EXHIBIT 4.08
================================================================================
CREDIT AGREEMENT
among
FLEXTRONICS INTERNATIONAL USA, INC.
and
THE LENDERS NAMED HEREIN
and
ABN AMRO BANK N.V.,
as Co-Lead Arranger, Bookrunner and Agent for the Lenders
and
FLEET NATIONAL BANK,
as Co-Lead Arranger, Syndication Agent and Issuing Bank
and
CITICORP USA, INC.,
DEUTSCHE BANC SECURITIES INC., CREDIT SUISSE FIRST BOSTON,
BANK OF AMERICA, N.A., and SCOTIA CAPITAL
as Co-Syndication Agents
and
BNP PARIBAS and KEYBANK NATIONAL ASSOCIATION
as Senior Managing Agents
and
▇▇▇▇▇▇ COMMERCIAL PAPER INC., ROYAL BANK OF CANADA
HSBC BANK USA, UBS AG, STAMFORD BRANCH
as Managing Agents
March 3, 2004
================================================================================
TABLE OF CONTENTS
PAGE
SECTION I. INTERPRETATION.................................................................................1
1.01. Definitions....................................................................................1
1.02. GAAP..........................................................................................17
1.03. Headings......................................................................................17
1.04. Plural Terms..................................................................................17
1.05. Governing Law.................................................................................17
1.06. English Language..............................................................................17
1.07. Construction..................................................................................17
1.08. Entire Agreement..............................................................................18
1.09. Calculation of Interest and Fees..............................................................18
1.10. References....................................................................................18
1.11. Other Interpretive Provisions.................................................................18
SECTION II. CREDIT FACILITIES.............................................................................18
2.01. Loans and Letters of Credit...................................................................18
2.02. Notice of Borrowing...........................................................................23
2.03. Interest......................................................................................24
2.04. Purpose.......................................................................................25
2.05. Amount Limitations, Commitment Reductions, Etc................................................25
2.06. Fees..........................................................................................26
2.07. Prepayments...................................................................................26
2.08. Other Payment Terms...........................................................................27
2.09. Loan Accounts; Notes..........................................................................28
2.10. Loan Funding..................................................................................29
2.11. Pro Rata Treatment............................................................................29
2.12. Change of Circumstances.......................................................................30
2.13. Taxes on Payments.............................................................................32
2.14. Funding Loss Indemnification..................................................................33
2.15. Security......................................................................................34
2.16. Replacement of Lenders........................................................................34
SECTION III. CONDITIONS PRECEDENT..........................................................................35
3.01. Initial Conditions Precedent..................................................................35
3.02. Conditions Precedent to Each Credit Event.....................................................35
3.03. Covenant to Deliver...........................................................................35
SECTION IV. REPRESENTATIONS AND WARRANTIES................................................................35
4.01. Borrower's Representations and Warranties.....................................................35
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
4.02. Reaffirmation.................................................................................40
SECTION V. COVENANTS.....................................................................................40
5.01. Affirmative Covenants.........................................................................40
5.02. Negative Covenants............................................................................43
5.03. Financial Covenants...........................................................................48
SECTION VI. DEFAULT.......................................................................................49
6.01. Events of Default.............................................................................49
6.02. Remedies......................................................................................51
6.03. Lender Rate Contract Remedies.................................................................51
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.........................................................51
7.01. Appointment, Powers and Immunities............................................................51
7.02. Reliance by Agent.............................................................................52
7.03. Defaults......................................................................................52
7.04. Indemnification...............................................................................52
7.05. Non-Reliance..................................................................................52
7.06. Resignation or Removal of Agent...............................................................53
7.07. Agent in its Individual Capacity..............................................................53
7.08. Co-Arrangers, Co-Syndication Agents, Senior Managing Agents Managing Agents and
Documentation Agent...........................................................................53
SECTION VIII. MISCELLANEOUS.................................................................................53
8.01. Notices.......................................................................................53
8.02. Expenses......................................................................................55
8.03. Indemnification...............................................................................55
8.04. Waivers; Amendments...........................................................................55
8.05. Successors and Assigns........................................................................56
8.06. Set-off; Security Interest....................................................................58
8.07. No Third Party Rights.........................................................................59
8.08. Partial Invalidity............................................................................59
8.09. Jury Trial....................................................................................59
8.10. Counterparts..................................................................................59
8.11. Confidentiality...............................................................................59
8.12. Consent to Jurisdiction.......................................................................59
8.13. Usury.........................................................................................60
ii
TABLE OF CONTENTS
(CONTINUED)
EXHIBITS PAGE
A Notice of Borrowing
B - Form of Note
C Form of Guaranty
D - Form of Assignment Agreement
iii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 3, 2004, 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 the
"Lenders");
(3) ABN AMRO BANK N.V. ("ABN AMRO"), as administrative agent
for the Lenders (in such capacity, "Agent") and as sole bookrunner (in
such capacity, the "Bookrunner");
(4) ABN AMRO and FLEET NATIONAL BANK, as co-lead arrangers
(collectively, in such capacity, the "Co-Arrangers");
(5) DEUTSCHE BANK SECURITIES INC., BANK OF AMERICA, N.A.,
CITICORP USA, INC., CREDIT SUISSE FIRST BOSTON and SCOTIA CAPITAL as
co-syndication agents (collectively, in such capacity, the
"Co-Syndication Agents");
(6) BNP PARIBAS and KEYBANK NATIONAL ASSOCIATION, as senior
managing agents (collectively, in such capacity, the "Senior Managing
Agents");
(7) ▇▇▇▇▇▇ COMMERCIAL PAPER INC., UBS AG, STAMFORD BRANCH,
HSBC BANK USA and ROYAL BANK OF CANADA as managing agents
(collectively, in such capacity, the "Managing Agents");
(8) FLEET NATIONAL BANK, as documentation agent (in such
capacity, the "Documentation Agent"); and
(9) FLEET NATIONAL BANK, as the issuer of letters of credit
hereunder, (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 fee letter agreement dated
as of January 20, 2004 between FIL and Agent.
"Agent's Fees" shall have the meaning given to that term in
Subparagraph 2.06(a) hereof.
"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 the 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 Margin 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 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇.
"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.
"Approved Fund" shall mean any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity
or an Affiliate of an entity that administers or manages a Lender.
"Assignee Lender" shall have the meaning given to that term in
Subparagraph 8.05(c) hereof.
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c) hereof.
"Assignment and Assumption" shall have the meaning given to
that term in Subparagraph 8.05(c) hereof.
"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) hereof.
"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 of one 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.
"Borrowing" shall mean a borrowing consisting of all the Loans
of the same Type (and same Interest Period if LIBOR Loans) made,
converted or continued by Lenders on the same date. Any reference to a
Borrowing shall include all the Loans constituting such 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) hereof.
"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 any Subordinated Indenture shall occur or
exist.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.12(b) hereof.
"Closing Date" shall mean March 3, 2004.
"Co-Arrangers" shall have the meaning given to that term in
clause (4) of the introductory paragraph hereof.
"Combined Commitment" shall mean, with respect to any Lender
under this Agreement at any time, the sum of (a) such Lender's
Commitment at such time and (b) such Lender's "Commitment" as defined
in the FIL Credit Agreement at such time.
"Combined Proportionate Share" shall mean:
(a) With respect to any Lender under this Agreement
or under the FIL Credit Agreement at any time prior to the
termination of the Commitments, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the
decimal point) of (i) such Lender's Combined Commitment at
such time to (ii) the Combined Total Commitment at such time;
and
(b) With respect to any Lender under this Agreement
or under the FIL Credit Agreement at any time after the
termination of the 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 Loans owed to such Lender
and outstanding at such time under this Agreement, (B) such
Lender's pro rata share of the aggregate amount available for
drawing under all Letters of Credit outstanding at such time
under this Agreement, (C) such Lender's pro rata share of the
aggregate amount of all Reimbursement Obligations outstanding
at such time under this Agreement, (D) the aggregate principal
amount of all Loans owed to such Lender and outstanding at
such time under the FIL Credit Agreement, (E) such Lender's
pro rata share of the aggregate amount available for drawing
under all Letters of Credit outstanding at such time under the
FIL Credit Agreement and (F) such Lender's pro rata share of
the aggregate amount of all Reimbursement Obligations
outstanding at such time under the FIL Credit Agreement to
(ii) the sum at such time of (A) the aggregate principal
amount of all Loans outstanding at such time under this
Agreement, (B) the aggregate amount available for drawing
under all Letters of Credit outstanding at such time under
this Agreement, (C) the aggregate amount of all Reimbursement
Obligations outstanding at such time under this Agreement, (D)
the aggregate principal amount of all Loans outstanding at
such time under the FIL Credit Agreement, (E) the aggregate
amount available for drawing under all Letters of Credit
outstanding at such time under the FIL Credit Agreement and
(F) the aggregate amount of all Reimbursement Obligations
outstanding at such time under the FIL Credit Agreement.
"Combined Total Commitment" shall mean the sum of (a) the
Total Commitment and (b) the "Total Commitment" as defined in the FIL
Credit Agreement.
"Combined Required Lenders" shall mean, at any time, Lenders
under this Agreement and Lenders under the FIL Credit Agreement whose
Combined Proportionate Shares equal or exceed fifty-one percent (51%)
at such time, except at any time any Lender under this Agreement or
under the FIL Credit Agreement is a Defaulting Lender. (For the
purposes of determining "Required Lenders" at any time any Lender is a
Defaulting Lender, the "Combined Proportionate Shares" of
non-defaulting Lenders shall be determined excluding from the
Commitment the aggregate amounts of the Defaulting Lenders'
Commitments; and "Combined Required Lenders" shall mean non-defaulting
Lenders whose Combined Proportionate Shares as so determined then equal
or exceed fifty-one percent (51%).)
"Commitment" shall mean, with respect to each Lender, the
Dollar amount set forth under the caption "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.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.06(b) hereof.
"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 Letter" shall mean the commitment letter agreement
dated as of January 20, 2004 between FIL and ABN AMRO.
"Compliance Certificate" shall have the meaning given to that
term in Subparagraph 5.01(a)(iii) hereof.
