EXHIBIT 4.9
CONTROL AGREEMENT
This CONTROL AGREEMENT (the "Agreement") dated as of December 27,
2001 by and among Solectron Corporation (the "Pledgor") and State Street Bank
and Trust Company of California, N.A., a national banking association, in its
capacity as trustee (the "Trustee") and State Street Bank and Trust Company of
California, N.A., a national banking association, in its capacity as securities
intermediary and depository bank (the "Account Holder").
PRELIMINARY STATEMENTS:
(1) The Pledgor has granted the Trustee a security interest (the
"Security Interest") in certain security entitlements (the "Pledged Security
Entitlements") with respect to certain U.S. Treasury securities identified on
Schedule I attached hereto maintained by the Trustee with the Account Holder and
carried from time to time and all other financial assets credited from time to
time (the "Pledged Financial Assets") in an account with the Account Holder, ABA
No. 011-00-0028, Account No. 0000-000-0 at its office at 000 Xxxx 0xx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Corporate Trust Administration
(Solectron Corporation 2001 Pledge Agreement)in the name of "Solectron
Corporation, subject to the security interest of State Street Bank and Trust
Company of California, N.A., as Trustee for the benefit of the holders of the
7.25% Adjustible Conversion-Rate Equity Security Units of Solectron Corporation
Collateral Pledge Account" (the "Pledged Account") and all additions thereto and
substitutions and proceeds thereof (collectively, the "Collateral"), pursuant
to, and as more particularly described in, a Pledge Agreement dated as of
December 27, 2001, among the Pledgor and the Trustee (as the same may hereafter
be amended, supplemented or otherwise modified from time to time, the "Pledge
Agreement"; terms defined in the Pledge Agreement and not otherwise defined
herein are used herein as therein defined). The Pledgor acknowledges having
received value for such pledge of the Collateral.
(2) Terms defined in Article 8 or 9 of the Uniform Commercial
Code as in effect in the State of New York (the "UCC") are used in this
Agreement (including, without limitation, paragraph (1) above) as such terms are
defined in such Article 8 or 9.
(3) The Pledgor, the Trustee and the Account Holder are
delivering this Agreement pursuant to the terms of the Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, the parties hereto hereby agree as follows:
SECTION 1. Notice of Exclusive Control. The Pledgor and Trustee
are entering into this Agreement to perfect, and confirm the first priority lien
of, the Trustee's security interest in the Collateral. The Account Holder agrees
to promptly make all necessary entries or notations in its books and records to
reflect the Trustee's security interest in the Collateral and to apply any value
distributed on account of any Pledged Financial Assets as directed in writing by
the Trustee without further consent from the Pledgor.
SECTION 2. The Account. The Account Holder represents and
warrants to, and agrees with, the Pledgor and the Trustee and the Holders of the
Solectron Debentures that:
(a) The Account Holder shall not change the name or account
number of the Pledged Account without the prior written consent of the
Trustee.
(b) The Account Holder maintains the Pledged Account for the
Pledgor, subject to the security interest of the Trustee, and all
property (including, without limitation, all funds, cash, money market
shares, money market accounts, U.S. Treasury securities and other
financial assets) held by the Account Holder for the benefit of the
Pledgor or the Trustee is, and will continue to be, credited to the
Pledged Account.
(c) To the extent that funds are credited to the Pledged Account,
the Pledged Account is a deposit account; and to the extent that
financial assets are credited to the Pledged Account, the Pledged
Account is a securities account. The Account Holder is (i) the bank with
which the Pledged Account is maintained and (ii) the securities
intermediary with respect to financial assets held in the Pledged
Account. The Pledgor is (x) the Account Holder's customer with respect
to the Pledged Account and (y) the entitlement holder with respect to
financial assets credited from time to time to the Pledged Account.
(d) All financial assets consisting of certificated securities in
registered form or payable to or to the order of and credited to the
Pledged Account shall be registered in the name of, payable to or to the
order of, or endorsed to, the Account Holder and in no case during the
term of the Pledge Agreement will any financial asset credited to the
Pledged Account be registered in the name of, payable to or to the order
of, or endorsed to, the Pledgor, except to the extent the foregoing have
been subsequently endorsed by the Pledgor to the Account Holder or in
blank.
(e) Notwithstanding any other agreement to the contrary, the
Account Holder's jurisdiction with respect to the Pledged Account for
purposes of the UCC (including Sections 9-304 and 8-110 thereof) is, and
will continue to be for so long as the Security Interest shall be in
effect, the State of New York.
(f) The Account Holder does not know of any claim to or interest
in the Pledged Account or any property (including, without limitation,
all funds and financial assets) credited to the Pledged Account, except
for claims and interests of the parties referred to in this Agreement.
SECTION 3. Control by Trustee. (a) The Account Holder will comply
with (A) all written instructions directing disposition of the funds in the
Pledged Account (such instructions, a "Payment Order"), (B) all notifications
and entitlement orders that the Account Holder receives directing it to transfer
or redeem any financial asset in the Pledged Account and (C) all other
directions concerning the Collateral, including, without limitation, directions
to distribute to the Trustee proceeds of any such transfer or redemption or
interest on any property in the Pledged Account (any such instruction,
notification or direction referred to in clause (A),
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(B) or (C) above being an "Account Direction"), in each case of clauses (A), (B)
and (C) above originated by the Trustee without further consent by the Pledgor
or any other person.
(b) The Trustee hereby acknowledges that it shall maintain the
Pledged Account on behalf of the Holders of the Solectron Debentures.
SECTION 4. Priority of Trustee's Security Interest. (a) The
Account Holder (i) subordinates to the Security Interest and in favor of the
Trustee any security interest, lien, or right of setoff the Account Holder may
have, now or in the future, against the Pledged Account or property in the
Pledged Account, and (ii) agrees that it will not exercise any right in respect
of any such security interest or lien or any such right of setoff until the
Security Interest is terminated, except that the Account Holder will retain its
prior lien on property in the Pledged Account to secure payment for property
purchased for the Pledged Account and normal commissions and fees for the
Pledged Account.
(b) The Account Holder will not enter into any other agreement
with any Person relating to Account Directions or other directions with respect
to the Pledged Account.
SECTION 5. Statements, Confirmations, and Notices of Adverse
Claims. (a) The Account Holder will send copies of all statements and
confirmations for the Pledged Account simultaneously to the Pledgor and the
Trustee.
(b) When the Account Holder knows of any claim or interest in the
Pledged Account or any property credited to the Pledged Account other than the
claims and interests of the parties referred to in this Agreement, the Account
Holder will promptly notify the Trustee and the Pledgor of such claim or
interest.
SECTION 6. The Account Holder's Responsibility. (a) The Account
Holder will not be liable to the Pledgor or the Trustee or the Holders of the
Solectron Debentures for complying with an Account Direction or other direction
concerning the Collateral originated by the Trustee, even if the Pledgor
notifies the Account Holder that the Trustee is not legally entitled to issue
the Account Direction or such other direction unless the Account Holder takes
the action after it is served with an injunction, restraining order, or other
legal process enjoining it from doing so, issued by a court of competent
jurisdiction, and had a reasonable opportunity to act on the injunction,
restraining order or other legal process.
(b) This Agreement does not create any obligation of the Account
Holder except for those expressly set forth in this Agreement and in Part 5 of
Article 8 of the UCC and in Article 4 of the UCC. In particular, the Account
Holder need not investigate whether the Trustee is entitled under the Trustee's
agreements with the Pledgor to give an Account Direction or other direction
concerning the Pledged Account. The Account Holder may conclusively rely on
notices and communications it believes given by the appropriate party.
(c) In no event shall the Account Holder or any of its
affiliates, shareholders, directors, officers, employees or agents be liable for
indirect, special, punitive, incidental or consequential damages of any kind
whatsoever even if advised of the possibility of such damages, other than such
damages caused by its own bad faith, gross negligence or willful misconduct.
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(d) Without limiting the foregoing, and notwithstanding any
provision to the contrary elsewhere, the Account Holder and its affiliates,
shareholders, directors, officers, employees or agents:
(i) shall have no responsibilities, obligations or duties in
respect of the subject matter hereof other than those expressly set
forth in this Agreement, and no implied duties, responsibilities,
covenants or obligations shall be read into this Agreement against the
Account Holder. Without limiting the foregoing, the Account Holder shall
have no duty or authority to determine and/or investigate whether or not
an event of default exists under any agreement between the Pledgor and
the Trustee, or to determine and/or investigate whether or not the
Trustee is entitled to give any Account Direction with respect to the
Collateral;
(ii) may in any instance where the Account Holder determines that
it lacks or is uncertain as to its authority to take or refrain from
taking certain action hereunder, or as to any of the requirements of
this Agreement under the circumstance before it, delay or refrain from
taking any action unless and until it shall have received appropriate
written instructions from the Trustee or advice from legal counsel
selected by it (or other appropriate advisor), as the case may be,
detailing the action required to be taken hereunder and the Account
Holder may rely conclusively on any such instructions or advice;
(iii) so long as it and they shall have acted (or refrained from
acting) in good faith and within the reasonable belief that such action
or omission is duly authorized or within the discretion or powers
granted to it hereunder, shall not be responsible or liable for any
error of judgment in any action taken, suffered or omitted by it or
them, or for any act done or step taken or omitted, or for any mistake
of fact or law, unless such action constitutes gross negligence or
willful misconduct as finally determined by a nonappealable judgment of
a court of competent jurisdiction on its (or their) part;
(iv) will not be responsible or liable to the Pledgor, the
Trustee, or any other person or entity whatsoever for the due execution,
legality, validity, enforceability, genuineness, effectiveness or
sufficiency of this Agreement (provided, however, that the Account
Holder warrants that the Account Holder has legal capacity and has been
duly authorized to enter into this Agreement) or for any statement,
warranty or representation made by any other party in connection with
this Agreement;
(v) will not incur any responsibility or liability by acting or
not acting in reliance upon advice of counsel, or upon any notice,
consent, certificate, instruction, Account Direction, statement, wire
instruction, telecopy or other writing reasonably and in good faith
believed by it or them to be genuine and in conformance with this
Agreement and signed or sent by the proper party or parties and
contemplated herein;
(vi) shall not be required to expend or risk its or their own
funds, or to take any action (including the institution or defense of
legal proceedings) which in its or their reasonable judgment may cause
it or them to incur or suffer any expense or liability, unless the
Account Holder shall have been provided with security or indemnity,
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acceptable to Account Holder in its sole discretion, for the payment of
the costs, expenses (including reasonable attorneys' fees) and
liabilities which may be incurred therein or thereby.
(e) If any Collateral subject to this Agreement is at any time
attached or levied upon, or in case the transfer or delivery of any such
Collateral shall be stayed or enjoined, or in the case of any other legal
process or judicial order affecting such Collateral, the Account Holder is
authorized to comply with any such order in any manner as the Account Holder or
its legal counsel reasonably deems appropriate. The Account Holder shall give
prompt written notice, unless legally prohibited from doing so, to the Pledgor
and the Trustee of any such attachment, levy, stay, injunction or legal process.
If the Account Holder complies with any process, order, writ, judgment or decree
relating to the Collateral subject to this Agreement, then the Account Holder
shall not be liable or responsible to the Pledgor, the Trustee, or any other
person or entity whatsoever even if such order, writ, judgment, decree or
process is subsequently modified, vacated or otherwise determined to have been
without legal force or effect.
(f) The Account Holder shall not be liable or responsible for any
delays or failures in performance of any of its duties hereunder which result
from events or conditions beyond its reasonable control and so long as the same
exist or continue and cannot reasonably be remedied by the Account Holder in
accordance with its normal business practices. Such events or conditions shall
include, but shall not be limited to, acts of God, strikes, lockouts, riots,
acts of war or terrorism, epidemics, nationalization, expropriation, currency
restrictions, governmental regulations superimposed after the fact, fire,
communication line failures (including the unavailability of the Federal Reserve
Bank wire or telex or other wire or communication facility), power failures,
earthquakes or other disasters.
SECTION 7. Indemnity. The Pledgor will indemnify the Account
Holder, its officers, directors, employees and agents against claims,
liabilities and expenses arising out of this Agreement (including, without
limitation, reasonable attorney's fees and disbursements), except to the extent
the claims, liabilities or expenses are caused by the Account Holder's gross
negligence or willful misconduct as found by a court of competent jurisdiction
in a final, non-appealable judgment.
SECTION 8. Termination; Survival. (a) This Agreement shall
terminate automatically upon receipt by the Account Holder of written notice
executed by two officers of the Trustee that (i) all of the Secured Obligations
have been paid in full in cash or otherwise satisfied or (ii) all of the
Collateral has been released, which ever is earlier, and the Account Holder
shall thereafter be relieved of all duties and obligations hereunder. The
Account Holder may terminate this Agreement on 60 days' prior notice to the
Trustee and the Pledgor, provided that before such termination the Account
Holder and the Pledgor shall make arrangements to transfer the property in the
Pledged Account to another securities intermediary that shall have executed,
together with the Trustee and the Pledgor, a control agreement in favor of the
Trustee and the Holders of the Solectron Debentures in respect of such property
in substantially the form of this Agreement or otherwise in form and substance
satisfactory to the Trustee.
(b) In the event that the Trustee no longer serves as Trustee for
the Collateral, the Trustee, the Account Holder and the Pledgor shall make
arrangements for another Person to
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assume the rights and obligations of the Trustee hereunder, and such Person
shall have executed, together with the Account Holder and the Pledgor, a control
agreement in favor of such Person and the Holders of the Solectron Debentures in
substantially the form of this Agreement or otherwise in form and substance
satisfactory to the Trustee.
(c) Sections 7 and 8 will survive termination of this Agreement.
SECTION 9. Conflict with Other Agreements. (a) In the event of
any conflict between this Agreement (or any portion thereof) and any other
agreement now existing or hereafter entered into, the terms of this Agreement
shall prevail;
(d) No amendment or modification of this Agreement or waiver of
any right hereunder shall be binding on any party hereto unless it is in writing
and is signed by all of the parties hereto;
(e) The Account Holder hereby confirms and agrees that:
(i) There are no other agreements entered into between the
Account Holder and the Pledgor with respect to the Pledged Account;
(ii) It has not entered into, and until the termination of the
this Agreement will not enter into, any agreement with any other person
relating to the Pledged Account and/or any financial assets credited
thereto pursuant to which it has agreed to comply with entitlement
orders (as defined in Section 8-102(a)(8) of the UCC) of such other
person; and
(iii) It has not entered into, and until the termination of this
Agreement will not enter into, any agreement with the Pledgor or the
Trustee purporting to limit or condition the obligation of the Account
Holder to comply with Account Directions as set forth in Section 3
hereof.
SECTION 10. Permitted Investments. In accordance with the Pledge
Agreement, the Trustee (or the Pledgor, as the case may be) shall direct the
Account Holder with respect to the selection of investments to be made with the
funds in the Pledged Account.
SECTION 11. Entire Agreement. This Agreement is the entire
agreement, and supersedes any prior agreements, and contemporaneous oral
agreements, of the parties concerning its subject matter. The Trustee and the
Account Holder shall be entitled to all the rights, benefits, privileges and
immunities accorded to the Trustee under the Solectron Indenture.
SECTION 12. Amendments. No modification, amendment or waiver of,
nor consent to any departure by any party from, any provision of this Agreement
will be effective unless made in writing signed by the parties hereto, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
SECTION 13. Financial Assets. The Account Holder agrees with
Trustee and the Pledgor that, to the fullest extent permitted by applicable law,
all property credited from time to time to the Pledged Account will be treated
as financial assets under Article 8 of the UCC.
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SECTION 14. Notices. All notices, demands, requests, consents,
approvals and other communications required or permitted hereunder must be in
writing and will be effective upon receipt if delivered personally, or if sent
by facsimile transmission with confirmation of delivery, or by nationally
recognized overnight courier service, to the Pledgor's and the Trustee's
addresses as set forth in the Pledge Agreement, and to the Account Holder's
address as set forth below, or to such other address as any party may give to
the others in writing for such purpose.
SECTION 15. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Pledgor, the Trustee and the Account
Holder, and thereafter shall be binding upon and inure to the benefit of the
Pledgor, the Trustee and the Account Holder and their respective successors and
assigns.
SECTION 16. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 17. Governing Law and Jurisdiction. THIS AGREEMENT WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. Each of the parties hereby irrevocably submits for itself and its property
in any legal action or proceeding relating to this Agreement, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction and venue of the courts of the State of New York, the courts of the
United States of America in New York, and appellate courts from any thereof.
SECTION 18. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) OF
ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. EACH
PARTY HERETO ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
Pledgor:
SOLECTRON CORPORATION
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President,
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Trustee:
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Account Holder:
STATE STREET BANK AND TRUST COMPANY OF
CALIFORNIA, N.A., as Account Holder
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Address:
000 Xxxx 0xx Xxxxxx,
00xx Xxxxx,
Xxx Xxxxxxx, XX 00000,
Attention: Corporate Trust Administration
(Solectron Corporation 2001 Pledge Agreement).
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SCHEDULE I
Pledged Financial Assets
Security or Cash Amount Maturity Date CUSIP No.
----------------------- ------------- ---------
$136,944,444
I-1
