CREDIT AND SECURITY AGREEMENT

 

TABLE OF CONTENTS

 

ARTICLE 1. DEFINITIONS AND RELATED TERMS			1
Section 1.01.	Definitions		1
Section 1.02.	Accounting Terms and Determinations		14
Section 1.03.	References		14
Section 1.04.	Use of Defined Terms		14
Section 1.05.	Terminology		14
ARTICLE 2. ADVANCES			15
Section 2.01.	Commitment to Make Advances		15
Section 2.02.	Method of Borrowing		15
Section 2.03.	Final Payment of Aggregate Advances		15
Section 2.04.	Interest Rate		15
Section 2.05.	Fees		16
Section 2.06.	Termination of Commitment		16
Section 2.07.	Repayment of the Aggregate Advances		16
Section 2.08.	Settlement Procedures		16
Section 2.09.	Pro Rata Treatment and General Provisions Regarding Payments		17
Section 2.10.	Collection Accounts and Lock-Box		17
Section 2.11.	Designation of New Eligible Obligors		18
ARTICLE 3. COLLATERAL			19
Section 3.01.	Grant of Security Interest		19
Section 3.02.	Further Assurances		19
Section 3.03.	Termination of Security Interest		19
ARTICLE 4. REPRESENTATIONS AND WARRANTIES			20
Section 4.01.	Entity Existence and Power		20
Section 4.02.	Entity and Governmental Authorization; No Contravention		20
Section 4.03.	Litigation		20
Section 4.04.	Binding Effect		20
Section 4.05.	Margin Stock		20
Section 4.06.	Good Title; Perfection		20
Section 4.07.	Compliance with Laws		20
Section 4.08.	Investment Company Act		20
Section 4.09.	No Termination Event		20
Section 4.10.	Insolvency		21
Section 4.11.	Capital Structure		21
Section 4.12.	Collateral Information		21
Section 4.13.	Nature of Assigned Receivables		21
Section 4.14.	Full Disclosure		21
Section 4.15.	Survival of Representations and Warranties		21
Section 4.16.	Restating of Representations and Warranties		21
ARTICLE 5. COVENANTS			21
Section 5.01.	Information		21
Section 5.02.	Maintenance of Existence and Management		22
Section 5.03.	Compliance with Laws; Payment of Taxes		22
Section 5.04.	Maintenance of the Policy		22
Section 5.05.	Separate Legal Entity		22
Section 5.06.	Payment of Fees		23
Section 5.07.	Payment of Indemnities		23
Section 5.08.	Collection Accounts and Lock-Box		23
Section 5.09.	Additional Negative Covenants		23

 

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Section 5.10.		Control of Account				23
ARTICLE 6. TERMINATION EVENTS						24
Section 6.01.		Termination Events				24
Section 6.02.		Remedies with Respect to Collateral				26
Section 6.03.		Power of Attorney				26
ARTICLE 7. CHANGE IN CIRCUMSTANCES; COMPENSATION						26
Section 7.01.		Increased Cost and Reduced Return				26
ARTICLE 8. CONDITIONS TO MAKING ADVANCES						27
Section 8.01.		Conditions to Making Initial Advance				27
Section 8.02.		Conditions to the Making of All Advances				28
ARTICLE 9. THE AGENT						29
Section 9.01.		Designation				29
Section 9.02.		Delegation of Duties				29
Section 9.03.		Exculpatory Provisions				29
Section 9.04.		Reliance by Agent				30
Section 9.05.		Notice of Termination				30
Section 9.06.		Non-Reliance on Agent and Other Lenders				30
Section 9.07.		Indemnification				31
Section 9.08.		Agent in Its Individual Capacity				31
Section 9.09.		Successor Agent				31
Section 9.10.		Determination Pursuant to Program Documents				32
Section 9.11.		Additional Information				32
ARTICLE 10. MISCELLANEOUS						32
Section 10.01.		Notices				32
Section 10.02.		No Waivers				32
Section 10.03.		Expenses; Documentary Taxes				33
Section 10.04.		Taxes				33
Section 10.05.		Indemnification by Borrower				34
Section 10.06.		Adjustments; Set off				34
Section 10.07.		Amendments and Waivers				34
Section 10.08.		Third Party Beneficiaries				34
Section 10.09.		Successors and Assigns; Participations and Assignments				34
Section 10.10.		New York Law				36
Section 10.11.		Severability				36
Section 10.12.		WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION				36
Section 10.13.		Counterparts				36
Section 10.14.		Consequential Damages				36
Section 10.15.		Entire Agreement				36
Section 10.16.		Non-Petition; Limitation on Payments				37
Section 10.17.		USA Patriot Act				37
Schedule 1.1A			Applicable Margins
Schedule 1.1B			Accounts
Schedule 1.1C			Lenders’ Commitments
Schedule 1.1D			Contingent Eligible Obligors
Schedule 1.1E			Eligible Obligors and Obligor Limits
EXHIBIT A	FORM OF BORROWER’S COLLATERAL DISCLOSURE CERTIFICATE
EXHIBIT B	FORM OF BORROWING NOTICE
EXHIBIT C	Deutsche Bank Trust Company Americas Control Agreement

 

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EXHIBIT D	FORM OF REMITTANCE REPORT
EXHIBIT E	OPINIONS OF COUNSEL
Exhibit E-1	True Sale and Non-Consolidation Opinion
Exhibit E-2	UCC Perfection Opinion and General Corporate Opinion for Borrower, Sellers and Servicer
EXHIBIT F	FORM OF CLOSING CERTIFICATE
EXHIBIT G	FORM OF OFFICER’S CERTIFICATE
EXHIBIT H	FORM OF NOTE
EXHIBIT I	FORM OF ADVANCE CALCULATION NOTICE
EXHIBIT J	FORM OF ASSIGNMENT AND ACCEPTANCE

 

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CREDIT AND SECURITY AGREEMENT

 

THIS CREDIT AND SECURITY AGREEMENT is dated as of November 24, 2008, by and between SANMINA SPV LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders and DEUTSCHE BANK AG, NEW YORK BRANCH, a German banking corporation, as administrative agent and as collateral agent (the “ Agent ”).

