RECEIVABLES TRANSFER AND CONTRIBUTION AGREEMENT
EXHIBIT
10.39
This
Receivables Transfer and Contribution Agreement (this “Agreement”) is made
and entered into as of November 24, 2008, by and between SANMINA SPV LLC, a
Delaware limited liability company (“Transferee”) and
SANMINA-SCI CORPORATION, a Delaware corporation (“Sanmina” or “Transferor”).
W I T N E
S S E T H:
On the
terms and subject to the conditions set forth herein, the Transferor contribute,
and Transferee shall accept as a capital contribution, on a “true contribution”
basis, certain of the Transferor's Accounts Receivable from time to
time.
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions. Unless
otherwise defined herein, all capitalized terms will have the meanings given
such terms in that certain Credit and Security Agreement dated the date hereof
(as the same may be amended, restated, supplemented, or otherwise modified from
time to time, the “Credit Agreement”),
by and among Transferee, Deutsche Bank AG, New York Branch, as administrative
agent (the “Agent”) and the banks
and financial institutions named therein as Lenders ( the “Lenders”).
Section
1.2 Accounting
Terms and Determinations. Unless otherwise specified herein, all terms of
an accounting character used herein will be interpreted, all accounting
determinations hereunder will be made, and all financial statements required to
be delivered hereunder will be prepared, in accordance with GAAP, applied on a
basis consistent (except for changes concurred in by the Public Accountants or
otherwise required by a change in GAAP) with the most recent audited
consolidated financial statements of Sanmina and its Subsidiaries.
Section
1.3 References. Unless
otherwise indicated, references in this Agreement to “articles,” “exhibits,”
“schedules,” “sections,” and other subdivisions are references to articles,
exhibits, schedules, sections and other subdivisions hereof.
Section
1.4 Terminology. The
terms “herein,” “hereof,” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular section, paragraph
or subdivision. Any pronoun used will be deemed to cover all genders.
Unless the context otherwise clearly indicates, words used in the singular
include the plural and words used in the plural include the singular. In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including” and the words “to” and “until” each
means “to but excluding.” All references to statutes and related regulations
will include any amendments of same and any successor statutes and
regulations. All references to any of the Program Documents will
include any and all amendment or modifications thereto and any and all
restatements, extensions or renewals thereof. All references to any Person will
mean and include the successors and permitted assigns of such Person. All
references to “including” and “include” will be understood to mean “including,
without limitation.” All references to the time of day will mean the time of day
on the day in question in New York City, New York, unless otherwise expressly
provided in this Agreement. An Unmatured Termination Event or a
Termination Event will be deemed to exist at all times during the period
commencing on the date that such Unmatured Termination Event or Termination
Event occurs to the date on which such Unmatured Termination Event or
Termination Event is waived in writing pursuant to this Agreement or, in the
case of Unmatured Termination Event, is cured within any period of cure
expressly provided in this Agreement; and a Termination Event will “continue,”
be “continuing,” or “in existence” until such Termination Event has been waived
in writing by the Agent acting on behalf of the Lenders in accordance with the
provisions of the Credit Agreement, or cured.
Whenever
the phrase “to the best of Transferors' knowledge” or words of similar import
relating to the knowledge or the awareness of Transferor are used herein, such
phrase will mean and refer to the actual knowledge of a Senior Officer of the
Transferor. All references to “acceptable” or “satisfactory” will,
unless expressly provided otherwise, be deemed to mean “reasonably acceptable”
or “reasonably satisfactory.” All calculations of money values will
be in Dollars. To the extent that any party hereto will have the
right to consent to the taking of any action hereunder, such consent will not be
unreasonably withheld (unless otherwise specifically indicated).
ARTICLE
II
TRANSFER
AND CONTRIBUTION OF ACCOUNTS RECEIVABLE
Section
2.1 Agreement to
Transfer Certain Accounts Receivable. (a) From time to time until
this agreement terminates in accordance with Section 2.1(b), the Transferor may
on any Preparation Date offer to contribute, and Transferee shall accept as a
capital contribution, on the Borrowing Date immediately following such
Preparation Date, certain of the Transferor's Accounts Receivable which arose
before such Preparation Date, subject to the terms and conditions set forth
herein.
(b) This
Agreement will commence as of the date of execution and delivery hereof and will
continue in full force and effect until the earliest to occur of (a) the
termination of the Credit Agreement, and (b) the occurrence of any of the
following events (each, a “Contribution Termination
Event”): (i) Transferee or Transferor will become insolvent or a
Termination Event described in Section 6.01(i) or (j) of the Credit Agreement
will have occurred and be continuing or (ii) Transferor will become unable for
any reason to contribute Accounts Receivable in accordance with this
Agreement.
Section
2.2 Offering
Accounts Receivable for Contribution. On or before each Preparation
Date, the Transferor will notify Transferee and the Agent of those Accounts
Receivable it desires to contribute to Transferee on the immediately following
Borrowing Date by delivering a draft Assignment Agreement (as defined herein) to
Transferee, with a copy to Agent. Such Assignment Agreement will
specifically identify each of the Transferor's Accounts Receivable it desires to
contribute to Transferee, will identify whether each such Account Receivable
satisfies the criteria in the definition of “Eligible Receivable” and will
include the date each such Account Receivable arose, its Uncollected Value,
invoice number, the Account Debtor, currency of payment and its Scheduled
Maturity Date, all determined as of such Preparation Date, as
applicable.
Section
2.3 Accepting
Accounts Receivable.
Transferee shall accept as a capital contribution the Transferor's Accounts
Receivable identified as offered as a capital contribution in a draft Assignment
Agreement delivered pursuant to Section 2.2.
