EXHIBIT 4.5
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 8, 2002, is entered into by and
among:
(1) FLEXTRONICS INTERNATIONAL USA, INC., a California corporation
("Borrower");
(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. Borrower has requested Lenders to provide certain credit facilities to
Borrower.
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 FIL, Borrower or any of FIL's other 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.
"Applicable Lending Office" shall mean, with respect to any Lender
and any Borrowing, (i) in the case of any Base Rate Loan, such Lender's
Domestic Lending Office, and (ii) in the case of any LIBOR Loan, such
Lender's Euro-Dollar 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 mean Borrower's offices located at
2090 Fortune Drive, San Jose, California.
"Applicable Rate Page" shall mean the applicable Telerate Page on
which appears the London Interbank Offered Rate for deposits in Dollars 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).
"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.
"Borrower" shall have the meaning given to that term in clause (1)
of the introductory paragraph hereof.
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"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 if such
Business Day is related to a Borrowing consisting of LIBOR Loans, dealings
in Dollar deposits 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 FIL
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.
"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
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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 FIL 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 Borrower, any Guarantor or any of its or 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.
"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.
"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.
"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.
"Domestic Lending Office" shall mean, with respect to any Lender and
its Base Rate Loans, (a) initially, its 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
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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 Base Rate Loans will thereafter be maintained and for the account
of which all payments of principal of, and interest on, such Lender's Base
Rate Loans will thereafter be made.
"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 FIUI 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.
"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 FIL,
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.
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"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 FIL, Borrower or any Material Subsidiary under Section 414
of the IRC.
"Euro-Dollar Lending Office" shall mean, with respect to any Lender
and LIBOR Loans, (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 LIBOR Loans will thereafter be maintained
and for the account of which all payments of principal of, and interest
on, such Lender's LIBOR Loans will thereafter be made.
"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 FIUI Credit Agreement" shall mean the Credit Agreement
dated as of April 3, 2000, as amended, among FIUI, FHUI, ABN AMRO and
other lending institutions, and ABN AMRO, as agent for itself and such
other lending institutions.
"Existing FIUI Credit Documents" shall mean the "Credit Documents"
as defined in the Existing FIL Credit Agreement.
"Facility" shall mean Facility A or Facility B.
"Facility A" shall mean the revolving credit facility and letter of
credit subfacility provided to Borrower pursuant to Subparagraph 2.01(a).
"Facility A Borrowing" shall mean a borrowing consisting of all the
Facility A Loans of the same 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.
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"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
Borrower pursuant to Subparagraph 2.01(c).
"Facility B Borrowing" shall mean a borrowing consisting of all the
Facility B Loans of the same 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).
"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
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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.
"FHUI" shall mean Flextronics Holding USA, Inc. (formerly known as
The DII Group, Inc.), a Delaware corporation.
"FIL" shall mean Flextronics International Ltd., a Singapore
corporation.
"FIL Credit Agreement" shall mean the Credit Agreement dated the
date hereof among FIL, each of the financial institutions from time to
time party thereto and ABN AMRO, as agent, as amended or restated from
time to time.
"FIL Credit Documents" shall mean the FIL Credit Agreement and all
agreements, documents and instruments delivered to the agent or any Lender
under the FIL Credit Agreement.
"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.
"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:
(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
FIL Credit Agreement on the last day of such period, plus (C)
the current portion of the long-
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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 FIL
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
FIL, Borrower or any of FIL's other 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 FIL, the Eligible Material
Subsidiaries and other Subsidiaries of FIL 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
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
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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 Borrower or 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 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 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
Borrower pursuant
10
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
FIL, Borrower or any of FIL's other Subsidiaries with a Lender or its
Affiliates with respect to Obligations arising under this Agreement.
"Letter of Credit" shall have the meaning given to that term in
Subparagraph 2.01(b)(i).
"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 Dollars
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 Dollars 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 Dollars are offered to Agent in the London interbank
market or (ii) the rate at which deposits in Dollars 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.