 

The parties hereto agree as follows:

 

ARTICLE 1.
DEFINITIONS AND RELATED TERMS

 

Section 1.01.           Definitions . As used in this Agreement, the following terms shall have the following meanings:

 

“ ABL ” means the Loan, Guaranty and Security Agreement dated as of November 19, 2008 among Sanmina-SCI Corporation, Hadco Corporation, Hadco Santa Clara, Inc., Sanmina-SCI Systems Holdings, Inc., SCI Technology, Inc. and Scimex, Inc., as Borrowers, Sanmina-SCI Systems (Canada) Inc. and SCI Brockville Corp., as Designated Canadian Guarantors, certain financial institutions as Lenders, Bank of America, N.A., as Agent, Banc of America Securities LLC and Deutsche Bank Securities, Inc., as Joint Lead Arrangers and Joint Book Managers, and Deutsche Bank Trust Company Americas, as Syndication Agent.

 

“ Account Debtor ” means, with respect to an Account Receivable each Person who purchased goods or services on credit under an Underlying Contract and who is obligated to make payments on such Account Receivable to the Obligee on the Underlying Contract pursuant to such Underlying Contract.

 

“ Account Receivable ” means an Obligee’s right to the payment of money from an Account Debtor, arising out of goods sold.

 

“ Advance ” means each extension of credit made by the Lenders to Borrower under this Agreement.  Advances shall be Tranche A Advances and Tranche B Advances.

 

“ Advance Calculation Notice ”  means a notice delivered by Agent to Servicer and the Lenders to the effect required by Section 2.02 and substantially in the form of Exhibit I hereto.

 

“ 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.

 

“ Agent ” has the meaning assigned thereto in the preamble.

 

“ Aggregate Advance ” means, at any time of determination, the aggregate outstanding principal amount of all Advances.

 

“ Agreement ” means this Credit and Security Agreement.

 

“ Applicable Margin ” as set forth on Schedule 1.1A.

 

“ Arrangement Fee ” means the arrangement fee payable by Transferor to Deutsche Bank AG, New York Branch, as arranger pursuant to the fee letter between them dated September 22, 2008.

 

“ Assigned Receivable ” means a Transferred Receivable that has been pledged to the Agent pursuant to this Agreement, as evidenced by the inclusion of such Transferred Receivable in the calculation of the

 

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Borrowing Base in a Borrowing Notice or in any Receivables Report; provided that a Transferred Receivable shall cease to be an Assigned Receivable immediately upon (i) becoming a Discharged Receivable or (ii) upon being re-transferred to Transferor in accordance with the Program Documents.

 

“ Assignee ” is defined in Section 10.09(c).

 

“ Assignment and Acceptance ” means an Assignment and Acceptance, substantially in the form of Exhibit J.

 

“ Assignor ”  is defined in Section 10.09(c).

 

“ Assignment Agreement ” has the meaning given such term in Section 2.4 of the TCA.

 

“ Availability Period ” means the period commencing on the Effective Date and terminating on the Program Termination Date.

 

“ Bankruptcy Code ” means Title 11 of the United States Code, as it may be amended from time to time.

 

“ Benefited Lender ”  is defined in Section 10.06.

 

“ Books and Records ” means, with respect to an Obligee’s Account Receivable, all of the Obligee’s books, records, computer tapes, programs, and ledger books arising from or relating to such Account Receivable.

 

“ Borrower ” is defined in the preamble to this Agreement.

 

“ Borrower Collateral Disclosure Certificate ” means that certain certificate, in substantially the form of Exhibit A dated as of the date hereof, executed and delivered by Borrower to the Agent.

 

“ Borrowing Base ” means, at any time of determination, the lesser of (i) the Tranche A or Tranche B Commitment, as the case may be, and (ii) the total Uncollected Value of Tranche A or Tranche B Eligible Receivables, respectively, times 95% (in the case of Tranche A Eligible Receivables and Tranche B Eligible Receivables other than Echostar) or 90% (in the case of Echostar).  In no event shall the Uncollected Value of Eligible Receivables include Designated Receivables.

 

“ Borrowing Base Deficit ” means (i) the outstanding principal amount of the Tranche A Advances shall exceed the Borrowing Base for Tranche A Advances, or (ii) the outstanding principal amount of the Tranche B Advances shall exceed the Borrowing Base for the Tranche B Advances.

 

“ Borrowing Date ” means, in the case of an Advance in Dollars, the Business Day following a Preparation Date and, in the case of an Advance in Euros, the second Business Day following a Preparation Date.

 

“ Borrowing Notice ” means a notice in the form of Exhibit B attached hereto and made a part hereof.

 

“ Business Day ” means each day which is not a Saturday, Sunday, or a day on which banking institutions in the State of New York are authorized or obligated by law, executive order, or governmental decree to be closed; provided that , with respect to determinations of interest rates, such day is also a day for trading by and between banks in Dollar deposits in London, England; provided further however , that for purposes of any determination of the Euribor Rate, such day is also a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.

 

“ Change of Control ” means the occurrence of any of the following: (a) Sanmina-SCI Corporation shall cease to own 100% of the issued and outstanding membership interests of Borrower; or (b) any “person” or

 

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“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 Corporation; 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 Corporation; or (c) 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 Corporation cease to be occupied by Persons who either (i) were members of the board of directors of Sanmina-SCI Corporation on November 20, 2008, or (ii) were nominated for election by the board of directors of Sanmina-SCI Corporation, a majority of whom were directors on November 20, 2008 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).

 

“ Change of Law ” means the occurrence, after the date hereof, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

“ Closing Certificate ” has the meaning set forth in Section 8.01(c).

 

“ Closing Date ” means the date of this Agreement as first above written.

 

“ Collateral ” means the property in which the Agent on behalf of the Lenders is granted by Borrower a security interest pursuant to Section 3.01 or elsewhere in the Program Documents.

