EXHIBIT 10.1
EIGHTH AMENDMENT AND WAIVER
This EIGHTH AMENDMENT AND WAIVER (this "Amendment") is entered into as of
April 6, 2004, among SOLECTRON CORPORATION, a Delaware corporation (the
"Borrower"), XXXXXXX XXXXX CREDIT PARTNERS L.P. ("GSCP"), as sole lead arranger,
sole book runner and co-syndication agent, JPMORGAN CHASE BANK ("JPMorgan"), as
co-syndication agent, THE BANK OF NOVA SCOTIA ("Scotiabank"), as documentation
agent, the lenders party hereto (each, a "Lender," and collectively, the
"Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent.
The Borrower, GSCP, JPMorgan, Scotiabank, the Lenders, and the
Administrative Agent entered into a Three-Year Credit Agreement dated as of
February 14, 2002, which agreement was amended by an Amendment Agreement dated
as of June 18, 2002, a Second Amendment Agreement dated as of August 19, 2002, a
Third Amendment Agreement dated as of February 13, 2003, a Fourth Amendment
Agreement dated as of July 9, 2003, a Fifth Amendment and Waiver dated as of
August 27, 2003, a Sixth Amendment dated as of November 21, 2003, and a Seventh
Amendment dated as of February 27, 2004 (as in effect as of the date of this
Amendment, the "Credit Agreement").
The Borrower has requested that the Lenders agree to certain amendments to
the Credit Agreement and certain waivers thereof, and the Lenders party hereto
have agreed to such request, subject to the terms and conditions of this
Amendment.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term used herein
(including in the Recitals hereof) which is defined in the Credit Agreement
shall have the meaning assigned to such term in the Credit Agreement.
(b) As used herein, "Amendment Documents" means this Amendment, the Consent
and Agreement related hereto and the Credit Agreement (as amended by this
Amendment).
(c) Each reference to "this Agreement," "hereof," "hereunder," "herein" and
"hereby" and each other similar reference contained in the Credit Agreement, and
each reference to "the Credit Agreement" and each other similar reference in the
other Loan Documents, shall from and after the Effective Date refer to the
Credit Agreement as amended hereby.
(d) The rules of interpretation set forth in Sections 1.02 and 1.05 of the
Credit Agreement shall be applicable to this Amendment.
2. Amendments to Credit Agreement. Subject to the terms and conditions hereof,
the Credit Agreement is amended as follows, effective as of April 6, 2004 (the
"Effective Date"):
(a) The text, ", and" immediately preceding clause (iv) of the defined term
"Annualized
EBITDA" in Section 1.01 of the Credit Agreement shall be deleted, and a new
clause (v) shall be added to such defined term as follows:
, and (v) losses arising from the Exchange Offers deducted in
calculating Consolidated Net Income for the fiscal quarter in which
such loss is recognized.
(b) The text, ", and" immediately preceding clause (a)(v) of the defined
term "Cash Interest Coverage Ratio" in Section 1.01 of the Credit Agreement, and
the text, "; to" immediately following such clause shall be deleted, and a new
clause (a)(iv) shall be added to such defined term as follows:
, and (vi) the losses arising from the Exchange Offers deducted in
calculating Consolidated Net Income for the fiscal quarter in which
such loss is recognized; to
(c) The text ", and" immediately preceding clause (c)(v) of the defined
term "Consolidated Tangible Net Worth" in Section 1.01 of the Credit Agreement
shall be deleted, and a new clause (c)(vi) shall be added to such defined term
as follows:
, and (vi) the aggregate losses arising from the Exchange Offers
deducted in calculating Consolidated Net Income, taken during the
fiscal quarter in which such loss is recognized
(d) In Section 1.01 of the Credit Agreement, the following new definition
of "Exchange Offers" is inserted:
"Exchange Offers" means one or more exchange offers by the Borrower to
the holders of the ACES in substantially the form described to the
Administrative Agent and the Lenders in the Borrower's letter dated
March 29, 2004.