Section
2.4 Delivery of
Assignment Agreement. On each Borrowing Date, the Transferor, if
contributing any Accounts Receivable to Transferee on such Borrowing Date, will
execute and deliver to Transferee and the Agent an Assignment Agreement dated as
of such Borrowing Date, which Assignment Agreement will be substantially in the
form of Exhibit A attached hereto and made a part hereof (each, an “Assignment
Agreement”).
Section
2.5 Application
of Deductions. With respect to any Accounts Receivable and related
Related Rights and Property that the Transferor, in its discretion, may
contribute to Transferee on any Borrowing Date, such Accounts Receivable and
related Related Rights and Property will be deemed to be a capital contribution
from the Transferor to Transferee. The parties acknowledge and agree
that the Transferor will be obligated to compensate Transferee for any
Deductions, to the extent such Deductions were not otherwise taken into account
in determining the Uncollected Value of the Transferred Receivables of the
Transferor on any Settlement Date, in accordance with Section
2.7(b).
Section
2.6 Intent of the
Parties; True Contribution of Transferred Receivables. It is the
intention of the parties hereto that the contribution of the Transferred
Receivables and Related Rights and Property as provided in Article II be, and be
construed as, absolute capital contributions without recourse except as
explicitly provided herein, of the Transferred Receivables and Related Rights
and Property by the Transferor to Transferee, and that neither the Transferred
Receivables nor the Related Rights and Property will be part of the Transferor’s
estate in the event of a Transferor bankruptcy. Furthermore, it is
not intended that such contribution be deemed a pledge of the Transferred
Receivables and Related Rights and Property to secure a debt or other obligation
of Transferor. If however, notwithstanding the intention of the
parties, the contribution provided for in this Article II is determined to be a
transfer for security, then this Agreement will also be deemed to be a security
agreement and the Transferor hereby grants to Transferee a security interest in
all of the Transferor’s right, title and interest in the Transferred Receivables
and Related Rights and Property.
Section
2.7 Re-Transfer
of Designated Receivables; Deemed
Collections. (a) If at any time an Account
Receivable becomes a Designated Receivable, the Transferor will accept
re-transfer of such Designated Receivable from Transferee. Each such
re-transfer will be made on the next occurring Settlement Date (or the second
following Settlement Date, if such Accounts Receivable became subject to
retransfer pursuant to this Section 2.7 after the Preparation Date for the next
occurring Settlement Date). The Transferor will pay to the Transferee
an amount in cash equal to the Uncollected Value (which for this purpose shall
be the face amount thereof) of such Designated Receivables.
(b) The
parties acknowledge and agree that the Transferor will be obligated to
compensate Transferee for any Deductions taken on any Account Receivable prior
to the Settlement Date on which such Account Receivable was contributed to
Transferee, to the extent such Deductions were not otherwise taken into account
in determining the Uncollected Value of such Transferred Receivables on such
Settlement Date and the Transferor will be deemed to have received a Collection
of such Account Receivable in the amount of any such Deduction on the date such
reduction is reported on the Books and Records. On each day after
contribution of an Account Receivable to Transferee on which a Deduction is
granted on such Transferred Receivable as a result of (A) any defective,
rejected or returned goods or services, or (B) a setoff in respect of any claim
by the related Account Debtor against the Transferor, in each of the foregoing
cases, other than any such reduction or cancellation due to credit losses, the
Transferor will be deemed to have received on such day a Collection of such
Receivable in the amount of the Deduction. If the Transferor is
deemed to have received a Collection of Receivables pursuant to this Section
2.7(b), the Transferor will deposit the amount of such Collections into the
Collection Accounts on the next occurring Settlement Date (or the second
following Settlement Date, if such Deduction was granted after the opening of
business on the Business Day immediately preceding the next occurring Settlement
Date). Such amount may be offset against any amounts due from
Transferee to such Transferor on such Settlement Date with respect to the
Uncollected Value of Accounts Receivable conveyed by the Transferor to
Transferee on such Settlement Date.
Section
2.8 Servicing of
Accounts Receivable. On and after each Borrowing Date, Transferee
will have the sole right to receive all Collections with respect to all
Transferred Receivables purchased by it or contributed to it on such Borrowing
Date. The foregoing notwithstanding, Transferee and the Transferor agree to
engage Sanmina’s services as initial Servicer for all the Transferred
Receivables pursuant to the terms set forth in the Servicing
Agreement. The Transferor agrees (i) to notify commencing on the
Collection Account Effect Date all Account Debtors of its respective Transferred
Receivables that pay by wire transfer, automated clearing house (“ACH”) entries,
credits from merchant card transactions and other electronic funds transfers to
tender all payments on such Transferred Receivables to the Collection Accounts
and (ii) to notify commencing on the Lock-Box Effective Date all Account Debtors
of its respective Transferred Receivables that pay by check, draft or other
instrument to tender all payments on such Transferred Receivables to the
Lock-Box, and in each case to cooperate fully with Servicer in all respects
regarding the servicing of Transferred Receivables. During the
Collection Account Ramp-Up Period and the Lock-Box Ramp-Up Period, Collections
may be deposited into the Sanmina Accounts and the Sanmina Lockbox and the
Servicer will be instructed to sweep all amounts deposited in the Sanmina
Accounts and the Sanmina Lockbox into the Tranche A and Tranche B Collection
Accounts on each Business Day. Collections will be deposited in the Collection
Accounts on each Business Day. All collections on a Transferred
Receivable received by a Person who is not the Obligee of such Account
Receivable will be held in trust for the Obligee and promptly deposited into the
Collection Accounts or delivered to Servicer for deposit by Servicer into the
Collection Accounts. If an Account Debtor has indicated that a
payment made by such Account Debtor is to be applied in respect of its
obligations under a specified Account Receivable or in respect of other
obligation of such Account Debtor owed to the Transferor, then the Transferor
and the Transferee agree that such payment shall be applied as specified by the
related Account Debtor; however, after an Account Debtor is in default of any
payment obligation to the Transferee or the Transferor for more than 10 days, or
after the related Account Debtor is insolvent, any such payment shall be applied
to the principal amount of the Accounts Receivable of such Obligor in
chronological order of Scheduled Maturity Dates.
Section
2.9 Related
Rights and Property. In all cases hereunder where an Account
Receivable is contributed to a Transferee who then becomes the Obligee of such
Account Receivable, the contribution of such Account Receivable will be deemed
to include the contribution of all of the Related Rights and Property relating
to such Account Receivable.
ARTICLE
III
THE
CLOSING
Section
3.1 The
Closing. The closing of the transactions set forth herein will occur
on the Closing Date, contemporaneously with the closing of the Credit
Agreement. In any event, this Agreement will not be effective until
the Effective Date. Facsimile signatures of the parties hereto will be
sufficient to close this Agreement; provided that the Transferor and Transferee
agree to deliver fully executed, original counterparts of this Agreement and the
other Program Documents to Agent’s counsel for receipt by Agent’s counsel no
later than five Business Days following the Closing Date. The “Closing Date” shall
be the date of this Agreement as first above written.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
Section
4.1 Representations
and Warranties of Transferor. The Transferor hereby represents and
warrants to Transferee as follows (each of which representations and warranties
will be deemed to have been restated upon the delivery of each Assignment
Agreement to Transferee):
(a) Organization;
Location. Transferor is a corporation validly existing and in
good standing under the laws of the state of Delaware and is authorized under
such laws to conduct its business as currently conducted and to own its assets
(including but not limited to its Accounts Receivable) as currently
owned. The location of Transferor's chief executive office and all of
its Books and Records relating to its Accounts Receivable,
the state of incorporation of Transferor, and Transferor's organizational
identification number are identified in the Transferor Collateral Disclosure
Certificate substantially in the form of Exhibit B attached hereto and made a
part hereof (the “Transferor Collateral
Disclosure Certificate”).
(b) Capacity; Authority;
Validity. Transferor has all necessary corporate power and
authority to enter into this Agreement and to perform all of the obligations to
be performed by it under this Agreement. This Agreement and the
consummation by Transferor of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of
Transferor. This Agreement has been duly executed and delivered by
Transferor and constitutes the valid and binding obligations of Transferor,
enforceable against Transferor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally and
to general equitable principles.
(c) Conflict;
Defaults. Neither the execution and delivery of this Agreement
by Transferor, nor the consummation of the transactions contemplated hereby and
thereby will (i) conflict with, result in the breach of, constitute a default
under, or accelerate the performance required by, the terms of any indenture,
agreement, contract or other instrument to which Transferor is a party or by
which Transferor or its assets are bound, (ii) violate Transferor's articles of
incorporation, bylaws, or other constitutional or charter documents, as the case
may be, (iii) violate any law or any order, rule or regulation applicable to
Transferor of any Governmental Authority having jurisdiction over Transferor or
its properties, (iv) require any consent, approval, authorization or filing
(which, in each case, has not already been obtained or made) under any law,
regulation, judgment, order, writ, decree, permit, license, agreement, contract
or instrument to which Transferor is a party or by which Transferor or any of
its assets are bound.
(d) Title to Transferred
Receivables. Immediately prior to (or coincidentally with) any
transfer of an Account Receivable hereunder, Transferor has good and marketable
title to such Accounts Receivable, free and clear of any Lien except for
Permitted Encumbrances. When Transferee accepts a capital
contribution of such Account Receivable, it will have acquired a perfected
ownership interest in such Account Receivable free and clear of any Lien, except
for Permitted Encumbrances.
(e) Litigation. There
is no claim, litigation, proceeding, arbitration or investigation pending or, to
Transferor's best knowledge, threatened against Transferor, which could
reasonably be expected to have a Material Adverse Effect.
(f) The
Transferor has filed or caused to be filed all material tax returns that are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any written assessments made against it or any of its property and
all other material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than such taxes, fees or other
charges the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Transferor); no tax
Lien has been filed, and, to the knowledge of the Transferor, no claim is being
asserted, with respect to any such tax, fee or other charge that in any case
would reasonably be expected to have a Material Adverse Effect.
(g) Investment Company Act;
Other Regulations. The Transferor is not an “investment
company,” or a company “controlled” by an “investment company,” within the
meaning of the U.S. Investment Company Act of 1940, as amended.
(h) Solvent. The
Transferor is, and after giving effect to each contribution hereunder and the
incurrence of the obligations being incurred hereunder, will be and will
continue to be, solvent.
(i) Finders or
Brokers. Transferor has not agreed to pay any fee or
commission to any agent, broker, finder, or other person retained by it, for or
on account of services rendered as a broker or finder in connection with this
Agreement or the transactions contemplated hereby which would give rise to any
valid claim against Transferee for the payment of any such fee or
commission.
(j) Nature of Transferred
Receivables. Each Transferred Receivable constitutes an
“account,” or “general intangible” as such terms are defined in the
UCC.
(k) Eligibility of Transferred
Receivables. Each Account Receivable accepted as a capital
contribution by Transferee, that was identified in the related Assignment
Agreement or in any other document or report delivered to Transferee in
accordance with this Agreement as an Eligible Receivable satisfied the criteria
in the definition of “Eligible Receivable” as of the date of such Assignment
Agreement or other document or report, as applicable.