11
"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 FIL and its
Subsidiaries taken as a whole, or Borrower and its Subsidiaries taken as a
whole; (b) the ability of Borrower to pay or perform its Obligations in
accordance with the terms of this Agreement and the other Credit Documents
or the ability of FIL to pay or perform its obligations in accordance with
the terms of the FIL 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 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 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 FIL,
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
12
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 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),
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 Borrower or
payable by Borrower thereunder.
"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).
"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:
13
(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.
"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-
14
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, with respect to any day in an
Interest Period for any Borrowing consisting of LIBOR Loans, the aggregate
of the reserve requirement rates (expressed as a decimal) in effect on
such day for eurodollar funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve Board) maintained by a
member bank of the Federal Reserve System. 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 Borrower,
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 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
15
$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 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 the subordinated indebtedness thereunder.
"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, 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 Borrower and its 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:
16
(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) (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 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 FIL 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 FIL 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 during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrower, 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 FIL's financial condition to substantially
the same criteria as were effective prior to such change in GAAP; provided,
however, that, until Borrower, 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, Borrower, 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
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
Borrower, Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written
17
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.
(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
Borrower 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 Dollars as Borrower 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
aggregate principal amount of all such Lender's Facility A Loans
then outstanding plus such Lender's Proportionate Share of the
aggregate amount available for drawing
18
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, Borrower may borrow, repay and reborrow
Facility A Loans until the Facility A Maturity Date.
(ii) Scheduled Payments. Borrower shall repay the principal
amount of the Facility A Loans in full on the Facility A Maturity
Date. Borrower 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 Borrower from time
to time during the period beginning on the Closing Date and ending
on the date thirty (30) days prior to the Facility A Maturity Date
such standby letters of credit under Facility A as 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
$50,000,000;
(B) Each Letter of Credit shall be an irrevocable
standby letter of credit in Dollars;
(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, Borrower 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. Borrower 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);
(B) The name and address of the beneficiary of the
requested Letter of Credit;
(C) The expiration date of the requested Letter of
Credit;
19
(D) The documentary conditions for drawing under the
requested Letter of Credit; and
(E) The date of issuance for the requested Letter of
Credit, which shall be a Business Day.
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 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.
(iii) Disbursement and Reimbursement.
(A) Disbursement. Issuing Bank shall notify 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, Borrower 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 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
Borrower receives such notice; provided, further, that
Borrower 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
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
Borrower 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,
20
defense or other right which Borrower 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
Borrower, 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 or without notice to or approval by Borrower,
with respect to Borrower's indebtedness under this Agreement;
provided, however, that this Subparagraph 2.01(b)(iii)(C)
shall not abrogate any right which Borrower 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 Borrower), 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 Borrower unless such Reimbursement
Payment has been thereafter recovered by Borrower 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 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
21
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 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 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 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, Borrower agrees
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 Borrower for acts or
events described in clauses (A) through (E) above, to the extent,
but only to the extent, of any damages suffered by Borrower
(excluding consequential damages) which Borrower proves 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 Borrower to the
extent permitted by law. Borrower hereby waives 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
22
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
Borrower 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 Dollars as Borrower may request
under Facility B (individually, a "Facility B Loan"); provided,
however, that no Facility B Lender shall have any obligation to make
a requested Facility B Loan if, after giving effect to such Loan,
the aggregate principal amount 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, Borrower may borrow,
repay and reborrow Facility B Loans until the Facility B Maturity
Date.
(ii) Scheduled Payments. Borrower shall repay the principal
amount of the Facility B Loans in full on the Facility B Maturity
Date. Borrower 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. Borrower 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 principal amount of such Borrowing, which shall be in the
minimum amount 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 Borrower for such Borrowing in accordance with
Subparagraph 2.03(b)(i); and
(e) The date of such Borrowing, which shall be a Business Day.
Borrower shall give each Notice of Borrowing to Agent at least three (3)
Business Days before the date of the requested Borrowing in the case of a
Borrowing consisting of LIBOR Loans and at least one (1) Business Day before the
date of the requested Borrowing in the case of a Borrowing consisting of Base
Rate Loans. Each Notice of Borrowing shall be signed by a Responsible Officer of
Borrower and delivered by first-class mail or facsimile to
23
Agent at the office or facsimile number and during the hours specified in
Paragraph 8.01; provided, however, that Borrower 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. Borrower 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
(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. 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 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. 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 three (3) Business Days prior to the last day
of each Interest Period for a Borrowing consisting of LIBOR Loans of
the Interest Period selected by 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 Borrower shall promptly
deliver to Agent the original of any Notice of Interest Period
Selection initially delivered by facsimile. If 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. 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, Borrower 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. Borrower
may elect different options with respect to different portions of
the affected Borrowing, in which
24
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.