"Consolidated Tangible Assets" shall mean, with respect to
FIL, the aggregate amount of assets (determined on a consolidated basis
and in accordance with GAAP) after deducting therefrom all goodwill,
trade names, trademarks, patents, licenses, unamortized debt discount
and expense, treasury stock and other like intangibles (in each case,
determined on a consolidated basis and in accordance with GAAP).
"Contingent Obligation" shall mean, without duplication, with
respect to any Person, (a) any Guaranty Obligation of that Person and
(b) any direct or indirect obligation or liability, contingent or
otherwise, of that Person (i) in respect of any Surety Instrument
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments or (ii) in
respect to any Rate Contract that is not entered into in connection
with a bona fide hedging operation that provides offsetting benefits to
such Person. The amount of any Contingent Obligation shall (subject, in
the case of Guaranty Obligations, to the last sentence of the
definition of "Guaranty Obligation") be deemed equal to the maximum
reasonably anticipated liability in respect thereof (subject to
reduction as the underlying liability so guaranteed is reduced from
time to time), and shall, with respect to item (b)(ii) of this
definition, be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any
indenture, note, lease, loan agreement, security, deed of trust,
mortgage, security agreement, guaranty, instrument, contract, agreement
or other form of contractual obligation or undertaking to which such
Person is a party or by which such Person or any of its property is
bound.
"Co-Syndication Agents" shall have the meaning given to that
term in clause (5) of the introductory paragraph hereof.
"Credit Documents" shall mean and include this Agreement, the
LC Applications, the Notes, the Security Documents, the Agent's Fee
Letter, the FIL Credit Documents, all other documents, instruments and
agreements delivered to Agent pursuant to Section III hereof and all
other documents, instruments and agreements delivered by Borrower, any
Guarantor or any of its or FIL's Subsidiaries to Agent or the Issuing
Bank in connection with this Agreement on or after the date of this
Agreement.
"Credit Event" shall mean (a) any Borrowing or (b) the
issuance, amendment, renewal or extension of any Letter of Credit.
"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) EBITDA 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.
"Defaulted Amount" shall have the meaning given to that term
in the definition of "Defaulting Lender" hereof.
"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 (such amount, the "Defaulted Amount") and has continued
in such failure for three (3) Business Days after written notice from
Agent, provided that any Defaulting Lender shall cease to be a
Defaulting Lender upon (x) its funding the Defaulted Amount or (y) the
termination of the Commitments.
"Documentation Agent" shall have the meaning given to that
term in clause (8) of the introductory paragraph hereof.
"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, in 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 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)(A) hereof.
"EBITDA" shall mean, with respect to FIL for any consecutive
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 for such period
before provision for income taxes;
plus
(b) The sum (without duplication and to the extent
deducted in calculating net income or loss in clause (a)
above) of (i) all Interest Expense of FIL accruing during such
period, (ii) all depreciation and amortization expenses of FIL
accruing during such period and (iii) other noncash charges
for such period; provided, however, that cash payments made in
any future period in respect of such noncash charges shall be
subtracted from EBITDA in the period when such payments are
made;
plus
(c) An amount, not to exceed Fifty Million Dollars
($50,000,000) in any consecutive four-quarter period, equal to
the sum (without duplication and to the extent deducted in
calculating net income or loss in clause (a) above) of (i) all
charges (other than non-cash charges added pursuant to clause
(b) above) associated with merger- or acquisition-related
expenses and restructuring costs paid in such period (in each
case calculated in accordance with GAAP) incurred by FIL in
connection with any merger, acquisition or restructuring
entered into by FIL and any of its Subsidiaries which is
otherwise permitted under this Agreement and the FIL Credit
Agreement;
plus
(d) For the consecutive four-quarter period ended on
or prior to the date that is one year after the later of (i)
the Closing Date and (ii) the Nortel Closing Date (or
September 30, 2004, if the Nortel Closing Date shall not have
occurred by such date), an amount, not to exceed Fifty Million
Dollars ($50,000,000), equal to the sum (without duplication
and to the extent deducted in calculating net income or loss
in clause (a) above) of (i) all charges (other than non-cash
charges added pursuant to clause (b)) associated with merger-
or acquisition-related expenses and restructuring costs paid
in such period (in each case calculated in accordance with
GAAP) incurred by FIL in connection with New Program
Acquisitions and (ii) all charges (other than non-cash charges
added pursuant to clause (b) above) paid in such period
(calculated in accordance
with GAAP) in connection with the closing of any plant or
similar facility that is directly related to any New Program
Acquisition;
plus
(e) For the consecutive four-quarter periods ended on
March 31, 2004 and June 30, 2004, an amount, not to exceed One
Hundred Ten Million Dollars ($110,000,000), equal to the
charges (without duplication and to the extent deducted in
calculating net income or loss in clause (a) above) incurred
by FIL in connection with the early redemption by FIL of its
9.875% Senior Subordinated Notes due 2010, to the extent such
charges constitute a "Loss on Early Extinguishment of Debt"
(as such term is defined under GAAP).
For purposes of Subparagraph 5.03(a) only (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 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 as
if such acquisition occurred as of the first day of such
period.
"Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate
of a Lender, (c) an Approved Fund, and (d) any other Person (other than
a natural person) approved by (i) Agent, (ii) Issuing Bank, and (iii)
unless an Event of Default has occurred under clause (a), (f) or (g) of
Paragraph 6.01 and is continuing, Borrower (each such approval not to
be unreasonably withheld or delayed), provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include Borrower or Borrower's
Affiliates or Subsidiaries.
"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 and
Contractual Obligations relating to the protection of human health and
the environment, including those pertaining to the reporting,
licensing, permitting, 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, handling of, or exposure to, Hazardous
Materials.
"Equity Securities" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests,
membership interests, beneficial interests in a trust 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 hereof.
"Excluded Taxes" shall mean all Taxes measured by or imposed
upon the overall net income of any Lender or one of its Applicable
Lending Offices and all franchise taxes imposed upon any Lender, in
each case imposed (i) by the jurisdiction under the laws of which such
Lender or one of its Applicable Lending Offices is organized or is
located, or in which its principal executive office is located, or any
nation within which such jurisdiction is located or any political
subdivision thereof or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender or one of its Applicable
Lending Offices other than a connection arising solely from such Lender
having executed, delivered or performed its obligations under, or
received payment under or enforced, this Agreement or any of the other
Credit Documents.
"Existing FIL Credit Agreement" shall mean the Credit
Agreement dated as of March 8, 2002, as amended, among FIL, ABN AMRO
and the other lending institutions, and ABN AMRO, as agent for itself
and the other lending institutions.
"Existing FIUI Credit Agreement" shall mean the Credit
Agreement dated as of ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇
AMRO and other lending institutions, and ABN AMRO, as agent for itself
and such other lending institutions.
"Existing Letter of Credit" shall mean each letter of credit
previously issued for the account of Borrower that (a) is outstanding
on the Closing Date and (b) is listed on Schedule 2.01.
"Existing Secured Indebtedness" shall mean the secured
Indebtedness existing on the Closing Date specified on Schedule
5.02(a).
"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
mean, 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 of the United States of America.
"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, supplemented
or otherwise modified 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) EBITDA for such period;
to
(b) The sum of (A) all Interest Expense of FIL
for such period plus (B) the current portion of the long-term
Indebtedness of FIL on the last day of such period (other than
Loans outstanding under this Agreement and loans outstanding
under the FIL Credit Agreement) plus (C) for any period ending
on or after March 3, 2007, seventy-five percent (75%) of the
aggregate principal amount of (i) all Loans outstanding under
this Agreement and (ii) all loans outstanding under the FIL
Credit Agreement;
minus
(ii) All interest income earned by FIL
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.
"Fund" shall mean any Person (other than a natural person)
that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"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 the Federal Deposit Insurance Corporation, the Federal
Reserve Board, the Comptroller of the Currency of the United States of
America, 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, each Eligible Material
Subsidiary and each other Subsidiary 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) hereof.
"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) (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, (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, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the stated or determinable amount
of the primary obligation in respect of which such Guaranty Obligation
is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof (subject to reduction as the
underlying liability so guaranteed is reduced from time to time);
provided, however, that with respect to (1) any Guaranty Obligation by
FIL or any of its Subsidiaries in respect of a primary obligation of
FIL or any of its Subsidiaries and (2) any Guaranty Obligation of FIL
or any of its Subsidiaries in respect of the primary obligation of a
lessor in connection with a synthetic lease transaction entered into by
FIL or any of its Subsidiaries, such Guaranty Obligation shall, in each
case, be deemed to be equal to the maximum reasonably anticipated
liability in respect thereof which shall be deemed to be limited to an
amount that actually becomes past due from time to time with respect to
such primary obligation.
"Hazardous Materials" shall mean all pollutants, contaminants
and other materials, substances and wastes which are hazardous, toxic,
caustic, harmful or dangerous to human health or the environment,
including petroleum and petroleum 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 due within one year);
(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.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"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 Expense" 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 expense 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(c) 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 to Subparagraph
2.03(b)(ii).
"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 (9) of the introductory paragraph hereof.
"LC Application" shall have the meaning given to that term in
Subparagraph 2.01(b)(ii) hereof.
"LC Issuance Fees" shall have the meaning given to that term
in Subparagraph 2.06(c)(ii) hereof.
"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) hereof.
"Lender" 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 and Lenders under the FIL
Credit Agreement.
"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.
"Lending Office" shall mean, with respect to any Lender and
any Borrowing, (a) initially, such Lender's office designated as such
in Part B of Schedule I (or, in the case of any Lender which becomes a
Lender by an assignment pursuant to Subparagraph 8.05(c), its office
designated as such in the applicable Assignment and Assumption) and (b)
subsequently, such other office or offices as such Lender may designate
to Agent as the office at which such Lender's Loans will thereafter be
maintained and for the account of which all payments of principal of,
and interest on, such Lender's Loans will thereafter be made.
"Letter of Credit" shall mean any standby letter of credit
(including any Existing Letter of Credit) issued pursuant to this
Agreement.