(l) No
statement or information contained in this Agreement, any other Program Document
or any other document, certificate or statement furnished by or on behalf of the
Transferor to the Transferee or to the Agent, or any of them, for use in
connection with the transactions contemplated by this Agreement or the other
Program Documents, when taken together with Sanmina’s filings with the SEC,
contained as of the date such statement, information, document or certificate
was so furnished, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading. There is no fact known to the Transferor that could
reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein or in Sanmina’s filings with the SEC, in the other
Program Documents, or in any other documents, certificates and statements
furnished to the Agent and the Transferee for use in connection with
the transactions contemplated hereby and by the other Program
Documents. Sanmina has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other documents required
to be filed by Sanmina with the SEC since January 1, 2006 (collectively, the
"Sanmina
Reports"). None of the Sanmina Reports, as of their respective
dates (and, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(m) Filings. There
have been duly filed all Financing Statements or other similar instruments or
documents necessary under the UCC (or any comparable law) of all appropriate
jurisdictions to perfect Transferee's ownership interest in the Transferred
Receivables and the Related Rights and Property, to the extent Transferee’s
ownership interest in such Related Rights and Property may be perfected by the
filing of Financing Statements under the UCC.
Section
4.2 Representations and
Warranties of Transferee. Transferee represents and warrants to the
Transferor as follows (each of which representations and warranties will be
deemed to have been restated upon the delivery of each Assignment Agreement to
Transferee):
(a) Organization. Transferee
is a limited liability company, validly existing and in good standing under the
laws of the State of Delaware.
(b) Capacity;
Authority; Validity. Transferee has all necessary limited
liability company power and authority to enter into this Agreement and to
perform all of the obligations to be performed by it under this
Agreement. This Agreement and the consummation by Transferee of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary limited liability company action of
Transferee. This Agreement has been duly executed and delivered by
Transferee and constitutes the valid and binding obligations of Transferee,
enforceable against Transferee in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally and
to general equitable principles.
(c) Conflicts;
Defaults. Neither the execution and delivery of this Agreement
by Transferee, nor the consummation of the transactions contemplated hereby and
thereby will (i) conflict with, result in the breach of, constitute a default
under, or accelerate the performance required by, the terms of any indenture,
agreement, contract or other instrument to which Transferee is a party or by
which Transferee or its assets are bound, (ii) violate Transferee's certificate
of formation, limited liability company agreement, or other constitutional or
charter documents, as the case may be, or any law or any order, rule or
regulation applicable to Transferee of any Governmental Authority having
jurisdiction over Transferee or its properties, (iii) require any consent,
approval, authorization or filing (which, in each case, has not already been
obtained or made) under any law, regulation, judgment, order, writ, decree,
permit, license, agreement, contract or instrument to which Transferee is a
party or by which Transferee or any of its assets are bound.
ARTICLE
V
CERTAIN
COVENANTS
Section
5.1 Mutual Covenants
and Agreements. Subject to the terms and conditions herein provided,
each party to this Agreement will use its commercially reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, appropriate or desirable hereunder and under
applicable laws and regulations to consummate, make effective, and carry out the
purposes of, the transactions contemplated by this Agreement. Each
party to this Agreement will use its commercially reasonable efforts to obtain
consents of all third parties and Governmental Authorities necessary for the
consummation of the transactions contemplated by this Agreement
Section
5.2 Certain
Covenants of Transferor. The Transferor hereby agrees with
Transferee as follows:
(a) Financing Statements; UCC
Matters. The Transferor authorizes Transferee to prepare and
file (at the Transferor’s cost) Financing Statements in any jurisdictions where
Transferee deems such filings to be reasonably necessary to give notice of
Transferee's interest in and to the Transferred Receivables. The
Transferor will not change its name, identity, state of incorporation or
corporate structure (within the meaning of Section 9-507(c) of the UCC) or any
office where its Books and Records are kept unless it will have (i) given
Transferee (and Agent, as Transferee's assignee) at least thirty (30) days' prior written
notice thereof and (ii) delivered to Transferee (and Agent, as Transferee's
assignee) all financing statements, instruments and other documents reasonably
requested by Transferee (or Agent, as Transferee's assignee) in connection with
such change or relocation.
(b) Access. The
Transferor will (i) so long as there is then no Termination Event in existence,
during the Transferor's regular business hours and with reasonable prior notice,
not more than once per calendar quarter, and during the existence of a
Termination Event, at any time without prior notice, permit Transferee, Agent,
and their respective authorized representatives, access to (i) its Books and
Records as they relate to the Transferred Receivables and (ii) furnish
Transferee and, upon request, Agent with true, accurate and complete copies of
the Underlying Contracts and other such records and all other information in its
possession with respect to the Transferred Receivables as Transferee, or Agent
may request, in each case as is reasonably required to comply with the
Policy. The Transferor will cause its personnel and its agents to
provide Transferee, Agent, and their respective authorized representatives,
assistance in each of their investigation of the matters set forth in clauses
(i) and (ii) of the preceding sentence, all for purposes of monitoring
compliance with this Agreement and the other Program Documents; provided that so
long as there is then no Termination Event, the inspection of the Transferor’s
Books and Records and access to the Transferor’s employees as contemplated by
this Section 5.2(b) shall be limited to a review of those matters described in
the Scope of Audit attached as Exhibit B to the Servicing
Agreement. No Person will be granted such access or furnished with
such materials unless such Person is bound (directly or indirectly) by the terms
of Section 8.4 or by an effective confidentiality agreement, with such
conforming changes as are necessary to reflect the agreement of such Transferor
and such Person; provided, however, that such Person and such Transferor may,
but neither will be obligated to, agree on different terms respecting such
confidential treatment. In no event shall the Transferor be required
to disclose any information contemplated by this Section 5.2(b) to the
Transferee, the Agent or any other Person if the disclosure of such information
would violate any law or regulation applicable to the Transferor or the
Transferred Receivables and the Related Rights and Property or would violate any
obligation of confidentiality owed by the Transferor to any other Person that is
not an Affiliate of the Transferor.
