Exhibit
10.1


 


“Confidential
Treatment Requested.  Confidential
portions of this document have been omitted and have been separately filed with
the Commission.  Confidential treatment
has been requested with respect to the omitted portions.”


 


 


 


Committed Account Receivable Purchase
Agreement


 


 


Dated April 1, 2005


 


 


Sanmina-SCI UK Ltd


(Supplier)


 


Citibank International Plc


(Bank)


 





















 


Contents


 


	
  1

  	
  Definitions and
  Interpretation

  	
  2

  
	
   

  	
   

  	
   

  
	
  2

  	
  The
  Facility

  	
  4

  
	
   

  	
   

  	
   

  
	
  3

  	
  Conditions Precedent

  	
  4

  
	
   

  	
   

  	
   

  
	
  4

  	
  Purchase and
  Sale of Account Receivable

  	
  4

  
	
   

  	
   

  	
   

  
	
  5

  	
  Representations and
  Warranties

  	
  5

  
	
   

  	
   

  	
   

  
	
  6

  	
  Undertakings

  	
  5

  
	
   

  	
   

  	
   

  
	
  7

  	
  Buy back of Account
  Receivable

  	
  7

  
	
   

  	
   

  	
   

  
	
  8

  	
  Indemnities

  	
  8

  
	
   

  	
   

  	
   

  
	
  9

  	
  Termination
  Events

  	
  8

  
	
   

  	
   

  	
   

  
	
  10

  	
  General

  	
  9

  
	
   

  	
   

  	
   

  
	
  11

  	
  Termination

  	
  10

  
	
   

  	
   

  	
   

  
	
  12

  	
  Commitment
  Fee

  	
  10

  
	
   

  	
   

  	
   

  
	
  13

  	
  Notices

  	
  10

  
	
   

  	
   

  	
   

  
	
  14

  	
  Assignments

  	
  11

  
	
   

  	
   

  	
   

  
	
  15

  	
  Governing
  Law

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1
  – Supplier Pricing Schedule

  	
  13

  
	
   

  	
   

  	
   

  
	
  Schedule 2 – Purchase
  Pack

  	
  15

  
	
   

  	
   

  	
   

  
	
  Schedule
  3 – Condition Precedent Documents

  	
  17

  



 


1





















 


Committed Account Receivable Purchase
Agreement made on April 1, 2005


 


Between


 


(1)                                 Sanmina-SCI UK Ltd (the
Supplier) of 9th Floor, Northwest Wing,
Bush House, Aldwych, London, WC2B 4EZ with registered number 04370464; and


 


(2)                                 Citibank International Plc (the Bank) acting
through its office at Citigroup Centre, Canada Square, Canary Wharf, London E14
5LB.


 


Whereas


 


A                                     From time to time the Supplier enters into commercial trade
transactions with IBM Singapore Pte Ltd of 9 Changi Business Park Central 1,
The IBM Place, Singapore 486048  (the Buyer) for the sale of goods and/or
services, resulting in Account Receivables (as hereinafter defined) owed by the
Buyer to the Supplier; and


 


B                                       The Supplier wishes to assign to the Bank from time to time, and the
Bank shall have assigned to it, such Account Receivables subject to the terms
and conditions set forth in this Agreement.


 


Now, therefore, the Supplier and the
Bank agree as follows:


 


It is agreed:


 


1                                        Definitions and Interpretation


 


Account
Receivable
means any indebtedness of the Buyer to the Supplier, evidenced by an invoice,
which indebtedness shall include the right to receive payment of interest or
finance charges or other liabilities of the Buyer under the relevant contract
to which such invoice relates.


 


Alternative Sanmina Agreement means the committed account
receivable purchase agreement entered into between the Bank and Sanmina-SCI
Magyarorszag Elektronikai Gyarto Kft and dated on or about the date of this
Agreement;


 


Bankruptcy Event means, in relation to the Buyer, that any of the following has
occurred:


 


(a)                                 any formal corporate action, legal proceedings or other procedure is
taken in relation to (i) the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of the Buyer
other than a solvent liquidation or reorganisation of the Buyer; (ii) a
composition, assignment or arrangement with the creditors of the Buyer as a
whole; (iii) the appointment of a liquidator (other than in respect of a
solvent liquidation of the Buyer), receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of the Buyer
or any of its assets; or


 


(b)                                any procedure analogous to any of the foregoing is taken in any
jurisdiction.


 


Business
Day means
a day on which banks are open for business in London and the principal
financial centre of each relevant currency.


