EXHIBIT 10.1
U.S. $500,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of May 11, 2005
Among
JABIL CIRCUIT, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP USA, INC.
as Administrative Agent
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
and
THE ROYAL BANK OF SCOTLAND PLC,
SUNTRUST BANK,
and
ABN AMRO BANK N.V.
as Documentation Agents
- --------------------------------------------------------------------------------
CITIGROUP GLOBAL MARKETS INC.
and
J.P. MORGAN SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 12
SECTION 1.03. Accounting Terms 13
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 13
SECTION 2.02. Making the Advances 13
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 15
SECTION 2.04. Fees 17
SECTION 2.05. Termination or Reduction of the Commitments 17
SECTION 2.06. Repayment of Advances and Letter of Credit Drawings 17
SECTION 2.07. Interest on Revolving Credit Advances 18
SECTION 2.08. Interest Rate Determination 19
SECTION 2.09. Optional Conversion of Revolving Credit Advances 20
SECTION 2.10. Prepayments of Advances 20
SECTION 2.11. Increased Costs 21
SECTION 2.12. Illegality 22
SECTION 2.13. Payments and Computations 22
SECTION 2.14. Taxes 23
SECTION 2.15. Sharing of Payments, Etc. 25
SECTION 2.16. Evidence of Debt 25
SECTION 2.17. Use of Proceeds 25
SECTION 2.18. Increase in the Aggregate Revolving Credit Commitments 26
ARTICLE III
i
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 27
SECTION 3.02. Initial Advance to Each Designated Subsidiary 28
SECTION 3.03. Conditions Precedent to Each Borrowing, Issuance and Commitment Increase 29
SECTION 3.04. Determinations Under Section 3.01 29
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company 30
ARTICLE V
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 33
SECTION 5.03. Financial Covenants 36
ARTICLE VI
SECTION 6.01. Events of Default 36
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 38
ARTICLE VII
SECTION 7.01. Unconditional Guaranty 38
SECTION 7.02. Guaranty Absolute 39
SECTION 7.03. Waivers and Acknowledgments 39
SECTION 7.04. Subrogation 40
SECTION 7.05. Continuing Guaranty; Assignments 40
ARTICLE VIII
SECTION 8.01. Authorization and Action 41
SECTION 8.02. Agent's Reliance, Etc. 41
SECTION 8.03. Citibank and Affiliates 41
SECTION 8.04. Lender Credit Decision 42
SECTION 8.05. Indemnification 42
ii
SECTION 8.06. Successor Agent 42
SECTION 8.07. Sub-Agent 43
SECTION 8.08. Other Agents 43
ARTICLE IX
SECTION 9.01. Amendments, Etc. 43
SECTION 9.02. Notices, Etc. 43
SECTION 9.03. No Waiver; Remedies 44
SECTION 9.04. Costs and Expenses 44
SECTION 9.05. Right of Set-off 45
SECTION 9.06. Binding Effect 45
SECTION 9.07. Assignments and Participations 45
SECTION 9.08. Confidentiality 47
SECTION 9.09. Designated Subsidiaries 48
SECTION 9.10. Governing Law 48
SECTION 9.11. Execution in Counterparts 48
SECTION 9.12. Judgment 48
SECTION 9.13. Jurisdiction, Etc. 49
SECTION 9.14. Substitution of Currency 49
SECTION 9.15. No Liability of the Issuing Banks 49
SECTION 9.16. Patriot Act Notice 50
SECTION 9.17. Power of Attorney 50
SECTION 9.18. Waiver of Jury Trial 51
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Schedule 3.01(b) - Disclosed Litigation
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Designation Agreement
iv
FIVE YEAR CREDIT AGREEMENT
Dated as of May 11, 2005
JABIL CIRCUIT, INC., a Delaware corporation (the "Company"), the banks, financial institutions and other institutional lenders (the "Initial Lenders") and issuers of letters of credit ("Initial Issuing Banks") listed on Schedule I hereto, JPMORGAN CHASE BANK, N.A., as syndication agent, and CITICORP USA, INC. ("Citibank"), as administrative agent (the "Agent") for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Advance" means a Revolving Credit Advance or a Swing Line Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank at
its office at Two Penns Way, New Castle, Delaware 19720, Account No.
36852248, Attention: Bank Loan Syndications, (b) in the case of Advances
denominated in any Committed Currency, the account of the Sub-Agent
designated in writing from time to time by the Agent to the Company and
the Lenders for such purpose and (c) in any such case, such other account
of the Agent as is designated in writing from time to time by the Agent to
the Company and the Lenders for such purpose.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurocurrency Lending Office in the case of a Eurocurrency
Rate Advance.
"Applicable Margin" means as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurocurrency Rate Advances - --------------------- --------------------- -------------------------- Level 1 BBB+ or Baa1 or above 0.00% 0.500% Level 2 BBB or Baa2 0.00% 0.600% Level 3 BBB- or Baa3 0.00% 0.700% Level 4 BB+ or Ba1 0.00% 0.875% Level 5 Lower than Level 4 0.00% 0.950%
1
"Applicable Percentage" means, as of any date a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating Applicable
S&P/Moody's Percentage - --------------------- ---------- Level 1 BBB+ or Baa1 or above 0.125% Level 2 BBB or Baa2 0.150% Level 3 BBB- or Baa3 0.175% Level 4 BB+ or Ba1 0.250% Level 5 Lower than Level 4 0.300%
"Applicable Utilization Fee" means, as of any date that the sum of
the aggregate Advances and the Available Amount of Letters of Credit
exceed 50% of the aggregate Commitments, a percentage per annum determined
by reference to the Public Debt Rating in effect on such date as set forth
below:
Public Debt Rating Applicable
S&P/Moody's Utilization Fee - --------------------- --------------- Level 1 BBB+ or Baa1 or above 0.125% Level 2 BBB or Baa2 0.125% Level 3 BBB- or Baa3 0.125% Level 4 BB+ or Ba1 0.125% Level 5 Lower than Level 4 0.250%
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.18(d).
"Assumption Agreement" has the meaning specified in Section
2.18(d)(ii).
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any law or proceeding of the type referred to
in Section 6.01(e) or Title 11, U.S. Code, or any similar foreign,
federal, state or provincial law for the relief of debtors.
2
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance denominated in Dollars that
bears interest as provided in Section 2.07(a)(i).
"Borrowers" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances, on
which dealings are carried on in the London interbank market and banks are
open for business in London and in the country of issue of the currency of
such Eurocurrency Rate Advance (or, in the case of an Advance denominated
in Euro, on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open).
"Commitment" means a Revolving Credit Commitment or a Swing Line
Commitment.
"Commitment Date" has the meaning specified in Section 2.18(b).
"Commitment Increase" has the meaning specified in Section 2.18(a).
"Committed Currencies" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of Japan and Euros.
"Company Information" has the meaning specified in Section 9.08.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's
business and monetary obligations arising under supply or consignment
agreements, in each case not overdue by more than 90 days or are being
contested in good faith by appropriate proceedings and for which
reasonable reserves are being maintained), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit, bank guarantees, surety bonds or similar extensions of credit,
(g) the Net Mark-to-Market Exposure of such Person in respect of Hedge
Agreements, (h) all Invested Amounts, (i) all liability under any
synthetic lease or tax ownership operating lease, (j) all Debt of others
referred to in clauses (a) through (i) above or clause (k) below and other
payment obligations (collectively, "Guaranteed Debt") guaranteed directly
or indirectly in any manner by such Person, or in
3
effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Guaranteed Debt or to advance or
supply funds for the payment or purchase of such Guaranteed Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or
sell services, primarily for the purpose of enabling the debtor to make
payment of such Guaranteed Debt or to assure the holder of such Guaranteed
Debt against loss, (3) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (k) all
Debt referred to in clauses (a) through (j) above (including Guaranteed
Debt) secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"Designation Agreement" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Dollars" and the "$" sign each means lawful currency of the United
States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, (e) to the extent included in net
income, non-cash, non-recurring charges and (f) to the extent included in
net income, non-cash, recurring charges related to equity compensation, in
each case determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) any other financial institution approved by the Agent, each
Issuing Bank and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 9.07, the Company, such approvals not to be unreasonably withheld
or delayed; and (iv) any other Person approved by the Agent, each Issuing
Bank and the Company, such approvals not to be unreasonably withheld or
delayed; provided, however, that neither the Company nor an Affiliate of
the Company shall qualify as an Eligible Assignee.
"Environmental Action" means (a) any notice of non-compliance or
violation, notice of liability or potential liability, proceeding, consent
order or consent agreement by any governmental or regulatory authority
with jurisdiction or (b) any litigation, case, suit, demand, demand letter
or claim by any governmental or regulatory authority or any third party
relating in any way to any Environmental Law, Environmental Permit or
Hazardous Materials, including, without limitation, (x) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (y) by any governmental
or regulatory authority or any such third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
4
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials, to the extent applicable to the operations of the
Company or any of its Subsidiaries.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law for the operations of the Company or any of its Subsidiaries.
"Equivalent" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement, and the "Equivalent" in any Committed Currency of Dollars means
the equivalent in such Committed Currency of Dollars determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange such Committed Currency for Dollars in London prior to
4:00 P.M. (London time) (unless otherwise indicated by the terms of this
Agreement) on such date as is required pursuant to the terms of this
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Secti ...
*End of Preview*
Click the 'Add to Cart' button to download the complete and formatted agreement.