Exhibit 99.4
WAIVER AND CONSENT
THIS WAIVER AND CONSENT (this "Consent") is made and entered into as of
the _____ day of _____________, 2001, by and among SCI SYSTEMS, INC., a Delaware
corporation ("SCI") and holders of notes which are party to the Note Purchase
Agreement hereinafter referred to (the "Holders").
W I T N E S S E T H:
WHEREAS, SCI and the Holders are party to that certain Note Purchase
Agreement, dated as of June 26, 1996 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Note Purchase
Agreement"); and
WHEREAS, SCI has failed to comply with certain of the financial covenants
contained in Article 10 of the Note Purchase Agreement and has requested that
the Required Holders waive the Events of Default arising as a result of such
failures and consent to SCI's future noncompliance with such financial covenants
as more fully set forth herein; and
WHEREAS, the Required Holders are willing to agree to such request,
subject to the terms and conditions hereof;
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual promises, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms in
the Note Purchase Agreement.
2. Waiver. Subject to the conditions contained herein, the Required
Holders hereby waive any Default or Event of Default arising solely out of:
(i) SCI's failure to comply with the minimum EBIT requirement
contained in Section 10.1(c) of the Note Purchase Agreement for the period
beginning on June 30, 2001 and ending on the Effective Date (as hereinafter
defined); and
(ii) SCI's failure to comply with the minimum Consolidated Tangible
Net Worth requirement contained in Section 10.1(d) of the Note Purchase
Agreement for the period beginning on June 30, 2001 and ending on the Effective
Date.
3. Consent and Forbearance. Subject to the conditions contained herein,
the Required Holders hereby consent to any failure by SCI to comply with the
minimum EBIT requirement contained in Section 10.1 (c) of the Note Purchase
Agreement and the
minimum Consolidated Tangible Net Worth requirement contained in Section 10.1(d)
of the Note Purchase Agreement, in each case for the period beginning on the
Effective Date and ending on December 6, 2001. Further, the Required Holders
agree to forbear from exercising the right under Section 12.1(b) of the Note
Purchase Agreement to declare the Notes to be immediately due and payable as a
result of the noncompliance described in this Section 3 until the earlier of (i)
the failure of SCI to comply with the covenant set forth in Section 6 below or
(ii) December 6, 2001.
4. Effective Date. The consents, waivers, and forbearance contained herein
shall become effective on the date of execution of this Consent by the last of
the Required Holders whose consent will result in the consent and waiver of the
Required Holders having been obtained in accordance with the Note Purchase
Agreement.
5. Representations and Warranties; No Default. SCI hereby represents and
warrants to the Holders that (a) all of SCI's representations and warranties
contained in the Note Purchase Agreement are true and correct on and as of the
date of execution of this Consent (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date), and after giving effect to this Consent, no Default or Event of Default
has occurred and is continuing as of such date under the Note Purchase
Agreement; (b) SCI has the power and authority to enter into this Consent and to
perform all of its obligations hereunder; (c) the execution, delivery and
performance of this Consent have been duly authorized by all necessary corporate
action on the part of SCI; (d) this Consent and any other instruments, documents
and agreements executed in connection herewith are the legal, valid and binding
obligations of SCI, enforceable in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar state or federal debtor relief laws from time to time in effect which
affect the enforcement of creditors' rights in general and the availability of
equitable remedies; and (e) the execution and delivery of this Consent and
performance thereof by SCI do not and will not violate the Certificate of
Incorporation, Bylaws or other organizational documents of SCI and do not and
will not violate or conflict with any law, order, writ, injunction or decree of
any court, administrative agency or other governmental authority applicable to
SCI or its properties.
6. Prepayment Covenant. On or before November 21, 2001 SCI will send to
each Holder a prepayment notice in accordance with Section 8.3 of the Note
Purchase Agreement and will prepay the Notes in full, including accrued and
unpaid interest and the requisite Make Whole Amount, on December 6, 2001.
Compliance with this covenant is a condition to the continued effectiveness of
this waiver.
7. Expenses. SCI agrees to pay, immediately upon demand by a Holder, all
costs, expenses, reasonable attorneys' fees and other charges and expenses
actually incurred by such Holder in connection with the negotiation,
preparation, execution and delivery of this Consent and any other instrument,
document, agreement or consent executed in connection with this Consent.
8. Defaults Hereunder. The breach of any representation, warranty or
covenant contained herein or in any document executed in connection herewith, or
the failure to
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observe or comply with any term or agreement contained herein shall constitute
an Event of Default under the Note Purchase Agreement and the Holders shall be
entitled to exercise all rights and remedies they may have under the Note
Purchase Agreement, any other documents executed in connection therewith and
applicable law.
9. References. All references in the Note Purchase Agreement shall
hereafter be deemed to be references to the Note Purchase Agreement after giving
effect to the provisions of this Consent.
10. No Waiver. Except as expressly set forth herein, neither any
provisions of this Consent, nor any subsequent failure by the Holders to insist,
nor any election by the Holders not to insist, upon strict performance of the
terms and conditions hereof or of the Note Purchase Agreement shall be deemed a
waiver of same or of any other term, condition or provision thereof. Except to
the extent waived or consented to as expressly set forth herein, each Holder
shall have the right at any time and from time to time to insist upon the strict
performance of any and all the terms, provisions and conditions of the Note
Purchase Agreement and every right, power and remedy given to the Holder, or any
of them, under the Note Purchase Agreement or available at law or in equity may
be exercised from time to time and as often as may be deemed necessary by the
Holder, or any of them.
11. Counterparts. This Consent may be executed in any number of
counterparts, including by facsimile, and any party hereto may execute any
counterpart, each of which, when executed and delivered, will be deemed to be an
original and all of which, taken together, will be deemed to be but one and the
same agreement. 12. Further Assurances. Each of SCI and the Holders agree to
take such further action as the Holders or SCI shall reasonably request in
connection herewith to evidence the consents, forbearance and waivers herein
contained relating to the Note Purchase Agreement.
13. Successors and Assigns. This Consent shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto.
14. Governing Law. THIS CONSENT, AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW).
IN WITNESS WHEREOF, SCI and each of the Holders has caused this Consent to
be duly executed and delivered as of the date first above written.
SCI SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Assistant Treasurer
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Date: _____________ METROPOLITAN LIFE INSURANCE
COMPANY
By: /s/ A. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Date: _____________ THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: _____________________________________
Title: __________________________________
Date: _____________ LINCOLN NATIONAL REINSURANCE
COMPANY (BARBADOS) LTD.
By: _____________________________________
Title: __________________________________
Date: _____________ LONDON LIFE INTERNATIONAL
REINSURANCE CORPORATION
By: _____________________________________
Title: __________________________________
Date: _____________ SECURITY-CONNECTICUT LIFE
INSURANCE COMPANY
By: _____________________________________
Title: __________________________________
Date: _____________ LIFE INVESTORS INSURANCE
COMPANY OF AMERICA
By: _____________________________________
Title: __________________________________
Date: _____________ THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Representative
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Date: _____________ LINCOLN NATIONAL HEALTH &
CASUALTY INSURANCE COMPANY
By: _____________________________________
Title: __________________________________
Date: _____________ OXFORD LIFE INSURANCE
COMPANY
By: _____________________________________
Title: __________________________________
Date: _____________ LINCOLN-SECURITY LIFE INSURANCE
COMPANY
By: _____________________________________
Title: __________________________________
Date: _____________ SONS OF NORWAY
By: _____________________________________
Title: __________________________________
Date: _____________ BANKERS UNITED LIFE ASSURANCE
COMPANY
By: _____________________________________
Title: __________________________________