 


Charge
Over Account means the charge over Collection Account granted by the Supplier in
favour of the Bank and dated on or about the date of this Agreement;


 


2





















 


Collection
Account means
the interest bearing (at the overnight rates) account of the Supplier held at Citibank
NA with account number [***] and which has been charged by way of first fixed
charge in favour of the Bank;


 


Commercial
Contract means
the contract or contracts entered into between the Supplier and the Buyer in
respect of commercial trade transactions, the Account Receivables of which have
been or will be purchased by the Bank pursuant to this Agreement;


 


Commitment
Fee means the commitment fee payable in
accordance with clause 12;


 


Cut
Off Date
means in respect of any Account Receivable purchased by the Bank which has not
been paid in full on the Maturity Date for such Account Receivable the earlier
of:


 


(a)                                 the date falling 28 days after
such Maturity Date (or if such a day is not a Business Day the next following
Business Day);  or


 


(b)                                the date falling on which the
Buyer makes a payment in full of such Account Receivable.


 


Default
means


 


(a)                                  a Termination Event; or


 


(b)                                 any event or circumstance which
would (with the expiry of a grace period, the giving of notice, the
satisfaction of any condition, the making of any determination or any
combination of any of them) become a Termination Event;


 


Discount
Rate means
the rate used by the Bank from time to time to calculate the Purchase Price of
any Account Receivable.


 


Material
Adverse Change means any event or circumstance which (when taken alone or together with
any previous event or circumstance) has, or (in the opinion of the Bank formed
in good faith) could reasonably be expected to have, a material adverse change
on all or any of:


 


(a)                                  the assets, business or financial
condition of the Supplier or the Buyer;


 


(b)                                 the ability of the Supplier and
the Buyer to perform their obligations under this Agreement and the Commercial
Contract;


 


(c)                                  the validity or enforceability of
this Agreement, the Commercial Contract or the Purchase Pack or the rights of
the Bank under any of them.


 


Maturity
Date
means, in respect of an Account Receivable, the date on which such Account
Receivable becomes due and payable by the Buyer as specified in the Purchase
Pack


 


Pricing
Schedule shall have the meaning set out in Clause 4.2.


 


Purchase
Date means in relation to any Account
Receivable the date when the Bank is due to pay the Purchase Price in respect
of that Account Receivable.


 


Proposed
Purchase Date means in relation to any Account Receivable the date specified as “Purchase
Date” in any Purchase Pack in relation to such Account Receivable.


 


Purchase
Pack
means, in relation to each Account Receivable, a document in the form set out
in Schedule 2, duly executed by the parties thereto.


 


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Purchase Price
means in relation to any Account Receivable to be purchased by the Bank at any
time, the purchase price thereof as calculated in accordance with the Pricing Schedule in
force at the time of the purchase of such Account Receivable by the Bank.


 


Saleable Account Receivable means an Account Receivable the subject of a Purchase Pack whose
Maturity Date falls at least [***] after the Proposed Purchase Date in respect
of such Account Receivable.


 


Termination Date means
the date falling 12 months from the date of this Agreement.


 


Termination Event means any event or circumstance described in
Clause 9 (Termination Events);


 


Total
Amount means
[***] minus an amount equal to the Purchase Amount of all Account Receivables
purchased by the Bank pursuant to the Alternative Sanmina Agreement (as each
such term is defined in the Alternative Sanmina Agreement).


 


Unused
Purchasing Amount means the Total Amount minus an amount equal to the Purchase Amount of
all Account Receivables purchased by the Bank but not
yet paid by the Buyer.


 


2                                        The Facility


 


Subject to the terms and conditions of this Agreement, the Supplier may
from time to time offer to assign and sell Account Receivables to the Bank by
submitting a Purchase Pack to the Bank and the Bank shall acquire such Account
Receivables.


 


3                                        Conditions Precedent


 


3.1      Initial conditions precedent


 


The Supplier may not deliver a Purchase Pack to the Bank unless the
Bank has received all of the documents and other evidence listed in Schedule 3
(Conditions Precedent) in form
and substance satisfactory to the Bank. 
The Bank shall notify the Supplier promptly upon being so satisfied.


 


3.2      Further conditions precedent


 


The Bank will
only be obliged to comply with Clause 4 (Purchase
and sale of Account Receivable) if on the date of the submission of
the Purchase Pack and on the Proposed Purchase Date for the relevant Account
Receivables:


 


(a)                                 no
Default is continuing or would result from the proposed purchase of the Account
Receivables;


 


(b)                                the
representations to be made by the Supplier and repeated under Clause 5 (Representations and Warranties) are true
in all material respects; and


 


(c)                                 each
of the Account Receivables the subject of the relevant Purchase Pack is a
Saleable Account Receivable.