(e) Schedule 3 to the Compliance Certificate attached to the Credit
Agreement as Exhibit C, is amended and restated in its entirety to read as set
forth in Annex 1 hereto.
3. Representations and Warranties.
The Borrower hereby represents and warrants to the Administrative Agent and
the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing (or would
result from the amendment of the Credit Agreement contemplated hereby).
(b) The execution, delivery and performance by the Borrower of the
Amendment Documents have been duly authorized by all necessary corporate and
other action and do not and will not require any registration with, consent or
approval of, or notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable.
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(c) The Amendment Documents constitute the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting creditor's rights generally and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
(d) All representations and warranties of the Borrower contained in the
Credit Agreement are true and correct in all material respects (except to the
extent such representations and warranties expressly refer to an earlier date,
in which case they shall be true and correct as of such earlier date and except
that this subsection (d) shall be deemed instead to refer to the last day of the
most recent quarter and year for which financial statements have then been
delivered in respect of the representation and warranty made in Section 5.05 of
the Credit Agreement and to take into account any amendments to the Schedules to
the Credit Agreement and other disclosures made in writing by the Borrower to
the Administrative Agent and the Lenders after the Closing Date and approved by
the Administrative Agent and the Required Lenders).
(e) There has occurred since February 27, 2004, no event or circumstance
that has resulted or could reasonably be expected to result in a Material
Adverse Effect.
(f) The Borrower is entering into this Amendment on the basis of its own
investigation and for its own reasons, without reliance upon the Administrative
Agent and the Lenders or any other Person.
(g) The Borrower's obligations under the Credit Agreement and under the
other Loan Documents are not subject to any defense, counterclaim, set-off,
right of recoupment, abatement or other claim.
4. Conditions of Effectiveness.
(a) The effectiveness of Sections 2 and 5 of this Amendment shall be
subject to the satisfaction of each of the following conditions precedent:
(1) The Administrative Agent shall have received from the Borrower and
the Required Lenders a duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) of this Amendment.
(2) The Administrative Agent shall have received the consent of the
Subsidiaries of the Borrower party to the Pledge Agreement, the Interco
Subordination Agreement, the Security Agreement or the Guaranty, in form and
substance satisfactory to the Administrative Agent, in their capacities as such,
to the execution and delivery hereof by the Borrower.
(3) The Administrative Agent shall have received evidence of payment
by the Borrower of all fees, costs and expenses due and payable as of the date
hereof hereunder and under the Credit Agreement, including any fees arising
under or referenced in Section 6 of this Amendment and any costs and expenses
payable under Section 7(g) of this Amendment (including the Administrative
Agent's Attorney Costs, to the extent invoiced on or prior to the date hereof).
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(4) The Administrative Agent shall have received from the Borrower, in
form and substance satisfactory to the Administrative Agent, copies of the
resolutions passed by the board of directors of the Borrower, certified as of
the date hereof by the Secretary or an Assistant Secretary of the Borrower,
authorizing the execution, delivery and performance of this Amendment, together
with such incumbency certificates and/or other certificates of Responsible
Officers of the Borrower, as the Administrative Agent may require to establish
the identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as such in connection with this Amendment and
each other Loan Document to which the Borrower is a party.
(5) The Administrative Agent shall have received all other documents
it or the Required Lenders may reasonably request relating to any matters
relevant hereto, all in form and substance satisfactory to the Administrative
Agent.
(b) For purposes of determining compliance with the conditions specified in
Section 4(a), each Lender that has executed this Amendment shall be deemed to
have consented to, approved or accepted, or to be satisfied with, each document
or other matter either sent, or made available for inspection, by the
Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Lender.
(c) From and after the Effective Date, the Credit Agreement is amended as
set forth herein. Except as expressly amended pursuant hereto, the Credit
Agreement shall remain unchanged and in full force and effect and is hereby
ratified and confirmed in all respects.
(d) The Administrative Agent will notify the Borrower and the Lenders of
the satisfaction of the conditions precedent in this Section 4.