2.04. Purpose. Borrower shall use the proceeds of the initial Loan to
repay on the Closing Date all indebtedness outstanding under the Existing FIUI
Credit Agreement, and thereafter Borrower 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.
(a) Commitment Limitations. The aggregate principal amount of all
Facility A Loans 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
shall not exceed the Total Facility A Commitment at such time. 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) Reduction or Cancellation of Commitments. Upon five (5) Business
Days prior written notice to Agent, Borrower may permanently reduce the
Total Facility A Commitment and/or the Total Facility B Commitment by the
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) Borrower may not reduce the Total Facility A Commitment
prior to the Facility A Maturity Date, if, after giving effect to
such reduction, 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) Borrower may not reduce the Total Facility B Commitment
prior to the Facility B Maturity Date if, after giving effect to
such reduction, the aggregate principal amount of all Facility B
Loans then outstanding would exceed the Total Facility B Commitment;
(iii) Borrower 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) Borrower 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).
25
2.06. Fees.
(a) Agent's Fee. Borrower 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. Borrower 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.
Borrower 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. Borrower 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). Borrower 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. Borrower 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). Borrower 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, Borrower 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.
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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),
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, Borrower may prepay, in
whole or in part, any Borrowing made to it, provided that:
(i) Borrower delivers to Agent prior written notice of such
prepayment, which notice shall be delivered (A) not less than three
(3) Business Days prior to the prepayment of any Borrowing
consisting of LIBOR Loans; and (B) 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 $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), Borrower 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. Borrower hereby grants 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), Borrower 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 Borrower.
2.08. Other Payment Terms.
(a) Place and Manner.
(i) Borrower 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 Applicable Lending Office.
(ii) Borrower shall make all payments hereunder in same day or
immediately available funds and without deduction or offset not
later than 11:00 a.m. (California time) and on the date due. Agent
shall promptly disburse to each Lender each payment received by
Agent for the account of such Lender.
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(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) Borrower shall pay principal of, interest on and all other
amounts related to each Borrowing in Dollars. Borrower shall pay
Commitment Fees and all other amounts payable under this Agreement
and the other Credit Documents in Dollars.
(ii) If any amounts required to be paid by Borrower 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 Borrower 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, Borrower
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 Borrower 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 Borrower 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 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, 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 the Base Rate plus two percent
(2.00%), such rate to change from time to time as the Base 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 Borrower at least one (1) Business Day prior to the date on which any
payment is due to Lenders hereunder that Borrower will not make such
payment in full, Agent shall be entitled to assume that Borrower has made
or will make such payment in full to Agent on such date and Agent may, in
reliance upon such 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 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 the
Federal Funds Rate for the first three (3) days and the Base Rate
thereafter. 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.
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2.09. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of 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 and amount 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 and amount 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 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
Borrower's 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 Borrower. 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 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 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
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 the Federal
Funds Rate for the first three (3) days and the Base Rate thereafter. 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, Borrower shall repay such amount to Agent, on demand, together
with interest thereon, for each day from the date such amount was
disbursed to Borrower until the date such amount is repaid to Agent, at
the interest rate applicable at the time to the Loans comprising such
Borrowing.
(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.