 

“ Collection Accounts ” means until the Collection Account Effective Date, the Sanmina Accounts, and commencing on and after the Collection Account Effective Date, the deposit accounts in the name of Borrower, and specified on Schedule 1.1B (comprising the Tranche A Dollar Collection Account, the Tranche A Euro Collection Account, the Tranche B Dollar Collection Account and the Tranche B Euro Collection Account and referred to collectively as the “ Collection Accounts ”), for receipt of payments relating to the Accounts Receivable, and into which, among other items, (a) (i) all Collections on all Assigned Receivables, and (ii) all proceeds of any of the items specified in clause (i) will be deposited, and (b) collections on Other Receivables may be received, to the extent described in the TCA and in the other Program Documents; provided , however , that for purposes of calculating the balance of the Collection Accounts from time to time under the Program Documents, no items of payment or other collections (or the funds thereof) on any Other Receivable shall be included.

 

“ Collection Account Effective Date ” means the date on which the Agent has provided written notice to the Borrower that the Collection Accounts are fully operational and are available for deposit of Collections and as of which date the Servicer shall provide written notice to Account Debtors to make payment of all amounts payable in respect of Transferred Receivables to such Collection Accounts and the Borrower shall have executed and delivered the Control Agreement.

 

“ Collection Account Ramp-Up Period ” means the period of 60 days commencing on the Collection Account Effective Date during which payments may continue to be made by Account Debtors that pay by electronic transfer to the Sanmina Accounts.

 

“ Collections ” means, with respect to any Account Receivable (i) all collections and other proceeds received in respect of Accounts Receivable, including, without limitation, purchase price, finance charges, interest and all other charges, or applied to amounts owed in respect of such Accounts Receivable together with all collections and other proceeds received in respect of the Related Rights and Property in the form of cash, checks, wire transfers or any other form of cash payment, (ii) any related Policy Proceeds, and (iii) any Deemed Collections with respect thereto.

 

“ Commitment ” means the obligation of the Lenders to make Tranche A Advances hereunder secured by Tranche A Receivables (the “ Tranche A Commitment ”) or Tranche B Advances secured by Tranche B Receivables (the “ Tranche B Commitment ”), as the case may be, in an amount not to exceed the amount for such

 

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Tranche set forth under the heading “Lender’s Commitment” on Schedule 1.1C hereto.  As of the date hereof, the aggregate amount of the Tranche A Commitment is $0 and the aggregate amount of the Tranche B Commitment is $0. The Commitment shall be increased following the addition of a Contingent Eligible Obligor as an Eligible Obligor in accordance with the procedures established in Section 2.11; provided , however , that in no event shall the aggregate amount of the Commitment exceed $250,000,000. at any one time outstanding.

 

“ Commitment Fee ” means a fee payable by Borrower to Lenders as described in Section 2.05.

 

“ Commitment Percentage ” means as to any Lender, the percentage which such Lenders’ Commitment then constitutes of the aggregate Commitments (or, if all of the Lenders’ Commitments have been reduced to zero, the percentage which the aggregate amount of such Lenders’ Advances then outstanding constitutes of the aggregate amount of Lenders’ Advances then outstanding).

 

“ Contingent Eligible Obligors ”: means the companies listed in Schedule 1.1D.

 

“ Control ” means 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.

 

“ Control Agreement” means that certain account control agreement among Borrower, the Agent, and Deutsche Bank Trust Company Americas, in the form of Exhibit C .

 

“ Controlling Person ” means with respect to any relevant Person, a Person that directly, or indirectly through one or more intermediaries, Controls the relevant Person.

 

“ Deduction ” means any adjustment in the outstanding principal balance of a Receivables attributable to any credit, allowance, discount, billing error, rebate, setoff, dispute, counterclaim, adjustment, settlement, compromise, return, accord and satisfaction, accommodation, chargeback or forgiveness, sales or similar taxes or similar items of any nature or type on, of, or relating to any Account Receivable or any Account Debtor, as applicable, in each case as reflected on either Seller or Servicer’s Books and Records.

 

“ Deemed Collections ” means amounts paid to Borrower pursuant to Section 2.7(b) of the TCA.

 

“ Default Rate ” means, with respect to any of the Obligations, on any day, a rate of interest per annum equal to the sum of (i) the Interest Rate, plus (ii) two percent.

 

“ Designated Receivable ” means (a) any Transferred Receivable which is cancelled or reduced as a result of any setoff in respect of any claim or dispute between an Account Debtor and the Transferor (or Borrower by virtue of Borrower’s having purchased such Account Receivable) regarding Transferor’s performance of its obligations under the Underlying Contract (unless the Transferor shall have purchased the disputed portion of such Transferred Receivable in accordance with Section 2.7(b) of the TCA), (b) which was sold to Borrower in violation of any representation, warranty, or covenant contained in any Program Document or (c) was sold to Borrower fraudulently or unlawfully.

 

“ Discharged Receivable ” means (a) any Account Receivable the principal amount of which was fully and finally paid by the Account Debtor or (b) for which a claim was submitted under the Policy and such claim is either (i) initially rejected (regardless of whether there exists any right to resubmit such Account Receivable or any right to appeal such rejection) or (ii) paid by the Insurer and the Policy Proceeds of which were deposited into the appropriate Collection Account.

 

“ Dollars ” or “$” means dollars in lawful currency of the United States of America.

 

“ Effective Date ” means the date on which each of the conditions precedent to closing and conditions precedent to the making of the initial Advance are satisfied, as determined by the Agent.

 

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“ Eligible Obligor ” means an Account Debtor specified on Schedule 1.1E and such New Eligible Obligors as may be added from time to time in accordance with Section 2.11 .  Eligible Obligors currently are either the Tranche A Eligible Obligors or the Tranche B Eligible Obligors.

