EXHIBIT 10.1
EXECUTION VERSION
THIRD AMENDMENT AGREEMENT
This THIRD AMENDMENT AGREEMENT (this "Amendment") is entered
into as of February 13, 2003, among SOLECTRON CORPORATION, a Delaware
corporation (the "Borrower"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P. ("GSCP"), as
sole lead arranger, sole book runner and co-syndication agent, JPMORGAN CHASE
BANK ("JPMorgan"), as co-syndication agent, THE BANK OF NOVA SCOTIA
("Scotiabank"), as documentation agent, each lender from time to time 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 Borrower, GSCP, JPMorgan, Scotiabank, the Lenders, and the
Administrative Agent entered into a Credit Agreement dated as of February 14,
2002, which agreement was amended by an Amendment Agreement dated as of June 18,
2002, and a Second Amendment Agreement dated as of August 19, 2002 (as in effect
as of the date of this Amendment, the "Credit Agreement").
The Borrower has requested that the Lenders agree to certain
amendments to the Credit Agreement, and 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) which is defined in the
Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement.
(b) As used herein, "Amendment Documents" means this
Amendment, the Consent and Agreement related hereto and the Credit Agreement (as
amended by this Amendment).
(c) Each reference to "this Agreement," "hereof,"
"hereunder," "herein" and "hereby" and each other similar reference contained in
the Credit Agreement, and each reference to "the Credit Agreement" and each
other similar reference in the other Loan Documents, shall from and after the
Effective Date refer to the Credit Agreement as amended hereby.
(d) The rules of interpretation set forth in Sections
1.02 and 1.05 of the Credit Agreement shall be applicable to this Amendment.
2. Amendments to Credit Agreement. Subject to the terms and conditions
hereof, the Credit Agreement shall be amended as follows, effective as of the
date of satisfaction of the conditions set forth in Section 4 (the "Effective
Date"):
1.
(b) Amendments to Article I of the Credit Agreement.
(1) The defined term "Applicable Rate" shall be
amended as follows:
(A) By replacing the table contained
therein with the following table:
APPLICABLE
UTILIZATION APPLICABLE
APPLICABLE FEE RATE UTILIZATION
LIBO RATE (USAGE FEE RATE
DEBT RATINGS APPLICABLE AND LETTERS GREATER THAN (USAGE EQUAL
PRICING S&P/ FACILITY FEE OF CREDIT 33% BUT LESS TO OR GREATER
LEVEL ▇▇▇▇▇'▇ RATE FEE RATE THAN 66%) THAN 66%)
------- ------------ ------------ ----------- ------------ -------------
1 BBB/Baa2 17.5 bps 70.0 bps 12.5 bps 12.5 bps
(or higher)
2 BBB-/Baa3 25.0 bps 100.0 bps 25.0 bps 25.0 bps
3 BB+/Ba1 30.0 bps 120.0 bps 25.0 bps 25.0 bps
4 BB/Ba2 40.0 bps 135.0 bps 50.0 bps 50.0 bps
5 BB-/Ba3 50.0 bps 175.0 bps 50.0 bps 100.0 bps
6 B+/B1 62.5 bps 212.5 bps 50.0 bps 100.0 bps
(or lower)
(B) In the defined term "Debt Rating"
contained therein, by replacing the phrase "Level 5" with "Level 6".
(2) The defined term "Cash Interest Coverage
Ratio" shall be amended in its entirety to read as follows:
"Cash Interest Coverage Ratio" means, as of any date of
determination, the ratio of:
(a) the sum of (i) Consolidated EBITDA for the
fiscal quarter ending on such date, (ii) the Non-Cash Restructuring
Charges deducted in calculating Consolidated Net Income for such fiscal
quarter, (iii) the Goodwill Impairment Charges deducted in calculating
Consolidated Net Income for such fiscal quarter, (iv) the Cash
Restructuring Charges deducted in calculating Consolidated Net Income
for such fiscal quarter, provided, that the cumulative aggregate amount
of Cash Restructuring Charges
2.
from and after November 30, 2002, shall not exceed $200,000,000.00, and
(v) charges for such fiscal quarter relating to inventory write-downs
taken in accordance with GAAP on or after November 30, 2002, and on or
before February 29, 2004, not to exceed $150,000,000.00 in the
aggregate; to
(b) Consolidated Cash Interest Charges during
such fiscal quarter.
(3) The defined term "Cash Restructuring
Charges" shall be amended by deleting the proviso at the end thereof.
(4) The defined term "Class" shall be amended by
(A) replacing the word "and" with a comma (",") and (B) inserting the following
before the period at the end thereof: " and (d) the Additional Secured
Obligation Providers."
(5) The defined term "Consolidated EBITDA" shall
be amended in its entirety to read as follows:
"Consolidated EBITDA" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, an amount equal to (a)
Consolidated Net Income, plus (b) (i) Consolidated Interest Charges,
(ii) the amount of taxes, based on or measured by income, used or
included in the determination of such Consolidated Net Income, and
(iii) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income, minus (or plus) (c) gains (or
losses) on the retirement of Indebtedness to the extent increasing (or
decreasing) Consolidated Net Income.
(6) The defined term "Consolidated Tangible Net
Worth" shall be amended in its entirety to read as follows:
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated
basis, (a) Shareholders' Equity of the Borrower and its Subsidiaries on
that date minus (b) the Intangible Assets of the Borrower and its
Subsidiaries on that date plus (c) (i) the cumulative aggregate
after-tax Non-Cash Restructuring Charges deducted in calculating
Consolidated Net Income in any quarter ending after November 30, 2002,
(ii) the cumulative aggregate Goodwill Impairment Charges deducted in
calculating Consolidated Net Income in any quarter ending after
November 30, 2002, (iii) the cumulative aggregate after-tax Cash
Restructuring Charges deducted in calculating Consolidated Net Income
in any quarter ending after November 30, 2002, and (iv) after-tax
charges relating to inventory write-downs taken in accordance with GAAP
from November 30, 2002, to February 29, 2004, not to exceed
$150,000,000.00 in the aggregate; provided, that for purposes of
calculating Consolidated Tangible Net Worth, such cumulative aggregate
Non-Cash Restructuring Charges and Cash Restructuring Charges shall not
exceed $400,000,000.00; and provided, further, that to the extent any
Goodwill Impairment Charge results in any upward adjustment of
Shareholders' Equity of the Borrower and its Subsidiaries, then such
adjustment shall be excluded from the calculation of Consolidated
Tangible Net Worth as of such date of determination for purposes of
testing the Borrower's compliance with Section 7.13(b) (the intent of
the parties being that the effect of any such Goodwill
3.
Impairment Charge and any related adjustment effected as part of the
calculation of Consolidated Tangible Net Worth for the purposes of
testing the Borrower's compliance with Section 7.13(b) be neutral).
(7) The defined term "Lenders" shall be amended
by inserting ", the Security Agreement" after "Pledge Agreement" and by
inserting the following at the end thereof: "and any Additional Secured
Obligation Providers".
(8) The defined term "Loan Documents" shall be
amended by inserting after the phrase "the Pledge Agreement," the phrase "the
Security Agreement,".
(9) The defined term "Maturity Date" shall be
amended by replacing clause (b) with the following text: "(b) for Additional
Secured Obligations and Interest Rate Swaps, such maturity date as set forth in
the applicable Additional Secured Obligation Document or Joinder Agreement".
(10) The defined term "Non-Cash Restructuring
Charges" shall be amended by deleting the proviso at the end thereof.
(11) The defined term "Obligations" shall be
amended in the proviso by:
(A) Inserting after the phrase "the
Pledge Agreement," the following: "the Security Agreement,";
(B) Inserting after the phrase
"Interest Rate Swaps" the following: ", Additional Secured Obligations";
(C) Inserting the following proviso at
the end: ", and provided, further, that for purposes of the Security Agreement,
"Obligations" shall exclude (i) any Interest Rate Swap and Joinder Agreement in
respect of any Interest Rate Swap secured by any cash collateral, and (ii) any
Additional Secured Obligations to the extent that they arise from any
liabilities in respect of (A) the ▇▇▇▇-to-market value of any foreign exchange
contracts exceeding $75,000,000 at any time outstanding, or (B) any treasury
management facilities exceeding three days' exposure."
(12) The defined term "Permitted Acquisition"
shall be amended by (A) replacing the period at the end thereof with a semicolon
and (B) inserting the following proviso thereafter:
"and provided, further, that the aggregate amount of Permitted
Acquisitions during any twelve-month period beginning on or after
November 30, 2002, shall not exceed $300,000,000.00."
(13) The defined term "Receivables" shall be
amended in its entirety to read as follows:
4.
"Receivables" means all rights to payment arising out of the
sale or lease of goods or the performance of services in the ordinary
and usual course of business, however evidenced.
(14) The following additional defined terms shall
be inserted in the proper alphabetical order:
"Additional Secured Obligations" means any direct or indirect
liability, contingent or otherwise, of the Borrower or any of its
Subsidiaries in respect of any foreign exchange and cash management
services (including treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management arrangements)
provided by any Lender, including obligations for the payment of fees,
interest, charges, expenses, attorneys' fees and disbursements in
connection therewith.
"Additional Secured Obligation Documents" means any documents,
instruments or agreements evidencing any Additional Secured
Obligations.
"Additional Secured Obligation Provider" means any Lender
making credit extensions to the Borrower or any Subsidiaries pursuant
to any Additional Secured Obligation Documents.
"Annualized EBITDA" means (a) for the fiscal quarter of the
Borrower ending on February 28, 2003, Consolidated EBITDA for such
fiscal quarter multiplied by 4.0, (b) for the two-fiscal-quarter period
of the Borrower ending on May 31, 2003, Consolidated EBITDA for such
period multiplied by 2.0, (c) for the three-fiscal-quarter period of
the Borrower ending on August 31, 2003, Consolidated EBITDA for such
period divided by 0.75 and (d) for each four-fiscal-quarter period of
the Borrower ending on November 30, 2003, and thereafter, Consolidated
EBITDA for such period. For purposes of calculating Annualized EBITDA,
Consolidated EBITDA for any period shall include (i) the Non-Cash
Restructuring Charges deducted in calculating Consolidated Net Income
for such period, (ii) the Goodwill Impairment Charges deducted in
calculating Consolidated Net Income for such period, (iii) the Cash
Restructuring Charges deducted in calculating Consolidated Net Income
for such period, provided that the cumulative aggregate amount of Cash
Restructuring Charges taken from and after the quarter ending on
November 30, 2002, shall not exceed $200,000,000.00 in the aggregate,
and (iv) charges for such period relating to inventory write-downs
taken in accordance with GAAP from November 30, 2002, to February 29,
2004, not to exceed $150,000,000.00 in the aggregate.
"Approved Foreign Receivables Debtor" means (i) any
Receivables Debtor located in Japan or a country in North America or
Europe that is a member of the Organization for Economic Cooperation
and Development and (ii) any other Receivables Debtor who is not a
resident of or located in the United States and is not organized under
the laws of the United States or any state thereof approved in writing
by the Required Lenders.
"Borrowing Base" means, as of any date of determination, the
sum of (a) the then applicable Receivables Advance Rate multiplied by
the aggregate Dollar amount of the
5.
Receivables of the Borrower and its U.S. Subsidiaries as of the last
day of the most recently ended calendar month and (b) 100% of the
amount of Eligible Cash Collateral as of the last day of the most
recently ended calendar month.
"Borrowing Base Certificate" means a certificate signed by a
Responsible Officer of the Borrower, in substantially the form of
Exhibit N, with such changes thereto as the Administrative Agent may
from time to time reasonably request.
"Borrowing Base Date" means October 31, 2003, if the Borrower
shall not have consummated a Minimum Capital Raise on or before such
date.
"Capital Raise" means one or more issuances by the Borrower
after February 13, 2003, of new Debt Securities in an aggregate amount
of at least $300,000,000.00.
"Debt Securities" means Indebtedness of the Borrower of the
type contemplated by clause (a) of the definition of Indebtedness and
having a maturity date occurring on or after August 13, 2005.
"Eligible Cash Collateral" means all Dollar-denominated cash
and cash equivalents pledged to the Collateral Agent, for the benefit
of the Lenders, as collateral for the Obligations, and which are held
by the Administrative Agent pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent. Any such
cash collateral shall be maintained in interest bearing deposit
accounts at Bank of America or other institutions satisfactory to it
and shall be subject to such Lien documentation as the Administrative
Agent shall reasonably request. Such collateral shall be subject to a
valid, first priority Lien in favor of the Collateral Agent, for the
benefit of the Lenders. Cash Collateral for the L/C Obligations shall
not constitute Eligible Cash Collateral. Notwithstanding the foregoing,
in no event shall the Lien documentation restrict the ability of the
Borrower to access or withdraw such cash or cash equivalents unless an
Event of Default shall have occurred and is continuing or the sum of
the Outstanding Amount of all Revolving Loans and L/C Obligations and
the 364-Day Outstanding Amount shall exceed the Borrowing Base then in
effect.
"Excluded U.S. Subsidiary" means a U.S. Subsidiary that is a
dormant, inactive or name-holding Subsidiary and that does not own or
hold any collateral of the type described in the Security Agreement
with a book value equal to or exceeding $10,000.00. Notwithstanding the
foregoing, the term "Excluded U.S. Subsidiary" shall include any
Special Purpose Subsidiary and U.S. Robotics Corporation.
"Ineligible Receivables" means, with respect to the
Receivables of the Borrower or any U.S. Subsidiary, any of the
following:
(a) Receivables for which the Borrower's or such
Subsidiary's right to receive payment has not been fully earned by
performance or is contingent upon the fulfillment of any condition
whatsoever or which otherwise do not arise from a bona fide completed
transaction;
6.
(b) Receivables which constitute a contra
account or against which there are asserted any requests for
adjustment, defenses, counterclaims, discounts (other than normal trade
discounts granted in the ordinary course of business), credits or
offsets of any nature, whether well-founded or otherwise, to the extent
thereof;
(c) Receivables that do not comply with all
applicable Laws in any material respect;
(d) Receivables which represent a prepayment or
progress payment or arising out of the placement of goods on
consignment, guaranteed sale or other arrangement by reason of which
the payment by the Receivables Debtor may be conditional or contingent;
(e) Receivables which are not owned by the
Borrower or applicable U.S. Subsidiary free and clear of all Liens and
rights of others (other than the Liens in favor of the Collateral Agent
on behalf of the Lenders and other nonconsensual Permitted Liens);
(f) Receivables in which the Collateral Agent on
behalf of the Lenders shall not have a valid and perfected
first-priority Lien;
(g) Receivables owing by any officer, director,
employee, agent, partner, Subsidiary or Affiliate of the Borrower;
(h) Receivables owing by the United States or
any department, agency or instrumentality thereof unless the
Administrative Agent has agreed to the contrary in writing and the
Borrower or applicable U.S. Subsidiary has complied with the Federal
Assignment of Claims Act with respect to such Receivables;
(i) Receivables denominated in a currency other
than Dollars or owing by any Receivables Debtor who is not a resident
of or located in the United States and is not organized under the laws
of the United States or any state thereof (other than any Approved
Foreign Receivables Debtor);
(j) Receivables not paid in full within 60 days
from the invoice due date;
(k) Receivables owing by any Receivables Debtor
or any of its Affiliates who has failed to make full payment within 60
days from the invoice due date on more than 10% of the aggregate amount
of Receivables owing to the Borrower and its U.S. Subsidiaries by such
Receivables Debtor;
(l) that portion of Receivables owing by any
single Receivables Debtor or any of its Affiliates whose S&P/▇▇▇▇▇'▇
Rating is not at least BBB-/Baa3 which exceeds 10% of the aggregate
amount of Receivables owing to the Borrower and its U.S. Subsidiaries
by all Receivables Debtors;
7.
(m) Receivables owing by any Receivables Debtor
or any of its Affiliates who is the subject of a proceeding under any
Debtor Relief Law;
(n) Receivables which are evidenced by a
promissory note or other instrument;
(o) Receivables with respect to which the terms
or conditions prohibit or restrict assignment or collection rights
unless such prohibitions or restrictions are not enforceable under
applicable law;
(p) Receivables of any Receivables Debtor whose
S&P/▇▇▇▇▇'▇ Rating or whose Affiliate's S&P/▇▇▇▇▇'▇ Rating is lower
than the lower of B-/B3; and
(q) Receivables with respect to which the
Administrative Agent, in its reasonable discretion, deems the
creditworthiness or financial condition of the Receivables Debtor to be
unsatisfactory or the prospect of payment or performance to be impaired
in any material respect, and other Receivables which, in the
Administrative Agent's reasonable discretion, are otherwise ineligible.
"Liquidity Ratio" means, as of any date of determination, the
ratio of: (a) the sum of (i) cash, (ii) cash equivalents, (iii)
marketable securities and (iv) accounts receivable, in each case not
subject to a Lien (other than Liens in favor of the Collateral Agent
pursuant to the Loan Documents and any nonconsensual Permitted Liens);
to (b) (i) all accounts payable of the Borrower and its Subsidiaries on
a consolidated basis and (ii) Consolidated Indebtedness other than (A)
Subordinated Indebtedness, (B) Indebtedness under ▇▇▇▇▇, (C)
Attributable Indebtedness of the Borrower and its Subsidiaries on a
consolidated basis in respect of capital leases and Synthetic Lease
Obligations which are fully cash collateralized, (D) Indebtedness of
the Borrower and its Subsidiaries on a consolidated basis described in
clause (b) of the definition of "Indebtedness," unless any such
Indebtedness constitutes a matured reimbursement obligation or matured
payment obligation and is no longer contingent unless cash
collateralized, or described in clause (c) of the definition of
"Indebtedness," and (E) any Guarantee Obligations related to any of the
foregoing.
"Minimum Capital Raise" means, at any time after February 13,
2003, the receipt by the Borrower of (a) aggregate gross proceeds
through one or more (i) issuances by the Borrower of equity or (ii)
incurrences of unsecured Indebtedness not amortizing or maturing prior
to February 14, 2005, and/or (b) aggregate Net Proceeds in respect of
any divestitures of assets or property by the Borrower, or any
combination thereof, in an amount of at least $300,000,000.00, in cash
or cash equivalents.
"Net Proceeds" means, with respect to any divestiture of
assets or property by any Person, the aggregate consideration received
by such Person from such divestiture minus the amount of reasonable
fees and commissions actually paid by such Person to Persons other than
such Person or any Affiliate of such Person in connection therewith.
8.
"Receivables Advance Rate" means, as of any date of
determination, (a) 50% or (b) if the percentage of the Receivables of
the Borrower and its U.S. Subsidiaries constituting Ineligible
Receivables as of the last day of the most recently ended calendar
month exceeds 40%, 50% minus 90% of the amount by which such percentage
exceeds 40%.
"Receivables Debtor" means any Person obligated on a
Receivable.
"S&P/▇▇▇▇▇'▇ Rating" means, with respect to any Person as of
any date of determination, the rating assigned by either S&P or ▇▇▇▇▇'▇
to such Person's senior unsecured non-credit enhanced long-term debt.
"Security Agreement" means the Security Agreement made by the
Borrower and each U.S. Subsidiary (other than the Excluded U.S.
Subsidiaries) in favor of the Collateral Agent for the benefit of the
Lenders, in substantially the form of Exhibit M.
"364-Day Lender" means, at any time, a lender party to the
364-Day Credit Agreement.
"364-Day Outstanding Amount" means, at any time, the aggregate
outstanding principal amount of all loans under the 364-Day Credit
Agreement.
(15) The defined terms "Cash Interest Coverage
Ratio Compliance Date" and "Restructuring Charges" shall be deleted.
(c) Amendments to Article II of the Credit Agreement.
(1) Section 2.01 shall be amended by inserting
the following at the end of the first sentence thereof:
"; and provided, further, that at any time after the Borrowing Base
Date, the sum of the Outstanding Amount of all Revolving Loans and L/C
Obligations and the 364-Day Outstanding Amount shall not exceed the
Borrowing Base then in effect"
(2) Section 2.04 shall be amended by inserting
the following at the end thereof:
"At any time after the Borrowing Base Date, if the sum of the
Outstanding Amount of all Revolving Loans and L/C Obligations and the
364-Day Outstanding Amount shall exceed the Borrowing Base then in
effect, the Borrower, upon becoming aware of such excess, shall
immediately prepay Revolving Loans or loans under the 364-Day Credit
Agreement, or a combination thereof, in an amount equal to such
excess."
(3) Section 2.08(c) shall be amended by
inserting before the word "respectively" the following: "and the fee letter
dated January 30, 2003, between the Borrower, Bank of America and Banc of
America Securities LLC".
(4) Section 2.12 shall be deleted in its
entirety.
9.
(5) Section 2.13(a) shall be amended by deleting
clauses (i) and (1) in their entirety.
(d) Amendments to Article IV of the Credit Agreement.
(1) Section 4.02(d) shall be renumbered as
Section 4.02(e).
(2) A new Section 4.02(d) shall be inserted
therein as follows:
"(d) If such Credit Extension is on or after the Borrowing
Base Date, the Borrower shall have delivered to the Administrative
Agent the completed Borrowing Base Certificate, together with the
related collateral reports, required under Section 6.16, and the
statements contained therein shall be true, correct and complete on and
as of the date of such Credit Extension as though made on and as of
such date, except for changes in the information set forth in such
Borrowing Base Certificate in the ordinary course of business. The
giving of any Request for Credit Extension and the acceptance by the
Borrower of the proceeds of a Credit Extension shall each be deemed a
certification to the Administrative Agent and the Lenders that on and
as of the date of such Credit Extension such statements are true,
correct and complete, except for changes in the information set forth
in such Borrowing Base Certificate in the ordinary course of business."
(e) Amendment to Article V of the Credit Agreement.
Section 5.18 shall be amended in its entirety to read as follows:
"5.18 SECURITY INTEREST. The Loan Documents create for the
benefit of the Lenders a valid and perfected security interest in the
collateral described in the Pledge Agreement (except that with respect
to the pledge of any Capital Stock of First Tier Foreign Subsidiaries,
a perfected security interest to the extent applicable), subject to no
other Liens (other than as expressly permitted by the Pledge
Agreement), and a valid and perfected security interest in the
collateral described in the Security Agreement, subject to no other
Liens (other than Liens expressly permitted by the Security Agreement),
securing in each case the payment of the Obligations, and all filings
and other actions necessary or desirable to perfect or protect such
security interests have been duly taken or arrangements therefor
reasonably satisfactory to the Administrative Agent have been made."
(f) Amendments to Article VI of the Credit Agreement.
(1) Section 6.14 shall be amended by:
(A) amending subsection (a)(ii) by
replacing the phrase "SLR C.V. (as defined therein)" with the phrase "SLR C.V.
(as defined therein) or any entity organized under the laws of the Cayman
Islands holding all of the Capital Stock of SLR C.V. (provided that SEH (as
defined therein) holds at least 90% of the Capital Stock of such entity)"; and
(B) adding a new subsection (c) thereto
as follows:
10.
"(c) If, at any time, the Borrower incorporates, creates
or acquires any additional U.S. Subsidiary (other than an Excluded U.S.
Subsidiary), or the status of any Excluded U.S. Subsidiary (other than
U.S. Robotics Corporation) shall change so that it no longer meets the
definition of "Excluded U.S. Subsidiary," then, at the Borrower's
expense:
(i) within 45 days after such incorporation,
creation or acquisition, or after any U.S. Subsidiary no
longer qualifies as an Excluded U.S. Subsidiary, the Borrower
shall (A) cause such U.S. Subsidiary to duly execute and
delivery to the Administrative Agent a security agreement in
substantially the form of Exhibit M or a supplement thereto
and (B) deliver evidence satisfactory to the Administrative
Agent that the Lien granted to the Collateral Agent for the
benefit of the Lenders on the collateral described in such
security agreement is a valid and perfected security interest
and that no Lien (other than Liens permitted by the Security
Agreement) exists on any such collateral other than the Lien
granted to the Collateral Agent for the benefit of the Lenders
and the 364-Day Lenders pursuant to the Loan Documents; and
(ii) at any time and from time to time, the
Borrower shall promptly execute and deliver all further
instruments and documents and take all such other action as
the Administrative Agent may reasonably believe necessary or
desirable to obtain the full benefits of, or in perfecting and
preserving the Liens of, the pledges and guaranties
contemplated by this Section 6.14."
(2) A new Section 6.16 shall be added thereto as
follows:
"6.16 BORROWING BASE CERTIFICATE. The Borrower shall
deliver to the Administrative Agent by no later than October
31, 2003, unless a Minimum Capital Raise has been consummated
on or before such date, (a) a completed Borrowing Base
Certificate and (b) full and complete reports with respect to
the Receivables of the Borrower and its U.S. Subsidiaries,
including information as to concentration, aging, identity of
Receivables Debtors, letters of credit securing Receivables,
disputed Receivables and other matters, as the Administrative
Agent shall reasonably request. After the Borrowing Base Date,
the Borrower shall deliver to the Administrative Agent, as
soon as available but in any event by no later than ten
Business Days after the end of each calendar month, a
completed Borrowing Base Certificate, together with the
related collateral reports described above."
(3) A new Section 6.17 shall be added thereto as
follows:
"6.17 SECURITY AGREEMENT COLLATERAL. Not later than
March 31, 2003, the Borrower shall deliver to the
Administrative Agent to the extent not delivered prior
thereto: (a) evidence satisfactory to the Administrative Agent
that the Lien granted to the Collateral Agent for the benefit
of the Lenders in the collateral described in the Security
Agreement is a perfected security interest, subject to no
other Liens (other than Liens permitted thereby), (b)
confirmation of the accuracy
11.
of its prior certification of the U.S. Subsidiaries and the
Excluded U.S. Subsidiaries, and (c) such other items as
reasonably requested by the Administrative Agent in connection
with the Security Agreement, including opinions of counsel to
the Borrower and the U.S. Subsidiaries party to the Security
Agreement, search reports and other certificates and
documents."
(g) Amendments to Article VII of the Credit Agreement.
(1) Section 7.01 shall be amended by:
(A) amending subsection (j) in its
entirety to read as follows:
"(j) [Reserved];"
(B) deleting the second proviso in
subsection (k);
(C) amending subsection (n) by
replacing "$50,000,000.00" with "$215,000,000.00"; and
(D) amending subsection (u) in its
entirety to read as follows:
"(u) additional Liens on its U.S. property,
assets or revenue securing Indebtedness in an aggregate amount
so secured at any time not exceeding $10,000,000.00; and"
(E) adding a new subsection (v) as
follows:
"(v) additional Liens on its non-U.S. property,
assets or revenue securing Indebtedness in an aggregate amount
so secured at any time not exceeding $75,000,000.00;"
(F) in the proviso at the end thereof,
replacing "Section 7.01(u)" with "Section 7.01(v)").
(2) Section 7.03 shall be amended by:
(A) amending subsection (b) by adding
the following proviso at the end thereof:
"provided that any Capital Raise of Debt Securities, to the
extent that the proceeds of such issuance are applied within
180 days thereafter to the purchase, redemption, repayment,
tender or other refinancing of any such Indebtedness then
outstanding, shall be deemed to be issued in compliance with
this Section 7.03(b)"
(B) amending subsection (d) by
replacing "$75,000,000.00" with "$215,000,000.00"; and
12.
(C) amending subsection (f) in its
entirety to read as follows:
"(f) [Reserved];"
(3) Section 7.05(f) shall be amended in its
entirety to provide as follows:
"(f) [Reserved];"
(4) Section 7.06 shall be amended by:
(A) amending subsection (f) by adding
the following proviso before the word "and" at the end thereof:
"and provided, further, that, notwithstanding anything to the
contrary in this Section 7.06(f), the Borrower shall not make
any Restricted Junior Payment of the type described in clause
(ii) of the definition of Restricted Junior Payment to the
extent it relates to common stock of the Borrower;"
(B) deleting the last sentence thereof.
(5) Section 7.10 shall be amended in its
entirety to provide as follows:
"7.10 CAPITAL EXPENDITURES. Make or become legally
obligated to make any expenditure in respect of the purchase
or other acquisition of any fixed or capital asset (excluding
normal replacements and maintenance which are properly charged
to current operations, Permitted Acquisitions, and
acquisitions of assets as a result of the termination of
Synthetic Lease Obligations), except for capital expenditures
not exceeding, in the aggregate for the Borrower and its
Subsidiaries for any consecutive four-quarter period beginning
on September 1, 2001, and each four-quarter period beginning
on each September 1 thereafter an amount equal to
$300,000,000.00."
(6) Section 7.11(b) shall be amended in its
entirety to provide as follows:
"(b) [Reserved];"
(7) Section 7.13 shall be amended in its
entirety to provide as follows:
"7.13 FINANCIAL COVENANTS.
(a) Maximum Debt to Annualized EBITDA Ratio.
Permit the ratio of Consolidated Indebtedness (other than
Indebtedness under the ACES and the ▇▇▇▇▇) to Annualized
EBITDA as of the end of any fiscal quarter of the Borrower to
be greater than the ratio set forth opposite such fiscal
quarter below:
13.
-------------------------------------------------
FISCAL QUARTER ENDING MAXIMUM RATIO
-------------------------------------------------
November 30, 2002 3.25 to 1.0
-------------------------------------------------
February 28, 2003 4.50 to 1.0
-------------------------------------------------
May 31, 2003 4.25 to 1.0
-------------------------------------------------
August 31, 2003 4.25 to 1.0
-------------------------------------------------
November 30, 2003 3.75 to 1.0
-------------------------------------------------
February 29, 2004 3.50 to 1.0
-------------------------------------------------
May 31, 2004 3.50 to 1.0
-------------------------------------------------
August 31, 2004, and thereafter 3.25 to 1.0
-------------------------------------------------
(b) Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth as of the end of any fiscal
quarter of the Borrower ending on November 30, 2002, or
thereafter to be less than the sum of (i) $1,660,880,000.00,
(ii) an amount equal to 50% of Consolidated Net Income earned
in each fiscal quarter ending after November 30, 2002 (with no
deduction for a new loss in any such fiscal quarter), and
(iii) an amount equal to 50% of the aggregate increases in
Shareholders' Equity of the Borrower and its Subsidiaries
after November 30, 2002, by reason of the issuance and sale of
Capital Stock of the Borrower (including upon any conversion
of debt securities of the Borrower into such Capital Stock)
during any fiscal quarter of the Borrower ending subsequent to
November 30, 2002.