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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 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
30
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. 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 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, Agent
shall determine (which determination shall be conclusive and binding upon
Borrower absent manifest error) that (i) the LIBO Rate for such Interest
Period cannot be adequately and reasonably determined due to other
circumstances affecting the London interbank market, or (ii) 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 Borrower and the applicable
Lenders. After the giving of any such notice and until Agent shall
otherwise notify Borrower that the circumstances giving rise to such
condition no longer exist, Borrower's right to obtain, continue or convert
to Borrowings at the LIBO Rate shall be suspended. Any LIBOR Borrowings
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, such Lender shall immediately notify Agent and Borrower of
such Change of Law. Upon receipt of such notice, (i) Borrower's right to
obtain, continue or convert to LIBOR Loans shall be suspended until such
time as Agent shall notify Borrower and the applicable Lenders that the
circumstances giving rise to such suspension no longer exist, and (ii)
Borrower shall, if so requested by such Lender, immediately repay such
LIBOR Loans if such Lender shall notify 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 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 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
31
(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 Borrower 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 Borrower 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 Borrower receives 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 Borrower 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), Borrower 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 Borrower 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 Borrower receives 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 Borrower 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 Borrower to pay any amount pursuant to
Subparagraph 2.12(c) or Subparagraph 2.12(d) shall notify Borrower 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 Borrower 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 Borrower is 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 Borrower is obligated to pay pursuant
to Subparagraph 2.12(c) or Subparagraph 2.12(d) 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 Borrower 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
32
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 Borrower, as promptly as possible
thereafter, Borrower 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 Borrower showing payment thereof. If
Borrower fails 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, Borrower 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
Borrower 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. 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 United States of America shall notify Borrower whether such
Lender is entitled to receive payments on its Loans under this Agreement
from Borrower's Applicable Payment Office for the account of such Lender's
Applicable Lending Office without deduction or withholding of any income
taxes imposed (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.. Each
such Lender further agrees (A) promptly to notify Borrower 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 Borrower 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 Borrower pursuant to this Subparagraph 2.13(b)
(or, in the case of an Assignee Participant, Subparagraph 8.05(b)) 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 any certificate or document requested in writing by 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 Borrower 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
33
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, 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 Borrower 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 Borrower receives notice of such costs or losses from the
demanding party within twelve (12) months after such costs or losses have been
incurred or realized. Borrower understands 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 Borrower,
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 Borrower shall constitute prima
facie evidence of such costs and losses. The obligations of Borrower 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 by FIL and 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.
(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, Borrower 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. Borrower 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. Borrower 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, Borrower
covenants and agrees that it will ensure that the aggregate revenues of
the Subsidiaries that have
34
executed and delivered the Guaranty pursuant to this Agreement and the FIL
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 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 Borrower, 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 Borrower seeks to exercise such right, they must do so within sixty (60) days
after 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 Borrower; and
provided, further, that no Lender shall be replaced under this Agreement unless
such Lender is also replaced under the FIL 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:
(a) Borrower 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 FIL, Borrower and
FIL's 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 Borrower to Agent of each Notice of Borrowing and each LC
Application shall be deemed to be a representation and warranty by 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. Borrower agrees (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
35
such Credit Event occurs. Borrower expressly agrees 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 Borrower's obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrower's Representations and Warranties. In order to induce Agent
and Lenders to enter into this Agreement, Borrower hereby represents and
warrants to Agent and Lenders as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrower and its
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 Borrower
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.
(c) Enforceability. Each Credit Document executed, or to be
executed, by Borrower 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 Borrower 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 Borrower 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. None of FIL, Borrower, any other
Guarantor any of FIL's other 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,
none of FIL, Borrower, any other Guarantor or any of FIL's other
Subsidiaries (A) has violated any Environmental Laws, (B) to the knowledge
of 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 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.
36
(g) Litigation. No actions (including derivative actions), suits,
proceedings or investigations are pending or, to the knowledge of
Borrower, threatened against 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 Borrower or any Guarantor of the Credit
Documents or the transactions contemplated thereby.
(h) Title; Possession Under Leases. 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 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 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 FIL, 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 FIL, 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 FIL, Borrower
or any ERISA Affiliate of any material liability, fine or penalty.
Each Employee Benefit Plan, related trust agreement, arrangement and
commitment of FIL, 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 FIL, Borrower nor any ERISA Affiliate nor, to
the knowledge or 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 FIL, Borrower nor any ERISA Affiliate
contributes to or has any material contingent obligations to any
Multiemployer Plan. Neither FIL, Borrower nor any ERISA Affiliate
has incurred any material liability (including secondary liability)
to any
37
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 FIL, 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.
