EXHIBIT 10.2


 


“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 Magyarorszag Elektronikai
Gyarto Kft


(Supplier)


 


Citibank International Plc


(Bank)


 





















 


	
  Contents

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1

  	
  Definitions and
  Interpretation

  	
  1

  
	
   

  	
   

  	
   

  
	
  2

  	
  The Facility

  	
  3

  
	
   

  	
   

  	
   

  
	
  3

  	
  Conditions Precedent

  	
  3

  
	
   

  	
   

  	
   

  
	
  4

  	
  Purchase and
  Sale of Account Receivable

  	
  3

  
	
   

  	
   

  	
   

  
	
  5

  	
  Representations and
  Warranties

  	
  4

  
	
   

  	
   

  	
   

  
	
  6

  	
  Undertakings

  	
  4

  
	
   

  	
   

  	
   

  
	
  7

  	
  Buy back of Account
  Receivable

  	
  6

  
	
   

  	
   

  	
   

  
	
  8

  	
  Indemnities

  	
  7

  
	
   

  	
   

  	
   

  
	
  9

  	
  Termination Events

  	
  7

  
	
   

  	
   

  	
   

  
	
  10

  	
  General

  	
  8

  
	
   

  	
   

  	
   

  
	
  11

  	
  Termination

  	
  9

  
	
   

  	
   

  	
   

  
	
  12

  	
  Commitment Fee

  	
  9

  
	
   

  	
   

  	
   

  
	
  13

  	
  Notices

  	
  9

  
	
   

  	
   

  	
   

  
	
  14

  	
  Assignments

  	
  10

  
	
   

  	
   

  	
   

  
	
  15

  	
  Governing Law

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 1
  – Supplier Pricing Schedule

  	
   

  	
  12

  
	
   

  	
   

  	
   

  
	
  Schedule 2 –
  Purchase Pack

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Schedule 3
  – Condition Precedent Documents

  	
   

  	
  16

  
				



 





















 


Committed Account Receivable Purchase
Agreement made on April 1, 2005


 


Between


 


(1)                                 Sanmina-SCI Magyarorszag Elektronikai Gyarto Kft (the Supplier) of  with court registered number 11-09-006625
; 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 UK
Limited 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;


 


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Collection
Account means
the interest bearing (at the overnight rates) account of the Supplier held at
Citibank N.A. 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 Hungary
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 


 


4





















 


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


 


5





















 


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


 


6





















 


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.


 


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(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.


 


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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 2PR

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
  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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

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

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:

  	
  44 207 500 2624

  
					



 


9





















 


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.


 


15.3     The Supplier
hereby authorises and appoints Sanmina-SCI UK Limited of 9th Floor, Northwest
Wing, Bush House, Aldwych, London, WC2B 4EZ with registered number 04370464 (or
such other person as it may from time to time substitute by not less than
fifteen days written notice to the Bank) to accept service of all legal process
arising out of or connected herewith or any Purchase Pack and service on such
person (or substitute) shall be deemed to be service on the Supplier.  Except upon such a substitution the Supplier
shall not revoke any such authority or appointment and shall at all times
maintain an agent for service of process in England and if any such agent
ceases for any reason to be an agent for this purpose, shall forthwith appoint
another agent and advise the Bank accordingly.


 


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 Magyarorszag

  	
  )

  	
   

  
	
  Elektronikai
  Gyarto Kft

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  by   /s/
  MONIKA BARTHA and

  	
   

  	
   

  



 


10





















 


 


The Bank


 


	
  Executed for and on behalf of

  	
  )

  	
   

  
	
  Citibank
  International Plc

  	
  )

  	
   

  
	
  By /s/ DROR POLACK and

  	
  )

  	
   

  



 


11





















 


Schedule 1– Supplier Pricing Schedule


 


 


Supplier Name: Sanmina-SCI Magyarorszag
Elektronikai Gyarto Kft


 




	
  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


 


12





















 


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.


 


13





















 


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..


 


14





















 


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

  
	
   

  	
  [

  	
   

  



 


15





















 


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.


 


16