(c) Further Assurances and
Assistance. On or after the Closing Date, the Transferor will
give such further assurances to Transferee, execute, acknowledge and deliver all
such acknowledgments and other instruments and take such further action as may
be reasonably necessary or appropriate to fully and effectively carry out the
transactions contemplated hereby, including, without limitation, any additional
Financing Statements. As reasonably requested by Transferee or the Agent, the
Transferor will provide reasonable assistance to Transferee, the Agent, and
their respective authorized representatives in obtaining access to information
to assist Transferee in financing the Transferred Receivables (or any portion
thereof) as any of them may reasonably request, including, without limitation,
access to reports currently prepared by Transferor in the ordinary course of
business in accordance with the Policies and Procedures, the Remittance Reports
and other reports required of Transferee by the Agent under the Credit
Agreement, and any additional reports that Transferor is obligated to provide
under the Servicing Agreement. Except as otherwise provided in this
Agreement, the Transferor will not take any action after the Closing Date which
would be inconsistent with the effective transfer by the Transferor to
Transferee hereunder of the Transferor's entire right, title and interest in and
to the Transferred Receivables and its Related Rights and Property.
(d) Changes to Policies and
Procedures; Standard Terms; Underlying Contracts. The
Transferor agrees that it will not, without the prior written consent of
Transferee or the Agent (such consent not to be unreasonably withheld), change
any of its Policies and Procedures or Standard Terms.
(e) Granting
Deductions. The Transferor will not compromise, rescind,
cancel or adjust any Transferred Receivable except that Sanmina will, as
required, do so in its capacity as Servicer in accordance with the Transaction
Documents.
(f) Treatment of
Transactions. The Transferor will maintain its records and
books of account in a manner that clearly reflects the true contribution of all
Transferred Receivables conveyed to Transferee hereunder. So long as
any Transferred Receivable remains outstanding, all of the
published financial statements of Transferor will contain a footnote
(i) disclosing the transactions contemplated hereunder which unambiguously
describes the contribution of Transferred Receivables to the capital
of the Borrower as an absolute transfer and the interest of Transferee and the
Agent in the Transferred Receivables, and (ii) expressly stating that the
Transferred Receivables are unavailable for creditors of the
Transferor.
(g) Lenders’
Reliance. The Transferor acknowledges that the Agent and each
Lender is entering into the transactions contemplated by the Program Documents
in reliance upon Transferee's identity as a legal entity that is separate from
Transferor and any Affiliates thereof. Therefore, from and after the
date of execution and delivery of this Agreement, the Transferor will take all
reasonable steps including, without limitation, all steps that Transferee (or
the Agent, as Transferee's assignee) may from time to time reasonably request to
maintain Transferee's identity as a separate legal entity. Without
limiting the generality of the foregoing and in addition to the other covenants
set forth herein, the Transferor will take and continue to take all actions
described in the assumptions as to facts set forth in the opinion of Xxxxx &
XxXxxxxx delivered on the Closing Date with respect to substantive consolidation
matters and will comply with, and cause compliance with, the provisions of
Transferee’s limited liability company agreement and certificate of
formation.
(h)
Taxes. The
Transferor will file all tax returns and reports required by law to be filed by
them and promptly pay all taxes and governmental charges at any time owing, that
may be assessed against the Transferor except any such taxes which are not yet
delinquent or are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP will have
been set aside on its books, unless the failure to make any such payment could
not reasonably be expected to have a Material Adverse Effect on the Transferor
and its Subsidiaries (taken as a whole), the consummation of the transactions
contemplated herein, the enforceability of the Program Documents to which the
Transferor is a party, or the perfection and priority of the security interest
of Transferee (or the Agent, as assignee of Transferee) in and to the
Transferred Receivables and the Related Rights and Property in which case
Transferor will promptly make such payments.
(i) Change in Payment
Instructions to Obligors. Except as set forth in the Program
Documents and in any event, without the Agent’s prior written consent,
Transferor will not make any change in the instructions to Account Debtors with
respect to the Transferred Receivables regarding payments to be made to the
Collection Accounts.
(j) Sales,
Liens. The Transferor will not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or grant any option with respect to,
or create or suffer to exist any Lien upon (including, without limitation, the
filing of any financing statement) or with respect to, any Transferred
Receivable or Related Rights or Property, or upon or with respect to any
Underlying Contract under which any Transferred Receivable arises (to the extent
of such Transferred Receivable), or assign any right to receive income with
respect thereto (other than, in each case, the creation of the interests therein
in favor of Transferee provided for herein), and the Transferor will defend the
right, title and interest of Transferee (and the Agent, as Transferee's
assignee) in, to and under any of the foregoing property, against all claims of
third parties claiming through or under Transferor.
(k) Use of
Proceeds. Transferor will not use any of the proceeds of any
sale of Accounts Receivable hereunder for a purpose that violates, or would be
inconsistent with, Regulations T, U or X promulgated by the Board of Governors
of the Federal Reserve System from time to time.
