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EXHIBIT 10.16(a)
RECEIVABLES PURCHASE AGREEMENT
dated as of October 6, 2000
Among
PLEXUS ABS, INC., as Seller,
PLEXUS CORP., as Servicer,
PREFERRED RECEIVABLES FUNDING CORPORATION
and
BANK ONE, NA (MAIN OFFICE CHICAGO)
as Agent
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POOL PURCHASE
PLEXUS ABS, INC.
RECEIVABLES PURCHASE AGREEMENT
This Receivables Purchase Agreement dated as of October 6, 2000, is
among Plexus ABS, Inc., a Nevada corporation ("Seller"), Plexus Corp., a
Wisconsin corporation ("Plexus"), as initial Servicer (the Servicer together
with Seller, the "Seller Parties" and each a "Seller Party"), the entities
listed on Schedule A to this Agreement (together with any of their respective
successors and assigns hereunder, the "Financial Institutions"), Preferred
Receivables Funding Corporation ("Company") and Bank One, NA (Main Office
Chicago), as agent for the Purchasers hereunder and any successor agent
hereunder (together with its successors and assigns hereunder, the "Agent").
Unless defined elsewhere herein, capitalized terms used in this Agreement shall
have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
Seller desires to transfer and assign Purchaser Interests to the
Purchasers from time to time.
Company may, in its absolute and sole discretion, purchase Purchaser
Interests from Seller from time to time.
In the event that Company declines to make any purchase, the Financial
Institutions shall, at the request of Seller, purchase Purchaser Interests from
time to time. In addition, the Financial Institutions have agreed to provide a
liquidity facility to Company in accordance with the terms hereof.
Bank One, NA (Main Office Chicago) has been requested and is willing to
act as Agent on behalf of Company and the Financial Institutions in accordance
with the terms hereof.
ARTICLE I
PURCHASE ARRANGEMENTS
Section 1.1 Purchase Facility.
(a) Upon the terms and subject to the conditions
hereof, Seller may, at its option, sell and assign Purchaser Interests to the
Agent for the benefit of one or more of the Purchasers. In accordance with the
terms and conditions set forth herein, Company may, at its option, instruct the
Agent to purchase on behalf of Company, or if Company shall decline to purchase,
the Agent shall purchase, on behalf of the Financial Institutions, Purchaser
Interests from time to time in an aggregate amount not to exceed at such time
the lesser of (i) the Purchase Limit and (ii) the aggregate amount of the
Commitments during the period from the date hereof to but not including the
Facility Termination Date.
(b) Seller may, upon at least 10 Business Days'
notice to the Agent, terminate in whole or reduce in part, ratably among the
Financial Institutions, the unused portion of the Purchase Limit; provided that
each partial reduction of the Purchase Limit shall be in an amount equal to
$5,000,000 or an integral multiple thereof.
Section 1.2 Increases.
Seller shall provide the Agent with at least three Business
Days' prior notice (any such notice received by the Agent after 11:00 a.m.
(Chicago time) to be deemed received on the next Business Day) in a form set
forth as Exhibit II hereto of each Incremental Purchase (a "Purchase Notice").
Each Purchase Notice shall be
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subject to Section 6.2 hereof and, except as set forth below, shall be
irrevocable and shall specify the requested Purchase Price (which shall not be
less than $1,000,000) and date of purchase (which, in the case of any
Incremental Purchase (after the initial Incremental Purchase hereunder), shall
only be on a Settlement Date) and, in the case of an Incremental Purchase to be
funded by the Financial Institutions, the requested Discount Rate and Tranche
Period. Following receipt of a Purchase Notice, the Agent will determine whether
Company agrees to make the purchase. If Company declines to make a proposed
purchase, Seller may cancel the Purchase Notice or, in the absence of such a
cancellation, the Incremental Purchase of the Purchaser Interest will be made by
the Financial Institutions. On the date of each Incremental Purchase, upon
satisfaction of the applicable conditions precedent set forth in Article VI,
Company or the Financial Institutions, as applicable, shall deposit to the
Facility Account, in immediately available funds, no later than 12:00 noon
(Chicago time), an amount equal to (i) in the case of Company, the aggregate
Purchase Price of the Purchaser Interests Company is then purchasing or (ii) in
the case of a Financial Institution, such Financial Institution's Pro Rata Share
of the aggregate Purchase Price of the Purchaser Interests the Financial
Institutions are purchasing.
Section 1.3 Decreases. Seller shall provide the Agent with at
least three Business Days' prior notice (any such notice received by the Agent
after 11:00 a.m. (Chicago time) to be deemed received on the next Business Day)
(a "Reduction Notice") of any proposed reduction of Aggregate Capital from
Collections. Such Reduction Notice shall designate (i) the date (the "Proposed
Reduction Date") upon which any such reduction of Aggregate Capital shall occur,
and (ii) the amount of Aggregate Capital to be reduced, which reduction shall be
applied ratably to the Purchaser Interests of Company and the Financial
Institutions in accordance with the amount of Capital (if any) owing to Company,
on the one hand, and the amount of Capital (if any) owing to the Financial
Institutions (ratably, based on their respective Pro Rata Shares), on the other
hand (the "Aggregate Reduction"). Only one (1) Reduction Notice shall be
outstanding at any time. No Aggregate Reduction will be made following the
occurrence of the Amortization Date without the consent of the Agent.
Section 1.4 Payment Requirements. All amounts to be paid or
deposited by any Seller Party pursuant to any provision of this Agreement shall
be paid or deposited in accordance with the terms hereof no later than 11:00
a.m. (Chicago time) on the day when due in immediately available funds, and if
not received before 11:00 a.m. (Chicago time) shall be deemed to be received on
the next succeeding Business Day. Amounts payable to a Purchaser shall be paid
to the account designated by such Purchaser, until otherwise notified by such
Purchaser. Amounts payable to the Agent shall be paid to the account designated
by the Agent at 0 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, until otherwise
notified by the Agent. All computations of Yield, per annum fees calculated as
part of any CP Costs, per annum fees hereunder and per annum fees under the Fee
Letter shall be made on the basis of a year of 360 days for the actual number of
days elapsed. If any amount hereunder shall be payable on a day that is not a
Business Day, such amount shall be payable on the next succeeding Business Day.
ARTICLE II
PAYMENTS AND COLLECTIONS
Section 2.1 Payments. Notwithstanding any limitation on
recourse contained in this Agreement, Seller shall immediately pay to the Agent
when due, for the account of the relevant Purchaser or Purchasers on a full
recourse basis, (i) such fees as set forth in the Fee Letter (which fees shall
be sufficient to pay all fees owing to the Financial Institutions), (ii) all CP
Costs, (iii) all amounts payable as Yield, (iv) all amounts payable as Deemed
Collections (which shall be immediately due and payable by Seller and applied to
reduce outstanding Aggregate Capital hereunder in accordance with Sections 2.2
and 2.3 hereof), (v) all amounts required pursuant to Section 2.6, (vi) all
amounts payable pursuant to Article X, if any, (vii) all Servicer costs and
expenses, including the Servicing Fee, in connection with servicing,
administering and collecting the Receivables, (viii) all Broken Funding Costs
and (ix) all Default Fees (collectively, the "Obligations"). If any Person fails
to pay any of the Obligations when due, such Person agrees to pay, on demand,
the Default Fee in respect thereof until paid. Notwithstanding the foregoing, no
provision of this Agreement or the Fee Letter shall require the payment or
permit the collection of any amounts hereunder in excess of the maximum
permitted by applicable law. If at any time
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Seller receives any Collections or is deemed to receive any Collections, Seller
shall immediately pay such Collections or Deemed Collections to the Servicer for
application in accordance with the terms and conditions hereof and, at all times
prior to such payment, such Collections or Deemed Collections shall be held in
trust by Seller for the exclusive benefit of the Purchasers and the Agent.
Section 2.2 Collections Prior to Amortization. Prior to the
Amortization Date, any Collections and/or Deemed Collections received by the
Servicer shall be set aside and held in trust by the Servicer for the payment of
any accrued and unpaid Aggregate Unpaids or for a Reinvestment as provided in
this Section 2.2. If at any time any Collections are received by the Servicer
prior to the Amortization Date, (i) the Servicer shall set aside the Termination
Percentage (hereinafter defined) of Collections evidenced by the Purchaser
Interests of each Terminating Financial Institution and (ii) Seller hereby
requests and the Purchasers (other than any Terminating Financial Institutions)
hereby agree to make, simultaneously with such receipt, a reinvestment (each a
"Reinvestment") with that portion of the balance of each and every Collection
received by the Servicer that is part of any Purchaser Interest (other than any
Purchaser Interests of Terminating Financial Institutions), such that after
giving effect to such Reinvestment, the amount of Capital of such Purchaser
Interest immediately after such receipt and corresponding Reinvestment shall be
equal to the amount of Capital immediately prior to such receipt. On each
Settlement Date prior to the occurrence of the Amortization Date, the Servicer
shall remit to the Agent's account the amounts set aside during the preceding
Settlement Period that have not been subject to a Reinvestment and apply such
amounts (if not previously paid in accordance with Section 2.1) first, to reduce
unpaid CP Costs, Yield and other Obligations and second, to reduce the Capital
of all Purchaser Interests of Terminating Financial Institutions, applied
ratably to each Terminating Financial Institution according to its respective
Termination Percentage. If such Capital, CP Costs, Yield and other Obligations
shall be reduced to zero, any additional Collections received by the Servicer
(i) if applicable, shall be remitted to the Agent's account no later than 11:00
a.m. (Chicago time) to the extent required to fund any Aggregate Reduction on
such Settlement Date and (ii) any balance remaining thereafter shall be remitted
from the Servicer to Seller on such Settlement Date. Each Terminating Financial
Institution shall be allocated a ratable portion of Collections from the date of
any assignment by Company pursuant to Section 13.6 (the "Termination Date")
until such Terminating Financing Institution's Capital shall be paid in full.
This ratable portion shall be calculated on the Termination Date of each
Terminating Financial Institution as a percentage equal to (i) Capital of such
Terminating Financial Institution outstanding on its Termination Date, divided
by (ii) the Aggregate Capital outstanding on such Termination Date (the
"Termination Percentage"). Each Terminating Financial Institution's Termination
Percentage shall remain constant prior to the Amortization Date. On and after
the Amortization Date, each Termination Percentage shall be disregarded, and
each Terminating Financial Institution's Capital shall be reduced ratably with
all Financial Institutions in accordance with Section 2.3.
Section 2.3 Collections Following Amortization. On the
Amortization Date and on each day thereafter, the Servicer shall set aside and
hold in trust, for the holder of each Purchaser Interest, all Collections
received on such day and an additional amount for the payment of any accrued and
unpaid Obligations owed by Seller and not previously paid by Seller in
accordance with Section 2.1. On and after the Amortization Date, the Servicer
shall, at any time upon the request from time to time by (or pursuant to
standing instructions from) the Agent (i) remit to the Agent's account the
amounts set aside pursuant to the preceding sentence, and (ii) apply such
amounts to reduce the Capital associated with each such Purchaser Interest and
any other Aggregate Unpaids.
Section 2.4 Application of Collections. If there shall be
insufficient funds on deposit for the Servicer to distribute funds in payment in
full of the aforementioned amounts pursuant to Section 2.2 or 2.3 (as
applicable), the Servicer shall distribute funds:
first, to the payment of the Servicer's reasonable
out-of-pocket costs and expenses in connection with servicing,
administering and collecting the Receivables, including the Servicing
Fee, if Seller or one of its Affiliates is not then acting as the
Servicer,
second, to the reimbursement of the Agent's costs of
collection and enforcement of this Agreement,
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third, ratably to the payment of all accrued and unpaid fees
under the Fee Letter, CP Costs and Yield,
fourth, (to the extent applicable), to the ratable reduction
of the Aggregate Capital (without regard to any Termination
Percentage),
fifth, for the ratable payment of all other unpaid
Obligations, provided that to the extent such Obligations relate to the
payment of Servicer costs and expenses, including the Servicing Fee,
when Seller or one of its Affiliates is acting as the Servicer, such
costs and expenses will not be paid until after the payment in full of
all other Obligations, and
fifth, after the Aggregate Unpaids have been indefeasibly
reduced to zero, to Seller.
Collections applied to the payment of Aggregate Unpaids shall
be distributed in accordance with the aforementioned provisions, and, giving
effect to each of the priorities set forth in Section 2.4 above, shall be shared
ratably (within each priority) among the Agent and the Purchasers in accordance
with the amount of such Aggregate Unpaids owing to each of them in respect of
each such priority.
Section 2.5 Payment Rescission. No payment of any of the
Aggregate Unpaids shall be considered paid or applied hereunder to the extent
that, at any time, all or any portion of such payment or application is
rescinded by application of law or judicial authority, or must otherwise be
returned or refunded for any reason. Seller shall remain obligated for the
amount of any payment or application so rescinded, returned or refunded, and
shall promptly pay to the Agent (for application to the Person or Persons who
suffered such rescission, return or refund) the full amount thereof, plus the
Default Fee from the date of any such rescission, return or refunding.
Section 2.6 Maximum Purchaser Interests. Seller shall ensure
that the Purchaser Interests of the Purchasers shall at no time exceed in the
aggregate 100%. If the aggregate of the Purchaser Interests of the Purchasers
exceeds 100%, Seller shall pay to the Agent within three (3) Business Days after
Seller's knowledge thereof an amount to be applied to reduce the Aggregate
Capital (as allocated by the Agent), such that after giving effect to such
payment the aggregate of the Purchaser Interests equals or is less than 100%.
ARTICLE III
COMPANY FUNDING
Section 3.1 CP Costs. Seller shall pay CP Costs with respect
to the Capital associated with each Purchaser Interest of Company for each day
that any Capital in respect of such Purchaser Interest is outstanding. Each
Purchaser Interest funded substantially with Pooled Commercial Paper will accrue
CP Costs each day on a pro rata basis, based upon the percentage share the
Capital in respect of such Purchaser Interest represents in relation to all
assets held by Company and funded substantially with Pooled Commercial Paper.
Section 3.2 CP Costs Payments. On each Settlement Date, Seller
shall pay to the Agent (for the benefit of Company) an aggregate amount equal to
all accrued and unpaid CP Costs in respect of the Capital associated with all
Purchaser Interests of Company for the immediately preceding Accrual Period in
accordance with Article II.
Section 3.3 Calculation of CP Costs. On the third Business Day
immediately preceding each Settlement Date, Company shall calculate the
aggregate amount of CP Costs for the applicable Accrual Period and shall notify
Seller of such aggregate amount.
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ARTICLE IV
FINANCIAL INSTITUTION FUNDING
Section 4.1 Financial Institution Funding. Each Purchaser
Interest of the Financial Institutions shall accrue Yield for each day during
its Tranche Period at either the LIBO Rate or the Prime Rate in accordance with
the terms and conditions hereof. Until Seller gives notice to the Agent of
another Discount Rate in accordance with Section 4.4, the initial Discount Rate
for any Purchaser Interest transferred to the Financial Institutions pursuant to
the terms and conditions hereof shall be the Prime Rate. If the Financial
Institutions acquire by assignment from Company any Purchaser Interest pursuant
to Article XIII, each Purchaser Interest so assigned shall each be deemed to
have a new Tranche Period commencing on the date of any such assignment.
Section 4.2 Yield Payments. On the Settlement Date for each
Purchaser Interest of the Financial Institutions, Seller shall pay to the Agent
(for the benefit of the Financial Institutions) an aggregate amount equal to the
accrued and unpaid Yield for the entire Tranche Period of each such Purchaser
Interest in accordance with Article II.
Section 4.3 Selection and Continuation of Tranche Periods.
(a) With consultation from (and approval by) the
Agent, Seller shall from time to time request Tranche Periods for the Purchaser
Interests of the Financial Institutions, provided that, if at any time the
Financial Institutions shall have a Purchaser Interest, Seller shall always
request Tranche Periods such that at least one Tranche Period shall end on the
date specified in clause (A) of the definition of Settlement Date.
(b) Seller or the Agent, upon notice to and consent
by the other received at least three (3) Business Days prior to the end of a
Tranche Period (the "Terminating Tranche") for any Purchaser Interest, may,
effective on the last day of the Terminating Tranche: (i) divide any such
Purchaser Interest into multiple Purchaser Interests, (ii) combine any such
Purchaser Interest with one or more other Purchaser Interests that have a
Terminating Tranche ending on the same day as such Terminating Tranche or (iii)
combine any such Purchaser Interest with a new Purchaser Interests to be
purchased on the day such Terminating Tranche ends, provided, that in no event
may a Purchaser Interest of Company be combined with a Purchaser Interest of the
Financial Institutions.
Section 4.4 Financial Institution Discount Rates. Seller may
select the LIBO Rate or the Prime Rate for each Purchaser Interest of the
Financial Institutions. Seller shall by 11:00 a.m. (Chicago time): (i) at least
three (3) Business Days prior to the expiration of any Terminating Tranche with
respect to which the LIBO Rate is being requested as a new Discount Rate and
(ii) at least one (1) Business Day prior to the expiration of any Terminating
Tranche with respect to which the Prime Rate is being requested as a new
Discount Rate, give the Agent irrevocable notice of the new Discount Rate for
the Purchaser Interest associated with such Terminating Tranche. Until Seller
gives notice to the Agent of another Discount Rate, the initial Discount Rate
for any Purchaser Interest transferred to the Financial Institutions pursuant to
the terms and conditions hereof shall be the Prime Rate.
Section 4.5 Suspension of the LIBO Rate. If any Financial
Institution notifies the Agent that it has determined that funding its Pro Rata
Share of the Purchaser Interests of the Financial Institutions at a LIBO Rate
would violate any applicable law, rule, regulation, or directive of any
governmental or regulatory authority, whether or not having the force of law, or
that (i) deposits of a type and maturity appropriate to match fund its Purchaser
Interests at such LIBO Rate are not available or (ii) such LIBO Rate does not
accurately reflect the cost of acquiring or maintaining a Purchaser Interest at
such LIBO Rate, then the Agent shall suspend the availability of such LIBO Rate
and require Seller to select the Prime Rate for any Purchaser Interest accruing
Yield at such LIBO Rate.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of The Seller
Parties. Each Seller Party hereby represents and warrants to the Agent and the
Purchasers, as to itself, as of the date hereof and as of the date of each
Incremental Purchase and the date of each Reinvestment that:
(a) Corporate Existence and Power. Such Seller Party
is a corporation duly organized, validly existing and in good standing or active
status under the laws of its state of incorporation. Such Seller Party is duly
qualified to do business and is in good standing or active status as a foreign
corporation in each jurisdiction where the failure to be so qualified or to be
in good standing or active status could reasonably be expected to have a
Material Adverse Effect, and has and holds all corporate power and all
governmental licenses, authorizations, consents and approvals required to carry
on its business in each jurisdiction in which its business is conducted except
where the failure to so have or hold could not reasonably be expected to have a
Material Adverse Effect.
(b) Power and Authority; Due Authorization, Execution
and Delivery. The execution and delivery by such Seller Party of this Agreement
and each other Transaction Document to which it is a party, and the performance
of its obligations hereunder and thereunder and, in the case of Seller, Seller's
use of the proceeds of purchases made hereunder, are within its corporate powers
and authority and have been duly authorized by all necessary corporate action on
its part. This Agreement and each other Transaction Document to which such
Seller Party is a party has been duly executed and delivered by such Seller
Party.
(c) No Conflict. The execution and delivery by such
Seller Party of this Agreement and each other Transaction Document to which it
is a party, and the performance of its obligations hereunder and thereunder do
not contravene or violate (i) its certificate or articles of incorporation or
by-laws, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a party
or by which it or any of its property is bound that is material to the operation
of its business, or (iv) any order, writ, judgment, award, injunction or decree
binding on or affecting it or its property, and do not result in the creation or
imposition of any Adverse Claim on assets of such Seller Party or its
Subsidiaries (except as created hereunder); and no transaction contemplated
hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing
of the financing statements required hereunder, no authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such Seller
Party of this Agreement and each other Transaction Document to which it is a
party and the performance of its obligations hereunder and thereunder.
(e) Actions, Suits. There are no actions, suits or
proceedings pending, or, to the best of the Seller's knowledge, threatened,
against or affecting the Seller or any of its properties, in or before any
court, arbitrator or other body that could reasonably be expected to have a
Material Adverse Effect. There are no actions, suits or proceedings pending, or,
to the best of the Servicer's knowledge, threatened, against or affecting the
Servicer, or any of its properties, in or before any court, arbitrator or other
body, that could reasonably be expected to have a Material Adverse Effect. Such
Seller Party is not in default with respect to any order of any court,
arbitrator or governmental body.
(f) Binding Effect. This Agreement and each other
Transaction Document to which such Seller Party is a party constitute the legal,
valid and binding obligations of such Seller Party enforceable against such
Seller Party in accordance with their respective terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
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(g) Accuracy of Information. All information
heretofore furnished by such Seller Party or any of its Affiliates to the Agent
or the Purchasers for purposes of or in connection with this Agreement, any of
the other Transaction Documents or any transaction contemplated hereby or
thereby is, and all such information hereafter furnished by such Seller Party or
any of its Affiliates to the Agent or the Purchasers will be, true and accurate
in every material respect on the date such information is stated or certified
and does not and will not contain any material misstatement of fact or omit to
state a material fact or any fact necessary to make the statements contained
therein not misleading.
(h) Use of Proceeds. No proceeds of any purchase
hereunder will be used (i) for a purpose that violates, or would be inconsistent
with, Regulation T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction that is subject to Section 12, 13 or 14 of the Securities Exchange
Act of 1934, as amended.
(i) Good Title. Immediately prior to each purchase
hereunder, Seller shall be the legal and beneficial owner of the Receivables and
Related Security with respect thereto, free and clear of any Adverse Claim,
except as created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect
Seller's ownership interest in each Receivable, its Collections and the Related
Security.
(j) Perfection. This Agreement, together with the
filing of the financing statements contemplated hereby, is effective to, and
shall, upon each purchase hereunder, transfer to the Agent for the benefit of
the relevant Purchaser or Purchasers (and the Agent for the benefit of such
Purchaser or Purchasers shall acquire from Seller) a valid and perfected first
priority undivided percentage ownership or security interest in each Receivable
existing or hereafter arising and in the Related Security and Collections with
respect thereto, free and clear of any Adverse Claim, except as created by the
Transactions Documents. There have been duly filed all financing statements or
other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect the Agent's (on
behalf of the Purchasers) ownership or security interest in the Receivables, the
Related Security and the Collections.
(k) Places of Business and Locations of Records. The
principal places of business and chief executive office of such Seller Party and
the offices where it keeps all of its Records are located at the address(es)
listed on Exhibit III or such other locations of which the Agent has been
notified in accordance with Section 7.2(a) in jurisdictions where all action
required by Section 14.4(a) has been taken and completed. Seller's Federal
Employer Identification Number is correctly set forth on Exhibit III.
(l) Collections. The conditions and requirements set
forth in Section 7.1(j) and Section 8.2 have at all times been satisfied and
duly performed. The name and address of each Lock-Box Processor and the name,
address and post office box number of each Lock-Box are listed on Exhibit IV.
Seller has not granted any Person, other than the Agent as contemplated by this
Agreement, dominion and control of any Lock-Box, or the right to take dominion
and control of any such Lock-Box at a future time or upon the occurrence of a
future event.
(m) Material Adverse Effect. (i) The initial Servicer
represents and warrants that since June 30, 2000, no event has occurred that
could reasonably be expected to have a material adverse effect on the financial
condition or operations of the initial Servicer and its Subsidiaries or the
ability of the initial Servicer to perform its obligations under this Agreement,
and (ii) Seller represents and warrants that since the date of this Agreement,
no event has occurred that would have a material adverse effect on (A) the
financial condition or operations of Seller, (B) the ability of Seller to
perform its obligations under the Transaction Documents, or (C) the
collectibility of the Receivables generally or of any material portion of the
Receivables.
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(n) Names. In the past five (5) years, Seller has not
used any corporate names, trade names or assumed names other than the name in
which it has executed this Agreement.
(o) Ownership of Seller. Plexus owns, directly or
indirectly, 100% of the issued and outstanding capital stock of Seller, free and
clear of any Adverse Claim. Such capital stock is validly issued, fully paid and
nonassessable, and there are no options, warrants or other rights to acquire
securities of Seller.
(p) Not a Holding Company or an Investment Company.
Such Seller Party is not a "holding company" or a "subsidiary holding company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or any successor statute. Such Seller Party is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
(q) Compliance with Law. Such Seller Party has
complied in all respects with all applicable laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject
except where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Receivable, together with the Contract related
thereto, does not contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy), and no part of such Contract is in
violation of any such law, rule or regulation.
(r) Compliance with Credit and Collection Policy.
Such Seller Party has complied in all material respects with the Credit and
Collection Policy with regard to each Receivable and the related Contract, and
has not made any change to such Credit and Collection Policy, except such
material change as to which the Agent has been notified in accordance with
Section 7.1(a)(vii).
(s) Payments to Originators. With respect to each
Receivable transferred to Seller under the Receivables Sale Agreement, Seller
has given reasonably equivalent value to the Originator of such Receivable in
consideration therefor and such transfer was not made for or on account of an
antecedent debt. No transfer by any Originator of any Receivable under the
Receivables Sale Agreement is or may be voidable under any section of the
Bankruptcy Reform Act of 1978 (11 U.S.C. ss. 101 et seq.), as amended.
(t) Enforceability of Contracts. Each Contract with
respect to each Receivable is effective to create, and has created, a legal,
valid and binding obligation of the related Obligor to pay the Outstanding
Balance of the Receivable created thereunder and any accrued interest thereon,
enforceable against the Obligor in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable included in
the Net Receivables Balance as an Eligible Receivable on the date of its
purchase under the Receivables Sale Agreement was an Eligible Receivable on such
purchase date.
(v) Net Receivables Balance. Seller has determined
that, immediately after giving effect to each purchase hereunder, the Net
Receivables Balance is at least equal to the sum of (i) the Aggregate Capital,
plus (ii) the Aggregate Reserves.
(w) Accounting. The manner in which such Seller Party
accounts for the transactions contemplated by this Agreement and the Receivables
Sale Agreement does not jeopardize the true sale analysis.
Section 5.2 Financial Institution Representations and
Warranties. Each Financial Institution hereby represents and warrants to the
Agent and Company that:
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(a) Existence and Power. Such Financial Institution
is a corporation or a banking association duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization, and has all corporate power to perform its obligations hereunder.
(b) No Conflict. The execution and delivery by such
Financial Institution of this Agreement and the performance of its obligations
hereunder are within its corporate powers, have been duly authorized by all
necessary corporate action, do not contravene or violate (i) its certificate or
articles of incorporation or association or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement,
contract or instrument to which it is a party or any of its property is bound,
or (iv) any order, writ, judgment, award, injunction or decree binding on or
affecting it or its property, and do not result in the creation or imposition of
any Adverse Claim on its assets. This Agreement has been duly authorized,
executed and delivered by such Financial Institution.
(c) Governmental Authorization. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required for the due execution and delivery by
such Financial Institution of this Agreement and the performance of its
obligations hereunder.
(d) Binding Effect. This Agreement constitutes the
legal, valid and binding obligation of such Financial Institution enforceable
against such Financial Institution in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether such enforcement is sought
in a proceeding in equity or at law).
ARTICLE VI
CONDITIONS OF PURCHASES
Section 6.1 Conditions Precedent to Initial Incremental
Purchase. The initial Incremental Purchase of a Purchaser Interest under this
Agreement is subject to the conditions precedent that (a) the Agent shall have
received on or before the date of such purchase those documents listed on
Schedule B and (b) the Agent shall have received all fees and expenses required
to be paid on such date pursuant to the terms of this Agreement and the Fee
Letter.
Section 6.2 Conditions Precedent to All Purchases and
Reinvestments. Each purchase of a Purchaser Interest (other than pursuant to
Section 13.1) and each Reinvestment shall be subject to the further conditions
precedent that (a) in the case of each such purchase or Reinvestment: (i) the
Servicer shall have delivered to the Agent on or prior to the date of such
purchase, in form and substance satisfactory to the Agent, all Monthly Reports
as and when due under Section 8.5 and (ii) upon the Agent's request, the
Servicer shall have delivered to the Agent at least three (3) days prior to such
purchase or Reinvestment an interim Monthly Report showing the amount of
Eligible Receivables; (b) the Facility Termination Date shall not have occurred;
(c) the Agent shall have received such other approvals, opinions or documents as
it may reasonably request and (d) on the date of each such Incremental Purchase
or Reinvestment, the following statements shall be true (and acceptance of the
proceeds of such Incremental Purchase or Reinvestment shall be deemed a
representation and warranty by Seller that such statements are then true):
(i) the representations and warranties set forth in Section
5.1 are true and correct on and as of the date of such Incremental Purchase or
Reinvestment as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from such Incremental Purchase or Reinvestment, that will constitute an
Amortization Event, and no event has occurred and is continuing, or would result
from such Incremental Purchase or Reinvestment, that would constitute a
Potential Amortization Event; and
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(iii) the Aggregate Capital does not exceed the Purchase Limit
and the aggregate Purchaser Interests do not exceed 100%.
It is expressly understood that each Reinvestment shall, unless otherwise
directed by the Agent or any Purchaser, occur automatically on each day that the
Servicer shall receive any Collections without the requirement that any further
action be taken on the part of any Person and notwithstanding the failure of
Seller to satisfy any of the foregoing conditions precedent in respect of such
Reinvestment. The failure of Seller to satisfy any of the foregoing conditions
precedent in respect of any Reinvestment shall give rise to a right of the
Agent, which right may be exercised at any time on demand of the Agent, to
rescind the related purchase and direct Seller to pay to the Agent for the
benefit of the Purchasers an amount equal to the Collections prior to the
Amortization Date that shall have been applied to the affected Reinvestment.
ARTICLE VII
COVENANTS
Section 7.1 Affirmative Covenants of The Seller Parties. Until
the date on which the Aggregate Unpaids have been indefeasibly paid in full and
this Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, as set forth below:
(a) Financial Reporting. Such Seller Party will
maintain, for itself and each of its Subsidiaries, a system of accounting
established and administered in accordance with GAAP, and furnish or cause to be
furnished to the Agent:
(i) Annual Reporting. Within 90 days
after the close of each of its respective fiscal years, (A) audited (in
the case of Plexus) and unqualified, and (B) unaudited (in the case of
the Seller), financial statements (which shall include balance sheets,
statements of income and retained earnings and a statement of cash
flows), for such fiscal year certified in a manner acceptable to the
Agent by independent public accountants acceptable to the Agent.
(ii) Quarterly Reporting. Within 45
days after the close of the first three (3) quarterly periods of each
of its respective fiscal years, balance sheets of each Seller Party as
at the close of each such period and statements of income and retained
earnings and a statement of cash flows for each such Person for the
period from the beginning of such fiscal year to the end of such
quarter, all certified by its respective chief financial officer or
vice president - finance.
(iii) Compliance Certificate.
Together with the financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit V signed by such
Seller Party's Authorized Officer and dated the date of such annual
financial statement or such quarterly financial statement, as the case
may be.
(iv) Shareholders Statements and
Reports. Promptly upon the furnishing thereof to the shareholders of
such Seller Party copies of all financial statements, reports and proxy
statements so furnished.
(v) S.E.C. Filings. Promptly upon
the filing thereof, copies of all registration statements and annual,
quarterly, monthly or other regular reports that Plexus or any of its
Subsidiaries files with the Securities and Exchange Commission.
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(vi) Copies of Notices. Promptly
upon its receipt of any notice, request for consent, financial
statements, certification, report or other communication under or in
connection with any Transaction Document from any Person other than the
Agent or Company, copies of the same.
(vii) Change in Credit and
Collection Policy. At least thirty (30) days prior to the effectiveness
of any material change in or material amendment to the Credit and
Collection Policy, a copy of the Credit and Collection Policy then in
effect and a notice (A) indicating such change or amendment, and (B) if
such proposed change or amendment would be reasonably likely to
adversely affect the collectibility of the Receivables or decrease the
credit quality of any newly created Receivables, requesting the Agent's
consent thereto.
(viii) Other Information. Promptly,
from time to time, such other information, documents, records or
reports relating to the Receivables or the condition or operations,
financial or otherwise, of such Seller Party as the Agent may from time
to time reasonably request in order to protect the interests of the
Agent and the Purchasers under or as contemplated by this Agreement.
(b) Notices. Such Seller Party will notify the Agent
in writing of any of the following promptly upon learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken with
respect thereto:
(i) Amortization Events or Potential
Amortization Events. The occurrence of each Amortization Event and each
Potential Amortization Event, by a statement of an Authorized Officer
of such Seller Party.
(ii) Judgment and Proceedings. (A)
(1) The entry of any judgment or decree against the Servicer or any of
its respective Subsidiaries if the aggregate amount of all judgments
and decrees then outstanding against the Servicer and its Subsidiaries
exceeds $5,000,000, and (2) the institution of any litigation,
arbitration proceeding or governmental proceeding against the Servicer;
and (B) the entry of any judgment or decree or the institution of any
litigation, arbitration proceeding or governmental proceeding against
Seller.
(iii) Material Adverse Effect. The
occurrence of any event or condition that has had, or could reasonably
be expected to have, a Material Adverse Effect.
(iv) Termination Date. The
occurrence of the "Termination Date" under and as defined in the
Receivables Sale Agreement.
(v) Defaults Under Other Agreements.
The occurrence of a default or an event of default under any other
financing arrangement pursuant to which such Seller Party is a debtor
or an obligor.