 

“ Eligible Receivable ” means each of the Transferor’s Accounts Receivable which has been specifically identified and offered for sale or contribution by Transferor, accepted or approved for purchase or as a capital contribution by Borrower and satisfies, at any time of determination, each of the following other criteria:

 

(a)            the Transferor has the right to sell or contribute such Account Receivable to Borrower;

 

(b)            is evidenced by a binding and enforceable Underlying Contract between the Transferor and the Account Debtor and is an “account” as defined in the UCC;

 

(c)            the right to payment of which has been fully earned by the Transferor and requires no further performance on the Transferor’s part and is payable in the United States in U.S. Dollars or in Europe in Euros;

 

(d)            the Account Debtor related to such Account Receivable is an Eligible Obligor and such Account Receivable together with all other Accounts Receivable then outstanding of such Eligible Obligor does not exceed the Obligor Limits for such Eligible Obligor;

 

(e)            arises out of a bona fide sale from the Transferor to the Account Debtor related to such Account Receivable in a transaction occurring in the ordinary course of the Transferor’s business;

 

(f)             is not subject to any disputes between Account Debtor and the Transferor and satisfies all applicable requirements of the Transferor’s standard customer credit policies, including that the Account Receivable is not delinquent or defaulted;

 

(g)            is free from adverse claims and Liens, other than Permitted Encumbrances, and has not been sold or pledged to any other Person other than Borrower or Lender;

 

(h)            upon Borrower’s purchase or acceptance as a capital contribution of such Transferred Receivable and for so long as it remains an Assigned Receivable, Borrower’s ownership thereof and security interest therein will be perfected under the UCC by Financing Statements filed in appropriate offices and will be subject to a first-priority, perfected security interest in favor of Lender;

 

(i)             such Account Receivable did not arise as a result of the sale of consigned inventory owned by a third party;

 

(j)             the Account Debtor of such Account Receivable has been directed to make all payments to the Collection Accounts or the Lock-Boxes, as the case may be; provided that until the occurrence of the Lock-Box Effective Date, Account Debtors that pay by check, draft or instruments may continue to make payments to the Sanmina Lock-Box and will be instructed to make payments to Lock-Box only on and after the Lock-Box Effective Date;

 

(k)            which according to the Underlying Contract, is unconditionally due and owing either at such time or on its Scheduled Maturity Date and subject to no counterclaim or other defense, such Scheduled Maturity Date being not later than 90 days thereafter and not later than 90 days after the Program Termination Date; and

 

(l)             with respect to any Account Receivable that became an Assigned Receivable on the Closing Date, the underlying goods were shipped or the related services were provided by Transferor prior to the Closing Date; provided that the Transferor does not know of any factor which could reasonably be expected to result in failure by an Account Debtor to make a payment with regard to such Accounts Receivable as stipulated in the Underlying Contract.

 

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“ Euribor Rate ”:  with respect to each day for Advances in Euros, the rate per annum determined on the basis of the overnight offered rate for deposits in Euros of Deutsche Bank AG, Frankfurt head office to prime banks in the Euro-zone interbank markets, as of 11:00 a.m., Brussels time, on each such day, and in a principal amount not less than the equivalent of US$1 million in Euros that is representative of a single transaction in Euros in that market at that time.

 

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

 

“ Euro-zone ”:  the region comprising member states of the European Union that have adopted the single currency in accordance with the relevant Treaty of the European Union, as amended.

 

“ Facility ” means the credit facility granted to Borrower pursuant to this Agreement.

 

“ Final Payment Date ” means the date which is 90 days after the Program Termination Date; provided that , if such date is not a Business Day, then the Final Payment Date shall be the immediately following Business Day.

 

“ Financing Statement ” means any financing statement (as such term is used in the UCC) and any other statement or document which is filed in a public record for the purpose of giving notice of, or perfecting, a Lien, and amendments thereto (including, without limitation, any amendments effecting any assignment of any financing statement from one Person to another).

 

“ GAAP ” means generally accepted accounting principles in the United States of America applied on a basis consistent with those which, in accordance with Section 1.02, are to be used in making the calculations for purposes of determining compliance with the terms of this Agreement.

 

“ Governmental Authority ” means 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.

 

“ 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 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 Person in good faith.

 

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“ 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.

“ Increase Effective Date ”:  as defined in Section 2.11(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) 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.

 

“ 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.

 

“ Insurer ” means Atradius Trade Credit Insurance, Inc.

 

“ Interest Rate ” means the LIBOR Rate plus the Applicable Margin, in the case of Dollar Advances, and the Euribor Rate plus the Applicable Margin, in the case of Euro Advances.

 

“ Interest Settlement Date ” means the 3rd Business Day of each fiscal quarter of the Transferor.

 

“ Investment ” means any investment in any Person, whether by means of purchase or acquisition of obligations or securities of such Person (including, without limitation, interest rate protection, foreign currency, or other hedging arrangements to be held by such Person as an investment), capital contribution to such Person, loan or advance to such Person, making of a time deposit with such Person, guaranty, suretyship, or assumption of any obligation of such Person or otherwise.

 

“ Lender Affiliate ” means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Lender specified.

 

“ Lenders ” means initially Deutsche Bank AG, New York Branch, and such other Persons who are identified from time to time in the Register.

 

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“ LIBOR Rate ”:  for each date of determination hereunder for an Advance in Dollars, the rate that appears on the Reuters Screen Page LIBOR 01 (British Bankers Assoc. Interest Settlement Rates Page) (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market), as determined by the Lender, based in each case on the overnight rate at approximately 11:00 a.m. London, England time on such day of determination.  If any date of determination hereunder is not a Business Day in London, England, the applicable LIBOR Rate shall be the rate determined for the next preceding Business Day in London, England

 

“ Lien ” means, 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).

 

“ Lock-Box ” means that certain lock-box to be established by the Borrower with Deutsche Bank Trust Company Americas into which payments by Account Debtors that are made by check, drafts or other instruments are to be paid.

 

“ Lockbox Control and Intercreditor Agreement ” means that certain agreement dated as of November 24, 2008 among Sanmina, Bank of America, N.A., the Borrower and the Agent

 

“ Lock-Box Effective Date ” means the date on which the Agent has provided written notice to the Borrower that the Lock-Box has been established and is available for deposit of Collections and as of which date the Servicer shall provide written notice to Account Debtors to make payment of all amounts payable in respect of Transferred Receivables to the Lock-Box.

 

“ Lock-Box Ramp-Up Period ” means the period of 60 days commencing on the Lock-Box Effective Date during which payments may continue to be made by Account Debtors that pay by check, drafts or other instruments to the Sanmina Lock-box.

 

“ Losses ” means any liability, damage, costs and expenses, including, without limitation, any out-of-pocket attorneys’ fees, disbursements and court costs, in each case reasonably incurred by a Person, as the case may be, without regard to whether or not such Losses would be deemed material under this Agreement or any other Program Document; provided , however , that “Losses” shall not include any losses based on claims for benefit-of-the bargain (other than with respect to the Purchase Price), lost opportunity costs or similar claims.

