EXHIBIT 4.10
SANMINA-SCI CORPORATION
SECOND LIEN COLLATERAL TRUST AGREEMENT
DATED AS OF DECEMBER 23, 2002
BY AND AMONG
SANMINA-SCI CORPORATION
AND
THE GUARANTOR SUBSIDIARIES
PARTY HERETO
AND
STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A.
AS SECOND LIEN COLLATERAL TRUSTEE
TABLE OF CONTENTS
Page
----
SECTION 1 Definitions and Other Matters........................................................ 3
SECTION 2 Intercreditor Agreement; Designation of Collateral Rights............................ 7
2.1 Intercreditor Agreement.............................................................. 7
2.2 Designation of Collateral Rights..................................................... 7
SECTION 3 Actionable Default; Remedies......................................................... 7
3.1 Notice of Default; Written Instructions.............................................. 7
3.2 Remedies............................................................................. 7
3.3 Right to Initiate Judicial Proceedings, etc.......................................... 8
3.4 Appointment of a Receiver............................................................ 9
3.5 Exercise of Powers................................................................... 9
3.6 Control by Holders................................................................... 9
3.7 Remedies Not Exclusive............................................................... 10
3.8 Waiver of Certain Rights............................................................. 10
3.9 Limitation on Trustee's Duties in Respect of Collateral.............................. 11
3.10 Limitation by Law.................................................................... 11
3.11 Absolute Rights of Holders........................................................... 11
SECTION 4 Trust Account, Application Of Moneys................................................. 11
4.1 The Trust Account.................................................................... 11
4.2 Control of Trust Account............................................................. 12
4.3 Investment of Funds Deposited in Trust Account....................................... 12
4.4 Application of Moneys in Trust Account............................................... 12
4.5 Application of Moneys Distributable to Holders of Parent Notes and Finance Co.
Notes................................................................................ 13
SECTION 5 Agreements With The Second Lien Collateral Trustee................................... 14
5.1 Delivery of Second Lien Debt Instruments............................................. 14
5.2 Information as to Holders............................................................ 14
5.3 Compensation and Expenses............................................................ 14
5.4 Stamp and Other Similar Taxes........................................................ 15
5.5 Filing Fees, Excise Taxes, etc....................................................... 15
5.6 Indemnification...................................................................... 15
5.7 Further Assurances; Notation on Financial Statements................................. 16
SECTION 6 The Second Lien Collateral Trustee................................................... 16
6.1 Acceptance of Trust.................................................................. 16
6.2 Exculpatory Provisions............................................................... 16
6.3 Delegation of Duties................................................................. 17
6.4 Reliance by Trustee.................................................................. 17
6.5 Limitations on Duties of Trustee..................................................... 18
6.6 Moneys to be Held in Trust........................................................... 19
6.7 Resignation and Removal of the Second Lien Collateral Trustee........................ 19
6.8 Status of Successors to the Second Lien Collateral Trustee........................... 20
6.9 Merger of the Second Lien Collateral Trustee......................................... 20
6.10 Co-Trustee, Separate Trustee......................................................... 20
SECTION 7 Release of Second Lien Collateral.................................................... 22
7.1 Conditions to Release; Release Procedure............................................. 22
SECTION 8 Miscellaneous........................................................................ 23
8.1 Amendments, Supplements and Waivers.................................................. 23
8.2 Notices.............................................................................. 25
8.3 Headings............................................................................. 25
8.4 Severability......................................................................... 26
8.5 Treatment of Payee or Indorsee by Trustee............................................ 26
8.6 Dealings with the Trustors........................................................... 26
8.7 Claims Against the Second Lien Collateral Trustee.................................... 26
8.8 Binding Effect....................................................................... 27
8.9 Termination.......................................................................... 27
8.10 Governing Law........................................................................ 27
8.11 Counterparts......................................................................... 27
Exhibit A - Form of Supplement to Trust Agreement
Exhibit B - Form of Notification of Additional Second Lien Obligations
SANMINA-SCI CORPORATION SECOND LIEN COLLATERAL TRUST AGREEMENT
(this "AGREEMENT") dated as of December 23, 2002, by and among Sanmina-SCI
Corporation, a Delaware corporation ("PARENT"), the subsidiaries of Parent
listed in the signature pages hereto (the "GUARANTOR SUBSIDIARIES"), the
Additional Trustors (as defined in Section 5.7) (and together with Parent and
the Guarantor Subsidiaries, the "TRUSTORS"), and State Street Bank and Trust
Company of California, N.A., a national banking association (together with its
agents, successors and assigns, the "SECOND LIEN COLLATERAL TRUSTEE"), as second
lien collateral trustee hereunder for the holders of the Second Lien
Obligations. Capitalized terms not otherwise defined shall have the meanings set
forth in Section 1 below.
PRELIMINARY STATEMENTS:
(1) Parent has issued $750,000,000 of its 10 3/8% Senior
Secured Notes due January 15, 2010 (the "NOTES") pursuant to an Indenture dated
as of December 23, 2002 (as supplemented or replaced from time to time, the
"INDENTURE") among Parent, the Guarantor Subsidiaries and State Street Bank and
Trust Company of California, N.A., as Trustee (together with its successors and
assigns, the "PUBLIC TRUSTEE").
(2) Parent and the Guarantor Subsidiaries have entered
into a Credit and Guaranty Agreement dated as of December 23, 2002 (as hereafter
amended, supplemented, restated, replaced, refinanced or otherwise modified from
time to time, the "SENIOR CREDIT AGREEMENT" among the banks, financial
institutions and other institutional lenders from time to time party thereto
(the "SENIOR LENDERS"), Xxxxxxx Xxxxx Credit Partners L.P., as lead arranger,
syndication agent and administrative agent and LaSalle Business Credit, Inc., as
collateral agent (the "COLLATERAL AGENT"), and the obligations of Parent and the
Guarantor Subsidiaries under the Senior Credit Agreement are to be secured by a
lien on the Common Collateral, which lien is to be first in priority to that of
the Second Lien Collateral Trustee in respect of the Second Lien Obligations.
(3) Parent and the Guarantor Subsidiaries may, from time
to time, incur additional obligations which Parent shall designate as having
either a first priority security interest in the Common Collateral (the "NEW
FIRST LIEN OBLIGATIONS") or a second priority security interest in the Common
Collateral (the "NEW SECOND LIEN OBLIGATIONS").
(4) The First Lien Collateral Agent shall be granted a
first priority security interest in the Common Collateral for the benefit of the
Senior Lenders to secure the payment of all of the obligations of Parent and the
Guarantor Subsidiaries owing under the Senior Credit Agreement and the First
Lien Credit Documents executed in connection therewith, and one or more other
collateral agents for the holders of any New First Lien Obligations also may be
granted first priority security interests in the Common Collateral to secure the
payment of all of the obligations of Parent and the Guarantor Subsidiaries owing
under any New First Lien Credit Documents.
(5) The Second Lien Collateral Trustee shall be granted a
security interest in the Common Collateral to secure, by a second priority lien,
the payment of all of the Second Lien Obligations.
(5) It is a condition precedent to issuance of the Notes
that Parent, the Guarantor Subsidiaries and the Second Lien Collateral Trustee
enter into this Agreement and the Second Lien Collateral Documents in order to
secure the payment of their obligations under the Indenture and all other Second
Lien Obligations.
DECLARATION OF TRUST:
NOW THEREFORE, in order to secure the Second Lien Obligations
and in consideration of the premises and the mutual agreements set forth herein,
the Second Lien Collateral Trustee hereby declares that it holds as trustee in
trust under this Agreement all of its right, title and interest in, to and under
all the following (and Parent, the Guarantor Subsidiaries and the Additional
Trustors, if any, do hereby consent thereto):
(A) the Second Lien Collateral Documents and the
collateral granted to the Second Lien Collateral Trustee thereunder
(the "INITIAL SECOND LIEN COLLATERAL"); and
(B) each agreement entered into and delivered pursuant to
Section 5.7 or Section 8.1(b) and the collateral granted to the Second
Lien Collateral Trustee thereunder (the "SUPPLEMENTAL SECOND LIEN
COLLATERAL"; and, together with the Initial Second Lien Collateral, the
"SECOND LIEN COLLATERAL").
TO HAVE AND TO HOLD, the foregoing Initial Second Lien
Collateral and the entire Second Lien Collateral (the right, title and interest
of the Second Lien Collateral Trustee in the Second Lien Collateral Documents
and the Second Lien Collateral being hereinafter referred to as the "TRUST
ESTATE") unto the Second Lien Collateral Trustee and its successors in trust
under this Agreement and its assigns and the assigns of its successors in trust
forever;
IN TRUST NEVERTHELESS, under and subject to the terms and
conditions herein set forth and for the benefit of the holders of the Second
Lien Obligations and for the enforcement of the payment of all of the Second
Lien Obligations, and for the performance of and compliance with the covenants
and conditions of this Agreement, the Second Lien Debt Instruments and the
Second Lien Collateral Documents.