(k) Other Regulations. None of FIL, 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. FIL, 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. FIL, 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. FIL,
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. Borrower does not own any Margin Stock which, in
the aggregate, would constitute a substantial part of the assets of
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
Borrower 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
38
USA, Inc., Flextronics International Latin America (L) Ltd., Flextronics
International Sweden AB, Flextronics International Kft. and Flextronics
Hungaria Kft. 1.
(p) Solvency, Etc. FIL, Borrower, 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. Borrower has taken all actions necessary for the
Obligations to constitute "Designated Senior Debt" for the purposes of and
as defined in the Subordinated Indenture. Borrower 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, Borrower does not have 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 Borrower or any or Guarantor 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.
(s) Foreign Subsidiaries.
(i) No Immunities, etc. Each Foreign Subsidiary that is a
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,
39
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 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 Borrower or such 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 FIL, Borrower, 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 presentations,
FIL's and Borrower's best estimates of the future performance of FIL,
Borrower, the Guarantors and FIL's Subsidiaries.
4.02. Reaffirmation. 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 Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following affirmative covenants, unless
Required Lenders shall otherwise consent in writing:
(a) Financial Statements, Reports, etc. 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;
40
(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 FIL and 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 FIL and Borrower 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 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 FIL, Borrower or any of FIL's
Subsidiaries involving potential monetary damages payable by FIL,
Borrower or any of 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 FIL and Borrower setting forth
details of such event, condition or Default and the action which FIL
and Borrower propose to take with respect thereto;
(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 FIL,
Borrower 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 FIL,
Borrower 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 Borrower changes its legal name or the address
of its chief executive office, written notice setting forth
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 FIL, Borrower or
FIL's Subsidiaries, and compliance by 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.
41
(b) Books and Records. FIL, Borrower and FIL's other 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. FIL, Borrower and FIL's other 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 FIL, Borrower and FIL's other
Subsidiaries, to examine the books and records of FIL, Borrower and FIL's
other Subsidiaries and make copies thereof and to discuss the affairs,
finances and business of FIL, Borrower and FIL's other 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. FIL, Borrower and FIL's other 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. FIL,
Borrower and FIL's other Subsidiaries shall promptly pay and discharge
when due (i) all taxes and other Governmental Charges prior to the date
upon which penalties accrue thereon, (ii) all indebtedness which, if
unpaid, could become a Lien upon the property of FIL, Borrower or FIL's
other 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. Borrower shall use the proceeds of the Loans
only for the respective purposes set forth in Section II. Borrower shall
not 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 Borrower, any Lender
or Agent in a violation of Regulations T, U or X issued by the Federal
Reserve Board.
(g) General Business Operations. FIL, Borrower and FIL's other
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. Borrower shall take, or cause to be taken,
all actions necessary to ensure that the Obligations of Borrower are and
continue to rank at least pari passu in right of payment with all other
unsecured and unsubordinated Indebtedness of Borrower.
5.02. Negative Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrower of all Obligations, Borrower will comply, and
will cause compliance, with the following negative covenants, unless Required
Lenders shall otherwise consent in writing:
42
(a) Indebtedness. None of FIL, Borrower nor any of FIL's other
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 FIL, Borrower or any of FIL's
other Subsidiaries;
(ii) (A) Indebtedness under Capital Leases or under
purchase money loans incurred by FIL, Borrower or any of FIL's
other 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;
(iv) Indebtedness of Borrower or any Guarantor to FIL
or any Eligible Material Subsidiary or Indebtedness of any
Eligible Material Subsidiary to FIL, Borrower, 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 FIL, Borrower or any of FIL's
other 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 FIL, Borrower or any of FIL's other
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 FIL, Borrower, any
Eligible Material Subsidiary or any Guarantor on all or part
of the assets of Subsidiaries of FIL, Borrower, any Eligible
Material Subsidiary or any Guarantor securing Indebtedness
owing by Subsidiaries of any of FIL, Borrower, any Eligible
Material Subsidiary or any Guarantor, as the case may be, to
any of FIL, Borrower 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
43
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 FIL, Borrower or any of
FIL's other Subsidiaries 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 FIL, Borrower or any of FIL's other
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;
(viii) Liens in favor of the agent for the benefit of
the lenders and the agent under the FIL 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, FIL, Borrower or any of FIL's other 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 FIL, Borrower or any of FIL's
other 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
44
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 FIL, Borrower or any Subsidiary from FIL,
Borrower or any 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 FIL, Borrower or any
of FIL's other 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) FIL, Borrower and any of FIL's other Subsidiaries
may merge with each other, provided that (A) in any such
merger involving Borrower, 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) FIL, Borrower and FIL's other 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;
(B) Such Person is not primarily engaged in
any business substantially different from (1) the
present business of FIL, Borrower or such Subsidiary
or (2) any business reasonably related thereto; and
(C) FIL, Borrower or such Subsidiary possess
the power to direct or cause the direction of the
management and policies of such Person.