 

“ Margin Stock ” means “margin stock” as defined in Regulations T, U or X.

 

“ Material Adverse Effect ” means a material adverse change in any of (a) the rights and remedies of the Agent and the Lenders under the Program Documents, the Agent’s security interest and Lien against the Collateral on behalf of the Lenders, the ability of Borrower to perform its obligations with respect to the Obligations or under the Program Documents to which it is a party, or the ability of either Transferor or the Servicer to perform its respective obligations under the Program Documents to which it is a party (including, without limitation, the repudiation, revocation or any attempt to do the same by any Person obligated under any other Program Document), as applicable, (b) the business, assets, property, operations or condition (financial or otherwise) of Sanmina-SCI Corporation and its Subsidiaries, taken as a whole, or (c) the legality, validity or enforceability of any Program Agreement.

 

“ Moody’s ” means Moody’s Investor Service, Inc.

 

“ New Eligible Obligor ”:  as defined in Section 2.11(a).

 

“ Note ” means a promissory note substantially in the form attached hereto as Exhibit I , made by Borrower and payable to each Lender with a face amount equal to such Lender’s initial Commitment, together with all amendments, consolidations, modifications, renewals, and supplements thereto.

 

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“ Obligations ” means all Indebtedness, liabilities, covenants, duties and other obligations of Borrower to the Agent and the Lenders included or arising from time to time under this Agreement or any other Program Document, whether evidenced by any note or other writing, including, without limitation, principal, interest, fees, costs, attorneys’ fees, and indemnification amounts and any and all extensions or renewals thereof in whole or in part, direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several.

 

“ Obligee ” means the Person to whom payment of an Account Receivable is owed.

 

“ Obligor ” means with respect to any Account Receivable, the Eligible Obligor obligated to make payments with respect to such Receivable, any guarantor of such Eligible Obligor’s obligations and any bank or financial institution that has opened or confirmed a letter of credit in respect of an Eligible Obligor’s obligations.

 

“ Obligor Adverse Change ”:  with respect to any Eligible Obligor, any event or circumstance (when taken alone or together with any previous event or circumstance) which, in the good faith opinion of the Agent, represents an adverse change in the financial condition, assets or business of such Eligible Obligor that could be reasonably expected to affect materially and adversely the ability of such Eligible Obligor to perform its obligations under the Receivables of such Eligible Obligor or otherwise adversely affects the creditworthiness of such Eligible Obligor, based on the Agent’s internal credit rating criteria.

 

“ Obligor Limits ”:  the specified limit on the aggregate stated net amount payable (net of credit memos) of Receivables of any Eligible Obligor that may be outstanding at any time hereunder, as set forth on Schedule 1.1E.  The Obligor Limits in respect of any Eligible Obligor are subject to reduction or cancellation by the Agent in the event of an Obligor Adverse Change, any such reduction or cancellation to be notified by the Agent to the Servicer promptly in writing (it being understood that any such reduction or cancellation shall not apply to Transferred Receivables that have been assigned prior to the date of such reduction or cancellation).

 

“ Officer’s Certificate ” has the meaning set forth in Section 8.01(d).

 

“ Other Receivables ” means any Account Receivable that is not an Assigned Receivable, including any Designated Receivable that has been purchased by Borrower, the Transferor or the Servicer in accordance with the Program Documents.

 

“ Participant ” has the meaning set forth in Section 10.09(b).

 

“ Payment Account ” means (i) initially, Deutsche Bank Trust Company Americas New York ABA# 021001033 FFC: Deutsche Bank NY Loan Operations A/C: 60200119 Ref: Sanmina-SCI, Attn: Joe Cusmai, or (ii) such other account in the United States established by the Agent to which funds remitted from the Collection Accounts shall be paid, as notified in writing to Servicer and the Borrower.

 

“ Permitted Encumbrances ” means, as to the Collateral, (a) the Liens granted to the Agent and Borrower under the Program Documents, (b) any Liens or other claims Insurer may have in any Assigned Receivable and its Related Rights and Property on account of having paid Policy Proceeds on such Assigned Receivable, (c) the lien of current taxes and assessments not yet due and payable or the validity of which is being contested diligently and in good faith by appropriate proceedings, so long as adequate reserves against such liens have been provided for in accordance with GAAP consistently applied, (d) customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the Uniform Commercial Code of banks or other financial institutions where the Borrower maintains deposits, and (e) Liens that arise in favor of banks under Article 4 of the Uniform Commercial Code on items in collection and the documents relating thereto and proceeds thereof.

 

“ Permitted Investments ” shall mean:

 

(i)                                      direct obligations of the United States of America and having a final maturity of 90 days or less from date of purchase thereof;

 

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(ii)                                   commercial paper of a bank, trust company or national banking association incorporated under the laws of the United States of America or one of the states thereof having combined capital and surplus and retained earnings as of its last report of condition of at least $100,000,000 and having a long-term debt rating of A or better by S&P or A-2 by Moody’s and commercial paper of any corporation or finance company incorporated under the laws of the United States of America or any state thereof having a rating assigned to such commercial paper of any such bank, trust company, national banking association, corporation or finance company of A-1 by S&P or P-1 by Moody’s (or, if neither such organization shall rate such commercial paper at any time, a rating equal to the highest rating assigned by any nationally recognized rating organization in the United States of America) and having a final maturity of 90 days or less from the date of purchase thereof; or

 

(iii)                                repurchase agreements with any entity which are fully collateralized by obligations described in paragraph (i) above where delivery must be taken, and having a final maturity of 90 days or less from the date of purchase thereof; or

 

(iv)                               money market mutual funds managed in accordance with Rule 2a-7 of the Investment Company Act of 1940, with a rating of AAAm by S&P or Aaa by Moody’s and having a weighted average maturity of 60 days or less.

 

“ Person ” means an individual, a corporation, a limited liability company, a partnership, an unincorporated association, a trust or any other entity or organization, including, but not limited to, a government or political subdivision or an agency or instrumentality thereof.

 

“ Policies and Procedures ” has the meaning given such term in Section 2.01 of the Servicing Agreement.

 

“ Policy ” means, in each case in form and substance satisfactory to the Agent, (a)  a trade credit insurance policy and all endorsements and other agreements, documents and instruments relating thereto, issued by Insurer to the Borrower in which the Agent on behalf of the Lenders shall be named as loss payee, which shall insure Borrower for an amount up to 95% of the Uncollected Value of the Accounts Receivable insured thereby or such lower percentage as Insurer may stipulate, and (b) any replacement, substitution or extension of, or amendments to, such insurance policy (and all endorsements and other agreements, documents and instruments relating thereto) issued by Insurer to Borrower and acceptable to the Agent.

 

“ Policy Proceeds ” means the proceeds paid by the Insurer on an Assigned Receivable submitted for payment under the Policy.

 

“ Preparation Date ” means each date on which Borrower presents a Borrowing Notice pursuant to Section 2.02.

 

“ Program ” means the program for Transferor’s contribution, and Borrower’s acceptance as a capital contribution, of certain of Transferor’s Accounts Receivable, as contemplated by the Program Documents.

 

“ Program Agreements ” means each of this Agreement, the TCA and the Servicing Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

 

“ Program Documents ” means each Program Agreement, the Financing Statements, the Control Agreement, each Remittance Report, each Receivables Report, each Borrowing Notice, Borrower Collateral Disclosure Certificate, Transferor Collateral Disclosure Certificate, the Lockbox Control and Intercreditor Agreement and all other agreements, documents, or instruments entered into in connection with any of the foregoing as the same may be amended, restated, supplemented, or otherwise modified from time to time.

 

“ Program Termination Date ” means the earlier of (a) the second anniversary of the Closing Date and (ii) the date on which the Commitment is terminated in accordance with Section 2.06.

 

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“ Public Accountants ” means KPMG, LLP or other nationally recognized independent registered public accounting firm acceptable to the Agent.

 

“ Receivables Report ” has the meaning given such term in the Servicing Agreement.

 

“ Register ” is defined in Section 10.09(d).

 

“ Related Rights and Property ” means, with respect to an Account Receivable and in each case whether now existing or hereafter acquired or arising, (a) all of Obligee’s interest in all goods represented by such Account Receivable and in all goods returned by, or reclaimed, repossessed, or recovered from, the Account Debtor; (b) all of Obligee’s Books and Records relating to such Account Receivable; (c) all of Obligee’s rights in and to (but not its obligations under) the Underlying Contract; (d) all accounts, instruments, general intangibles, documents, chattel paper, and letter of credit rights related to such Account Receivable; (e) all of the Collections or payments received and all of Obligee’s rights to receive payment and Collections on such Account Receivable; (f) all of Obligee’s rights as an unpaid lienor or vendor of such goods; (g) all of Obligee’s rights of stoppage in transit, replevin, and reclamation relating to such goods or Account Receivable; (h) all of Obligee’s rights in and to all security for such goods or the payment of such Account Receivable and guaranties thereof; (i) any collections or casualty insurance proceeds or proceeds from any trade receivables or other insurance (including, without limitation, Policy Proceeds) collected or paid on account of such Account Receivable or any of the foregoing; and (j) all of Obligee’s rights against third parties with respect thereto; but excluding any right to payment of interest or finance charges with respect to any Account Receivable.

 

“ Remittance Report ” means a report substantially in the form of Exhibit D , as the same may be amended, restated, supplemented, or otherwise modified from time to time, or such other form acceptable to the Agent.

 

“ Required Lenders ” means, at any time, the holders of more than 50% of (a) until the initial Borrowing Date, the Commitments then in effect and (b) thereafter, the sum of the aggregate unpaid amount of the Advances then outstanding.

 

“ Sanmina Accounts ” means (i) the account of Sanmina at Bank of America (ABA 11100012), Account no. 3752030516 and (ii) the account of Sanmina-SCI Systems de Mexico, S.A. de C.V. at Bank of America (ABA 121000358), Account No. 12335-05980.

 

“ Sanmina Lock-Box ” means (i) the lock-box account of Sanmina, Lockbox 848413, 1401 Elm Street, 5 ^th floor, Dallas, Texas 75202, and (ii) the lock-box account of Sanmina-SCI Systems de Mexico, S.A. de C.V., Lockbox 849952, 1850 Gateway Blvd., Concord, CA 94520.

 

“ S&P ” means Standard & Poor’s Rating Group, a division of McGraw Hill, Inc.

 

“ Scheduled Maturity Date ” means, with respect to any Account Receivable, the scheduled due date for payment of such Account Receivable as stipulated in the contract, purchase order, draft or invoice, as the case may be, which shall not be greater than 90 days after invoice date, as extended from time to time in accordance with this Agreement.

 

“ Senior Officer ” means (a) with respect to any Person which is a corporation, limited liability company, or limited partnership which has duly appointed officers, such Person’s president, vice president, treasurer, secretary, general counsel, controller, chief executive officer, and chief financial officer, (b) with respect to any Person which is a member managed limited liability company and which has no duly appointed officers, any member of such Person, (c) with respect to any Person which is a manager managed limited liability company, any manager of such Person which is authorized to act alone on behalf of such Person, and (d) with respect to any

 

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Person which is a limited partnership and which has not duly appointed officers, any general partner of such limited partnership.

 

“ Servicer ” means Sanmina-SCI Corporation, as initial Servicer, or any successor servicer selected as provided in the Program Documents.

 

“ Services ” has the meaning given such term in Section 2.01 of the Servicing Agreement.

 

“ Servicing Agreement ” means the Servicing Agreement dated as of even date herewith between Servicer and Borrower, as amended, restated, supplemented or otherwise modified from time to time.

 

“ Servicing Agreement Termination Event ” has the meaning given such term in Section 4.01(c) of the Servicing Agreement.

 

“ Servicing Fee ” has the meaning given such term in Section 3.01 of the Servicing Agreement.

 

“ Settlement Date ” means each Business Day commencing on the date hereof until termination of this Agreement.

 

“ Standard Terms ” means, with respect to any Account Debtor, the terms and conditions related to the Transferor’s selling and shipping of its products to such Account Debtor.