PROVIDED, HOWEVER, that these presents are upon the condition
that if Parent, the Guarantor Subsidiaries and the Additional Trustors, if any,
and their successors or assigns, shall satisfy all of the conditions set forth
in Section 7, then this Agreement, and the estates and rights assigned in the
Second Lien Collateral Documents, shall cease, terminate and be void; otherwise
they shall remain and be in full force and effect.
IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust
Estate is to be held and applied by the Second Lien Collateral Trustee, subject
to the further covenants, conditions and trusts hereinafter set forth.
2
SECTION 1
Definitions and Other Matters
(a) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement and
section references are to this Agreement unless otherwise specified.
(b) In each case herein where "Holders" are entitled to
vote on any matter or to instruct the Second Lien Collateral Trustee, the Public
Trustee shall so vote or instruct the Second Lien Collateral Trustee on behalf
of the holders of the Notes. In each case herein where any payment or
distribution is to be made or notice is to be given to "Holders," such payments,
distributions and notices in respect of the Notes shall be made to the Public
Trustee for the benefit of the holders thereof pursuant to the terms of the
Indenture.
(c) As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and the plural forms of the terms defined):
"ACTIONABLE DEFAULT" means (i) the non-payment at scheduled
final maturity of the Notes (or any obligations relating to an
additional issuance of the Notes or the declaration prior to their
stated final maturity that all of Notes are due and payable pursuant to
Section 502 of the Indenture) or (ii) the non-payment of an amount (A)
which is due and owing in relation to any New Second Lien Obligations
at the maturity of such New Second Lien Obligations or (B) which is due
and owing after the acceleration prior to their maturity of such
amounts pursuant to the terms of such New Second Lien Credit Facility
under which such New Second Lien Obligations are outstanding; provided
that upon delivery of a Notice of Actionable Default, the Second Lien
Collateral Trustee may assume that an Actionable Default shall be
deemed to be continuing unless the Notice of Actionable Default
delivered with respect thereto shall have been withdrawn in a writing
delivered to the Second Lien Collateral Trustee by (y) the Public
Trustee if such Notice of Actionable Default was delivered in respect
of an event under paragraph (i) above or (z) the Holder or Holders from
or on behalf of which such Notice of Actionable Default was delivered
if such Notice of Actionable Default was delivered in respect of an
event under paragraph (ii) above, in each case prior to the first date
on which the Second Lien Collateral Trustee commences the exercise of
any remedy with respect to the Second Lien Collateral following the
receipt of such Notice of Actionable Default.
"BANKRUPTCY PROCEEDING" means that Parent, any Guarantor
Subsidiary or any Additional Trustor, if any, shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against Parent, any Guarantor Subsidiary or any
Additional Trustor, if any, seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any
3
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, administrator or other similar official for it
or for any substantial part of its property and assets and, in the case
of any such proceeding instituted against it (but not instituted by it)
that is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of at
least 60 consecutive days or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its property
and assets) shall occur; or any event or action analogous to or having
a substantially similar effect to any of the events or actions set
forth above in this definition (other than a solvent reorganization)
shall occur under the law of any jurisdiction applicable to Parent, any
Guarantor Subsidiary or any Additional Trustor, if any; or Parent, any
Guarantor Subsidiary or any Additional Trustor, if any, shall take any
corporate, partnership, limited liability company or other similar
action to authorize any of the actions set forth above in this
definition.
"COMMON COLLATERAL" means all of the assets of the Trustors,
whether real, personal or mixed, constituting both Senior Lender
Collateral (as defined in the Intercreditor Agreement) and Second Lien
Collateral.
"DISTRIBUTION DATES" means the dates fixed by the Second Lien
Collateral Trustee (the first of which shall occur within 90 days after
receipt of a Notice of Actionable Default that has not theretofore been
withdrawn and the balance of which shall be monthly thereafter) for the
distribution of all moneys held by the Second Lien Collateral Trustee
in the Trust Account.
"FIRST LIEN CLAIMHOLDER REPRESENTATIVE" has the meaning set
forth in the Intercreditor Agreement.
"FIRST LIEN COLLATERAL AGENT" means LaSalle Business Credit,
Inc., in its capacity as collateral agent for the holders of First Lien
Obligations under the Senior Credit Agreement.
"FIRST LIEN CREDIT DOCUMENTS" has the meaning set forth in the
Intercreditor Agreement.
"FIRST LIEN OBLIGATIONS" has the meaning set forth in the
Intercreditor Agreement.
"HOLDERS" means the registered holders of Notes and the
holders of the New Second Lien Obligations.
"INDENTURE FULL RELEASE EVENT" means receipt by the Second
Lien Collateral Trustee of written notice from the Public Trustee that
the obligations under the Notes and the Indenture shall no longer be
secured obligations pursuant to the provisions of (a)(1), (a)(2) or
(a)(12)of Section 1102 of the Indenture or if the Notes and the
Indenture shall no
4
longer be secured obligations as a result of the provisions of (a)(6)
of Section 1102 of the Indenture due to the First Lien Obligations no
longer being secured.
"LIENS" has the meaning set forth in the Indenture.
"MAJORITY HOLDERS" means, as of any date, Holders holding
Second Lien Obligations representing more than 50% of the aggregate
unpaid (a) principal amount of the Notes under the Indenture (or any
agreement relating to a replacement of Notes or additional issuance of
notes under the Indenture) and (b) outstanding amount (or accreted
amount) of any New Second Lien Obligations, in each case as outstanding
at such time. Unless a Holder is the sole holder of the obligations
under a New Second Lien Credit Facility, for the purposes of this
definition the Holder in relation to any New Second Lien Credit
Facility shall be the appointed agent or representative of the
creditors party to such New Second Lien Credit Facility and shall vote,
as a Holder under this Agreement, as directed by such creditors as
provided for in such New Second Lien Credit Facility. Notwithstanding
the foregoing, so long as an Indenture Full Release Event has not
occurred, "Majority Holders" for purposes of Sections 3.6 must include
Holders holding Second Lien Obligations representing more than 50% of
the aggregate unpaid principal amount of the Notes under the Indenture
(or any agreement relating to a replacement of Notes or additional
issuance of notes under the Indenture).
"NEW FIRST LIEN CREDIT DOCUMENTS" has the meaning set forth in
the Intercreditor Agreement.
"NEW SECOND LIEN CREDIT FACILITIES" means any agreement
representing or evidencing New Second Lien Obligations.
"NEW SECOND LIEN CLAIMHOLDERS" means the credit providers
under any New Second Lien Credit Facilities.
"NEW SECOND LIEN CLAIMHOLDER REPRESENTATIVE" means (i) any
agent or trustee for or other representative of one or more New Second
Lien Claimholders, or (ii) a New Second Lien Claimholder if such New
First Lien Claimholder is not represented by an agent, trustee or other
representative.
"NOTICE OF ACTIONABLE DEFAULT" means (A) so long as an
Indenture Full Release Event has not occured, either (i) a written
notice to the Second Lien Collateral Trustee from the Public Trustee in
respect of an Actionable Default relating to the Indenture or (ii) a
written notice to the Second Lien Collateral Trustee from any New
Second Lien Claimholder Representative in respect of an Actionable
Default relating to the respective New Second Lien Credit Facility, and
(B) if an Indenture Full Release Event shall have occurred, a written
notice delivered in accordance with clause (A)(ii) of this definition.
"RESPONSIBLE OFFICER" means the chief executive officer, the
president, the chief financial officer, the principal accounting
officer or the treasurer (or the equivalent of any of the foregoing) of
Parent or any other officer, partner or member (or person performing
similar functions) of Parent, responsible for overseeing the
administration of, or
5
reviewing compliance with, all or any portion of this Agreement or any
of the Second Lien Collateral Documents.
"SECOND LIEN CLAIMHOLDERS" means the holders of the Notes and
the New Second Lien Claimholders, to the extent that either has
outstanding Second Lien Obligations at the applicable time.
"SECOND LIEN COLLATERAL DOCUMENTS" means the Second Lien
Security Agreement, the Second Lien Mortgages, and any other agreement,
document or instrument pursuant to which a Lien is granted securing any
Second Lien Obligations or under which rights or remedies with respect
to such Liens are governed.
"SECOND LIEN COLLATERAL TRUSTEE'S FEES" means all fees, costs
and expenses of the Second Lien Collateral Trustee of the type
described in Sections 5.3, 5.4, 5.5 and 5.6 of this Agreement.
"SECOND LIEN DEBT INSTRUMENTS" means the Notes and the New
Second Lien Credit Facilities.
"SECOND LIEN MORTGAGES" means a collective reference to each
mortgage, deed of trust and any other document or instrument under
which any Lien on real property owned by any Trustor is granted to
secure the Second Lien Obligations or under which rights or remedies
with respect to any such Liens are governed.
"SECOND LIEN OBLIGATIONS" means (i) prior to an Indenture Full
Release Event, the obligations of Parent and/or the Guarantor
Subsidiaries owing under (A) the Notes, (B) the Indenture, and (C) any
New Second Lien Credit Facility; and (ii) after an Indenture Full
Release Event, the obligations of Parent and/or the Guarantor
Subsidiaries owing under any New Second Lien Credit Facility unless the
Second Lien Collateral Trustee has received written Notice from any New
Second Lien Claimholder Representative with respect to a particular New
Second Lien Credit Facility to the effect that the obligations under
such New Second Lien Credit Facility shall no longer be secured
obligations for purposes of this Agreement.
"SECOND LIEN SECURITY AGREEMENT" means the Pledge and Security
Agreement dated as of December 23, 2002, and any successor or
replacement thereof, among Parent, the Guarantor Subsidiaries and the
Second Lien Collateral Trustee.
"SECOND LIEN TERMINATION DATE" means the date upon which the
Second Lien Collateral Trustee has received the certificates described
in Section 7.1 hereof.
"SECURITIES" means any stock, shares, partnership interests,
voting trust certificates, certificates of interests or participation
in any profit-sharing agreement or arrangement, options, warrants,
bonds, debentures, notes, or other evidences or indebtedness, secured
or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of
interest, shares or
6
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any
of the foregoing.
SECTION 2
2.1 Intercreditor Agreement.
The Second Lien Collateral Trustee shall enter into the
Intercreditor Agreement (including any amendments, modifications or supplements
thereto) with the First Lien Collateral Agent and Parent and, so long as any
First Lien Obligations remain outstanding, shall comply with all of the terms
and conditions thereunder.
2.2 Designation of Collateral Rights.
If Parent or any Guarantor Subsidiary should incur any New
Second Lien Obligations, Parent shall, as promptly as possible after the closing
of the relevant New Second Lien Credit Facility, deliver a certificate in the
form of Exhibit B to the Second Lien Collateral Trustee, notifying it of such
incurrence. Unless and until the Second Lien Collateral Trustee actually
receives such certificate, it shall not be deemed to have knowledge of any such
Second Lien Credit Obligations.
SECTION 3
Actionable Default; Remedies.
3.1 Notice of Default; Written Instructions.
(a) Upon receipt of a Notice of Actionable Default, the Second
Lien Collateral Trustee shall, within five days thereafter, notify the Public
Trustee and the New Second Lien Claimholders that an Actionable Default exists.
(b) Upon receipt of any written directions pursuant to Section
3.6(a), the Second Lien Collateral Trustee shall, within five days thereafter,
send a copy thereof to the Public Trustee and the New Second Lien Claimholders.
3.2 Remedies.
(a) If and only if the Second Lien Collateral Trustee shall
have received a Notice of Actionable Default and such Notice of Actionable
Default shall not have been withdrawn in accordance with the provisions set
forth in the definition of Actionable Default, and subject to the provisions of
the Intercreditor Agreement, the Second Lien Collateral Trustee shall exercise
the rights and remedies provided in this Agreement and in the Second Lien
Collateral Documents.
(b) The Trustors hereby waive presentment, demand, protest or
any notice (to the extent permitted by applicable law) of any kind in connection
with this Agreement, any Second Lien Collateral or any Second Lien Collateral
Document.
7
(c) The Trustors hereby irrevocably constitute and appoint the
Second Lien Collateral Trustee and any officer or agent thereof, with full power
of substitution, as their true and lawful attorney-in-fact with full power and
authority in the name of Parent, the Guarantor Subsidiaries and the Additional
Trustors, if any, as applicable, or in its own name, from time to time in the
Second Lien Collateral Trustee's discretion, upon the occurrence and during the
continuance of an Actionable Default, for the purpose of carrying out the terms
of this Agreement and the Second Lien Collateral Documents, to take any and all
appropriate action and to execute any and all documents and instruments that may
be necessary or desirable to accomplish the purposes hereof and thereof and,
without limiting the generality of the foregoing, hereby gives the Second Lien
Collateral Trustee the power and right on behalf of the Trustors, without notice
to or assent by any Trustor, and subject to the provisions of the Intercreditor
Agreement, to do the following:
(i) to ask for, demand, xxx for, collect,
receive, recover, compromise and give acquittance and receipts for any
and all moneys due or to become due upon or by virtue hereof and
thereof,
(ii) to receive, take, endorse, assign and
deliver any and all checks, notes, drafts, acceptances, documents and
other negotiable and non-negotiable instruments and chattel paper taken
or received by the Second Lien Collateral Trustee in connection
herewith and therewith,
(iii) to commence, file, institute, prosecute,
defend, settle, compromise or adjust any claim, suit, action or
proceeding with respect hereto and thereto or in connection herewith
and therewith,
(iv) to sell, transfer, assign or otherwise deal
in or with the Second Lien Collateral or any part thereof as fully and
effectually as if the Second Lien Collateral Trustee were the absolute
owner thereof, and
(v) to do, at its option and at the expense and
for the account of the Trustors, at any time or from time to time, all
acts and things that the Second Lien Collateral Trustee deems necessary
to protect or preserve the Second Lien Collateral or the Trust Estate
and to realize upon the Second Lien Collateral.
3.3 Right to Initiate Judicial Proceedings, etc.
If and only if the Second Lien Collateral Trustee shall have
received a Notice of Actionable Default and such Notice of Actionable Default
shall not have been withdrawn in accordance with the provisions of the
definition of Actionable Default and if, and subject to the provisions of the
Intercreditor Agreement:
(i) the Second Lien Collateral Trustee shall
have the right and power to institute and maintain such suits and
proceedings as it may deem appropriate to protect and enforce the
rights vested in it by this Agreement and each Second Lien Collateral
Document, and
8
(ii) the Second Lien Collateral Trustee may,
either after entry or without entry, proceed by suit or suits at law or
in equity to enforce such rights and to foreclose upon the Second Lien
Collateral and to sell all or, from time to time, any of the Trust
Estate under the judgment or decree of a court of competent
jurisdiction.
3.4 Appointment of a Receiver.
Subject to the provisions of the Intercreditor Agreement, if a
receiver of the Trust Estate shall be appointed in judicial proceedings, the
Second Lien Collateral Trustee may be appointed as such receiver.
Notwithstanding the appointment of a receiver, the Second Lien Collateral
Trustee shall be entitled to retain possession and control of all cash held by
or deposited with it or its agents pursuant to any provision of this Agreement
or any Second Lien Collateral Document.
3.5 Exercise of Powers.
Subject to the provisions of the Intercreditor Agreement, all
of the powers, remedies and rights of the Second Lien Collateral Trustee as set
forth in this Agreement may be exercised by the Second Lien Collateral Trustee
in respect of any Second Lien Collateral Document as though set forth at length
therein and all the powers, remedies and rights of the Second Lien Collateral
Trustee and the Holders as set forth in any Second Lien Collateral Document may
be exercised from time to time as herein and therein provided.
3.6 Control by Holders.
(a) Subject to Section 3.6(b), if an Actionable Default shall
have occurred and be continuing and if the Second Lien Collateral Trustee shall
have received a Notice of Actionable Default with respect thereto, and subject
to the provisions of the Intercreditor Agreement, the Majority Holders shall
have the right, by an instrument in writing executed and delivered to the Second
Lien Collateral Trustee, to direct the time, method and place of conducting any
proceeding for any right or remedy available to the Second Lien Collateral
Trustee, or of exercising any trust or power conferred on the Second Lien
Collateral Trustee, or for the appointment of a receiver, or for the taking of
any action authorized by Section 3.
(b) The Second Lien Collateral Trustee shall not follow any
written directions received pursuant to Section 3.6(a) to the extent such
written directions are known by the Second Lien Collateral Trustee to be in
conflict with any provisions of law or the Intercreditor Agreement or if the
Second Lien Collateral Trustee shall have received from independent counsel an
unqualified opinion to the effect that following such written directions would
result in a breach of a provision or covenant contained in the Indenture or
impose individual liability on the Second Lien Collateral Trustee.
(c) Nothing in this Section 3.6 shall impair the right of the
Second Lien Collateral Trustee in its discretion to take or omit to take any
action deemed proper by the Second Lien Collateral Trustee and which action or
omission is not inconsistent with the direction of the Holders entitled to
direct the Second Lien Collateral Trustee pursuant to this Section 3.6;
provided, however, that the Second Lien Collateral Trustee shall not be under
any obligation to
9
take any action that is discretionary with the Second Lien Collateral Trustee
under the provisions hereof or under any Second Lien Collateral Document.
3.7 Remedies Not Exclusive.
(a) No remedy conferred upon or reserved to the Second Lien
Collateral Trustee herein or in any Second Lien Collateral Document is intended
to be exclusive of any other remedy or remedies, but every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or in
any Second Lien Collateral Document or now or hereafter existing at law or in
equity or by statute.
(b) No delay or omission of the Second Lien Collateral Trustee
to exercise any right, remedy or power accruing upon any Actionable Default
shall impair any such right, remedy or power or shall be construed to be a
waiver of any such Actionable Default or an acquiescence therein; and every
right, power and remedy given by this Agreement or any Second Lien Collateral
Document to the Second Lien Collateral Trustee may be exercised from time to
time and as often as may be deemed expedient by the Second Lien Collateral
Trustee.
(c) In case the Second Lien Collateral Trustee shall have
proceeded to enforce any right, remedy or power under this Agreement or any
Second Lien Collateral Document and the proceeding for the enforcement thereof
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Second Lien Collateral Trustee, then and in every
such case the Trustors, the Second Lien Collateral Trustee and the Holders
shall, subject to any determination in such proceeding, severally and
respectively be restored to their former positions and rights hereunder and
under such Second Lien Collateral Document with respect to the Trust Estate and
in all other respects, and thereafter all rights, remedies and powers of the
Second Lien Collateral Trustee shall continue as though no such proceeding had
been taken.
(d) All rights of action and rights to assert claims upon or
under this Agreement and the Second Lien Collateral Documents may be enforced by
the Second Lien Collateral Trustee without the possession of any Second Lien
Debt Instrument or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Second Lien
Collateral Trustee shall be brought in its name as Trustee and any recovery of
judgment shall be held as part of the Trust Estate.
3.8 Waiver of Certain Rights.
The Trustors, to the extent they may lawfully do so, on behalf
of themselves and all who may claim through or under them, including, without
limitation, any and all subsequent creditors, vendees, assignees and lienors,
expressly waive and release any, every and all rights to demand or to have any
marshaling of the Trust Estate upon any sale, whether made under any power of
sale herein granted or pursuant to judicial proceedings or upon any foreclosure
or any enforcement of this Agreement and consents and agrees that all the Trust
Estate may at any such sale be offered and sold as an entirety.
10
3.9 Limitation on Trustee's Duties in Respect of Collateral.
Beyond its duties set forth in this Agreement as to the
custody thereof and the accounting to the Trustors and the Holders for moneys
received by it hereunder, the Second Lien Collateral Trustee shall not have any
duty to the Trustors and the Holders as to any Second Lien Collateral in its
possession or control or in the possession or control of any agent or nominee of
it or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto. To the extent, however, that the
Second Lien Collateral Trustee or any agent or nominee thereof maintains
possession or control of any of the Second Lien Collateral, the Second Lien
Collateral Trustee shall, and shall instruct such agent or nominee to, grant the
Trustors access to such Second Lien Collateral that the Trustors require for the
normal conduct of their business, consistent with their current practice so long
as the Second Lien Collateral Trustee shall not have received a Notice of
Actionable Default.
3.10 Limitation by Law.
All rights, remedies and powers provided by this Section 3 may
be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Section 3 are intended to be subject to all applicable mandatory provisions of
law that may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Agreement invalid, unenforceable in
whole or in part or not entitled to be recorded, registered, or filed under the
provisions of any applicable law.
3.11 Absolute Rights of Holders.
Notwithstanding any other provision of this Agreement (other
than Section 3.2) or any provision of any Second Lien Collateral Document, but
subject to the provisions of the Intercreditor Agreement, the right of each
Holder, which is absolute and unconditional, to receive payments of the Second
Lien Obligations held by such Holder on or after the due date thereof as therein
expressed, to seek adequate protection in respect of its interest in this
Agreement and the Second Lien Collateral, to institute suit for the enforcement
of such payment on or after such due date, or to assert its position and views
as a secured creditor in a Bankruptcy Proceeding, or the obligation of the
Trustors, which is also absolute and unconditional, to pay the Second Lien
Obligations to the Holders at the time and place expressed therein shall not be
impaired or affected without the consent of such Holder.
SECTION 4
Trust Account, Application Of Moneys.
4.1 The Trust Account.
On the date hereof there shall be established and, at all
times thereafter until the trusts created by this Agreement shall have
terminated, there shall be maintained with the Second Lien Collateral Trustee an
account that shall be entitled the "Sanmina-SCI Corporation Second Lien
Collateral Trust" (the "TRUST ACCOUNT"). The Trust Account shall be established
and maintained by the Second Lien Collateral Trustee at its corporate trust
offices. All moneys that
11
are received by the Second Lien Collateral Trustee after the occurrence of an
Actionable Default in respect of the Second Lien Collateral shall be deposited
in the Trust Account and thereafter shall be held and applied by the Second Lien
Collateral Trustee in accordance with the terms of this Agreement and the
Intercreditor Agreement. To the extent necessary, appropriate or desirable, the
Second Lien Collateral Trustee from time to time may establish sub-accounts as
part of the Trust Account for the purpose of better identifying and maintaining
proceeds of Second Lien Collateral, all of which sub-accounts shall be treated
as and be deemed equivalent to, the Trust Account for all purposes hereof.
4.2 Control of Trust Account.
All right, title and interest in and to the Trust Account
shall vest in the Second Lien Collateral Trustee, and funds on deposit in the
Trust Account shall constitute part of the Trust Estate. The Trust Account shall
be subject to the exclusive dominion and control of the Second Lien Collateral
Trustee.
4.3 Investment of Funds Deposited in Trust Account.
The Second Lien Collateral Trustee shall invest and reinvest
moneys on deposit in the Trust Account at any time in money market funds
investing in:
(i) marketable obligations of the United States
having a maturity of not more than one year from the date of
acquisition;
(ii) marketable obligations directly and fully
guaranteed by the United States having a maturity of not more than one
year from the date of acquisition;
(iii) repurchase obligations with a term of not
more than thirty days for underlying securities of the types described
in clauses (i) and (ii) entered into with either (A) the Second Lien
Collateral Trustee or (B) any nationally recognized investment banking
firm; or
(iv) a money market mutual fund registered under
the Investment Company Act of 1940, the principal of which is invested
solely in obligations described in clauses (i), (ii) and (iii), as
selected by the Second Lien Collateral Trustee in its sole discretion.
All such investments and the interest and income received thereon and therefrom
and the net proceeds realized on the sale thereof shall be held in the Trust
Account, as applicable, as part of the Trust Estate.
4.4 Application of Moneys in Trust Account.
Trust Account: Subject to Section 4.5 and the Intercreditor
Agreement, all moneys held by the Second Lien Collateral Trustee in the
Trust Account shall, to the extent available for distribution, be
distributed (or deposited in a separate account for the
12
benefit of the Public Trustee pursuant to Section 4.5) by the Second
Lien Collateral Trustee as follows:
FIRST: To the Second Lien Collateral Trustee in an
amount equal to the Second Lien Collateral Trustee's Fees that are
unpaid as of the relevant Distribution Date and to any Holder that has
theretofore advanced or paid any such Trustee's Fees in an amount equal
to the amount thereof so advanced or paid by such Holder prior to such
Distribution Date;
SECOND: (A) If an Indenture Full Release Event has
not occurred to (i) the Public Trustee, for the benefit of the holders
of Notes, in an amount equal to the aggregate unpaid principal amounts
due under or in respect of and unpaid interest on Notes, whether or not
due and payable, and (ii) the New Second Lien Claimholders, in an
amount equal to the aggregate amounts outstanding in respect of such
New Second Lien Obligations; or (B) if an Indenture Full Release Event
has occurred, as set forth in clause (ii) above; and, in the case of
either (A) or (B), if such moneys shall be insufficient to pay in full
all such amounts, then to the payment thereof ratably (without priority
of any one over any other) to each respective Holder in the same
proportion that such unpaid Second Lien Obligations of such Holder bear
to all unpaid Second Lien Obligations of all Holders on the relevant
Distribution Date; and
THIRD: Any surplus then remaining shall be paid to
the respective Trustor, its successors or assigns, or to whomsoever may
be lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct.
4.5 Application of Moneys Distributable to Holders of Notes.
If at any time any moneys collected or received by the Second
Lien Collateral Trustee pursuant to this Agreement or any Second Lien Collateral
Document are distributable pursuant to Section 4.4 to the Public Trustee, and if
the Public Trustee shall notify the Second Lien Collateral Trustee that no
provision is made under the Indenture (i) for the application by the Public
Trustee of such amounts so distributable (whether by virtue of the respective
Notes issued under the Indenture not having become due and payable or otherwise)
or (ii) for the receipt and the holding by the Public Trustee of such amounts
pending the application thereof, then the Second Lien Collateral Trustee shall
invest all such amounts applicable to Holders of Notes in obligations of the
kinds referred to in Section 4.3, and shall hold all such amounts so
distributable, and all such investments and the proceeds thereof, in trust
solely for the Public Trustee and for no other purpose until such time as the
Public Trustee shall request the delivery thereof by the Second Lien Collateral
Trustee to the Public Trustee for application by it pursuant to Indenture.
13
SECTION 5
Agreements With The Second Lien Collateral Trustee.
5.1 Delivery of Second Lien Debt Instruments.
Within 10 days after the date hereof, Parent will deliver to
the Second Lien Collateral Trustee a true and complete copy of each of the
Second Lien Debt Instruments then in effect. The Parent agrees that, promptly
upon the execution thereof, Parent will deliver to the Second Lien Collateral
Trustee a true and complete copy of (i) any and all amendments, modifications or
supplements to any Second Lien Debt Instrument, and (ii) any Second Lien Debt
Instruments, entered into subsequent to the date hereof. Unless and until the
Second Lien Collateral Trustee actually receives such copies it shall not be
deemed to have knowledge of them.
5.2 Information as to Holders.
The Parent agrees that it shall deliver to the Second Lien
Collateral Trustee from time to time upon request of the Second Lien Collateral
Trustee, a list setting forth, by each Second Lien Debt Instrument then in
effect:
(i) the aggregate amount outstanding thereunder,
(ii) the interest rates then in effect
thereunder;
(iii) to the extent known to Parent, the names of
the holders of the Notes outstanding thereunder and the unpaid
principal amount owing to each such holder of Notes; and
(iv) the names of the Second Lien Lenders with
obligations outstanding thereunder and the unpaid aggregate amounts
owing to each such Second Lien Lender.
The Parent will furnish to the Second Lien Collateral Trustee
within 30 days after the date hereof, and periodically if notice addresses
and/or addresses change, a list setting forth the name and address of each party
to whom notices must be sent under the Second Lien Debt Instruments. At all
times the Second Lien Collateral Trustee may assume without inquiry that the
most recent list it has received remains current.
5.3 Compensation and Expenses.
The Trustors, jointly and severally, agree to pay to the
Second Lien Collateral Trustee, from time to time upon demand:
(i) reasonable compensation (which shall not be
limited by any provision of law in regard to compensation of a trustee
of an express trust) for their services hereunder and under the Second
Lien Collateral Documents and for administering the Trust Estate; and
14
(ii) all of the fees, costs and expenses of the
Second Lien Collateral Trustee (including, without limitation, the
reasonable fees and disbursements of their counsel and such special
counsel as the Second Lien Collateral Trustee elect to retain) (A)
arising in connection with the preparation, execution, delivery,
modification and termination of this Agreement, the Intercreditor
Agreement and each Second Lien Collateral Document or the enforcement
of any of the provisions hereof or thereof or (B) incurred or required
to be advanced in connection with the administration of the Trust
Estate, the sale or other disposition of Second Lien Collateral
pursuant to any Second Lien Collateral Document and the preservation,
protection or defense of the Second Lien Collateral Trustee's rights
under this Agreement and in and to the Second Lien Collateral and the
Trust Estate.
The obligations of the Trustors under this Section 5.3 shall
survive the termination of the other provisions of this Agreement.
5.4 Stamp and Other Similar Taxes.
The Trustors, jointly and severally, agree to indemnify and
hold harmless the Second Lien Collateral Trustee and each Holder from any
present or future claim for liability for any stamp or other similar tax and any
penalties or interest with respect thereto that may be assessed, levied or
collected by any jurisdiction in connection with this Agreement, the
Intercreditor Agreement, any Second Lien Collateral Document, the Trust Estate
or any Second Lien Collateral. The obligations of the Trustors under this
Section 5.4 shall survive the termination of the other provisions of this
Agreement.
5.5 Filing Fees, Excise Taxes, etc.
The Trustors, jointly and severally, agree to pay or to
reimburse the Second Lien Collateral Trustee for any and all amounts in respect
of all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts that may be payable or determined to be payable in respect
of the execution, delivery, performance and enforcement of this Agreement, the
Intercreditor Agreement and each Second Lien Collateral Document. The
obligations of the Trustors under this Section 5.5 shall survive the termination
of the other provisions of this Agreement.
5.6 Indemnification.
The Trustors, jointly and severally, agree to pay, indemnify,
and hold the Second Lien Collateral Trustee and each of its agents harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Intercreditor Agreement
and the Second Lien Collateral Documents (including, but not limited to, actions
by the Second Lien Collateral Trustee to enforce its rights with respect to the
Second Lien Collateral), unless arising from the gross negligence or willful
misconduct (in either case, as determined by a final judgment of a court of
competent jurisdiction) of the Second Lien Collateral Trustee or such of the
agents as are seeking indemnification. The foregoing indemnities in this Section
5.6 shall
15
survive the resignation or removal of the Second Lien Collateral Trustee or the
termination of this Agreement.
5.7 Further Assurances; Notation on Financial Statements.
(a) At any time and from time to time, upon the written
request of the Second Lien Collateral Trustee, and, at the sole expense of the
Trustors, the Trustors will promptly execute and deliver any and all such
further instruments and documents and take such further action as the Second
Lien Collateral Trustee reasonably deems necessary or desirable in obtaining the
full benefits of this Agreement, the Intercreditor Agreement, the Second Lien
Collateral Documents and the Indenture (including, without limitation, Section
__ of the Indenture) and of the rights and powers herein and therein granted. To
the extent required by law, the Trustors shall, in all of their financial
statements, indicate by footnote or otherwise that the Second Lien Obligations
is secured pursuant to this Agreement and the Second Lien Collateral Documents.
(b) Pursuant to the Indenture, from time to time, additional
subsidiaries of Parent are required to become parties to the Second Lien
Security Agreement. In connection with a subsidiary becoming party to the Second
Lien Security Agreement, such subsidiary (an "ADDITIONAL TRUSTOR") shall execute
a Supplement to Trust Agreement in the form of Exhibit A hereto and upon such
execution shall become a Trustor hereunder with all applicable rights and
responsibilities.
SECTION 6
The Second Lien Collateral Trustee.
6.1 Acceptance of Trust.
The Second Lien Collateral Trustee, for itself and its
successors, hereby accepts the trusts created by this Agreement upon the terms
and conditions hereof, including those contained in this Section 6.
6.2 Exculpatory Provisions.
(a) The Second Lien Collateral Trustee shall not be
responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties' contained herein or in any Second
Lien Collateral Document, all of which are made solely by the Trustors. The
Second Lien Collateral Trustee makes no representations as to the value or
condition of the Trust Estate or any part thereof, or as to the title of the
Trustors thereto or as to the security afforded by any Second Lien Collateral
Document or this Agreement, or as to the validity, execution (except its own
execution), enforceability, legality or sufficiency of this Agreement, any
Second Lien Collateral Document or the Second Lien Obligations secured hereby
and thereby, and the Second Lien Collateral Trustee shall incur no liability or
responsibility in respect of any such matters. The Second Lien Collateral
Trustee shall not be responsible for insuring the Trust Estate or for the
payment of taxes, charges, assessments or liens upon the Trust Estate or
otherwise as to the maintenance of the Trust Estate, except that in
16
the event the Second Lien Collateral Trustee enters into possession of a part or
all of the Trust Estate, the Second Lien Collateral Trustee shall preserve the
part in its possession.
(b) The Second Lien Collateral Trustee shall not be required
to ascertain or inquire as to the performance by the Trustors of any of the
covenants or agreements contained herein, in any Second Lien Collateral Document
or in any Second Lien Debt Instrument. Whenever it is necessary, or in the
opinion of the Second Lien Collateral Trustee advisable, for the Second Lien
Collateral Trustee to ascertain the amount of Second Lien Obligations then held
by a Holder, the Second Lien Collateral Trustee may rely on a certificate of
such Holder or its representative as to such amount, and if any such Holder or
representative shall not give such information to the Second Lien Collateral
Trustee, such Holder shall not be entitled to receive distributions hereunder
(in which case such distributions shall be held in trust for such Holder) until
it has given such information to the Second Lien Collateral Trustee.
(c) The Second Lien Collateral Trustee shall not be personally
liable for any action taken or omitted to be taken by them in accordance with
this Agreement, the Intercreditor Agreement or any Second Lien Collateral
Document except for its own gross negligence or willful misconduct.
(d) Aside from filing continuation statements with respect to
the uniform commercial code financing statements filed by the Trustors on or
about the date hereof naming the Second Lien Collateral Trustee as secured
party, the Second Lien Collateral Trustee shall have no responsibility for the
preparation, filing or recording of any instrument, document or financing
statement or for the maintenance of any security interest intended to be
perfected thereby.
6.3 Delegation of Duties.
The Second Lien Collateral Trustee may execute any of the
trusts or powers hereof and perform any duty hereunder either directly or by or
through agents or attorneys-in-fact, which may include officers and employees of
the Trustors. The Second Lien Collateral Trustee shall be entitled to advice of
counsel concerning all matters pertaining to such trusts, powers and duties. The
Second Lien Collateral Trustee shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it without gross
negligence or willful misconduct.
6.4 Reliance by Trustee.
(a) Whenever in the administration of the trusts of this
Agreement the Second Lien Collateral Trustee shall deem it necessary or
desirable that a matter be proved or established in connection with the taking,
suffering or omitting any action hereunder by the Second Lien Collateral
Trustee, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively provided or
established by a certificate of a Responsible Officer of any Trustor delivered
to the Second Lien Collateral Trustee, and such certificate shall be full
warranty to the Second Lien Collateral Trustee for any action taken, suffered or
omitted in reliance thereon, subject, however, to the provisions of Section 6.5.
17
(b) The Second Lien Collateral Trustee may consult with
counsel, and any opinion of such counsel who is not employees of the Second Lien
Collateral Trustee shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in accordance therewith.
The Second Lien Collateral Trustee shall have the right at any time to seek
instructions concerning the administration of the Trust Estate from any court of
competent jurisdiction.
(c) The Second Lien Collateral Trustee may rely, and shall be
fully protected in acting, upon any resolution, statement, certificate,
instrument, opinion, report, notice, request, consent, order, bond or other
paper or document that it has no reason to believe to be other than genuine and
to have been signed or presented by the proper party or parties or, in the case
of cables, telecopies and telexes, to have been sent by the proper party or
parties. In the absence of its gross negligence or willful misconduct, the
Second Lien Collateral Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Second Lien Collateral Trustee and
conforming to the requirements of this Agreement or any Second Lien Collateral
Document. Without limitation to the foregoing, the Second Lien Collateral
Trustee may rely as provided in this Section 6.4 on any certificate provided by
Parent pursuant to Section 2.2 hereof, and may deem such information correct
until such time as it receives any written modification of any such certificate
from Parent in respect thereof.
(d) The Second Lien Collateral Trustee shall not be under any
obligation to exercise any of the rights or powers vested in the Second Lien
Collateral Trustee by this Agreement at the request or direction of the Majority
Holders pursuant to this Agreement, the Intercreditor Agreement or any Second
Lien Collateral Document, unless the Second Lien Collateral Trustee shall have
been provided adequate security and indemnity against the costs, expenses and
liabilities that may be incurred by it in compliance with such request or
direction, including such reasonable advances as may be requested by the Second
Lien Collateral Trustee.
6.5 Limitations on Duties of Trustee.
(a) The Second Lien Collateral Trustee shall be obliged to
perform such duties and only such duties as are specifically set forth in this
Agreement, the Intercreditor Agreement or in any Second Lien Collateral
Document, and no implied covenants or obligations shall be read into this
Agreement, the Intercreditor Agreement or any Second Lien Collateral Document
against the Second Lien Collateral Trustee and the Second Lien Collateral
Trustee shall not be liable with respect to any action taken or omitted by it in
accordance with the direction of the Holders pursuant to Section 3.6.
(b) Except as herein otherwise expressly provided, the Second
Lien Collateral Trustee shall not be under any obligation to take any action
that is discretionary with the Second Lien Collateral Trustee under the
provisions hereof or under the Intercreditor Agreement or any Second Lien
Collateral Document except upon the written request of the Holders pursuant to
Section 3.6. The Second Lien Collateral Trustee shall make available for
inspection and copying by the Public Trustee and each holder of New Second Lien
Obligations, each certificate or other paper furnished to the Second Lien
Collateral Trustee by Parent under or in respect of this
18
Agreement, the Intercreditor Agreement, any Second Lien Collateral Document or
any of the Trust Estate.
6.6 Moneys to be Held in Trust.
All moneys received by the Second Lien Collateral Trustee
under or pursuant to any provision of this Agreement, the Intercreditor
Agreement or any Second Lien Collateral Document shall be held in trust for the
purposes for which they were paid or are held.
6.7 Resignation and Removal of the Second Lien Collateral
Trustee.
(a) The Second Lien Collateral Trustee may at any time, by
giving 30 days' prior written notice to Parent, the Public Trustee and the New
Second Lien Claimholders, resign and be discharged of the responsibilities
hereby created, such resignation to become effective upon the earlier of: (i) 30
days from the date of such notice; and (ii) (the appointment of a successor
trustee or trustees by Parent, the acceptance of such appointment by such
successor trustee or trustees, and the approval of such successor trustee or
trustees by the Majority Holders; provided, that, no resignation shall become
effective unless and until a successor trustee has been appointed as provided
herein. The Second Lien Collateral Trustee may be removed at any time and a
successor trustee or trustees appointed by the affirmative vote of the Majority
Holders; provided that the Second Lien Collateral Trustee shall be entitled to
its fees and expenses to the date of removal. If no successor trustee or
trustees shall be appointed and approved within 30 days from the date of the
giving of the aforesaid notice of resignation the Second Lien Collateral Trustee
shall, or the Public Trustee or any Holder may, apply to any court of competent
jurisdiction to appoint a successor trustee or trustees (which may be an
individual or individuals) to act until such time, if any, as a successor
trustee or trustees shall have been appointed as above provided. Any successor
trustee or trustees so appointed by such court shall immediately and without
further act be superseded by any successor trustee or trustees approved by the
Majority Holders as above provided.
(b) If at any time the Second Lien Collateral Trustee shall
resign or be removed or otherwise become incapable of acting, or if at any time,
a vacancy shall occur in the office of the Second Lien Collateral Trustee for
any other cause, a successor trustee or trustees may be appointed by the
Majority Holders, and the powers, duties, authority and title of the predecessor
trustee or trustees terminated and canceled without procuring the resignation of
such predecessor trustee or trustees, and without any other formality (except as
may be required by applicable law) than appointment and designation of a
successor trustee or trustees in writing, duly acknowledged, delivered to the
predecessor trustee or trustees and Parent, and filed for record in each public
office, if any, in which this Agreement is required to be filed.
(c) The appointment and designation referred to in Section
6.7(b) shall, after any required filing, be full evidence of the right and
authority to make the same and of all the facts therein recited, and this
Agreement shall vest in such successor trustee or trustees, without any further
act, deed or conveyance, all of the estate and title of its predecessor, and
upon such filing for record the successor trustee or trustees shall become fully
vested with all the estates, properties, rights, powers, trusts, duties,
authority and title of its predecessor; but such predecessor shall,
nevertheless, on the written request of the Majority Holders, Parent or the
19
successor trustee or trustees, execute and deliver an instrument transferring to
such successor or successors all the estates, properties, rights, powers,
trusts, duties, authority and title of such predecessor or predecessors
hereunder and shall deliver all securities and moneys held by it to such
successor trustee or trustees. Should any deed, conveyance or other instrument
in writing from any Trustor be required by any successor trustee or trustees for
more fully and certainly vesting in such successor trustee or trustees the
estates, properties, rights, powers, trusts, duties, authority and title vested
or intended to be vested in the predecessor trustee or trustees, any and all
such deeds, conveyances and other instruments in writing shall, on request of
such successor trustee or trustees, be executed, acknowledged and delivered by
such Trustor.
(d) Any required filing for record of the instrument
appointing a successor trustee or trustees as hereinabove provided shall be at
the expense of the Trustors. The resignation of any trustee or trustees and the
instrument or instruments removing any trustee or trustees, together with all
other instruments, deeds and conveyances provided for in this Section 6 shall,
if permitted by law, be forthwith recorded, registered and filed by and at the
expense of the Trustors, wherever this Agreement is recorded, registered and
filed.
6.8 Status of Successors to the Second Lien Collateral
Trustee.
Except as permitted by Section 6.7, every successor to the
Second Lien Collateral Trustee appointed pursuant to Section 6.7 shall be a bank
or trust in good standing and having power so to act, incorporated under the
laws of the United States or any State thereof or the District of Columbia, and
having its principal corporate trust office within the 48 contiguous States, and
shall also have (together with its corporate affiliates) capital, surplus and
undivided profits of not less than $100,000,000, if there be such an institution
with such capital, surplus and undivided profits willing, qualified and able to
accept the trust upon reasonable or customary terms.
6.9 Merger of the Second Lien Collateral Trustee.
Any corporation into which the Second Lien Collateral Trustee
may be merged, or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Second Lien Collateral
Trustee shall be a party, or any corporation to which the Second Lien Collateral
Trustee shall transfer all or substantially all of its corporate trust business
(including the administration of this trust) shall be Trustee under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto.
6.10 Co-Trustee, Separate Trustee.
(a) If at any time or times it shall be necessary or prudent
in order to conform to any law of any jurisdiction in which any of the Second
Lien Collateral shall be located, or the Second Lien Collateral Trustee shall be
advised by counsel, satisfactory to it, that it is so necessary or prudent in
the interest of the Holders, or the Majority Holders shall in writing so request
the Second Lien Collateral Trustee and the Trustors, or the Second Lien
Collateral Trustee shall deem it desirable for its own protection in the
performance of its duties hereunder, the Second Lien Collateral Trustee and the
Trustors shall execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust Parent, or one or more persons
20
approved by the Second Lien Collateral Trustee and the Trustors, either to act
as co-trustee or co-trustees of all or any of the Second Lien Collateral,
jointly with the Second Lien Collateral Trustee originally named herein or any
successor or successors, or to act as separate trustee or trustees of any such
property. In the event the Trustors shall not have joined in the execution of
such instruments and agreements within 30 days after the receipt of a written
request from the Second Lien Collateral Trustee so to do, or in case an
Actionable Default shall have occurred and be continuing, the Second Lien
Collateral Trustee may act under the foregoing provisions of this Section 6.10
without the concurrence of the Trustors, and the Trustors hereby appoint the
Second Lien Collateral Trustee as its agent and attorney to act for it under the
foregoing provisions of this Section 6.10 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than
any trustee that may be appointed as successor to the Second Lien Collateral
Trustee, shall, to the extent permitted by law, be appointed and act and be
such, subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations
conferred upon the Second Lien Collateral Trustee in respect of the
custody, control and management of moneys, papers or securities shall be
exercised solely by the Second Lien Collateral Trustee, or its
successors as Trustee hereunder;
(ii) all rights, powers, duties and obligations
conferred or imposed upon the Second Lien Collateral Trustee hereunder
shall be conferred or imposed and exercised or performed by the Second
Lien Collateral Trustee and such separate trustee or separate trustees
or co-trustee or co-trustees, jointly, as shall be provided in the
instrument appointing such separate trustee or separate trustees or
co-trustee or co-trustees, except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be
performed the Second Lien Collateral Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
separate trustee or separate trustees or co-trustee or co-trustees;
(iii) no power given hereby to, or that it is
provided hereby may be exercised by, any such co-trustee or co-trustees
or separate trustee or separate trustees, shall be exercised hereunder
by such co-trustee or co-trustees or separate trustee or separate
trustees, except jointly with, or with the consent in writing of, the
Second Lien Collateral Trustee, anything herein contained to the
contrary notwithstanding;
(iv) no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder;
and
(v) the Trustors and the Second Lien Collateral
Trustee, at any time by an instrument in writing, executed by them, may
accept the resignation of or remove any such separate trustee or
co-trustee, and in that case, by an instrument in writing executed by
the Trustors and the Second Lien Collateral Trustee jointly, may
appoint a successor to such separate trustee or co-trustee, as the case
may be, anything herein contained to the contrary notwithstanding. In
the event that the Trustors shall not have joined in the
21
execution of any such instrument within ten days after the receipt of a written
request from the Second Lien Collateral Trustee so to do, or in case an
Actionable Default shall have occurred and be continuing, the Second Lien
Collateral Trustee shall have the power to accept the resignation of or remove
any such separate trustee or co-trustee and to appoint a successor without the
concurrence of the Trustors, the Trustors hereby appointing the Second Lien
Collateral Trustee its agent and attorney to act for it in such connection in
either of such contingencies. In the event that the Second Lien Collateral
Trustee shall have appointed a separate trustee or separate trustees or
co-trustee or co-trustees as above provided, it may at any time, by an
instrument in writing, accept the resignation of or remove any such separate
trustee or co-trustee, the successor to any such separate trustee or co-trustee
to be appointed by the Trustors and the Second Lien Collateral Trustee, or by
the Second Lien Collateral Trustee alone, as provided in this Section 6.10.
SECTION 7
Release of Second Lien Collateral.
7.1 Conditions to Release; Release Procedure.
(a) Subject to the terms of the Intercreditor Agreement and
Section 7.1(b), all of the Second Lien Collateral shall be released when the
Second Lien Collateral Trustee shall have received written notice from:
(i) Parent that there are no obligations (other
than inchoate indemnity obligations) outstanding in respect of any New
Second Lien Obligations; and
(ii) The Public Trustee that an Indenture Full
Release Event has occurred.
(b) All of the Second Lien Collateral shall not be released
unless and until all Second Lien Collateral Trustees' Fees shall have been paid
in full.
(c) From time to time during the term of this Agreement, one
or more portions of Second Lien Collateral shall be released as soon as
practicable after the date upon which the Second Lien Collateral Trustee shall
have received written notice from (i) the Public Trustee or a First Lien
Claimholder Representative advising the Second Lien Collateral Trustee that such
Second Lien Collateral is being released from the security interest of the
holders of all First Lien Obligations, as provided under the Intercreditor
Agreement or (ii) the Public Trustee advising the Second Lien Collateral Trustee
that such Second Lien Collateral is to be released as permitted under (A) to the
extent an Indenture Full Release Event has not occurred, clauses (a)(3) through
(a)(11) of Section 1102 of the Indenture and (B) to the extent any New First
Lien Obligations are outstanding, the provisions of any New First Lien Credit
Documents evidencing New First Lien Obligations; provided, that, in either case
such release is permitted by any New Second Lien Credit Facilities.
22
(d) Upon the release of the Second Lien Collateral, or any
portion thereof, all right, title and interest of the Second Lien Collateral
Trustee in, to and under the Trust Estate in respect of the Second Lien
Collateral or portion thereof so released, and the Second Lien Collateral
Documents in respect of such Second Lien Collateral, shall terminate and shall
revert to the respective Trustors, their successors and assigns, and the estate,
right, title and interest of the Second Lien Collateral Trustee therein shall
thereupon cease, determine and become void; and in such case, upon the written
request of the respective Trustors, their successors or assigns, and at the cost
and expense of the Trustors, their successors or assigns, the Second Lien
Collateral Trustee shall execute in respect of the Second Lien Collateral so
released, a satisfaction of the Second Lien Collateral Documents and such
instruments as are necessary or desirable to terminate and remove of record any
documents constituting public notice of the Second Lien Collateral Documents and
the security interests and assignments granted thereunder and shall assign and
transfer, or cause to be assigned and transferred, and shall deliver or cause to
be delivered to the Trustors, in respect of the Second Lien Collateral so
released, all property, including all moneys, instruments and securities, of the
Trustors then held by the Second Lien Collateral Trustee. The cancellation and
satisfaction of the Second Lien Collateral Documents shall be without prejudice
to the rights of the Second Lien Collateral Trustee or any successor trustee to
charge and be reimbursed for any expenditures that it may thereafter incur in
connection therewith.
SECTION 8
Miscellaneous.
8.1 Amendments, Supplements and Waivers.
(a) Subject to the terms of the Intercreditor Agreement, with
the written consent of the Public Trustee and a majority in interest of the
holders of New Second Lien Obligations outstanding at such time, the Second Lien
Collateral Trustee and the Trustors may, from time to time, enter into written
agreements supplemental hereto for the purpose of adding to or waiving any
provision of this Agreement or any Second Lien Collateral Document or changing
in any manner the rights of the Second Lien Collateral Trustee, the Holders or
the Trustors hereunder or thereunder; provided, however, that no such
supplemental agreement shall, (i) without the written consent of the Public
Trustee and each of the holders of New Second Lien Obligations outstanding at
such time, (A) amend, modify or waive any provision of Section 4.4 or this
Section 8.1, (B) reduce the percentage specified in the definition of Majority
Holders, or (C) amend or modify the definition of the term "Second Lien
Obligations";
(ii) without the written consent of the Public
Trustee, amend, modify or waive any provision of Section 4.5;
(iii) without the written consent of the Second
Lien Collateral Trustee, amend, modify or waive any provision of
Section 6 or alter the duties or obligations of the Second Lien
Collateral Trustee hereunder; or
23
(iv) without the written consent of the Second
Lien Collateral Trustee, amend or modify the definition of "Majority
Holders" set forth in Section 1 of this Agreement.
Any such supplemental agreement shall be binding upon the Trustors, the
Holders and the Second Lien Collateral Trustee and their respective successors.
The Second Lien Collateral Trustee shall not enter into any such supplemental
agreement unless it shall have received a certificate of a Responsible Officer
to the effect that such supplemental agreement will not result in a breach of
any provision or covenant contained in the Indenture or in any New Second Lien
Credit Facility or the Intercreditor Agreement.
(b) Without the consent of any Holders, the Second Lien
Collateral Trustee and the Trustors, at any time and from time to time, may
enter into additional pledge or Second Lien Collateral Documents or one or more
agreements supplemental hereto or to any Second Lien Collateral Document, in
form satisfactory to the Second Lien Collateral Trustee,
(i) to add to the covenants of the Trustors, for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Trustors;
(ii) to mortgage, pledge or grant a security
interest in any property or assets that are required to be mortgaged or
pledged, or in which a security interest is required to be granted, to
the Second Lien Collateral Trustee pursuant to any Second Lien Debt
Instrument or any Second Lien Collateral Document or any Indenture; and
(iii) to cure any ambiguity or omission, to
correct or to supplement any provision herein or in any Second Lien
Collateral Document that may be defective or inconsistent with any
other provision herein or therein, or to make any other provisions with
respect to matters or questions arising hereunder or under any Second
Lien Collateral Document that shall not be inconsistent with any
provision hereof or of any Second Lien Collateral Document.
(iv) Parent agrees that each additional pledge or
Second Lien Collateral Document shall include the following language
(or language to similar effect approved by the First Lien Claimholder
Representative):
"Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Second Lien Collateral
Trustee pursuant to this Agreement and the exercise of any
right or remedy by the Second Lien Collateral Trustee
hereunder are subject to the provisions of the Intercreditor
Agreement, dated as of December 23, 2002 (as amended,
restated, supplemented or otherwise modified from time to
time, the "INTERCREDITOR AGREEMENT"), among LaSalle Business
Credit, Inc., as First Lien Collateral Agent, State Street
Bank and Trust Company of California, N.A., as Second Lien
Collateral Trustee, Sanmina-SCI Corporation and certain other
persons party or that may become party thereto from time to
time. In the event of any conflict between the terms of the
Intercreditor
24
Agreement and this Agreement, the terms of the Intercreditor
Agreement shall govern and control."
8.2 Notices.
All notices, requests, demands and other communications
provided for or permitted hereunder shall be in writing and shall be sent by
mail or hand delivery:
(a) If to any Trustor, to it at the address of Parent at:
0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, or at such other address as
shall be designated by it in a written notice to the Second Lien Collateral
Trustee.
(b) If to the Second Lien Collateral Trustee, to it at its
address at: 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000,
Attention: Corporate Trust Administration (Sanmina-SCI Corporation Second Lien
Collateral Trust Agreement) or at such other address as shall be designated by
it in a written notice to Parent.
(c) If to the Public Trustee, to it at its address at 000 Xxxx
0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Corporate Trust
Administration (Sanmina-SCI Corporation 2002 Indenture), or at such other
address as shall be designated by it in writing to the Second Lien Collateral
Trustee.
(d) If to any Second Lien Lender, to it at its address as
designated in the New Second Lien Credit Facility to which it is a party, or at
such other address as shall be designated by it in writing to the Second Lien
Collateral Trustee.
(e) Any notice given to any Holder shall also be given to the
Public Trustee and to each Second Lien Lender.
All such notices, requests, demands and communications shall be deemed to have
been duly given or made, when delivered by hand or five Business Days after
being deposited in the mail, postage prepaid, or when telecopied, receipt
acknowledged; provided, however, that any notice, request, demand or other
communication to the Second Lien Collateral Trustee shall not be effective until
received.
8.3 Headings.
Section, subsection and other headings used in this Agreement
are for convenience only and shall not affect the construction of this
Agreement.
25
8.4 Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
8.5 Treatment of Payee or Indorsee by Trustee.
(a) The Second Lien Collateral Trustee may treat the
registered holder of any registered note, and the payee or indorsee of any note
or debenture that is not registered, as the absolute owner thereof for all
purposes hereunder and shall not be affected by any notice to the contrary,
whether such promissory note or debenture shall be past due or not.
(b) Any person, firm, corporation or other entity that shall
be designated as the duly authorized representative of one or more Holders of
Second Lien Obligations to act as such in connection with any matters pertaining
to this Agreement or any Second Lien Collateral Document or the Second Lien
Collateral shall present to the Second Lien Collateral Trustee such documents,
including, without limitation, opinions of counsel, as the Second Lien
Collateral Trustee may reasonably require, in order to demonstrate to the Second
Lien Collateral Trustee the authority of such person, firm, corporation or other
entity to act as the representative of such Holders.
8.6 Dealings with the Trustors.
(a) Upon any application or demand by any Trustor to the
Second Lien Collateral Trustee to take or permit any action under any of the
provisions of this Agreement, such Trustor shall furnish to the Second Lien
Collateral Trustee a certificate of a Responsible Officer stating that all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
(b) Any opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate of a Responsible Officer filed with the
Second Lien Collateral Trustee.
8.7 Claims Against the Second Lien Collateral Trustee.
Any claims or causes of action that the holders of any Second
Lien Obligations, the Public Trustee or any Trustor shall have against the
Second Lien Collateral Trustee shall survive the termination of this Agreement
and the release of the Second Lien Collateral hereunder.
26
8.8 Binding Effect.
This Agreement shall be binding upon and inure to the benefit
of each of the parties hereto, the Holders, and their respective successors and
assigns, and nothing herein or in any Second Lien Collateral Document is
intended or shall be construed to give any other person any right, remedy or
claim under, to or in respect of this Agreement, any Second Lien Collateral
Document, the Second Lien Collateral or the Trust Estate.
8.9 Termination.
This Agreement shall terminate on the later of (a) the date
upon which the obligations under the Indenture terminate if there are no other
Second Lien Obligations outstanding on such date and (b) if there are other
Second Lien Obligations outstanding on such date, the date upon which such
Second Lien Obligations terminate.
8.10 Governing Law.
This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York and any action
alleging any breach by the Second Lien Collateral Trustee of its duties
hereunder, whether by act or omission or anticipatory, shall be prosecuted only
in the courts of the State of New York.
8.11 Counterparts.
This Agreement may be executed in separate counterparts, each
of which shall be an original and all of which taken together shall constitute
one and the same instrument.
27
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
SECOND LIEN COLLATERAL TRUSTEE
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
By: /s/ Xxxxx X. Xxxxxx
____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
28
THE COMPANY
SANMINA-SCI CORPORATION
By: /s/ Xxxx X. Xxxxx
____________________________
Name: Xxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
By: /s/ Xxxxxx Xxxxxxx
____________________________
Name: Xxxxxx Xxxxxxx
Title: Treasurer
29
GUARANTORS
COMPATIBLE MEMORY, INC.
ESSEX ACQUISITION SUBSIDIARY, INC.
HADCO CORPORATION
HADCO SANTA XXXXX, INC.
INTERAGENCY, INC.
INTERWORKS COMPUTER PRODUCTS
MANU-TRONICS, INC.
MOOSE ACQUISITION SUBSIDIARY, INC.
SANMINA CANADA HOLDINGS, INC.
SANMINA ENCLOSURE SYSTEMS USA INC.
SANMINA-SCI SYSTEMS (ALABAMA) INC.
SANMINA-SCI SYSTEMS ENCLOSURES, LLC
SCI ENCLOSURES (XXXXXX), INC.
SCI HOLDINGS, INC.
SCI SYSTEMS, INC.
SCI TECHNOLOGY, INC.
SCIMEX, INC.
VIKING COMPONENTS INCORPORATED
All by: /s/ Xxxx X. Xxxxx
______________________________________________
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
30
GUARANTORS
SCI PLANT NO. 2, L.L.C.
SCI PLANT NO. 3, L.L.C.
XXX XXXXX XX. 0, X.X.X.
XXX PLANT NO. 5, L.L.C.
XXX XXXXX XX. 00, X.X.X.
XXX PLANT NO. 30, L.L.C.
All by:
SANMINA-SCI SYSTEMS (ALABAMA) INC.,
their Sole Member
/s/ Xxxx X. Xxxxx
____________________________
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
31
GUARANTORS
SCI PLANT XX. 00, X.X.X.
XXX XXXXX XX. 00, L.L.C.
All by:
SCI TECHNOLOGY, INC.,
their Sole Member
/s/ Xxxx X. Xxxxx
_________________________________________
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
32
GUARANTORS
SANMINA GENERAL, L.L.C.
SANMINA LIMITED, L.L.C.
SANMINA-SCI, LLC
All by:
SANMINA-SCI CORPORATION,
their Sole Member
/s/ Xxxx X. Xxxxx
_________________________________________
Name: Xxxx X. Xxxxx
Title: Executive Vice President and Chief
Financial Officer
33
GUARANTORS
SANMINA TEXAS, L.P.
By: SANMINA GENERAL, L.L.C.,
its General Partner
By: SANMINA-SCI CORPORATION,
its Sole Member
/s/ Xxxx X. Xxxxx
____________________________________
Name: Xxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
34
EXHIBIT A TO THE SECOND LIEN
COLLATERAL TRUST AGREEMENT
FORM OF SUPPLEMENT TO TRUST AGREEMENT
[Date]
State Street Bank and Trust Company
of California, N.A.,
as the Second Lien Collateral Trustee
for the Second Lien Obligations
in the Second Lien Collateral Trust Agreement
referred to below
Attn: ___________________
[Name of Additional Trustor]
Ladies and Gentlemen:
Reference is made to the Second Lien Collateral Trust
Agreement dated as of December___, 2002 (as amended, restated, supplemented or
otherwise modified from time to time, the "SECOND LIEN COLLATERAL TRUST
AGREEMENT"), among Sanmina-SCI Corporation, a Delaware corporation, (the
"COMPANY"), the Guarantor Subsidiaries listed on the signature pages thereto
(the "GUARANTOR SUBSIDIARIES") and State Street Bank and Trust Company of
California, N.A., as Second Lien Collateral Trustee ("SECOND LIEN COLLATERAL
TRUSTEE") Terms defined in the Second Lien Collateral Trust Agreement and not
otherwise defined herein are as defined in the Second Lien Collateral Trust
Agreement.
Pursuant to Section 5.7 of the Second Lien Collateral Trust
Agreement, the undersigned hereby agrees, as of the date first above written, to
be bound as a Trustor by all of the terms and provisions of the Second Lien
Collateral Trust Agreement to the same extent as each of the other Trustors. The
undersigned further agrees, as of the date first above written, that each
reference in the Second Lien Collateral Trust Agreement to a "Trustor" shall
also mean and be a reference to the undersigned.
This Supplement to Second Lien Collateral Trust Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Very truly yours,
[NAME OF ADDITIONAL TRUSTOR]
By:_________________________
Title:
EXHIBIT B TO SECOND LIEN COLLATERAL
TRUST AGREEMENT FORM OF DESIGNATION
[Date]
State Street Bank and Trust
Company of California, N.A.
as Second Lien Collateral Trustee pursuant to
the Second Lien Collateral Trust Agreement
dated as of December ___, 2002
Designation of Debt Obligations
Pursuant to Section 2.2 of
the Second Lien Collateral Trust Agreement
We refer to the Second Lien Collateral Trust Agreement dated as of
December 23, 2002 among you, the Guarantor Subsidiaries party thereto and us
(the "Agreement"). To the extent not otherwise defined herein, capitalized terms
shall have the meanings used in the Agreement.
Under Section 2.2 of the Agreement, we are required to deliver to you a
Certificate of Designation of such additional debt is to be treated as sharing a
security interest in the Second Lien Collateral on a pari passu basis with all
other Second Lien Claimholders, if any. We hereby notify you that we have
entered into an [description of agreement/arrangement evidencing additional
debt] dated as of [____________] (the "Additional Debt"), a copy of which is
attached in compliance with Section 5.1 of the Agreement.
We hereby notify you that the Additional Debt, in the principal amount
of [$_________________], shall be treated as Second Lien Obligations for the
purposes of the Agreement.
---------------------------
SANMINA-SCI CORPORATION
