Exhibit 10.2
WAIVER AGREEMENT
This Waiver Agreement (this "Agreement") is entered into as of
May 30, 2003 among Solectron Corporation, a Delaware corporation (the
"Borrower"), Banc of America Securities LLC ("BAS"), as joint lead arranger and
joint book runner, Goldman Sachs Credit Partners L.P. ("GSCP"), as joint lead
arranger, joint 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 Amended and Restated 364-Day Credit
Agreement dated as of February 13, 2003 (as in effect as of the date of this
Agreement, the "Credit Agreement").
The Borrower has requested that the Lenders agree to waive
non-compliance with certain provisions of the Credit Agreement. The Lenders
party hereto have agreed to such request, subject to the terms and conditions
hereof.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
1. Definitions; 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) The rules of interpretation set forth in Sections
1.02 and 1.05 of the Credit Agreement shall be applicable to this Agreement.
2. Waiver. Subject to and upon the conditions hereof, the Lenders party
hereto hereby waive, effective as of the date of satisfaction of the conditions
set forth in Section 5 (the "Effective Date"), non-compliance with Section
7.13(c) of the Credit Agreement (Cash Interest Coverage Ratio) (the "Waived
Provision"), solely for the fiscal quarter ending May 31, 2003 (the "Applicable
Quarter") and agree that failure of the Borrower to satisfy the Waived Provision
as it relates to the Applicable Quarter shall not constitute a Default or Event
of Default under the Credit Agreement; provided however, that the effectiveness
of the waiver of the Waived Provision shall continue only so long as (i) the
Cash Interest Coverage Ratio for the Applicable Quarter is at or above 1.6 to
1.0 and (ii) the Liquidity Ratio for the Applicable Quarter is at or above 1.3
to 1.0.
3. Fees. The Borrower shall pay (through the Administrative Agent) to each
Lender that executes and delivers this Agreement by no later than 12:00 p.m.
(Pacific time) on May 30, 2003, a non-refundable waiver fee equal to 0.10% of
such Lender's Revolving Loan Commitment as of the Effective Date. Such waiver
fee shall be fully-earned upon becoming due and payable, shall
1
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 Agreement.
4. 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.
(b) After giving effect to this Agreement, the execution,
delivery and performance by the Borrower of this Agreement 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) This Agreement constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, 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 Borrower
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 (i)
for purposes of this Section 4(d) the representations and warranties contained
in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be
deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 6.01 of the Credit Agreement, and (ii) this
Section 4(d) shall 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 13, 2003, 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 Agreement 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.
5. Conditions of Effectiveness.
(a) The effectiveness of Section 2 of this Agreement
shall be subject to the satisfaction of each of the following conditions
precedent:
2
(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
Agreement.
(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 Effective Date hereunder and under the Credit Agreement,
including any fees arising under or referenced in Section 3 of this Agreement
and any costs and expenses payable under Section 6(g) of this Agreement
(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
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.
(5) The representations and warranties in
Section 4 of this Agreement 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 5(a), each Lender that has signed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the Effective Date
specifying its objection thereto.
(c) Except as expressly contemplated hereby, 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 occurrence of the Effective Date.
6. Miscellaneous.
(a) The Borrower acknowledges and agrees that the
execution and delivery by the Administrative Agent and the Lenders of this
Agreement 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. Nothing contained herein shall be deemed a waiver or consent in
respect of (or otherwise affect the Administrative Agent's or the Lenders'
ability to enforce) any Default not explicitly waived by Section 2, including
(a) any Default or Event of Default that may now exist or hereafter arise from
or otherwise be related to the Waived
3
Provision, and (b) any Default or Event of Default arising at any time after the
Effective Date and which is similar in type to the Waived Provision.
(b) This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
(c) THIS AGREEMENT 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 EACH LENDER SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(d) This Agreement 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 Agreement contains the entire and
exclusive agreement of the parties hereto with reference to the matters
discussed herein. This Agreement supersedes all prior drafts and communications
with respect hereto. This Agreement 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 Agreement
shall be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining provisions of
this Agreement, the Credit Agreement or the other 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 capacity as Collateral Agent and as
Administrative Agent), GSCP, JPMorgan and Scotiabank in connection with the
development, preparation, negotiation, execution and delivery of this Agreement.
(h) This Agreement shall constitute a Loan
Document.
[signature pages follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to be
duly executed as of the date first above written.
SOLECTRON CORPORATION
By: /s/ Robert Aeschliman
--------------------------------
Name: Robert Aeschliman
Title: Assistant Secretary
BANK OF AMERICA, N.A., as Administrative
Agent and Lender
By: /s/ James P. Johnson
-------------------------------------
Name: James P. Johnson
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS
L.P.
By: /s/ Stephen B. King
--------------------------------
Name: Stephen B. King
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA
By: /s/ Kemp Leonard
--------------------------------
Name: Kemp Leonard
Title: Director
BNP PARIBAS
By: /s/ Rafael C. Lumanian
--------------------------------
Name: Rafael C. Lumanian
Title: Director
By: /s/ Jean Plassard
--------------------------------
Name: Jean Plassard
Title: Managing Director
THE DEVELOPMENT BANK OF
SINGAPORE LTD., LOS ANGELES
AGENCY
By: /s/ Charles Ong
--------------------------------
Name: Charles Ong
Title: General Manager
FLEET NATIONAL BANK
By: /s/ Greg Roux
--------------------------------
Name: Greg Roux
Title: Director
JPMORGAN CHASE BANK
By: /s/ William Rindfuss
--------------------------------
Name: William Rindfuss
Title: Vice President
WHIPPOORWILL ASSOCIATES, INC. AS
AGENT FOR THE PRESIDENT AND FELLOWS
OF HARVARD COLLEGE
By: /s/ Shelley F. Greenhaus
--------------------------------
Name: Shelley F. Greenhaus
Title: President
THE ROYAL BANK OF SCOTLAND PLC
By:________________________________
Name:
Title:
STANDARD CHARTERED BANK
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
SUNTRUST BANK
By: /s/ Kenneth M. Uchiyama
--------------------------------
Name: Kenneth M. Uchiyama
Title: Managing Director
WACHOVIA BANK N.A.
By: /s/ Stephen R. Kramer
-------------------------------
Name: Stephen R. Kramer
Title: Assistant Vice President