(l) Information. Transferor
will deliver, or cause to be delivered to the Transferee:
(i) as
soon as available, but in any event within 90 days after the end of each fiscal
year of Transferor, a copy of the audited consolidated balance sheet of
Transferor and its consolidated subsidiaries as at the end of such year and the
related audited statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a “going concern” or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG LLP, or other
independent registered public accountants of recognized international standing
and without any limitation or qualification on the certification of internal
controls required under SEC rules; and;
(ii) as
soon as available, but in any event not later than 60 days after the end of each
of the first three quarterly periods of each fiscal year of Transferor, the
unaudited consolidated balance sheet of Transferor as at the end of such quarter
and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in comparative form the figures for the previous
year, certified by a Senior Officer of Transferor as fairly presenting in all
material respects the financial condition of Transferor and its
Subsidiaries as at the dates indicated and the results of their operations and
cash flows for the periods indicated, subject to changes resulting from normal
year end audit adjustments and the absence of footnotes (which certification
shall be satisfied by the certification provided in Exhibit 31 to Transferor’s
Quarterly Report on Form 10-Q filed with the SEC). The Transferee
shall be entitled to rely on such certification as if addressed to
it;
Financial
statements required to be delivered pursuant to Sections 5.2(l)(i) and
5.2(l)(ii) (to the extent any such financial statements are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so, shall be deemed to have been delivered on the date on which Transferor posts
such reports, or provides a link thereto, either: (i) on Transferor’s website on
the Internet at the website address listed in Section 8.1; or (ii) when such
report is posted electronically on IntraLinks/IntraAgency or other relevant
website which Transferee has access to (whether a commercial, third-party
website or whether sponsored by the Agent), if any, on Transferor’s
behalf; provided that: (x) the Transferor shall deliver paper copies of such
reports to the Transferee until written request to cease delivering paper copies
is given by the Transferee; and (y) the Transferor shall
notify (which may be by facsimile or electronic mail) the Transferee of the
posting of any such reports and immediately following such notification the
Transferor shall provide to the Transferee, by electronic mail, electronic
versions (i.e., soft copies) of such reports. The Transferee shall have no
obligation to request the delivery or to maintain copies of the reports referred
to above, and in any event shall have no responsibility to monitor compliance by
Transferor with any such request for delivery, and the Transferee shall be
solely responsible for requesting delivery to it or maintaining its copies of
such reports.
ARTICLE
VI
CONDITIONS
OF CLOSING
Section
6.1 Conditions
Precedent. The parties' respective obligations to consummate and
perform the transactions contemplated by this Agreement are subject to the
satisfaction or waiver of each of the conditions precedent that each of the
representations and warranties of each of the parties hereto will be true and
correct on the Closing Date, and (ii) Transferor will have delivered the
Transferor Collateral Disclosure Certificate in form and substance satisfactory
to Transferee.
ARTICLE
VII
INDEMNIFICATION
AND RELATED TERMS
Section
7.1 Transferor's
Indemnification Obligations. Without limiting any other rights which
Transferee and its assigns may have hereunder or under applicable law,
Transferor hereby agrees to indemnify Transferee, the Agent, each Lender and
their respective officers, directors, employees and agents (each, an “Indemnified Party”)
from and against any and all damages, losses, claims, liabilities and related
costs and expenses, including without limitation, reasonable attorneys’ fees and
disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”)
awarded against or incurred by any of them arising out of:
(a) reliance
on any representation or warranty made or deemed made by Transferor (or any of
its officers) under or in connection with this Agreement as to the validity or
enforceability of any Transferred Receivable or the compliance of any Assigned
Receivable with the criteria described in the definition of “Eligible
Receivable,” or any other written information or report delivered by the
Transferor pursuant hereto, which will have been false or incorrect when made or
deemed made or delivered;
(b) the
failure by the Transferor (individually or as Servicer) to comply with any term,
provision or covenant contained in this Agreement, or with any applicable law,
rule or regulation with respect to any Transferred Receivable, or the related
Underlying Contract, or the nonconformity of any Transferred Receivable, or the
related Underlying Contract with any such applicable law, rule or
regulation;
(c) the
failure to vest and maintain vested in Transferee or to transfer to Transferee
legal and equitable title to and ownership of, the Assigned Receivables which
are, or are intended to be, Transferred Receivables, free and clear of any Lien,
other than Permitted Encumbrances, whether existing at the time of the transfer
of such Account Receivable or at any time thereafter (including, without
limitation, any such failure arising from the commingling of Collections on
Transferred Receivables with funds that do not constitute Collections of
Transferred Receivables);
(d) the
misdirection by the Transferor of collections on Accounts Receivable to any
account other than the Collection Accounts or the Lockbox; or
(e) other than non-payment related to Deductions taken into account in
calculating the Uncollected Value on the relevant Preparation Date for a
Transferred Receivable, payment shortfalls or any non-payment resulting from any
commercial dispute, supplier discount, claim, offset or defense (other than
discharge in bankruptcy of the Account Debtor) of the Account Debtor to the
payment of any Account Receivable which is, or is intended to be, a Transferred
Receivable (including, without limitation, a defense based on such Transferred
Receivable or the Underlying Contract not being a legal, valid and binding
obligation of such Account Debtor enforceable against it in accordance with its
terms (other than discharge in bankruptcy of the Account Debtor) or failure to
comply with the laws of the country of any Account Debtor), or any other claim
resulting from the sale of the merchandise or services related to such
Transferred Receivable or the furnishing or failure to furnish such merchandise
or services;
provided that the
Transferor will not be required to so indemnify any Indemnified Party or
otherwise be liable to any Indemnified Party for any Indemnified Amounts
resulting from (i) the performance of the Transferred Receivables or any Related
Rights or Property, or for a shortfall as a result of such performance or as a
result of the sale of any Transferred Receivables or other Related Rights or
Property in connection with the exercise of remedies (except to the extent such
Indemnified Amounts are attributable to a breach by the Transferor of any
representation, warranty or covenant made by it in relation to any such
Transferred Receivable or Related Rights and Property), or (ii) the Indemnified
Party’s willful misfeasance, bad faith or gross negligence; and provided further
that the Transferor will not be required to so indemnify any Indemnified Party
other than the Transferee with respect to any Indemnified Amount relating to a
Transferred Receivable that is not an Assigned Receivable.
