Exhibit 4.7
MANUFACTURERS' SERVICES LIMITED
FIRST AMENDMENT AGREEMENT
AND CONSENT
This FIRST AMENDMENT AGREEMENT AND CONSENT (this "AMENDMENT
AGREEMENT") is dated as of September 29, 2000 and entered into by and among
Manufacturers' Services Limited, a Delaware corporation ("COMPANY"), the
financial institutions listed on the signature pages hereof ("LENDERS"), DLJ
Capital Funding, Inc., as syndication agent (in such capacity, "SYNDICATION
AGENT"), ABN AMRO Bank N.V. and Barclays Bank PLC as co-documentation agents for
Lenders (in such capacity, "DOCUMENTATION AGENTS") and Bank of America, N.A., as
administrative agent (in such capacity, "ADMINISTRATIVE AGENT"), as letter of
credit issuing bank (in such capacity, "ISSUING LENDER") and as collateral agent
(in such capacity, "COLLATERAL AGENT") and is made with reference to that
certain Credit Agreement dated as of August 17, 2000 (the "ORIGINAL CREDIT
AGREEMENT") by and among Company, the lenders listed on the signature pages
thereof, Administrative Agent, Collateral Agent, Issuing Lender, Syndication
Agent and Documentation Agents. Capitalized terms used herein without definition
shall have the same meanings herein as set forth in the First Amended and
Restated Credit Agreement (as defined below).
RECITALS
WHEREAS, Company and Lenders desire, subject to the terms and
conditions hereinafter set forth, to amend and restate the Original Credit
Agreement (together with all schedules and exhibits thereto) in its entirety in
the form of the First Amended and Restated Credit Agreement:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENT AND RESTATEMENT OF ORIGINAL CREDIT
AGREEMENT
On the First Amended and Restated Credit Agreement Effective
Date (as defined below), the Original Credit Agreement (including all schedules
and exhibits thereto) shall be and is hereby amended and restated to read in its
entirety as set forth in ANNEX A hereto (as set forth in such ANNEX A, the
"FIRST AMENDED AND RESTATED CREDIT AGREEMENT"), and as so amended and restated
is hereby ratified, approved and confirmed in each and every respect. The rights
and obligations of the parties to the Original Credit Agreement with respect to
the period prior to the First Amended and Restated Credit Agreement Effective
Date shall not be affected by such amendment and restatement.
SECTION 2. CONSENT
Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Company herein contained,
Lenders hereby consent (a) to
the incurrence of the Acquisition Term Loans by Company and (b) to the terms of
the Acquisition and agree that (i) Acquisition Term Loans are not Indebtedness
for purposes of subsection 2.4A(iii)(c) and (ii) Company's and its Subsidiaries'
ability to incur Indebtedness, increase Commitments or make acquisitions after
the First Amendment Effective Date pursuant to the terms of the First Amended
and Restated Credit Agreement (including subsection 2.10 thereof) shall not be
affected by this Consent, the Acquisition or the incurrence of the Acquisition
Term Loans.
SECTION 3. LIMITATION OF CONSENT
Without limiting the generality of the provisions of
subsection 11.6 of the Credit Agreement, the consent set forth in Section 2
shall be limited precisely as written and is provided solely with respect to the
incurrence of the Acquisition Term Loans and the Acquisition in the manner and
to the extent described above, and nothing in this Amendment shall be deemed to
constitute a waiver of compliance by Company with respect to (i) subsection
2.10, 7.1, 7.3 or 7.6 of the Credit Agreement in any other instance or (ii) any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 4. CONDITIONS TO EFFECTIVENESS
Section 1 and Section 2 of this Amendment Agreement shall
become effective only upon the satisfaction on or prior to September 29, 2000 of
all of the following conditions precedent and the conditions set forth in
Section 5E hereof (the date of satisfaction of such conditions being referred to
herein as the "FIRST AMENDED AND RESTATED CREDIT AGREEMENT EFFECTIVE DATE"):
A. On or before the First Amended and Restated Credit Agreement
Effective Date, Company shall deliver to Administrative Agent the following,
each, unless otherwise noted, dated the First Amended and Restated Credit
Agreement Effective Date:
(i) Resolutions of the Board of Directors of Company,
approving and authorizing the execution, delivery, and performance of
this Amendment Agreement and the Acquisition, certified as of the First
Amended and Restated Credit Agreement Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
(ii) Signature and incumbency certificates of the officers
of Company executing this Amendment Agreement; and
(iii) A copy of the Acquisition Agreement, as executed by
the parties thereto, which shall be reasonably satisfactory in form and
substance to the Agents and their counsel, and which shall be certified
by an officer of Company as being a true and correct copy thereof.
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B. Each of the Agents shall have received executed counterparts
of this Amendment Agreement, duly executed and delivered on behalf of (a) each
of the Requisite Lenders and (b) each Lender that has an Acquisition Term Loan
Commitment.
C. All documents executed or submitted in connection with the
transactions contemplated hereby by or on behalf of Company or any of its
Subsidiaries shall be reasonably satisfactory in form and substance to each of
the Agents and their counsel; each of the Agents and their counsel shall have
received all information, approvals, opinions, documents or instruments that
each of the Agents or their counsel shall have reasonably requested.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment
Agreement and to amend and restate the Original Credit Agreement as described
herein, Company represents and warrants to each Lender that the following
statements are true, correct and complete on and as of the First Amended and
Restated Credit Agreement Effective Date:
A. CORPORATE POWER AND AUTHORITY. Each of Company and
each of its Subsidiaries has all requisite corporate power and authority to
enter into this Amendment Agreement and to carry out the transactions
contemplated by, and perform its obligations under, the First Amended and
Restated Credit Agreement.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of
this Amendment Agreement and the performance of the First Amended and Restated
Credit Agreement have been duly authorized by all necessary corporate action on
the part of each of Company and each of its Subsidiaries.
C. PERFORMANCE OF ORIGINAL CREDIT AGREEMENT. As of the First
Amended and Restated Credit Agreement Effective Date, Company has performed all
material agreements to be performed on its part as set forth in the Original
Credit Agreement, unless performance of any such agreement has been previously
waived.
D. NO CONFLICT. The execution, delivery and performance by each
of Company and each of its Subsidiaries of this Amendment Agreement and the
performance by Company of the First Amended and Restated Credit Agreement do not
and will not (i) violate any provision of (a) any law or any governmental rule
or regulation applicable to Company or any of its Subsidiaries, (b) the
Organizational Documents of Company or any of Company's Subsidiaries or (c) any
order, judgment or decree of any court or other Government Authority binding on
Company or any of Company's Subsidiaries, (ii) conflict with, result in a breach
of or constitute a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of Company's
Subsidiaries (other than Liens created under any of the Loan Documents in favor
of Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of Company's Subsidiaries, except for such
approvals or consents which will be obtained on or before the date of the First
Amended and
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Restated Credit Agreement Effective Date, except in each case, to the extent
such violation, conflict, lien or failure to obtain such approval or consent
could not reasonably be expected to have a Material Adverse Effect.
E. GOVERNMENTAL CONSENTS. The execution, delivery and performance
by each of Company and each of its Subsidiaries of this Amendment Agreement and
the performance by Company of the First Amended and Restated Credit Agreement do
not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or other
Governmental Authority other than any such registrations, consents, approvals,
notices or other actions (x) that have been made, obtained or taken on or prior
to the date on which such registrations, consents, approvals, notices or other
actions are required to be made, obtained or taken, as the case may be, and are
in full force and effect or (y) the failure of which to make, obtain or take has
not had and could not reasonably be expected to have a Material Adverse Effect.
F. BINDING OBLIGATION. This Amendment Agreement has been duly
executed and delivered by each Loan Party that is a party hereto, and each of
this Amendment Agreement and the First Amended and Restated Credit Agreement is
the legally valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally or by equitable principles relating to
enforceability.
G. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
First Amended and Restated Credit Agreement are true, correct and complete in
all material respects on and as of the First Amended and Restated Credit
Agreement Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
H. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment Agreement that would constitute an Event of Default or a Potential
Event of Default.
SECTION 6. ACQUISITION TERM LOAN LENDERS
Upon their execution and delivery of this Amendment Agreement
and the effectiveness of this Amendment Agreement pursuant to its terms, the
financial institutions identified on the signature pages hereto as Acquisition
Term Loan Lenders shall become parties to the First Amended and Restated Credit
Agreement and Lenders for all purposes under the First Amended and Restated
Credit Agreement.
SECTION 7. ACKNOWLEDGEMENT AND CONSENT
Each Subsidiary Guarantor hereby acknowledges that it has
reviewed the terms and provisions of the Original Credit Agreement and this
Amendment Agreement and consents to the amendment and restatement of the
Original Credit Agreement effected
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pursuant to this Amendment Agreement (including without limitation, the
incurrence of the Acquisition Term Loans by Company, which increases the
obligations guarantied by Subsidiary Guarantors). Each Subsidiary Guarantor
hereby confirms that the Subsidiary Guaranty will continue to guaranty to the
fullest extent possible the payment and performance of all "Guarantied
Obligations" as such term is defined in the Subsidiary Guaranty, including
without limitation the payment and performance of all such "Guarantied
Obligations" in respect of the Obligations of Company now or hereafter existing
under or in respect of the First Amended and Restated Credit Agreement.
