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EXHIBIT 10.40
SECOND AMENDMENT
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Second Amendment dated as of June 30, 1997 to Revolving Credit and
Term Loan Agreement (the "Second Amendment"), by and among FLEXTRONICS
INTERNATIONAL LTD., a company incorporated in Singapore (the "Borrower"),
BANKBOSTON, N.A. (FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF BOSTON) and the
other lending institutions listed on Schedule 1 to the Credit Agreement (as
hereinafter defined) (the "Banks"), amending certain provisions of the Revolving
Credit and Term Loan Agreement dated as of March 27, 1997 (as amended and in
effect from time to time, the "Credit Agreement") by and among the Borrower, the
Banks and BankBoston, N.A. as agent for the Banks (the "Agent"). Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain
terms and conditions of the Credit Agreement as specifically set forth in this
Second Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. Section
1.1 of the Credit Agreement is hereby amended as follows:
(a) The definition of "Security Documents" is hereby amended by
inserting immediately after the words "the Security Agreements" which appear in
such definition the words "the Swedish Pledge Documents"; and
(b) Section 1.1 of the Credit Agreement is further amended by
inserting the following definitions in the appropriate alphabetical order:
Swedish Agency Agreement. The Agency Account Agreement
dated as of June 30, 1997 among Flextronics Sweden, the Agent and
Flextronics Sweden's account bank, and in form and substance
satisfactory to the Agent.
Swedish Pledge Agreement. The Pledge Agreement dated as
of June 30, 1997 between Flextronics Sweden and the Agent, which
Pledge Agreement shall be in form and substance satisfactory to the
Agent, pursuant to which Flextronics Sweden has pledged to the Agent
for the benefit of the Banks and the Agent a security interest in
its accounts receivable.
Swedish Pledge Documents. Collectively, the Swedish
Agency Agreement, the Swedish Pledge Agreement and each other
document, agreement or instrument executed in connection therewith.
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SECTION 2. AMENDMENT TO SECTION 9 OF THE CREDIT AGREEMENT. Section
9 of the Credit Agreement is hereby amended as follows:
(a) Section 9.4(a) of the Credit Agreement is hereby
amended by deleting the words "as soon as practicable, but in any
event not later than ninety (90) days after the end of each fiscal
year of the Borrower" which appear in the first sentence of
Section 9.4(a) and substituting in place thereof the words "as soon
as practicable, but in any event not later than (i) 120 days after
the end of the 1997 fiscal year of the Borrower and (ii) 90 days
after the end of each subsequent fiscal year of the Borrower
thereafter"
(b) Section 9.14 of the Credit Agreement is hereby
amended by deleting the words "June 30, 1997" which appear in
Section 9.14 and substituting in place thereof the words "September
15, 1997";
(c) Section 9.16 of the Credit Agreement is hereby
amended by deleting the words "June 30, 1997" which appear in
Section 9.16 and substituting in place thereof the words "September
15, 1997".
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall
not become effective until the Agent receives the following documents:
(a) a counterpart of this Second Amendment, executed by the
Borrower, the Guarantors and the Majority Banks; and
(b) evidence satisfactory to the Agent that the Swedish Pledge
Documents have been executed and delivered by the parties thereto, all
appropriate notices have been delivered to the account debtors and all
appropriate consents have been obtained, and the Agent has a first priority
perfected security interest in the Accounts Receivable of Flextronics Sweden.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
repeats, on and as of the date hereof, each of the representations and
warranties made by it in Section 8 of the Credit Agreement, and such
representations and warranties remain true as of the date hereof (except to the
extent of changes resulting from transactions contemplated or permitted by the
Credit Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate
expressly to an earlier date), provided, that all references therein to the
Credit Agreement shall refer to such Credit Agreement as amended hereby. In
addition, the Borrower hereby represents and warrants that the execution and
delivery by the Borrower of this Second Amendment and the performance by the
Borrower of all of its agreements and obligations under the Credit Agreement as
amended hereby are within the corporate authority of each the Borrower and has
been duly authorized by all necessary corporate action on the part of the
Borrower.
SECTION 5. RATIFICATION, ETC. Except as expressly amended hereby,
the Credit Agreement and all documents, instruments and agreements related
thereto, including, but not limited to the Security Documents, are hereby
ratified and confirmed in all respects and shall continue in full force and
effect. The Credit Agreement and this Second Amendment shall be read and
construed as a single agreement. All references in the Credit Agreement or any
related agreement or instrument to the Credit Agreement shall hereafter refer to
the Credit Agreement as amended hereby.
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SECTION 6. NO WAIVER. Nothing contained herein shall constitute a
waiver of, impair or otherwise affect any Obligations, any other obligation of
the Borrower or any rights of the Agent or the Banks consequent thereon.
SECTION 7. COUNTERPARTS. This Second Amendment may be executed in
one or more counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a document under seal as of the date first above written.
FLEXTRONICS INTERNATIONAL LTD.
By:____________________________________
Title:
BANKBOSTON, N.A.
By:____________________________________
Title:
ABN AMRO BANK N.V.
By:____________________________________
Title:
THE BANK OF NOVA SCOTIA
By:____________________________________
Title:
BANQUE PARIBAS
By:____________________________________
Title:
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
By:____________________________________
Title:
BANQUE NATIONALE DE PARIS, SAN
XXXXXXXXX XXXXXX
By:____________________________________
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Title:
By:____________________________________
Title:
COMERICA BANK
By:____________________________________
Title:
DE NATIONALE INVESTERINGSBANK ASIA
LTD.
By:____________________________________
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:____________________________________
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By:____________________________________
Title:
SANWA BANK CALIFORNIA
By:____________________________________
Title:
SUMITOMO BANK OF CALIFORNIA
By:____________________________________
Title:
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XXXXX XXXX XX XXXXXXXXXX
By:____________________________________
Title:
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RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents
to the foregoing Second Amendment as of June 30, 1997, and agrees that each of
the Guarantees dated as of March 27, 1997 from each of the undersigned
Guarantors remain in full force and effect, and each of the Guarantors confirms
and ratifies all of its obligations thereunder.
FLEXTRONICS INTERNATIONAL USA, INC.
By:__________________________________
Title:
FLEXTRONICS INTERNATIONAL (UK) LTD.
By:__________________________________
Title:
FLEXTRONICS MANUFACTURING (HK) LTD.
By:__________________________________
Title:
FLEXTRONICS SINGAPORE PTE. LTD.
By:__________________________________
Title:
FLEXTRONICS HOLDING (UK) LTD.
By:__________________________________
Title:
FLEXTRONICS MALAYSIA SDN BHD
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By:__________________________________
Title:
FLEXTRONICS INTERNATIONAL
MARKETING (L) LTD.
By:__________________________________
Title:
FLEXTRONICS HOLDINGS AB
By:__________________________________
Title:
FLEXTRONICS INTERNATIONAL
SWEDEN AB
By:__________________________________
Title:
ASTRON GROUP LIMITED
By:__________________________________
Title:
