EX-10.57 REVOLVING TRADE RECEIVABLES PURCHASE AGREEMENT

 

Table of Contents

 

		Page
Section 1.	DEFINITIONS	1
1.1.	Defined Terms	1
1.2.	Other Definitional Provisions	12
Section 2.	THE INVESTMENTS	12
2.1.	Purchaser’s Investment Limits	12
2.2.	Procedure for Making Purchases	12
2.3.	Sale and Assignment	13
2.4.	Fees	13
2.5.	Computation and Payments; Commitment Fees	14
2.6.	Pro Rata Treatment and Payments	14
2.7.	Requirements of Law	15
2.8.	Taxes	16
2.9.	Indemnity	18
2.10.	Replacement of Purchasers	20
2.11.	Evidence of Purchased Interests	20
Section 3.	REPRESENTATIONS AND WARRANTIES	20
3.1.	Financial Condition	20
3.2.	No Change	21
3.3.	Existence; Compliance with Law	21
3.4.	Power; Authorization; Enforceable Obligations	21
3.5.	No Legal Bar	23
3.6.	Litigation	23
3.7.	No Default	23
3.8.	Ownership of Property; Liens	23
3.9.	Taxes	23
3.10.	Federal Regulations	24
3.11.	Investment Company Act; Other Regulations	24
3.12.	Accuracy of Information, etc	24
3.13.	Solvency	24
3.14.	Security Documents	24
3.15.	Principal Place of Business	25
3.16.	Accounting for Scheduled Receivables	25
Section 4.	CONDITIONS PRECEDENT	25
4.1.	Conditions Precedent to Initial Purchase	25
4.2.	Conditions Precedent to All Purchases	27
Section 5.	AFFIRMATIVE COVENANTS	27
5.1.	Financial Statements	27
5.2.	Payment of Obligations	28
5.3.	Maintenance of Existence; Compliance	28

 

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5.4.	Maintenance of Property; Insurance	29
5.5.	Inspection of Property; Books and Records; Discussions	29
5.6.	Notices	29
5.7.	Use of Proceeds	30
5.8.	Irrevocable Payment Instructions	30
5.9.	Ownership	30
5.10.	Further Assurances	30
5.11.	Offices, Records, Books of Account	30
5.12.	Sales, Liens, Etc	31
5.13.	Extension or Amendment of Receivables; Changes to Contract	31
5.14.	Status of Scheduled Receivables	31
5.15.	Account Generation and Servicing Practices	31
5.16.	Inconsistent Instructions	32
5.17.	Designation of New Eligible Buyers and New Originators	32
Section 6.	SERVICER OBLIGATIONS	33
6.1.	Appointment of Servicer	33
6.2.	Duties of Servicers	33
6.3.	Reporting Requirements	33
6.4.	Deposit Requirements	34
Section 7.	TERMINATION EVENTS AND REMEDIES	34
Section 8.	THE ADMINISTRATIVE AGENT	36
8.1.	Appointment	36
8.2.	Delegation of Duties	37
8.3.	Exculpatory Provisions	37
8.4.	Reliance by Administrative Agent	38
8.5.	Notice of Termination	38
8.6.	Non-Reliance on Administrative Agent and Other Purchasers	38
8.7.	Indemnification	39
8.8.	Agent in Its Individual Capacity	40
8.9.	Successor Administrative Agent	40
8.10.	Determination Pursuant to Security Documents	41
8.11.	Merger of the Administrative Agent	41
Section 9.	MISCELLANEOUS	41
9.1.	Amendments and Waivers	41
9.2.	Notices	42
9.3.	No Waiver; Cumulative Remedies	43
9.4.	Survival of Representations and Warranties	44
9.5.	Payment of Expenses and Taxes	44
9.6.	Successors and Assigns; Participations and Assignments	45
9.7.	Adjustments; Set-off	47
9.8.	Counterparts	48
9.9.	Severability	48
9.10.	Integration	48

 

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9.11.	Governing Law	48
9.12.	Submission To Jurisdiction; Waivers	48
9.13.	Waiver of Immunities	49
9.14.	Judgment Currency	49
9.15.	Acknowledgements	50
9.16.	Grant of Security Interest	50
9.17.	WAIVERS OF JURY TRIAL	50
9.18.	Confidentiality	50

 

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Schedules
Schedule 1.1A		Purchasers’ Investment Limits
Schedule 1.1B		Obligor Limits
Schedule 3.4		Consents, Authorizations, Filings and Notices
Schedule 3.14		Actions to Perfect Ownership Interests in Receivables (or Security Interests in Collateral)
Schedule 3.15		Principal Places of Business
Exhibits
Exhibit A		Form of Collateral Assignment Agreement
Exhibit B		Form of Irrevocable Payment Instructions
Exhibit C		Form of Opinion of Mexican Counsel to Sanmina Mexico
Exhibit D		Form of Opinion of Hungarian Counsel to Sanmina Hungary
Exhibit E		Form of Opinion of U.S. Counsel to the Servicers and the Originators
Exhibit F		Form of Closing Certificate
Exhibit G		Form of Assignment and Acceptance
Exhibit H		Form of Mexican process agent appointment
Exhibit I		Form of Collateral Agency and Account Agreement
Exhibit J		Form of Purchase Notice
Exhibit K		Form of Servicers’ Report
Exhibit L		Form of Agency Agreement
Exhibit M		Form of Purchase Calculation Notice
Exhibit N		Form of Hungarian Receivables Transfer Agreement
Exhibit O		Form of Mexican Deed of Assignment
Exhibit P		Form of Guarantee
Exhibit Q		Form of Receivables Presentation

 

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REVOLVING TRADE RECEIVABLES PURCHASE AGREEMENT (this “ Agreement ”), dated as of September 23, 2005 among Sanmina-SCI Magyarorszag Elektronikai Gyarto Kft, a limited liability company incorporated under the laws of the Republic of Hungary (“ Sanmina Hungary ”) and Sanmina-SCI Systems de Mexico S.A. de C.V., a sociedad anonima de capital variable organized and existing under the laws of the United Mexican States (“ Sanmina Mexico ”), as originators hereunder (Sanmina Hungary and Sanmina Mexico being, collectively, the “ Originators ”), and Sanmina-SCI Corporation, a Delaware corporation (“ Sanmina-SCI ”) and Sanmina-SCI UK Ltd., a company organized and existing with limited liability under the laws of England and Wales (“ Sanmina United Kingdom ”), as servicers hereunder (Sanmina-SCI and Sanmina United Kingdom being, collectively, the “ Servicers ”), the several banks and other financial institutions or entities from time to time parties to this Agreement (the “ Purchasers ”) and DEUTSCHE BANK AG NEW YORK, as administrative agent (in such capacity, the “ Administrative Agent ”).

 

The parties hereto hereby agree as follows:

 

SECTION 1.   DEFINITIONS

 

1.1.          Defined Terms .  As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1:

 

“ Account Banks ”:  Deutsche Bank AG New York and each other bank hereafter designated by the Servicers upon not less than 45 days’ prior written notice to the Administrative Agent, so long as each such bank has executed and delivered a deposit account control agreement and other security agreements that the Administrative Agent requires and is reasonably acceptable to the Administrative Agent.

 

“ Administrative Agent ”:  Deutsche Bank AG New York, as the administrative agent for the Purchasers under this Agreement and the other Transaction Documents, together with any of its successors.

 

“ Affiliate ”:  as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

 

“ Agency Agreement ”:  the agency agreement among the Administrative Agent, the Collateral Agent and the Purchasers, substantially in the form of Exhibit L hereto.

 

“ Agents ”:  collectively, the Administrative Agent and the Collateral Agent.

 

“ Agreement ”:  as defined in the preamble hereto.

 

“ Applicable Margin ”:  0.30%.

 

“ Assignee ”:  as defined in Section 9.6(c).

 

 

“ Assignment and Acceptance ”:  an Assignment and Acceptance, substantially in the form of Exhibit G.

 

“ Assignor ”:  as defined in Section 9.6(c).

 

“ Benefitted Purchaser ”:  as defined in Section 9.7(a).

 

“ Board ”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“ Business Day ”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close.

 

“ Capital Stock ”:  any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing, but excluding any debt security convertible into or exchangeable for such interest.

 

“ Change of Control ”:  means, with respect to Sanmina-SCI, at any time: (a) any “person” or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) (i) shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of Sanmina-SCI; or (ii) shall have obtained the power (whether or not exercised) to elect a majority of the members of the board of directors (or similar governing body) of Sanmina-SCI; (b) during any period of 12 consecutive months, the majority of the seats (other than vacant seats) on the board of directors (or similar governing body) of Sanmina-SCI cease to be occupied by Persons who either (i) were members of the board of directors of Sanmina-SCI on the Closing Date, or (ii) were nominated for election by the board of directors of Sanmina-SCI, a majority of whom were directors on the Closing Date or whose election or nomination for election was previously approved by a majority of such directors or directors elected in accordance with this clause (ii); or (c) any “change of control” or similar event under and as defined in any documentation relating to any Material Indebtedness.

 

“ Citibank Credit Agreement ”:  the Credit and Guaranty Agreement, dated as of October 26, 2004, among Sanmina-SCI, certain of its subsidiaries as guarantors, various lenders, Citibank, N.A., as Initial Issuing Bank, Banc of America Securities LLC, as Syndication Agent, Citibank, N.A., as Collateral Agent, and Citicorp USA, Inc., as Administrative Agent.

 

“ Closing Date ”:  the date of satisfaction, as notified by the Administrative Agent to the Servicers and the Purchasers, of the conditions precedent set forth in Section 4.1 hereof.

 

“ Collateral ”:  all the collateral pledged or purported to be pledged pursuant to any of the Security Documents.

 

“ Collateral Account Agreement ”:  the Collateral Agency and Account Agreement, dated as of the date hereof, among the Originators, the Servicers and the Collateral Agent, substantially in the form of Exhibit I hereto, as amended, supplemented or otherwise modified from time to time.

 

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“ Collateral Agent ”:  Deutsche Bank Trust Company Americas, as the collateral agent for the Purchasers under the Security Documents, together with any of its successors.

 

“ Collateral Agent’s Fees and Expenses ”:  as defined in Section 4.1 of the Collateral Account Agreement.

 

“ Collateral Assignment Agreement ”:  the Collateral Assignment Agreement, dated as of the date hereof, among the Originators and the Collateral Agent, substantially in the form of Exhibit A hereto, as amended, supplemented or otherwise modified from time to time.

 

“ Collection Accounts ”:  each of account no. 04879278 and 04879286 maintained by Sanmina Hungary and Sanmina Mexico, respectively, with the Collateral Agent and such other accounts for the receipt of collections under the Collateral Account Agreement maintained with an Account Bank.

 

“ Collections ”:  all collections and other proceeds received and payment of any amounts owed in respect of Scheduled Receivables, including, without limitation, purchase price, finance charges, interest and all other charges, or applied to amounts owed in respect of such Scheduled Receivables (including without limitation, insurance payments and net proceeds of the sale or other disposition of repossessed goods or other collateral or property of the applicable Obligor or any other Person directly or indirectly liable for the payment of such Scheduled Receivable and available to be applied thereon) and all other proceeds of such Scheduled Receivable.

 

“ Collection Sub-Account ”: as defined in the Collateral Agency Agreement.

 

“ Commitment Fee ”:  means the fee referred to in Section 2.5(c).

 

“ Contingent Eligible Buyers ”:  means each of [***], commencing on or after the date of this Agreement, and [***], [***], [***] and [***], commencing on and after November 1, 2005.

 

“ Contract ”: means, with respect to any Scheduled Receivable, any and all contracts, understandings, instruments, agreements, leases, invoices, notes or other writings pursuant to which such Scheduled Receivable arises or which evidences such Scheduled Receivable or under which the applicable Obligor becomes or is obligated to make payment in respect of such Scheduled Receivable.

 

“ Contractual Obligation ”:  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Control ”:  the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and “ Controlling ” and “ Controlled ” shall have meanings correlative thereto.

 

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“ Defaulted Receivable ”:  a Scheduled Receivable that is unpaid and outstanding on the date 30 days after the end of the Yield Period therefor.

 

“ Dilution ”:  any adjustment in the outstanding principal balance of a Scheduled Receivable attributable to any credits, rebates, billing errors, sales or similar taxes, discounts, disputes, chargebacks, returns, allowances or similar items.

 

“ Disposition ”:  with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof.  The terms “ Dispose ” and “ Disposed of ” shall have correlative meanings.

 

“ Distribution Date ”:  with respect to any Purchase Date, the date or dates which shall be not later than the last day of the Yield Period for Scheduled Receivables purchased on such Purchase Date, on which the Collections on Scheduled Receivables to be purchased on such date will be distributed to the Purchasers from the Collection Sub-Account.

 

“ Dollars ” and “ $ ”:  dollars in lawful currency of the United States.

 

“ Eligible Buyer ”:  [***], and such additional “Eligible Buyers” from among the Contingent Eligible Buyers as may be added from time to time in accordance with Section 5.17.

 

“ Eligible Receivables ”:  on an applicable Purchase Date, any Receivable (i) which has a Scheduled Due Date and which Scheduled Due Date is not later than 60 days thereafter, (ii) which is an “account” as defined in the UCC, (iii) which is denominated and payable in Dollars in the United States or in another currency acceptable to the Administrative Agent, (iv) which, together with the related Contract, is in full force and effect and constitutes the legal, valid and binding obligation of the applicable Obligor enforceable against each such Obligor in accordance with its terms and subject to no counterclaim or other defense; (v) which satisfies all applicable requirements of the Servicers’ standard customer credit policies, including that the Receivable is not delinquent or defaulted, (vi) which has a Scheduled Due Date on or prior to the Facility Termination Date, (vii) which was generated in the ordinary course of the applicable Originator’s business, and (viii) in respect of which an Irrevocable Payment Instruction has been given, in the case of Sanmina Mexico, pursuant to the Notification.

 

“ Euros ”:  the currency introduced on January 1, 1999 pursuant to the Treaty establishing the European Union.

 

“ Facility Termination Date ” means the earlier of (i) September 23, 2007, and (ii) the date on which the Administrative Agent delivers to the Servicers a notice of termination as a result of a Termination Event in accordance herewith (or the date on which such termination becomes effective automatically pursuant to Section 7).

 

“ Federal Funds Rate ”:  for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate

 

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for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the Purchasers on such day on such transactions as determined by the Purchasers.

 

“ Fee Letter ”:  the fee letter referred to in Section 2.4.

 

“ Funding Office ”:  the first office of the Administrative Agent specified in Section 9.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Servicers and the Purchasers.

 

“ GAAP ”:  generally accepted accounting principles.

 

“ Goods ”:  electronic and other manufactured products produced by Sanmina-SCI or its Subsidiaries.

 

“ Governmental Authority ”:  any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization.

 

“ Group Members ”:  the collective reference to Sanmina-SCI and its consolidated Subsidiaries.

 

“ Guarantee ”:  the guarantee of the Guarantor substantially in the form of Exhibit P hereto.

 

“ Guarantee Obligation ”:  as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “ primary obligations ”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such

 

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Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the relevant Originator in good faith.

 

“ Guarantor ”:  Sanmina-SCI in its capacity as guarantor under the Guarantee.

 

“ Hedge Agreements ”:  all interest rate swaps, caps or collar agreements or similar arrangements dealing with interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.

 

“ Hungarian Receivables Transfer Agreement ”: a transfer agreement substantially in the form of Exhibit N hereto.

 

“ Hungary ”:  the Republic of Hungary and any governmental subdivision thereof.

 

“ Incipient Termination Event ”: any event which, with the giving of notice, the lapse of time, or both, would become a Termination Event.

 

“ Increase Effective Date ”:  as defined in Section 5.17(c).

 

“ Indebtedness ”:  of any Person at any date, 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 current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness 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 Purchaser under such agreement in the event of default are limited to repossession or sale of such property), (e) all capital lease obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation 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, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of Section 7(e) only, all obligations of such Person in respect of Hedge Agreements.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including, without limitation, any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of a direct statutory or contractual provision; provided that in no event shall the term “Indebtedness” include (x) any indebtedness or other obligations under any overdraft or cash management facility; provided, further that such indebtedness or other obligations are incurred in the ordinary course of business, and are repaid in full no later than the Business Day immediately following the date on which they were incurred, or (y) any trade payable incurred in the ordinary course or (z) any operating lease.

 

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“ Indemnified Amounts ” any and all claims, damages, costs, expenses, losses and liabilities (including all reasonable fees and other charges of any law firm or other external counsel).

 

“ Indemnified Person ”:  the Lead Arranger, the Administrative Agent, the Collateral Agent, the Purchasers and their respective Affiliates, together with their respective officers, directors, employees, advisors, agents, successors, transferees and assigns and controlling persons.

 

“ Indemnified Taxes ”:  as defined in Section 2.8(a).

 

“ Insolvency Proceeding ”:  (a) any case, action or proceeding before any court of any Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors; and, in the case of clause (a) or (b), undertaken under U.S. Federal, state or foreign law, including the U.S. Federal Bankruptcy Code.

 

“ Investment ”:  the amount to be paid by the Purchasers for the account of the Originators with respect to a Purchased Interest, which will be equal to 100% of the invoice/face amount of the corresponding Eligible Receivable.

 

“ Irrevocable Payment Instruction ”:  each Irrevocable Payment Instruction, substantially in the form of Exhibit B, included by the applicable Originator in the relevant invoice to an Eligible Buyer in respect of Receivables or in such other form as is acceptable to the Administrative Agent, providing for payment of such Receivables to a Collection Account.  The Irrevocable Payment Instructions provided by Sanmina Mexico in respect of Scheduled Receivables to be acquired on any Purchase Date shall be given in the form of the Notification before a Mexican notary public, who shall have issued the corresponding acta evidencing delivery thereof.

 

“ Lead Arranger ”:  Deutsche Bank AG New York.

 

“ Lien ”:  any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

 

“ Material Adverse Effect ”:  a material adverse effect on (a) the Purchased Interests, (b) the business, assets, property, operations or condition (financial or otherwise) of Sanmina-SCI, the Originators and their Subsidiaries, taken as a whole, or (c) the validity or enforceability of any of the Transaction Documents or the rights and remedies of the Administrative Agent, the Collateral Agent or the Purchasers thereunder.

 

“ Material Indebtedness ”:  any Indebtedness or obligations in respect of one or more Hedge Agreements, of Sanmina-SCI evidencing an aggregate outstanding principal amount

 

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exceeding $10.0 million.  For purposes of determining Material Indebtedness, the “principal amount” of the obligations of Sanmina-SCI in respect of any Hedge Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Sanmina-SCI would be required to pay if such Hedge Agreement were terminated at such time.

 

“ Mexican Deed of Assignment ”:  a deed of assignment, in the form of a notarial instrument, substantially in the form of Exhibit O hereto.

 

“ Mexico ”:  the United Mexican States and any governmental subdivision thereof.

 

“ New Eligible Buyer ”:  as defined in Section 5.17.

 

“ New Originator ”:  as defined in Section 5.17.

 

“ Notification ”:  the notification comprising the exhibit to the Mexican Deed of Assignment, to be delivered in respect of each sale of Scheduled Receivables, to each Eligible Buyer in Mexico before a Mexican notary public, who shall issue the respective acta evidencing delivery of such Notification.

 

“ Obligations ”:  all amounts payable as indemnity hereunder and all other obligations and liabilities of the Originators and the Servicers to the Administrative Agent, the Collateral Agent or to any Purchaser, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Transaction Document or any other document made, delivered or given in connection herewith or therewith, whether on account of interest, reimbursement obligations, fees, indemnities, costs, expenses (including, without limitation, all reasonable fees, charges and disbursements of counsel to the Administrative Agent, the Collateral Agent or to any Purchaser that are required to be paid by the Originators pursuant hereto) or otherwise.

 

“ Obligor ”:  with respect to any Receivable, the Eligible Buyer obligated to make payments with respect to such Receivable and any guarantor of such Eligible Buyer’s obligations.

 

“ Obligor Limits ”:  the specified limit on the aggregate stated net amount payable (net of credit memos) of Scheduled Receivables of any Eligible Buyer that may be outstanding at any time hereunder, as set forth on Schedule 1.1B.

 

“ Organizational Documents ”:  with respect to any Person, if such Person is a corporation, its charter and by-laws, or other organizational or governing documents, or if such Person is a partnership, its certificate of partnership, if any, and partnership agreement and, in each case, any stockholder or similar agreements between and among the holders of ownership interests in such Person.

 

“ Originators ”:  as defined in the preamble hereto.

 

“ Other Taxes ”:  any and all present or future value added taxes (VAT), stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from

 

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any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Transaction Document.

 

“ Participant ”:  as defined in Section 9.6(b).

 

“ Payment Account ”:  as defined in Section 2.6(b).

 

“ Person ”:  an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

 

“ Purchase Calculation Notice ”:  a notice delivered by the Administrative Agent to the Purchasers with a copy to the Servicers to the effect required by Section 2.2 and substantially in the form of Exhibit M hereto.

 

“ Purchase Date ”:  each date prior to the Facility Termination Date on which the Originators propose to sell to the Purchasers ownership interests in the Scheduled Receivables identified in the related Purchase Notice.

 

“ Purchased Interest ”:  at any time the undivided ownership interest of the Purchasers acquired pursuant to this Agreement from the Originators in the Scheduled Receivables reflected in the applicable Purchase Notice, Collections with respect to such Receivables and proceeds of, and amounts received or receivable under any or all of the foregoing; provided, however , that the Purchased Interest shall never be more than the outstanding balance of the related Scheduled Receivables as of the date the related Purchase Notice is sent to the Administrative Agent.

 

“ Purchase Notice ”:  a notice delivered by the Servicers to the Administrative Agent in respect of a prospective sale of Scheduled Receivables, substantially in the form of Exhibit J hereto.

 

“ Purchase Rate ”:  for each day during the applicable Yield Period, a rate per annum equal to the Federal Funds Rate plus the Applicable Margin.

 

“ Purchaser Affiliate ”:  (a) any Affiliate of any Purchaser, and (b) any Person that is administered or managed by any Purchaser and that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“ Purchasers ”:  as defined in the preamble hereto.

 

“ Purchaser’s Investment Limit ”:  as to any Purchaser, the obligation of such Purchaser, if any, to make an Investment in an amount not to exceed the amount set forth under the heading “Purchaser’s Investment Limit” opposite such Purchaser’s name on Schedule 1.1A hereto.  As of the date hereof, the aggregate amount of the Purchasers’ Investment Limits is $100,000,000.  The Purchasers’ Investment Limits shall be increased following the addition of a Contingent Eligible Buyer as an Eligible Buyer in accordance with the procedures established in Section 5.17; provided, however , that in no event shall the aggregate amount of the Purchaser’s Investment Limits exceed $400,000,000.

 

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“ Purchaser’s Investment Percentage ”:  as to any Purchaser, the percentage which such Purchaser’s Investment Limit then constitutes of the aggregate Purchasers’ Investment Limits (or if, at any after the initial Purchase Date, if all of the Purchasers’ Investment Limits have been reached, the percentage which the aggregate amount of such Purchaser’s Investments then outstanding constitutes of the aggregate amount of Investments then outstanding).

 

“ Ramp-Up Period ”:  as defined in Section 5.8.

 

“ Receivable ”:  an account receivable in a Transaction Currency created by the sale of Goods by an Originator to an Eligible Buyer.

 

“ Receivables Presentation ”:  a presentation by the Servicers to the Administrative Agent substantially in the form of Exhibit Q hereto.

 

“ Register ”:  as defined in Section 9.6(d).

 

“ Regulation U ”:  Regulation U of the Board as in effect from time to time.

 

“ Regulation X ”:  Regulation X of the Board as in effect from time to time.

 

“ Required Purchasers ”:  at any time, the holders of more than 50% of (a) until the initial Purchase Date, the Purchaser’s Investment Limits then in effect and (b) thereafter, the sum of the aggregate unpaid principal amount of the Investments then outstanding.

 

“ Requirement of Law ”:  as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Responsible Officer ”:  as to any Person, the chief executive officer, president, chief financial officer, vice president, treasurer, or any other duly authorized officer or attorney-in-fact of such Person, but in any event, with respect to financial matters, the chief financial officer of such Person.

 

“ Sanmina Reports ”:  as defined in Section 3.12.

 

“ Scheduled Due Date ”:  the date on which a Scheduled Receivable becomes due and payable in accordance with the related Contract and draft or invoice therefor.

 

“ Scheduled Receivable ”:  the Eligible Receivables, the outstanding balances of which are reflected in the applicable Purchase Notice and subsequently purchased pursuant to Section 2.2.

 

“ SEC ”:  the United States Securities and Exchange Commission.

 

“ Secured Parties ”:  as defined in Section 4.4 of the Collateral Assignment Agreement.

 

“ Security Documents ”:  the Collateral Assignment Agreement, the Collateral Account Agreement, each Mexican Deed of Assignment, each Hungarian Receivables Transfer

 

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Agreement and all other security documents hereafter delivered to the Administrative Agent and the Collateral Agent granting a Lien on or ownership interest in any property of any Person to secure the Obligations of any Originator under any Transaction Document.

 

“ Servicers ”:  the meaning set forth in the preamble to this Agreement.

 

“ Solvent ”:  when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise,” as of such date, as such quoted terms are determined in accordance with applicable U.S. federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim,” and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

 

“ Subsidiary ”:  as to any Person, an entity of which more than 50% of the ordinary voting Capital Stock are owned by such Person, or the management of which is otherwise Controlled, directly or indirectly, by such Person acting alone.

 

“ Tax Treaty ”:  as defined in Section 2.8(d).

 

“ Termination Event ”:  any of the events specified in Section 7, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

 

“ Transaction Currency ”:  U.S. Dollars, Euros and British Pounds Sterling, or any other currency acceptable to the Administrative Agent and each Purchaser.

 

“ Transaction Documents ”:  this Agreement, the Guarantee and the Security Documents.

 

“ Transferee ”:  any Assignee or Participant.

 

“ Uniform Commercial Code ” or “ UCC ”:  the Uniform Commercial Code as in effect from time to time in the State of New York.

 

“ UCC Financing Statement ”: a financing statement on Form UCC-1 (or Form UCC-3) in the form required under the applicable UCC to perfect a security interest in Collateral that is perfected by filing.

 

“ United Kingdom ”:  the United Kingdom of England and Wales and any governmental subdivision thereof.

 

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“ United States ”:  the United States of America.

 

“ Yield Period ”:  as to any Investment, the period commencing on (and including) the Purchase Date and ending on but excluding the date 90 days after the applicable Purchase Date.  The final Yield Period shall end on the Facility Termination Date.

 

1.2.          Other Definitional Provisions .  (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Transaction Documents or any certificate or other document made or delivered pursuant hereto or thereto.

 

(b)           As used herein and in the other Transaction Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Originator or Servicer not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP in the jurisdiction of the respective Originator or Servicer, as the case may be, (ii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including, without limitation, cash, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights and (iv) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.

 

(c)           The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)           The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

SECTION 2.  THE INVESTMENTS

 

2.1.          Purchaser’s Investment Limits .  Subject to the terms and conditions hereof, each Purchaser severally agrees to purchase from time to time from the Originators on a revolving basis, without recourse (except as expressly provided herein) ownership interests in the Scheduled Receivables in an amount not to exceed at any time outstanding the amount of such Purchaser’s Investment Limit and, in respect of each Eligible Buyer, an amount not to exceed at any time outstanding the respective Obligor Limits.  The Purchasers’ Investment Limits shall be reduced to zero and cancelled on the Facility Termination Date.  The Originators (acting through the Servicers) may reduce the Purchasers’ Investment Limits on a pro rata basis on any Purchase Date without penalty on five Business Days prior written notice to the Administrative Agent.

 

2.2.          Procedure for Making Purchases .  Each purchase of a Scheduled Receivable hereunder shall be made as follows:  The Servicers shall give the Administrative Agent an irrevocable Purchase Notice (which Purchase Notice must be received by the

 

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Administrative Agent prior to 2:00 p.m., New York City time, not less than one Business Day prior to the anticipated Purchase Date) requesting that the Purchasers make the Investments in an amount not less than $20,000,000)(or, with the consent of all Purchasers, in an amount less than $20,000,000) and related Receivables Presentation and specifying, for each Originator for such Purchase Date, (A) the aggregate amount, and currency, of the Scheduled Receivables, (B) the anticipated Purchase Date (which must be a Business Day), (C) the related Scheduled Due Dates, (D) the proposed amount of the Investment, and (E) transmitting a schedule of the Scheduled Receivables substantially in the form of Exhibit Q, identifying the outstanding amount and Scheduled Due Date of such Receivables and the other information required by the form of Receivables Presentation.  None of such Scheduled Receivables shall have been the subject of a prior Purchase Notice unless such Scheduled Receivable has been repurchased by the relevant Originator and rebilled to an Eligible Buyer (for the avoidance of doubt, it is agreed that such schedule may be transmitted to the Administrative Agent by e-mail).  Upon receipt of such notice, the Administrative Agent shall promptly notify each Purchaser thereof.  Not later than 3:00 p.m. (New York time) on the Business Day preceding the related Purchase Date, the Administrative Agent shall send to each Purchaser a notice substantially in the form of Exhibit M (the “ Purchase Calculation Notice ”) setting forth a calculation of the related Purchased Interest.  The aggregate outstanding Investments shall not exceed the Purchasers’ aggregate Investment Limit.  Any Scheduled Receivable denominated in a Transaction Currency other than Dollars shall be converted for purposes of the Purchase Calculation Notice into Dollars by the Administrative Agent at the spot rate of exchange of Deutsche Bank AG at 11:00 a.m. (New York time) on the date of the Purchase Notice. Any Indemnified Amount then due and payable hereunder shall be notified to the Servicers, which may either pay such Indemnified Amount or authorize the Administrative Agent to deduct such amount from the amount of the Investment to be made on such Purchase Date, and the Originators hereby so authorize such deduction, and the amount thereof shall be accounted for in the Purchase Calculation Notice.  Not later than 12:00 Noon, New York City time, on the relevant Purchase Date, each Purchaser shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds in Dollars equal to the Purchaser’s Investment Percentage of the relevant Investment by credit to the Administrative Agent’s purchase account.  The Administrative Agent shall, upon satisfaction of the conditions precedent to such purchase, credit the account of the Servicers on the books of such office of the Administrative Agent with the aggregate of the amounts of the Investment made available to the Administrative Agent by the Purchasers in immediately available funds.

 

2.3.          Sale and Assignment .  On each Purchase Date, effective upon the payment contemplated by Section 2.2 and (i) in the case of Sanmina Mexico, upon the execution and delivery of a Mexican Deed of Assignment as a notarial instrument and the giving of the Notification appended thereto before a Mexican notary public, in each case in respect of the Scheduled Receivables being sold on such Purchase Date and (ii) in the case of Sanmina Hungary, upon the execution and delivery of the Hungarian Receivables Transfer Agreement in respect of the Scheduled Receivables being sold on such Purchase Date, each Originator hereby sells and assigns to the Purchasers the Purchased Interest in each Scheduled Receivable reflected in the applicable Purchase Notice.

 

2.4.          Fees .  The Originators jointly and severally agree to pay to the Administrative Agent and the Lead Arranger the fees in the amounts and on the dates previously

 

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agreed to in accordance with the Fee Letter among the Originators and the Lead Arranger dated September 23, 2005 (the “ Fee Letter ”).

 

2.5.          Computation and Payments; Commitment Fees .  (a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed.

 

(b)           The Administrative Agent shall, at the request of the Servicers, deliver to the Servicers a statement showing the quotations used by the Administrative Agent in determining any interest rate.

 

(c)           The Originators jointly and severally agree to pay to the Administrative Agent for the ratable benefit of the Purchasers, for the period from and including the date hereof through the Facility Termination Date, a non-refundable fee (the “ Commitment Fee ”) equal to [***] per annum on the excess of (i) the Purchasers’ Investment Limits (as the same may be increased pursuant to Section 5.17, from each respective Increase Effective Date in respect of the amount of such increase) over (ii) the average outstanding amount of the Investments on each day during each calendar quarter.  The Commitment Fee shall be payable in arrears on the fifth Business Day of each calendar quarter occurring after the initial Purchase Date, and on the Facility Termination Date.

 

2.6.          Pro Rata Treatment and Payments .  (a) Each purchase by the Purchasers hereunder and each payment on account of any Commitment Fee or Purchased Interest shall be made pro rata according to the respective Purchasers’ Investment Percentages.

 

(b)           All payments (including deposits) to be made by the Servicers and the Originators hereunder shall be made without setoff or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Purchasers, in Dollars and in immediately available funds to such account as the Administrative Agent shall specify by written notice to the Servicers and the Originators (the “ Payment Account ”), and, unless and until otherwise specified, all such payments shall be payable to the Administrative Agent, for the account of the Purchasers, at the Funding Office.  The Administrative Agent shall distribute such payments to the Purchasers promptly upon receipt in like funds as received.  If any payment or deposit hereunder becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day.  In the case of any extension of any payment pursuant to the preceding sentence, interest thereon shall be payable at the then applicable rate during such extension.  The Servicers and the Originators shall pay to the Administrative Agent, for the benefit of the Purchasers, upon demand, interest on all amounts not paid or deposited when due at a rate per annum equal to 2% in excess of the Federal Funds Rate for each such day such payment is overdue.

 

(c)           Each Purchased Interest hereunder shall bear interest at the Purchase Rate for each day during the Yield Period in respect of it until paid in full.  The Originators, jointly and severally, agree to pay interest on Scheduled Receivables purchased, from the relevant Purchase Date until payment in full of such Scheduled Receivables to the Purchasers, in each case to be applied to the interest accruing on the Scheduled Receivables purchased hereunder during the relevant Yield Period, at the Purchase Rate.  Such interest so accrued will be billed by the

 

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Administrative Agent to the Servicers on the 5 ^th day of the month succeeding the end of a Yield Period and shall be paid by debit of amounts in the Collection Sub-Account the Collection Accounts or by set-off against amounts payable by the Purchasers on the next requested Purchase Date five Business Days thereafter.

 

(d)           Unless the Administrative Agent shall have been notified in writing by any Purchaser prior to a purchase that such Purchaser will not make the amount that would constitute its share of such purchase available to the Administrative Agent, the Administrative Agent may assume that such Purchaser is making such amount available to the Administrative Agent, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Servicers an amount corresponding to the amount required to be advanced by such Purchaser.  In any event the Administrative Agent shall make available on the Purchase Date such amount as has been made available to it by the Purchasers.  If such amount is not made available to the Administrative Agent by such Purchaser by the required time on the relevant Purchase Date, such Purchaser shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Rate for the period until such Purchaser makes such amount immediately available to the Administrative Agent.  A certificate of the Administrative Agent submitted to any Purchaser with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error.  If such Purchaser’s share of such purchase is not made available to the Administrative Agent by such Purchaser within three Business Days after the relevant Purchase Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum specified in Section 2.6(b), on demand, from the Originators.  Nothing herein shall be deemed to limit the rights of the Originators against any such Purchaser under this Agreement.

 

2.7.          Requirements of Law .  (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Purchaser with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:

 

(i)            shall subject any Purchaser to any tax of any kind whatsoever with respect to this Agreement or any purchase made by it, or change the basis of taxation of payments to such Purchaser in respect thereof (except for Indemnified Taxes covered by Section 2.8 and changes in the rate of tax on the overall net income of such Purchaser);

 

(ii)           shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Purchaser; or

 

(iii)          shall impose on such Purchaser any other condition;

 

and the result of any of the foregoing is to increase the cost to such Purchaser, by an amount that such Purchaser deems to be material, of making or maintaining its purchase, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Originators shall pay such Purchaser, not later than 20 Business Days after its demand (which demand shall specify in reasonable detail the basis and calculation of the amounts claimed), any additional amounts

 

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necessary to compensate such Purchaser for such increased cost or reduced amount receivable.  If any Purchaser becomes entitled to claim any additional amounts pursuant to this paragraph, it shall promptly notify the Administrative Agent (with a copy to the Servicers) of the event by reason of which it has become so entitled.

 

(b)           If any Purchaser shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Purchaser or any corporation controlling such Purchaser with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Purchaser’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Purchaser or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Purchaser’s or such corporation’s policies with respect to capital adequacy) by an amount reasonably deemed by such Purchaser to be material, then from time to time, after submission by such Purchaser to the Servicers (with a copy to the Administrative Agent) of a written request therefor (which request shall specify in reasonable detail the basis and calculation of the amount claimed), the Servicers shall pay to such Purchaser such additional amount or amounts as will compensate such Purchaser or such corporation for such reduction.

 

(c)           A certificate as to any additional amounts payable pursuant to this Section 2.7 submitted by any Purchaser to the Servicers (with a copy to the Administrative Agent and the Collateral Agent) shall be conclusive in the absence of manifest error.  The obligations of the Servicers pursuant to this Section 2.7 shall survive the termination of this Agreement and the payment of the Scheduled Receivables and all other amounts payable hereunder.

 

2.8.          Taxes .  (a) All payments and deposits made by the Servicers or the other Originators under this Agreement or any other Transaction Document, and any amount of interest, shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding (i) net income taxes and franchise taxes (imposed in lieu of net income taxes), and (ii) taxes imposed on the Administrative Agent or any Purchaser as a result of a present or former connection between the Administrative Agent or such Purchaser and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Purchaser having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Transaction Document) (such taxes, levies, imposts, duties, charges, fees, deductions and withholdings not described in items (i) or (ii) of this Section 2.8(a), the “ Indemnified Taxes ”).  If any such Indemnified Taxes or Other Taxes are required to be withheld from any amounts payable to (or deposited for the benefit of) the Administrative Agent or any Purchaser hereunder, or on any amount of interest, the amounts so payable to (or deposited for the benefit of) the Administrative Agent or such Purchaser, or such amount of interest, shall be increased to the extent necessary to yield to the Administrative Agent or such Purchaser (after payment of all Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement.

 

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(b)           In addition, the Servicers and the Originators shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)           Whenever any Indemnified Taxes or Other Taxes are payable by the Servicers or the Originators, as promptly as possible thereafter the relevant Originator or the Servicers, as the case may be, shall send to the Administrative Agent for its own account or for the account of the relevant Purchaser, as the case may be, a certified copy of an original official receipt received by the relevant Originator or the Servicers, as the case may be, showing payment thereof.  If any Originator fails to pay any Indemnified Taxes or Other Taxes when due to the appropriate taxing authority, such Originator shall indemnify the Administrative Agent and the Purchaser within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified or Other Taxes imposed or asserted on or attributable to amounts payable under this section) paid by the Administrative Agent or Purchaser and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Servicers by a Purchaser or by the Administrative Agent on its own behalf or on behalf of a Purchaser shall be conclusive absent manifest error.  In addition, if the Servicers or an Originator, as the case may be, fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the Servicers and the Originators, jointly and severally, shall indemnify the Administrative Agent and the Purchasers for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Purchaser as a result of any such failure.

 

(d)           The Administrative Agent and each Purchaser that has a Purchaser’s Investment Limit to Sanmina Mexico (i) represents and warrants to Sanmina Mexico that, as of the date hereof, it (x) is registered with the Ministry of Finance and Public Credit of Mexico as a foreign bank or financial institution for purposes of Article 195, Section I of the Mexican income tax law, the rules thereunder and any administrative regulations ( resoluciones miscelaneas ) thereunder, (y) is a resident for tax purposes in a country with which Mexico has entered into a tax treaty for the avoidance of double taxation that is in effect (a “Tax Treaty”) and (z) complies with the requirements provided in such Tax Treaty to apply a reduced withholding tax rate on interest and (ii) will (x) use reasonable commercial efforts to maintain registration with the Ministry of Finance and Public Credit of Mexico for purposes of and in conformity with Article 195, Section I of the Mexican income tax law, the rules thereunder and any administrative regulations ( resoluciones miscelaneas ) thereunder, (y) maintain its status as a resident for tax purposes in a country with which Mexico has a Tax Treaty and (z) comply with the requirements provided in such tax treaty to apply a reduced withholding tax rate on interest.  If such registration is canceled or not renewed upon expiration during the term of this Agreement, or such Purchaser is no longer a resident for tax purposes in a country with which Mexico has a Tax Treaty or no longer complies with the requirements set forth in such Tax Treaty to apply a reduced Mexican withholding tax on interest, the affected Purchaser may cancel its Purchaser’s Investment Limit applicable to Sanmina Mexico.

 

(e)           Notwithstanding the provisions of Section 2.8(a), Sanmina Mexico shall not be obligated to pay additional amounts in respect of Indemnified Taxes or Other Taxes to the extent that such Indemnified Taxes or Other Taxes or any portion thereof have been imposed solely as a result of the failure by any Purchaser (other than a Purchaser that is a Mexican tax resident) (x) to

 

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provide to Sanmina Mexico, upon the request of Sanmina Mexico made at least thirty (30) days in advance and if and when required under applicable law, a letter specifying that such Purchaser is the effective beneficiary of interest hereunder, as set forth in the Mexican income tax law or any applicable Tax Treaty or any equivalent administrative regulations of general applicability in effect thereafter while this Agreement shall remain in full force and effect, (y) following a reasonable request of Sanmina Mexico made at least thirty (30) days in advance, to complete and file with the appropriate Governmental Authority, or to provide to Sanmina Mexico, such certificates, information, or returns prescribed by any applicable law, rule or regulation enacted or issued by Mexico or any political subdivision thereof or authority therein, or an applicable Tax Treaty and which is in effect, that are necessary to avoid or reduce such Indemnified Taxes or Other Taxes pursuant to provisions of any such law, rule or regulation enacted or issued by Mexico or any political subdivision thereof or authority therein, or Tax Treaty (provided that such Purchaser shall be under no obligation to provide any information to Sanmina Mexico which such Purchaser deems, in such Purchaser’s sole judgment, to be confidential, proprietary or otherwise disadvantageous to such Purchaser), or (z) to use its reasonable commercial efforts to comply with the requirements, under the relevant Tax Treaty, the Mexican income tax law, the rules thereunder and/or any administrative regulations ( resoluciones misceláneas) thereunder, to have the right to claim the benefits of such Tax Treaty.

 

(f)            Each Purchaser severally agrees, in the case of any Originator or New Originator (other than Sanmina Mexico), to furnish upon the reasonable request of such Originator or New Originator such official forms as are prescribed by applicable law, and additional documents required to be attached thereto, as may be required to evidence its entitled to an otherwise available exemption from or reduction of withholding taxes, including under any applicable income tax treaty.

 

(g)           The agreements in this Section 2.8 shall survive the termination of this Agreement and the payment of all amounts payable hereunder.

 

2.9.          Indemnity .  (a) Without limiting any other rights that the Administrative Agent, the Collateral Agent or the Purchasers may have hereunder or under applicable law, the Originators jointly and severally hereby agree to indemnify each of the Indemnified Persons on demand from and against any and all Indemnified Amounts relating to or resulting from any of the following:  (i) the failure of any information provided to the Administrative Agent with respect to Scheduled Receivables to be true and correct in all material respects; (ii) the failure of any representation or warranty or statement made or deemed made by any Originator under or in connection with this Agreement to have been true and correct in all respects when made; (iii) the failure by the Originators to comply with any applicable law, rule or regulation with regard to any Scheduled Receivable, the related Contract, or the failure of any Scheduled Receivable or the related Contract to conform to any applicable law, rule or regulation; (iv) the failure to vest in the Administrative Agent or the Collateral Agent, as the case may be, for the benefit of the Purchasers a valid and enforceable first priority perfected (A) ownership interest, to the extent of the related Purchased Interest, in the Scheduled Receivables, and (B) security interest in the Scheduled Receivables, in each case free and clear of any Lien or other Adverse Claim; (v) any dispute, claim, counterclaim or defense of an Eligible Buyer to the payment of any Scheduled Receivable (including a defense based on such Scheduled Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance

 

