AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
Exhibit 10.01
AMENDMENT NO. 1 TO TERM LOAN AGREEMENT
This AMENDMENT NO. 1 TO TERM LOAN AGREEMENT (this “Amendment”), dated as of October
22, 2007, is made and entered into by and among Flextronics International Ltd., a Singapore
corporation (the “Company”), and Flextronics International USA, Inc., a California
corporation (the “U.S. Borrower” and, together with the Company, the “Borrowers”),
Citicorp North America, Inc., as administrative agent (in such capacity, the “Administrative
Agent”) and the Lenders signatory hereto. Capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Term Loan Agreement.
W
I T N E S S E
T H:
WHEREAS, the Borrowers, the other Loan Parties, the Administrative Agent and the Lenders
entered into that certain Term Loan Agreement, dated as of October 1, 2007, (as amended, amended
and restated, supplemented or otherwise modified from time to time, the “Term Loan
Agreement”);
WHEREAS, $175.0 million of A-1 Delayed Draw Loans have been funded under the Term Loan
Agreement;
WHEREAS, the Company and the Lenders have agreed to amend the Term Loan Agreement to subdivide
into two Classes of Loans the funded portion of the A-1 Delayed Draw Loans and the remaining A-1
Delayed Draw Commitment as provided herein;
WHEREAS, the Company and the Lenders have agreed that, as of the Amendment Effective Date and
effective as of the Closing Date, the A-1 Delayed Draw Commitments shall be subdivided into A-1-A
Delayed Draw Commitments and A-1-B Delayed Draw Commitments, in each case, in the respective
amounts set forth opposite each Lender’s name on Schedule 2.01 attached hereto as Annex
A; and
WHEREAS, pursuant to Section 10.01 of the Term Loan Agreement, the consent of the Required
Lenders is necessary to effect such amendments;
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
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SECTION ONE. Amendments. Subject to satisfaction of the conditions precedent set
forth in Section Four hereof, the parties hereto hereby agree to amend the Term Loan Agreement as
follows:
(a) Section 1.01 of the Term Loan Agreement is hereby amended by adding or replacing, as
applicable, certain defined terms as follows:
“ “A-1 Delayed Draw Availability Period” means the A-1-A Delayed Draw
Availability Period or the A-1-B Delayed Draw Availability Period, as
applicable.
“A-1 Delayed Draw Commitment” means, the A-1-A Delayed Draw Commitment
or the A-1-B Delayed Draw Commitment, as applicable.
“A-1 Delayed Draw Commitment Fee” means the A-1-A Delayed Draw
Commitment Fee or the A-1-B Delayed Draw Commitment Fee, as applicable.
“A-1 Delayed Draw Lender” means an A-1-A Delayed Draw Lender or an
A-1-B Delayed Draw Lender, as applicable.
“A-1 Delayed Draw Loan” means an A-1-A Delayed Draw Loan or an A-1-B
Delayed Draw Loan, as applicable.
“A-1 Delayed Draw Note” means an A-1-A Delayed Draw Note or an A-1-B
Delayed Draw Note, as applicable.
“A-1-A Delayed Draw Availability Period” means the period commencing on
the Closing Date and ending on January 1, 2008; provided, that if the
A-1-A Delayed Draw Commitments are terminated pursuant to Section 2.06, the
A-1-A Delayed Draw Availability Period shall end on the date of such
termination.
“A-1-A Delayed Draw Commitment” means, with respect to each A-1-A
Delayed Draw Lender, the commitment, if any, of such A-1-A Delayed Draw Lender
to make A-1-A Delayed Draw Loans hereunder from time to time during the A-1-A
Delayed Draw Availability Period up to the amount set forth on Schedule
2.01 or in the Assignment and Assumption pursuant to which such A-1-A
Delayed Draw Lender assumed its A-1-A Delayed Draw Commitment, as applicable,
as the same may be (a) reduced from time to time pursuant to Section 2.06 and
(b) reduced or increased from time to time pursuant to assignments by or to
such A-1-A Delayed Draw Lender pursuant to Section 10.06. The aggregate amount
of the A-1-A
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Delayed Draw Lenders’ A-1-A Delayed Draw Commitments on the Amendment No. 1
Effective Date is $175,000,000.
“A-1-A Delayed Draw Commitment Fee” has the meaning assigned to such
term in Section 2.09(a)(i).
“A-1-A Delayed Draw Lender” means a Lender with an A-1-A Delayed Draw
Commitment or an outstanding A-1-A Delayed Draw Loan.