Any
amounts subject to the indemnification provisions of this Section 7.1 will be
promptly paid by Transferor to the Payment Account for the benefit of the party
seeking indemnification within five Business Days following (i) demand therefor
by such party and (ii) delivery to Transferor by such party of an invoice
stating the basis for the demand for payment to be made under this Section
7.1.
Section
7.2 Survival of
Indemnification Obligations. Transferor’s indemnification of
Transferee, Agent and the Lenders will survive the Closing Date and the Program
Termination Date.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1 Notices. All
notices and other communications by Transferee, Transferor or the Agent
hereunder will be in writing to the other parties and will be deemed to have
been duly given (i) when delivered in person, (ii) two Business Days after
delivery to an overnight courier service, receipt requested, or (iii) when sent
if sent via telecopy transmission, receipt requested or (iii) three days after
being posted when posted by the United States registered or certified mail, with
postage prepaid, addressed as follows:
To
Transferor:
Sanmina-SCI
Corporation
0000
Xxxxx Xxxxx Xxxxxx
Xxx Xxxx,
Xxxxxxxxxx 00000
Attention: Corporate
Treasurer
To
Transferee:
Sanmina
SPV LLC
0000
Xxxxx Xxxxx Xxxxxx
Xxx Xxxx,
Xxxxxxxxxx 00000
Attention: Manager
In any
case, with copy to the Agent:
Deutsche
Bank AG, New York Branch
00 Xxxx
Xx., 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention:
Structured Trade & Export Finance
Fax: (000)
000-0000
or to
such other addresses as a party or the Agent may from time to time designate by
notice as provided herein (or which the Agent may provide to the parties),
except that notices of change of address will be effective only upon actual
receipt.
Section
8.2 Assignment.
(a) The
rights of any party under this Agreement will not be assigned or transferred by
any party without the prior written approval of the other party hereto and the
Agent; provided, however, that the parties hereto acknowledge
and agree that:
(i) Transferee
intends to finance, in part, certain Transferred Receivables through extensions
of credit from Lenders; and
(ii) Transferee
may assign its rights under this Agreement, and the Transferred Receivables to
the Agent for the benefit of the Lenders in connection with such
financing.
(b) During
the continuation of any Termination Event, Transferor agrees that the Agent will
have all the rights (but none of the obligations) of Transferee hereunder, but
only to the extent such rights relate to Assigned Receivables, to the same
extent as Transferee, and that Transferor will continue to be bound by the terms
of this Agreement as against Agent, until the Program Termination
Date.
(c) Transferor
agrees that the Agent and the Lenders are third-party beneficiaries to this
Agreement (in each case, to the extent described in this Section 8.2) and will
be entitled to and have standing to enforce the rights of Transferee hereunder
(in each case, to the extent described in this Section 8.2 and only to the
extent such rights relate to Assigned Receivables). Any attempt by
any party to assign or transfer this Agreement contrary to the terms and
conditions of this section will be null and void ab initio.
Section
8.3 Entire
Agreement, Limited Third Party Beneficiaries. This Agreement,
together with the exhibits attached hereto, constitutes the entire agreement by
the parties and supersedes any other agreement, whether written or oral, that
may have been made or entered into between Transferor and Transferee (or by any
of their respective officers, agents, or representatives) relating to the
matters contemplated herein. Except as described in Section 8.2
hereof, no other person or entity will be a third party beneficiary of this
Agreement.
Section
8.4 Confidentiality.
(a) Each
party hereto agrees to the following confidentiality terms (with it being
understood that, for purposes of this Section 8.4, the “Recipient” will mean the
Person to whom any Confidential Information is provided, the “Provider” means
the Person who provides such Confidential Information to the Recipient, and
“Confidential Information” (as further defined below) means the Confidential
Information of the Provider):
(i) The
Recipient will receive, maintain and hold the Confidential Information in
confidence and will use at least the same level of care in safeguarding the
Confidential Information that it uses with respect to its own confidential
information but in no event less than reasonable care under the
circumstances;
(ii) The
Recipient agrees to take all steps reasonably necessary and
appropriate to ensure that its employees or other persons to
whom disclosure is authorized hereunder treat the Confidential
Information as confidential and to ensure that such employees or other persons
to whom disclosure is authorized hereunder act in accordance with and abide by
the terms of this Section 8.4 regarding the
Confidential Information;
(iii) The Recipient will use the Confidential Information solely for
purposes of the Program and matters reasonably related thereto and may disclose
Confidential Information to the Insurer; and
(iv) The
Recipient will not disclose, reproduce, distribute, transmit, reverse engineer,
decompile, disassemble or transfer, directly or indirectly, the Confidential
Information, except as authorized in this Section 8.4, as otherwise authorized
in writing by the Provider in conjunction with the Program, or unless otherwise
agreed by the Provider.
(b) The Recipient agrees that it will not (without the prior written
consent of the Provider) disclose the Confidential Information to any third
party, except (i) its affiliates, officers, employees and legal counsel on a
confidential basis, (ii) as required by law, regulation or other applicable
judicial or governmental order, (iii) on a limited basis as is reasonably
necessary to prepare any claim or defense arising from or in connection with the
Program or the Program Documents, or (iv) as expressly contemplated in the
Program Documents.
(c) As
used herein, “Confidential Information” means all information disclosed or
provided by the Provider to the Recipient or its agents or representatives in
connection with the Program and all information regarding the Provider's
business, assets, affiliates, and customers, so long as such information is
marked confidential or otherwise of a type considered confidential in the
ordinary course of business, but does not include information that: (i) is
generally available to the public, (ii) hereafter, through no breach of this
Section 8.4 by the Recipient or its agents or representatives, becomes generally
available to the public, (iii) corresponds in substance to information furnished
to the Recipient hereafter on a non-confidential basis by
any third party having a legal right to do so, or (iv) was developed by, or for,
the Recipient independently of any disclosure or use of the Confidential
Information; provided that, for the avoidance of doubt, each Receivables Report
and each Remittance Report shall be deemed to be Confidential
Information.
(d) At
any time upon the written request of the Provider, the Confidential Information,
including all copies and embodiments thereof (including all copies and/or any
other form or reproduction and/or description thereof made by the Recipient), in
the possession of the Recipient, will, at Recipient's option, be promptly
returned to the Provider or promptly destroyed, except that the portion of the
Confidential Information that may be found in analyses, compilations, studies or
other documents prepared by the Recipient or its agents, attorneys or employees,
oral or electronic Confidential Information, and any Confidential Information
not so requested and returned will be held by the Recipient and kept subject to
the terms of this Section 8.4 or destroyed to the extent practicable and
permitted by law. Whether the Confidential Information or other
embodiments of the Confidential Information is to be returned or destroyed
pursuant to this paragraph, such return or destruction will, upon written
request of the Provider, be certified in writing by an authorized officer of the
Recipient. The return or destruction of the Confidential Information
or other embodiments of the Confidential Information will not relieve the
Recipient of its confidentiality obligations contained in this Section
8.4.
(e) The
confidentiality provisions set forth in this Section 8.4 will (i) survive the
Program Termination Date and (ii) terminate upon the earliest to occur of two
(2) years after the Program Termination Date or such other date mutually agreed
upon by the parties hereto.
Notwithstanding
the foregoing, each party (and each employee, representative or other agent of
each party) may disclose to any and all persons, without limitation of any kind,
the tax treatment and tax structure of the transactions contemplated by this
Agreement or any other Program Document and all materials of any kind (including
opinions or other tax analyses) that are provided to the parties relating to
such tax treatment and tax structure.
Section
8.5 Amendments
and Waivers. This Agreement may be amended, modified, superseded, or
canceled, and any of the terms, representations, warranties or covenants hereof
may be waived, only by written instrument executed by each of the parties or, in
the case of a waiver, by the party waiving compliance, and, in any event with
the prior written consent of the Agent. The failure of any party at
any time or times to require performance of any provision hereof will in no
manner affect the right at a later time to enforce the same. No
waiver by any party of any condition or of any breach of any term,
representation, warranty or covenant under this Agreement, whether by conduct or
otherwise, in any one or more instances, will be deemed to be or construed as a
further or continuing waiver of any other condition or of any breach of any such
condition of breach or waiver of any other condition or of any breach of any
other term, representation, warranty or covenant under this
Agreement.
Section
8.6 Captions;
Counterparts. The captions in this Agreement are for convenience
only and will not be considered a part of or affect the construction or
interpretation of any provision of this Agreement. This Agreement may
be executed in two or more counterparts (and by each of the parties on separate
signature pages), each of which will be an original, but all of which together
will constitute one and the same instrument.
Section
8.7 Governing
Law. This Agreement will be governed by and construed and
interpreted in accordance with the internal laws of the State of New York,
without regard to principles of conflict of laws (other than Section 5-1401 of
the New York General Obligations Laws).
Section
8.8 Severability. If
any provision of this Agreement or portion thereof is held invalid, illegal,
void or unenforceable by reason of any rule of law, administrative or judicial
provision or public policy, such provision will be ineffective only to the
extent invalid, illegal, void or unenforceable, and the remainder of such
provision and all other provisions of this Agreement will nevertheless remain in
full force and effect.
Section
8.9 WAIVER OF
JURY TRIAL; CONSENT TO JURISDICTION. EACH OF THE PARTIES HERETO (A)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY OTHER
PROGRAM DOCUMENT; (B) SUBMITS TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN THE
XXXXX XXXXXX XX XXX XXXXX XX XXX XXXX XXX XXXXXX XXXXXX DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE ENFORCEMENT OF THIS AGREEMENT AND THE
OTHER PROGRAM DOCUMENTS; (C) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF
ANY JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING, WITHOUT LIMITATION,
INCONVENIENCE OF FORUM) TO JURISDICTION OR VENUE WITHIN THE STATE AND DISTRICT
DESCRIBED ABOVE FOR THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT OR THE
OTHER PROGRAM DOCUMENTS; AND (D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON
IT IN THE MANNER PRESCRIBED IN SECTION 8.1. NOTHING HEREIN CONTAINED,
HOWEVER, WILL PREVENT ANY PARTY FROM BRINGING ANY ACTION OR EXERCISING ANY
RIGHTS AGAINST ANY SECURITY AND AGAINST ANY OTHER PARTY PERSONALLY, AND AGAINST
ANY ASSETS OF SUCH OTHER PARTY, WITHIN ANY OTHER STATE OR
JURISDICTION.
Section
8.10 No
Petition. The
Transferor hereby agrees not to institute against Transferee, or join in any
institution against Transferee of, any bankruptcy proceedings under any United
States federal or state bankruptcy law or similar law in connection with any
obligations relating to this Agreement, until one year and one day following the
termination of the Credit Agreement and the repayment in full of all Obligations
arising under the Credit Agreement.
[Signatures
on following page]
IN
WITNESS WHEREOF, each of Transferor and Transferee have caused this Receivables
Transfer and Contribution Agreement to be duly executed as of the date first
above written.
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TRANSFEREE:
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SANMINA
SPV LLC
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By:
/s/ Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Manager
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TRANSFEROR:
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SANMINA-SCI
CORPORATION
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By:
/s/ Xxxxxx X. Xxxxxxx
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Name:
Xxxxxx X. Xxxxxxx
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Title:
Vice President and Treasureer
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