Exhibit 10.03
AMENDMENT NO. 2 dated as of July 14, 2004 (this
"Amendment"), to the Credit Agreement dated as of March 3,
2004 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among FLEXTRONICS
INTERNATIONAL USA, INC., a California corporation (the
"Borrower"), the financial institutions party to the Credit
Agreement as Lenders (the "Lenders"), and ABN AMRO BANK N.V.,
as Agent.
A. Pursuant to the Credit Agreement, the Lenders have extended and
agreed to extend credit to the Borrower on the terms and subject to the
conditions set forth therein. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
B. The Borrower has requested that the Lenders amend the Credit
Agreement to, among other things (a) provide for a decrease in the Total
Commitment and a decrease in the Commitment of each Lender as set forth on Annex
I hereto and (b) permit the Borrower to further decrease or increase the Total
Commitment after the date of this Amendment upon written notice to the Lenders,
provided that the Combined Total Commitment does not exceed $1,100,000,000. The
Lenders are willing so to amend the Credit Agreement on the terms and subject to
the conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Section 1.01. (a) Section 1.01 of the
Credit Agreement is hereby amended by deleting the definition of the term "Total
Commitment" in its entirety and replacing it with the following:
"Total Commitment" shall mean, at any time, the sum at such time of
the Lenders' Commitments. The Total Commitment as of July 14, 2004 is Two
Hundred Million Dollars ($200,000,000).
(b) The term "EBITDA" in Section 1.01 of the Credit Agreement is
hereby amended by deleting the text "September 30, 2004" in clause (d) thereof
and substituting "June 28, 2004" therefore.
SECTION 2. Amendment to Section 2.01. Clause (i)(A) of Subparagraph
2.01 (b) is hereby amended by inserting the text "the lesser of (i) the Total
Commitment and (ii)" after the text "shall not exceed."
SECTION 3. Amendment to Section 2.05. (a) Section 2.05 of the Credit
Agreement is hereby amended by adding the following Subparagraph 2.05(d) at the
end of such Section:
2
"(d) Increases and Decreases in Commitments. Upon five (5) Business
Days prior written notice to the Lenders and Agent in the form attached
hereto as Exhibit A-2 or another form acceptable to Agent, the Borrower
may (without the consent of any Lender) increase or decrease the Total
Commitment by Five Million Dollars ($5,000,000) or integral multiples
thereof by reallocating between "Commitments" under the FIL Credit
Agreement and "Commitments" under this Agreement; provided, however that:
(i) any increase (or decrease) in the Total Commitment pursuant to
this Subparagraph 2.05(d) shall automatically result in (and be
subject to) a corresponding decrease (or increase) in the "Total
Commitment" under the FIL Credit Agreement;
(ii) any increase (or decrease) in a Lender's Commitment pursuant to
this Subparagraph 2.05(d) shall automatically result in (and be
subject to) a corresponding decrease (or increase) in such Lender's
"Commitment" under the FIL Credit Agreement;
(iii) the Combined Total Commitment shall not exceed One Billion One
Hundred Million Dollars ($1,100,000,000), as permanently reduced
pursuant to Subparagraph 2.05(b) of this Agreement and Subparagraph
2.05(c) of the FIL Credit Agreement;
(iv) each Lender's Combined Commitment shall not exceed the amount
set forth under the caption "Combined Commitment" in Part A of
Schedule I, as permanently reduced pursuant to Subparagraph 2.05(b)
of this Agreement and Subparagraph 2.05(c) of the FIL Credit
Agreement;
(v) the Borrower may not reduce the Total Commitment prior to the
Maturity Date if, after giving effect to such reduction, the
aggregate principal amount of all Loans then outstanding plus the
aggregate amount available for drawing under all Letters of Credit
plus the aggregate amount of all Reimbursement Obligations
outstanding at such time would exceed the Total Commitment; and
(vi) no Default or Event of Default under this Agreement and no
"Default" or "Event of Default" under the FIL Credit Agreement has
occurred and is continuing or would result from such increase or
decrease in the Total Commitment.
(b) Subparagraph 2.05(c) is hereby amended by (i) adding the text
"(except as set forth in Subparagraph 2.05(d))" after the text "reduced or
cancelled" and (ii) adding the following text at the end of such Subparagraph:
"Any increase in the Total Commitment shall be applied to increase
each Lender's Commitment pro rata according to such Lender's Proportionate
Share."
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SECTION 4. Amendment to Section 2.06. Section 2.06 of the Credit
Agreement is hereby amended by adding the following new Subparagraph (d) at the
end of such Section:
"(d) Utilization Fee. For each day on which the sum of (i) the Used
Commitment and (ii) the "Used Commitment" as defined in the FIL Credit
Agreement is equal to or greater than 33% of the Combined Total Commitment
on such day (and for each day after the day on which the Commitments
terminate), the Borrowers agree to pay to the Agent, in US Dollars, for
the account of each Lender, a utilization fee, which shall accrue at the
rate under the column "Utilization Fee" on Schedule II on the daily amount
of the Used Commitment, to be paid to the Lenders based on each Lender's
Proportionate Share. Accrued utilization fees shall be payable in arrears
on the last day of March, June, September and December of each year, on
any date prior to the Maturity Date on which the Commitments terminate and
on the Maturity Date commencing on September 30,2004, provided that any
utilization fees accruing after the Maturity Date shall be payable on
demand. All utilization fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day)."
SECTION 5. Amendment to Section 5.01. Section 5.01 is hereby amended
by deleting Subparagraph 5.01(k) in its entirety and substituting the following
therefor:
"(k) Flextronics Hungaria Kft. In the event that Flextronics
Hungaria Kft. (x) has not been liquidated or dissolved by September 30,
2004, and (y) is a "Material Subsidiary" as of such date, then, within
five (5) Business Days of such date, Borrower shall cause Flextronics
Hungaria Kft. to (i) complete and execute a Subsidiary Joinder and (ii)
deliver or cause to be delivered such other instruments, agreements,
certificates, opinions and documents as Agent may reasonably request."
SECTION 6. Amendment to Section 8.04. Subparagraph 8.04(i) is hereby
amended by inserting the text "(other than as provided in Subparagraph 2.05(e))"
after the text "(A) increase the Total Commitment."
SECTION 7. Amendments to Section 8.05. Subparagraph 8.05(c) is
hereby amended by deleting clause (iv) in its entirety and replace it with the
following:
"(iv) No Lender may make any Assignment of its Commitment and 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 such Lender's "Commitment" and "Loans" under the FIL
Credit Agreement; and"
SECTION 8. Amendments to Schedules and Exhibits (a) Part A of
Schedule I of the Credit Agreement is hereby deleted in its entirety and
replaced with the revised "Schedule I - Part A" attached hereto as Annex I.
4
(b) A new Exhibit A-2 is hereby added to the Credit Agreement in the
form attached hereto as Annex II.
(c) Schedule II of the Credit Agreement is hereby deleted in its
entirety and replaced with the revised Schedule II attached hereto as Annex III.
SECTION 9. Representations and Warranties. To induce the other
parties to enter into this Amendment, the Borrower represents and warrants to
the Agent and to each Lender that:
(a) This Amendment has been duly authorized, executed and delivered
by it and constitutes a legal, valid and binding obligation of such party
hereto, enforceable against it in accordance with its terms.
(b) After giving effect to this Amendment, the representations and
warranties set forth in Section IV of the Credit Agreement are true and correct
in all material respects on and as of the date hereof with the same effect as if
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date (in which case such
representations and warranties were true and correct as of such earlier date).
(c) The acquisition by the Borrower of a fifty-five percent (55%)
ownership interest in Hughes Software Systems is permitted under the Credit
Agreement.
(d) After giving effect to this Amendment, no Event of Default or
Default has occurred and is continuing.
SECTION 10. Conditions to Effectiveness. This Amendment shall become
effective as of the date first above written when (a) the Agent shall have
received (i) counterparts of this Amendment that, when taken together, bear the
signatures of each Borrower and each Lender and (ii) counterparts of Amendment
No. 2 to the FIL Credit Agreement dated the date hereof that, when taken
together, bear the signatures of FIL and each Lender party thereto, (b) the
representations and warranties set forth in Section 9 of this Amendment are true
and correct and (c) all expenses required to be paid or reimbursed by the
Borrower pursuant to this Amendment, the Credit Agreement, the FIL Credit
Agreement or otherwise, including all reasonable invoiced fees and expenses of
counsel to the Agent, shall have been paid or reimbursed, as applicable.
SECTION 11. Effect of Amendment. This Amendment shall apply and be
effective only with respect to the provisions of the Credit Agreement
specifically referred to herein and only for the circumstances referred to
herein. Any default under this Amendment shall constitute an Event of Default
under the Credit Agreement.
SECTION 12. APPLICABLE LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
5
SECTION 13. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one agreement. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 14. Expenses. The Borrower agrees to reimburse the Agent for
its reasonable out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore LLP, counsel for the Agent.
SECTION 15. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first written above.
FLEXTRONICS INTERNATIONAL USA,
INC.,
by /s/ THOMAS J. SMACH
------------------------------------
Name: THOMAS J. SMACH
Title: CFO
ABN AMRO BANK N.V., individually and
as Agent,
by /s/ WILLIAM W. DAVIDSON
------------------------------------
Name: WILLIAM W. DAVIDSON
Title: VICE PRESIDENT
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of institution Bank of America, N.A.
by /s/ JAMES P. JOHNSON
------------------------------------
Name: JAMES P. JOHNSON
Title: Managing Director
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution ALLIED IRISH BANKS Plc.
by /s/ Michael Doyle
------------------------------------
Name: MICHAEL DOYLE
Title: SENIOR VICE PRESIDENT
SIGNATURE PAGE TO
FUJI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution BANK AUSTRIA CREDITANSTALT AG
by /s/ K. Prauckl
------------------------------------
Name: K. Prauckl
Title: Ingo Bleler
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution BNP PARIBAS
by /s/ Rafael Lumanlan
------------------------------------
Name: Rafael Lumanlan
Title: Director
by /s/ Stuart Darby
------------------------------------
Name: Stuart Darby
Title: Vice President
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name Of Institution ABN-AMRO BANK N.V.
by /s/ WILLIAM W. DAVIDSON
------------------------------------
Name: WILLIAM W. DAVIDSON
Title: VICE PRESIDENT
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Citicorp USA, Inc.
by /s/ Spiegel
------------------------------------
Name: Spiegel
Title: V.P.
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
CREDIT SUISSE FIRST BOSTON ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
by: /s/ Peter Chauvin
-----------------------------
Peter Chauvin
Vice President
by: /s/ Alain Daoust
-----------------------------
Alain Daoust
Director
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Deutsche Bank AG, New York Branch
by /s/ Paul O'Leary
------------------------------------
Name: Paul O'Leary
Title: Vice President
/s/ Gregory Shefrin
---------------------------------------
Name: Gregory Shefrin
Title: Director
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution FLEET NATIONAL BANK
by /s/ JAMES P. JOHNSON
------------------------------------
Name: JAMES P. JOHNSON
Title: Managing Director
Attention: Bank of America, N.A.
Technology Group
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution HSBC Bank USA, NA
by /s/ David Wagstaff
------------------------------------
Name: David Wagstaff
Title: Senior Vice President
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Kereskedelmi es Hitel bank Rt.
by ___________________________________
Name:
Title:
/s/ Attila Paczoli /s/ Zoltan Petrov
------------------- ------------------------
Attila Paczoli Zoltan Petrov
Director Relationship Manager
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Key Bank National Association
by /s/ Robert W. Boswell
------------------------------------
Name: ROBERT W. BOSWELL
Title: VICE PRESIDENT
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution LEHMAN COMMERCIAL PAPER, INC.
by /s/ Francis J. Chang
------------------------------------
Name: Francis J. Chang
Title: Authorized Signatory
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Mizuho Corporate Bank, Ltd.
by /s/ Yuichi Hirashima
------------------------------------
Name: Yuichi Hirashima
Title: Deputy General Manager
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
TO Approve the Amendment:
Name of Institution Royal Bank of Canada
by /s/ Stephanie Babich-Allegra
------------------------------------
Name: Stephanie Babich-Allegra
Title: Authorized Signatory
SIGNATURE PAGE TO
FIU1 CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Skandinaviska Enskilda Banken AB (publ)
by /s/ Michael I Dicks
------------------------------------
Name: Michael I Dicks
Title: Head of DCM, London
by /s/ Martin Lindeberg
------------------------------------
Name: Martin Lindeberg
Title: Transaction Manager
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Sumitomo Mitsui Banking Corporation
by /s/ Leo E. Pagarigan
------------------------------------
Name: Leo E. Pagarigan
Title: Senior Vice President
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution The Bank of Nova Scotia
by /s/ Kemp Leonard
------------------------------------
Name: Kemp Leonard
Title: Director
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
UBS LOAN FINANCE LLC
By: /s/ Doris Mesa
------------------------------
Doris Mesa
Associate Director
Banking Products
Services, US
By: /s/ JOSELIN FERNANDES
------------------------------
Joselin Fernandes
Associate Director
Banking Products
Services, US
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution Union Bank of California, N.A.