(c) Cash Interest Coverage Ratio.
(i) Before the occurrence of any
Capital Raise, permit the Cash Interest Coverage
Ratio, as of the end of any fiscal quarter of the
Borrower, to be less than the ratio set forth
opposite such fiscal quarter below:
--------------------------------------
FISCAL QUARTER ENDING MINIMUM RATIO
--------------------------------------
November 30, 2002 2.7 to 1.0
--------------------------------------
February 28, 2003 2.7 to 1.0
--------------------------------------
May 31, 2003 2.85 to 1.0
--------------------------------------
14.
-----------------------------------
August 31, 2003 2.8 to 1.0
-----------------------------------
November 30, 2003 3.15 to 1.0
-----------------------------------
February 29, 2004 3.15 to 1.0
-----------------------------------
May 31, 2004 3.5 to 1.0
-----------------------------------
August 31, 2004 3.5 to 1.0
-----------------------------------
November 30, 2004 4.0 to 1.0
-----------------------------------
(ii) From and after the occurrence of
one or more Capital Raises, permit the Cash Interest
Coverage Ratio, as of the end of any fiscal quarter
of the Borrower, to be less than the ratio of:
(A) the product of (1) the
numerator of the ratio set forth opposite
such fiscal quarter above and (2) the
projected Consolidated Cash Interest Charges
for such fiscal quarter contained in the
Company Plan dated January 30, 2003,
provided to the Lenders; to
(B) the sum of (1) the
projected Consolidated Cash Interest Charges
for such fiscal quarter contained in such
Company Plan and (2) the actual Consolidated
Cash Interest Charges in connection with
such Capital Raises during such fiscal
quarter (as adjusted to take into account
any Swap Contacts entered into on the
closing date of such Capital Raises);
provided, however, that under no circumstances shall
the Borrower permit the Cash Interest Coverage Ratio
calculated under this Section 7.13(c)(ii), as of the
end of any fiscal quarter of the Borrower, to be less
than the ratio set forth opposite such fiscal quarter
below:
----------------------------------------
FISCAL QUARTER ENDING MINIMUM RATIO
----------------------------------------
November 30, 2002 2.0 to 1.0
---------------------------------------
February 28, 2003 2.0 to 1.0
---------------------------------------
May 31, 2003 1.75 to 1.0
---------------------------------------
August 31, 2003 1.75 to 1.0
---------------------------------------
November 30, 2003, and 2.0 to 1.0
---------------------------------------
thereafter
---------------------------------------
15.
(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, August 31, 2003,
November 30, 2003, and February 28, 2004, to be less than 1.2
to 1.0 and (ii) as of the fiscal quarters of the Borrower
ending May 31, 2004, and thereafter to be less than 1.0 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.
(e) Minimum Cash. Permit at any time, in respect
of the Borrower and its U.S. Subsidiaries: (i) the sum of (A)
cash-on-hand, (B) cash equivalents and (C) marketable
securities, in each case not subject to a Lien (other than
Liens in favor of the Collateral Agent pursuant to the Loan
Documents and any nonconsensual Permitted Liens) or any other
restrictions, to be less than (ii) the sum of (X)
$500,000,000.00, (Y) the aggregate Outstanding Amount of
Revolving Loans and L/C Obligations and (Z) the 364-Day
Outstanding Amount.
With respect to any period during which a Permitted
Acquisition or an asset sale has occurred (each, a "Subject
Transaction"), for purposes of determining compliance with the
financial covenants set forth in this Section 7.13,
Consolidated EBITDA and the components of Consolidated Cash
Interest Charges shall be calculated with respect to such
period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a
Subject Transaction, are factually supportable and are
expected to have a continuing impact, in each case determined
on a basis consistent with Article 11 of Regulation S-X
promulgated under the Securities Act of 1933, as amended from
time to time, and any successor statute, and as interpreted by
the staff of the Securities and Exchange Commission, which
would include cost savings resulting from head count
reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the
chief financial officer of the Borrower) using the historical
audited, if available, financial statements of any business so
acquired or to be acquired or sold or to be sold and the
consolidated financial statements of the Borrower and its
Subsidiaries which shall be reformulated as if such Subject
Transaction, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or
repaid at the beginning of such period (and assuming that such
Indebtedness bears interest during any portion of the
applicable measurement period prior to the relevant
16.
acquisition at the weighted average of the interest rates
applicable to outstanding Loans incurred during such period)."
(8) Section 7.14 shall be amended in its
entirety to provide as follows:
"7.14 ▇▇▇▇▇. Voluntarily redeem for cash any ▇▇▇▇▇,
or voluntarily acquire for cash any ▇▇▇▇▇ from holders
thereof, in part or in whole, unless immediately before and
after giving effect to such proposed actions unrestricted
cash, cash equivalents and short-term Investments of the
Borrower (determined on a consolidated basis) plus unused
amounts under the Commitments and the commitments under the
364-Day Credit Agreement exceed $950,000,000.00, and
immediately before and after giving effect to such proposed
actions, no Default or Event of Default would exist. Upon the
receipt by the Administrative Agent of a notice confirming the
Investment Grade Ratings of the Borrower, this Section 7.14
shall be terminated and be of no further force or effect."