"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
City time) (for delivery on the first day of such Interest Period) for
a term comparable to such Interest Period and in an amount
approximately equal to the amount of the Loan to be made or funded by
Agent as part of such Borrowing. The LIBO Rate shall be adjusted
automatically as to all LIBOR Loans outstanding as of the effective
date of any change in the Reserve Requirement.
"LIBOR Borrowing" shall mean any Borrowing consisting of LIBOR
Loans.
"LIBOR Loan" shall mean any Loan bearing interest based upon
the LIBO Rate.
"Lien" shall mean, with respect to any property or asset, (a)
any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such property or asset or the
income therefrom, including any agreement to provide any of the
foregoing, (b) the interest of a vendor or a lessor under any
conditional sale agreement, Capital Lease or title retention agreement
(or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Loan" shall have the meaning given to that term in
Subparagraph 2.01(a)(i) hereof.
"Loan Account" shall have the meaning given to that term in
Subparagraph 2.09(a) hereof.
"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, (a) any Subsidiary of FIL that (i) had revenues
during the immediately preceding fiscal year equal to or greater than
five percent (5%) of the consolidated total revenues of FIL during such
preceding year or (ii) 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 on such date, in each case as set forth or reflected in
the audited Financial Statements provided pursuant to Subparagraph
5.01(a)(ii) hereof, (b) with respect to any Subsidiary of FIL added or
created during such year, (i) any Subsidiary of FIL that 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 during such preceding
year or (ii) 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 (including the assets of such added or
created Subsidiary or Subsidiaries) on such date.
"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.
"Maturity Date" shall mean March 3, 2008.
"Moody's" shall mean ▇▇▇▇▇'▇ 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 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.
"New Program Acquisition" shall mean a transaction or series
of related transactions in which FIL or any of its Subsidiaries
acquires assets from any other Person and also enters into an agreement
to manufacture products for such Person (or an Affiliate thereof).
"Non-Excluded Taxes" shall mean all Taxes other than Excluded
Taxes.
"Nortel" shall mean Nortel Networks Corporation and any of its
Subsidiaries or Affiliates.
"Nortel Closing Date" shall mean the date that is the earliest
date on which FIL or any of its Subsidiaries consummate a transaction
or series of related transactions in which FIL or such Subsidiary (i)
acquires any assets of Nortel for an aggregate principal amount of more
than Ten Million Dollars ($10,000,000) and (ii) enters into an
agreement with Nortel to manufacture Nortel products.
"Note" shall have the meaning given to that term in
Subparagraph 2.09(b) hereof.
"Notice of Borrowing" shall have the meaning given to that
term in Paragraph 2.02 hereof.
"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) hereof.
"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) hereof.
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b) hereof.
"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 the pricing grid set forth on
Schedule II and the accompanying explanation thereto.
"Pricing Level" shall mean either ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇ 4 or Level 5, which shall be determined 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 is
announced as being effective.
"Proportionate Share" shall mean:
(a) With respect to any Lender at any time prior to
the termination of the Commitments, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the
decimal point) of (i) such Lender's Commitments at such time
to (ii) the Total Commitment at such time; and
(b) With respect to any Lender at any time after the
termination of the 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 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
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.
"Rate Contracts" shall mean any agreement with respect to any
swap, forward, future or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or
economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any
combination of these transactions, provided that no phantom stock or
similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or
consultants of any Borrower or its Subsidiaries shall be a Rate
Contract.
"Register" shall have the meaning given to that term in
Subparagraph 8.05(d) hereof.
"Reimbursement Obligation" shall have the meaning given to
that term in Subparagraph 2.01(b)(iii)(C).
"Reimbursement Payment" shall have the meaning given to that
term in Subparagraph 2.01(b)(iii)(B) hereof.
"Reportable Event" shall have the meaning given to that term
in ERISA and applicable regulations thereunder.
"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 Commitment the aggregate amounts
of the Defaulting Lenders' 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 portion of a Borrowing in Dollars, the
aggregate of the reserve requirement rates, if any (expressed as a
decimal), in effect on such day for funding in Dollars maintained by
commercial banks in the United States. As used herein, the term
"reserve requirement" shall include 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 or the Issuing Bank to secure the
Obligations.
"Senior Debt Rating" shall mean with respect to FIL as of any
date of determination, (i) the "Senior Implied Rating" of Moody's and
(ii) the "Corporate Credit Rating" of S&P.
"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, (a) any Subsidiary of FIL that (i) had revenues
during the immediately preceding fiscal year equal to or greater than
Ten Million Dollars ($10,000,000) or (ii) had net worth on the last day
of the immediately preceding fiscal year equal to or greater than Ten
Million Dollars ($10,000,000).
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including contingent,
subordinated, matured and unliquidated liabilities) of such Person, (b)
such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (c) such Person is not engaged in or
about to engage in business or transactions for which such Person's
property would constitute an unreasonably small capital.
"Subordinated Indebtedness" shall mean Indebtedness of
Borrower or any Subsidiary of Borrower that is subordinated to the
Obligations.
"Subordinated Indenture" shall mean, collectively, (a) the
Indenture dated as of October 15, 1997 by and between FIL and State
Street Bank and Trust Company of California, N.A., with respect to up
to $150,000,000 of 8 3/4% Senior Subordinated Notes due 2007, (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 of 9 7/8% Senior Subordinated Notes due 2010, (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 (euro) 300,000,000 of 9 3/4% Senior Subordinated Notes due 2010,
(d) the Indenture dated as of May 9, 2003 by and between FIL and
JPMorgan Trust Company, National Association with respect to up to
$400,000,000 of 6 1/2% Senior Subordinated Notes due 2013, (e) the
Indenture dated as of August 5, 2003 by and between FIL and JPMorgan
Trust Company, National Association with respect to up to $500,000,000
of 1% Convertible Subordinated Notes due 2010 and (f) any other
document, instrument or agreement evidencing Subordinated Indebtedness.
"Subsidiary" of any Person shall mean (a) any corporation of
which more than 50% of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint
venture, 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" shall mean 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 Commitment" shall mean, at any time, the sum at such
time of Lenders' Commitments. The Total Commitment on the date of this
Agreement is Five Hundred Fifty Million Dollars ($550,000,000).
"Type" shall mean, with respect to any Loan or any Borrowing
at any time, the classification of such Loan or Borrowing by the type
of interest rate it then bears, whether an interest rate based upon the
Base Rate or LIBO Rate.
"Unused" shall mean:
(a) With respect to the Total Commitment at any time,
the remainder of (i) the Total Commitment at such time minus
(ii) the sum of the Dollar amount of (A) the aggregate
principal amount of all 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 (the sum of clause (ii) being referred to as the "Used
Commitment");
(b) With respect to the Combined Total Commitment at
any time, the remainder of (i) the Combined Total Commitment
at such time minus (ii) the sum of (A) the Used Commitment (as
determined pursuant to clause (a) above) and (B) the "Used
Commitment" as defined in the FIL Credit Agreement.
"Used Commitment" shall have the meaning given to that term in
clause (a) of the definition of "Unused" in Paragraph 1.01 hereof.
"Wholly-Owned Subsidiary" shall mean any Subsidiary of which
more than 90% of the issued and outstanding Equity Interests are owned,
directly or indirectly, by FIL.
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.
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 New York.
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 or oral, respecting the subject matter hereof
(excluding the Agent's Fee Letter and the reimbursement and indemnification
obligations in the Commitment Letter).
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
in and to this Agreement 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) Loans.
(i) Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations
set forth in Paragraph 2.05), each Lender severally agrees to
advance to Borrower from time to time during the period from
and including the Closing Date to but excluding the Maturity
Date its pro rata share of such revolving loans in Dollars as
Borrower may request (individually, a "Loan"); provided,
however, that no Lender shall have any obligation to make a
requested Loan if, after giving effect to such Loan, the
aggregate principal amount on the date such Loan is to be made
of (i) such Lender's Loans then outstanding plus (ii) such
Lender's Proportionate Share of the aggregate amount available
for drawing under all Letters of Credit outstanding at such
time plus (iii) such Lender's Proportionate Share of the
aggregate amount of all Reimbursement Obligations outstanding
at such time would exceed such Lender's Commitment at such
time. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its
obligations hereunder. The Commitments of the Lenders are
several and no Lender shall be responsible for any other
Lender's failure to make Loans as required. All Loans shall be
made on a pro rata basis by Lenders in accordance with their
respective Proportionate Shares, with each Borrowing to be
comprised of a Loan made by each Lender equal to such Lender's
Proportionate Share of such Borrowing. Except as otherwise
provided herein, Borrower may borrow, repay and reborrow Loans
until the Maturity Date.
(ii) Scheduled Payments. Borrower shall repay the
principal amount of the Loans in full on the Maturity Date.
Borrower shall pay accrued interest on the unpaid principal
amount of each Loan in arrears (A) in the case of a Base Rate
Loan, on the last Business 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
Loans, upon prepayment (to the extent thereof) and at
maturity.
(b) Letter of Credit Subfacility.
(i) Availability. Upon the satisfaction (or
waiver in accordance with Paragraph 8.04) of the conditions
specified in Paragraph 3.01 on the Closing Date, each Existing
Letter of Credit will automatically, without any action on the
part of any Person, be deemed to be a Letter of Credit issued
hereunder for the account of the applicable Borrower for all
purposes of this Agreement and the other Credit Documents. In
addition, 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 that is thirty (30) days
prior to the Maturity Date such Letters of Credit as any
Borrower may request under this Subparagraph 2.01(b);
provided, however, as follows:
(A) The aggregate amount available for
drawing under all Letters of Credit at any time
outstanding shall not exceed One Hundred Twenty-Five
Million Dollars ($125,000,000);
(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 that is one year after the
date of its issuance; provided, however, that in no
event shall any Letter of Credit, including any
Existing Letter of Credit, expire later than the date
that is thirty (30) days prior to the 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 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 One Million Dollars
($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;
(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 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 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 from and including the date such Drawing Payment
is made but excluding the next succeeding Business
Day) shall instead be due on the next succeeding
Business Day after Borrower receives such notice,
provided that Borrower shall make such Reimbursement
Payment
to, or cause such Reimbursement Payment to be made
to, Agent for the benefit of the Lenders if, prior to
the time such Reimbursement Payment is made, Issuing
Bank has notified Borrower that it has requested the
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 Lender which has paid its
Proportionate Share of the Drawing Payment, such
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 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, (1) the passage of the
Maturity Date, (2) any lack of validity or
enforceability of any of the Credit Documents, (3)
the existence of any claim, set-off, 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 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 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, (8) any delay,
extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by
Issuing Bank, Agent or any Lender, with or without
notice to or approval by Borrower, with respect to
Borrower's indebtedness under this Agreement or (9)
any other act or omission to act or delay of any kind
of the Issuing Bank, Agent, any Lender or any other
person, in any other event or circumstance
whatsoever, whether or not similar to any of the
foregoing that might, but for the provisions of this
Subparagraph 2.01(b)(iii)(C), constitute a legal or
equitable discharge of, or provide a right of set-off
against, Borrower's respective obligations hereunder;
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) Lender Participations; Loan Funding.
