EXHIBIT 4.01
EXECUTION VERSION
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of September 2, 2003, is entered into by and among:
(1) FLEXTRONICS INTERNATIONAL LTD., a Singapore corporation
("Borrower");
(2) Each of the financial institutions listed in Schedule I to
the Credit Agreement referred to in Recital A below (collectively, the
"Lenders") constituting Required Lenders; and
(3) ABN AMRO BANK N.V. ("ABN AMRO"), as agent for the Lenders
(in such capacity, "Agent").
RECITALS
A. Borrower, the Lenders and Agent are parties to that certain
Credit Agreement, dated as of March 8, 2002 (as amended pursuant to that certain
First Amendment to Credit Agreement, dated as of March 7, 2003, the "Credit
Agreement").
B. Borrower has requested that the Lenders constituting Required
Lenders and Agent amend the Credit Agreement in certain respects.
C. The Lenders executing this Amendment and Agent are willing to
so amend the Credit Agreement upon the terms and subject to the conditions set
forth below.
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, Borrower, the Lenders executing this Amendment and Agent hereby
agree as follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined
above and elsewhere in this Amendment shall be used herein as so defined. Unless
otherwise defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment. The rules of construction set forth in Section I of the Credit
Agreement shall, to the extent not inconsistent with the terms of this
Amendment, apply to this Amendment and are hereby incorporated by reference.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of
the conditions set forth in paragraph 4 below, the Credit Agreement is hereby
amended as follows:
(a) Paragraph 1.01 is hereby amended by changing the
definition of the term "EBITDA" set forth therein to read in its
entirety as follows:
"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.
plus
(d) For the fiscal quarter periods
ending on September 30, 2003, December 31, 2004,
March 31, 2004 and June 30, 2004, an amount, not to
exceed $110,000,000, equal to the charges incurred by
FIL constituting a "Loss on Early Extinguishment of
Debt" (as such term is used in GAAP) in connection
with the early redemption by FIL of its 9.875% Senior
Subordinated Notes due 2010.
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.
(b) Clauses (i), (iii) and (iv) of Paragraph 5.01(a) are
hereby amended by changing the references therein from "chief financial
officer, treasurer or controller" to
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"chief executive officer, chief operating officer, chief financial
officer, treasurer, assistant treasurer, controller or senior vice
president of finance".
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Agent and the Lenders that the following are true and
correct on the date of this Amendment and that, after giving effect to
the amendments set forth in paragraph 2 above, the following will be
true and correct on the Effective Date:
(a) The representations and warranties of Borrower and
its 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 (except for representations and warranties expressly made as
of a specified date, which are true and correct in all material
respects as of such date);
(b) No Default has occurred and is continuing; and
(c) Each of the Credit Documents is in full force and
effect.
(Without limiting the scope of the term "Credit Documents," Borrower expressly
acknowledges in making the representations and warranties set forth in this
paragraph 3 that, on and after the date hereof, such term includes this
Amendment.)
4. EFFECTIVE DATE. The amendments effected by paragraph 2 above
shall become effective on September 2, 2003 (the "Effective Date"), subject to
receipt by the Lenders executing this Amendment and Agent, on or prior to the
Effective Date of the following, each in form and substance satisfactory to the
Lenders executing this Amendment, Agent and their respective counsel, as
applicable:
(a) This Amendment duly executed by Borrower, the Lenders
constituting Required Lenders and Agent;
(b) A letter in the form of Attachment A hereto
appropriately completed and duly executed by each Guarantor; and
(c) A Certificate of the Secretary of Borrower, dated the
Effective Date, certifying that the Memorandum and Articles of
Association of Borrower, in the form delivered to Agent on the Closing
Date, are in full force and effect and have not been amended,
supplemented, revoked or repealed since such date.
5. EFFECT OF THIS AMENDMENT. On and after the Effective Date,
each reference in the Credit Agreement and the other Credit Documents to the
Credit Agreement shall mean the Credit Agreement as amended hereby. Except as
specifically amended above, (a) the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
confirmed and (b) the execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power, or remedy of the Lenders or Agent, nor constitute a waiver of any
provision of the Credit Agreement or any other Credit Document.
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6. MISCELLANEOUS.
(a) Counterparts. This Amendment 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.
(b) Headings. Headings in this Amendment are for
convenience of reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by
and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
[The Signature Pages Follow]
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IN WITNESS WHEREOF, Borrower, Agent and the Lenders executing this
Amendment have caused this Amendment to be executed as of the day and year first
above written.
BORROWER: FLEXTRONICS INTERNATIONAL LTD.
By: _______________________________________
Name: ________________________________
Title: ________________________________
AGENT: ABN AMRO BANK N.V.,
As Agent
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
LENDERS: ABN AMRO BANK N.V.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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AIB INTERNATIONAL FINANCE
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
DEUTSCHE BANK TRUST COMPANY
AMERICAS (FORMERLY BANKERS TRUST COMPANY)
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
BANK OF AMERICA, N.A.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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BEAR XXXXXXX CORPORATE LENDING INC.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
BNP PARIBAS
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
CITICORP USA, INC.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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COMERICA BANK
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
CREDIT SUISSE FIRST BOSTON
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
DANSKE BANK A/S
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
FLEET NATIONAL BANK
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
MIZUHO CORPORATE BANK, LIMITED
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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KEY CORPORATE CAPITAL, INC.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
XXXXXX COMMERCIAL PAPER INC.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
ROYAL BANK OF CANADA
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
THE BANK OF NOVA SCOTIA
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
UNION BANK OF CALIFORNIA, N.A.
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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U.S. BANK NATIONAL ASSOCIATION
By: _______________________________________
Name: ________________________________
Title: ________________________________
By: _______________________________________
Name: ________________________________
Title: ________________________________
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ATTACHMENT A
GUARANTOR CONSENT LETTER
September 2, 2003
TO: ABN AMRO BANK, N.V.,
As Agent for the Lenders under the Credit Agreement referred to below
1. Reference is made to the following:
(a) The Credit Agreement dated as of March 8, 2002 (as
amended, the "Credit Agreement") among Flextronics International Ltd.
("Borrower"), the financial institutions which are from time to time
parties thereto (the "Lenders"), and ABN AMRO Bank, as agent for the
Lenders ("Agent");
(b) The Guaranty dated as of March 8, 2002 (the
"Guaranty") executed by each of the undersigned (each a "Guarantor,"
and collectively, the "Guarantors") in favor of the Lenders and Agent;
and
(c) The Second Amendment to Credit Agreement dated as of
September 2, 2003 (the "Second Amendment") among Borrower, the Lenders
constituting Required Lenders and Agent.
2. Each Guarantor hereby consents to the Second Amendment. Each
Guarantor expressly agrees that such amendment shall in no way affect or alter
the rights, duties, or obligations of Guarantor, the Lenders or Agent under the
Guaranty.
3. From and after the date hereof, the term "Credit Agreement" as
used in the Guaranty shall mean the Credit Agreement, as amended by the Second
Amendment.
4. The Guarantors' consent to the Second Amendment shall not be
construed (i) to have been required by the terms of the Guaranty or any other
document, instrument or agreement relating thereto or (ii) to require the
consent of the Guarantors in connection with any future amendment of the Credit
Agreement or any other Credit Document.
5. Each Guarantor represents and warrants to Agent that (i) the
corporate documents and resolutions (such items, the "Guarantor Deliverables")
of such Guarantor are in the form delivered to Agent on the Closing Date (as
defined in the Credit Agreement) or the date such Guarantor became a party to
the Guaranty, as applicable, and (ii) such Guarantor's Guarantor Deliverables
are in full force and effect and have not been amended, supplemented, revoked or
repealed since such date.
IN WITNESS WHEREOF, each Guarantor has executed this Guarantor Consent
Letter as of the day and year first written above.
FLEXTRONICS INTERNATIONAL USA, INC.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS HOLDING USA, INC.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS INTERNATIONAL LATIN
AMERICA (L) LTD.
By: ______________________________
Name: _______________________
Title: _______________________
FLEX INTERNATIONAL MARKETING (L)
LTD.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS MANUFACTURING
MEXICO, S.A. DE C.V.
By: ______________________________
Name: _______________________
Title: _______________________
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FLEXTRONICS INTERNATIONAL SINGAPORE
PTE LTD.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS HOLDINGS (UK) LIMITED
By: ______________________________
Name: _______________________
Title: _______________________
MULTILAYER TECHNOLOGY, INC.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS USA, INC.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS ENCLOSURES, INC.
By: ______________________________
Name: _______________________
Title: _______________________
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FLEXTRONICS DISTRIBUTION, INC.
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS TECHNOLOGY (SHAH ALAM)
SDN BDH
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS MANUFACTURING
FRANCE SNC
By: ______________________________
Name: _______________________
Title: _______________________
FLX CYPRUS LIMITED
By: ______________________________
Name: _______________________
Title: _______________________
IEC HOLDINGS LTD.
By: ______________________________
Name: _______________________
Title: _______________________
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FLEXTRONICS (MALAYSIA) SDN BDH
By: ______________________________
Name: _______________________
Title: _______________________
FLEXTRONICS INDUSTRIAL (MALAYSIA)
SDN BDH
By: ______________________________
Name: _______________________
Title: _______________________
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