by /s/ Sarabelle Hitchner
------------------------------------
Name: Sarabelle Hitchner
Title: Vice President
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT AMENDMENT
To Approve the Amendment:
Name of Institution U.S. Bank National Association
by /s/ Janet E. Jordan
------------------------------------
Name: Janet E. Jordan
Title: Vice President
ANNEX I
SCHEDULE I - PART A
NEW ALLOCATION
---------------------------------------------------
Combined
Institution Commitment FIL FIUI
- --------------------------------- --------------- ------------- -------------
ABN AMRO $ 85,000,000 $ 69,545,456 $ 15,454,544
Fleet $ 85,000,000 $ 69,545,455 $ 15,454,545
Bank of America $ 81,500,000 $ 66,681,818 $ 14,818,182
Citibank $ 81,500,000 $ 66,681,818 $ 14,818,182
Deutsche Bank AG, New York Branch $ 81,500,000 $ 66,681,818 $ 14,818,182
Credit Suisse First Boston $ 81,500,000 $ 66,681,818 $ 14,818,182
Scotia Capital $ 81,500,000 $ 66,681,818 $ 14,818,182
BNP Paribas $ 62,500,000 $ 51,136,364 $ 11,363,636
Key Bank $ 60,000,000 $ 49,090,909 $ 10,909,091
HSBC $ 50,000,000 $ 40,909,091 $ 9,090,909
UBS $ 50,000,000 $ 40,909,091 $ 9,090,909
Royal Bank of Canada $ 50,000,000 $ 40,909,091 $ 9,090,909
Lehman Brothers $ 50,000,000 $ 40,909,091 $ 9,090,909
Mizuho $ 35,000,000 $ 28,636,364 $ 6,363,636
Union Bank of California $ 30,000,000 $ 24,545,455 $ 5,454,545
Bank Austria $ 25,000,000 $ 20,454,545 $ 4,545,455
K&H Bank $ 25,000,000 $ 20,454,545 $ 4,545,455
US Bank $ 25,000,000 $ 20,454,545 $ 4,545,455
SE Banken $ 25,000,000 $ 20,454,545 $ 4,545,455
Sumitomo Mitsui $ 25,000,000 $ 20,454,545 $ 4,545,455
Allied Irish Bank $ 10,000,000 $ 8,181,818 $ 1,818,182
--------------- ------------- -------------
$ 1,100,000,000 $ 900,000,000 $ 200,000,000
ANNEX II
EXHIBIT A-2
NOTICE OF INCREASE OR DECREASE
IN TOTAL COMMITMENTS
[Date]
ABN AMRO Bank N.V.
as Agent
[_______________]
Attn: [_________________]
1. Reference is made to that certain Credit Agreement, dated as of March
3, 2004 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Flextronics International USA, Inc. ("Borrower").
Lenders, Fleet National Bank, as Issuing Bank, and ABN AMRO Bank N.V., as Agent.
Lenders have agreed to extend credit to Borrower upon the terms and subject to
the conditions set forth therein. Unless otherwise indicated, all terms defined
in the Credit Agreement have the same respective meanings when used herein.
2. Pursuant to Paragraph 2.05(d) of the Credit Agreement, Borrower hereby
requests [an increase] [a decrease] in the Total Commitment in the amount of
$[ ] and a corresponding [decrease] [increase] in the "Total Commitment" under
the FIL Credit Agreement.
3. Borrower hereby certifies to Lenders and Agent that, on the date of
this Notice and after giving effect to the requested [increase] [decrease] in
the Total Commitment:
(a) The representations and warranties 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 or will result from
such [increase] [decrease] in the Total Commitment.
(c) After giving effect to such [increase] [decrease] in the Total
Commitment (i) the Combined Total Commitment does not exceed $1,100,000,000 and
(ii) the Total Commitment is not less than the sum of (x) the then aggregate
principal amount of Loans outstanding, (y) the aggregate amount available for
drawing under all Letters of Credit and (z) the aggregate amount of all
Reimbursement Obligations then outstanding.
ANNEX II
IN WITNESS WHEREOF, Borrower has executed this Notice on the date
set forth above.
FLEXTRONICS INTERNATIONAL USA, INC.,
By: ___________________________________
Name: _____________________________
Title: ____________________________
FLEXTRONICS INTERNATIONAL LTD.,
By: ___________________________________
Name: _____________________________
Title: ____________________________
ANNEX III
SCHEDULE II
PRICING GRID
APPLICABLE
MARGIN
APPLICABLE FOR
FIL'S MARGIN LIBOR RATE
SENIOR FOR BORROWINGS COMMITMENT
DEBT PRICING BASE RATE AND LC UTILIZATION FEE
RATING LEVEL BORROWINGS USAGE FEE FEE PERCENTAGE
- ----------------- ------- ---------- ----------- ----------- ----------
> or = BBB / Baa2 1 0% 0.750% 0.250% 0.150%
BBB- / Baa3 2 0% 1.000% 0.250% 0.200%
BB+ / Bal 3 0.250% 1.250% 0.250% 0.250%
BB / Ba2 4 0.500% 1.500% 0.250% 0.350%
< or = BB- / Ba3 5 1.000% 2.000% 0.250% 0.500%
ANNEX III
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 Borrower will pay the utilization fee specified in the fifth
column above as provided in Section 2.06 of the Credit Agreement.