(A) Participation Agreement. Each
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 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 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 in full
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 Lender of the contents of each such
request and of such Lender's Proportionate Share of
the applicable portion of such Drawing Payment.
Promptly following receipt of such notice from Agent,
each Lender shall pay to Agent, for the benefit of
Issuing Bank, such Lender's Proportionate Share of
the applicable portion of such Drawing Payment.
(C) Funding Through Loans. If, at any
time prior to the 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 Borrowing in an
amount not exceeding the aggregate amount of such
outstanding Reimbursement Obligations and use the
proceeds of such Borrowing to repay all or a portion
of such Reimbursement Obligations. Agent shall
initiate such a Borrowing by delivering to each
Lender (with a copy to Borrower) a written notice
which specifies the aggregate amount of outstanding
Reimbursement Obligations, the amount of the
Borrowing (which initially shall consist of Base Rate
Loans), the date of such Borrowing and the amount of
the Loan to be made by such Lender as part of such
Borrowing. Each Lender shall make available to Agent
funds in the amount of its Loan as provided in
Subparagraph 2.10(a). After receipt of such funds,
Agent shall promptly disburse such funds to Issuing
Bank and the Lenders, as appropriate, in payment of
the outstanding Reimbursement Obligations.
(D) Obligations Absolute. Each 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 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
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 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 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 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. The parties hereto expressly
agree that, in the absence of willful misconduct or gross
negligence by the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised reasonable care. 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 Credit but which varies with
respect to punctuation, capitalization, spelling or similar
matters of form.
(vi) Reports of Issuing Bank. Issuing Bank shall,
if requested by Agent or any Lender, provide to Agent on a
monthly basis 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. Upon request by any Lender, Agent shall provide such
information to the Lenders.
(vii) Resignation or Removal of Issuing Bank.
Issuing Bank may resign at any time by giving thirty (30) days
prior written notice thereof to Borrower and Lenders, and
Issuing Bank may be removed at any time with or without cause
by written agreement among Borrower, Agent and the successor
Issuing Bank; provided, however, that Borrower has no right to
approve a successor Issuing Bank if a Default has occurred and
is continuing. If no successor Issuing Bank shall have been so
appointed and shall have accepted such appointment within
thirty (30) days of after the retiring Issuing Bank gives
notice of its resignation, then the retiring Issuing Bank may,
on behalf of Lenders and Agent, appoint a successor Issuing
Bank, which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of
any appointment as Issuing Bank hereunder, Agent shall notify
Lenders of such successor Issuing Bank, which shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Issuing Bank. At the
time any such replacement shall become effective, Borrower
shall pay all unpaid fees and expenses accrued for the account
of the retiring Issuing Bank pursuant to Subparagraphs
2.06(c)(ii) and (iii). After the replacement of the retiring
Issuing Bank, the retiring Issuing Bank shall remain a party
hereto and shall continue to have all rights and obligations
of the Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but
it shall not be required to issue additional Letters of
Credit.
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) The principal amount of such Borrowing, which shall
be in the minimum amount of Five Million Dollars ($5,000,000) (provided
that on the Closing Date the minimum Dollar amount or Dollar Equivalent
shall be $3,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess
thereof, provided that Borrowings may be in an aggregate amount that is
equal to the entire Unused amount of the Commitments;
(b) Whether such requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(c) 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
(d) 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 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 Five Million Dollars
($5,000,000) and an integral multiple of One Million Dollars
($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, and (C) no Interest Period for a Borrowing
shall end after the 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 case each such portion shall
be allocated ratably among Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
Notwithstanding any contrary provision of this Agreement, if
an Event of Default has occurred and is continuing and Agent,
at the written request of the Required Lenders, so notifies
Borrower, then (A) no outstanding Borrowing may be converted
to or continued as a Borrowing consisting of LIBOR Loans and
(B) unless repaid, each Borrowing consisting of LIBOR Loans
shall be converted to a Borrowing consisting of Base Rate
Loans at the end of the Interest Period applicable thereto.
2.04. Purpose. Borrower shall use any proceeds of any initial Loans
made on the Closing Date for (a) working capital and general corporate needs
(including capital expenditures, acquisitions permitted under Subparagraph
5.02(d) and investments permitted under Subparagraph 5.02(e), respectively) and
(b) repaying on the Closing Date all indebtedness outstanding under the Existing
FIUI Credit Agreement, if any, and thereafter Borrower shall use the proceeds of
the Loans 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 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 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 Commitment by the amount of Five Million
Dollars ($5,000,000) or integral multiples in excess thereof, or cancel
the Total Commitment in its entirety; provided, however, that:
(i) 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 outstanding at such time plus the
aggregate amount of all Reimbursement Obligations outstanding
at such time would exceed the Total Commitment; and
(ii) Borrower may not cancel the Total Commitment
prior to the Maturity Date, if, after giving effect to such
cancellation, any Loan, Reimbursement Obligation or Letter of
Credit would then remain outstanding.
Unless sooner terminated pursuant to this Agreement, the Commitments
shall terminate on the Maturity Date.
(c) Effect of Commitment Reductions. From the effective
date of any reduction of the Total Commitment, the Commitment Fees
payable pursuant to Subparagraph 2.06(b) shall be computed on the basis
of the Total Commitment as so reduced. Once reduced or cancelled, the
Total Commitment may not be increased or reinstated without the prior
written consent of all Lenders. Any reduction of the Total Commitment
shall be applied ratably to reduce each Lender's Commitment in
accordance with Subparagraph 2.11(a)(i).
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, for the
ratable benefit of Lenders as provided in Subparagraph 2.11(a)(v),
commitment fees in Dollars (the "Commitment Fees") equal to the
Commitment Fee Percentage of the daily average Unused amount of the
Total Commitment for the period beginning on the date of this Agreement
and ending on the Maturity Date.
Borrower shall pay the Commitment Fees in arrears on the last day of
each March, June, September and December (commencing March 31, 2004)
and on the Maturity Date (or any portion of the Total Commitment or is
cancelled on a date prior to the Maturity Date, 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
Lenders as provided in Subparagraph 2.11(a)(v), 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, 2004) 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 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,
2004) 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.
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 any
Borrowing consisting of Base Rate Loans; and
(ii) Any prepayment in part shall be in a minimum
aggregate principal amount equal to Five Million Dollars
($5,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess thereof, provided that prepayments may
be in an aggregate amount that is equal to the aggregate
amount of all Borrowings outstanding.
(c) Mandatory Prepayments. If, at any time, the aggregate
principal amount of all 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), 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.
(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.
(ii) Borrower shall make all payments hereunder
in same day or immediately available funds and without
deduction or offset not later than 2:00 p.m. New York City
time and on the date due. Agent shall promptly disburse to
each Lender each payment received by Agent for the account of
such Lender.
(b) Date. Whenever any payment due hereunder shall fall
due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall be
included in the computation of interest or fees, as the case may be;
provided, however, that payment of interest on LIBOR Loans shall be
made on the last day of the applicable Interest Period (as specified in
Subparagraph 2.03(b)(i)).
(c) Currency of Payment.
(i) Borrower shall pay principal of, interest on
and all other amounts related to each Borrowing or
Reimbursement Payment 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
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. A certificate of Agent submitted to any Lender with respect to
any amount owing by such Lender under this Subparagraph 2.08(f) shall
constitute prima facie evidence of such amount.
2.09. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of 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 2:00 p.m. (New York City 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 4:00 p.m. (New York City 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
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
2.10(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. A
certificate of Agent submitted to any Lender with respect to any amount
owing by such Lender under this Subparagraph 2.10(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.
2.11. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as
otherwise provided herein:
(i) Each Borrowing, each participation in each
Letter of Credit and reduction of the Total Commitment shall
be made or shared among Lenders pro rata according to their
respective Proportionate Shares;
(ii) 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;
(iii) 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;
(iv) Each Reimbursement Payment shall be shared
among the 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;
(v) Each payment of Commitment Fees and LC Usage
Fees shall be shared among 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 their
respective Proportionate Shares;
(vi) 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
(vii) 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 set-off, 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 Reimbursement Obligations, such
Lender shall forthwith purchase from such other Lenders such
participations in their Loans or Reimbursement Obligations as shall be
necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase shall be rescinded and each other
applicable Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to
such other Lender's ratable share (according to the proportion of (i)
the amount of such other Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to Subparagraph
8.05(b) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) 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 for such Borrowing 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
(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 2.12(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 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
indemnification 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 (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 and/or any other appropriate person(s) such
certificates, forms and/or other documents certifying that such Lender
is entitled to receive such payments without deduction or withholding
of taxes (or with reduced deduction or withholding of any such taxes)
as such Borrower shall reasonably request to establish such fact. Each
such Lender further agrees (i) 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 (ii) if such Lender is
still legally entitled to do so, then on or before the date that any
certificate, form and/or other documents delivered by such Lender under
this Subparagraph 2.13(b) expires or otherwise becomes inapplicable, to
deliver to Borrower and Agent a new certificate, form and/or other
documents, 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 that is legally entitled to do so 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 this 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. Notwithstanding the foregoing, if such Lender is not
entitled to receive payments on its Loans without deduction or
withholding of taxes (or with reduced deduction or withholding of any
such taxes) and cannot lawfully provide any such forms, it shall
continue to be entitled to the benefits of Subparagraph 2.13(a).