 

“ Subservicer ” means any Person to which the Servicer from time to time may delegate all or any part of its servicing obligations under Section 2.09 of the Servicing Agreement.

 

“ Subservicing Agreement ” means any written contract between the Servicer and any Subservicer relating to the servicing or administration of all or any portion of the Receivables.

 

“ Subsidiary ” or “ Subsidiaries ” means, with respect to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the such Person.

 

“ TCA ” means that certain Receivables Transfer and Contribution Agreement of even date herewith by and between Transferor and Borrower, as amended, restated, supplemented or otherwise modified from time to time.

 

“ Termination Event ” has the meaning set forth in Section 6.01.

 

“ Tranche ”:  Tranche A or Tranche B or any additional tranche(s), if any, relating to New Eligible Obligors, as the case may be, comprising the Tranche A Commitment or the Tranche B Commitment or Receivables of such New Eligible Obligors, as the context may require, and the related rights in respect of such Receivables.

 

“ Tranche A Advance ”:  means Advances made with respect to the Tranche A.

 

“ Tranche A Collections ”:  Collections in respect of Tranche A Receivables.

 

“ Tranche A Collection Accounts ”:  as defined in Schedule 1.1B.

 

“ Tranche A Commitment ”:  the Commitment of the Lenders to make a Tranche A Advance.  With respect to any Lender, the Tranche A Commitment is the obligation of such Lender to make a Tranche A Advance hereunder in an aggregate principal amount at any one time outstanding not to exceed the product of such Lender’s Tranche A Commitment Percentage and the Tranche A Commitment for all Lenders.

 

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“ Tranche A Commitment Percentage ”:  as to any Lender, the percentage set forth in Schedule 1.1C hereto (or if, at any time after the initial Borrowing Date, if all of the Lenders’  Tranche A Commitments have been reduced to zero, the percentage which the aggregate amount of such Lender’s Tranche A Advance then outstanding constitutes of the aggregate amount of Lenders’  Tranche A Advances then outstanding).

 

“ Tranche A Eligible Obligor ”:  as defined in Schedule 1.1E.

 

“ Tranche A Receivable ”:  an Assigned Receivable arising from a sale of Goods to the Tranche A Eligible Obligors.

 

“ Tranche B Advance ”:  means Advances made with respect to the Tranche B.

 

“ Tranche B Collections ”:  Collections in respect of Tranche B Receivables.

 

“ Tranche B Collection Accounts ”:  as defined in Schedule 1.1B.

 

“ Tranche B Commitment ”:  the Commitment of the Lenders to make a Tranche B Advance.  With respect to any Lender, the Tranche B Commitment is the obligation of such Lender to make a Tranche B Advance hereunder in an aggregate principal amount at any one time outstanding not to exceed the product of such Lender’s Tranche B Commitment Percentage and the Tranche A Commitment for all Lenders.

 

“ Tranche B Commitment Percentage ”:  as to any Lender, the percentage set forth in Schedule 1.1C hereto (or if, at any time after the initial Borrowing Date, if all of the Lenders’  Tranche B Commitments have been reduced to zero, the percentage which the aggregate amount of such Lender’s Tranche B Advance then outstanding constitutes of the aggregate amount of Lenders’  Tranche B Advances then outstanding).

 

“ Tranche B Eligible Obligor ”:  as defined in Schedule 1.1E.

 

“ Tranche B Receivable ”:  an Assigned Receivable arising from a sale of Goods to the Tranche B Eligible Obligor.

 

“ Transferred Receivable ” means an Account Receivable that was (or was purported to be) purchased by Borrower or contributed to Borrower as a capital contribution under and in accordance with the terms of the TCA.

 

“ Transferee ” means any Assignee or Participant.

 

“ Transferor ” means Sanmina-SCI Corporation.

 

“ Transferor and Servicer Obligations ” means all Indebtedness, liabilities, covenants, duties and other obligations of the Transferor to the Borrower and of the Servicer to the Borrower included or arising from time to time under the TCA or the Servicing Agreement, as the case may be, or any other Program Document, including, without limitation, Section 2.7, Section 5.2(h) and Section 7.1 of the TCA, Section 7.01 of the Servicing Agreement, and such other fees, costs, attorneys’ fees, and indemnification amounts, direct or indirect, absolute or contingent, due or to become due, primary or secondary, or joint or several thereunder.

 

“ Transferor Collateral Disclosure Certificate ” means that certain certificate, delivered by the Transferor to Borrower required by Section 4.1(a) of the TCA and substantially in the form of Exhibit B thereto.

 

“ UCC ” means Article 9 of the Uniform Commercial Code in any applicable jurisdiction.

 

“ Uncollected Value ” means, with respect to a Transferred Receivable, the outstanding principal amount of such Transferred Receivable, after giving effect to any payments which have been made on the principal portion of such Transferred Receivable, less any Deductions or other downward adjustments of the principal amount of such Transferred Receivable reflected in the Books and Records of the Transferor or Servicer; provided that for

 

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the avoidance of doubt, the Uncollected Value of any Transferred Receivable shall not include any unaccrued, accrued, paid, or unpaid interest, or other extraneous costs and expenses relating to such Transferred Receivable.

 

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

 

“ Unmatured Termination Event ” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become a Termination Event.

 

“ Unused Commitment ” means, at the time of determination, the amount, if any, by which the Commitment for a Tranche exceeds the outstanding Advances in such Tranche.

 

Section 1.02.                              Accounting Terms and Determinations . Unless otherwise specified herein, all terms of an accounting character used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared, in accordance with GAAP, as in effect from time to time, applied on a basis consistent (except for changes concurred in by the Public Accountants or otherwise required by a change in GAAP) with the most recent audited consolidated financial statements of the Transferor and its Subsidiaries delivered to the Agent.

 

Section 1.03.                              References . Unless otherwise indicated, references in this Agreement to “articles,” “exhibits,” “schedules,” “sections,” and other subdivisions are references to articles, exhibits, schedules, sections and other subdivisions hereof.