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with its terms), any Dilution or other adjustment with respect to a Scheduled Receivable or any claim resulting from the sale of the goods or services related to such Scheduled Receivable or any other transaction with such Obligor or the furnishing or failure to furnish such goods or services or relating to collection activities with respect to such Scheduled Receivables or any tax deducted from the payment of a Scheduled Receivable by the Obligor thereon; (vi) any failure of the Originators to perform their duties or obligations in accordance with the terms of this Agreement (including, without limitation, failure to make any payment or deposit when due hereunder), or to perform their duties or obligations (if any) under any Contract; (vii) any breach of warranty, products liability or other claim investigation, litigation or proceeding arising out of or in connection with goods or services which are the subject of any Scheduled Receivables; (viii) the commingling of Collections of Scheduled Receivables at any time with other funds; (ix) any investigation, litigation or proceeding related to this Agreement or the use of proceeds of purchases or the ownership of the related Purchased Interest or in respect of any Scheduled Receivable or any related Specified Asset in respect thereof; (x) the occurrence of any Termination Event; (xi) in the event any Purchased Interest is greater than 1.0 times the related Scheduled Receivables; (xii) the failure of any Scheduled Receivables to be Eligible Receivables; (xiii) the failure of any Originator to complete the sale and delivery of the goods (or the performance of the services, if any) which are the subject of any Scheduled Receivables; (xiv) subject to Section 2.9(b), any Defaulted Receivable; (xv) any shortfall resulting from the collection of a Scheduled Receivable in a currency other than Dollars upon conversion thereof to Dollars and deposit into the Collection Sub-Account, as contemplated by the Collateral Account Agreement; (xvi) any action or inaction of the Originators or the Servicers which impairs the interest of the Administrative Agent, the Collateral Agent or any Purchaser in any Scheduled Receivables; or (xvii) any failure to pay accrued interest hereunder when and as due.  If and to the extent the Administrative Agent or any Purchaser shall be required for any reason to pay over to an Originator or an Obligor (or any trustee, receiver, custodian or similar official in any insolvency proceeding) any amount received by such Person hereunder, such amount shall be deemed not to have been so received and the Administrative Agent shall have a claim against the Originators to the extent provided herein.  All Indemnified Amounts hereunder shall be due and payable on the date that is 20 days from the demand made therefor to the Payment Account of the Administrative Agent.  Any Scheduled Receivable in respect of which an Indemnified Amount is paid pursuant to Sections 2.9(a)(iv), (xii), (xiii) or (xiv) shall be deemed paid in full upon payment of the applicable Indemnified Amount and upon such payment the affected Originator shall be deemed to have repurchased any such Scheduled Receivable.  To the extent such payments are in lieu of payment with respect to the Scheduled Receivables, such payments shall be paid to the Collateral Agent for disbursement under the Collateral Account Agreement.

 

(b)           Notwithstanding Section 2.9(a), the Originators shall not be obligated to indemnify any Indemnified Person at any time for (w) amounts unpaid, paid over or repaid to any Person with respect to any Receivable as a result of the applicable Obligor being a debtor in an Insolvency Proceeding commenced as of or prior to the Scheduled Due Date for such Receivable, it being further understood and agreed that this clause shall not limit the Originators’ obligations under this Section arising out of or relating to any other event, occurrence or circumstance which would give rise to an obligation of the Originators pursuant to this Section (to the extent that such event, occurrence circumstance adversely affects repayment of the Investments, plus accrued Interest thereon, during or in connection with such Insolvency Proceeding), or (x) Indemnified

 

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Amounts resulting from the gross negligence or willful misconduct on the part of the Indemnified Party proposed to be indemnified.

 

2.10.        Replacement of Purchasers .  The Servicers shall be permitted to replace any Purchaser that (a) requests reimbursement for amounts owing pursuant to Section 2.8 or (b) defaults in its obligation to make purchases hereunder (without prejudice to the rights of the affected Originator against such Purchaser), with a replacement financial institution; provided that the replacement financial institution, if not already a Purchaser, shall be reasonably satisfactory to the Administrative Agent, and the replaced Purchaser shall be obligated to make such replacement in accordance with the provisions of Section 9.6 (provided that the Servicers shall be obligated to pay the registration and processing fee referred to therein).  Until such time as such replacement shall be consummated, the Originators shall pay all additional amounts (if any) required pursuant to Section 2.8 or 2.9(a), as the case may be, and any such replacement shall not be deemed to be a waiver of any rights that the Servicers, the Originators, the Administrative Agent or any other Purchaser shall have against the replaced Purchaser.

 

2.11.        Evidence of Purchased Interests .  The Administrative Agent, on behalf of the Purchasers, shall maintain the Register pursuant to Section 9.6(d), and a subaccount therein for each Purchaser, in which shall be recorded (i) the amount of each purchase made hereunder, and (ii) the amount payable or to become due and payable from (or to be deposited by) the Servicers and each Originator to each Purchaser hereunder.  At the request of the Administrative Agent, from time to time, the Servicers shall provide copies of the drafts, shipping documents and other related documentation with respect to a Scheduled Receivable as the Administrative Agent shall reasonably require.

 

SECTION 3.  REPRESENTATIONS AND WARRANTIES

 

To induce the Administrative Agent and the Purchasers to enter into this Agreement and to make the purchases, each Originator, jointly and severally, hereby represents and warrants to the Administrative Agent and each Purchaser that:

 

3.1.          Financial Condition .  The audited consolidated balance sheets of Sanmina-SCI and its consolidated Subsidiaries as at October 2, 2004, and the related statements of income and of cash flows of Sanmina-SCI for the fiscal years ended on such dates, contained in its Annual Report on Form 10-K filed with the SEC on December 29, 2004, present fairly in all material respects the consolidated financial condition of Sanmina-SCI and its consolidated Subsidiaries as at such date, and Sanmina-SCI’s consolidated results of operations and cash flows for the respective fiscal years then ended.  The unaudited consolidated balance sheet of Sanmina-SCI and its consolidated Subsidiaries as at July 2, 2005, and the related statements of income and cash flows of Sanmina-SCI for the fiscal quarter ended on such date, contained in its Quarterly Report on Form 10-Q filed with the SEC on August 10, 2005, present fairly in all material respects the consolidated financial condition of Sanmina-SCI and its consolidated Subsidiaries as at such date, and Sanmina-SCI’s consolidated results of operations and cash flows for the respective fiscal quarter then ended.  All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by Sanmina-SCI’s accountants and disclosed therein and subject to normal year-end adjustments in the case of unaudited

 

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financial statements).  No Group Member has any material Guarantee Obligations, material contingent liabilities or material liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, including, without limitation, any interest rate or foreign currency swap or exchange transaction or other obligation in respect of derivatives, that are not reflected in the audited financial statements referred to in this paragraph.  During the period from July 2, 2005 to and including the date hereof, there has been no Disposition by any Group Member of any material part of its business or property that could reasonably be expected to result in a Material Adverse Effect.

 

3.2.          No Change .  Since October 2, 2004, there has been no change, development or event that has had or could reasonably be expected to have a Material Adverse Effect.

 

3.3.          Existence; Compliance with Law .  Each Originator and Servicer (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

3.4.          Power; Authorization; Enforceable Obligations .  Each of the Originators and the Servicers has the power and authority, and the legal right, to make, deliver and perform the Transaction Documents to which it is a party.  Each of the Originators and the Servicers has taken all necessary organizational action to authorize the execution, delivery and performance of the Transaction Documents to which it is a party.  No consent or authorization of, filing with, notice to or other act by or in respect of any Governmental Authority or any other Person is required in connection with the transactions hereunder or with the exec