“A-1-A Delayed Draw Loan” means a term loan made by an A-1-A Delayed
Draw Lender to the U.S. Borrower pursuant to Section 2.1(b)(i)(A) (it being
understood and agreed that any conversion or continuation of a Closing Date
Loan shall not constitute an “A-1-A Delayed Draw Loan”). Each A-1-A Delayed
Draw Loan will either be a Base Rate Delayed Draw Loan or a Eurocurrency Rate
Delayed Draw Loan.
“A-1-A Delayed Draw Note” means a promissory note of the U.S. Borrower
payable to any A-1-A Delayed Draw Lender or its registered assigns, in
substantially the form of Exhibit C-3-A hereto, evidencing the
aggregate Indebtedness of the U.S. Borrower to such A-1-A Delayed Draw Lender
resulting from the A-1-A Delayed Draw Loans made by such A-1-A Delayed Draw
Lender.
“A-1-B Delayed Draw Availability Period” means the period commencing on
the Closing Date and ending on January 1, 2008; provided, that if the
A-1-B Delayed Draw Commitments are terminated pursuant to Section 2.06, the
A-1-B Delayed Draw Availability Period shall end on the date of such
termination.
“A-1-B Delayed Draw Commitment” means, with respect to each A-1-B
Delayed Draw Lender, the commitment, if any, of such A-1-B Delayed Draw Lender
to make A-1-B Delayed Draw Loans hereunder from time to time during the A-1-B
Delayed Draw Availability Period up to the amount set forth on Schedule
2.01 or in the Assignment and Assumption pursuant to which such A-1-B
Delayed Draw Lender assumed its A-1-B Delayed Draw Commitment, as applicable,
as the same may be (a) reduced from time to time pursuant to Section 2.06 and
(b) reduced or increased from time to time pursuant to assignments by or to
such A-1-B Delayed Draw Lender pursuant to Section 10.06. The aggregate amount
of the A-1-B Delayed Draw Lenders’ A-1-B Delayed Draw Commitments on the
Amendment No. 1 Effective Date is $125,000,000.
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“A-1-B Delayed Draw Commitment Fee” has the meaning assigned to such
term in Section 2.09(a)(ii).
“A-1-B Delayed Draw Lender” means a Lender with an A-1-B Delayed Draw
Commitment or an outstanding A-1-B Delayed Draw Loan.
“A-1-B Delayed Draw Loan” means a term loan made by an A-1-B Delayed
Draw Lender to the U.S. Borrower pursuant to Section 2.01(b)(i)(B) (it being
understood and agreed that any conversion or continuation of a Closing Date
Loan shall not constitute an “A-1-B Delayed Draw Loan”). Each A-1-B Delayed
Draw Loan will either be a Base Rate Delayed Draw Loan or a Eurocurrency Rate
Delayed Draw Loan.
“A-1-B Delayed Draw Note” means a promissory note of the U.S. Borrower
payable to any A-1-B Delayed Draw Lender or its registered assigns, in
substantially the form of Exhibit C-3-B hereto, evidencing the
aggregate Indebtedness of the U.S. Borrower to such A-1-B Delayed Draw Lender
resulting from the A-1-B Delayed Draw Loans made by such A-1-B Delayed Draw
Lender.
“Amendment No. 1 Effective Date” means the Amendment Effective Date
under and as defined in that certain Amendment No. 1 to the Term Loan Agreement
dated as of October 22, 2007.”
(b) Section 2.01(b)(i) of the Term Loan Agreement is hereby amended by deleting such Section
and replacing it as follows:
“(A) to make an A-1-A Delayed Draw Loan to the U.S. Borrower from time to time
during the A-1-A Delayed Draw Availability Period in a principal amount not
exceeding its A-1-A Delayed Draw Commitment for the purpose of (x) paying the
applicable repurchase, conversion (solely with respect to the Solectron
Convertible Senior Notes), redemption, discharge or defeasance amount, as
applicable, in connection with the Notes Repayments (and to pay fees and
expenses incurred in connection therewith) and (y) funding any Permitted
Expenses in an amount, together with any amounts funded pursuant to Section
2.01(b)(i)(B)(y), Section 2.01(b)(ii)(y) and Section 2.01(b)(iii)(y), not to
exceed $50,000,000.
(B) to make an A-1-B Delayed Draw Loan to the U.S. Borrower from time to time
during the A-1-B Delayed Draw Availability Period in a principal
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amount not exceeding its A-1-B Delayed Draw Commitment for the purpose of (x)
paying the applicable repurchase, conversion (solely with respect to the
Solectron Convertible Senior Notes), redemption, discharge or defeasance
amount, as applicable, in connection with the Notes Repayments (and to pay fees
and expenses incurred in connection therewith) and (y) funding any Permitted
Expenses in an amount, together with any amounts funded pursuant to Section
2.01(b)(i)(A)(y) , Section 2.01(b)(ii)(y) and Section 2.01(b)(iii)(y), not to
exceed $50,000,000.”
(c) Schedule 2.01 of the Term Loan Agreement is hereby amended by deleting such Schedule and
replacing it with the Schedule 2.01 attached hereto as Annex A.
(d) Section 2.09(a) of the Term Loan Agreement is hereby amended by deleting such Section and
replacing it as follows:
“(i) The Company shall pay to the Administrative Agent for the account of each
A-1-A Delayed Draw Lender a commitment fee (the “A-1-A Delayed Draw
Commitment Fee”) equal to the Applicable Rate times the actual daily unused
amount of the A-1-A Delayed Draw Commitment of such Lender during the period
from and including the Closing Date to but excluding the last day of the A-1-A
Delayed Draw Availability Period. Accrued A-1-A Delayed Draw Commitment Fees
shall be payable in arrears (A) on December 31, 2007, and (B) on the last day
of the A-1-A Delayed Draw Availability Period, commencing on the first such
date to occur after the date hereof (without duplication), provided,
that if such day is not a Business Day, the accrued A-1-A Delayed Draw
Commitment Fees shall be payable on the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such A-1-A
Delayed Draw Commitment Fees shall be payable on the next preceding Business
Day.
(ii) The Company shall pay to the Administrative Agent for the account of each
A-1-B Delayed Draw Lender a commitment fee (the “A-1-B Delayed Draw
Commitment Fee”) equal to the Applicable Rate times the actual daily unused
amount of the A-1-B Delayed Draw Commitment of such Lender during the period
from and including the Closing Date to but excluding the last day of the A-1-B
Delayed Draw Availability Period. Accrued A-1-B Delayed Draw Commitment Fees
shall be payable in arrears (A) on December 31, 2007, and (B) on the last day
of the A-1-B Delayed Draw Availability Period, commencing on the first such
date to occur after the date hereof (without duplication), provided,
that if such day is not a Business Day, the accrued A-1-B Delayed Draw
Commitment Fees shall be payable on the next succeeding Business Day unless
such
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Business Day falls in another calendar month, in which case such A-1-B Delayed
Draw Commitment Fees shall be payable on the next preceding Business Day.”
(e) Exhibit C-3 of the Term Loan Agreement is hereby amended by deleting such Exhibit and
inserting in its place Exhibit C-3-A and Exhibit C-3-B, attached hereto and Annex B and Annex C,
respectively.
SECTION TWO. Effect of this Amendment on the Term Loan Agreement. Upon the
effectiveness of this Amendment in accordance with the terms of Section 4 hereof (the
“Amendment Effective Date”), each Loan Document that was in effect immediately prior to the
Amendment Effective Date shall continue to be effective and, unless the context otherwise requires,
any reference to the Term Loan Agreement shall be deemed to incorporate this Amendment.
SECTION THREE. Representations and Warranties. In order to induce the Requisite
Lenders to enter into this Amendment, the Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that, after giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing. Each Borrower further represents and warrants
(which representations and warranties shall survive the execution and delivery hereof) to the
Administrative Agent and the Lenders that: (i) each Borrower has the corporate or other power and
authority to execute, deliver and perform this Amendment and each has taken all corporate,
partnership or comparable actions necessary to authorize the execution, delivery and performance of
this Amendment, (ii) this Amendment has been duly executed and delivered by each Borrower and (iii)
this Amendment constitutes the legal, valid and binding obligations of such Borrower, enforceable
against such Person in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability.
SECTION FOUR. Conditions to Effectiveness. This Amendment shall become effective when
the Administrative Agent shall have received counterparts of this Amendment executed by each
Borrower and the Required Lenders.
SECTION FIVE. Reference to and Effect on the Loan Documents. On and after the
Amendment Effective Date, each reference in the Term Loan Agreement to “this Agreement,”
“hereunder,” “hereof” or words of like import referring to the Term Loan Agreement, and each
reference in the Notes and each of the other Loan Documents to “the Term Loan Agreement,”
“thereunder,” “thereof” or words of like import referring to the Term Loan Agreement, shall mean
and be a reference to the Term Loan Agreement, as amended by this Amendment. The Term Loan
Agreement, the Notes and each of the other Loan Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect. The execution, delivery and
effectiveness of this Amendment shall not,
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except as expressly provided herein, operate as a waiver of any right, power or remedy of any
Lender or any Agent under any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents. This Amendment shall constitute a Loan Document.