 


4                                        Purchase and Sale of Account Receivable


 


4.1      The Bank shall
(subject to the terms of the Pricing Schedule from time to time in force)
purchase and the Supplier shall, as legal and beneficial owner, sell such Account
Receivable and the Bank shall pay the Purchase Price in respect of such Account
Receivable to the Supplier into the following account:- [***] or to such other
account or accounts with any such bank or banks as the Supplier may notify the
Bank in writing from time to time, on the date specified in the Purchase Pack
as the Proposed Purchase Date for such Account Receivable.


 


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4.2      The Bank will
provide to the Supplier a pricing schedule from time to time that sets out
the method used to calculate Purchase Prices and other fees and charges (the Pricing Schedule).  The Bank’s
agreement to purchase Account Receivable hereunder shall be subject to the
terms of the Pricing Schedule.  Each
Pricing Schedule shall be valid for 12 months from the effective date
specified therein.  The initial Pricing Schedule is
set forth as Schedule 1 hereto; provided that, in the event that there is
an adverse or beneficial change to the credit rating of International Business
Machines Corporation, the ultimate parent of the Buyer, as determined by either
Standard & Poors or Moody’s, the Bank may at any time, upon 30 days
written notice to the Supplier, amend the terms of the Pricing Schedule,
provided that any such change shall not affect the Purchase Price applicable to
purchases of Account Receivable whose Proposed Purchase Date falls within such
notice period and further provided that in the event of any such change to the
Pricing Schedule the Supplier may at any time, upon 30 days written notice
to the Bank, terminate this Agreement.


 


5                                        Representations and Warranties


 


The Supplier hereby makes the following representations and warranties
as of the date hereof, as of each day a Purchase Pack is delivered hereunder
and as of each proposed date for the purchase of an Account Receivable by the
Bank as if made on each such date with reference to the facts and circumstances
then existing (it being understood that representations and warranties with
respect to Account Receivable are made only with respect to the Account
Receivable that are the subject of the applicable Purchase Pack):


 


(a)                                 it is
duly organised and validly existing under the laws of England and Wales and
possesses the capacity to sue or to be sued in its own name and the power to
own its property and assets and carry on its business as it is now being
conducted and it has taken all necessary steps to authorise the execution of
this Agreement and each Purchase Pack and the transactions contemplated
thereby;


 


(b)                                the
contract relating to each Account Receivable assigned to the Bank is in full
force and effect and legal, valid and binding on the Buyer and the Supplier is
not in breach thereof or in default thereunder that would result in the Buyer
being entitled to exercise any set off rights or counterclaim or to withhold,
extend or delay payment of any such Account Receivable;


 


(c)                                 this
Agreement and each Purchase Pack constitute or will, when executed, constitute
its legal, valid and binding obligations enforceable in accordance with its
terms and each Purchase Pack when duly executed is effective to assign the
Account Receivables referred to therein to the Bank;


 


(d)                                each
Account Receivable assigned to the Bank is freely assignable and constitutes
amounts due and payable by the Buyer on the relevant Maturity Date and each
Account Receivable assigned to the Bank pursuant to a Purchase Pack constitutes
an unconditional, legal, valid and binding obligation of the Buyer and has not,
to any extent, been prepaid;


 


(e)                                 immediately
prior to the execution of each Purchase Pack by the Supplier, the Supplier was
the legal and beneficial owner of each Account Receivable assigned in such
Purchase Pack and it has not assigned, transferred or otherwise disposed of, or
created any encumbrance or security interest over any such Account Receivable,
other than to the Bank; and


 


(f)                                   it
is not aware of any reason why the Bank should not receive, the amount due in
respect of any Account Receivable assigned to the Bank in each Purchase Pack.


 


6                                        Undertakings


 


6.1      The Supplier
hereby agrees and undertakes:


 


(a)                                 not
to create or permit to subsist any encumbrance over any of the Supplier’s
rights, title and interest in and to any Account Receivable the subject of a
Purchase Pack and not to assign, transfer or otherwise deal with any of its
rights in respect of any Account Receivable


 


5





















 


the subject of a Purchase Pack;


 


(b)                                in
relation to the Commercial Contract:


 


(i)            to use reasonable and
usual care, skill and forethought in the performance of its obligations under
the Commercial Contract;


 


(ii)           to take all practical
measures to prevent or minimise loss arising in connection with the Commercial
Contract;


 


(iii)          to promptly notify the Bank
upon becoming aware of any material breach of any Commercial Contract or of any
event materially affecting the performance of the Commercial Contract;


 


(c)                                 forthwith
to pay any amount received by it in respect of an Account Receivable to the
Bank and pending such payment hold that amount on trust for the Bank;


 


(d)                                to
assist the Bank in every way to recover each Account Receivable assigned to the
Bank and/or to assist the Bank to perfect the assignment to the Bank of any
Account Receivable in respect of which the Bank has made payment to the
Supplier;


 


(e)                                 (i) to
maintain and implement administrative and operating procedures and to keep and
maintain all documents, books, records and other information reasonably
necessary or advisable for the collection of all Account Receivable purchased
by the Bank or in order to comply in all material respects with applicable laws
and regulations; (ii) to retain all such records and information relating
thereto so long as any Account Receivable purchased by the Bank remains
outstanding; and (iii) to hand copies of such records and documentation to
the Bank promptly on request; and


 


(f)                                   not
to amend (other than by way of extension on substantially the same terms),
cancel or terminate any contract to which any Account Receivable assigned to
the Bank relates and not to, or purport to, terminate, revoke or vary any term
or condition of or extend the Maturity Date of any Account Receivable assigned
to the Bank and to refrain from any action which might in any way prejudice or
limit the Bank’s rights under or in respect of any Account Receivable assigned
to the Bank;


 


(g)                                to act
as agent for the Bank in the collection of the sums owing under the Account
Receivable and to procure that payments from the Buyer in respect of Account
Receivable are made into the Collection Account.


 


6.2      The Supplier
hereby irrevocably authorizes the Bank, in its sole discretion, to file any
document or financing statements, and any amendments thereto, in relation to
all or any Account Receivable purchased by the Bank, without the signature of
Supplier, to the extent permitted by applicable law.  If not so permitted by applicable law, or in
such other circumstances as the Bank may reasonably request, the Supplier will execute and file any such document, financing statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or appropriate to perfect and maintain the perfection of the Bank’s ownership
interest in such Account Receivable.


 


6.3      The Supplier
and the Bank hereby acknowledge and agree that:


 


(a)          irrespective
of the assignment of each Account Receivable to the Bank, the Supplier remains
liable to perform all obligations under the Commercial Contract and the Bank
has assumed no liability to do so;


 


(b)         the Bank
is and shall be irrevocably and unconditionally authorised to operate the
Collection Account as it sees fit and in accordance with the terms of the
Charge Over Account, subject to the terms of Clause 6.3(c);


 


(c)          no
withdrawal may be made by the Supplier from the Collection Account.  If the Supplier provides the Bank with an
analysis of a remittance advice from the Buyer (as may be supported by an
allocation prepared by the Supplier showing the breakdown in such remittance
advice between sums in relation to Account Receivables and sums in


 


6





















 


relation
to other debts owed by the Buyer to the Supplier),  the Bank shall, upon reviewing and being
satisfied with such analysis of the remittance advice and allocation, withdraw
from the Collection Account for its own benefit such sums paid by the Buyer by
way of discharge of the Account Receivables and undertakes to immediately
thereafter and on the same day release to an account designated by the Supplier
from time to time all monies from the Collection Account, which do not relate
to the Account Receivables, as evidenced by such agreed analysis of the remittance
advice and allocation; and


 


(d)         interest
accruing on credit balances in the Collection Account shall be for the benefit
of the Supplier.


 


7                                        Buy back of Account Receivable


 


7.1                              Failure to Pay


 


7.1.1     Notwithstanding
the terms of Clause 4 of this Agreement (Purchase and Sale of Account
Receivable) the Supplier and the Bank agree that, in the event that the Buyer
fails to pay any Account Receivable by the Cut Off Date for such Account
Receivable, provided that no Bankruptcy Event has occurred and is continuing,
the Bank shall be entitled to require the Supplier to purchase such Account
Receivable from the Bank.  The provisions
of Clause 7.2 shall apply during the period from the Maturity Date to the Cut
Off Date for each such Account Receivable.


 


7.2                              Treatment of Overdue Account Receivable


 


Provided that no Bankruptcy Event has occurred and is
continuing:


 


7.2.1     If the
Buyer, for any reason whatsoever fails to pay on the Maturity Date for any
Account Receivable purchased by the Bank, in whole or in part, the amount of
such Account Receivable, the Supplier shall pay charges (Discount
Rate Charge) at the Discount Rate applicable pursuant to the most
recent Pricing Schedule on the unpaid amount of any such Account
Receivable (as notified by the Bank to the Supplier), subject as provided in
this Clause. Such Discount Rate Charges shall:


 


(i)            accrue from day to day
during the period from (and including) such Maturity Date to (but excluding)
the Cut Off Date in respect of such unpaid Account Receivable; and


 


(ii)           be calculated as if the
unpaid amount of such Account Receivable was repaid on the earlier of (i) the
date of actual payment and (ii) the relevant Cut Off Date.


 


Discount Rate Charge in relation to any unpaid Account
Receivable shall only accrue up to the Cut Off Date for such Account Receivable
and it shall only be payable by the Supplier on such Cut Off Date.


 


7.2.2     at any time
on or after the Cut Off Date and to the extent that any Account Receivable
remains unpaid, the Bank may sell, as legal and beneficial owner, to the
Supplier and the Supplier shall purchase such Account Receivable and the Bank
shall (at the cost and expense of the Supplier) execute such documents as may
be necessary to re-assign any rights the Bank may have in relation to such
Account Receivable to the Supplier and the Supplier shall pay to the Bank in
respect of such Account Receivable an amount equal to and in the same currency
as the unpaid amount of such Account Receivable together with the Discount Rate
Charge calculated in accordance with Clause 7.2.1. Such Cut Off Date shall be
notified by the Bank to the Supplier, but failure to notify shall not affect
the payment obligations of the Supplier hereunder.


 


7.3                              Default Interest


 


7.3.1     In the event that any amount
payable by the Supplier pursuant to Clause 7.2 or this Clause 7.3 remains
unpaid on the date on which it becomes due and payable the Bank shall charge
and the Supplier shall pay interest from time to time on any such unpaid amount
due from the Supplier to the Bank during the period from (and including) the
due date thereof to ( but excluding) the date payment is received by the Bank
in full, at a rate equal to the aggregate of (i) the Discount Rate


 


7





















 


applicable pursuant to the most recent
Pricing Schedule (calculated by reference to such calculation periods
ending on or before the date payment is made in full as the Bank may select and
notify to the Supplier from time to time ) and (ii) [***]% per annum


 


7.3.2     Such interest calculated pursuant
to Clause 7.3.1 shall be payable by the Supplier at the end of each calculation
period selected and notified by the Bank (as referred to above) by reference to
which interest is calculated and shall be billed to the Supplier and paid
separately from any other amounts owing under this Agreement.


 


8                                        Indemnities


 


8.1      The Supplier
shall pay to the Bank on demand on a full indemnity basis:


 


(a)                                 all
reasonable costs, charges and expenses including legal costs, in relation to
the enforcement of this Agreement and any Purchase Pack;


 


(b)                                all
stamp, documentary, registration or other like duties or taxes (other than
taxes based on Bank’s income), including withholding taxes and any penalties,
additions, fines, surcharges or interest relating thereto, or any notarial fees
which are imposed or chargeable on or in connection with this Agreement or any
Purchase Pack or the purchase by the Bank of any Account Receivable.


 


8.2      The Supplier
agrees to indemnify the Bank on demand against any loss or expense (including,
but not limited to, any loss of the margin or any other loss or expense
sustained or incurred by the Bank in liquidating or employing deposits acquired
or contracted for to effect its acquisition of an Account Receivable) which the
Bank has sustained or incurred as a consequence of a purchase of an Account
Receivable not being made following the service of a Purchase Pack for any reason
whatsoever.


 


9                                        Termination Events


 


9.1      Each of these
events or circumstances is a Termination Event:


 


(a)                                 Non-payment – the Buyer
does not pay on the due date any amount payable pursuant to the Commercial
Contract at the place and in the currency in which it is expressed to be
payable unless:


 


(i)            its failure to pay is
caused by administrative or technical error; and


 


(ii)           payment is made within
twenty eight days of its due date; or


 


(iii)          the Supplier repurchases the
relevant Account Receivable,


 


(b)                                Other obligations – the
Buyer or the Supplier does not comply with any material provision of the
Commercial Contract (other than those referred to in sub clause (a) (Non-payment) and such failure (if capable
of remedy) is not remedied within thirty days.


 


(c)                                 Misrepresentation – any
representation or statement made or deemed to be made by the Supplier in this
Agreement is or proves to have been incorrect or misleading in a material
respect in the context of this Agreement when made or deemed to be made.


 


(d)                                Insolvency


 


(i)            The Supplier or the Buyer
is unable or admits inability to pay its debts as they fall due, suspends
making payment on any of its debts or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.


 


(ii)           A moratorium is declared in
respect of any financial indebtedness of the Supplier or the Buyer.


 


8





















 


(e)                                 Insolvency proceedings – any
corporate action, legal proceedings or other procedure is taken in relation to:


 


(i)            the suspension of
payments, a moratorium of any indebtedness, winding-up, dissolution,
administration, examinership or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of the Supplier or the Buyer;


 


(ii)           a composition, assignment
or arrangement with the creditors as a whole of either the Supplier or the
Buyer;


 


(iii)          the appointment of a
liquidator, receiver, administrator, administrative receiver, examiner,
compulsory manager or other similar officer in respect of the Supplier or the
Buyer or any its assets; or


 


(iv)          enforcement of any
encumbrance over any of the Supplier or the Buyer assets,


 


or any analogous procedure or step is taken
in any jurisdiction.