 

Section 1.04.                              Use of Defined Terms . All terms defined in this Agreement shall have the same defined meanings when used in any of the other Program Documents, unless otherwise defined therein or unless the context shall require otherwise. The terms “accounts,” “chattel paper,” “instruments,” “general intangibles,” “inventory,” “equipment,” and “fixtures,” as and when used herein and in the other Program Documents, shall have the same meanings given such terms under the UCC.

 

Section 1.05.                              Terminology . The terms “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph or subdivision. Any pronoun used shall be deemed to cover all genders. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” All references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. All references to any of the Program Documents shall include any and all amendments or modifications thereto and any and all restatements, extensions or renewals thereof. All references to any Person shall mean and include the successors and permitted assigns of such Person. All references to “including” and “include” shall be understood to mean “including, without limitation.” All references to the time of day shall mean the time of day on the day in question in New York, New York, unless otherwise expressly provided in this Agreement. An Unmatured Termination Event or a Termination Event shall be deemed to exist at all times during the period commencing on the date that such Unmatured Termination Event or Termination Event occurs to the date on which such Unmatured Termination Event or Termination Event is waived in writing pursuant to this Agreement or, in the case of an Unmatured Termination Event, is cured within any period of cure expressly provided in this Agreement; and a Termination Event shall “continue,” be “continuing,” or “in existence” until such Termination Event has been waived in writing by the Agent or cured. Whenever the phrase “to the best of Borrower’s knowledge” or words of similar import relating to the knowledge or the awareness of any Borrower are used herein, such phrase shall mean and refer to the actual knowledge of a Senior Officer of Borrower. All references to “acceptable” or “satisfactory” shall, unless expressly provided otherwise, be deemed to mean “reasonably acceptable” or “reasonably satisfactory.” All calculations of money values shall be in Dollars or Euros, all Advances made hereunder shall be funded in Dollars or Euros, and all amounts payable in respect of any of the Obligations shall be paid in Dollars or Euros, in each case as applicable. To the extent any party hereto shall have the right to consent to the taking of any action hereunder, such consent shall not be unreasonably withheld or delayed (unless otherwise specifically indicated).

 

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ARTICLE 2.
ADVANCES

 

Section 2.01.                              Commitment to Make Advances . Each Lender severally agrees, on the terms and subject to the conditions set forth herein, on each Borrowing Date during the Availability Period to make (i) Tranche A Advances to Borrower in an amount not to exceed at any time outstanding the amount of its Tranche A Commitment and in an amount not to exceed at any time outstanding the Obligor Limit for each Tranche A Eligible Obligor and (ii) Tranche B Advances to Borrower in an amount not to exceed at any time outstanding the amount of its Tranche B Commitment and in an amount not to exceed at any time outstanding the Obligor Limit for each Tranche B Eligible Obligor; provided that , immediately after each such Advance is made, the Advances will not exceed the respective Tranche A or Tranche B Borrowing Base, as the case may be.  Lenders shall have no obligation to make any Advance in an amount less than the lesser of (a) $1,000,000 and (b) the relevant Unused Commitment.

 

Section 2.02.                              Method of Borrowing .  No later than 12:00 P.M. (New York time) on any Preparation Date, Borrower may present a Borrowing Notice to the Agent (for the avoidance of doubt it is agreed that such Borrowing Notice may be transmitted to the Agent by e-mail), and the Agent shall promptly notify each Lender thereof.  The Agent will confirm the eligibility of Receivables detailed in the Borrowing Notice not later than 10:00 a.m. on the next succeeding Business Day and shall send to the Servicer and to each Lender an Advance Calculation Notice setting forth a calculation of the related Advance.  Not later than 12:00 p.m. (New York time), on the relevant Borrowing Date, each Lender shall make available to the Agent an amount in immediately available funds in Dollars or Euros, as the case may be, equal to the relevant Advance by credit to the Payment Account of the Agent with the aggregate of the amount of the Advances.  The Agent shall, upon satisfaction of the conditions precedent to such Advances, transfer, in immediately available funds to the accounts designated by the Borrower, an amount equal to the aggregate of the amounts of the Advances made available to Agent by Lenders by no later than 12:00 p.m. (New York time). The failure of any Lender to make any Advance required to be made by it hereunder shall not relieve any other Lender of its obligations hereunder.  The Dollar equivalent of any Receivable denominated in Euros shall be determined for purposes of the Borrowing Notice by the Agent at the spot rate of exchange of Deutsche Bank AG at 11:00 a.m. (New York time) on the date of the Borrowing Notice.  The Euro equivalent of any Obligor Limit or of the Commitments shall be determined on any date of determination by the Agent at the spot rate of exchange of Deutsche Bank AG at 11:00 a.m. (New York time) on such date of determination.

 

Section 2.03.                              Final Payment of Aggregate Advances .  All of the Obligations shall mature, and the principal amount thereof will be due and payable, on the Final Payment Date, unless the Obligations will be due and payable prior thereto by reason of the provisions of this Agreement.

 

Section 2.04.                              Interest Rate .

 

(a)                                   The Aggregate Advances outstanding from time to time shall bear interest until paid at a rate of interest per annum equal to the applicable Interest Rate.  Interest shall be calculated on an assumed year of 360 days for the actual number of days elapsed. Accrued but unpaid interest shall be due and payable, in arrears, on each Interest Settlement Date other than the initial Settlement Date. In no event may the applicable Interest Rate, or the amount of interest paid on the Aggregate Advances, exceed the maximum rate of interest permitted by law.  Accrued Commitment Fee shall be invoiced in arrears by the Agent on the third Business Day of each fiscal quarter of Sanmina-SCI Corporation.

 

(b)                                  After the occurrence and during the continuance of a Termination Event, the Aggregate Advances shall bear interest at the Default Rate from the date of such Termination Event, which date shall be deemed to be the date on which such Termination Event occurred and not the date such Termination Event is discovered or otherwise made known to any Person.

 

(c)                                   All funds received by the Agent in payment of interest in respect of the Tranche A Advances shall be applied hereunder to pay interest in respect of the Tranche A Advances.  All funds received by the Agent in payment of interest in respect of the Tranche B Advances shall be applied hereunder to pay interest in respect of the Tranche B Advances.  To the extent funds have been deposited in the Payment Account by the

 

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