(e) Investments. None of FIL, Borrower or any of FIL's other
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 FIL, Borrower and FIL's
other 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 FIL, Borrower, the Material
Subsidiaries and the Guarantors directly or indirectly in each
other;
45
(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 FIL, Borrower and FIL's other
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 FIL,
Borrower and FIL's other 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 FIL, Borrower or any
of FIL's other 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 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 FIL, Borrower or any of FIL's other
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 FIL, Borrower or any of FIL's
other 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 FIL, Borrower 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
46
subject FIL, 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 FIL, Borrower or any of FIL's other
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 FIL, Borrower or any
of FIL's other Subsidiaries shall enter into any Contractual Obligation
with any Affiliate (other than FIL, Borrower or one of FIL's other
Subsidiaries) or engage in any other transaction with any such
Affiliate except (A) upon terms at least as favorable to FIL, 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 FIL, Borrower or any of FIL's
other Subsidiaries shall change (i) their fiscal year (currently April
1 through March 31) or (ii) their accounting practices except as
required by GAAP.
(k) Burdensome Contractual Obligations. None of FIL, Borrower
or any of FIL's other 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 Borrower 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 FIL, Borrower or any of FIL's other
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 Borrower of all Obligations, Borrower will cause FIL
to comply 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.
47
(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. 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 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. FIL, Borrower or any of FIL's other
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. FIL, Borrower or any of FIL's other
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) Borrower's written
acknowledgement of such failure and (ii) Agent's or any Lender's
written notice to Borrower 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
Borrower 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 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
48
delivered to Borrower 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) 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 Borrower that such
representation, warranty, certificate, information or other statement
was false, incorrect, incomplete or misleading in any material respect;
or
(e) Cross-Default. (i) FIL, 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 FIL, 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) FIL, 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 FIL,
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. FIL, 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 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, 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 FIL, 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 FIL,
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 FIL, Borrower and/or FIL's other
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 FIL or Borrower and otherwise satisfying the requirements
set forth in Subparagraph 5.01(d) to which the insurer does not dispute
coverage) shall be rendered against FIL, Borrower and/or FIL's other
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 FIL, Borrower or any of FIL's
other 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
49
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 FIL, Borrower or any other
Guarantor not to be, a legal, valid and binding obligation of FIL,
Borrower or any other 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 Borrower, (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 Borrower 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 Borrower 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 Borrower hereunder shall
automatically become 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. 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 FIL, Borrower or any of
FIL's other 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
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by FIL, Borrower or any other 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 FIL, Borrower or any other 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 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 Borrower
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 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 FIL,
Borrower and FIL's other 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 FIL, Borrower or any other 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 FIL,
Borrower or any of FIL's Subsidiaries; (b) have any duty or responsibility to
provide any Lender with any credit or other information concerning FIL, Borrower
or any of FIL's Subsidiaries which may come into the possession of Agent, except
for notices, reports and other documents
51
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 FIL, Borrower, any of FIL's Subsidiaries or
any officer, employee or agent of FIL, Borrower or any of FIL's Subsidiaries 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 FIL, Borrower or any
other 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 Borrower 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 Borrower; provided, however, that Borrower 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 and Issuing Bank in their 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 FIL,
Borrower and any of FIL's other 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
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
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
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.
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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
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.