(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 provide to the appropriate Person(s) to the extent it
may lawfully do so any certificate, forms, and/or other documents
reasonably requested in writing by Borrower certifying that such Lender
is entitled to receive a reduced rate of withholding if it is in fact
so entitled 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 sole discretion 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. Borrower hereby
agrees to pay all reasonable documented costs and expenses incurred by
the Lender in connection with any action taken pursuant to this
Subparagraph 2.13(c). If Agent or any Lender does not provide the
requisite certificate(s), form(s), or other document(s) or change the
jurisdiction of its Applicable Lending Office, if not determined to be
disadvantageous in its sole discretion, then Borrower shall not be
obligated to pay any additional amounts that arise from such Agent or
Lender's failure to comply with this Subparagraph 2.13(c).
(d) Tax Returns. Nothing contained in this Paragraph 2.13
or Paragraph 8.03 shall require Agent, any Lender or any of their
respective Affiliates to make available any of its tax returns (or any
other information relating to its taxes which it deems to be
confidential) to Borrower or any other Person.
(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 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), (c) pursuant to Paragraph 2.16, cause the
replacement of any Lender that has made or maintained any LIBOR Loan or (d) 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 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, on the Closing
Date, FIL shall deliver, or cause to be delivered, to Agent, (A)
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 (B) 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, FIL
promptly shall deliver, or cause to be delivered, to Agent,
within sixty (60) days of becoming aware of any such event,
(A) a Subsidiary Joinder in the form of Attachment 1 to the
Guaranty, appropriately completed and duly executed by such
Subsidiary, and (B) such other instruments, agreements,
certificates, opinions and documents as Agent may reasonably
request to secure, maintain, protect and evidence the
obligations of such Subsidiary under the Guaranty.
(ii) If, at any time after the date of this
Agreement, any Subsidiary of FIL that is a Guarantor under the
Guaranty shall cease to be, or shall not have become, an
Eligible Material Subsidiary by an action or circumstance not
otherwise prohibited by this Agreement, 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 Subparagraphs 2.15(a) and (b) 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 Subsidiaries that have executed and
delivered the Guaranty pursuant to this Agreement and the FIL Credit
Agreement will have revenues or assets that constitute at least (i) 53%
of consolidated total revenues of FIL or (ii) 60% of consolidated total
assets of FIL, respectively, during each fiscal year of FIL, as
reflected on the most recently delivered annual audited Financial
Statements for FIL.
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, (a) 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 and (b) the Borrower shall pay any amounts owed to such Lender by
the Borrower under this Agreement.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of the
applicable Lenders to make Loans 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 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 or LC
Application, as the case may be, for such Credit Event in accordance with this
Agreement; and
(b) 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 3.02(b) is true and
correct as of the date of such notice.
3.03. Covenant to Deliver. 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 (alone or
in the aggregate) 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 when executed
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 nor 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 or in the aggregate, such violation or default is
reasonably and 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 (i)
has violated any Environmental Laws, (ii) to the knowledge of Borrower,
any Guarantor or any of FIL's Subsidiaries, has any liability under any
Environmental Laws or (iii) 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 (alone or in the aggregate) to have a Material Adverse Effect.
No Default has occurred and is continuing.
(g) Litigation. No actions (including derivative
actions), suits, proceedings or investigations are pending or, to the
knowledge of 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, 2003, 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 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 (alone or
in the aggregate) 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, any
Borrower nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under section 4201 of ERISA or as a result
of a sale of assets described in section 4204 of ERISA.
Neither FIL, any Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or
insolvent under and within the meaning of section 4241 or
section 4245 of
ERISA or that any Multiemployer Plan intends to terminate or
has been terminated under section 4041A of ERISA.
(iv) All employer and employee contributions
required by any applicable Governmental Rule in connection
with all Foreign Plans have been made, or, if applicable,
accrued, in all material respects, in accordance with the
country-specific accounting practices. The fair market value
of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or
the book reserve established for any Foreign Plan, together
with any accrued contributions, is sufficient, except to the
extent that is not reasonably and substantially likely (alone
or in the aggregate) 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 (alone or in the aggregate) 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 and substantially likely
(alone or in the aggregate) 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 (alone or
in the aggregate) 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, 2003 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
and Material 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.
(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.
(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, 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 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 and
are listed on Schedule 4.01(s) hereto (provided any
notification or authorization described in immediately
preceding clause (B) 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, alone or in the aggregate, (i) has had (and
continues to have) or (ii) 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 (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 by each Subsidiary, 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 executive officer, chief operating officer, chief
financial officer, treasurer, assistant treasurer, controller
or senior vice president of finance 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 (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 (other than a "going concern" or like qualification
or exception or any qualification or exception as to the scope
of such audit) reasonably acceptable to Agent) of such
accountants and (C) if available from such accountants,
certificates of such accountants to Agent stating that in
making the examination necessary for their opinion they have
reviewed this Agreement and have obtained no knowledge of any
Default which has occurred and is continuing, or if, in the
opinion of such accountants, a Default has occurred and is
continuing, a statement as to the nature thereof;
(iii) Contemporaneously with the quarterly and
year-end Financial Statements required by the foregoing
clauses (i) and (ii), a compliance certificate of the chief
executive officer, chief operating officer, chief financial
officer, treasurer, assistant treasurer, controller or senior
vice president of finance of Borrower (a "Compliance
Certificate") that (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 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;
(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 Ten Million Dollars
($10,000,000) or more (alone or in the aggregate), (C) any
other event or condition which is reasonably and substantially
likely (alone or in the aggregate) to have a Material Adverse
Effect, (D) any Default or (E) any event of the type described
in Subparagraph 6.01(f) or (g) with respect to any Subsidiary,
so long as such Subsidiary is determined at the time of such
event to be a Significant Subsidiary, the statement of the
chief executive officer, chief operating officer, chief
financial officer, treasurer, assistant treasurer, controller
or senior vice president of finance of such 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 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 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 by posting such
documents on its website located at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and through the
United States Securities and Exchange Commission's ▇▇▇▇▇ system
("▇▇▇▇▇") or by transmitting such
documents electronically to Lenders. 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 ▇▇▇▇▇.
(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 or in the aggregate, 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 and Letters of Credit only for the 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 (alone or in the
aggregate) 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.
(i) Designated Senior Debt. 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 being "senior debt"
under each Subordinated Indenture for so long as any Indebtedness shall
be outstanding under any such Subordinated Indenture.
(j) Patriot Act. Promptly following a request therefor,
Borrower shall provide all documentation and other information that a
Lender reasonably requests in order to comply with such Lender's
ongoing obligations under applicable "know your customer" and
anti-money laundering rules and regulations, including the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (known as the USA Patriot
Act), provided that any Lender requesting documentation or other
information under this Subparagraph 5.01(j) shall provide any relevant
supporting documentation reasonably requested by Borrower responding to
such request.
(k) Flextronics Hungaria Kft. In the event that (x)
Flextronics Hungaria Kft has not been liquidated or dissolved and (y)
all or substantially all of the assets of Flextronics Hungaria Kft have
not been transferred to Flextronics Cyprus Limited by June 30, 2004,
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.
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:
(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 created under the Credit
Documents;
(ii) 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;
(iii) (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, inventory 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;
(iv) 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;
(v) Indebtedness of Borrower or any Guarantor to
FIL, Borrower or any Eligible Material Subsidiary or
Indebtedness of any Eligible Material Subsidiary to FIL,
Borrower or any
other Eligible Material Subsidiary or any Guarantor, in each
case to the extent otherwise permitted pursuant to
Subparagraph 5.02(e) and Subparagraph 5.02(i); and
(vi) 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) and secured
Rate Contracts (whether or not constituting "Indebtedness"),
outstanding during any fiscal quarter of FIL does not exceed
the greater of (i) Seven Hundred Fifty Million Dollars
($750,000,000) or (ii) ten percent (10%) of Consolidated
Tangible Assets on the last day of the immediately preceding
fiscal quarter, and provided, further, that for purposes of
this Subparagraph 5.02(a)(vi) only, the "principal amount" of
the obligations of any Person in respect of any Rate Contract
at any time shall be in the maximum aggregate amount (giving
effect to any netting agreements), if any, that such Person
would be required to pay if such Rate Contract were terminated
at such time.
(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 (iii) (but
only to the extent such Liens are on the assets so financed,
the proceeds thereof and any improvements thereon), (iv), (v)
or (vi) of Subparagraph 5.02(a) and Liens that secure Rate
Contracts that do not constitute Indebtedness, provided that
the aggregate principal amount of Indebtedness that
constitutes Permitted Indebtedness under clause (vi) of
Subparagraph 5.02(a) and secured Rate Contracts that do not
constitute Indebtedness shall not exceed the amount set forth
Subparagraph 5.02(a)(vi);
(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 being contested
in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves are being
maintained in accordance with GAAP 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 GAAP 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 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 (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
of FIL's other Subsidiaries, (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) (1)
in any such merger involving Borrower, Borrower is the
surviving corporation and (2) in any such merger involving a
Guarantor, the surviving corporation becomes a Guarantor and
(B) in each case, 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 such Subsidiary or
FIL's other Subsidiaries 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 (x) listed in Schedule 5.02(e)
or (y) in Wholly-Owned Subsidiaries, in each case 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;
(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);
(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 pursuant to this clause (ix) 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 (i) pay any dividends or make any
distributions (whether in cash, securities or other property) on its
Equity Securities, including any payment to a sinking fund or similar
deposit, (ii) purchase, redeem, retire, defease, cancel, terminate, or
otherwise acquire for value any of its Equity Securities, (iii) return
any capital to any holder of its Equity Securities as such or (iv) make
any distribution of assets, Equity Securities, obligations, cash 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 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, 2003, 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 Twenty-Five
Million Dollars ($25,000,000) or net worth on the last day of the
immediately preceding fiscal year equal to or greater than Twenty-Five
Million Dollars ($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 (A) contained in 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 each 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
comply, and 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 as of any date set forth below to exceed the ratio
set forth opposite such date:
Date Ratio
---- -----
March 31, 2004 3.50 : 1.00
June 30, 2004 3.50 : 1.00
September 30, 2004 3.50 : 1.00
December 31, 2004 3.50 : 1.00
March 31, 2005 3.50 : 1.00
Date Ratio
---- -----
June 30, 2005 3.50 : 1.00
September 30, 2005 3.50 : 1.00
December 31, 2005 3.50 : 1.00
March 31, 2006 3.25 : 1.00
June 30, 2006 3.25 : 1.00
September 30, 2006 3.25 : 1.00
December 31, 2006 3.25 : 1.00
March 31, 2007 3.25 : 1.00
June 30, 2007 3.25 : 1.00
September 30, 2007 3.25 : 1.00
December 31, 2007 3.25 : 1.00
(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.
