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FOURTH AMENDMENT
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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Fourth Amendment dated as of February 5, 1999 to Amended and Restated
Revolving Credit Agreement (the "Fourth 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) (collectively, the "Banks"), amending certain provisions of
the Amended and Restated Revolving Credit Agreement dated as of January 14, 1998
(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 other
terms and conditions of the Credit Agreement as specifically set forth in this
Fourth 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:
ss.1. Amendment to Section 1 of the Credit Agreement. Section 1.1 of the
Credit Agreement is hereby amended by inserting the following definition in the
appropriate alphabetical order:
Accounts Receivable. All rights of the Company or any of its
Subsidiaries to payment for goods sold, leased or otherwise marketed in the
ordinary course of business and all rights of the Company and its
Subsidiaries to payment for services rendered in the ordinary course of
business and all sums of money or other proceeds due thereon pursuant to
transactions with account debtors, except for that portion of the sum of
money or other proceeds due thereon that relate to sales, use or property
taxes in conjunction with such transactions, recorded on books of account
in accordance with generally accepted accounting principles.
ss.2. Amendment to Section 10 of the Credit Agreement. Section 10 of the
Credit Agreement is hereby amended as follows:
(a) Section 10.5.2 of the Credit Agreement is hereby amended by deleting
ss.10.5.2 in its entirety and restating it as follows:
10.5.2. Disposition of Assets. The Borrowers will not, and will not
permit any of their Subsidiaries to, become a party to or agree to or
effect any disposition of assets, other than (a) the disposition of assets
in the ordinary course of business, consistent with past practices
(including, without limitation, (i) revolving sales of Accounts Receivable
for cash pursuant to a factoring or other similar receivables sales
program, and (ii) the disposition of equipment which a Borrower or such
Subsidiary replaces with similar equipment within ninety (90) days of such
disposition); (b) the disposition of the assets of Flextronics Sweden to
Ericsson pursuant to Section M.1 of the Ericsson General Purchase Agreement
(provided,
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however, such a disposition shall constitute an Event of Default
hereunder); (c) the disposition of assets set forth on Schedule 10.5.2; and
(d) other dispositions of assets to any Person in an arms-length
transaction for fair and reasonable value so long as after giving effect to
each such disposition the Company has demonstrated to the satisfaction of
the Agent that the aggregate amount of assets so disposed of in any fiscal
year does not exceed five percent (5%) of the Consolidated Total Assets of
the Company and its Subsidiaries as set forth on the most recent fiscal
quarter's financial statements delivered to the Agent and the Banks;
provided, that, prior to making any dispositions set forth in this
ss.10.5.2(d), the Company shall have delivered to the Agent on the date of
any such sale or disposition a certificate signed by an authorized officer
of the Company and evidence satisfactory to the Agent showing that no
Default or Event of Default has occurred and is continuing at the time of
such sale or disposition and no such Default or Event of Default will exist
after giving effect to such sale or disposition and evidence satisfactory
to the Agent that after giving effect to such sale or disposition, the
aggregate value of all Accounts Receivable still owned by the Company and
its Subsidiaries in which the Agent either has a perfected first priority
security interest or which Accounts Receivable are not otherwise encumbered
in any respect is not less than $75,000,000.
Notwithstanding anything to the contrary contained in this ss.10.5.2, (a)
the Borrowers and their Subsidiaries shall not be permitted to dispose of
any assets or take (or omit to take) any action in connection with any
Asset Sale or other disposition or engage in any other transaction which
action (or omission) would require any repayment, repurchase or redemption
(or any mandatory offer to repay, repurchase or redeem) by the Company or
any of its Subsidiaries of the Subordinated Notes or any other Subordinated
Debt pursuant to the Subordinated Indenture or similar agreement prior to
the repayment in full in cash of all the Obligations and the termination of
the Total Commitment to zero, or would violate the provisions of the
Subordinated Indenture or similar agreement; (b) the Borrowers shall not
directly or indirectly sell or otherwise dispose of all or substantially
all of their assets; and (c) except as expressly permitted in this
ss.10.5.2, neither the Borrowers nor their Subsidiaries shall sell or
otherwise dispose of any capital stock of any Person which is either a
Borrower or a Guarantor or is an entity the capital stock of which is
pledged under the Loan Documents by such Borrower or any Guarantor, except
for transfers to a Borrower or another Guarantor (with each such transfer
to a Borrower or another Guarantor to be subject to the Agent's security
interest therein for the benefit of the Agent and the Banks).
(b) Section 10.6 of the Credit Agreement is hereby amended by deleting the
reference to ss.10.5.2(c) contained therein and substituting in place thereof
the reference to ss.10.5.2(d).
ss.3. Conditions to Effectiveness. This Fourth Amendment shall not become
effective until the Agent receives a counterpart of this Fourth Amendment,
executed by the Borrower, the Guarantors and the Majority Banks.
ss.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
ss.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
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delivery by the Borrower of this Fourth 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.
ss.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 Fourth 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.
ss.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.
ss.7. Counterparts. This Fourth 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.
ss.8. Governing Law. THIS FOURTH 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 Fourth 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: ___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: ___________________________________
Name:
Title:
BANQUE NATIONALE DE PARIS, SAN
XXXXXXXXX XXXXXX
By: ___________________________________
Name:
Vice President
PARIBAS
By: ___________________________________
Name:
Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: ___________________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: ___________________________________
Name:
Title:
RATIFICATION OF GUARANTY
Each of the undersigned guarantors hereby acknowledges and consents to the
foregoing Fourth Amendment as of February 5, 1999, and agrees that each of the
Guarantees dated as of January 14, 1998 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:
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FLEXTRONICS MALAYSIA SDN BHD
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:
DTM PRODUCTS CORPORATION
By:___________________________________
Title:
FLEXTRONICS MEXICO, S.A. de C.V.
By:___________________________________
Title:
