EXHIBIT 10.38


	
   

  



 


CREDIT AND SECURITY AGREEMENT


 


$250,000,000


 


dated as of November 24, 2008


 


by and among


 


SANMINA SPV LLC,

a Delaware limited liability company,


 


as Borrower


 


the Lenders named herein


 


and


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


 


as Administrative Agent and as Collateral Agent


	
   

  



 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1. DEFINITIONS AND
  RELATED TERMS

  	
   

  	
  1

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Accounting
  Terms and Determinations

  	
  14

  
	
  Section 1.03.

  	
  References

  	
  14

  
	
  Section 1.04.

  	
  Use of
  Defined Terms

  	
  14

  
	
  Section 1.05.

  	
  Terminology

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2. ADVANCES

  	
   

  	
  15

  
	
  Section 2.01.

  	
  Commitment
  to Make Advances

  	
  15

  
	
  Section 2.02.

  	
  Method of
  Borrowing

  	
  15

  
	
  Section 2.03.

  	
  Final
  Payment of Aggregate Advances

  	
  15

  
	
  Section 2.04.

  	
  Interest
  Rate

  	
  15

  
	
  Section 2.05.

  	
  Fees

  	
  16

  
	
  Section 2.06.

  	
  Termination
  of Commitment

  	
  16

  
	
  Section 2.07.

  	
  Repayment
  of the Aggregate Advances

  	
  16

  
	
  Section 2.08.

  	
  Settlement
  Procedures

  	
  16

  
	
  Section 2.09.

  	
  Pro Rata
  Treatment and General Provisions Regarding Payments

  	
  17

  
	
  Section 2.10.

  	
  Collection
  Accounts and Lock-Box

  	
  17

  
	
  Section 2.11.

  	
  Designation
  of New Eligible Obligors

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3. COLLATERAL

  	
   

  	
  19

  
	
  Section 3.01.

  	
  Grant of
  Security Interest

  	
  19

  
	
  Section 3.02.

  	
  Further
  Assurances

  	
  19

  
	
  Section 3.03.

  	
  Termination
  of Security Interest

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4. REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  20

  
	
  Section 4.01.

  	
  Entity
  Existence and Power

  	
  20

  
	
  Section 4.02.

  	
  Entity
  and Governmental Authorization; No Contravention

  	
  20

  
	
  Section 4.03.

  	
  Litigation

  	
  20

  
	
  Section 4.04.

  	
  Binding
  Effect

  	
  20

  
	
  Section 4.05.

  	
  Margin
  Stock

  	
  20

  
	
  Section 4.06.

  	
  Good Title;
  Perfection

  	
  20

  
	
  Section 4.07.

  	
  Compliance
  with Laws

  	
  20

  
	
  Section 4.08.

  	
  Investment
  Company Act

  	
  20

  
	
  Section 4.09.

  	
  No
  Termination Event

  	
  20

  
	
  Section 4.10.

  	
  Insolvency

  	
  21

  
	
  Section 4.11.

  	
  Capital
  Structure

  	
  21

  
	
  Section 4.12.

  	
  Collateral
  Information

  	
  21

  
	
  Section 4.13.

  	
  Nature of
  Assigned Receivables

  	
  21

  
	
  Section 4.14.

  	
  Full
  Disclosure

  	
  21

  
	
  Section 4.15.

  	
  Survival
  of Representations and Warranties

  	
  21

  
	
  Section 4.16.

  	
  Restating
  of Representations and Warranties

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5. COVENANTS

  	
   

  	
  21

  
	
  Section 5.01.

  	
  Information

  	
  21

  
	
  Section 5.02.

  	
  Maintenance
  of Existence and Management

  	
  22

  
	
  Section 5.03.

  	
  Compliance
  with Laws; Payment of Taxes

  	
  22

  
	
  Section 5.04.

  	
  Maintenance
  of the Policy

  	
  22

  
	
  Section 5.05.

  	
  Separate
  Legal Entity

  	
  22

  
	
  Section 5.06.

  	
  Payment
  of Fees

  	
  23

  
	
  Section 5.07.

  	
  Payment
  of Indemnities

  	
  23

  
	
  Section 5.08.

  	
  Collection
  Accounts and Lock-Box

  	
  23

  
	
  Section 5.09.

  	
  Additional
  Negative Covenants

  	
  23

  
				



 


i

















 


	
  Section 5.10.

  	
  Control
  of Account

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6. TERMINATION
  EVENTS

  	
   

  	
  24

  
	
  Section 6.01.

  	
  Termination
  Events

  	
  24

  
	
  Section 6.02.

  	
  Remedies
  with Respect to Collateral

  	
  26

  
	
  Section 6.03.

  	
  Power of
  Attorney

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7. CHANGE IN
  CIRCUMSTANCES; COMPENSATION

  	
   

  	
  26

  
	
  Section 7.01.

  	
  Increased
  Cost and Reduced Return

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8. CONDITIONS TO
  MAKING ADVANCES

  	
   

  	
  27

  
	
  Section 8.01.

  	
  Conditions
  to Making Initial Advance

  	
  27

  
	
  Section 8.02.

  	
  Conditions
  to the Making of All Advances

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9. THE AGENT

  	
   

  	
  29

  
	
  Section 9.01.

  	
  Designation

  	
  29

  
	
  Section 9.02.

  	
  Delegation
  of Duties

  	
  29

  
	
  Section 9.03.

  	
  Exculpatory
  Provisions

  	
  29

  
	
  Section 9.04.

  	
  Reliance
  by Agent

  	
  30

  
	
  Section 9.05.

  	
  Notice of
  Termination

  	
  30

  
	
  Section 9.06.

  	
  Non-Reliance
  on Agent and Other Lenders

  	
  30

  
	
  Section 9.07.

  	
  Indemnification

  	
  31

  
	
  Section 9.08.

  	
  Agent in
  Its Individual Capacity

  	
  31

  
	
  Section 9.09.

  	
  Successor
  Agent

  	
  31

  
	
  Section 9.10.

  	
  Determination
  Pursuant to Program Documents

  	
  32

  
	
  Section 9.11.

  	
  Additional
  Information

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10. MISCELLANEOUS

  	
   

  	
  32

  
	
  Section 10.01.

  	
  Notices

  	
  32

  
	
  Section 10.02.

  	
  No
  Waivers

  	
  32

  
	
  Section 10.03.

  	
  Expenses;
  Documentary Taxes

  	
  33

  
	
  Section 10.04.

  	
  Taxes

  	
  33

  
	
  Section 10.05.

  	
  Indemnification
  by Borrower

  	
  34

  
	
  Section 10.06.

  	
  Adjustments;
  Set off

  	
  34

  
	
  Section 10.07.

  	
  Amendments
  and Waivers

  	
  34

  
	
  Section 10.08.

  	
  Third
  Party Beneficiaries

  	
  34

  
	
  Section 10.09.

  	
  Successors
  and Assigns; Participations and Assignments

  	
  34

  
	
  Section 10.10.

  	
  New York
  Law

  	
  36

  
	
  Section 10.11.

  	
  Severability

  	
  36

  
	
  Section 10.12.

  	
  WAIVER OF
  JURY TRIAL; CONSENT TO JURISDICTION

  	
  36

  
	
  Section 10.13.

  	
  Counterparts

  	
  36

  
	
  Section 10.14.

  	
  Consequential
  Damages

  	
  36

  
	
  Section 10.15.

  	
  Entire
  Agreement

  	
  36

  
	
  Section 10.16.

  	
  Non-Petition;
  Limitation on Payments

  	
  37

  
	
  Section 10.17.

  	
  USA
  Patriot Act

  	
  37

  
	
   

  	
   

  	
   

  
	
  Schedule 1.1A

  	
  Applicable Margins

  	
   

  
	
  Schedule 1.1B

  	
  Accounts

  	
   

  
	
  Schedule 1.1C

  	
  Lenders’ Commitments

  	
   

  
	
  Schedule 1.1D

  	
  Contingent Eligible
  Obligors

  	
   

  
	
  Schedule 1.1E

  	
  Eligible Obligors and
  Obligor Limits

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  FORM OF BORROWER’S
  COLLATERAL DISCLOSURE CERTIFICATE

  	
   

  
	
  EXHIBIT B

  	
  FORM OF BORROWING
  NOTICE 

  	
   

  
	
  EXHIBIT C

  	
  Deutsche Bank Trust
  Company Americas Control Agreement

  	
   

  
							



 


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  EXHIBIT D

  	
  FORM OF REMITTANCE
  REPORT 

  	
   

  
	
  EXHIBIT E

  	
  OPINIONS OF COUNSEL

  	
   

  
	
  Exhibit E-1

  	
  True Sale and
  Non-Consolidation Opinion

  	
   

  
	
  Exhibit E-2

  	
  UCC Perfection Opinion and
  General Corporate Opinion for Borrower, Sellers and Servicer 

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT F

  	
  FORM OF CLOSING
  CERTIFICATE 

  	
   

  
	
  EXHIBIT G

  	
  FORM OF OFFICER’S
  CERTIFICATE

  	
   

  
	
  EXHIBIT H

  	
  FORM OF NOTE

  	
   

  
	
  EXHIBIT I

  	
  FORM OF ADVANCE
  CALCULATION NOTICE

  	
   

  
	
  EXHIBIT J

  	
  FORM OF ASSIGNMENT
  AND ACCEPTANCE

  	
   

  



 


iii

















 


CREDIT AND SECURITY AGREEMENT


 


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


 


The parties hereto agree as
follows:


 


ARTICLE 1.

DEFINITIONS AND RELATED TERMS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Agreement” means
this Credit and Security Agreement.


 


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


 


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


 


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


 


1

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Benefited Lender”  is defined in Section 10.06.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


“group” (within the meaning of Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934) (i) shall have
acquired beneficial ownership of 35% or more on a fully diluted basis of the
voting and/or economic interest in the Capital Stock of Sanmina-SCI
Corporation; or (ii) shall have obtained the power (whether or not exercised)
to elect a majority of the members of the board of directors (or similar
governing body) of Sanmina-SCI Corporation; or (c) during any period of 12
consecutive months, the majority of the seats (other than vacant seats) on the
board of directors (or similar governing body) of Sanmina-SCI Corporation cease
to be occupied by Persons who either (i) were members of the board of
directors of Sanmina-SCI Corporation on November 20, 2008, or (ii) were
nominated for election by the board of directors of Sanmina-SCI Corporation, a
majority of whom were directors on November 20, 2008 or whose election or
nomination for election was previously approved by a majority of such directors
or directors elected in accordance with this clause (ii).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


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


 


“Control” means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5
















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


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


 


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


 


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


 


“Insurer” means
Atradius Trade Credit Insurance, Inc.


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Permitted Investments”
shall mean:


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


12

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Transferee” means
any Assignee or Participant.


 


“Transferor” means
Sanmina-SCI Corporation.


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14
















 


ARTICLE 2.

ADVANCES


 


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


 


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


 


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


 


Section 2.04.                             Interest Rate.


 


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


 


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


 


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


 


15

















 


Servicer for the purpose of paying interest on the Tranche A Advances or
the Tranche B Advances, the Agent agrees to apply such funds in a manner
consistent with this Section 2.04(c).


 


Section 2.05.                             Fees.  (a)  Borrower shall pay
to the Agent on the Closing Date the Arrangement Fee and, on a quarterly basis
in arrears, the Commitment Fee.  Borrower
shall pay, or cause to be paid, all other payments, fees, charges, indemnities
and expenses required to be paid to Agent, Lenders, Servicer and any other
person to whom such payments, fees, charges, indemnities and expenses are
payable by Borrower in accordance with the Program Documents.


 


(b)                                 Borrower agrees to pay to the Agent for the
period from and including the date hereof through the Facility Termination Date
for the ratable benefit of the Lenders (1), a non-refundable fee (the “Tranche
A Commitment Fee”) equal to 0.25% per annum on the excess of (i) the
Tranche A Commitments over (ii) the outstanding amount of the Tranche A
Advances on each day during each fiscal month; (2) a non-refundable fee
(the “Tranche B Commitment  Fee”) equal to 0.75% per annum on the
excess of (i) the Tranche B Commitments over (ii) the outstanding
amount of the Tranche B Advances on each day during each fiscal month.  The Tranche A Commitment Fee and the Tranche
B Commitment Fee shall be calculated on a daily basis, invoiced on the third
Business Day, and payable in arrears on the fifth Business Day, of each fiscal
quarter of Sanmina-SCI Corporation occurring after the initial Borrowing Date,
and on the Facility Termination Date.


 


Section 2.06.                             Termination of Commitment.


 


(a)                                  The Lenders may terminate the Commitment
following the occurrence and continuation of a Termination Event described in Section 6
hereof; provided, however, such termination shall not in any way
affect or relieve the liability of Borrower to pay all of the Obligations.


 


(b)                                 The Commitment shall terminate in full no
later than the Program Termination Date.


 


Section 2.07.                             Repayment of the Aggregate Advances.


 


(a)                                  Before the Final Payment Date, Borrower shall
have no obligation to repay any principal amount of the Aggregate Advances,
except as otherwise provided herein.


 


(b)                                 If on any Settlement Date the aggregate
principal amount of the Advances exceeds the Borrowing Base, Borrower shall
repay to the Agent for the account of the Lenders such amounts which are
necessary so that the outstanding principal amount of the Advances, after
giving effect to such payment, shall not exceed the applicable Borrowing Base.


 


(c)                                   Borrower shall cause all cash or cash
equivalent amounts received by Borrower on account of the Transferor’s
reacquisition of any Designated Receivable to be deposited directly into the
Collection Accounts pursuant to the TCA, without setoff, counterclaim, or any
other deduction, and applied in accordance with Section 2.08.


 


(d)                                 Each Lender acknowledges and agrees that the
Transferor shall not be liable for any Obligation of Borrower hereunder.


 


(e)                                  All Policy Proceeds, if any, received by the
Borrower or the Agent shall be deposited to the appropriate Collection Account
and, in the event the Borrower receives such Policy Proceeds directly, the
Borrower shall notify the Insurer to make any Policy Proceeds payment directly
to the appropriate Collection Account.


 


Section 2.08.                             Settlement Procedures.


 


(a)                                  Except as set forth in Section 2.08(b),
on each Settlement Date Collections on Assigned Receivables (including Policy
Proceeds on deposit in the Collection Accounts), shall be withdrawn from the
Collection Accounts and applied by Servicer in the following order (and in no
other order without the Agent’s prior


 


16

















 


written consent until the amounts due and payable in each category are
fully paid): (i) first, to the Payment Account, an amount equal to the
interest accrued on Advances through and including the preceding Business Day; (ii) second,
any Servicing Fees accrued through such Settlement Date shall be paid to
Servicer; (iii) third, an amount equal to the Borrowing Base Deficit
(calculated before giving effect to any Receivables that became Assigned
Receivables on such Settlement Date and the amount of the Advance (if any)
being made on such Settlement Date) shall be paid to the Payment Account and
applied by the Agent to reduce the outstanding principal amount of the
respective Advances;  (iv) fourth,
to Borrower, any remaining funds.  Notwithstanding
clause third of the preceding sentence, Collections on deposit in the
Collection Account on any Settlement Date that are payable pursuant to clause
third may be netted and set-off by the Servicer against the Advance, if any, to
be made on such Settlement Date.  Any
amounts applied by Servicer pursuant to the preceding sentence to satisfy
Lenders’ obligation to make new Advances on any Settlement Date shall be deemed
to have been paid to Lenders in reduction on the outstanding principal amount
of the Advances on such Settlement Date.


 


(b)                                 At all times after the Program Termination
Date, on each Settlement Date all Collections on Assigned Receivables
(including all Policy Proceeds on deposit in the Collection Accounts) shall be
withdrawn from the Collection Account and applied by Servicer in the following
order (and in no other order without the Agent’s prior written consent until
all amounts due and payable within each category are fully paid): (i) first,
to the Agent to pay the amount of any fees and expenses (including but not
limited to fees and expenses of its counsel) that have not been paid or
reimbursed to the Agent or the Lenders that are payable by Borrower in
accordance with the terms of this Agreement or the other Program Documents,
together with any interest accrued thereon; (ii) second, to the Agent for
any indemnities owed by Borrower to the Agent or the Lenders under this
Agreement or the other Program Documents; (iii) third, to the Agent in
payment of accrued interest accrued in respect of the Aggregate Advances
through and including the preceding Business Day;  (iv) fourth, to the Agent in payment of
the principal of the Aggregate Advances; and (v) fifth, to Borrower.


 


Section 2.09.                             Pro Rata Treatment and General Provisions
Regarding Payments.


 


(a)                                  The borrowings by Borrower from Lenders
hereunder and each payment by Borrower on account of any Commitment Fee shall
be made pro rata according to the respective Tranche A Commitment Percentages
or Tranche B Commitment Percentages, as applicable, of Lenders.


 


(b)                                 Each payment (including each prepayment) by
Borrower on account of principal of and interest on the Tranche A Advances
shall be made pro rata according to the respective outstanding principal
amounts of the Tranche A Advances then held by Lenders.  Each payment (including each prepayment) by
Borrower on account of principal of and interest on the Tranche B Advances
shall be made pro rata according to the respective outstanding principal
amounts of the Tranche B Advances then held by Lenders.


 


(c)                                  All payments (including prepayments) to be
made by Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 1:00 p.m., New York City time, on the due date thereof to the Payment
Account, in Dollars or in Euros (as the case may be) and in immediately
available funds. The Agent shall distribute such payments to Lenders promptly
upon receipt in like funds as received.  If
any payment hereunder becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business
Day.  In the case of any extension of any
payment of principal pursuant to the preceding sentence, interest thereon shall
be payable at the then applicable rate during such extension.


 


Section 2.10.                             Collection Accounts and Lock-Box. Borrower shall establish and, until the
Program Termination Date, continuously maintain, the Collection Accounts and
the Lock-Box, (which commencing on the Collection Account Effective Date shall
be the Tranche A and Tranche B Collection Accounts and, commencing on the
Lock-Box Effective Date, the Lock-Box) into which the Transferor, the Servicer,
and/or Borrower shall cause all Account Debtors of the Assigned Receivables to
remit all cash, checks, drafts, items and other instruments for the payment of
money which it now has or may at any time hereafter receive in full or partial
payment on or collection of the Assigned Receivables or the proceeds of the
Assigned Receivables, it being understood that (i) commencing on the
Collection Account Effective Date, the Borrower (directly or through the
Servicer) shall instruct all Account Debtors that pay by wire transfer of
funds, automated clearing house (“ACH”) entries, credits from merchant card
transactions and other electronic fund transfers to make such payments directly


 


17

















 


to the relevant Collection Account, although such Account Debtors may
continue to pay to the Sanmina Accounts during the Collection Account Ramp-Up
Period provided such Sanmina Accounts are swept daily into the Collection
Accounts, and (ii) from the Lock-Box Effective Date and commencing
thereon, the Borrower (directly or through the Servicer) shall instruct all
Account Debtors that pay by check, draft or other instruments to make such
payments directly to the Lock-Box, although such Account Debtors may continue
to pay to the Sanmina Lock-Box during the Lock-Box Ramp-Up Period.  In the event any items of payment on any
Assigned Receivables are inadvertently received by Borrower or any other
Person, whether or not in accordance with the terms of this Agreement or any
other Program Document, Borrower or such other Person shall be deemed to hold the
same in trust for the benefit of the Agent and shall promptly deposit such
items of payment in the Collection Accounts without setoff, counterclaim, or
other deduction.  Amounts paid into the
Lock-Box will be credited thereto in accordance with the terms and conditions
of the lock-box agreement between the Borrower and Deutsche Bank Trust Company
Americas.


 


Section 2.11.                             Designation of New
Eligible Obligors.  (a)  If the
Borrower wishes to designate a Contingent Eligible Obligor as an Eligible
Obligor (a “New Eligible Obligor”), it shall first notify the Agent of
the designation of such customer as a New Eligible Obligor.  Subject to (i) the prior written consent
of the Required Lenders to the addition of such New Eligible Obligor, (ii) determination
of the applicable Obligor Limits and Applicable Margin for such New Eligible
Obligor by Required Lenders, (iii) compliance with the requirements for
perfection of the ownership and security interest in the Receivables arising
from sales to such Eligible Obligor, and legal opinions, in each case in form
and substance satisfactory to the Agent and the Lenders, and (iv) fulfillment
by each Lender of the procedures specified in Section 2.11(b), such
customer shall be deemed to be an Eligible Obligor for all purposes of this
Agreement and the other Program Documents. 
The Borrower shall use its reasonable commercial efforts, consistent
with its obligations of confidentiality, to provide such information concerning
the New Eligible Obligors and their contractual relations with the Transferor
as the Agent may reasonably request.


 


(b)                                 In
connection with its designation of a Contingent Eligible Obligor as a New
Eligible Obligor hereunder, the Borrower shall request the establishment of
Commitments in respect of such Contingent Eligible Obligor in an amount that,
when added together with the then existing Commitments does not exceed
$250,000,000.  At the time of sending
such request, the Borrower (in consultation with the Agent) shall specify the
time period within which each Lender is requested to respond (which shall in no
event be less than 15 Business Days from the date of delivery of such request
to the Lenders).  Each Lender shall
determine, in its sole discretion, whether it will establish a Commitment in
respect of such New Eligible Obligor, and shall notify the Agent within such
time period whether or not it agrees to establish such a Commitment, it being
understood that each Lender must agree to establish a Commitment for such New
Eligible Obligor in an amount equal to its pro rata share of such requested
amount for the Commitment to take effect with respect to such Lender; provided,
however, that if any Lender declines to establish a Commitment
accordingly (any such Lender being a “Non-Increasing Lender” with
respect to such New Eligible Obligor), the other Lenders may agree to increase
their Commitments in respect of such New Eligible Obligor by an aggregate
amount equal to the full amount of what would have been such Non-Increasing
Lender’s pro rata share of the requested increase (no such increase by the
other Lenders being permitted in an aggregate amount of less than the full
amount of such pro rata share).  Any
Lender not responding within such time period shall be deemed to have declined
to establish a Commitment for such New Eligible Obligor and shall constitute a
Non-Increasing Lender with respect to such New Eligible Obligor.


 


(c)                                  If the Lenders agree to increase the
Commitments in accordance with this Section, the Agent and the Borrower shall
determine the effective date of such increase (an “Increase Effective Date”)
and promptly notify the Lenders thereof. 
As a condition precedent to such increase, the Borrower shall deliver to
the Agent a certificate (i) certifying that before and after giving effect
to such increase, the representations and warranties contained in Article 4
are true and correct on and as of the Increase Effective Date, except to the
extent that such representations and warranties specifically refer to an
earlier date and (ii) no Termination Event or Unmatured Termination Event
exists.  The Agent shall distribute an
amended Schedule 1.1E (which shall be deemed incorporated into this Agreement)
to reflect the changes therein resulting from such increase.


 


(d)                                 If the Borrower wishes to increase the
Obligor Limits in respect of one or more Eligible Obligors from time to time,
subject to (i) the prior written consent of the Lenders to the increase,
and (ii) determination of the applicable Obligor Limits, the newly
approved Obligor Limit shall be effective for all purposes


 


18

















 


hereunder.  The Agent shall
distribute an amended Schedule 1.1E (which shall be deemed incorporated into
this Agreement) to reflect the changes therein resulting from such increase.


 


In
connection with the request for an increase in Obligor Limits, at the time of
sending such request, the Borrower (in consultation with the Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than 15 Business Days from the date of delivery of
such request to the Lenders).  Each
Lender shall determine, in its sole discretion, whether it will agree to such increase,
and shall notify the Agent within such time period whether or not it agrees to
establish such a new Obligor Limit, it being understood that each Lender must
agree in order for such new Obligor Limit to take effect.


 


(e)                                   Under the terms of the Revolving Trade
Receivables Purchase Agreement dated as of June 26, 2008 (the “Sanmina
Foreign Facility”) among the Agent, Sanmina-SCI Corporation and affiliates
of Sanmina-SCI Corporation, the Originators thereunder are entitled to reduce
their available Purchaser’s Investment Limit. 
In the event that the Originators under the Sanmina Foreign Facility
reduce the Purchaser’s Investment Limit thereunder, then the Agent shall
increase the Commitments hereunder by a corresponding amount, subject in all
events to the Obligor Limits and other terms and conditions hereunder.


 


Section 2.12                                Evidence of Debt.  The
Agent, on behalf of Borrower, shall maintain the Register pursuant to Section 10.09(d),
and a subaccount therein for each Lender, in which shall be recorded (i) the
identity of each Lender, (ii) the amount of each Advance made hereunder
and any Note evidencing such Advance, (iii) the amount of any principal or
interest due and payable or to become due and payable from Borrower to each
Lender hereunder and (iv) both the amount of any sum received by the Agent
hereunder from Borrower and each Lenders’ share thereof.


 


ARTICLE 3.

COLLATERAL


 


Section 3.01.                             Grant of Security Interest. As security for the payment of all
Obligations, Borrower hereby grants to the Agent on behalf of the Lenders a
security interest in and to all of the Assigned Receivables and the Related
Rights and Property with respect to the Assigned Receivables, the Collection
Accounts, the Lock-Box and all products and/or proceeds of any and all of the
foregoing.  The Agent agrees that the
security interest of the Agent in any funds distributed to the Borrower
pursuant to Section 2.08(a)(iv) or 2.08(b)(vi) shall be
automatically released.


 


Section 3.02.                             Further Assurances.  At
the request of Agent, Borrower shall duly execute and/or deliver (or cause to
be duly executed and/or delivered) to the Agent any instrument, agreement,
invoice, document, document of title, dock warrant, dock receipt, warehouse
receipt, bill of lading, order, Financing Statement, assignment, waiver,
consent or other writing which may be reasonably necessary to the Agent to
carry out the terms of this Agreement or any of the other Program Documents and
to perfect its and its assignee’s security interest or intended security
interest in and facilitate the collection of the Collateral by Servicer, the
proceeds thereof, and any other property at any time constituting security or
intended to constitute security to the Agent for the benefit of the Lenders.
Borrower shall perform or cause to be performed such acts as the Agent may
request to establish and maintain for the Agent for the benefit of the Lenders
a valid and perfected security interest in the Collateral, free and clear of
any Liens except Permitted Encumbrances.


 


Section 3.03.                             Termination of Security Interest.  The
Agent agrees that it shall, upon the full and final payment and performance of
all Obligations (other than contingent and indemnification Obligations not then
due and payable) and the termination of the Commitment, at Borrower’s cost and
expense and at the Borrower’s written direction, execute and deliver such
documents, agreements, or instruments delivered to it by Borrower for execution
which are necessary to terminate and release all Liens on the Collateral
arising pursuant to the Program Documents.


 


19

















 


ARTICLE 4.

REPRESENTATIONS AND WARRANTIES


 


Borrower
represents and warrants to the Agent and the Lenders that:


 


Section 4.01.                             Entity Existence and Power. Borrower is a limited liability company
duly formed, validly existing, and in good standing under the laws of the State
of Delaware, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all limited liability company powers and all governmental licenses, authorizations,
consents and approvals required to own its assets (including but not limited to
the Accounts Receivables) and to carry on its business as now conducted.


 


Section 4.02.                             Entity and Governmental Authorization; No
Contravention.  Borrower’s execution, delivery, and
performance of this Agreement, and the other Program Documents to which it is a
party (i) are within Borrower’s limited liability company powers, (ii) have
been duly authorized by all necessary limited liability company action, and
have been executed on behalf of Borrower by duly authorized officers, require
no action by or in respect of or filing with, any Governmental Authority, (iii) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of Borrower’s organizational documents or of any agreement,
judgment, injunction, order, decree, or other instrument binding upon Borrower,
and (iv) do not result in the creation or imposition of any Lien on any
asset of Borrower except as created by the Program Documents.


 


Section 4.03.                             Litigation. There is no action, suit or proceeding pending or, to Borrower’s
knowledge, threatened against or affecting Borrower before any Governmental
Authority.


 


Section 4.04.                             Binding Effect. This Agreement constitutes a valid and
binding agreement of Borrower enforceable in accordance with its terms, and the
other Program Documents, when executed and delivered in accordance with this
Agreement, will constitute valid and binding obligations of Borrower
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors’ rights generally or by general principals of
equity.


 


Section 4.05.                             Margin Stock. Borrower is not engaged principally, or as
one of its important activities, in the business of purchasing or carrying any
Margin Stock, and no part of the proceeds of any Advance will be used to
purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with, the provisions of Regulation T,
U, or X.


 


Section 4.06.                             Good Title; Perfection. Borrower is the legal and beneficial owner
of the Assigned Receivables and their Related Rights and Property, free and
clear of any Lien, except Permitted Encumbrances. 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 Borrower’s ownership in each Assigned Receivable and their Related
Rights and Property (to the extent such Related Rights and Property may be
perfected by the filing of Financing Statements under the UCC).


 


Section 4.07.                             Compliance with Laws. Borrower is in compliance with all
applicable laws, regulations and similar requirements of Governmental
Authorities, except where the necessity of such compliance is being contested
in good faith through appropriate proceedings diligently pursued and except
where failure to comply would not have and could not reasonably be expected to
cause a Material Adverse Effect.


 


Section 4.08.                             Investment Company Act. Borrower is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


Section 4.09.                             No Termination Event. No Unmatured Termination Event or
Termination Event has occurred and is continuing.


 


20

















 


Section 4.10.                             Insolvency. After giving effect to the execution and delivery of the Program
Documents and the incurrence of the Obligations under this Agreement, Borrower
will not be “insolvent,” as such term is defined in Section 101 of the
Bankruptcy Code.


 


Section 4.11.                             Capital Structure. Borrower’s sole membership interest is
legally and beneficially owned by Sanmina-SCI Corporation, free and clear of
any Lien; such membership interest has been validly issued, fully paid, and are
nonassessable; and there are no options, warrants, or other rights to acquire
any Borrower membership interest. Borrower has no Subsidiaries.


 


Section 4.12.                             Collateral Information.  The
location of Borrower’s Books and Records relating to the Assigned Receivables,
the state of formation of Borrower, and Borrower’s organizational
identification number, each as of the Closing Date, are identified in Borrower’s
Collateral Disclosure Certificate. The information relating to the Sanmina
Collection Accounts and the Sanmina Lock-Box is true and correct in all
respects.


 


Section 4.13.                             Nature of Assigned Receivables. Each Assigned Receivable constitutes an “account,”
or “general intangible,” as such terms are defined in the UCC.


 


Section 4.14.                             Full Disclosure. All written information heretofore
furnished by or on behalf of Borrower to the parties hereto for purposes of or
in connection with this Agreement, the other Program Documents, the Program, or
any transaction contemplated hereby or thereby is, and all such information
hereafter furnished by Borrower, Servicer or the Transferor to the parties
hereto will be, true, accurate, and complete in every material respect on the
date such information is stated or certified and does not and will not contain
any material misstatement of fact. 
Borrower has disclosed to Agent in writing any and all facts of which it
has knowledge and which could reasonably be expected to have or cause a
Material Adverse Effect.


 


Section 4.15.                             Survival of Representations and Warranties. 
Borrower covenants, warrants, and represents to the Agent and the
Lenders that all of Borrower’s representations and warranties contained in this
Agreement or any of the other Program Documents shall be true at the time of
the execution of this Agreement and the other Program Documents and shall
survive the execution, delivery, and acceptance thereof by the Agent and the
Lenders and the other parties thereto and the closing of the transactions
described therein or related thereto.


 


Section 4.16.                             Restating of Representations and Warranties. Each of the representations and warranties
of Borrower contained herein shall be made as of the Closing Date and shall be
deemed restated and made by Borrower on the date each Advance is made.


 


ARTICLE 5.

COVENANTS


 


Borrower
agrees that, until the Program Termination Date, Borrower shall comply with the
covenants set forth in this Article 5:


 


Section 5.01.                             Information.  Borrower will deliver, or
cause to be delivered, to the Agent:


 


(a)                                  promptly, but in any event within five
Business Days after Borrower becomes aware of the occurrence of any Unmatured
Termination Event or Termination Event, a certificate of a Senior Officer of
Borrower setting forth the details thereof and the action which Borrower is
taking or proposes to take with respect thereto;


 


(b)                                 promptly upon receipt, a copy of any
correspondence or notices received from the Insurer regarding the Policy;


 


(c)                                  written notice of the following:


 


21

















 


(i)                                     promptly after Borrower’s learning thereof,
of (A) the commencement of any litigation affecting Borrower or any of its
assets, whether or not the claim is considered by Borrower to be covered by
insurance, and (B) the institution of any administrative proceeding
against Borrower;


 


(ii)                                  promptly after the rendition thereof, of any
judgment rendered against Borrower;


 


(iii)                               promptly after Borrower’s learning thereof,
of any default by Borrower under any note, indenture, loan agreement, mortgage,
lease, deed, guaranty, or other similar agreement relating to any Indebtedness
of Borrower;


 


(iv)                              promptly after Borrower’s learning thereof,
of any default by Borrower, Servicer or Transferor under any Program Documents
to which any of them is a party;


 


(v)                                 promptly after Borrower’s learning thereof,
of the occurrence of (A) any default by the Transferor under any note,
indenture, loan agreement, mortgage, lease, deed, guaranty, or other similar
agreement relating to any Indebtedness of Transferor or any of its Subsidiaries
(other than Borrower) in an aggregate amount greater than $50,000,000.00 and (B) any
judgment rendered against Transferor or any of its Subsidiaries (other than
Borrower) in an aggregate amount greater than $5,000,000.00 (in excess of any
insurance coverage); and


 


(vi)                              promptly after Borrower’s learning thereof,
any other development or event that has had or could reasonably be expected to
have a Material Adverse Effect.


 


Section 5.02.                             Maintenance of Existence and Management. Borrower shall maintain (i) its
existence and carry on its business in substantially the same manner as such
business is now carried on and maintained; (ii) its organizational
documents and not permit any amendment or other modification to Sections 7, 9(e) and
11 of the Limited Liability Company Agreement of the Borrower as in effect on
the date hereof without the prior written consent of Agent; and (iii) a
duly appointed manager or one or more duly appointed or elected officers with
the requisite authority to effect Borrower’s compliance with the Program
Documents.


 


Section 5.03.                             Compliance with Laws; Payment of Taxes. Borrower will comply with applicable laws,
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings diligently pursued and except where failure to
comply would not have and could not reasonably be expected to cause a Material
Adverse Effect.  Subject to funds being
lawfully available therefor, Borrower will pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent, and other
obligations for which it is liable in each case, which, if unpaid, might become
a Lien (other than Permitted Encumbrances) against Borrower’s property, except
liabilities being contested in good faith and against which Borrower will set
up reserves in accordance with GAAP.


 


Section 5.04.                             Maintenance of the Policy. 
Borrower shall cooperate with the Agent to maintain the Policy in full
force and effect at all times, cooperate with the Agent and the Insurer in the
administration of the Policy and the submitting of claims thereunder.  The Borrower, or Servicer on behalf of the
Borrower, shall be obligated to take all necessary action to claim under the
Policy in accordance with the terms of the Policy not later than 10 days after
the end of the applicable waiting period specified in the Policy.


 


Section 5.05.                             Separate Legal Entity. Borrower hereby acknowledges that the Agent
and the Lenders are entering into the transactions contemplated by this
Agreement and the other Program Documents in reliance upon Borrower’s identity
as a legal entity separate from any other Person. Therefore, from and after the
date hereof, Borrower shall take all reasonable steps to continue Borrower’s
identity as a separate legal entity and to make it apparent to third Persons
that Borrower is an entity with assets and liabilities distinct from those of
any other Person, and is not a division of any other Person. Without limiting
the generality of the foregoing and in addition to and consistent with the
other covenants set forth herein, Borrower will take and continue to take all
actions described in the opinion of Baker & McKenzie delivered on the
Closing Date to avoid the substantive consolidation of Borrower with the
Transferor and will comply with the provisions of Borrower’s certificate of
formation and limited liability company agreement.


 


22
















 


Section 5.06.          Payment of Fees. Borrower will
timely pay all fees, premiums, charges, costs, and expenses, and each other
Obligation, which it is required to pay under any of the Program Documents,
including, without limitation, all fees associated with the establishment and
maintenance of the Collection Accounts.


 


Section 5.07.                             Payment of Indemnities. 
Borrower will timely reimburse the Agent for any indemnities owed by
Borrower to Agent and the Lenders under this Agreement or the other Program
Documents.


 


Section 5.08.                             Collection Accounts and Lock-Box. 
Borrower shall take all actions necessary to preserve the Agent’s first
priority security interest in the Collateral on deposit in the Collection
Accounts and the Lock-Box, subject in each case to Permitted Encumbrances.


 


Section 5.09.                             Additional Negative Covenants. Without the Agent’s prior written consent,
Borrower shall not:


 


(a)                                  enter into any contracts or agreements with
any Person other than the Program Documents or amend, terminate, supplement, or
otherwise modify any Program Document;


 


(b)                                 other than as contemplated in the Program
Documents, make payment of dividends to its stockholder, enter into, or be a
party to, any transaction with any Affiliate of Borrower, Servicer, or the
Transferor; provided  that any dividends or tax payments shall be
paid solely out of the amounts available to the Borrower under Section 2.08(a)(iv) and
shall be expressly subordinate to the Borrower’s obligations to the Lenders
hereunder;


 


(c)                                  create or acquire any Subsidiary or engage in
any business other than those businesses directly related to the Program;


 


(d)                                 make Investments in any Person except
Permitted Investments or inter-company loans, provided  that any
such loans shall be made solely out of the amounts available to the Borrower
under Section 2.08(a)(iv) and shall be pledged by the Borrower to the
Agent to secure the Obligations hereunder;


 


(e)                                  create any Lien, directly or indirectly, on
any Collateral, except Permitted Encumbrances, or suffer to exist any lien, directly
or indirectly, on any portion of the Collateral, except Permitted Encumbrances,
and such Lien is not released within 3 Business days of Borrower being aware
thereof;


 


(f)                                    create, assume, or incur any Indebtedness,
except Obligations under this Agreement or otherwise contemplated by the
Program Documents;


 


(g)                                 issue any membership interests other than to
Sanmina-SCI Corporation or permit any Person other than Sanmina-SCI Corporation
to own any membership interest;


 


(h)                                 open or otherwise acquire actual or
beneficial ownership of any deposit, savings, commodities, or securities
account other than the Collection Accounts and the Lock-Box;


 


(i)                                     contract or enter into any agreement for any
trade receivables or credit insurance or other agreement or transaction to
mitigate the risk of nonpayment of any of Assigned Receivable or purchase any
Accounts Receivable other than in accordance with the Program Documents;


 


(j)                                     suffer or permit dissolution or liquidation
either in whole or in part, (ii) redeem or retire any shares of its own
membership interests, (iii) merge or consolidate with any Person, or (iv) sell,
lease, or otherwise transfer all or any part of the Collateral to any Person,
except as contemplated by the Program Documents (but excluding sales of returned,
reclaimed, replevined, or repossessed goods represented by an Assigned
Receivable).


 


Section 5.10.                             Control of Account. The Agent agrees that it shall not exercise
any right to take control of the Collection Accounts or the Lock-Box, or give
any instructions to any depository bank or financial 


 


23

















 


institution holding such
accounts as to the disposition of funds in such accounts or as to any other
matter relating to such accounts unless a Termination Event has occurred and is
continuing.


 


ARTICLE 6.

TERMINATION EVENTS


 


Section 6.01.                             Termination Events. If one or more of the following events (“Termination
Events”) shall have occurred and be continuing:


 


(a)                                  Borrower shall fail to pay when due (i) any
portion or all of the principal of the Aggregate Advances, (ii) any
interest on the Aggregate Advances, or (iii) any fee or other Obligations
owing to the Agent or the Lenders hereunder or under the Program Documents, and
in the case of the preceding clause (iii), such failure shall continue for 5
Business Days after notice thereof has been given to Borrower; or


 


(b)                                 Borrower shall fail to observe or perform any
covenant contained in Sections 5.05 and 5.09 (excluding subsection 5.09(e)); provided,
however, that if within five (5) Business Days of a Senior Officer
of the Borrower becoming aware of the occurrence of any such event or events
under Section 5.05, Borrower shall provide to the Agent an opinion of
counsel to Borrower reasonably satisfactory to the Agent (which may be a
bringdown or reaffirmation of a previously delivered opinion addressed to the
Agent) in form and substance reasonably satisfactory to the Agent as to the
matters set forth in paragraphs II.A.3 and II.B.3 of the form of opinion comprising
Exhibit E-1 of this agreement notwithstanding the occurrence of such event
or events, then such event or events shall not constitute a Termination Event
hereunder; or


 


(c)                                  Borrower shall fail to observe or perform any
covenant contained in Section 5.08(e), and such failure (whether the
result of mechanical or human error) shall not have been cured within 3
Business Days after the earlier to occur of (i) written notice thereof has
been given to Borrower by the Agent or any Lender or (ii) Borrower
otherwise becomes aware of any such failure; or


 


(d)                                 Borrower shall fail to observe or perform any
covenant contained in Sections 5.01(c) and 5.03; or


 


(e)                                  Borrower shall fail to observe or perform any
covenant or agreement herein (other than those covered by paragraphs (a) through
(d) above) or any Program Document and such failure shall not have been
cured within 10 Business Days after the earlier to occur of (i) written
notice thereof has been given to Borrower by the Agent or any Lender or (ii) Borrower
otherwise becomes aware of any such failure; or


 


(f)                                    any representation, warranty, certification
or statement made by Borrower or Transferor in this Agreement or in any
certificate, financial statement, or other document delivered pursuant to this
Agreement or any other Program Agreement shall prove to have been incorrect or
misleading in any material respect when made (or deemed made); or


 


(g)                                 any Servicing Agreement Termination Event
shall occur; or


 


(h)                                 a Borrowing Base Deficit shall have occurred
and be continuing for a period in excess of three Business Days;


 


(i)                                     (i) the Borrower or the Transferor shall
commence (or be consolidated with) any case, proceeding or other action (A) under
any existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part
of its assets, or the Borrower or the Transferor shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or the Transferor (or seek to include as
consolidated parties) any case, proceeding or other action of a nature referred
to in clause (i) above that (A) results in the entry of an order for
relief or any such


 


24

















 


adjudication
or appointment or (B) remains undismissed, undischarged or unbonded for a
period of 90 days; or (iii) there shall be commenced against the Borrower
or the Transferor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 90 days from the entry thereof; or (iv) the Borrower
or the Transferor shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Borrower or the
Transferor shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or


 


(j)                                     a Lien on any Collateral (except for any
Permitted Encumbrance), warrant, or writ of attachment or execution or similar
process shall be ordered or issued by any Governmental Authority against any
property of Borrower in any amount and such Lien on any Collateral, warrant,
writ or process shall not be discharged, vacated, stayed or bonded within five
days of the date of its entry; or


 


(k)                                  there occurs any Change of Control; or


 


(l)                                     the Agent shall cease to have a valid and
perfected first priority security interest in the Collateral (except for any
Permitted Encumbrances); or


 


(m)                               any Program Document shall cease, for any
reason, to be in full force and effect, or the Transferor, Borrower, or
Servicer shall so assert in writing or the Transferor, Borrower, or Servicer
shall otherwise seek to terminate or disaffirm its obligations under any such
Program Document; or


 


(n)                                 Borrower shall fail to cause payments with
respect to the Assigned Receivables to be deposited in the Collection Accounts
or the Sanmina Lock-Box or the Lock-Box, prior to the end of the Lock-Box
Ramp-Up Period, in the Lock-Box following the end of the Lock-Box Ramp-Up
Period or shall fail to cause payments with respect to the Assigned Receivables
during the Collection Account Ramp-Up Period and the Lock-Box Ramp-Up Period to
be swept into the Tranche A and Tranche B Collection Accounts; provided,
however, that if such failure is a result of mechanical or human error
(excluding any error arising from negligence of Borrower), then such failure
shall not comprise a Termination Event if cured in three Business Days; or


 


(o)                                 there occurs any Material Adverse Effect in
the business, assets, property, operations or condition (financial or
otherwise) of the Servicer or the Borrower or the Insurer’s credit rating is
downgraded by S&P to “BBB” or lower; or


 


(p)                                 the Transferor shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation constituting Indebtedness) on the
scheduled or original due date with respect thereto and such default continues
beyond any applicable grace period; or (ii) default in making any payment
of any interest on any such Indebtedness beyond any applicable grace period
provided in the instrument or agreement under which such Indebtedness was
created; or (iii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or (in the case of any such Indebtedness
constituting a Guarantee Obligation) to become payable; provided, however, that
a default, event or condition described in clause (i), (ii) or (iii) of
this paragraph (p) shall not at any time constitute a Termination Event
unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (p) shall
have occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $50,000,000; or


 


(q)                                 An Event of Default occurs under Section 11.1(k) of
the ABL, without giving effect to any termination of such agreement;


 


25

















 


then,
and in every such event, the Agent on behalf of the Lenders may (i) by
notice to Borrower terminate the Commitments; (ii) by notice to Borrower
declare all amounts payable hereunder and under the other Program Documents, to
be, and the same shall thereupon become, immediately due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
hereby waived by Borrower together with interest at the Default Rate accruing on
the principal amount thereof from and after the date of such Termination Event;
provided  that if any Termination Event specified in paragraphs (i) and
(j) above occurs with respect to Borrower or the Transferor, without any
notice to Borrower or any other act by the Agent on behalf of the Lenders, the
Commitments shall thereupon terminate and all amounts payable hereunder and
under the other Program Documents shall automatically and without notice become
immediately due and payable without presentment, demand, protest, or other
notice of any kind, all of which are hereby waived by Borrower together with
interest thereon at the Default Rate accruing on the principal amount thereof
from and after the date of such Termination Event; or exercise any rights, powers
or remedies under this Agreement and the other Program Documents.


 


Section 6.02.                             Remedies with Respect to Collateral.


 


(a)                                  Upon the occurrence and during the
continuance of a Termination Event, the Agent shall have the rights and
remedies of a secured party under the UCC in effect on the date thereof; provided
that the Agent may not sell, lease or dispose of the Collateral unless
Borrower shall fail to pay when due (i) any portion or all of the
principal of the Aggregate Advances within two (2) Business Days after the
Final Payment Date, or (ii) any interest on the Aggregate Advances and
such failure shall continued unremedied for 5 Business Days.  Notwithstanding the foregoing or anything
contained herein to the contrary, the Agent shall, upon the occurrence and
during the continuance of a Termination Event, be entitled to exercise all
rights and remedies available to it under the Program Documents and at law,
including without limitation its right to withdraw Collections from the
Collection Accounts and the Lock-Box and apply them as set forth in this
Agreement.


 


(b)                                 Proceeds of any of the Collateral and
payments by Borrower during the existence of a Termination Event received by
the Agent shall be applied by the Agent in accordance with the provisions of Section 2.08(b).
In the event that the proceeds of the Collateral are not sufficient to pay the
Obligations in full, Borrower shall remain liable for any deficiency.


 


(c)                                  Unless and except to the extent expressly
provided for to the contrary herein, the rights of the Agent specified herein
shall be in addition to, and not in limitation of, Agent’s rights under the
UCC, or any other statute or rule of law or equity, or under any other
provision of any of the Program Documents, or under the provisions of any other
document, instrument or other writing executed by Borrower or any third party
in favor of the Agent all of which may be exercised successively or
concurrently.


 


Section 6.03.                             Power of Attorney. Borrower irrevocably designates and
appoints the Agent its true and lawful attorney, during the existence of a
Termination Event, either in its name or in the name of Borrower to ask for,
demand, sue for, collect, compromise, compound, receive, give receipt for, and
give acquittances for any and all sums owing or which may become due upon any
items of the Assigned Receivables, their Related Rights and Property, and the
other Collateral and, in connection therewith, to take any and all actions as
the Agent may deem necessary or desirable in order to realize upon the same,
including, without limitation, power to endorse in the name of Borrower, any
checks, drafts, notes, or other instruments received in payment of or on
account of the Assigned Receivables, their Related Rights and Property, and the
other Collateral, but the Agent shall be under no duty to exercise any such
authority or power or in any way be responsible for the collection thereof.


 


ARTICLE 7.

CHANGE IN CIRCUMSTANCES; COMPENSATION


 


Section 7.01.                             Increased Cost and Reduced Return.


 


(a)                         If any Change of Law:


 


(i)                            shall impose, modify, or deem applicable any
reserve, special deposit, or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the 


 


26

















 


Federal Reserve System) against assets of, deposits with or for the
account of, or credit extended by, any Lender; or


 


(ii)                         shall impose on any Lender or on the United
States market for certificates of deposit any other condition affecting the
Aggregate Advances, or on any Lender’s obligation to make Advances; and the
result of any of the foregoing is to increase the cost to such Lender of making
or maintaining any Advance or the Aggregate Advances, or to reduce the amount
of any sum received or receivable by such Lender under this Agreement with
respect thereto, then, in accordance with Section 7.01(c), Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction.


 


(b)                                 If any Lender shall have determined in good
faith that after the date hereof that any Change in Law affecting such Lender
regarding capital requirements would have the effect of reducing the rate of
return on such Lender’s capital as a consequence of their obligations hereunder
to a level below that which such Lender could have achieved but for such Change
in Law (taking into consideration such Lender’s policies with respect to
capital adequacy), then, in accordance with 7.01(c), Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for
such reduction.


 


(c)                                  Each affected Lender will promptly notify
Borrower and the Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to
this Section. A certificate of such Lender claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods.


 


ARTICLE 8.

CONDITIONS TO MAKING ADVANCES


 


Section 8.01.                             Conditions to Making Initial Advance. Each Lender’s obligation to make the
initial Advance is subject to the satisfaction of the conditions set forth in Section 8.02
and receipt by the Agent of the following:


 


(a)                                  duly executed original counterparts of this
Agreement and each other Program Document (including the Control Agreement),
all signed by all parties thereto other than the Agent;


 


(b)                                 an opinion letter or letters, each in form
and substance reasonably satisfactory to Agent, of Baker & McKenzie,
counsel for Transferor, Servicer, and Borrower, dated as of the Closing Date,
which address each of the following matters and such other matters as the Agent
may reasonably request: (A) the due authorization, enforceability, and
other corporate matters of the Transferor, the Servicer and the Borrower as to
the Program Documents; (B) the creation of a valid and perfected security
interest in favor of the Agent in the Assigned Receivables and the Related
Rights and Property; (C) the existence of a “true contribution” of the
Assigned Receivables and the Related Rights and Property from Transferor to
Borrower under the TCA; and (D) the inapplicability of the doctrine of
substantive consolidation to Transferor, on the one hand, and Borrower, on the
other, in connection with any bankruptcy proceeding of the Transferor;


 


(c)                                  certificates (each, a “Closing Certificate”)
substantially in the form of Exhibit F, attached hereto and made a
part hereof or otherwise reasonably acceptable to the Agent, dated as of the
Closing Date, signed by a Senior Officer of each of Borrower and the Transferor
(including in its capacity as Servicer);


 


(d)                                 all documents which the Agent may reasonably
request relating to the existence of Borrower, Servicer, and Transferor, the
corporate or limited liability company authority, as applicable, for and the
validity of this Agreement, and the other Program Documents, and any other
matters relevant hereto, all in form and substance satisfactory to the Agent,
including, without limitation, certificates of such Persons substantially in
the form of Exhibit G (each, an “Officer’s Certificate”),
signed by the secretary, assistant secretary, manager, or member(s) of
such Person, as applicable, certifying as to the names, true signatures, and
incumbency of the officer or officers, managers, or members of such Persons
authorized to execute and deliver the Program Documents, and 


 


27

















 


certified
copies of the following items: (i) such Person’s certificate of
incorporation, certificate of formation, or other registered, constitutional
document, as applicable (ii) such Person’s Bylaws, limited liability
company agreement, or related agreement, as applicable, (iii) a
certificate of good standing or valid existence of the Secretary of State of
the state of the jurisdiction of its incorporation or formation, and (iv) the
action taken by the Board of Directors or other Persons with management control
of such Persons authorizing the execution, delivery, and performance of this
Agreement, and the other Program Documents to which such Person is a party;


 


(e)                                  recorded UCC Financing Statements
(satisfactory in form and content to the Agent in all respects) (i) pertaining
to (A) Borrower’s ownership and/or security interest in the Assigned
Receivables and their Related Rights and Property and (B) the Agent’s
first priority security interest in the Collateral and evidencing recordation
thereof in all filing offices deemed necessary by the Agent;


 


(f)                                    lien searches reasonably acceptable to the
Agent, showing no Liens on any of Transferor’s or Borrower’s Accounts
Receivables or Related Rights and Property other than Permitted Encumbrances;


 


(g)                                 evidence satisfactory to the Agent (including
an opinion of counsel) confirming that the Transferor is permitted to sell
and/or contribute Receivables, as contemplated by the Program Documents, under
the ABL;


 


(h)                                 agreements regarding, and other evidence
respecting, the establishment of the Collection Accounts, all in form and
substance reasonably satisfactory to the Agent, including, without limitation,
the Control Agreement;


 


(i)                                     evidence that the Policy has been bound and
is in full force and effect; and


 


(j)                                     payment of all fees owed to the Agent
hereunder and under the other Program Documents, including the fees and
expenses of Greenberg Traurig, LLP, in connection with the preparation of the
Program Documents.


 


Section 8.02.                                             Conditions to the Making of All Advances. Each Lender’s obligation to make any
Advance is subject to the satisfaction of the following conditions:


 


(a)                                  Lender shall have received originals or
copies of all reports, documents, and certifications which are, in accordance
with the terms of the Program Documents, to be delivered to Lender, including,
without limitation, Assignment Agreements evidencing Borrower’s ownership of
the Assigned Receivables, Receivables Reports, Remittance Reports, reports from
Servicer, and a fully executed Borrowing Notice pertaining to such Advance.


 


(b)                                 The Agent must be satisfied that the
Borrowing Base has been calculated in the manner agreed upon by the Agent and
Borrower;


 


(c)                                  the Collection Accounts and the Lock-Box
shall continue to exist in full force and effect and the Agent shall continue
to have a first priority perfected security interest in it (subject only to
Permitted Encumbrances);


 


(d)                                 immediately before and after the making of
any Advance, there shall exist no Termination Event or Unmatured Termination
Event;


 


(e)                                  evidence satisfactory to the Agent confirming
that the Transferor is permitted to sell and/or contribute Receivables, as
contemplated by the Program Documents, under the ABL; and


 


(f)                                    each of the representations and warranties of
Borrower contained in Article 4 shall be true in all material respects on
and as of the date of such Advance.


 


28

















 


The making of any Advance
shall be deemed to be a representation and warranty by Borrower on the date of
such Advance as to the complete satisfaction of the conditions specified in
paragraphs (a) through (e) of this Section.


 


ARTICLE 9.

THE AGENT


 


Section 9.01.                             Designation. Each Lender hereby irrevocably designates and appoints the Agent as
the agent of such Lender under this Agreement and the other Program Documents,
and each such Lender irrevocably authorizes the Agent, to take such action on
its behalf under the provisions of this Agreement and the other Program
Documents to which it is a party or by which it is bound and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Agreement and the other Program Documents, together with such
other powers as are reasonably incidental thereto, including, without
limitation, (a) receiving all applicable notices referred to in this
Agreement or in the other Program Documents on behalf of such Lender, (b) giving
all applicable notices referred to in this Agreement or the other Program
Documents to or on behalf of such Lender, (c) maintaining the Register
pursuant to Section 10.09(d) and (d) receiving payments and
deposits from Borrower or the Transferor, as the case may be, and giving
release and acquittance therefor in accordance with the terms of this
Agreement.  It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by the Agent, not individually or personally, but solely as Agent in
the exercise of the powers and authority conferred and vested in it under this
Agreement, (b) the representations, undertakings and agreements herein
made on the part of the Lenders are made and intended not as personal
representations, undertakings and agreements by the Agent but are made and
intended for the purpose of binding only the Lenders, (c) nothing herein
contained shall be construed as creating any liability on the Agent,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties who are signatories to this Agreement and any other Program Document in
which the Agent is bound to exercise any powers or perform any obligations of
the Lenders and by any person claiming by, through or under such parties and (d) under
no circumstances shall the Agent be personally liable for the payment of any
indebtedness or expenses of the Lenders or be liable for the actions or
omissions of the Lenders or the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Lenders under
this Agreement or any other Program Document. 
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall have no duties or responsibilities, except those
expressly set forth herein or in the other Program Documents, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Program Document or otherwise exist against the
Agent.  The provisions of this Article 9
are solely for the benefit of the Agent and its officers, directors, employees,
agents, attorneys-in-fact and affiliates, and no other Person shall have any rights
as a third party beneficiary of any of the provisions hereof.  The Agent shall perform its obligations
hereunder with reasonable care, using a degree of skill and attention no less
than that which the Agent (i) exercises with respect to comparable duties
that it performs when holding comparable assets for itself and (ii) exercises
with respect to comparable administrative duties that it performs for
comparable assets for others, and in a manner consistent with the standard of
care exercised by similar administrators relating to the duties to be performed
hereunder.  The Agent shall have no
obligations, duties or responsibilities except for those set forth in this
Agreement.


 


Section 9.02.                             Delegation of Duties.  The
Agent may execute any of its duties under this Agreement and the other Program
Documents by or through agents, custodians, nominees or attorneys in fact and
shall be entitled to rely upon, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with, advice of counsel
concerning all matters pertaining to such duties.  Agent shall not be responsible for the
negligence or misconduct of any agents, custodians, nominees or attorneys in
fact selected by it with reasonable care.


 


Section 9.03.                             Exculpatory Provisions. 
Neither the Agent nor any of its respective officers, directors,
employees, agents, attorneys in fact or affiliates shall be (i) liable for
any action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or any other Program Document (except to the
extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have proximately resulted from
its or such Person’s own negligence or willful misconduct) or (ii) responsible
in any manner to any Person (including without limitation any of Lenders) for (A) any
recitals, statements, representations or warranties made by any Person (other
than an Agent or any of their respective 


 


29

















 


officers, directors, employees, agents, attorneys in fact or
affiliates) contained in this Agreement or any other Program Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Program Document, (B) the value, validity, effectiveness,
genuineness, collectability, enforceability or sufficiency of this Agreement or
any other Program Document, (C) any Liens or guarantees granted by, or
purported to be granted by, any of the Program Documents or otherwise, (D) ascertaining
or inquiring as to the existence or possible existence of any Termination
Event, or (E) any failure of any party hereto or thereto (other than an
Agent or any of their respective officers, directors, employees, agents,
attorneys in fact or affiliates) to perform its obligations hereunder or
thereunder.  The Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Program Document, to inspect the properties, books or
records of Borrower or the Transferor, or to take any action that may subject the
Agent to personal liability or that is contrary to this Agreement or applicable
law. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Agent be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.


 


Section 9.04.                             Reliance by Agent.  The
Agent shall be entitled to conclusively rely, and shall be fully protected in
relying, upon (i) any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and (ii) advice
and statements of legal counsel (including, without limitation, counsel to
Borrower), independent accountants and other experts selected by the
Agent.  The Agent may deem and treat the
payee of any Advance as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with the Agent, as the case may be.  The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Program Document unless it shall first receive such
written advice or concurrence of the Required Lenders (or, if so specified by
this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take
any such action.  The Agent shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with any direction given by Lenders or any other party
authorized to direct the Agent hereunder and in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Program
Documents in accordance with a request or direction of the Required Lenders
(or, if so specified by this Agreement, all Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
Lenders.


 


Section 9.05.                             Notice of Termination.  The
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Termination Event unless a Senior Officer of the Agent has received written
notice from a Lender or Borrower, the Transferor or Servicer referring to this
Agreement, describing such Termination Event and stating that such notice is a “notice
of default.”  In the event that the Agent
receives such a notice, Agent shall promptly give notice thereof to Lenders and
the Agent.  The Agent shall take such
action with respect to such Termination Event as shall be reasonably directed
by the Required Lenders (or, if so specified by this Agreement, all Lenders); provided
that, unless and until the Agent shall have received such directions,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Termination Event as they shall deem
advisable in the best interests of Lenders.


 


Section 9.06.                             Non-Reliance on Agent
and Other Lenders.  Each Lender expressly
acknowledges that neither Agent nor any of its officers, directors, employees,
agents, attorneys in fact or affiliates has made any representations or
warranties to it and that no act by any Agent hereafter taken, including,
without limitation, any review of the affairs of Borrower, or any affiliate of
Borrower or Sanmina-SCI Corporation shall be deemed to constitute any
representation or warranty by the Agent to any Lender.  Each Lender represents to the Agent that it
has, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of Borrower, Sanmina-SCI Corporation and their affiliates and made its
own decision to make its purchases hereunder and enter into this Agreement and
the other Program Documents to which it is a party or by which it is
bound.  Each Lender also represents and covenants
that it will, independently and without reliance upon the Agent, any of their
officers, directors, employees, agents, attorneys in fact or affiliates or any
other Lender, and based on such documents and 


 


30

















 


information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Program Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
Borrower, Servicer, Sanmina-SCI Corporation and their respective
affiliates.  Except for notices, reports
and other documents expressly required to be furnished to Lenders by Agent
hereunder, the Agent shall have no duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
Borrower, or any affiliate of any of them or of Sanmina-SCI Corporation that
may come into the possession of Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.


 


Section 9.07.                             Indemnification. 
Lenders agree to indemnify the Agent in its capacity as such and/or its
officers, directors, employees, agents, attorneys-in-fact or affiliates (to the
extent not reimbursed by Borrower and without limiting the obligation of
Borrower to do so), ratably according to their respective Lender’s Commitment
Percentages in effect on the date on which indemnification is sought under this
Section 9.07 (or, if indemnification is sought after the date upon which
the Lender’s Commitments shall have terminated and the Advances shall have been
paid in full, ratably in accordance with such Lender’s Commitments immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever (including without limitation attorneys’
fees and disbursements) that may at any time be imposed on, incurred by or
asserted against the Agent and/or its officers, directors, employees, agents,
attorneys in fact or affiliates in any way relating to or arising out of, the
Lender’s Commitments, this Agreement, any of the other Program Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
and/or its officers, directors, employees, agents, attorneys-in-fact or
affiliates under or in connection with any of the foregoing; provided  that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent’s and/or
its officers, directors, employees, agents, attorneys in fact or affiliates
negligence or willful misconduct.  If any
indemnity furnished to Agent for any purpose shall, in its opinion, be
insufficient or become impaired, Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished.  None
of the provisions of this Agreement shall require Agent to expend or risk its
own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder or under any Program Document, or in
the exercise of any of its rights or powers hereunder or thereunder, if it
shall have reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not assured to
it.  In the case of any investigation,
litigation or proceeding giving rise to any indemnification under this Section 9.07,
this Section 9.07 applies whether any such investigation, litigation or
proceeding is brought by the Agent, any Lender or a third party.  The agreements in this Section 9.07
shall survive the payment of all amounts payable hereunder.


 


Section 9.08.                             Agent in Its Individual Capacity.  The
Agent and its affiliates may make loans to, accept deposits from, act as
trustee under indentures of, accept investment banking engagements from, and
generally engage in any kind of business with Borrower, Sanmina-SCI Corporation
or its Affiliates as though such Agent were not an Agent and without any duty
to account therefor to any other Person. 
With respect to its Advances, the Agent shall have the same rights and
powers under this Agreement and the other Program Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms “Lender”
and “Lenders” shall include the Agent in its individual capacity.


 


Section 9.09.                             Successor Agent.  The
Agent may resign as Agent upon 20 days’ written notice to Lenders and
Servicer.  If the Agent shall resign as
Agent under this Agreement and the other Program Documents, then the Required
Lenders shall appoint from among Lenders a successor agent for Lenders, which
successor agent shall (unless a “Termination Event” shall occur under Section 6.01(a) or
Section 6.01(i) hereunder and be continuing, in which instance any
such appointment shall be immediately effective and shall not require any prior
notice to or approval of Servicer or any other Person) be subject to approval
by Servicer (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of the Agent under this Agreement and the Program Documents, and the resigning
Agent shall be discharged from its duties and obligations under this Agreement
and the Program Documents, and the term “Agent” shall mean such successor agent
effective upon such appointment and approval, and the former Agent’s rights,
powers and 


 


31

















 


duties as Agent, shall be terminated, without any other or further act
or deed on the part of such former Agent, any of the parties to this Agreement
or any Program Document, or any holders of the Advances.  If no successor agent has accepted appointment
as Agent, as the case may be, by the date that is 20 days following a resigning
Agent’s notice of resignation, the resigning Agent’s resignation shall
nevertheless thereupon become effective, and Lenders shall assume and perform
all of the duties of such Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.  After any resigning Agent’s resignation as
Agent, the provisions of this Article 9 shall continue to apply to it with
respect to any actions taken or omitted to be taken by it while it was Agent,
under this Agreement and the other Program Documents, including, without
limitation, the liability of the Agent under Section 9.03 for (and the
exclusion from any liability of any Lender to indemnify the Agent under Section 9.07
in respect of) any such actions or omissions that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent’s negligence or willful misconduct.


 


Section 9.10.                             Determination Pursuant to Program Documents.  In
each circumstance where, under any provision of a Program Document or this
Agreement, the Agent shall have the right to grant or withhold any consent,
exercise any remedy, make any determination or direct any action by Agent under
such Program Document, Agent shall act in respect of such consent, exercise of
remedies, determination or action, as the case may be, only with the consent of
and at the direction of the Required Lenders unless unanimity is required by
the relevant agreement; provided, however, that no such consent
of the Required Lenders shall be required with respect to any consent,
determination or other matter that is, in Agent’s reasonable judgment,
ministerial or administrative in nature or provided for in this Agreement, and provided
that Agent is hereby authorized on behalf of all of Lenders, without the
necessity of any further consent from any Lender, from time to time prior to a
Termination Event, to release portions of the Collateral from the security
interests and Liens imposed by the Program Documents in connection with any
dispositions of such portions of the Collateral permitted by the terms of this
Agreement or the Program Documents or as may be required by law. In each
circumstance where any consent of or direction from the Required Lenders is
required, Agent shall send to Lenders a notice setting forth a description in
reasonable detail of the matter as to which consent or direction is requested
and Agent’s proposed course of action with respect thereto.


 


Section 9.11.                             Additional Information.  In
order to comply with laws, rules, regulations and executive orders in effect
from time to time applicable to banking institutions, including those relating
to the funding of terrorist activities and money laundering (“Applicable Law”),
the Agent is required to obtain, verify and record certain information relating
to individuals and entities which maintain a business relationship with the
Agent.  Accordingly, each of the parties
agrees to provide to the Agent upon its request from time to time such
identifying information and documentation as may be available for such party in
order to enable the Agent to comply with Applicable Law.


 


ARTICLE 10.

MISCELLANEOUS


 


Section 10.01.                       Notices.  All notices, requests and
other communications to any party hereunder shall be in writing (including
telecopier or similar writing) and shall be given to such party at its address
or telecopier number set forth on the signature pages hereof or such other
address or telecopier number as such party may hereafter specify for the
purpose by notice to each other party. Each such notice, request, or other
communication shall be effective (i) if given by telecopier, when such
telecopy is transmitted to the telecopier number specified in this Section and
the confirmation is received (provided  that the party giving such
notice shall deliver a copy of such notice to the receiving party by overnight
delivery or U.S. mail); if given by U.S. mail, when shown on the “return
receipt” delivered to the sender via U.S. mail; or (iii) if given by any
other means, when delivered at the address specified in this Section; provided
that notices to the Agent under Article 2 shall not be effective
until received.


 


Section 10.02.                       No Waivers. The failure of Borrower to satisfy, or the waiver by the Lenders or
the Agent on behalf of the Lenders of, any condition set forth in Article 8
shall not constitute a waiver of any such condition with respect to any
subsequent Advance, unless such waiver is expressly agreed to in writing as
required by Section 10.07. No failure or delay by the Agent or any Lender
in exercising any right, power, or privilege hereunder or under any other
Program Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege.


 


32
















 


The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.


 


Section 10.03.                       Expenses; Documentary Taxes. Borrower shall pay or reimburse (a) all
out-of-pocket expenses, disbursements and advances (including, without
limitation, all attorney and paralegal fees and expenses, recording costs,
recording or intangible taxes, and title insurance, if any) of the Agent
reasonably incurred in connection with this Agreement and the other Program
Documents, including, without limitation, (i) all costs, fees, and taxes
pertaining to the obtaining, preparation, or filing of all Lien searches and
Financing Statements (including, without limitation, any release thereof), all
costs and fees incurred in connection with the preparation, negotiation,
administration, and execution and delivery of this Agreement and the other
Program Documents, and any waiver or consent hereunder or thereunder or any
amendment hereof or thereof or any Termination Event or alleged Termination
Event hereunder or thereunder, (ii) sums paid or incurred to pay for any
amount or to take any action required of Borrower hereunder or under any other
Program Document that Borrower fails to pay or take; and (iii) in
connection with a Termination Event, the reasonably documented costs (an
invoice shall be sufficient documentation) and expenses of preserving and
protecting the Collateral; and (b) during the existence of a Termination
Event, all costs and expenses (including out-of-pocket attorney and paralegal
fees and expenses) reasonably incurred to obtain payment of the Obligations,
enforce the Lien in the Collateral, sell or otherwise realize upon the
Collateral, and otherwise enforce the provisions hereof or of any Program
Document or to defend any claim made or threatened against Lender arising out
of the transactions contemplated hereby (including, without limitation,
preparations for and consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions hereof, or of any Program
Document regarding costs and expenses to be paid by Borrower or any other
Person.  In the event Borrower becomes a
debtor under the Bankruptcy Code, the Agent’s and each Lender’s secured claim
in such case shall include interest on the Obligations and all fees, costs, and
charges provided for herein (including, without limitation, attorneys’ fees),
all to the extent allowed by the Bankruptcy Code. Borrower shall indemnify the
Agent and each Lender against any transfer taxes, documentary taxes,
assessments, or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement or the other Program Documents.  The obligations of the Borrower hereunder
shall survive the termination of this Agreement.


 


Section 10.04.                       Taxes.  (a)  All payments made by
Borrower under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of or in addition to net income taxes) imposed on the Agent or
any Lender as a result of a present or former connection between the Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Agent or any Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement or any other Program Document).  If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) or other taxes are required to be withheld from any amounts payable
to the Agent or any Lender hereunder, the amounts so payable to the Agent or
such Lender, as the case may be, shall be increased to the extent necessary to
yield to the Agent or such Lender (after payment of all Non-Excluded Taxes and
other taxes) interest or any such other amounts payable hereunder at the rates
or in the amounts specified in this Agreement. 
The obligations of the Borrower hereunder shall survive the termination
of this Agreement.


 


(b)                                 Each Lender shall deliver to Borrower two duly
completed copies of United States Internal Revenue Service Form W-8BEN or Form W-8ECI,
or successor applicable form, as the case may be, certifying that the Lender is
entitled to a complete exemption from deduction or withholding of United States
federal income taxes with respect to payments under this Agreement.  Whenever
any Non-Excluded Taxes or other taxes are payable by Borrower, as promptly as
possible thereafter Borrower shall send to the affected Lender a certified copy
of an original official receipt received by Borrower showing payment
thereof.  If Borrower fails to pay any
Non-Excluded Taxes or other taxes when due to the appropriate taxing authority
or fails to remit to any Lender the required receipts or other required
documentary evidence, Borrower shall indemnify such Lender for any incremental
taxes, interest or penalties that may become payable by such Lender as a result
of any such failure.  The agreements in this Section 10.04 shall
survive the termination of this Agreement and the payment of all other amounts
payable hereunder.


 


33

















 


(c)                                  If any Lender requests compensation under Section 7.01
or Section 10.04, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Advances or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates if, in the judgment of such Lender, such designation or
assignment would reduce or eliminate amounts payable pursuant to Section 7.01
or Section 10.04, as the case may be.


 


Section 10.05.                       Indemnification by Borrower. Borrower shall indemnify Agent, each Lender
and their respective directors, officers, employees, and agents from, and hold
each of them harmless against, any and all Losses to which any of them may
become subject, insofar as such Losses arise out of or result from any actual
or proposed use by Borrower of the proceeds of any Advance or breach by
Borrower of this Agreement or any other Program Document or from any
investigation, litigation (including, without limitation, any actions taken by
the Agent to enforce this Agreement or any of the other Program Documents), or
other proceeding (including, without limitation, any threatened investigation
or proceeding) relating to the foregoing, and Borrower shall reimburse such
Persons upon demand for any expenses (including, without limitation, legal fees
and expenses of external counsel) reasonably incurred in connection with any
such investigation or proceeding; but excluding any such Losses incurred by
reason of the negligence or willful misconduct of the Person to be indemnified.  The obligation of the Borrower hereunder
shall survive the termination of this Agreement and the other Program
Documents.


 


Section 10.06.                       Adjustments; Set off.


 


(a)                                  Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender, if any
Lender (a “Benefited Lender”) shall receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set off, or otherwise), in a greater
proportion than any such payment to or Collateral received by any other Lender,
if any, in respect of the Obligations owing to such other Lender, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such Collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment
or benefits of such Collateral ratably with each of Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but without
interest.


 


(b)                                 In addition to any rights and remedies of
Lenders provided by law, each Lender shall have the right, without prior notice
to Borrower, any such notice being expressly waived by Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise), to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of Borrower, as the case may
be.  Each Lender agrees promptly to
notify Borrower and Agent after any such setoff and application made by such
Lender; provided  that the failure to give such notice shall not
affect the validity of such setoff and application.


 


Section 10.07.                       Amendments and Waivers.  No
provision of this Agreement or any other Program Documents to which the Agent
is a party, may be amended, restated, supplemented, or otherwise modified
except in writing signed by the parties hereto and the Agent acting on behalf
of the Lenders.


 


Section 10.08.                       Third Party Beneficiaries. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns; provided  that
Borrower may not assign or otherwise transfer any of its rights under this
Agreement.


 


Section 10.09.                       Successors and Assigns; Participations and
Assignments.  (a)  This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Lenders, the Agent, all
future holders of the Advances and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender and Lenders may assign or otherwise transfer any of their rights under
this Agreement to banks or financial institutions reasonably acceptable to
Agent in accordance with this Section 10.09.


 


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(b)                                 Any Lender may, without the consent of the
Borrower, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a “Participant”)
participating interests in any Advance owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Program Documents.  In the event of any
such sale by a Lender of a participating interest to a Participant, such Lender’s
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Advance
for all purposes under this Agreement and the other Program Documents, and the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement and the other Program Documents. 
In no event shall any Participant under any such participation have any
right to approve any amendment or waiver of any provision of any Program
Document, or any consent to any departure by Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Advances or any fees payable hereunder, or postpone the date
of the final maturity of the Advances, in each case to the extent subject to
such participation.  The Borrower agrees
that each Participant shall be entitled to the benefits of Sections 10.04 and
10.05 with respect to its participation in the Commitments and the Advances
outstanding from time to time as if it was a Lender; provided  that
no Participant shall be entitled to receive any greater amount pursuant to any
such Section than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.


 


(c)                                  Any Lender (an “Assignor”) may, in
accordance with applicable law, at any time and from time to time assign to any
Lender or Lender Affiliate (without the consent of the Borrower and the Agent)
or to an additional bank, financial institution or other entity (with the prior
written consent of the Borrower and the Agent, which, in each case, shall not
be unreasonably withheld or delayed) (each, an “Assignee”), all or any
part of its rights and obligations under this Agreement and the other Program
Documents pursuant to an Assignment and Acceptance, executed by such Assignee,
such Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Agent for its acceptance and recording in the
Register; provided  that, unless otherwise agreed by the Agent, no
such assignment to an Assignee (other than any Lender or any Lender Affiliate)
shall be in an aggregate principal amount of less than $5,000,000, in each case
except in the case of an assignment of all of a Lender’s interests under this
Agreement.  For purposes of the proviso
contained in the preceding sentence, the amount described therein shall be
aggregated in respect of each Lender and any other Lenders that are Affiliates
of such Lender, if any.  Upon such
execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment and/or Advances as set forth therein and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor’s rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto).  Notwithstanding any provision
of this Section 10.09, the consent of the Borrower shall not be required
for any assignment that occurs when a Termination Event shall have occurred and
be continuing.


 


(d)                                 The Agent shall, on behalf of the Lenders and
the Borrower, maintain at its address referred to on the signature page hereto
a copy of each Assignment and Acceptance delivered to it and a register (the “Register”)
for the recordation of the names and addresses of the Lenders and the
Commitment of, and the principal amount of the Advances owing to, each Lender
from time to time.  The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders shall treat each Person whose name is recorded
in the Register as the owner of the Advances and any Notes evidencing the
Advances recorded therein for all purposes of this Agreement.  Any assignment of any Advance, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly so
provide).  Any assignment or transfer of
all or part of a Advance evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Advance, accompanied by a duly executed Assignment and
Acceptance, and thereupon one or more new Notes shall be issued to the designated
Assignee, and the old Notes shall be returned by the Agent to the Borrower
marked “cancelled.”  The Register shall
be available for inspection by any Lender or Borrower at any reasonable time
and from time to time upon reasonable prior notice.


 


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(e)                                  Upon its receipt of an Assignment and
Acceptance executed by an Assignor, an Assignee and any other Person whose
consent is required by Section 10.09(c), together with payment to the
Agent of a registration and processing fee of $1,500, the Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.


 


(f)                                    For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this Section 10.09 concerning
assignments relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender to any Federal Reserve Bank in
accordance with applicable law.


 


(g)                                 The Borrower, upon receipt of written notice
from the relevant Lender, agrees to issue Notes to any Lender requiring Notes
to facilitate transactions of the type described in paragraph (f) above,
subject to the delivery to the Borrower of the old Note or Notes for
cancellation and provided  that the amount of each Note or Notes
to be so issued is not less than $5,000,000.


 


Section 10.10.                       New York Law. This Agreement shall be construed in
accordance with and governed by the law of the State of New York, without
regard for its conflicts of law principles (other than Section 5-1401 of
the New York General Obligations Laws).


 


Section 10.11.                       Severability.  In
case any one or more of the provisions contained in this Agreement or any of
the other Program Documents should be invalid, illegal, or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby and shall be enforced to the greatest extent permitted by law.


 


Section 10.12.                       WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. BORROWER, AGENT AND EACH LENDER EACH (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 THE 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 10.01 FOR THE GIVING OF
NOTICE BY AGENT. NOTHING HEREIN CONTAINED, HOWEVER, SHALL PREVENT LENDER FROM
BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY AND AGAINST
BORROWER PERSONALLY, AND AGAINST ANY ASSETS OF BORROWER, WITHIN ANY OTHER STATE
OR JURISDICTION.


 


Section 10.13.                       Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.


 


Section 10.14.                       Consequential Damages. NO PARTY SHALL BE RESPONSIBLE OR LIABLE TO
THE OTHER PARTY OR ANY OTHER PERSON FOR ANY PUNITIVE, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS AGREEMENT,
THE OTHER PROGRAM DOCUMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.


 


Section 10.15.                       Entire Agreement. This Agreement, together with the other
Program Documents, constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof, and supersede and replace any
agreement, written or oral, existing between or among the parties hereto in
respect of such subject matter.


 


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Section 10.16.                       Non-Petition; Limitation on Payments.  The
Agent hereby covenants and agrees that prior to the date that is one year and
one day after the payment in full of all Obligations it will not institute
against, or join any other Person in instituting against, Borrower any
bankruptcy, reorganization, arrangement or other similar proceeding under the
laws of the United States or any state of the United States.


 


Section 10.17.                       USA Patriot Act.  The
Agent hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), the Agent is required to obtain, verify and record
information that identifies the Borrower and the Transferor, which information
includes the name and address of the Borrower and the Transferor and other
information (including, but not limited to, Form W-8, Form W-9 and
other relevant tax certification) that will allow the Lenders to identify the
Borrower and the Transferor in accordance with the Act.


 


[Signatures are contained on the following pages.]


 


37

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  SANMINA
  SPV LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Walter F. Boileau

  
	
   

  	
   

  	
  Name:
  Walter F. Boileau

  
	
   

  	
   

  	
  Title:
  Manager

  
	
   

  	
   

  
	
   

  	
  2700
  North First Street

  
	
   

  	
  San
  Jose, California 95134

  
	
   

  	
  Attention:
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Legal
  Department

  
	
   

  	
  13000
  S. Memorial Parkway

  
	
   

  	
  Huntsville,
  AL 35803

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT
  AND LENDER:

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG, NEW YORK
  BRANCH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Atallah

  
	
   

  	
   

  	
  Name:
  Stephen Atallah

  
	
   

  	
   

  	
  Title:
  Managing Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin McBrien

  
	
   

  	
   

  	
  Name:
  Kevin McBrien

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Deutsche
  Bank AG, New York Branch

  
	
   

  	
  60
  Wall St., 25th Floor

  
	
   

  	
  New
  York, NY 10005

  
	
   

  	
  Attention:
  Structured Trade & Export Finance

  
	
   

  	
  Fax:
  (212) 797-0473

  
								



 


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