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 the Maturity Date, 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. 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, and 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 FIL or Borrower to
Agent or any Lender in or in connection with this Agreement or any of
the other Credit Documents, or as an
inducement to Agent or any Lender to enter into this Agreement, shall
be false, incorrect, incomplete or misleading in any material respect
when made (or deemed made) or furnished and either (i) Agent or any
Lender has delivered to 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 Fifty Million Dollars ($50,000,000) 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 Fifty Million Dollars ($50,000,000) 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 Fifty Million Dollars ($50,000,000) 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 Fifty Million Dollars
($50,000,000) 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 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 Subsidiaries and the same shall not be released, stayed,
vacated or otherwise dismissed within sixty (60) days after issue or
levy or (iii) any other judgments, orders, decrees, arbitration awards,
writs, assessments, warrants of attachment, tax liens or executions or
similar processes which, alone or in the aggregate, are reasonably and
substantially likely to have a Material Adverse Effect are rendered,
issued or levied; or
(i) Credit Documents. Any Credit Document or any material
term thereof shall cease to be, or be asserted by 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 with respect
to FIL 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 cash collateral 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, (a) 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 (b) 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 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 other 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 other Subsidiaries which may come into
the possession of Agent, except for notices, reports and other documents and
information expressly required to be furnished to Lenders by Agent hereunder or
(c) be responsible to any Lender for (i) any recital, statement, representation
or warranty made by FIL, Borrower, any of FIL's other Subsidiaries or any
officer, employee or agent of FIL, Borrower, or any of FIL's other 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. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days of after the retiring
Agent gives notice of its resignation, then the retiring Agent may, on behalf of
the Lenders and the Issuing Bank, appoint a successor Agent, which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, at which point (and
not earlier) the retiring Agent shall be discharged from the duties and
obligations thereafter arising hereunder. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Section VII shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Agent.
7.07. Agent in its Individual Capacity. Agent, Issuing Bank and
their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of banking or other business with 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 Agents
Managing Agents and Documentation Agent. The Co-Arrangers, the Co-Syndication
Agents, the Senior Managing Agents, the Managing Agents and the Documentation
Agent 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 Agents", "Managing
Agents" and "Documentation Agent" implies no fiduciary responsibility on the
part of any Co-Arranger, Co-Syndication Agent, Senior Managing Agents, Managing
Agents and the Documentation Agent to any Person, and the use of such title does
not impose on any Co-Arranger, Co-Syndication Agent, Senior Managing Agents,
Managing Agents and the Documentation Agent 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.
Agent: ABN AMRO Bank N.V.
Syndications Group
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy in each case to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
ABN AMRO Bank N.V.
Agency Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Tel. No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No: (▇▇▇) ▇▇▇-▇▇▇▇
Issuing Bank: Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
FIL: Flextronics International Ltd.
▇▇ ▇▇▇ ▇▇▇▇ ▇ #▇▇-▇▇/▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: Chairman
Telephone: + (▇▇) ▇▇▇-▇▇▇▇
Fax No: + (▇▇) ▇▇▇-▇▇▇▇
with copies to:
Flextronics International Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Treasurer
Tel. No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO Bank N.V.
Agency Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇
Tel. No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No: (▇▇▇) ▇▇▇-▇▇▇▇
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, 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 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 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. Any term, covenant, agreement or
condition of this Agreement or any other Credit Document may be amended or
waived, and any consent under this Agreement or any other Credit Document may be
given, if such amendment, waiver or consent is in writing and is signed by
Borrower and the Combined Required Lenders; provided, however, that:
(i) Any amendment, waiver or consent which would (A)
increase the Total Commitment, (B) postpone, delay or extend the
Maturity Date, (C) reduce the principal of or interest on any Loans or
any Letter of Credit, the Commitment Fees or any other fees or amounts
payable for the account of all Lenders hereunder (D) postpone, delay or
extend the scheduled date for payment of any such principal, interest,
fees or amounts, (E) amend this Paragraph 8.04, (F) amend the
definition of Required Lenders or Combined Required Lenders or (G)
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;
(ii) Any amendment, waiver or consent which would increase
or decrease the Commitment of any Lender (except for a pro rata
decrease in the Commitments of all Lenders) must be in writing and
signed by such Lender;
(iii) Any amendment, waiver or consent which would alter
Paragraph 2.11 in a manner that would alter the pro rata sharing of
payments required thereby must be in writing and signed by all Lenders;
(iv) Any amendment, waiver or consent which would change
any provision of any Credit Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders
holding Loans under this Agreement differently than those Lenders
holding Loans under the FIL Credit Agreement must be in writing and
signed by the Required Lenders; and
(v) Any amendment, waiver or consent which affects the
rights or obligations of the Issuing Bank must be in writing and 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 order for such Lender to agree in writing
to any amendment, waiver or consent of a type specified in Subparagraph
8.04 (i), (ii) or (iii), 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 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
substantially 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 Lender may make any
Assignment of its Commitment and Loans to any Assignee Lender
if, after giving effect to such Assignment, the Commitment
(or, after the termination of the Commitments, the Loans) of
such Assignor Lender or such Assignee Lender would be less
than Two Million Five Hundred Thousand Dollars ($2,500,000),
except that a Lender may make an Assignment which reduces its
Commitment (or, after the termination of the Commitments, its
Loans) to zero without the written consent of FIL and the
Issuing Bank;
(iii) 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 and Loans which does not assign
and delegate an equal pro rata interest in such Lender's
Commitment, Loans and all other rights, duties and obligations
of such Lender under this Agreement and the other Credit
Documents;
(iv) 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 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 its "Commitment" and "Loans" under the FIL Credit
Agreement; and
(v) 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 Commitments and Loans to any Assignee Lender
in an aggregate principal amount of less than Five Million
Dollars ($5,000,000), except that a Lender may make an
Assignment which reduces its Commitment (or, after the
termination of the Commitments, its Loans) to zero without the
written consent of FIL and the Agent.
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, or 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, as the case may be. 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 Three Thousand Five Hundred Dollars
($3,500), 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.
(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 or
pledge all or a portion of its rights under this Agreement
and the other Credit Documents to a Federal Reserve Bank, and this
Paragraph 8.05 shall not apply to any such pledge or assignment of a
security interest. No such assignment shall relieve the assigning
Lender from its obligations under this Agreement and the other Credit
Documents.
8.06. Set-off; Security Interest.
(a) Set-off. 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
Borrower 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. Confidentiality. Neither any Lender nor Agent shall disclose
to any Person any information with respect to Borrower, any Guarantor or any of
FIL's Subsidiaries which is furnished pursuant to this Agreement or under the
other Credit Documents, except that any Lender or Agent may disclose any such
information (a) to its own directors, officers, employees, auditors, counsel and
other advisors and to its Affiliates, (b) to any other Lender or Agent, (c)
which is otherwise available to the public, (d) if required or appropriate in
any report, statement or testimony submitted to any Governmental Authority
having or claiming to have jurisdiction over such Lender or Agent, (e) if
required in response to any summons or subpoena, (f) in connection with any
enforcement by Lenders and Agent of their rights under this Agreement or the
other Credit Documents or any litigation among the parties relating to the
Credit Documents or the transactions contemplated thereby, (g) to comply with
any Requirement of Law applicable to such Lender or Agent, (h) to any actual or
prospective Assignee Lender, Participant or counterparty (or its advisors) to
any Rate Contract, provided that such Person 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 Guarantor
under this Agreement and the other Credit Documents.
8.12. Consent to Jurisdiction. Borrower irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New York and the courts
of the United States of America, in either case located in the City of New York,
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 Paragraph 8.13 shall affect the right of Agent or any
Lender to commence legal proceedings or otherwise ▇▇▇ 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. Without limiting the
foregoing, Borrower hereby appoints, in the case of any such action or
proceeding brought in the courts of or in the State of New York, CT Corporation,
with offices on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
to receive for it and on its behalf, service of process in the State of New York
with respect thereto, provided Borrower may appoint any other person, reasonably
acceptable to Agent, with offices in the State of New York 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. 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 New York 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. The obligations of Borrower under this
Paragraph 8.13 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
8.13. 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 be required to pay any unearned interest on any Obligations or any portion
thereof, or be required to pay interest thereon at a rate in excess of the
highest lawful rate construed by courts having competent jurisdiction thereof.
[The first signature page follows.]
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT
IN WITNESS WHEREOF, Borrower, Agent, Co-Arrangers, Co-Syndication
Agents, Senior Managing Agents, Managing Agents, Documentation Agent 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: ___________________________
SIGNATURE PAGE TO
FIUI CREDIT AGREEMENT
Name of Institution: ___________________________________________________________
by: __________________________________
Name:
Title:
by: __________________________________
Name:
Title:
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 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 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 2.02 of the Credit Agreement, Borrower
hereby irrevocably requests a Borrowing to be made upon the following terms:
(a) The principal amount of such Borrowing are to be
__________;
(b) Such Borrowing is to consist of [Base Rate] [LIBOR]
Loans;
(c) If such Borrowing is to consist of LIBOR Loans, the
initial Interest Period for such Borrowing is to be __________ month[s];
(d) The date of such Borrowing is to be __________, ____;
and
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 or will
result from such Credit Event.