5. Waivers.
Subject to the terms and conditions hereof, the Lenders party hereto waive
(a) non-compliance with Section 7.06 of the Credit Agreement resulting from one
or more exchange offers made by the Borrower to the holders of the ACES in
substantially the form described to the Administrative Agent and the Lenders in
the Borrower's letter dated March 29, 2004 (collectively, the "Transactions"),
and (b) any Event of Default as to the ACES occurring under clause (i)(B) of
Section 8.01(e) of the Credit Agreement by virtue of the Transactions. For the
avoidance of doubt, the Transactions shall be treated in the same manner as a
conversion for purposes of clause (iii)(B) of Section 7.13(b) of the Credit
Agreement.
6. Fees.
The Borrower shall pay (through the Administrative Agent) to each Lender
that executes and delivers this Amendment by no later than 12:00 p.m. (Pacific
time) on April 6, 2004 a non-refundable processing fee equal to $3,500. Such
processing fee shall be fully-earned upon becoming due and payable, shall not be
refundable for any reason whatsoever and shall be in addition to any fee, cost
or expense otherwise payable by the Borrower pursuant to the Credit Agreement or
this Amendment.
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7. Miscellaneous.
(a) The Borrower acknowledges and agrees that the execution and delivery by
the Administrative Agent and the Lenders of this Amendment shall not be deemed
to create a course of dealing or an obligation to execute similar waivers or
amendments under the same or similar circumstances in the future.
(b) This Amendment shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns.
(c) This Amendment shall be governed by and construed in accordance with
the law of the State of New York (including Sections 5-1401 and 5-1402 of the
General Obligations Law of the State of New York), provided that the
Administrative Agent and the Lenders shall retain all rights arising under
Federal law.
(d) This Amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the
Administrative Agent of a facsimile transmitted document purportedly bearing the
signature of a Lender or the Borrower shall bind such Lender or the Borrower,
respectively, with the same force and effect as the delivery of a hard copy
original. Any failure by the Administrative Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Administrative Agent.
(e) This Amendment and the other Amendment Documents contain the entire and
exclusive agreement of the parties hereto with reference to the matters
discussed herein. This Amendment supersedes all prior drafts and communications
with respect hereto. This Amendment may not be amended except in accordance with
the provisions of Section 10.01 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed prohibited
by or invalid under any applicable law, such provision shall be invalidated
without affecting the remaining provisions of this Amendment, the Credit
Agreement or the Loan Documents.
(g) The Borrower agrees to pay or reimburse Bank of America (including in
its capacities as Collateral Agent and as Administrative Agent), GSCP, JPMorgan
and Scotiabank upon demand, for all reasonable costs and expenses (including
reasonable Attorney Costs) incurred by Bank of America (including in its
capacities as Collateral Agent and as Administrative Agent), GSCP, JPMorgan and
Scotiabank in connection with the development, preparation, negotiation,
execution and delivery of the Amendment Documents.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment
and Waiver to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SOLECTRON CORPORATION
By: /s/ Xxxxxx Xxxxx
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Title: VP & Chief Accounting Officer
BANK OF AMERICA, N.A., as Administrative
Agent and Lender
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Name: Xxxxxxx Xxxx
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: Director
BNP PARIBAS
By:
-----------------------------
Name:
Title:
By:
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Name:
Title:
CSAM FUNDING II
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
DBS BANK LTD., LOS ANGELES AGENCY
By: /s/ Xxxxxxx Xxx
-----------------------------
Name: Xxxxxxx Xxx
Title: General Manager
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
FOOTHILL INCOME TRUST, L.P.
By FIT GP, LLC, General Partner
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXXXX
SENIOR FUNDING, INC.
By: /s/ Jaap L. Tonckens
-----------------------------
Name: Jaap L. Tonckens
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
STANDARD CHARTERED BANK
By: /s/ Xxxx XxXxxxxx
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Name: Xxxx XxXxxxxx
Title: Executive Vice President
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