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 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 Borrower 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. Borrower agrees 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,
53
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 FIL, Borrower or any of FIL's other
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
Borrower 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, Borrower
agrees 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, or any of them, arising out of or
relating to the Credit Documents or any transaction contemplated thereby,
including without limitation any use by 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 Borrower or with respect
to which Borrower has 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 Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by Borrower 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 Borrower shall, upon the
written request of such Lender, agree to repay the amount paid over to Borrower
(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 Borrower 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 Borrower 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 Borrower 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 Borrower 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
54
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 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 Borrower,
Lenders, Agent, all future holders of the Notes and their respective
successors and permitted assigns, except that 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 Borrower 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
55
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. Borrower also agrees 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 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 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;
56
(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 FIL 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 to such
Assignee Lender an equal pro rata interest in its "Facility B
Commitment" and "Facility B Loans" under the FIL 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 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, Borrower, at its
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
Borrower 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 Borrower, 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 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 Borrower, 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 Borrower. Agent may, from time to time at its election,
prepare and deliver to Lenders and Borrower a revised Schedule I
reflecting the names, addresses and respective Commitments or Loans of
all Lenders then parties hereto.
57
(f) Confidentiality. Subject to Paragraph 8.12, Agent and
Lenders may disclose the Credit Documents and any financial or other
information relating to Borrower 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 Borrower, any such
notice and consent being expressly waived by Borrower 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 Borrower any amount owing from such Lender to Borrower.
The aforesaid right of set-off may be exercised by such Lender against
a or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or
attachment creditor of Borrower or against anyone else claiming through
or against Borrower 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 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,
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 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 BORROWER, 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. Reserved.
8.12. Confidentiality. Neither any Lender nor Agent shall disclose to
any Person any information with respect to FIL, Borrower, any Guarantor or any
of FIL's other 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
58
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 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 Borrower promptly of such
summons or subpoena if not prohibited by any Requirement of Law and, if
requested by Borrower and not disadvantageous to such Lender or Agent, to
cooperate with Borrower in obtaining a protective order restricting such
disclosure, and (ii) any disclosure made in violation of this Agreement shall
not affect the obligations of FIL, Borrower or any other Guarantor under this
Agreement and the other Credit Documents.
8.13. Consent to Jurisdiction. 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 the other Credit Documents may be
brought against such party in any such courts. Final judgment against 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 Borrower
in any other appropriate jurisdiction, or concurrently in more than one
jurisdiction, or to serve process, pleadings and other papers upon Borrower in
any manner authorized by the laws of any such jurisdiction. 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.
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 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 Borrower to pay or allow any Lender to
collect interest on any Loan or any other Obligation of 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 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 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 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
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 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 Borrower, then the
Lenders shall refund to 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, Borrower
shall not be required to pay any unearned interest on any
59
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.
[The first signature page follows.]
60
IN WITNESS WHEREOF, Borrower, 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 USA, INC.
By:
----------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
AGENT: ABN AMRO BANK N.V.,
As Agent
By:
----------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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
S-7
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-8
S-9
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:
----------------------------------------
S-10
By:
----------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
S-11
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-12
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-13
SCHEDULE I
LENDER'S COMMITMENTS
LENDER FACILITY A COMMITMENT FACILITY B 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 $8,333,333.33 $4,166,666.67 $12,500,000.00
(publ)
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. USA Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA. Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
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 USA, Inc.
Attn: Commercial Loan Operations
I-20
SCHEDULE II
PRICING GRID
FACILITY A
APPLICABLE APPLICABLE
MARGIN MARGIN
FOR FOR
LIBOR RATE LIBOR RATE
BORROWINGS AND LC BORROWINGS AND LC
APPLICABLE USAGE FEE WHEN USAGE FEE WHEN
FIL'S MARGIN COMBINED TOTAL COMBINED TOTAL
SENIOR DEBT FOR TOTAL COMMITMENT TOTAL COMMITMENT COMMITMENT FEE
RATING PRICING BASE RATE USAGE USAGE PERCENTAGE
LEVEL BORROWINGS IS < 33% IS > 33%
-
> 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%
< BB- / Ba3 5 0% 1.750% 2.250% 0.500%
-
FACILITY B
APPLICABLE APPLICABLE
MARGIN MARGIN
FOR FOR
APPLICABLE LIBOR RATE LIBOR RATE
FIL'S MARGIN BORROWINGS WHEN BORROWINGS WHEN
SENIOR FOR COMBINED TOTAL COMBINED TOTAL COMMITMENT FEE
DEBT PRICING BASE RATE COMMITMENT USAGE COMMITMENT USAGE PERCENTAGE
RATING LEVEL BORROWINGS IS < 33% IS > 33%
-
> 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%
< BB- / Ba3 5 0% 1.750% 2.250% 0.375%
-
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
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, 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, 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, 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, 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, directors and attorneys of
3.01-1
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 FIL, Borrower or any of FIL's other 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
FIL, Borrower, Guarantors and FIL's other 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.
3.01-2
(1) A duly completed and timely delivered Notice of Borrowing
for the applicable Borrowing;
(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 Borrower 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 FIUI 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
FIUI Credit Agreement are terminated and of no further force and
effect;
(6) A certificate of the Chief Financial Officer of FIL on
behalf of Borrower, 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 BORROWER]
4.01(o)-1
SCHEDULE 5.02(a)
EXISTING SECURED INDEBTEDNESS
[TO BE PROVIDED BY BORROWER]
5.02(a)-1
SCHEDULE 5.02(e)
EXISTING INVESTMENTS
[TO BE PROVIDED BY BORROWER]
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 USA,
Inc. ("Borrower"), , 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, Borrower hereby
irrevocably requests a Borrowing to be made upon the following terms:
(a) The requested Borrowing is to be under Facility [__];
(b) The principal amount of such Borrowing is 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]; and
(e) The date of such Borrowing is to be __________, ____.
3. 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 FIL, Borrower and
FIL's other 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 .
IN WITNESS WHEREOF, Borrower has executed this Notice of Borrowing on
the date set forth above.
FLEXTRONICS INTERNATIONAL USA, INC.
By:
----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
A-1
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 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, 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 USA,
Inc. ("Borrower"), Lenders and Agent, Lenders have agreed to extend certain
credit facilities to Borrower upon the terms and subject to the conditions set
forth therein. Each Guarantor 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 Borrower
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.
"Alternative Currency" shall mean any currency (other than
United States Dollars).
"Borrower" 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 Borrower or its
property seeking the dissolution, liquidation, reorganization,
rearrangement or other relief of 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 Borrower or any substantial part of its property or any general
assignment by Borrower
C-1
for the benefit of its creditors, whether or not any such suit, action,
case or other proceeding is voluntary or involuntary.
"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 Borrower in such Debtor
Relief Proceeding.
"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.
"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 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 Borrower
or payable by 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.
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"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.
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
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 Borrower
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 Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations or whether 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.
C-3
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 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:
(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 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 Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations, (B) proceed against or exhaust any security
received from Borrower, such Guarantor, any other Guarantor or any
other guarantor of the Guaranteed Obligations or otherwise marshal the
assets of 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
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 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 Borrower or any defense
which results from any disability or other defense of Borrower or the
cessation or stay of enforcement from any cause whatsoever of the
liability of 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;
C-4
(vi) Until all obligations of Agent or any Lender to extend
credit to Borrower 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 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;
(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 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 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 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 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"),
C-5
which are not reproduced herein by express declaration that the
contents of such articles are known to the Mexican Guarantor.
(d) Financial Condition of Borrower, Etc. Each Guarantor is
fully aware of the financial condition and affairs of Borrower. Each
Guarantor has executed this Guaranty without reliance upon any
representation, warranty, statement or information concerning 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 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 Borrower and
of other circumstances affecting the risk of 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 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 Borrower), each Guarantor may receive
regularly scheduled payments from 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 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 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 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 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")
C-6
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.
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 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.
C-7
(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 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 the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base 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, 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.
C-8
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.
(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.
C-9
(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.
(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
C-10
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 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 USA, Inc. ("Borrower"), Lenders and Agent, Lenders have agreed to
extend certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein.
B. Lenders' obligations to extend the credit facilities to
Borrower 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 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 USA, Inc.
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)
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
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 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