 


(f)                                   Material
Adverse Change – the occurrence of a Material
Adverse Change.


 


9.2                                If a Termination Event occurs and
is continuing unremedied or unwaived for 30 days the Bank may, by notice to the
Supplier, terminate the operation of Clause 2 (The
Facility) or suspend the operation of that clause for such period as
the Bank may specify; provided that for the avoidance of doubt the Bank shall
be obliged to acquire all Account Receivable with a Purchase Date prior to the
receipt of such notice by the Supplier.


 


10                                 General


 


10.1     Any amounts which but for this Clause 10.1 would
fall due for payment by the Bank or the Supplier on a day other than a Business
Day shall be payable on the succeeding Business Day and the Purchase Price (or
as the case may be, the amount payable by the Supplier) shall, where necessary,
be adjusted accordingly.


 


10.2     The Supplier agrees and acknowledges that it has
taken independent legal and accounting advice in relation to the accounting
treatment to be applied to the transactions contemplated herein and the
Purchase Pack.  It is agreed that the
Supplier has not relied on any representation of the Bank in this regard.


 


10.3     The Bank shall be entitled to rely on any
communication sent by the Supplier irrespective of any error or fraud contained
in the communication or the identity of the individual who sent the
communication, and shall not be liable for any action taken or omitted in
reliance on any notice, direction, consent, certificate, affidavit, statement,
designation or other paper or document reasonably believed by it to be genuine
and to have been duly and properly signed and presented to it by the Supplier.


 


10.4     In no event shall the Bank be liable for any loss of
profits, business, data or information or for any incidental, indirect, special
or consequential damages whether arising from negligence, breach of contract or
otherwise, even if informed of the possibility of those losses or damages.  The Bank shall not be liable for any losses
arising out of or relating to any of its actions or omissions to act hereunder,
except to the extent that any such losses are caused by the Bank’s wilful
misconduct, fraud or gross negligence.


 


10.5     This Agreement may be executed in any number of
counterparts (including by facsimile transmission) and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.


 


10.6     The Supplier shall remain liable to perform all
obligations assumed by it under any Commercial Contract and the Bank shall be
under no obligation of any kind whatsoever under such contract or be under any
liability whatsoever in the event of any failure by the Supplier to perform its
obligations under any such contract.


 


9





















 


10.7     If there is any conflict between the
provisions of this Agreement and the provisions of the Target Balancing
Agreement entered into between, amongst others, Citibank NA and Sanmina-SCI
(UK) Limited and Sanmina-SCI Magyarorszag Elektronikai Gyarto Kft dated on or
around the date of this Agreement, the provisions of this Agreement shall
prevail.”


 


11                                 Termination


 


11.1     On the
Termination Date the Bank shall have no further obligation to purchase Account
Receivables from the Supplier,


 


12                                 Commitment Fee


 


12.1     The Supplier shall pay to the Bank a Commitment Fee
of [***] basis points per annum on the Unused Purchasing Amount for the period
starting on the date of this Agreement and ending on the Termination Date.


 


12.2     The Supplier
shall pay the accrued Commitment Fee by the third Business Day of each calendar
quarter after receipt of invoice from the Bank.


 


13                                 Notices


 


13.1     All notices, requests and demands given or made
under this Agreement shall be given or made in writing and unless otherwise
stated shall be made by telefax or letter using the address as specified below
or such other address as the party may designate to the other party:


 


	
  13.1.1

  	
  To the Supplier:

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Treasury Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  7 West Nile Street, Glasgow, G1 2PRFacsimile: 44 141 245 2882

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:-

  	
   

  	
  Sanmina-SCI Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
  Corporate Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
  2700 North First Street, San Jose, CA 95134

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  	
  (408) 964 3644

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1.2 To the Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Trade Services

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  4th Floor. 68 Molesworth Street, Lewisham, London, SE13 7EU

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
  0207 500 8063

  
	
   

  	
   

  	
   

  
	
   

  	
  with a copy to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Trade Finance/Dror Polak

  
	
   

  	
   

  	
   

  



 


10





















 


	
   

  	
  Address:

  	
  Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB.

  
	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
  44 207 500 2624

  



 


13.2                          All notices or other
communication shall be deemed to have been received:


 


(i)            if sent by fax with a
confirmed receipt of transmission from the receiving machine, on the day on
which transmitted;


 


(ii)           in the case of a notice
given by hand, on the day of actual delivery;


 


(iii)          if sent by post, 5 Business
Days after being deposited in the post with first class prepaid postage,


 


provided that a notice given in accordance
with the above but received on a day which is not a Business Day or after
normal business hours in the place of receipt shall be deemed to have been
received on the next Business Day.


 


14                                 Assignments


 


The Bank may at any time assign, transfer or sub participate (including
by way of novation) any of its rights hereunder or under any Purchase Pack to
another bank or financial institution. The Supplier may not assign or otherwise
transfer its rights, benefits or obligations or any of them hereunder.


 


15                                 Governing Law


 


15.1     This Agreement shall be governed by and construed in
accordance with English law.


 


15.2     The Supplier irrevocably agrees for the exclusive
benefit of the Bank that the courts of England shall have jurisdiction to hear
and determine any suit, action or proceeding and to settle any dispute which
may arise out of or in connection with this Agreement and for such purposes
irrevocably submits to the jurisdiction of such courts.  The Supplier irrevocably waives any objection
which it may have now or in the future to the courts of England being nominated
for the purpose of this Clause on the ground of venue or otherwise and agrees
not to claim that any such court is not a convenient or appropriate forum.


 


As
witness the hands of the authorised
signatories of the parties hereto the day and year first above written.


 


	
  The Supplier

  	
   

  
	
   

  	
   

  
	
  Executed for and

  	
  )

  
	
  on behalf of
  Sanmina-SCI UK Ltd

  	
  )

  
	
   

  	
  )

  
	
  by /s/
  STEVEN JACKMAN and /s/ SHELLY BYERS)

  	
  )

  



 


11





















 


The Bank


 


	
  Executed for and on behalf of

  	
  )

  
	
  Citibank
  International Plc

  	
  )

  
	
  by /s/ DROR POLACK and

  	
  )

  



 


12





















 


Schedule 1 – Supplier Pricing Schedule


 


 


Supplier Name: Sanmina-SCI UK Ltd


 


	
  Control

  	
   

  	
  Number:

  



(to be completed by the Bank)


 


 


A.                                   Licensing Fees and Charges


 


Unused Purchasing Amount is [***]% per
annum


 


B.                                   Fees and Charges in connection with purchase of Receivables


 


Discount Charge for each Account
Receivable means the Payment Amount of such Account Receivable multiplied by
the Discount Rate;


 


Discount
Charge = Payment Amount  X  Discount Rate


 


Where:


 


Discount Rate means the
rate per cent per annum calculated as the sum of LIBOR for the Discount Period
and the Spread, multiplied by the Discount Period and divided by 360:


 


Discount
Rate =(LIBOR + Spread)  X  (Discount Period / 360)


 


Each
Discount Rate is identified on the Purchase Date for each respective Purchase
Pack and will apply to any Account Receivable from that respective Purchase
Pack for the period from the Purchase Date until paid by Buyer or repurchased
by Supplier.


 


Discount Period means the number of
days in the period starting from (and including) the Purchase Date for any
Account Receivable to (but excluding) the Maturity Date of such Account
Receivable.


 


LIBOR means
:


 


(a)                                   the applicable Screen Rate; or


 


(b)                                  (if no Screen Rate is available) the rate at which the Bank was
offering deposits for the relevant period in an amount comparable to the
Account Receivable in the relevant currency to leading banks in the London
interbank market.


 


Payment Amount in respect of any
Account Receivable means the face amount of such Account Receivable (including
VAT) due from a Buyer on the Maturity Date of such Account Receivable.


 


Purchase Price means, in respect of
any Account Receivable, the Payment Amount less the Discount Charge applicable
to such Account Receivable.


 


Screen
Rate means in relation to LIBOR the interest
rate for Dollar deposits for the relevant period which is displayed on the
screen displays designated “LIBOR01” and “ICAP01” of the Reuters service (or
such other page which may replace them for the purpose of displaying
British Bankers’ Association Interest Settlement Rates for Dollar deposits in
the London interbank market) at or about 11.00am London time on the applicable
day;and


 


Spread is equal to [***]% per annum.


 


Transaction Fee of $[***] will be
charged for each purchase of Account Receivables offered in a Purchase Package


 


13





















 


C.                                   Effective Date:


 


(1)                                 Effective Date is the date of the Agreement.


 


(2)           Subject
to Clause 4.2, the above pricing is valid from the Effective Date until (and
including) the first anniversary of the Effective Date.


 


14





















 


Schedule 2 – Purchase Pack


 


[Has
to be adapted for local law and covered by local legal opinion]


 


 


To:                             Citibank International Plc


 


and


 


< > (“Buyer”)


 


Date:


 


Dear Sirs,


 


1.                                      [**                    ] (the Supplier) as
legal and beneficial owner, hereby assigns absolutely with full title guarantee
to Citibank International Plc (the Bank)
with effect from **                    (this date must fall at least [•] Business Days after the date of the Purchase Pack) [the “Purchase Date”] all its right, title and interest in and to the amounts payable
to the Supplier by **                     (Buyer)
in relation to and evidenced by the following Account Receivables:


 


	
  Invoice

  Number

  	
   

  	
  Invoice
  Date

  	
   

  	
  Amount
  of

  Invoice

  	
   

  	
  Maturity

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  



 


2.                                      Assignment


 


This
Assignment shall have the effect of assigning to the Bank all of our right,
title, benefit and interest in and to all monies due to us from time to time in
relation to each Account Receivable referred to above including, in each case,
all rights to demand, receive or dispose of any such monies or claims, all
rights to sue for or in relation thereto and all rights of action against any
person in connection therewith or otherwise to enforce the same.


 


3.                                      Representations


 


3.1      The
Supplier confirms that all representations and warranties set out in the
agreement between the Supplier and the Bank dated **                  as
amended from time to time (the Agreement)
are correct as at the date hereof and as of the Proposed Purchase Date in
respect of each Account Receivable referred to above and the circumstances
existing on the date hereof now and as of the Proposed Purchase Date.


 


3.2      The
Supplier hereby represents and warrants that a copy of this Purchase Pack has
been delivered to the Buyer and (a) the Buyer has been notified of the
assignment by the Supplier to the Bank of the Account Receivables referred to
in this Purchase Pack and (b) the Buyer has been instructed to pay all
sums becoming due and payable under or by virtue of each Account Receivable to
the Collection Account held at the Bank.


 


4.                                      Notice


 


4.1      The Supplier hereby notifies the Buyer of the assignment set out
above.  As assignee of each Account
Receivable referred to above, the Bank is therefore entitled to collect or
recover for its own account the sums due by the Buyer in respect of such
Account Receivable and each of the Supplier and the Bank hereby irrevocably
instruct the Buyer to pay all sums becoming due and payable under or by virtue
of the above Account Receivable to [Account Details] (the “Collection Account”)
held at the Citibank N.A.


 


15





















 


6                                         No Implied Duties


 


The Bank shall
be obliged to perform such duties and only such duties as are specifically set
forth herein, and no implied duties or responsibilities shall be read or
implied into this agreement. 
Notwithstanding any other provision elsewhere contained, the Bank does
not assume any obligation or relationship of agency or trust hereunder for, or
with, the Supplier, the Buyer, or any other person.


 


7                                         Counterparts


 


This agreement may be executed in any number of counterparts (including
by facsimile transmission) and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.


 


8.                                      Governing law and jurisdiction


 


9.1      This agreement shall be
governed by and shall be construed in accordance with English law.


 


8.2      The Supplier irrevocably agrees for the exclusive benefit of the
Bank that the courts of England shall have jurisdiction to hear and determine
any suit, action or proceeding and to settle any dispute which may arise out of
or in connection with this agreement and for such purposes irrevocably submits
to the jurisdiction of such courts.  The
Supplier irrevocably waive any objection which it may have now or in the future
to the courts of England being nominated for the purpose of this Clause on the
ground of venue or otherwise and agrees not to claim that any such court is not
a convenient or appropriate forum.


 


Dated:


 


	
  Signed for
  and on behalf of

  	
   

  	
  Sanmina SCI-UK Ltd

  
	
   

  	
  [

  	
   

  



 


16





















 


Schedule 3 – Condition
Precedent Documents


 


(A)                             For the Supplier


 


(a)           a copy of its
constitutional documents


 


(b)           a certificate of an
authorised signatory certifying that each copy document relating to it
specified in this Schedule is correct, complete and in full force and
effect as at a date no earlier than the date of this Agreement.


 


(c)           Certified copies of
resolutions of the Supplier’s board of directors authorising the acceptance and
execution of this agreement and each Purchase Pack and authorising a person or
persons to sign this agreement and each Purchase Pack from time to time.


 


(B)                               Other


 


(a)           An original first fixed
charge over the Collection Account granted by the Supplier in favour of the
Bank.


 


(b)           An original guaranty
granted by Sanmina-SCI Corporation in favour of the Bank.


 


(c)           Account opening mandate for
the Collection Account.


 


(d)           Such other documents,
opinions, consents, licences, assurance or evidence as the Bank considers
relevant and may request.


 


17