Each Subsidiary Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment
Agreement, such Subsidiary Guarantor is not required by the terms of the
Original Credit Agreement or any other Loan Document to consent to the
amendments to the Original Credit Agreement effected pursuant to this Amendment
Agreement and (ii) nothing in the Original Credit Agreement, this Amendment
Agreement or any other Loan Document shall be deemed to require the consent of
such Subsidiary Guarantor to any future amendments to the Original Credit
Agreement.
SECTION 8. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE ORIGINAL CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(i) On and after the First Amended and Restated Credit
Agreement Effective Date, each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import referring
to the Original Credit Agreement shall mean and be a reference to the First
Amended and Restated Credit Agreement.
(ii) The execution, delivery and performance of this
Amendment Agreement shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver of any right,
power or remedy of Agent or any Lender under, the Original Credit Agreement
or any of the other Loan Documents.
B. FEES AND EXPENSES.
(i) On the later of (a) the date of consummation of the
Acquisition or (b) October 2, 2000, Company shall pay to each Lender (other than
the Acquisition Term Loan Lenders) executing this Amendment Agreement a fee
equal to .125% of the Commitment of such Lender.
(ii) Company acknowledges that all costs, fees and
expenses as described in subsection 11.2 of the Original Credit Agreement
incurred by Agents and their counsel with respect to this Amendment Agreement
and the documents and transactions contemplated hereby shall be for the account
of Company.
C. HEADINGS. Section and subsection headings in this Amendment
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Amendment Agreement for any other purpose or be given
any substantive effect.
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D. APPLICABLE LAW. THIS AMENDMENT AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment Agreement (other
than Section 1 hereof, the effectiveness of which is governed by Section 4
hereof) shall become effective upon the execution of a counterpart hereof by
Company, Requisite Lenders, Syndication Agent, Administrative Agent, and the
Subsidiary Guarantors and receipt by Company and Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first written above.
COMPANY: MANUFACTURERS' SERVICES LIMITED
By:__________________________________________
Title:_______________________________________
S-1
ADMINISTRATIVE AND
COLLATERAL AGENT: BANK OF AMERICA, N.A.
as Administrative Agent and as Collateral
Agent
By:__________________________________________
Title:_______________________________________
S-2
LENDERS: BANK OF AMERICA, N.A.,
individually and as Issuing Lender
By:__________________________________________
Title:_______________________________________
▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇.,
individually and as Syndication Agent
By:__________________________________________
Title:_______________________________________
S-4
ABN AMRO BANK N.V.
By:__________________________________________
Title:_______________________________________
▇-▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:__________________________________________
Title:_______________________________________
S-6
BARCLAYS BANK PLC
By:__________________________________________
Title:_______________________________________
S-7
THE CHASE MANHATTAN BANK
By:__________________________________________
Title:_______________________________________
S-8
CITIZENS BANK OF MASSACHUSETTS
By:__________________________________________
Title:_______________________________________
S-9
ERSTE BANK, NEW YORK BRANCH
By:__________________________________________
Title:_______________________________________
S-10
GMAC CC COMMERCIAL CREDIT LLC
By:__________________________________________
Title:_______________________________________
S-11
IBM CREDIT CORPORATION
By:__________________________________________
Title:_______________________________________
S-12
THE PROVIDENT BANK
By:__________________________________________
Title:_______________________________________
S-13
UPS CAPITAL CORPORATION
By:__________________________________________
Title:_______________________________________
S-14
TEXTRON FINANCIAL CORPORATION
By:__________________________________________
Title:_______________________________________
S-15
ACQUISITION TERM
LOAN LENDERS: DLJ CAPITAL FUNDING, INC.
By:__________________________________________
Title:_______________________________________
S-16
BANK OF AMERICA, N.A.
By:__________________________________________
Title:_______________________________________
S-17
GUARANTORS: MANUFACTURERS' SERVICES LIMITED
By:__________________________________________
Title:_______________________________________
MANUFACTURERS' SERVICES
CENTRAL U.S. OPERATIONS, INC.
By:__________________________________________
Title:_______________________________________
MANUFACTURERS' SERVICES
WESTERN U.S. OPERATIONS, INC
By:__________________________________________
Title:_______________________________________
MANUFACTURERS' SERVICES SALT
LAKE CITY OPERATIONS, INC.
By:__________________________________________
Title:_______________________________________
MSL SPV SPAIN, INC.
By:__________________________________________
Title:_______________________________________
MSL/QUALITRONICS, INC.
By:__________________________________________
Title:_______________________________________
S-18
ANNEX A
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
[SEE ATTACHED]
A-1