EXHIBIT 10.39


 


RECEIVABLES
TRANSFER AND CONTRIBUTION AGREEMENT


 


This Receivables Transfer and Contribution
Agreement (this “Agreement”) is made and entered into as of November 24,
2008, by and between SANMINA SPV LLC, a Delaware limited liability company (“Transferee”)
and SANMINA-SCI CORPORATION, a Delaware corporation (“Sanmina” or “Transferor”).


 


W I T N
E S S E T H:


 


On the terms and subject to the conditions
set forth herein, the Transferor contribute, and Transferee shall accept as a
capital contribution, on a “true contribution” basis, certain of the Transferor’s
Accounts Receivable from time to time.


 


ARTICLE I

DEFINITIONS


 


Section 1.1                                      Definitions. Unless otherwise defined herein, all capitalized terms will have the
meanings given such terms in that certain Credit and Security Agreement dated
the date hereof (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the “Credit Agreement”), by and
among Transferee, Deutsche Bank AG, New York Branch, as administrative agent
(the “Agent”) and the banks and financial institutions named therein as
Lenders ( the “Lenders”).


 


Section 1.2                                      Accounting Terms and Determinations. Unless otherwise specified herein, all
terms of an accounting character used herein will be interpreted, all
accounting determinations hereunder will be made, and all financial statements
required to be delivered hereunder will be prepared, in accordance with GAAP,
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 Sanmina and its Subsidiaries.


 


Section 1.3                                      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 1.4                                      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 will be deemed to cover all genders. Unless the context otherwise
clearly indicates, words used in the singular include the plural and words used
in the plural include the singular. 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 will include any amendments of
same and any successor statutes and regulations.  All references to any of the Program
Documents will include any and all amendment or modifications thereto and any
and all restatements, extensions or renewals thereof. All references to any
Person will mean and include the successors and permitted assigns of such
Person. All references to “including” and “include” will be understood to mean “including,
without limitation.” All references to the time of day will mean the time of
day on the day in question in New York City, New York, unless otherwise
expressly provided in this Agreement.  An
Unmatured Termination Event or a Termination Event will 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 Unmatured Termination Event, is cured
within any period of cure expressly provided in this Agreement; and a
Termination Event will “continue,” be “continuing,” or “in existence” until
such Termination Event has been waived in writing by the Agent acting on behalf
of the Lenders in accordance with the provisions of the Credit Agreement, or
cured.


 

















 


Whenever the phrase “to the best of
Transferors’ knowledge” or words of similar import relating to the knowledge or
the awareness of Transferor are used herein, such phrase will mean and refer to
the actual knowledge of a Senior Officer of the Transferor.  All references to “acceptable” or “satisfactory”
will, unless expressly provided otherwise, be deemed to mean “reasonably
acceptable” or “reasonably satisfactory.” 
All calculations of money values will be in Dollars.  To the extent that any party hereto will have
the right to consent to the taking of any action hereunder, such consent will
not be unreasonably withheld (unless otherwise specifically indicated).


 


ARTICLE II

TRANSFER AND CONTRIBUTION OF ACCOUNTS RECEIVABLE


 


Section 2.1                                      Agreement
to Transfer Certain Accounts Receivable. 
(a) From time to time until this agreement terminates in accordance
with Section 2.1(b), the Transferor may on any Preparation Date offer to
contribute, and Transferee shall accept as a capital contribution, on the
Borrowing Date immediately following such Preparation Date, certain of the
Transferor’s Accounts Receivable which arose before such Preparation Date,
subject to the terms and conditions set forth herein.


 


(b)                                 This Agreement will commence as of the date
of execution and delivery hereof and will continue in full force and effect
until the earliest to occur of (a) the termination of the Credit
Agreement, and (b) the occurrence of any of the following events (each, a “Contribution
Termination Event”): (i) Transferee or Transferor will become
insolvent or a Termination Event described in Section 6.01(i) or (j) of
the Credit Agreement will have occurred and be continuing or (ii) Transferor
will become unable for any reason to contribute Accounts Receivable in
accordance with this Agreement.


 


Section 2.2                                      Offering Accounts Receivable for Contribution.  On
or before each Preparation Date, the Transferor will notify Transferee and the
Agent of those Accounts Receivable it desires to contribute to Transferee on
the immediately following Borrowing Date by delivering a draft Assignment
Agreement (as defined herein) to Transferee, with a copy to Agent.  Such Assignment Agreement will specifically
identify each of the Transferor’s Accounts Receivable it desires to contribute
to Transferee, will identify whether each such Account Receivable satisfies the
criteria in the definition of “Eligible Receivable” and will include the date
each such Account Receivable arose, its Uncollected Value, invoice number, the
Account Debtor, currency of payment and its Scheduled Maturity Date, all
determined as of such Preparation Date, as applicable.


 


Section 2.3                                      Accepting Accounts Receivable. Transferee shall accept as a capital
contribution the Transferor’s Accounts Receivable identified as offered as a
capital contribution in a draft Assignment Agreement delivered pursuant to Section 2.2.


 


Section 2.4                                      Delivery of Assignment Agreement.  On
each Borrowing Date, the Transferor, if contributing any Accounts Receivable to
Transferee on such Borrowing Date, will execute and deliver to Transferee and
the Agent an Assignment Agreement dated as of such Borrowing Date, which
Assignment Agreement will be substantially in the form of Exhibit A
attached hereto and made a part hereof (each, an “Assignment Agreement”).


 


Section 2.5                                      Application of Deductions.  With
respect to any Accounts Receivable and related Related Rights and Property that
the Transferor, in its discretion, may contribute to Transferee on any
Borrowing Date, such Accounts Receivable and related Related Rights and
Property will be deemed to be a capital contribution from the Transferor to
Transferee.  The parties acknowledge and
agree that the Transferor will be obligated to compensate Transferee for any
Deductions, to the extent such Deductions were not otherwise taken into account
in determining the Uncollected Value of the Transferred Receivables of the
Transferor on any Settlement Date, in accordance with Section 2.7(b).


 


Section 2.6                                      Intent of the Parties; True Contribution of
Transferred Receivables.  It is the intention of the parties hereto that
the contribution of the Transferred Receivables and Related Rights and Property
as provided in Article II be, and be construed as, absolute capital
contributions, including for accounting purposes, without recourse except as
explicitly provided herein, of the Transferred Receivables 


 

















 


and
Related Rights and Property by the Transferor to Transferee, and that neither
the Transferred Receivables nor the Related Rights and Property will be part of
the Transferor’s estate in the event of a Transferor bankruptcy.  Furthermore, it is not intended that such
contribution be deemed a pledge of the Transferred Receivables and Related
Rights and Property to secure a debt or other obligation of Transferor.  If however, notwithstanding the intention of
the parties, the contribution provided for in this Article II is
determined to be a transfer for security, then this Agreement will also be
deemed to be a security agreement and the Transferor hereby grants to
Transferee a security interest in all of the Transferor’s right, title and
interest in the Transferred Receivables and Related Rights and Property.


 


Section 2.7                                      Re-Transfer
of Designated Receivables; Deemed Collections.  (a)  If at any time an Account
Receivable becomes a Designated Receivable, the Transferor will accept
re-transfer of such Designated Receivable from Transferee.  Each such re-transfer will be made on the
next occurring Settlement Date (or the second following Settlement Date, if
such Accounts Receivable became subject to retransfer pursuant to this Section 2.7
after the Preparation Date for the next occurring Settlement Date).  The Transferor will pay to the Transferee an
amount in cash equal to the Uncollected Value (which for this purpose shall be
the face amount thereof) of such Designated Receivables.


 


(b)                                 The parties acknowledge and agree that the
Transferor will be obligated to compensate Transferee for any Deductions taken
on any Account Receivable prior to the Settlement Date on which such Account
Receivable was contributed to Transferee, to the extent such Deductions were
not otherwise taken into account in determining the Uncollected Value of such
Transferred Receivables on such Settlement Date and the Transferor will be
deemed to have received a Collection of such Account Receivable in the amount
of any such Deduction on the date such reduction is reported on the Books and
Records.  On each day after contribution
of an Account Receivable to Transferee on which a Deduction is granted on such
Transferred Receivable as a result of (A) any defective, rejected or
returned goods or services, or (B) a setoff in respect of any claim by the
related Account Debtor against the Transferor, in each of the foregoing cases,
other than any such reduction or cancellation due to credit losses, the
Transferor will be deemed to have received on such day a Collection of such
Receivable in the amount of the Deduction. 
If the Transferor is deemed to have received a Collection of Receivables
pursuant to this Section 2.7(b), the Transferor will deposit the amount of
such Collections into the Collection Accounts on the next occurring Settlement
Date (or the second following Settlement Date, if such Deduction was granted
after the opening of business on the Business Day immediately preceding the
next occurring Settlement Date).  Such
amount may be offset against any amounts due from Transferee to such Transferor
on such Settlement Date with respect to the Uncollected Value of Accounts
Receivable conveyed by the Transferor to Transferee on such Settlement Date.


 


Section 2.8                                      Servicing of Accounts Receivable.  On
and after each Borrowing Date, Transferee will have the sole right to receive
all Collections with respect to all Transferred Receivables purchased by it or
contributed to it on such Borrowing Date. The foregoing notwithstanding,
Transferee and the Transferor agree to engage Sanmina’s services as initial
Servicer for all the Transferred Receivables pursuant to the terms set forth in
the Servicing Agreement.  The Transferor
agrees (i) to notify commencing on the Collection Account Effect Date all
Account Debtors of its respective Transferred Receivables that pay by wire
transfer, automated clearing house (“ACH”) entries, credits from merchant card
transactions and other electronic funds transfers to tender all payments on
such Transferred Receivables to the Collection Accounts and (ii) to notify
commencing on the Lock-Box Effective Date all Account Debtors of its respective
Transferred Receivables that pay by check, draft or other instrument to tender
all payments on such Transferred Receivables to the Lock-Box, and in each case
to cooperate fully with Servicer in all respects regarding the servicing of
Transferred Receivables.  During the
Collection Account Ramp-Up Period and the Lock-Box Ramp-Up Period, Collections
may be deposited into the Sanmina Accounts and the Sanmina Lockbox and the
Servicer will be instructed to sweep all amounts deposited in the Sanmina
Accounts and the Sanmina Lockbox into the Tranche A and Tranche B Collection
Accounts on each Business Day. Collections will be deposited in the Collection
Accounts on each Business Day.  All
collections on a Transferred Receivable received by a Person who is not the
Obligee of such Account Receivable will be held in trust for the Obligee and
promptly deposited into the Collection Accounts or delivered to Servicer for
deposit by Servicer into the Collection Accounts.  If an Account Debtor has indicated that a
payment made by such Account Debtor is to be applied in respect of its 


 

















 


obligations
under a specified Account Receivable or in respect of other obligation of such
Account Debtor owed to the Transferor, then the Transferor and the Transferee
agree that such payment shall be applied as specified by the related Account
Debtor; however, after an Account Debtor is in default of any payment
obligation to the Transferee or the Transferor for more than 10 days, or after
the related Account Debtor is insolvent, any such payment shall be applied to
the principal amount of the Accounts Receivable of such Obligor in
chronological order of Scheduled Maturity Dates.


 


Section 2.9                                      Related Rights and Property.  In
all cases hereunder where an Account Receivable is contributed to a Transferee
who then becomes the Obligee of such Account Receivable, the contribution of
such Account Receivable will be deemed to include the contribution of all of
the Related Rights and Property relating to such Account Receivable.


 


ARTICLE III

THE CLOSING


 


Section 3.1                                      The Closing.  The closing of the
transactions set forth herein will occur on the Closing Date, contemporaneously
with the closing of the Credit Agreement. 
In any event, this Agreement will not be effective until the Effective
Date. Facsimile signatures of the parties hereto will be sufficient to close
this Agreement; provided that the Transferor and Transferee agree to deliver
fully executed, original counterparts of this Agreement and the other Program
Documents to Agent’s counsel for receipt by Agent’s counsel no later than five
Business Days following the Closing Date. 
The “Closing Date” shall be the date of this Agreement as first
above written.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES


 


Section 4.1                                      Representations and Warranties of Transferor.  The
Transferor hereby represents and warrants to Transferee as follows (each of
which representations and warranties will be deemed to have been restated upon
the delivery of each Assignment Agreement to Transferee):


 


(a)                      Organization; Location. 
Transferor is a corporation validly existing and in good standing under
the laws of the state of Delaware and is authorized under such laws to conduct
its business as currently conducted and to own its assets (including but not
limited to its Accounts Receivable) as currently owned.  The location of Transferor’s chief executive
office and all of its Books and Records relating to its Accounts Receivable,
the state of incorporation of Transferor, and Transferor’s organizational
identification number are identified in the Transferor Collateral Disclosure
Certificate substantially in the form of Exhibit B attached hereto and
made a part hereof (the “Transferor Collateral Disclosure Certificate”).


 


(b)                     Capacity; Authority; Validity. 
Transferor has all necessary corporate power and authority to enter into
this Agreement and to perform all of the obligations to be performed by it
under this Agreement.  This Agreement and
the consummation by Transferor of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action of
Transferor.  This Agreement has been duly
executed and delivered by Transferor and constitutes the valid and binding
obligations of Transferor, enforceable against Transferor in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and to general equitable principles.


 


(c)                      Conflict; Defaults. 
Neither the execution and delivery of this Agreement by Transferor, nor
the consummation of the transactions contemplated hereby and thereby will (i) conflict
with, result in the breach of, constitute a default under, or accelerate the
performance required by, the terms of any indenture, agreement, contract or
other instrument to which Transferor is a party or by which Transferor or its
assets are bound, (ii) violate Transferor’s articles of incorporation,
bylaws, or other constitutional or charter documents, as the case may be, (iii) violate
any law or any order, rule or regulation applicable to Transferor of any
Governmental Authority having jurisdiction over Transferor or its properties, (iv) require
any consent, approval, authorization or filing (which, in each case, has not
already been obtained or made) under any law, 


 

















 


regulation, judgment, order, writ, decree, permit, license, agreement,
contract or instrument to which Transferor is a party or by which Transferor or
any of its assets are bound.


 


(d)                     Title to Transferred Receivables.  Immediately
prior to (or coincidentally with) any transfer of an Account Receivable
hereunder, Transferor has good and marketable title to such Accounts
Receivable, free and clear of any Lien except for Permitted Encumbrances.  When Transferee accepts a capital
contribution of such Account Receivable, it will have acquired a perfected
ownership interest in such Account Receivable free and clear of any Lien,
except for Permitted Encumbrances.


 


(e)                      Litigation.  There is no claim, litigation,
proceeding, arbitration or investigation pending or, to Transferor’s best
knowledge, threatened against Transferor, which could reasonably be expected to
have a Material Adverse Effect.


 


(f)                        The Transferor has filed or caused to be
filed all material tax returns that are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any written assessments
made against it or any of its property and all other material taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority (other than such taxes, fees or other charges the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided
on the books of the Transferor); no tax Lien has been filed, and, to the
knowledge of the Transferor, no claim is being asserted, with respect to any
such tax, fee or other charge that in any case would reasonably be expected to
have a Material Adverse Effect.


 


(g)                     Investment Company Act; Other Regulations.  The
Transferor is not an “investment company,” or a company “controlled” by an “investment
company,” within the meaning of the U.S. Investment Company Act of 1940, as
amended.


 


(h)                     Solvent.  The Transferor is, and after
giving effect to each contribution hereunder and the incurrence of the
obligations being incurred hereunder, will be and will continue to be, solvent.


 


(i)                         Finders or Brokers. 
Transferor has not agreed to pay any fee or commission to any agent, broker,
finder, or other person retained by it, for or on account of services rendered
as a broker or finder in connection with this Agreement or the transactions
contemplated hereby which would give rise to any valid claim against Transferee
for the payment of any such fee or commission.


 


(j)                         Nature of Transferred Receivables.  Each
Transferred Receivable constitutes an “account,” or “general intangible”  as such terms are defined in the UCC.


 


(k)                      Eligibility of Transferred Receivables.  Each
Account Receivable accepted as a capital contribution by Transferee, that was
identified in the related Assignment Agreement or in any other document or
report delivered to Transferee in accordance with this Agreement as an Eligible
Receivable satisfied the criteria in the definition of “Eligible Receivable” as
of the date of such Assignment Agreement or other document or report, as
applicable.


 


(l)                         No statement or information contained in this
Agreement, any other Program Document or any other document, certificate or statement
furnished by or on behalf of the Transferor to the Transferee or to the Agent,
or any of them, for use in connection with the transactions contemplated by
this Agreement or the other Program Documents, when taken together with Sanmina’s
filings with the SEC, contained as of the date such statement, information,
document or certificate was so furnished, any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
contained herein or therein not misleading. 
There is no fact known to the Transferor that could reasonably be
expected to have a Material Adverse Effect that has not been expressly
disclosed herein or in Sanmina’s filings with the SEC, in the other Program
Documents, or in any other documents, certificates and statements furnished to
the Agent and the Transferee for use in connection with the transactions
contemplated hereby and by the other Program Documents.  Sanmina has filed all required registration
statements, prospectuses, reports, 


 

















 


schedules, forms, statements and other documents required to be filed
by Sanmina with the SEC since January 1, 2006 (collectively, the “Sanmina
Reports”).  None of the Sanmina
Reports, as of their respective dates (and, if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing),
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.


 


(m)                   Filings.  There have been duly filed all
Financing Statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect
Transferee’s ownership interest in the Transferred Receivables and the Related
Rights and Property, to the extent Transferee’s ownership interest in such
Related Rights and Property may be perfected by the filing of Financing
Statements under the UCC.


 


Section 4.2                                      Representations and Warranties of Transferee. 
Transferee represents and warrants to the Transferor as follows (each of
which representations and warranties will be deemed to have been restated upon
the delivery of each Assignment Agreement to Transferee):


 


(a)                      Organization. 
Transferee is a limited liability company, validly existing and in good
standing under the laws of the State of Delaware.


 


(b)                     Capacity; Authority; Validity. 
Transferee has all necessary limited liability company power and
authority to enter into this Agreement and to perform all of the obligations to
be performed by it under this Agreement. 
This Agreement and the consummation by Transferee of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary limited liability company action of Transferee.  This Agreement has been duly executed and
delivered by Transferee and constitutes the valid and binding obligations of
Transferee, enforceable against Transferee in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally
and to general equitable principles.


 


(c)                      Conflicts; Defaults. 
Neither the execution and delivery of this Agreement by Transferee, nor
the consummation of the transactions contemplated hereby and thereby will (i) conflict
with, result in the breach of, constitute a default under, or accelerate the
performance required by, the terms of any indenture, agreement, contract or
other instrument to which Transferee is a party or by which Transferee or its
assets are bound, (ii) violate Transferee’s certificate of formation,
limited liability company agreement, or other constitutional or charter
documents, as the case may be, or any law or any order, rule or regulation
applicable to Transferee of any Governmental Authority having jurisdiction over
Transferee or its properties, (iii) require any consent, approval,
authorization or filing (which, in each case, has not already been obtained or
made) under any law, regulation, judgment, order, writ, decree, permit,
license, agreement, contract or instrument to which Transferee is a party or by
which Transferee or any of its assets are bound.


 


ARTICLE V 

CERTAIN COVENANTS


 


Section 5.1                                      Mutual Covenants and Agreements. 
Subject to the terms and conditions herein provided, each party to this
Agreement will use its commercially reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary,
appropriate or desirable hereunder and under applicable laws and regulations to
consummate, make effective, and carry out the purposes of, the transactions
contemplated by this Agreement.  Each
party to this Agreement will use its commercially reasonable efforts to obtain
consents of all third parties and Governmental Authorities necessary for the
consummation of the transactions contemplated by this Agreement.


 


Section 5.2                                      Certain Covenants of Transferor.  The
Transferor hereby agrees with Transferee as follows:


 

















 


(a)                      Financing Statements; UCC Matters.  The
Transferor authorizes Transferee to prepare and file (at the Transferor’s cost)
Financing Statements in any jurisdictions where Transferee deems such filings
to be reasonably necessary to give notice of Transferee’s interest in and to
the Transferred Receivables.  The
Transferor will not change its name, identity, state of incorporation or
corporate structure (within the meaning of Section 9-507(c) of the
UCC) or any office where its Books and Records are kept unless it will have (i) given
Transferee (and Agent, as Transferee’s assignee) at least thirty (30)  days’ prior written notice thereof and (ii) delivered
to Transferee (and Agent, as Transferee’s assignee) all financing statements,
instruments and other documents reasonably requested by Transferee (or Agent,
as Transferee’s assignee) in connection with such change or relocation.


 


(b)                     Access.  The Transferor will (i) so
long as there is then no Termination Event in existence, during the Transferor’s
regular business hours and with reasonable prior notice, not more than once per
calendar quarter, and during the existence of a Termination Event, at any time
without prior notice, permit Transferee, Agent, and their respective authorized
representatives, access to (i) its Books and Records as they relate to the
Transferred Receivables and (ii) furnish Transferee and, upon request,
Agent with true, accurate and complete copies of the Underlying Contracts and
other such records and all other information in its possession with respect to
the Transferred Receivables as Transferee, or Agent may request, in each case
as is reasonably required to comply with the Policy.  The Transferor will cause its personnel and
its agents to provide Transferee, Agent, and their respective authorized
representatives, assistance in each of their investigation of the matters set
forth in clauses (i) and (ii) of the preceding sentence, all for
purposes of monitoring compliance with this Agreement and the other Program
Documents; provided that so long as there is then no Termination Event, the
inspection of the Transferor’s Books and Records and access to the Transferor’s
employees as contemplated by this Section 5.2(b) shall be limited to
a review of those matters described in the Scope of Audit attached as Exhibit B
to the Servicing Agreement.  No Person
will be granted such access or furnished with such materials unless such Person
is bound (directly or indirectly) by the terms of Section 8.4 or by an
effective confidentiality agreement, with such conforming changes as are
necessary to reflect the agreement of such Transferor and such Person;
provided, however, that such Person and such Transferor may, but neither will
be obligated to, agree on different terms respecting such confidential
treatment.  In no event shall the
Transferor be required to disclose any information contemplated by this Section 5.2(b) to
the Transferee, the Agent or any other Person if the disclosure of such
information would violate any law or regulation applicable to the Transferor or
the Transferred Receivables and the Related Rights and Property or would
violate any obligation of confidentiality owed by the Transferor to any other
Person that is not an Affiliate of the Transferor.


 


(c)                      Further Assurances and Assistance.  On
or after the Closing Date, the Transferor will give such further assurances to
Transferee, execute, acknowledge and deliver all such acknowledgments and other
instruments and take such further action as may be reasonably necessary or
appropriate to fully and effectively carry out the transactions contemplated
hereby, including, without limitation, any additional Financing Statements. As
reasonably requested by Transferee or the Agent, the Transferor will provide
reasonable assistance to Transferee, the Agent, and their respective authorized
representatives in obtaining access to information to assist Transferee in
financing the Transferred Receivables (or any portion thereof) as any of them
may reasonably request, including, without limitation, access to reports
currently prepared by Transferor in the ordinary course of business in
accordance with the Policies and Procedures, the Remittance Reports and other
reports required of Transferee by the Agent under the Credit Agreement, and any
additional reports that Transferor is obligated to provide under the Servicing
Agreement.  Except as otherwise provided
in this Agreement, the Transferor will not take any action after the Closing Date
which would be inconsistent with the effective transfer by the Transferor to
Transferee hereunder of the Transferor’s entire right, title and interest in
and to the Transferred Receivables and its Related Rights and Property.


 


(d)                     Changes to Policies and Procedures; Standard
Terms; Underlying Contracts.  The Transferor agrees that it will not,
without the prior written consent of Transferee or the Agent (such consent not
to be unreasonably withheld), change any of its Policies and Procedures or
Standard Terms.


 


(e)                      Granting Deductions.  The
Transferor will not compromise, rescind, cancel or adjust any Transferred
Receivable except that Sanmina will, as required, do so in its capacity as
Servicer in accordance with the Transaction Documents.


 
















 


(f)                        Treatment of Transactions.  The
Transferor will maintain its records and books of account in a manner that
clearly reflects the true contribution of all Transferred Receivables conveyed
to Transferee hereunder.  So long as any
Transferred Receivable remains outstanding, all of the published financial
statements of Transferor will contain a footnote (i) disclosing the
transactions contemplated hereunder which unambiguously describes the
contribution of Transferred Receivables to the capital of the Borrower as an
absolute transfer and the interest of Transferee and the Agent in the
Transferred Receivables, and (ii) expressly stating that the Transferred
Receivables are unavailable for creditors of the Transferor.


 


(g)                     Lenders’ Reliance.  The
Transferor acknowledges that the Agent and each Lender is entering into the
transactions contemplated by the Program Documents in reliance upon Transferee’s
identity as a legal entity that is separate from Transferor and any Affiliates
thereof.  Therefore, from and after the
date of execution and delivery of this Agreement, the Transferor will take all
reasonable steps including, without limitation, all steps that Transferee (or
the Agent, as Transferee’s assignee) may from time to time reasonably request
to maintain Transferee’s identity as a separate legal entity.  Without limiting the generality of the
foregoing and in addition to the other covenants set forth herein, the
Transferor will take and continue to take all actions described in the
assumptions as to facts set forth in the opinion of Baker & McKenzie
delivered on the Closing Date with respect to substantive consolidation matters
and will comply with, and cause compliance with, the provisions of Transferee’s
limited liability company agreement and certificate of formation.


 


(h)                     Taxes.  The Transferor will file all
tax returns and reports required by law to be filed by them and promptly pay
all taxes and governmental charges at any time owing, that may be assessed
against the Transferor except any such taxes which are not yet delinquent or
are being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP will have been set aside on its
books, unless the failure to make any such payment could not reasonably be
expected to have a Material Adverse Effect on the Transferor and its
Subsidiaries (taken as a whole), the consummation of the transactions
contemplated herein, the enforceability of the Program Documents to which the
Transferor is a party, or the perfection and priority of the security interest
of Transferee (or the Agent, as assignee of Transferee) in and to the
Transferred Receivables and the Related Rights and Property in which case
Transferor will promptly make such payments.


 


(i)                         Change in Payment Instructions to Obligors. 
Except as set forth in the Program Documents and in any event, without
the Agent’s prior written consent, Transferor will not make any change in the
instructions to Account Debtors with respect to the Transferred Receivables regarding
payments to be made to the Collection Accounts.


 


(j)                         Sales, Liens.  The
Transferor will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, or create or suffer
to exist any Lien upon (including, without limitation, the filing of any
financing statement) or with respect to, any Transferred Receivable or Related
Rights or Property, or upon or with respect to any Underlying Contract under
which any Transferred Receivable arises (to the extent of such Transferred
Receivable), or assign any right to receive income with respect thereto (other
than, in each case, the creation of the interests therein in favor of
Transferee provided for herein), and the Transferor will defend the right,
title and interest of Transferee (and the Agent, as Transferee’s assignee) in,
to and under any of the foregoing property, against all claims of third parties
claiming through or under Transferor.


 


(k)                      Use of Proceeds. 
Transferor will not use any of the proceeds of any sale of Accounts
Receivable hereunder for a purpose that violates, or would be inconsistent
with, Regulations T, U or X promulgated by the Board of Governors of the
Federal Reserve System from time to time.


 


(l)                         Information.  Transferor will deliver, or
cause to be delivered to the Transferee:


 


(i)                                     as soon as available, but in any event within
90 days after the end of each fiscal year of Transferor, a copy of the audited
consolidated balance sheet of Transferor and its consolidated subsidiaries as
at the end of such year and the related audited statements of income and of
cash flows for such year, setting 


 

















 


forth in each case in comparative form the
figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification arising out of the scope of the
audit, by KPMG LLP, or other independent registered public accountants of
recognized international standing and without any limitation or qualification
on the certification of internal controls required under SEC rules; and;


 


(ii)                                  as soon as available, but in any event not
later than 60 days after the end of each of the first three quarterly periods
of each fiscal year of Transferor, the unaudited consolidated balance sheet of
Transferor as at the end of such quarter and the related unaudited consolidated
statements of income and of cash flows for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth in comparative form
the figures for the previous year, certified by a Senior Officer of Transferor
as fairly presenting in all material respects the financial condition of
Transferor and its Subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods indicated, subject to changes
resulting from normal year end audit adjustments and the absence of footnotes
(which certification shall be satisfied by the certification provided in Exhibit 31
to Transferor’s Quarterly Report on Form 10-Q filed with the SEC).  The Transferee shall be entitled to rely on
such certification as if addressed to it;


 


Financial statements
required to be delivered pursuant to Sections 5.2(l)(i) and 5.2(l)(ii) (to
the extent any such financial statements are included in materials otherwise
filed with the SEC) may be delivered electronically and if so, shall be deemed
to have been delivered on the date on which Transferor posts such reports, or
provides a link thereto, either: (i) on Transferor’s website on the
Internet at the website address listed in Section 8.1; or (ii) when
such report is posted electronically on IntraLinks/IntraAgency or other
relevant website which Transferee has access to (whether a commercial,
third-party website or whether sponsored by the Agent), if any, on Transferor’s
behalf; provided that: (x) the Transferor shall deliver paper copies of
such reports to the Transferee until written request to cease delivering paper
copies is given by the Transferee;  and (y) the
Transferor shall notify (which may be by facsimile or electronic mail) the
Transferee of the posting of any such reports and immediately following such
notification the Transferor shall provide to the Transferee, by electronic
mail, electronic versions (i.e., soft copies) of such reports. The Transferee
shall have no obligation to request the delivery or to maintain copies of the
reports referred to above, and in any event shall have no responsibility to
monitor compliance by Transferor with any such request for delivery, and the
Transferee shall be solely responsible for requesting delivery to it or
maintaining its copies of such reports.


 


ARTICLE VI

CONDITIONS OF CLOSING


 


Section 6.1                                      Conditions Precedent.  The
parties’ respective obligations to consummate and perform the transactions
contemplated by this Agreement are subject to the satisfaction or waiver of
each of the conditions precedent that each of the representations and
warranties of each of the parties hereto will be true and correct on the
Closing Date, and (ii) Transferor will have delivered the Transferor
Collateral Disclosure Certificate in form and substance satisfactory to
Transferee.


 


ARTICLE VII

INDEMNIFICATION AND RELATED TERMS


 


Section 7.1                                      Transferor’s Indemnification Obligations. 
Without limiting any other rights which Transferee and its assigns may
have hereunder or under applicable law, Transferor hereby 


 

















 


agrees
to indemnify Transferee, the Agent, each Lender and their respective officers,
directors, employees and agents (each, an “Indemnified Party”) from and
against any and all damages, losses, claims, liabilities and related costs and
expenses, including without limitation, reasonable attorneys’ fees and
disbursements (all of the foregoing being collectively referred to as “Indemnified
Amounts”) awarded against or incurred by any of them arising out of:


 


(a)                                  reliance on any representation or warranty
made or deemed made by Transferor (or any of its officers) under or in
connection with this Agreement as to the validity or enforceability of any
Transferred Receivable or the compliance of any Assigned Receivable with the
criteria described in the definition of “Eligible Receivable,” or any other
written information or report delivered by the Transferor pursuant hereto,
which will have been false or incorrect when made or deemed made or delivered;


 


(b)                                 the failure by the Transferor (individually
or as Servicer) to comply with any term, provision or covenant contained in
this Agreement, or with any applicable law, rule or regulation with
respect to any Transferred Receivable, or the related Underlying Contract, or
the nonconformity of any Transferred Receivable, or the related Underlying
Contract with any such applicable law, rule or regulation;


 


(c)                                  the failure to vest and maintain vested in
Transferee or to transfer to Transferee legal and equitable title to and
ownership of, the Assigned Receivables which are, or are intended to be,
Transferred Receivables, free and clear of any Lien, other than Permitted
Encumbrances, whether existing at the time of the transfer of such Account
Receivable or at any time thereafter (including, without limitation, any such
failure arising from the commingling of Collections on Transferred Receivables
with funds that do not constitute Collections of Transferred Receivables);


 


(d)                                             the misdirection by the Transferor of
collections on Accounts Receivable to any account other than the Collection
Accounts or the Lockbox; or


 


(e)                                              other than non-payment related to Deductions
taken into account in calculating the Uncollected Value on the relevant
Preparation Date for a Transferred Receivable, payment shortfalls or any
non-payment resulting from any commercial dispute, supplier discount, claim,
offset or defense (other than discharge in bankruptcy of the Account Debtor) of
the Account Debtor to the payment of any Account Receivable which is, or is
intended to be, a Transferred Receivable (including, without limitation, a
defense based on such Transferred Receivable or the Underlying Contract not
being a legal, valid and binding obligation of such Account Debtor enforceable
against it in accordance with its terms (other than discharge in bankruptcy of
the Account Debtor) or failure to comply with the laws of the country of any
Account Debtor), or any other claim resulting from the sale of the merchandise
or services related to such Transferred Receivable or the furnishing or failure
to furnish such merchandise or services;


 


provided that the Transferor will not be required to
so indemnify any Indemnified Party or otherwise be liable to any Indemnified
Party for any Indemnified Amounts resulting from (i) the performance of
the Transferred Receivables or any Related Rights or Property, or for a
shortfall as a result of such performance or as a result of the sale of any
Transferred Receivables or other Related Rights or Property in connection with
the exercise of remedies (except to the extent such Indemnified Amounts are
attributable to a breach by the Transferor of any representation, warranty or
covenant made by it in relation to any such Transferred Receivable or Related
Rights and Property), or (ii) the Indemnified Party’s willful misfeasance,
bad faith or gross negligence; and provided further that the Transferor will
not be required to so indemnify any Indemnified Party other than the Transferee
with respect to any Indemnified Amount relating to a Transferred Receivable
that is not an Assigned Receivable.


 


Any amounts subject to the indemnification
provisions of this Section 7.1 will be promptly paid by Transferor to the
Payment Account for the benefit of the party seeking indemnification within
five Business Days following (i) demand therefor by such party and (ii) delivery
to Transferor by such party of an invoice stating the basis for the demand for
payment to be made under this Section 7.1.


 

















 


Section 7.2                                      Survival of Indemnification Obligations. 
Transferor’s indemnification of Transferee, Agent and the Lenders will
survive the Closing Date and the Program Termination Date.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.1                                      Notices.  All notices and other
communications by Transferee, Transferor or the Agent hereunder will be in
writing to the other parties and will be deemed to have been duly given (i) when
delivered in person, (ii) two Business Days after delivery to an overnight
courier service, receipt requested, or (iii) when sent if sent via telecopy
transmission, receipt requested or (iii) three days after being posted
when posted by the United States registered or certified mail, with postage
prepaid, addressed as follows:


 


To Transferor:


 


Sanmina-SCI Corporation


2700 North First Street


San Jose, California 95134


Attention:  Corporate Treasurer


 


To Transferee:


 


Sanmina
SPV LLC


2700
North First Street


San
Jose, California 95134


Attention:  Manager


 


In any case, with copy to the Agent:


 


Deutsche Bank AG, New York Branch


60 Wall St., 25th Floor


New York, NY 10005


Attention: Structured Trade & Export
Finance


Fax:  (212) 797-0473


 


or to such other addresses as a party or the
Agent may from time to time designate by notice as provided herein (or which
the Agent may provide to the parties), except that notices of change of address
will be effective only upon actual receipt.


 


Section 8.2                                      Assignment.


 


(a)                                  The rights of any party under this Agreement
will not be assigned or transferred by any party without the prior written
approval of the other party hereto and the Agent; provided, however, that the parties
hereto acknowledge and agree that:


 


(i)                                     Transferee intends to finance, in part,
certain Transferred Receivables through extensions of credit from Lenders; and


 


(ii)                                  Transferee may assign its rights under this
Agreement, and the Transferred Receivables to the Agent for the benefit of the
Lenders in connection with such financing.


 

















 


(b)                     During the continuation of any Termination
Event, Transferor agrees that the Agent will have all the rights (but none of
the obligations) of Transferee hereunder, but only to the extent such rights
relate to Assigned Receivables, to the same extent as Transferee, and that
Transferor will continue to be bound by the terms of this Agreement as against
Agent, until the Program Termination Date.


 


(c)                      Transferor agrees that the Agent and the
Lenders are third-party beneficiaries to this Agreement (in each case, to the
extent described in this Section 8.2) and will be entitled to and have
standing to enforce the rights of Transferee hereunder (in each case, to the
extent described in this Section 8.2 and only to the extent such rights
relate to Assigned Receivables).  Any
attempt by any party to assign or transfer this Agreement contrary to the terms
and conditions of this section will be null and void ab initio.


 


Section 8.3                                      Entire Agreement, Limited Third Party
Beneficiaries.  This Agreement, together with the exhibits
attached hereto, constitutes the entire agreement by the parties and supersedes
any other agreement, whether written or oral, that may have been made or
entered into between Transferor and Transferee (or by any of their respective
officers, agents, or representatives) relating to the matters contemplated
herein.  Except as described in Section 8.2
hereof, no other person or entity will be a third party beneficiary of this
Agreement.


 


Section 8.4                                      Confidentiality.


 


(a)                                  Each party hereto agrees to the following
confidentiality terms (with it being understood that, for purposes of this Section 8.4,
the “Recipient” will mean the Person to whom any Confidential Information is
provided, the “Provider” means the Person who provides such Confidential
Information to the Recipient, and “Confidential Information” (as further
defined below) means the Confidential Information of the Provider):


 


(i)                                     The Recipient will receive, maintain and hold
the Confidential Information in confidence and will use at least the same level
of care in safeguarding the Confidential Information that it uses with respect
to its own confidential information but in no event less than reasonable care
under the circumstances;


 


(ii)                                  The Recipient agrees to take all steps
reasonably necessary and appropriate to ensure that its employees or other
persons to whom disclosure is authorized hereunder treat the Confidential
Information as confidential and to ensure that such employees or other persons
to whom disclosure is authorized hereunder act in accordance with and abide by
the terms of this Section 8.4 regarding the Confidential Information;


 


(iii)                               The Recipient will use the Confidential Information solely for purposes
of the Program and matters reasonably related thereto and may disclose
Confidential Information to the Insurer; and


 


(iv)                              The Recipient will not disclose, reproduce, distribute, transmit,
reverse engineer, decompile, disassemble or transfer, directly or indirectly,
the Confidential Information, except as authorized in this Section 8.4, as
otherwise authorized in writing by the Provider in conjunction with the
Program, or unless otherwise agreed by the Provider.


 


(b)                     The Recipient agrees that it will not
(without the prior written consent of the Provider) disclose the Confidential
Information to any third party, except (i) its affiliates, officers,
employees and legal counsel on a confidential basis, (ii) as required by
law, regulation or other applicable judicial or governmental order, (iii) on
a limited basis as is reasonably necessary to prepare any claim or defense
arising from or in connection with the Program or the Program Documents, or (iv) as
expressly contemplated in the Program Documents.


 

















 


(c)                      As used herein, “Confidential Information”
means all information disclosed or provided by the Provider to the Recipient or
its agents or representatives in connection with the Program and all information
regarding the Provider’s business, assets, affiliates, and customers, so long
as such information is marked confidential or otherwise of a type considered
confidential in the ordinary course of business, but does not include
information that: (i) is generally available to the public, (ii) hereafter,
through no breach of this Section 8.4 by the Recipient or its agents or
representatives, becomes generally available to the public, (iii) corresponds
in substance to information furnished to the Recipient hereafter on a
non-confidential basis by any third party having a legal right to do so, or (iv) was
developed by, or for, the Recipient independently of any disclosure or use of
the Confidential Information; provided that, for the avoidance of doubt, each
Receivables Report and each Remittance Report shall be deemed to be
Confidential Information.


 


(d)                     At any time upon the written request of the
Provider, the Confidential Information, including all copies and embodiments
thereof (including all copies and/or any other form or reproduction and/or
description thereof made by the Recipient), in the possession of the Recipient,
will, at Recipient’s option, be promptly returned to the Provider or promptly
destroyed, except that the portion of the Confidential Information that may be
found in analyses, compilations, studies or other documents prepared by the
Recipient or its agents, attorneys or employees, oral or electronic
Confidential Information, and any Confidential Information not so requested and
returned will be held by the Recipient and kept subject to the terms of this Section 8.4
or destroyed to the extent practicable and permitted by law.  Whether the Confidential Information or other
embodiments of the Confidential Information is to be returned or destroyed
pursuant to this paragraph, such return or destruction will, upon written
request of the Provider, be certified in writing by an authorized officer of
the Recipient.  The return or destruction
of the Confidential Information or other embodiments of the Confidential
Information will not relieve the Recipient of its confidentiality obligations
contained in this Section 8.4.


 


(e)                      The confidentiality provisions set forth in
this Section 8.4 will (i) survive the Program Termination Date and (ii) terminate
upon the earliest to occur of two (2) years after the Program Termination
Date or such other date mutually agreed upon by the parties hereto.


 


Notwithstanding the
foregoing, each party (and each employee, representative or other agent of each
party) may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure of the transactions contemplated by this
Agreement or any other Program Document and all materials of any kind
(including opinions or other tax analyses) that are provided to the parties
relating to such tax treatment and tax structure.


 


Section 8.5                                      Amendments and Waivers. This Agreement may be amended, modified,
superseded, or canceled, and any of the terms, representations, warranties or
covenants hereof may be waived, only by written instrument executed by each of
the parties or, in the case of a waiver, by the party waiving compliance, and,
in any event with the prior written consent of the Agent.  The failure of any party at any time or times
to require performance of any provision hereof will in no manner affect the
right at a later time to enforce the same. 
No waiver by any party of any condition or of any breach of any term,
representation, warranty or covenant under this Agreement, whether by conduct
or otherwise, in any one or more instances, will be deemed to be or construed
as a further or continuing waiver of any other condition or of any breach of
any such condition of breach or waiver of any other condition or of any breach
of any other term, representation, warranty or covenant under this Agreement.


 


Section 8.6                                      Captions; Counterparts.  The
captions in this Agreement are for convenience only and will not be considered
a part of or affect the construction or interpretation of any provision of this
Agreement.  This Agreement may be
executed in two or more counterparts (and by each of the parties on separate
signature pages), each of which will be an original, but all of which together
will constitute one and the same instrument.


 


Section 8.7                                      Governing Law.  This
Agreement will be governed by and construed and interpreted in accordance with
the internal laws of the State of New York, without regard to principles of
conflict of laws (other than Section 5-1401 of the New York General
Obligations Laws).


 

















 


Section 8.8                                      Severability.  If
any provision of this Agreement or portion thereof is held invalid, illegal,
void or unenforceable by reason of any rule of law, administrative or
judicial provision or public policy, such provision will be ineffective only to
the extent invalid, illegal, void or unenforceable, and the remainder of such
provision and all other provisions of this Agreement will nevertheless remain
in full force and effect.


 


Section 8.9                                      WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. 
EACH OF THE PARTIES HERETO (A) IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER PROGRAM DOCUMENT; (B) SUBMITS
TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN THE STATE COURTS OF THE STATE OF
NEW YORK AND UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE ENFORCEMENT OF THIS AGREEMENT AND THE OTHER PROGRAM DOCUMENTS; (C) WAIVES
ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY JURISDICTION TO OBJECT ON ANY
BASIS (INCLUDING, WITHOUT LIMITATION, INCONVENIENCE OF FORUM) TO JURISDICTION
OR VENUE WITHIN THE STATE AND DISTRICT DESCRIBED ABOVE FOR THE PURPOSE OF
LITIGATION TO ENFORCE THIS AGREEMENT OR THE OTHER PROGRAM DOCUMENTS; AND (D) AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN THE MANNER PRESCRIBED IN SECTION 8.1.  NOTHING HEREIN CONTAINED, HOWEVER, WILL
PREVENT ANY PARTY FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY
SECURITY AND AGAINST ANY OTHER PARTY PERSONALLY, AND AGAINST ANY ASSETS OF SUCH
OTHER PARTY, WITHIN ANY OTHER STATE OR JURISDICTION.


 


Section 8.10                                No Petition.  The Transferor hereby agrees
not to institute against Transferee, or join in any institution against
Transferee of, any bankruptcy proceedings under any United States federal or
state bankruptcy law or similar law in connection with any obligations relating
to this Agreement, until one year and one day following the termination of the
Credit Agreement and the repayment in full of all Obligations arising under the
Credit Agreement.


 


[Signatures
on following page]


 

















 


IN WITNESS WHEREOF, each of Transferor and
Transferee have caused this Receivables Transfer and Contribution Agreement to
be duly executed as of the date first above written.


 


	
   

  	
  TRANSFEREE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANMINA
  SPV LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Walter F. Boileau

  
	
   

  	
  Name:  Walter
  F. Boileau

  
	
   

  	
  Title:
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRANSFEROR:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANMINA-SCI
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Walter F. Boileau

  
	
   

  	
   

  
	
   

  	
  Name:   Walter
  F. Boileau

  
	
   

  	
  Title:
  Vice President and Treasurer