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: ___________________________
EXHIBIT B
FORM OF NOTE
______________, ________ March __, 2004
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to
pay to the order of ____________________, a ____________________ ("Lender"),
pursuant to the Credit Agreement dated as of March 3, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Borrower, Lenders, Fleet National Bank, as Issuing Bank, and Agent, on or
before the Maturity Date specified in the Credit Agreement, (a) the aggregate
outstanding principal balance of all Loans made by Lender to Borrower and (b)
interest on said sum, at the rates and on the dates provided in the Credit
Agreement. Terms used herein have the meanings assigned to those terms in the
Credit Agreement, unless otherwise defined herein.
Borrower shall make all payments hereunder, for the account of Lender's
Applicable Lending Office or Offices, as the case may be, to Agent as indicated
in the Credit Agreement, in the lawful currency 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 (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 each Borrower hereunder. Borrower
agrees that all such notations shall constitute prima facie evidence of the
matters recorded on the schedules; provided, however, that any failure by a
Lender to make, or any error by any Lender in making, any such recordation shall
not affect Borrower' Obligations hereunder.
This Note is one of the Notes referred to in Paragraph 2.09(b) of the
Credit Agreement. 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. In case an Event of Default shall occur and be continuing,
the principal of and accrued interest on this Note may become or be declared to
be due and payable in the manner and with the effect provided in the Credit
Agreement.
The transfer, sale or assignment of any rights under or interest in
this Note is subject to the restrictions contained in the Credit Agreement,
including Paragraph 8.05 thereof.
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Lender in connection with 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 New York.
FLEXTRONICS INTERNATIONAL USA, INC.
By: __________________________________
Name: ____________________________
Title: ___________________________
LOANS AND PAYMENTS OF INTEREST AND PRINCIPAL
Loans Payments
---------------------------------------------------- ----------------------------------------------------
Amount of Amount of
Amount of Interest Paid or Principal Paid
Date Loan Interest Period Date Prepaid or Prepaid
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
EXHIBIT C
FORM OF GUARANTY
THIS GUARANTY, dated as of March 3, 2004, 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 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 Agent. Lenders have agreed to extend
credit to Borrower upon the terms and subject to the conditions set forth
therein. Each Guarantor (other than FIL) is a Subsidiary of FIL, expects to
derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement and is willing to execute and deliver this
Guaranty to induce the Lenders to enter into the transactions contemplated by
the Credit Agreement.
B. Lenders' obligations to extend credit 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 each
other Subsidiary required to execute the Guaranty pursuant to Subparagraph
2.15(c) of the Credit Agreement, and (2) Subsidiary Joinders, duly executed by
each future Eligible Material Subsidiary and each other Subsidiary required to
execute a Subsidiary Joinder pursuant to Subparagraph 2.15(c) of 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, 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 amount of
all payments made by such Guarantor under this Guaranty
(including under Paragraph 5 hereof) at or prior to such time.
"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 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.
"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.
"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, primary or secondary,
absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of the Credit
Documents and any Lender Rate Contract that (A) is in effect
on the Closing Date with a counterparty that is a Lender or an
Affiliate of a Lender as of the Closing Date or (B) is entered
into after the Closing Date with any counterparty that is a
Lender or an Affiliate of a Lender at the time such Rate
Contract is entered into, including the Loans, Reimbursement
Obligations with respect to Letters of Credit, all
indemnification obligations, interest, fees, taxes, charges,
reimbursements, expenses, attorneys' fees and accountants'
fees (including Disallowed Post-Commencement Interest and
Expenses and any other monetary obligations incurred during
the pendency of any Debtor Relief Proceeding) 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 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ 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.
"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, as a primary obligor and not merely as surety, and promises
to pay and perform as and when due, whether at stated maturity, upon
acceleration, upon one or more dates set for prepayment or otherwise,
any and all of the Guaranteed Obligations, provided that with respect
to Flextronics Manufacturing France, such guarantee shall be limited as
provided in Paragraph 7 hereof. If (i) Borrower fails to pay any
Guaranteed Obligation or (ii) any Debtor Relief Proceeding relating to
Borrower is commenced, each Guarantor further unconditionally
guarantees and promises to and will forthwith pay and perform, upon the
demand of Agent, whether at stated maturity, upon acceleration, upon
one or more dates set for prepayment or otherwise, 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 (i) all the Guaranteed Obligations have been fully and
indefeasibly paid in cash, (ii) the Lenders have no further commitment
to lend under the Credit Agreement, (iii) the aggregate amount
available for drawing under all Letters of Credit outstanding and all
Reimbursement Obligations outstanding have been reduced to zero and
(iv) the Issuing Bank has no further obligation to issue Letters of
Credit under the Credit Agreement. If any payment on any Guaranteed
Obligation is set aside, avoided, 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 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 2(a) 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.
(f) No Discharge or Disbursement of Guaranty. Without
limiting Paragraph 3 hereof, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment
or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of
waiver, release, surrender, alteration or compromise of any of the
Guaranteed Obligations, and shall not be subject to any defense or
set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed
Obligations or otherwise.
3. AUTHORIZATIONS, WAIVERS, ETC.
(a) Authorizations. Each Guarantor authorizes Agent and
Lenders, in their discretion, without notice to or further assent from
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 Agent
or any Lender may have against Borrower, such Guarantor, any
other Guarantor, any other guarantor of the Guaranteed
Obligations or any security, including 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, Guarantors or
any other guarantor 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, Person, any other Guarantor or
any other guarantor of the Guaranteed Obligations, (B) proceed
against, resort to or exhaust any security received from, or
any balance of any deposit account or credit on the books of
Agent or any Lender in favor of, any Person 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,
indemnification, 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 defense based upon or relating to the
unenforceability of the Guaranteed Obligations or any part
thereof;
(v) Any set-off 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 the
lack of validity or enforceability of any of the Credit
Documents);
(vi) 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;
(vii) Until (A) all the Guaranteed Obligations
have been fully and indefeasibly paid in cash, (B) the Lenders
have no further commitment to lend under the Credit Agreement,
(C) the aggregate amount available for drawing under all
Letters of Credit outstanding and all Reimbursement
Obligations outstanding have been reduced to zero and (D) the
Issuing Bank has no further obligation to issue Letters of
Credit under the Credit Agreement, 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;
(viii) 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
incurrence of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(ix) The benefit of any statute of limitations to
the extent permitted by law;
(x) Any appraisement, valuation, stay,
extension, moratorium redemption or similar law or similar
rights with respect to the marshaling of any assets;
(xi) Any right to be informed by Agent or any
Lender of (A) the financial condition of Borrower, any other
Guarantor or any other guarantor of the Guaranteed Obligations
or (B) any change therein or any other circumstances bearing
upon the risk of nonpayment or nonperformance of the
Guaranteed Obligations;
(xii) Until (A) all the Guaranteed Obligations
have been fully and indefeasibly paid in cash, (B) the Lenders
have no further commitment to lend under the Credit Agreement,
(C) the aggregate amount available for drawing under all
Letters of Credit outstanding and all Reimbursement
Obligations outstanding have been reduced to zero and (D) the
Issuing Bank has no further obligation to issue Letters of
Credit under the Credit Agreement, any right to revoke this
Guaranty;
(xiii) 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;
(xiv) Any defense based upon any borrowing or
grant of a security interest under Section 364 of the United
States Bankruptcy Code; and
(xv) 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.
(c) 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, including
all rights of such Guarantor against Borrower arising as a result of payments
pursuant to Paragraph 2(a) of this Guaranty by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise (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 any Borrower),
Agent is authorized and empowered (but in no way obligated), in its
discretion, (i) in the name of each Guarantor, to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and to
apply any amounts received thereon to the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses), and (ii) to require each Guarantor (A) to collect and
enforce, and to submit claims in respect of, Subordinated Obligations
and (B) to pay any amounts received on such obligations to Agent for
application to the Guaranteed Obligations (including any and all
Disallowed Post-Commencement Interest and Expenses).
5. CONTRIBUTION AMONG GUARANTORS. Guarantors desire to allocate
among themselves, in a fair and equitable manner, their rights of
contribution from each other when any payment is made by any Guarantor
under this Guaranty. Accordingly, if any payment is made by any
Guarantor under this Guaranty (a "Funding Guarantor") that exceeds its
Fair Share, the Funding Guarantor shall be entitled to a contribution
from each other Guarantor in the amount of such other Guarantor's Fair
Share Shortfall, so that all such contributions shall cause each
Guarantor's Aggregate Guaranty Payments to equal its Fair Share. The
amounts payable as contributions hereunder shall be determined by the
Funding Guarantor as of the date on which the related payment or
distribution is made by the Funding Guarantor, and such determination
shall be binding on the other Guarantors absent manifest error. The
allocation and right of contribution among Guarantors set forth in this
Paragraph 5 shall not be construed to limit in any way the liability of
any Guarantor under this Guaranty or the amount of the Guaranteed
Obligations.
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, (i) if to Agent, at its facsimile number or address set
forth below, (ii) 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 (iii) to such other facsimile
number or address for Agent or any Guarantor as indicated in any notice
given by Agent or any Guarantor, as the case may be, to the other
parties to this Guaranty. 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 via the United States Postal Service, first
class and postage prepaid, upon receipt, (iii) when delivered by hand,
upon delivery, and (iv) when faxed, upon confirmation of receipt.
(a) Agent: ABN AMRO Bank N.V.
Syndications Group
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel. No: (212)
409-7398
Fax. No: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel No: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Payments.
(i) Each Guarantor shall make all payments of
the Guaranteed Obligations to Agent 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 2:00 p.m. (New York
City time) 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
in the lawful currency of the United States which would
otherwise be payable in another currency, such Guarantor shall
pay to Agent the Dollar Equivalent of such amount.
(iii) If any sum due from any Guarantor under this
Guaranty or any other Credit Document to which such Guarantor
is a party or any order, judgment or award given or rendered
in relation hereto or thereto has to be converted from the
currency (the "first currency") in which the same is payable
hereunder or thereunder into another currency (the "second
currency") for the purpose of (A) making or filing a claim or
proof against such Guarantor with any Governmental Authority,
(B) obtaining an order or judgment in any court or other
tribunal or (C) enforcing any order or judgment given or made
in relation hereto, such Guarantor shall, to the fullest
extent
permitted by law, indemnify and hold harmless each of the
Persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (1) the rate
of exchange used for such purpose to convert the amounts in
question from the first currency into the second currency and
(2) the rate or rates of exchange at which such Person may,
using reasonable efforts in the ordinary course of business,
purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in
part, of any such order, judgment, claim or proof. The
foregoing indemnity shall constitute a separate obligation of
each Guarantor distinct from its other obligations hereunder
and shall survive the giving or making of any judgment or
order in relation to all or any of such obligations.
