EXHIBIT 10.15
SECOND AMENDMENT AND WAIVER
This SECOND AMENDMENT AND WAIVER (this "Amendment") is entered
into as of August 27, 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, BAS, GSCP, JPMorgan, Scotiabank, the Lenders,
and the Administrative Agent entered into an Amended and Restated 364-Day Credit
Agreement dated as of February 13, 2003 which agreement was amended by a First
Amendment Agreement dated as of July 9, 2003 (as in effect as of the date of
this Amendment, the "Credit Agreement").
The Borrower has requested that the Lenders waive
non-compliance with certain provisions of the Credit Agreement and agree to
certain amendments to the Credit Agreement, 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. 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 August 29, 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 the Cash Interest Coverage Ratio
for the Applicable Quarter is at or above 1.8 to 1.0.
3. Amendments to Credit Agreement. Subject to the terms and conditions
hereof, the Credit Agreement is amended as follows, effective as of the
Effective Date:
(a) The defined terms "Consolidated Net Income" and "Maturity Date" in
Section 1.01 of the Credit Agreement are amended in their entirety to read as
follows:
"Consolidated Net Income" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the net income
of the Borrower and its Subsidiaries from continuing operations (before
extraordinary items, and excluding gains or losses from Dispositions of
assets) for that period plus, in connection with measuring compliance
with Sections 7.13(a), 7.13(b) and 7.13(c) only, profits or losses from
discontinued operations for the fiscal quarters ending February 28,
2003, May 31, 2003 and August 29, 2003 to the extent any such fiscal
quarter is included in that period.
"Maturity Date" means (a) (i) November 30, 2003, or (ii), if
the Borrower shall have consummated a Minimum Capital Raise on or
before November 30, 2003, February 11, 2004, or (b) such earlier date
upon which the Aggregate Revolving Commitments may be terminated in
accordance with the terms hereof.
(b) Section 4.02(c) of the Credit Agreement is amended to read as
follows:
(c) The Administrative Agent shall have received a
Request for Credit Extension in accordance with the requirements hereof. Any
such Request for Credit Extension which is a Loan Notice shall include a
certification by a Responsible Officer of the Borrower that the Borrower is in
compliance with the Liquidity Ratio then in effect, calculated as of the date of
such Credit Extension.
(c) Section 7.05(j) of the Credit Agreement is amended to read as
follows:
(j) the Borrower and each Subsidiary may make
Dispositions not otherwise permitted hereunder; provided that (i) such
Disposition is for Fair Market Value, (ii) at the time of any disposition and
after giving effect thereto, no Default or no Event of Default shall exist or
shall result from such Disposition, and (iii) the Net Disposition Proceeds from
all such Dispositions by the Borrower and its Subsidiaries, together, shall not
exceed (x) in any fiscal year (other than the fiscal year ending August 31,
2004), 5% of the Consolidated Total Assets of the Borrower and its Subsidiaries
as of the last day of the immediately prior fiscal year and (y) in the fiscal
year ending August 31, 2004, 10% of the Consolidated Total Assets of the
Borrower and its Subsidiaries as of August 29, 2003.
(d) Section 7.13(d) of the Credit Agreement is amended to read as
follows:
(d) Liquidity Ratio. Permit the Liquidity Ratio (i) as of
the fiscal quarters of the Borrower ending November 30, 2002, February 28, 2003,
May 31, 2003, and November 30,
2003, to be less than 1.2 to 1.0, and (ii) as of the fiscal quarter ending
August 29, 2003, to be less than 1.3 to 1.0; provided, however, that if after
November 30, 2002, the Borrower issues new senior Debt Securities in an
aggregate principal amount of at least $300,000,000.00 but less than
$500,000,000.00, the Borrower shall not permit the Liquidity Ratio for any
fiscal quarter of the Borrower ending after such issuance to be less than 1.0 to
1.0; and provided, further, that if after November 30, 2002, the Borrower issues
new senior Debt Securities in an aggregate principal amount equal to or greater
than $500,000,000.00, the Borrower shall not permit the Liquidity Ratio for any
fiscal quarter of the Borrower ending after such issuance to be less than 0.9 to
1.0. For the avoidance of doubt, assets and liabilities of Subsidiaries whose
operations have been discontinued will continue to be included in the
determination of the Liquidity Ratio.
(e) References in the Agreement to the Borrowing Base, Borrowing Base
Date and related definitions and provisions shall be disregarded and deemed to
be deleted from the Agreement.
(f) The Loan Notice attached to the Credit Agreement as Exhibit A is
amended and restated in its entirety to read as set forth in Exhibit A hereto.
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 (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.
(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 July 9, 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 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.
5. Conditions of Effectiveness.
(a) The effectiveness of Section 2 and Section 3 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).
(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.
(6) The Effective Date shall have occurred on or before August
31, 2003.
(b) For purposes of determining compliance with the conditions
specified in Section 5(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 occurrence of the Effective Date.
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 August 27, 2003, a non-refundable amendment fee equal to 0.05%
of such Lender's Revolving Loan 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 Borrower pursuant to the Credit Agreement or
this Amendment.
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]
IN WITNESS WHEREOF, the parties hereto have caused this Second
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/ Perry G. Hayes
----------------------
Title: Treasurer & VP
A-7
BANK OF AMERICA, N.A., as Administrative
Agent and Lender
By: /s/ James P. Johnson
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Name: James P. Johnson
Title: Managing Director
A-8
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ Rob Shatzman
------------------------------------
Name: Rob Schatzman
Title: Vice President
A-9
THE BANK OF NOVA SCOTIA
By: /s/ Kent Leonard
------------------------------------
Name: Kent Leonard
Title: Director
A-10
BNP PARIBAS
By: /s/ Jean Plassard
------------------------------------
Name: Jean Plassard
Title: Managing Director
By: /s/ Rafael Lumanlan
------------------------------------
Name: Rafael Lumanlan
Title: Director
A-11
DBS BANK LTD., LOS ANGELES AGENCY
By: /s/ Charles Ong
------------------------------------
Name: Charles Ong
Title: General Manager
A-12
FLEET NATIONAL BANK
By: Greg Roux /s/
------------------------------------
Name: Greg Roux
Title: Managing Director
A-13
JPMORGAN CHASE BANK
By: /s/ William Rindfuss
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Name: William Rindfuss
Title: Vice President
A-14
WHIPPOORWILL ASSOCIATES, INC. AS AGENT
FOR THE PRESIDENT AND FELLOWS OF HARVARD
COLLEGE
By: /s/ David A. Strumwasser
------------------------------------
Name: David A. Strumwasser
Title: Managing Director
A-15
THE ROYAL BANK OF SCOTLAND PLC
By: ____________________________________
Name:
Title:
A-16
STANDARD CHARTERED BANK
By: /s/ Joseph Cuevas
------------------------------------
Name: Joseph Cuevas
Title: Vice President
By:
------------------------------------
Name:
Title:
A-17
SUNTRUST BANK
By: ____________________________________
Name:
Title:
A-18
TRS CALLISTO LLC
By: /s/ Rosemaary F. Dunne
------------------------------------
Name: Rosemary F. Dunne
Title: Vice President
A-19