SECTION SIX. Reaffirmation. Each Borrower hereby acknowledges and reaffirms all of
its obligations and undertakings under each of the Loan Documents to which it is a party and
acknowledges and agrees that subsequent to, and after taking account of the provisions of this
Amendment, each such Loan Document is and shall remain in full force and effect in accordance with
the terms thereof.
SECTION SEVEN. Acknowledgment. Each of the parties hereto acknowledges and agrees
that all A-1 Delayed Draw Loans outstanding as of the Amendment Effective Date (together with any
conversions or continuations thereof) shall be deemed to be A-1-A Delayed Draw Loans.
SECTION EIGHT. Costs and Expenses. Each of the parties hereto shall pay its own costs
and expenses in connection with the preparation, execution and delivery of this Amendment.
SECTION NINE. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute but one
and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment
by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION TEN. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.
| FLEXTRONICS INTERNATIONAL LTD, as the Company |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Authorized Signatory | |||
| FLEXTRONICS INTERNATIONAL USA, INC., as U.S. Borrower |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Director | |||
S-1
| CITICORP NORTH AMERICA, INC., as Administrative Agent and Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
| CITIBANK, N.A., as Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
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ANNEX B
EXHIBIT C-3-A
FORM OF A-1-A DELAYED DRAW NOTE
FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
or its registered assigns (the “A-1-A Delayed Draw Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each A-1-A Delayed Draw Loan from time to time made by the A-1-A Delayed Draw Lender to the
Borrower under that certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Flextronics International
Ltd., Flextronics International USA, Inc., a California corporation, the Lenders from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of each A-1-A Delayed
Draw Loan from the date of such A-1-A Delayed Draw Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All payments of
principal and interest shall be made to the Administrative Agent for the account of the A-1-A
Delayed Draw Lender in Same Day Funds at the Administrative Agent’s Office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This A-1-A Delayed Draw Note is one of the A-1-A Delayed Draw Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. This A-1-A Delayed Draw Note is also entitled to the
benefits of the Company Guaranty and the Subsidiary Guaranty. Upon the occurrence and continuation
of one or more of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this A-1-A Delayed Draw Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Loans made by the A-1-A Delayed Draw Lender shall be
evidenced by one or more loan accounts or records maintained by the A-1-A Delayed Draw Lender in
the ordinary course of business. The A-1-A Delayed Draw Lender may also attach schedules to this
A-1-A Delayed Draw Note and endorse thereon the date, amount, currency and maturity of its A-1-A
Delayed Draw Loans and payments with respect thereto.
B-1
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A-1-A Delayed
Draw Note.
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: | ||||||
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XXXXX X
XXXXXXX X-0-X
XXXX XX X-0-X XXXXXXX DRAW NOTE
FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to
or its registered assigns (the “A-1-B Delayed Draw Lender”), in
accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of
each A-1-B Delayed Draw Loan from time to time made by the A-1-B Delayed Draw Lender to the
Borrower under that certain Term Loan Agreement, dated as of October 1, 2007 (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the “Agreement”;
the terms defined therein being used herein as therein defined), among Flextronics International
Ltd., Flextronics International USA, Inc., a California corporation, the Lenders from time to time
party thereto and Citicorp North America, Inc., as Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of each A-1-B Delayed
Draw Loan from the date of such A-1-B Delayed Draw Loan until such principal amount is paid in
full, at such interest rates and at such times as provided in the Agreement. All payments of
principal and interest shall be made to the Administrative Agent for the account of the A-1-B
Delayed Draw Lender in Same Day Funds at the Administrative Agent’s Office. If any amount is not
paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand,
from the due date thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Agreement.
This A-1-B Delayed Draw Note is one of the A-1-B Delayed Draw Notes referred to in the
Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to
the terms and conditions provided therein. This A-1-B Delayed Draw Note is also entitled to the
benefits of the Company Guaranty and the Subsidiary Guaranty. Upon the occurrence and continuation
of one or more of the Events of Default specified in the Agreement, all amounts then remaining
unpaid on this A-1-B Delayed Draw Note shall become, or may be declared to be, immediately due and
payable all as provided in the Agreement. Loans made by the A-1-B Delayed Draw Lender shall be
evidenced by one or more loan accounts or records maintained by the A-1-B Delayed Draw Lender in
the ordinary course of business. The A-1-B Delayed Draw Lender may also attach schedules to this
A-1-B Delayed Draw Note and endorse thereon the date, amount, currency and maturity of its A-1-B
Delayed Draw Loans and payments with respect thereto.
C-1
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment,
protest and demand and notice of protest, demand, dishonor and non-payment of this A-1-B Delayed
Draw Note.
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: | ||||||
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