(h) Amendment to Article VIII of the Credit Agreement.
Section 8.01(b) shall be amended in its entirety to provide as follows:
"(b) Specific Covenants. The Borrower fails to
perform or observe any term, covenant or agreement contained
in any of Sections 6.03, 6.05, 6.12 or 6.16 or Article VII;"
(i) Amendments to Article IX of the Credit Agreement.
Section 9.11 shall be amended by inserting the following after "encumbering" in
clause (i): "any assets constituting collateral under the Security Agreement
or".
(j) Amendments to Annexes to the Credit Agreement.
(1) Schedules 2.03, 5.09, 5.13, 7.01, 7.02, 7.03
and 7.11 to the Credit Agreement shall be amended in their entirety in the form
of Annexes 5 to 11, respectively, to this Amendment.
(2) Schedule 7.13 to the Credit Agreement shall
be deleted.
(3) Exhibit C to the Credit Agreement shall be
amended by amending Schedules 2 and 3 thereto in the form of Annex 1 to this
Agreement.
(4) New Exhibits M and N shall be added to the
Credit Agreement in the form of Annexes 2 and 3 respectively, to this Amendment.
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is
continuing (or would result from the amendment of the Credit Agreement
contemplated hereby).
17.
(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 (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 August 31, 2002, no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(f) The Borrower is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance upon
the Administrative Agent and the Lenders or any other Person.
(g) The Borrower's obligations under the Credit Agreement
and under the other Loan Documents are not subject to any defense, counterclaim,
set-off, right of recoupment, abatement or other claim.
4. Conditions of Effectiveness.
(a) The effectiveness of 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 Borrower and each of the 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 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.
18.
(3) The Administrative Agent shall have received
from the Borrower a certificate certifying the U.S. Subsidiaries and the
Excluded U.S. Subsidiaries, which certification the Borrower may update at any
time prior to March 31, 2003.
(4) The Administrative Agent shall have received
from the Borrower and each of its U.S. Subsidiaries a duly executed original
(or, if elected by the Administrative Agent, an executed facsimile copy) of the
Security Agreement, substantially in the form of Annex 3.
(5) The Administrative Agent shall have executed
the amendment to the Intercreditor Agreement, substantially in the form of Annex
4 and shall have received from Bank of America (in its capacities as
Administrative Agent under the 364-Day Credit Agreement and as Collateral Agent)
a duly executed original thereof.
(6) The Administrative Agent shall have received
from the Borrower a duly completed Compliance Certificate signed by a
Responsible Officer of the Borrower in respect of the fiscal quarter of the
Borrower ended November 30, 2002.
(7) 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 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).
(8) 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 Effective Date by the Secretary or an Assistant
Secretary of the Borrower, authorizing the execution, delivery and performance
of this Amendment, the Security Agreement and each other document, agreement or
instrument to be executed and delivered by it pursuant thereto, 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.
(9) The Administrative Agent shall have received
an opinion of counsel to the Borrower, in form and substance satisfactory to the
Administrative Agent, and addressed to the Administrative Agent and the Lenders,
dated the Effective Date.
(10) 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.
(11) The Effective Date shall have occurred on or
before February 13, 2003.
19.
(b) For purposes of determining compliance with the
conditions specified in Section 4(a), each Lender that has executed this
Amendment shall be deemed to have consented to, approved or accepted, or to be
satisfied with, each document or other matter either sent, or made available for
inspection, by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
(c) From and after the Effective Date, the Credit
Agreement is amended as set forth herein. Except as expressly amended pursuant
hereto, the Credit Agreement shall remain unchanged and in full force and effect
and is hereby ratified and confirmed in all respects.
(d) The Administrative Agent will notify the Borrower and
the Lenders of the occurrence of the Effective Date.
5. Fees. The Borrower shall pay (a) to the Administrative Agent for the
account of each of Bank of America and Banc of America Securities LLC ("BAS")
the fees set forth in that certain letter agreement dated as of January 30,
2003, by and between Bank of America, BAS and the Borrower, and (b) to each of
GSCP, JPMorgan and Scotiabank such fees as are set forth in separate letter
agreements by and between each such Person and the Borrower. Such fees shall be
due and payable by the Borrower on the dates set forth in such letter
agreements.
6. 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
20.
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]
21.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Treasurer and Vice President
of Investor Relations
BANK OF AMERICA, N.A., as Administrative
Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS
L.P., AS SOLE LEAD ARRANGER,
SOLE BOOK RUNNER AND CO-SYNDICATION
AGENT AND A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Authorized Signatory
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
BNP PARIBAS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. Lumanian
--------------------------------
Name: ▇▇▇▇▇▇ ▇. Lumanian
Title: Director
CSAM FUNDING II
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
THE DEVELOPMENT BANK OF SINGAPORE LTD.,
LOS ANGELES AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: General Manager
DBS Bank Los Angeles
FLEET NATIONAL BANK, AS L/C ISSUER
AND A LENDER
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Director
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: /s/ Jaap L. Tonckens
--------------------------------
Name: Jaap L. Tonckens
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
STANDARD CHARTERED BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: Sr. Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇
Title: Vice President
Standard Chartered Bank NY
22.
