EXHIBIT 10.48
SUMMARY OF PRINCIPAL CHANGES TO THE REVOLVING CREDIT AGREEMENTS AS PROVIDED
IN THE JUNE 2002 AMENDMENTS
THE FOLLOWING IS SUMMARY INFORMATION DERIVED FROM THE AMENDED
AGREEMENTS TO THE REVOLVING CREDIT AGREEMENTS FILED AS EXHIBITS TO
THIS 10-Q. THE READER SHOULD REFER TO THE ATTACHED AMENDMENTS FOR THE
ACTUAL WORDING.
SUMMARY:
The amendments provide for the following:
1. Modification of the Consolidated Tangible Net Worth covenant;
2. Addition of a definition for Qualifying Convertible Subordinated Debt and
revision of the definition of Restricted Payments;
3. Modification of the Interest Coverage Ratio Covenant; and
4. Approval of certain technical changes to certain subsidiaries.
EXPLANATION:
1. Tangible Net Worth Covenant. The tangible net worth covenant is changed from
a minimum Consolidated Tangible Net Worth of 80% of the actual Consolidated
Net Worth as of the fiscal quarter ending December 31, 2001 to 84% of the
actual Consolidated Net Worth as of the fiscal quarter ending March 30, 2002,
beginning with the quarter ended June 30, 2002. (See Schedule 2 Section 1 of
the Amended Agreement)
This amendment also allows purchase accounting adjustments taken after
December 31, 2001, of up to $187 million, to be deducted from intangible
assets for the purposes of defining actual reported Consolidated Tangible Net
Worth.
2. Qualifying Convertible Subordinated Debt. A new "Qualifying Convertible
Subordinated Debt" definition is added under the Consolidated Tangible Net
Worth covenant in the event Sanmina-SCI decides to issue subordinated
convertible debt. The actual reported Consolidated Tangible Net Worth will be
increased by the amount of proceeds received from any issuance of Qualifying
Convertible Subordinated Debt. Required Consolidated Tangible Net Worth will
be increased by 75% of the net proceeds of any new Qualifying Convertible
Subordinated Debt issuance. Any conversion of the Qualifying Convertible
Subordinated Debt into capital stock will decrease the required amount of
Consolidated Tangible Net Worth by 25% of the conversion proceeds. (See
Page 3 of the Amended Agreement)
The Restricted Payments definition is also modified to include any payments
of principal, premium or other amounts in relation to Qualifying Convertible
Subordinated Debt (other than interest payments) prior to June 6, 2005. (see
Page 3 of the Amended Agreement)
3. Interest Coverage Ratios. The minimum Interest Coverage Ratio for the
quarters ending June 30, 2002 and September 30, 2002 are modified to 1.45x
and 1.10x, respectively, from 2.00x. (see Page 4 of the Amended Agreement)
4. Technical Changes Involving Subsidiaries. The amendment provides consent to
the Company to execute certain technical organizational changes involving
wholly-owned subsidiaries. (see Page 5 of the amended Agreement)
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (this "Amendment") is entered into as
of June 21, 2002 among SANMINA-SCI CORPORATION (fka Sanmina Corporation), a
Delaware corporation (the "Company"), the several financial institutions party
to the Credit Agreement referred to below (each a "Lender" and, collectively,
the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent.
The Company, the Lenders and the Administrative Agent entered
into a Credit Agreement (364-Day) dated as of December 6, 2001 (as in effect as
of the date of this Amendment, the "Credit Agreement").
The Company has requested that the Lenders agree to certain
amendments to the Credit Agreement and provide certain consents together
therewith and the Lenders 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 and in the Consent and Agreement of Pledgors
and Guarantors attached hereto as Exhibit A) 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 of Pledgors and Guarantors 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.
1
2. Amendments to Credit Agreement; Consent. Subject to the terms and conditions
hereof (i) the Credit Agreement is amended as follows and (ii) the consent set
forth below is granted, in each case, effective as of the date of satisfaction
of the conditions set forth in Section 4 (the "Effective Date"):
(a) Amendments to Article I of the Credit Agreement.
(1) The definition of "Consolidated Tangible Net Worth" is
amended to add the following at the end thereof:
"plus the Net Issuance Proceeds of any Qualifying
Convertible Subordinated Debt."
(2) The definition of "Convertible Notes" is amended to add
the following at the end thereof:
", including, but not limited to, Qualifying
Convertible Subordinated Debt."
(3) The definition of "Intangible Assets" is amended to add
the following at the end thereof:
"; provided that, for purposes of calculating
Consolidated Tangible Net Worth purchase accounting
adjustments taken after December 31, 2001 related to
the SCI Merger in an amount up to $187,000,000 shall
be excluded from the determination of Intangible
Assets."
(4) A new definition of "Qualifying Convertible Subordinated
Debt" as set forth below shall be inserted immediately following the definition
of "Pro Rata Share":
"'Qualifying Convertible Subordinated Debt' means any
convertible subordinated debt issued by the Borrower
subsequent to June 21, 2002, (i) with a maturity date
not earlier than June 6, 2005, (ii) with
subordination terms no less favorable to the Lenders
than those contained in the Indenture dated as of May
5, 1999, between the Borrower and Norwest Bank
Minnesota, N.A., as trustee, relating to the 4 1/4%
Convertible Subordinated Notes due 2004 issued
thereunder, without giving effect to any amendment,
supplement or modification to such indenture, (iii)
the terms of which do not provide for any voluntary
or scheduled mandatory redemption, repurchase or
other payment on account of principal of, or other
amounts (other than interest) on account of, such
Indebtedness, in each case prior to June 6, 2005 (for
the avoidance of doubt the parties agree that a
change in control put option in favor of the holders
of such debt shall not be deemed to be such a
mandatory scheduled redemption, repurchase or other
payment) and (iv) the terms of which have not been
amended in accordance with Section 6.17."
2
(5) The definition of "Restricted Payment" is amended in its
entirety as follows:
"`Restricted Payment' means (i) any dividend or other
distribution (whether in cash, securities or other
property) with respect to any capital stock of the
Borrower or any Subsidiary, or any payment with
respect to such capital stock (whether in cash,
securities or other property), including any sinking
fund or similar deposit on account of the purchase,
redemption, retirement, acquisition, cancellation or
termination of any such capital stock or of any
option, warrant or other right to acquire any such
capital stock and (ii) any payment on account of
principal, premium or any other amount on account of
Qualifying Convertible Subordinated Debt (other than
interest payments in respect thereof) prior to June
6, 2005; provided that no Restricted Payment shall be
deemed to occur upon the "cashless exercise" of any
options or warrants of the Borrower or any Subsidiary
by the holder thereof if such exercise does not
result in the deemed repayment, forgiveness or other
cancellation of Indebtedness owing to the Borrower or
any of its Subsidiaries; provided further, that no
Restricted Payment shall be deemed to occur with
respect to (i) the payment of principal of, interest
on or premium in respect of Indebtedness evidenced by
Convertible Notes which are not Qualifying
Convertible Subordinated Debt in accordance with the
terms of such Convertible Notes (including in
connection with the redemption or repurchase of such
notes) or other purchase of such notes in market or
privately negotiated transactions, at any time prior
to the conversion of the same into capital stock of
the Borrower or its Subsidiaries, provided that at
the time of any such payment no Default or Event of
Default shall have occurred and be continuing, (ii)
the delivery of capital stock upon conversion of
Convertible Notes in accordance with the terms
thereof or (iii) any payment of cash in lieu of the
issuance of fractional shares to holders of
Convertible Notes upon conversion."
(b) Amendment to Article VI of the Credit Agreement.
(1) Article VI is amended by adding a new Section 6.17 thereto
as follows:
"6.17 QUALIFYING CONVERTIBLE SUBORDINATED DEBT. The
Borrower may amend, supplement or otherwise modify
the terms of any Qualifying Convertible Subordinated
Debt; provided that, if any such amendment (a) alters
the interest rate applicable to such Indebtedness
such that the same shall not be a fixed,
non-increasing market interest rate per annum payable
no more often than quarterly, (b) modifies the terms
of such Indebtedness in a manner that imposes
obligations on the Borrower that are materially more
onerous or otherwise materially more burdensome to
the Borrower than its obligations under such
Indebtedness on its date of incurrence or (c)
otherwise alters the terms of such Indebtedness in a
manner not consistent with the definition of
Qualifying Convertible Subordinated Debt, then
3
such Indebtedness shall cease to be treated as
Qualifying Convertible Subordinated Debt; provided,
however, that, no such amendment, supplement or
modification shall be permitted if after giving
effect to that same (i) a Default or Event of Default
would exist hereunder or (ii) the Borrower would fail
to be in compliance on a pro forma basis with Section
7.13 as of the most recent fiscal quarter end of the
Borrower."
(c) Amendment to Article VII of the Credit Agreement.
(1) Section 7.13(a) is amended in its entirety as follows:
"(a) Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth as of the end of any
fiscal quarter of the Borrower to be less than the
sum of (a) 84% of Consolidated Tangible Net Worth as
of the fiscal quarter ending March 31, 2002, (b) an
amount equal to 50% of the Consolidated Net Income
earned in each fiscal quarter ending after December
31, 2001 (with no deduction for a net loss in any
such fiscal quarter), (c) an amount equal to 50% of
the aggregate increases in Shareholders' Equity of
the Borrower and its Subsidiaries after December 31,
2001 by reason of the conversion of debt securities
of the Borrower or its Subsidiaries (other than
Qualifying Convertible Subordinated Debt) into
capital stock, (d) an amount equal to 50% of the Net
Issuance Proceeds of any issuance of capital stock of
the Borrower or any of its Subsidiaries after
December 31, 2001 and (e) an amount equal to 75% of
the Net Issuance Proceeds of any Qualifying
Convertible Subordinated Debt minus 25% of the
aggregate increases in Shareholders' Equity of the
Borrower and its Subsidiaries by reason of the
conversion of Qualifying Convertible Subordinated
Debt into capital stock of the Borrower in accordance
with the terms thereof."
(2) Section 7.13(b) is amended in its entirety to provide as
follows:
"(b) Interest Coverage Ratio. Permit the Interest
Coverage Ratio as of the end of any fiscal quarter of
the Borrower to be less than the following amounts:
4
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
June 30, 2002
1.45:1.00
September 30, 2002 1.10:1.00
December 31, 2002 2.00:1.00
March 31, 2003 2.50:1.00
June 30, 2003 2.75:1.00
September 30, 2003 and 3.00:1.00"
thereafter
(d) Amendment to Exhibit C of the Credit Agreement. Exhibit C of the
Credit Agreement is replaced in its entirety by Exhibit C attached to this
Amendment.
(e) Consent to Internal Reorganization. For the avoidance of doubt, and
notwithstanding anything to the contrary in Section 7.02, Section 7.04 or
Section 7.05 of the Credit Agreement, the Majority Lenders, consent that the
Company may, at any time or from time to time, as part of an internal
reorganization described to the Lenders prior to the date hereof, cause up to
four of its Wholly-Owned Subsidiaries (one of which may be an Ineligible
Material Subsidiary and the others of which may not be Material Subsidiaries)
with tangible assets as of March 30, 2002 in an aggregate amount not to exceed
$125,000,000 to cease doing business and liquidate their assets by (i)
transferring such assets to Wholly-Owned Subsidiaries and/or (ii) liquidating
their assets for fair market value; provided that, subsequent to the completion
of such liquidation all cash and other assets remaining at such Subsidiaries
after satisfaction of its liabilities shall be distributed to the holder of the
capital stock of such Subsidiaries.
3. Representations and Warranties. The Company 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 Company and any of
its Subsidiaries of the Amendment Documents to which they are a party 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.
5
(c) The Amendment Documents to which they are a party constitute the
legal, valid and binding obligations of the Company and its Subsidiaries,
enforceable against them in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting creditors' rights
generally and by equitable principles (regardless of whether enforcement is
sought in equity or at law).
(d) All representations and warranties of the Company contained in the
Credit Agreement are true and correct (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 fiscal
quarter and fiscal year for which financial statements have then been delivered
in respect of the representation and warranty made in subsection 5.05 of the
Credit Agreement).
(e) The Company 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.
(f) The Company'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 Section 2 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
Company 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,
in form and substance satisfactory to the Administrative Agent, of each
Guarantor in its capacity as such to the execution and delivery hereof by the
Company.
(3) The Administrative Agent shall have received evidence of
payment by the Company of all fees, reasonable costs and expenses due and
payable as of the Effective Date hereunder and under the Credit Agreement,
including any fees arising under or referenced in Section 5 of this Amendment
and any costs and expenses payable under Section 6(g) of this Amendment
(including the Administrative Agent's Attorney Costs, to the extent invoiced on
or prior to the Effective Date).
(4) The Administrative Agent shall have received from the
Company, in form and substance satisfactory to the Administrative Agent, a copy
of the resolutions passed by the board of directors of the Company, certified as
of the Effective Date by the Secretary or an Assistant Secretary of such Person,
authorizing the execution, delivery and performance of this Amendment.
6
(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.
(6) The representations and warranties in Section 3 of this
Amendment shall be true and correct on and as of the Effective Date with the
same effect as if made on and as of the Effective Date.
(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 Company and the Lenders of
the occurrence of the Effective Date.
5. Fees. The Company shall pay to the Administrative Agent for the ratable
benefit of each Lender that executes and delivers this Amendment by no later
than 12:00 noon (Pacific time) on June 21, 2002, a non-refundable amendment fee
equal to 0.10% of such Lender's Commitment as of the Effective Date. Such
amendment 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 Company pursuant to the Credit Agreement or
this Amendment.
6. Miscellaneous.
(a) The Company 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 California applicable to agreements made
and to be performed entirely within the State of California, 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
7
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
Company shall bind such Lender or the Company, 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 contains
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 Company agrees to pay or reimburse Bank of America
(including in its capacity as Administrative Agent), upon demand, for all
reasonable costs and expenses (including reasonable Attorney Costs) incurred by
Bank of America (including in its capacity as Administrative Agent) in
connection with the development, preparation, negotiation, execution and
delivery of the Amendment Documents.
[signature pages follow]
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SANMINA-SCI CORPORATION
By: /s/ [Signature Illegible]
--------------------------------------
Title: President and Chief Operating
Officer
----------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT AND LENDER
By:
--------------------------------------
Title:
-----------------------------------
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SANMINA-SCI CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT AND LENDER
By: /s/ KEVIN M. MCMAHON
--------------------------------------
Title: Managing Director
-----------------------------------
S-1
BARCLAYS BANK PLC
By: /s/ JOHN GIANNONE
-------------------------------------
Name: John Giannone
-----------------------------------
Title: Director
----------------------------------
S-2
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ DONALD E. SELLERS, JR.
-------------------------------------
Name: Donald E. Sellers, Jr.
-----------------------------------
Title: Director
----------------------------------
S-3
CITICORP USA, INC.
By: /s/ JOHN WETZLER
-------------------------------------
Name: John Wetzler
-----------------------------------
Title: Managing Director
----------------------------------
S-4
MORGAN STANLEY BANK
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
S-5
FLEET NATIONAL BANK
By: /s/ GREG ROUX
-------------------------------------
Name: Greg Roux
-----------------------------------
Title: Director
----------------------------------
S-6
REGIONSBANK,
By: /s/ MARK BURR
-------------------------------------
Name: Mark Burr
-----------------------------------
Title: VP-Corporate Banking
----------------------------------
S-7
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ KATRINA FLOWERS
-------------------------------------
Name: Katrina Flowers
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ ROGER FLEISCHMANN
-------------------------------------
Name: Roger Fleischmann
-----------------------------------
Title: Senior Vice President
----------------------------------
S-8
THE BANK OF NOVA SCOTIA
By: /s/ KEMP LEONARD
-------------------------------------
Name: Kemp Leonard
-----------------------------------
Title: Director
----------------------------------
S-9
ROYAL BANK OF CANADA
By: /s/ STEPHANIE BABICH
-------------------------------------
Name: Stephanie Babich
-----------------------------------
Title: Senior Manager
----------------------------------
S-10
CREDIT SUISSE BOSTON
By: /s/ VITALY G. BUTENKO
-------------------------------------
Name: Vitaly G. Butenko
-----------------------------------
Title: Associate
----------------------------------
By: /s/ JEFFREY BERNSTEIN
-------------------------------------
Name: Jeffrey Bernstein
-----------------------------------
Title: Vice President
----------------------------------
S-11
ABN AMRO BANK N.V.
By: /s/ PETER HSU
-------------------------------------
Name: Peter Hsu
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ ALEX SOOJIN YOO
-------------------------------------
Name: Alex Soojin Yoo
-----------------------------------
Title: Vice President
----------------------------------
S-12
JPMORGAN CHASE BANK
By: /s/ WILLIAM P. RINDFUSS
-------------------------------------
Name: William P. Rindfuss
-----------------------------------
Title: Vice President
----------------------------------
S-13
EXHIBIT A
CONSENT AND AGREEMENT OF PLEDGORS AND GUARANTORS
Each of the undersigned, in its capacity as a Guarantor and/or
as a Pledgor, acknowledges that its consent to the foregoing Amendment Agreement
(the "Agreement") is not required, but each of the undersigned nevertheless does
hereby consent to the foregoing Agreement and to the documents and agreements
referred to therein. Nothing herein shall in any way limit any of the terms or
provisions of the Guaranty or Stock Pledge Agreement of the undersigned or any
other Collateral Documents executed by the undersigned in the Administrative
Agent's, the Collateral Agent's or the Lenders' favor, or any other Loan
Document executed by the undersigned (as the same may be amended from time to
time), all of which are hereby ratified and affirmed in all respects.
THE SUBSIDIARIES LISTED ON SCHEDULE A,
AS GUARANTORS AND PLEDGORS
By:
--------------------------------------
Title:
-----------------------------------
SCHEDULE A
HADCO CORPORATION;
SCI SYSTEMS, INC.;
SCI TECHNOLOGY, INC.;
SCIMEX, INC.;
SCI HOLDINGS, INC.;
SCI SYSTEMS (ALABAMA), INC.;
SCI ENCLOSURES, LLC
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
FINANCIAL STATEMENT DATE: ______________,____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day), dated as
of December 6, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Sanmina-SCI Corporation
(fka Sanmina Corporation), a Delaware corporation (the "Company"), certain
Subsidiaries of the Company as co-borrowers, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _________________ of the Company, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Company, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 axe the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Company ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present in
all material respects the financial condition, results of operations and cash
flows of the Company and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Company during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Company performed and observed
all its Obligations under the Loan Documents, and
C-1
[select one:]
[to the best knowledge of the undersigned, after due inquiry, no Default
or Event of Default exists as of the date hereof.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default,
its nature and status and the action that the Company proposes to take with
respect thereto:]
4. The financial covenant analyses and information set forth on Schedule
2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
__________,__________.
SANMINA-SCI CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
C-2
FOR THE QUARTER/YEAR ENDED ____________________ ("STATEMENT DATE")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.13(a) - CONSOLIDATED TANGIBLE NET WORTH.
A. Consolidated Tangible Net Worth at Statement Date:
1. Shareholders' Equity: $
---------
2. Net Issuance Proceeds of Qualifying
Convertible Subordinated Debt: $
---------
3. Intangible Assets[1]: $
---------
4. Consolidated Tangible Net Worth
(Line I.A.1 + I.A.2 - I.A.3): $
---------
B. Initial required amount (84% of Consolidated
Tangible Net Worth as of the fiscal quarter ending
March 31, 2002): $
---------
C. 50% of Consolidated Net Income for each fiscal
quarter ending after December 31, 2001 (no
reduction for losses): $
---------
D. 50% of increases in Shareholders' Equity after
December 31, 2001 from conversion of debt securities
(other than Qualifying Convertible Subordinated Debt): $
---------
E. 50% of Net Issuance Proceeds of any issuance
of capital stock of the Company or any of its
Subsidiaries after December 31, 2001: $
---------
F. 75% of the Net Issuance Proceeds of any
Qualifying Convertible Subordinated Debt: $
---------
G. 25% of the aggregate increases in
Shareholders' Equity from conversion of
Qualifying Convertible Subordinated Debt: $
---------
- ----------
(1) For purposes of calculating Consolidated Tangible Net Worth purchase
accounting adjustments taken after December 31, 2001 related to the SCI Merger
in an amount up to $187,000,000 shall be excluded from the determination of
Intangible Assets.
H. Minimum required Consolidated Tangible Net Worth
(Lines I.B + I.C + I.D + I.E + I.F - I.G): $
-----------
I. Excess (deficit) for covenant compliance
(Line I.A.4 - I.H): $
-----------
II. SECTION 7.13(b) - INTEREST COVERAGE RATIO.
A. Consolidated EBIT for four consecutive fiscal
quarters ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $
-----------
2. Consolidated Interest Charges for Subject
Period: $
-----------
3. The amount of taxes, based on or measured
by income, and or included in the determination
of Consolidated Net Income: $
-----------
4. Cash and noncash charges permitted under
definition of Consolidated EBIT[2]: $
-----------
5. Consolidated EBIT
(Lines II.A.1 + II.A.2 + II.A.3 + II.A.4): $
-----------
B. Consolidated Cash Interest Charges for Subject Period: $
-----------
C. Interest Coverage Ratio ((Line II.A.5) / (Line II.B)) : _____ to 1.00
Minimum required (see Section 7.13(b)): _____ to 1.00
III. SECTION 7.13 - LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date
1. Consolidated total Indebtedness: $
-----------
2. Amount of Line III.A.1 consisting of Indebtedness
described in clauses (b) and (c) of the definition
of Indebtedness: $
-----------
3. Line III.A.1 - Line III.A.2: $
-----------
B. Consolidated Total Capitalization at Statement Date: $
-----------
- ----------
(2) With respect to any cash or non-cash charge attach a worksheet setting
forth in reasonable detail the nature of such charge.
C. Leverage Ratio (Line III.A.3 / Line III.B): ____ to 1.00
MAXIMUM PERMITTED: 0.50 to 1.00
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (this "Amendment") is entered into as
of June 21, 2002 among SANMINA-SCI CORPORATION (fka Sanmina Corporation), a
Delaware corporation (the "Company"), the several financial institutions party
to the Credit Agreement referred to below (each a "Lender" and, collectively,
the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent and L/C
Issuer.
The Company, the Lenders, the L/C Issuer and the
Administrative Agent entered into a Credit Agreement (Multi-Year) dated as of
December 6, 2001 (as in effect as of the date of this Amendment, the "Credit
Agreement").
The Company has requested that the Lenders agree to certain
amendments to the Credit Agreement and provide certain consents together
therewith and the Lenders 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 and in the Consent and Agreement of Pledgors
and Guarantors attached hereto as Exhibit A) 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 of Pledgors and Guarantors 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.
1
2. Amendments to Credit Agreement; Consent. Subject to the terms and conditions
hereof (i) the Credit Agreement is amended as follows and (ii) the consent set
forth below is granted, in each case, effective as of the date of satisfaction
of the conditions set forth in Section 4 (the "Effective Date"):
(a) Amendments to Article I of the Credit Agreement.
(1) The definition of "Consolidated Tangible Net Worth" is
amended to add the following at the end thereof:
"plus the Net Issuance Proceeds of any Qualifying
Convertible Subordinated Debt."
(2) The definition of "Convertible Notes" is amended to add
the following at the end thereof:
", including, but not limited to, Qualifying
Convertible Subordinated Debt."
(3) The definition of "Intangible Assets" is amended to add
the following at the end thereof:
"; provided that, for purposes of calculating
Consolidated Tangible Net Worth purchase accounting
adjustments taken after December 31, 2001 related to
the SCI Merger in an amount up to $187,000,000 shall
be excluded from the determination of Intangible
Assets."
(4) A new definition of "Qualifying Convertible Subordinated
Debt" as set forth below shall be inserted immediately following the definition
of "Pro Rata Share":
"`Qualifying Convertible Subordinated Debt' means any
convertible subordinated debt issued by the Company
subsequent to June 21, 2002, (i) with a maturity date
not earlier than June 6, 2005, (ii) with
subordination terms no less favorable to the Lenders
than those contained in the Indenture dated as of May
5, 1999, between the Company and Norwest Bank
Minnesota, N.A., as trustee, relating to the 4 1/4%
Convertible Subordinated Notes due 2004 issued
thereunder, without giving effect to any amendment,
supplement or modification to such indenture, (iii)
the terms of which do not provide for any voluntary
or scheduled mandatory redemption, repurchase or
other payment on account of principal of, or other
amounts (other than interest) on account of, such
Indebtedness, in each case prior to June 6, 2005 (for
the avoidance of doubt the parties agree that a
change in control put option in favor of the holders
of such debt shall not be deemed to be such a
mandatory scheduled redemption, repurchase or other
payment) and (iv) the terms of which have not been
amended in accordance with Section 6.17."
2
(5) The definition of "Restricted Payment" is amended in its
entirety as follows:
"'Restricted Payment' means (i) any dividend or other
distribution (whether in cash, securities or other
property) with respect to any capital stock of the
Company or any Subsidiary, or any payment with
respect to such capital stock (whether in cash,
securities or other property), including any sinking
fund or similar deposit on account of the purchase,
redemption, retirement, acquisition, cancellation or
termination of any such capital stock or of any
option, warrant or other right to acquire any such
capital stock and (ii) any payment on account of
principal, premium or any other amount on account of
Qualifying Convertible Subordinated Debt (other than
interest payments in respect thereof) prior to June
6, 2005; provided that no Restricted Payment shall be
deemed to occur upon the "cashless exercise" of any
options or warrants of the Company or any Subsidiary
by the holder thereof if such exercise does not
result in the deemed repayment, forgiveness or other
cancellation of Indebtedness owing to the Company or
any of its Subsidiaries; provided further, that no
Restricted Payment shall be deemed to occur with
respect to (i) the payment of principal of, interest
on or premium in respect of Indebtedness evidenced by
Convertible Notes which are not Qualifying
Convertible Subordinated Debt in accordance with the
terms of such Convertible Notes (including in
connection with the redemption or repurchase of such
notes) or other purchase of such notes in market or
privately negotiated transactions, at any time prior
to the conversion of the same into capital stock of
the Company or its Subsidiaries, provided that at the
time of any such payment no Default or Event of
Default shall have occurred and be continuing, (ii)
the delivery of capital stock upon conversion of
Convertible Notes in accordance with the terms
thereof or (iii) any payment of cash in lieu of the
issuance of fractional shares to holders of
Convertible Notes upon conversion."
(b) Amendment to Article VI of the Credit Agreement.
(1) Article VI is amended by adding a new Section 6.17 thereto
as follows:
"6.17 QUALIFYING CONVERTIBLE SUBORDINATED DEBT. The
Company may amend, supplement or otherwise modify the
terms of any Qualifying Convertible Subordinated
Debt; provided that, if any such amendment (a) alters
the interest rate applicable to such Indebtedness
such that the same shall not be a fixed,
non-increasing market interest rate per annum payable
no more often than quarterly, (b) modifies the terms
of such Indebtedness in a manner that imposes
obligations on the Company that are materially more
onerous or otherwise materially more burdensome to
the Company than its obligations under such
Indebtedness on its date of incurrence or (c)
otherwise alters the terms of such Indebtedness in a
manner not consistent with the definition of
Qualifying Convertible Subordinated Debt, then
3
such Indebtedness shall cease to be treated as
Qualifying Convertible Subordinated Debt; provided,
however, that, no such amendment, supplement or
modification shall be permitted if after giving
effect to that same (i) a Default or Event of Default
would exist hereunder or (ii) the Company would fail
to be in compliance on a pro forma basis with Section
7.13 as of the most recent fiscal quarter end of the
Company."
(c) Amendment to Article VII of the Credit Agreement.
(1) Section 7.13(a) is amended in its entirety as follows:
"(a) Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth as of the end of any
fiscal quarter of the Company to be less than the sum
of (a) 84% of Consolidated Tangible Net Worth as of
the fiscal quarter ending March 31, 2002, (b) an
amount equal to 50% of the Consolidated Net Income
earned in each fiscal quarter ending after December
31, 2001 (with no deduction for a net loss in any
such fiscal quarter), (c) an amount equal to 50% of
the aggregate increases in Shareholders' Equity of
the Company and its Subsidiaries after December 31,
2001 by reason of the conversion of debt securities
of the Company or its Subsidiaries (other than
Qualifying Convertible Subordinated Debt) into
capital stock, (d) an amount equal to 50% of the Net
Issuance Proceeds of any issuance of capital stock of
the Company or any of its Subsidiaries after December
31, 2001 and (e) an amount equal to 75% of the Net
Issuance Proceeds of any Qualifying Convertible
Subordinated Debt minus 25% of the aggregate
increases in Shareholders' Equity of the Company and
its Subsidiaries by reason of the conversion of
Qualifying Convertible Subordinated Debt into capital
stock of the Company in accordance with the terms
thereof."
(2) Section 7.13(b) is amended in its entirety to provide as
follows:
"(b) Interest Coverage Ratio. Permit the Interest
Coverage Ratio as of the end of any fiscal quarter of
the Company to be less than the following amounts:
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
June 30, 2002 1.45:1.00
September 30, 2002 1.10:1.00
December 31, 2002 2.00:1.00
4
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
March 31, 2003 2.50:1.00
June 30, 2003 2.75:1.00
September 30, 2003 and 3.00:1.00"
thereafter
(d) Amendment to Exhibit C of the Credit Agreement. Exhibit C of the
Credit Agreement is replaced in its entirety by Exhibit C attached to this
Amendment.
(e) Consent to Internal Reorganization. For the avoidance of doubt, and
notwithstanding anything to the contrary in Section 7.02, Section 7.04 or
Section 7.05 of the Credit Agreement, the Majority Lenders, consent that the
Company may, at any time or from time to time, as part of an internal
reorganization described to the Lenders prior to the date hereof, cause up to
four of its Wholly-Owned Subsidiaries (one of which may be an Ineligible
Material Subsidiary and the others of which may not be Material Subsidiaries)
with tangible assets as of March 30, 2002 in an aggregate amount not to exceed
$125,000,000 to cease doing business and liquidate their assets by (i)
transferring such assets to Wholly-Owned Subsidiaries and/or (ii) liquidating
their assets for fair market value; provided that, subsequent to the completion
of such liquidation all cash and other assets remaining at such Subsidiaries
after satisfaction of its liabilities shall be distributed to the holder of the
capital stock of such Subsidiaries.
3. Representations and Warranties. The Company 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 Company and any of
its Subsidiaries of the Amendment Documents to which they are a party 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.
(c) The Amendment Documents to which they are a party constitute the
legal, valid and binding obligations of the Company and its Subsidiaries,
enforceable against them in accordance with their respective terms, except to
the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting creditors' rights
generally and by equitable principles (regardless of whether enforcement is
sought in equity or at law).
(d) All representations and warranties of the Company contained in the
Credit Agreement are true and correct (except to the extent such representations
and warranties
5
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 fiscal quarter and fiscal
year for which financial statements have then been delivered in respect of the
representation and warranty made in subsection 5.05 of the Credit Agreement).
(e) The Company 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.
(f) The Company'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 Section 2 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
Company 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,
in form and substance satisfactory to the Administrative Agent, of each
Guarantor in its capacity as such to the execution and delivery hereof by the
Company.
(3) The Administrative Agent shall have received evidence of
payment by the Company of all fees, reasonable costs and expenses due and
payable as of the Effective Date hereunder and under the Credit Agreement,
including any fees arising under or referenced in Section 5 of this Amendment
and any costs and expenses payable under Section 6(g) of this Amendment
(including the Administrative Agent's Attorney Costs, to the extent invoiced on
or prior to the Effective Date).
(4) The Administrative Agent shall have received from the
Company, in form and substance satisfactory to the Administrative Agent, a copy
of the resolutions passed by the board of directors of the Company, certified as
of the Effective Date by the Secretary or an Assistant Secretary of such Person,
authorizing the execution, delivery and performance of this Amendment.
(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.
(6) The representations and warranties in Section 3 of this
Amendment shall be true and correct on and as of the Effective Date with the
same effect as if made on and as of the Effective Date.
(b) For purposes of determining compliance with the conditions
specified in Section
6
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 Company and the Lenders of
the occurrence of the Effective Date.
5. Fees. The Company shall pay to the Administrative Agent for the ratable
benefit of each Lender that executes and delivers this Amendment by no later
than 12:00 noon (Pacific time) on June 21, 2002, a non-refundable amendment fee
equal to 0.20% of such Lender's Commitment as of the Effective Date. Such
amendment 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 Company pursuant to the Credit Agreement or
this Amendment.
6. Miscellaneous.
(a) The Company 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 California applicable to agreements made
and to be performed entirely within the State of California, 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 Company shall bind such
Lender or the Company, 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
7
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 contains
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 Company agrees to pay or reimburse Bank of America
(including in its capacity as Administrative Agent), upon demand, for all
reasonable costs and expenses (including reasonable Attorney Costs) incurred by
Bank of America (including in its capacity as Administrative Agent) in
connection with the development, preparation, negotiation, execution and
delivery of the Amendment Documents.
[signature pages follow]
8
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first above written.
SANMINA-SCI CORPORATION
By: /s/ [Signature Illegible]
--------------------------------------
Title: President and Chief Operating
Officer
----------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT AND L/C ISSUER AND LENDER
By:
--------------------------------------
Title:
-----------------------------------
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
SANMINA-SCI CORPORATION
By:
--------------------------------------
Title:
-----------------------------------
BANK OF AMERICA, N.A., AS ADMINISTRATIVE
AGENT AND L/C ISSUER AND LENDER
By: /s/ KEVIN M. MCMAHON
--------------------------------------
Name: Kevin M. McMahon
-----------------------------------
Title: Managing Director
-----------------------------------
S-1
BARCLAYS BANK PLC
By: /s/ JOHN GIANNONE
-------------------------------------
Name: John Giannone
-----------------------------------
Title: Director
----------------------------------
S-2
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ DONALD E. SELLERS, JR.
-------------------------------------
Name: Donald E. Sellers, Jr.
-----------------------------------
Title: Director
----------------------------------
S-3
CITICORP USA, INC.
By: /s/ JOHN WETZLER
-------------------------------------
Name: John Wetzler
-----------------------------------
Title: Managing Director
----------------------------------
S-4
MORGAN STANLEY SENIOR FUNDING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
S-5
FLEET NATIONAL BANK
By: /s/ GREG ROUX
-------------------------------------
Name: Greg Roux
-----------------------------------
Title: Director
----------------------------------
S-6
REGIONSBANK
By: /s/ MARK BURR
-------------------------------------
Name: Mark Burr
-----------------------------------
Title: VP-Corporate Banking
----------------------------------
S-7
WELLS FARGO BANK, NATIONAL ASSOCIATION
By: /s/ KATRINA FLOWERS
-------------------------------------
Name: Katrina Flowers
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ ROGER J. FLEISCHMANN
-------------------------------------
Name: Roger Fleischmann
-----------------------------------
Title: Senior Vice President
----------------------------------
S-8
THE BANK OF NOVA SCOTIA
By: /s/ KEMP LEONARD
-------------------------------------
Name: Kemp Leonard
-----------------------------------
Title: Director
----------------------------------
S-9
ROYAL BANK OF CANADA
By: /s/ STEPHANIE BABICH
-------------------------------------
Name: Stephanie Babich
-----------------------------------
Title: Senior Manager
----------------------------------
S-10
CREDIT SUISSE FIRST BOSTON
By: /s/ VITALY G. BUTENKO
-------------------------------------
Name: Vitaly G. Butenko
-----------------------------------
Title: Associate
----------------------------------
By: /s/ JEFFREY BERNSTEIN
-------------------------------------
Name: Jeffrey Bernstein
-----------------------------------
Title: Vice President
----------------------------------
S-11
ABN AMRO BANK N.V.
By: /s/ PETER HSU
-------------------------------------
Name: Peter Hsu
-----------------------------------
Title: Vice President
----------------------------------
By: /s/ ALEXIS SOOJIN YOO
-------------------------------------
Name: Alexis Soojin Yoo
-----------------------------------
Title: Vice President
----------------------------------
S-12
JPMORGAN CHASE BANK
By: /s/ WILLIAM R. RINDFUSS
-------------------------------------
Name: William R. Rindfuss
-----------------------------------
Title: Vice President
----------------------------------
S-13
EXHIBIT A
CONSENT AND AGREEMENT OF PLEDGORS AND GUARANTORS
Each of the undersigned, in its capacity as a Guarantor and/or
as a Pledgor, acknowledges that its consent to the foregoing Amendment Agreement
(the "Agreement") is not required, but each of the undersigned nevertheless does
hereby consent to the foregoing Agreement and to the documents and agreements
referred to therein. Nothing herein shall in any way limit any of the terms or
provisions of the Guaranty or Stock Pledge Agreement of the undersigned or any
other Collateral Documents executed by the undersigned in the Administrative
Agent's, the Collateral Agent's or the Lenders' favor, or any other Loan
Document executed by the undersigned (as the same may be amended from time to
time), all of which are hereby ratified and affirmed in all respects.
THE SUBSIDIARIES LISTED ON SCHEDULE A, AS
GUARANTORS AND PLEDGORS
By:
--------------------------------------
Title:
-----------------------------------
SCHEDULE A
HADCO CORPORATION;
SCI SYSTEMS, INC.;
SCI TECHNOLOGY, INC.;
SCIMEX, INC.;
SCI HOLDINGS, INC.;
SCI SYSTEMS (ALABAMA), INC.;
SCI ENCLOSURES, LLC
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
FINANCIAL STATEMENT DATE: ______________,____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (Multi-Year), dated
as of December 6, 2001 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement;" the terms
defined therein being used herein as therein defined), among Sanmina-SCI
Corporation (fka Sanmina Corporation), a Delaware corporation (the "Company"),
certain Subsidiaries of the Company as co-borrowers, the Lenders from time to
time party thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the _________________ of the Company, and that, as such,
he/she is authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Company, and that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Company ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present in
all material respects the financial condition, results of operations and cash
flows of the Company and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Company during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Company during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Company performed and observed
all its Obligations under the Loan Documents, and
C-1
[select one:]
[to the best knowledge of the undersigned, after due inquiry, no Default
or Event of Default exists as of the date hereof.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default,
its nature and status and the action that the Company proposes to take with
respect thereto:]
4. The financial covenant analyses and information set forth on Schedule
2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
__________,__________.
SANMINA-SCI CORPORATION
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
C-2
FOR THE QUARTER/YEAR ENDED ____________________ ("STATEMENT DATE")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.13(a) - CONSOLIDATED TANGIBLE NET WORTH.
A. Consolidated Tangible Net Worth at Statement Date:
1. Shareholders' Equity: $
---------
2. Net Issuance Proceeds of Qualifying
Convertible Subordinated Debt: $
---------
3. Intangible Assets[(1)]: $
---------
4. Consolidated Tangible Net Worth
(Line I.A.1 + I.A.2 - I.A.3): $
---------
B. Initial required amount (84% of Consolidated
Tangible Net Worth as of the fiscal quarter ending
March 31, 2002): $
---------
C. 50% of Consolidated Net Income for each fiscal
quarter ending after December 31, 2001 (no
reduction for losses): $
---------
D. 50% of increases in Shareholders' Equity after
December 31, 2001 from conversion of debt securities
(other than Qualifying Convertible Subordinated Debt): $
---------
E. 50% of Net Issuance Proceeds of any issuance
of capital stock of the Company or any of its
Subsidiaries after December 31, 2001: $
---------
F. 75% of the Net Issuance Proceeds of any
Qualifying Convertible Subordinated Debt: $
---------
G. 25% of the aggregate increases in
Shareholders' Equity from conversion of
Qualifying Convertible Subordinated Debt: $
---------
- ----------
(1) For purposes of calculating Consolidated Tangible Net Worth purchase
accounting adjustments taken after December 31, 2001 related to the SCI Merger
in an amount up to $187,000,000 shall be excluded from the determination of
Intangible Assets.
H. Minimum required Consolidated Tangible Net Worth
(Lines I.B + I.C + I.D + I.E + I.F - I.G): $
-----------
I. Excess (deficit) for covenant compliance
(Line I.A.4 - I.H): $
-----------
II. SECTION 7.13(b) - INTEREST COVERAGE RATIO.
A. Consolidated EBIT for four consecutive fiscal
quarters ending on above date ("Subject Period"):
1. Consolidated Net Income for Subject Period: $
-----------
2. Consolidated Interest Charges for Subject
Period: $
-----------
3. The amount of taxes, based on or measured
by income, and or included in the determination
of Consolidated Net Income: $
-----------
4. Cash and noncash charges permitted under
definition of Consolidated EBIT[(2)]: $
-----------
5. Consolidated EBIT
(Lines II.A.1 + II.A.2 + II.A.3 + II.A.4): $
-----------
B. Consolidated Cash Interest Charges for Subject Period: $
-----------
C. Interest Coverage Ratio ((Line II.A.5) divided by (Line II.B)): _____to 1.00
Minimum required (see Section 7.13(b)): _____to 1.00
III. SECTION 7.13 -- LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date
1. Consolidated total Indebtedness: $
-----------
2. Amount of Line III.A.1 consisting of Indebtedness
described in clauses (b) and (c) of the definition
of Indebtedness: $
-----------
3. Line III.A.1 - Line III.A.2: $
-----------
B. Consolidated Total Capitalization at Statement Date: $
-----------
- ----------
(2) With respect to any cash or non-cash charge attach a worksheet setting
forth in reasonable detail the nature of such charge.
C. Leverage Ratio. (Line III.A.3 divided by Line III.B): ____ to 1.00
Maximum permitted: 0.50 to 1.00