(iv) If any amounts required to be paid by any
Guarantor under this Guaranty or any order, judgment or award
given or rendered in relation hereto remain unpaid after such
amounts are due, such Guarantor shall pay interest on the
aggregate outstanding balance of such amounts from the date
due until those amounts are paid in full at a per annum rate
equal to:
(1) In the case of amounts payable in
Dollars, the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate
shall change; or
(2) In the case of amounts payable in
any other currency, the Overnight Rate for such
currency plus three percent (3.00%), such rate to
change from time to time as the Overnight Rate shall
change.
(c) Expenses. Each Guarantor shall pay on demand (i) all
reasonable and documented fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
preparation, execution and delivery of, and the exercise of its duties
under, this Guaranty and the preparation, execution and delivery of any
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 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 such Guarantor, any other Guarantor, any Borrower, or any of
their respective 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 and subject to any
consent required in accordance with Paragraph 8.04 of the Credit
Agreement. 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 or power hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other further
exercise thereof or of any other right or power.
(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.
(g) Set-off; Security Interest.
(i) Upon the occurrence and during the
continuance of an Event of Default, in addition to any rights
and remedies of Lenders provided by law (including other
rights of set-off), each Lender shall have the right at any
time and from time to time, 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, 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 Agent or
any Lender 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. The parties shall endeavor in good-faith negotiations
to replace any illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to
that of any such illegal, invalid or unenforceable provisions.
(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, each of which shall be deemed to be
an original and any set of which signed by all the Guarantors shall be
deemed to constitute a complete, executed original for all purposes.
(l) Survival of Guaranty. All covenants, agreements,
representations and warranties made by Borrower or any Guarantor in the
Credit Documents and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this Guaranty or any
other Credit Document shall be considered to have been relied upon by
the Lenders and shall survive the execution and delivery of the Credit
Documents and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any Lender or on its
behalf and notwithstanding that Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended under the
Credit Agreement, and shall continue in full force and effect until (A)
all the Guaranteed Obligations have been fully and indefeasibly paid in
cash, (B) the Lenders have no further commitment to lend under the
Credit Agreement, (C) the aggregate amount available for drawing under
all Letters of Credit outstanding and all Reimbursement Obligations
outstanding have been reduced to zero and (D) the Issuing Bank has no
further obligation to issue Letters of Credit under the Credit
Agreement.
(m) Governing Law, Consent to Jurisdiction, Etc.
(i) This Guaranty shall be governed by and
construed in accordance with the laws of the State of New
York.
(ii) Each Guarantor irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New
York and the courts of the United States of America located in
the City of New York. In addition, Each Guarantor 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(m)(ii) shall affect the right of Agent or
any Lender to commence legal proceedings or otherwise ▇▇▇ 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. Each
Guarantor agrees that process served either personally or by
registered mail shall, to the extent permitted by law,
constitute adequate service of process in any such suit.
Without limiting the foregoing, each Guarantor hereby
appoints, in the case of any such action or proceeding brought
in the courts of or in the State of New York, CT Corporation,
with offices on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, to receive for it and on its behalf,
service of process in the State of New York with respect
thereto, provided that each Guarantor may appoint any other
person, reasonably acceptable to Agent, with offices in the
State of New York 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 of this
Subparagraph 6(m)(ii) 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 New York 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.
7. LIMITATION ON GUARANTEE BY FLEXTRONICS MANUFACTURING FRANCE
(a) The liability of Flextronics Manufacturing France
under this Guaranty shall be limited at any time to 50% of the greater
of:
(i) the Net Asset Value of Flextronics
Manufacturing France calculated on the basis of its audited
financial statements dated as of March 31, 2003; and
(ii) the Net Asset Value of the Flextronics
Manufacturing France calculated on the basis of its audited
financial statements available at the date on which demand is
made pursuant to this Guaranty.
(b) For the purposes of Subparagraph (a) above, "Net
Asset Value" of Flextronics Manufacturing France means the capitaux
propres (as defined in article 22 of the French decree no. 83-1020 of
November 29, 1983) of Flextronics Manufacturing France. A certificate
of the statutory auditors of the Flextronics Manufacturing France as to
the Net Asset Value shall be conclusive evidence as to the amount to
which it relates.
(c) The limitations set forth in this Paragraph 7 with
respect to Flextronics Manufacturing France shall in no way limit the
Guaranty of any other Guarantor hereunder. Without limiting
Subparagraph 6(i), if at any time the Guaranty of Flextronics
Manufacturing France is or becomes illegal, invalid or unenforceable in
any respect, neither the legality, validity or enforceability of this
Guaranty against the other Guarantors shall in any way be affected or
impaired thereby.
[The first signature page follows.]
SIGNATURE PAGE
TO FIUI GUARANTY
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed as of the day and year first above written.
Name of Guarantor: ________________________
By: _____________________________
Name: _____________________
Title: ____________________
Address:
[_________________________]
[_________________________]
[_________________________]
Attn: [_______________________]
Telephone:[___________________]
Facsimile: [__________________]
SIGNATURE PAGE
TO FIUI GUARANTY
ABN AMRO BANK N.V.,
As Agent
By: _____________________________
Name: _______________________
Title: ______________________
By: _____________________________
Name: _______________________
Title: ______________________
ATTACHMENT 1
SUBSIDIARY JOINDER
THIS SUBSIDIARY JOINDER (this "Agreement"), dated as of ____________,
____, is executed by [NEW ELIGIBLE MATERIAL SUBSIDIARY OR OTHER SUBSIDIARY], a
_________ [insert type of entity] ("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 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 Agent. Lenders have agreed to extend credit to
Borrower upon the terms and subject to the conditions set forth therein. Each
Guarantor (other than FIL) is a Subsidiary of FIL, expects to derive substantial
direct and indirect benefit from the transactions contemplated by the Credit
Agreement and is willing to execute and deliver this Subsidiary Joinder to
induce the Lenders to enter into the transactions contemplated by the Credit
Agreement.
B. Lenders' obligations to extend credit to Borrower under the Credit Agreement
are subject, among other conditions, to receipt by Agent of (1) a Guaranty,
dated as of March 3, 2004, duly executed by each existing Eligible Material
Subsidiary and each other Subsidiary required to execute the Guaranty pursuant
to Subparagraph 2.15(c) of the Credit Agreement, and (2) Subsidiary Joinders,
duly executed by each future Eligible Material Subsidiary and each other
Subsidiary required to execute the Subsidiary Joinder pursuant to Subparagraph
2.15(c) of the Credit Agreement.
C. New Subsidiary is a new Eligible Material Subsidiary or other Subsidiary,
expects to derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement and is willing to execute and deliver this
Subsidiary Joinder to induce the Lenders to enter into 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 Agent and the 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. Each reference to a "Guarantor" in
the Guaranty shall be deemed to include the New Subsidiary.
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 New York.
6. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, when taken together,
shall constitute one agreement.
7. NOTICE. All communications and notices hereunder shall be given as provided
in Paragraph 6(a) of the Guaranty.
8. EXPENSES. The New Subsidiary agrees to reimburse Agent for its reasonable
out-of-pocket expenses in connection with this Agreement, including the
reasonable fees, other charges and disbursements of counsel for the Agent.
9. GUARANTY. Except as expressly supplemented hereby, the Guaranty shall remain
in full force and effect.
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:[(_____)_____-________]
ABN AMRO BANK N.V.,
As Agent
By: _____________________________
Name: _______________________
Title: ______________________
EXHIBIT D
[FORM OF]
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 (including any Letters
of Credit or Guaranties) 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: Credit Agreement dated as of March 3, 2004 (as
amended, supplemented or otherwise modified from
time to time), among Flextronics International
USA Inc., Lenders, Fleet National Bank, as
Issuing Bank, and Agent.
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.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
----------------
(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.
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:
Consented to and Accepted:
FLEXTRONICS INTERNATIONAL LTD.
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.
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, encumbrance or other adverse
claim and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Credit Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Credit Document or any Obligation
or (iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective Obligations under
any Credit Document.
1.2. Assignee Lender. The Assignee Lender (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement, (ii) it meets all requirements of an Eligible Assignee Lender under
the Credit Agreement (subject to receipt of such consents as may be required
under the Credit Agreement), (iii) from and after the Assignment Effective Date,
it shall be bound by the provisions of the Credit Agreement as a Lender
thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis
and decision independently and without reliance on the Agent or any other
Lender, and (v) if it is a lender not organized under the laws of the United
States, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to Section 2.13(b) of the Credit Agreement, duly
completed and executed by the Assignee Lender; and (b) agrees that (i) it will,
independently and without reliance on the Agent, the Assignor Lender or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Documents are required to be performed by it as a Lender.
2. Payments. From and after the Assignment Effective Date, the Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor Lender for
amounts which have accrued to but excluding the Assignment Effective Date and to
the Assignee Lender for amounts which have accrued from and after the Assignment
Effective Date.(4)
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be
------------------
(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."
executed in any number of counterparts, each of which shall be deemed an
original and all of which 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 New York.
ATTACHMENT 2
TO ASSIGNMENT AND ASSUMPTION
PART A
Assignor Lender: Commitments or Loans Commitments or Loans After
Assigned Assignment
______________________ _______________________ __________________________
______________ $____________ $____________
Assignee Lenders:
______________________
______________ $____________ $____________
______________ $____________ $____________
______________ $____________ $____________
______________ $____________ $____________
PART B
[ASSIGNEE LENDER]
Domestic Lending Office:
[________________________],
[________________________],
[________________________],
Eurodollar Lending Office:
[________________________],
[________________________],
[________________________],
Address for Notices:
Wiring Instructions: