y cuatro del Codigo Civil para
el Distrito Federal y correlativos de los Estados de la Republica, que es
limitado en cuanto a su objeto, pero tan amplio como sea necesario, para ser
ejercido en cualquier jurisdiccion y a efecto de que, en nombre y representacion
de la Otorgante, reciba toda clase de notificaciones y emplazamientos de
cualquier naturaleza en relacion con cualquier demanda, accion, procedimiento o
juicio, incluyendo sin limitacion alguna procedimientos judiciales,
administrativos o arbitrales, derivados del Contrato de Garantia (Guaranty
Agreement; el "Contrato de Garantia") de fecha [___] de [_______] de 2000,
celebrado entre la Otorgante, las acreditantes (Lenders) ahi descritas y ABN
AMRO Bank N.V. como agente administrativo. La Otorgante senala como domicilio
convencional para recibir cualesquiera de las notificaciones o emplazamientos
antes citados el ubicado en [___________________________], Estados Unidos de
America, o cualquier otro domicilio que en el futuro designe
[__________________________]. El presente poder es irrevocable, en virtud de que
se otorga en cumplimiento de una condicion prevista en el Contrato de Garantia
en terminos del Articule 2596 del Codigo Civil para el Distrito Federal y
correlativos de los Estados de la Republica.
5.02(e)-1
EXHIBIT D
ASSIGNMENT AGREEMENT
5.02(e)-1
EXHIBIT D
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Assignment Effective Date set forth below and is entered into by
and between [Insert name of Assignor Lender] (the "Assignor Lender") and [Insert
name of Assignee Lender] (the "Assignee Lender"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Credit Agreement
identified below (as amended from time to time, the "Credit Agreement"), receipt
of a copy of which is hereby acknowledged by the Assignee Lender. The Standard
Terms and Conditions set forth in Attachment 1 attached hereto are hereby agreed
to and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, the Assignor Lender hereby irrevocably
sells and assigns to the Assignee Lender, and the Assignee Lender hereby
irrevocably purchases and assumes from the Assignor Lender, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Assignment Effective Date inserted by the Agent as contemplated below (i)
all of the Assignor Lender's rights and obligations in its capacity as a Lender
under the Credit Agreement and the other Credit Documents to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor Lender under the respective
facilities identified below (including without limitation any Letters of Credit
or Guaranties included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor Lender (in its capacity as a Lender) against any
Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other Credit Document or the Loans and other transactions
governed thereby or in any way based on or related to any of the foregoing,
including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as, the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor Lender and, except as expressly
provided in this Assignment and Assumption, without representation or warranty
by the Assignor Lender.
1. Assignor Lender: ______________________________
2. Assignee Lender: ________________________________
3. Borrower: [Flextronics International Limited]
4. Agent: ABN AMRO Bank N.V., as agent under the
Credit Agreement
5. Credit Agreement: The Credit Agreement dated as of March 8,
2002 among Borrower, each of the financial
institutions from time to time listed in
Schedule I thereto, Agent and Fleet National
Bank, as co-lead arrangers, Deutsche Banc
Alex. Brown Inc., Bank of America, N.A.,
Citicorp USA, Inc. and Fleet National Bank,
as co-syndication agents, The Bank of Nova
Scotia, as senior managing agent, BNP
Paribas and Credit Suisse First Boston, as
managing agents and Fleet National Bank as
the issuer of letters of credit.
6. Assigned Interest: See Attachment 2.
[7. Assignment Effective Date: ______________](1)
Assignment Effective Date: _____________ ___, 20___ [TO BE INSERTED BY AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
________
(1) To be completed if the Assignor Lender and the Assignee Lender intend that
the minimum assignment amount is to be determined as of the Trade Date.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR LENDER
[NAME OF ASSIGNOR]
By:______________________________
Title:
ASSIGNEE LENDER
[NAME OF ASSIGNEE]
By:______________________________
Title:
[Consented to and](2) Accepted:
[NAME OF AGENT], as Agent
By_________________________________
Title:
[Consented to:](3)
[NAME OF RELEVANT PARTY]
By________________________________
Title:
___________________
(2) To be added only if the consent of the Agent is required by the terms of the
Credit Agreement.
(3) To be added only if the consent of the Borrower and/or other parties (e.g.,
Issuing Bank) is required by the terms of the Credit Agreement.
2
ATTACHMENT 1
TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor Lender. The Assignor Lender (a) represents and warrants
that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any Lien, or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Credit Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Credit Document or any Obligation or (iv) the
performance or observance by the Borrower, any of its Subsidiaries or Affiliates
or any other Person of any of their respective Obligations under any Credit
Document.
1.2. Assignee Lender. The Assignee Lender (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee Lender under
the Credit Agreement (subject to receipt of such consents as may be required
under the Credit Agreement), (iii) from and after the Assignment Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Agent or any other
Lender, and (v) if it is a lender not organized under the laws of the United
States, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to Section 2.13(b) of the Credit Agreement, duly
completed and executed by the Assignee Lender; and (b) agrees that (i) it will,
independently and without reliance on the Agent, the Assignor Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
2. Payments. From and after the Assignment Effective Date, the Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor Lender for
amounts which have accrued to but excluding the Assignment Effective Date and to
the Assignee Lender for amounts which have accrued from and after the Assignment
Effective Date.(4)
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in
- -------------------
(4) The Agent should consider whether this method conforms to its systems. In
some circumstances, the following alternative language may be appropriate: "From
and after the Assignment Effective Date, the Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignee Lender whether such amounts have accrued
prior to, on or after the Assignment Effective Date. The Assignor Lender and the
Assignee Lender shall make all appropriate adjustments in payments by the Agent
for periods prior to the Assignment Effective Date or with respect to the making
of this assignment directly between themselves."
D-1
any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption
shall be governed by, and construed in accordance with, the law of the State of
California.
D-2
ATTACHMENT 2
TO ASSIGNMENT AND ASSUMPTION
PART A
Commitments or Loans Commitments or Loans
Assigned After Assignment
----------------------------------------- -----------------------------------------
Facility B Facility B
Facility A Commitment/ Facility A Commitment/
Commitment Loan Commitment Loan
------------- ------------- ------------- -------------
Assignor Lender:
-------------- $------------ $------------ $------------ $------------
Assignee Lenders:
-------------- $------------ $------------ $------------ $------------
-------------- $------------ $------------ $------------ $------------
-------------- $------------ $------------ $------------ $------------
-------------- $------------ $------------ $------------ $------------
D(1)-1
PART B
[ASSIGNEE LENDER]
Domestic Lending Office:
[------------------------],
[------------------------],
[------------------------],
Eurodollar Lending Office:
[------------------------],
[------------------------],
[------------------------],
Address for Notices:
Wiring Instructions:
D(2)-1