(c) Compliance with Laws and Preservation of
Corporate Existence. Such Seller Party will comply in all respects with all
applicable laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect. Such
Seller Party will preserve and maintain its corporate existence, rights,
franchises and privileges in the jurisdiction of its incorporation, and qualify
and remain qualified in good standing as a foreign corporation in each
jurisdiction where its business is conducted except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect.
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(d) Audits. Such Seller Party will furnish to the
Agent from time to time such information with respect to it and the Receivables
as the Agent may reasonably request. Such Seller Party will, from time to time
during regular business hours as requested by the Agent upon reasonable notice
and at the sole cost of such Seller Party, permit the Agent, or its agents or
representatives (and shall cause each Originator to permit the Agent or its
agents or representatives), (i) to examine and make copies of and abstracts from
all Records in the possession or under the control of such Person relating to
the Receivables and the Related Security, including, without limitation, the
related Contracts, and (ii) to visit the offices and properties of such Person
for the purpose of examining such materials described in clause (i) above, and
to discuss matters relating to such Person's financial condition or the
Receivables and the Related Security or any Person's performance under any of
the Transaction Documents or any Person's performance under the Contracts and,
in each case, with any of the officers or employees of Seller or the Servicer
having knowledge of such matters.
(e) Keeping and Marking of Records and Books.
(i) The Servicer will (and will
cause each Originator to) maintain and implement administrative and
operating procedures (including, without limitation, an ability to
recreate records evidencing Receivables in the event of the destruction
of the originals thereof), and keep and maintain all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Receivables (including, without limitation, records
adequate to permit the immediate identification of each new Receivable
and all Collections of and adjustments to each existing Receivable).
The Servicer will (and will cause each Originator to) give the Agent
notice of any material change in the administrative and operating
procedures referred to in the previous sentence.
(ii) Such Seller Party will (and
will each cause Originator to) (A) on or prior to the date hereof, xxxx
its master data processing records and other books and records relating
to the Purchaser Interests with a legend, acceptable to the Agent,
describing the Purchaser Interests and (B) upon the request of the
Agent (x) xxxx each Contract with a legend describing the Purchaser
Interests and (y) deliver to the Agent all Contracts (including,
without limitation, all multiple originals of any such Contract)
relating to the Receivables.
(f) Compliance with Contracts and Credit and
Collection Policy. Such Seller Party will (and will cause each Originator to)
timely and fully (i) perform and comply with all provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables, and (ii) comply in all respects with the Credit and Collection
Policy in regard to each Receivable and the related Contract.
(g) Performance and Enforcement of Receivables Sale
Agreement. Seller will, and will require each Originator to, perform each of
their respective obligations and undertakings under and pursuant to the
Receivables Sale Agreement, will purchase Receivables thereunder in strict
compliance with the terms thereof and will vigorously enforce the rights and
remedies accorded to Seller under the Receivables Sale Agreement. Seller will
take all actions to perfect and enforce its rights and interests (and the rights
and interests of the Agent and the Purchasers as assignees of Seller) under the
Receivables Sale Agreement as the Agent may from time to time reasonably
request, including, without limitation, making claims to which it may be
entitled under any indemnity, reimbursement or similar provision contained in
the Receivables Sale Agreement.
(h) Ownership. Seller will (or will cause the
Originators to) take all necessary action to (i) vest legal and equitable title
to the Receivables, the Related Security and the Collections purchased under the
Receivables Sale Agreement irrevocably in Seller, free and clear of any Adverse
Claims other than Adverse Claims in favor of the Agent and the Purchasers
(including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect Seller's interest in such
Receivables, Related Security and Collections and such other action to perfect,
protect or more fully evidence the interest of Seller therein as the Agent may
reasonably
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request), and (ii) establish and maintain, in favor of the Agent, for the
benefit of the Purchasers, a valid and perfected first priority undivided
percentage ownership interest (and/or a valid and perfected first priority
security interest) in all Receivables, Related Security and Collections to the
full extent contemplated herein, free and clear of any Adverse Claims other than
Adverse Claims in favor of the Agent for the benefit of the Purchasers
(including, without limitation, the filing of all financing statements or other
similar instruments or documents necessary under the UCC (or any comparable law)
of all appropriate jurisdictions to perfect the Agent's (for the benefit of the
Purchasers) interest in such Receivables, Related Security and Collections and
such other action to perfect, protect or more fully evidence the interest of the
Agent for the benefit of the Purchasers as the Agent may reasonably request).
(i) Purchasers' Reliance. Seller acknowledges that the
Purchasers are entering into the transactions contemplated by this Agreement in
reliance upon Seller's identity as a legal entity that is separate from Plexus.
Therefore, from and after the date of execution and delivery of this Agreement,
Seller shall take all reasonable steps, including, without limitation, all steps
that the Agent or any Purchaser may from time to time reasonably request, to
maintain Seller's identity as a separate legal entity and to make it manifest to
third parties that Seller is an entity with assets and liabilities distinct from
those of Plexus and any Affiliates thereof and not just a division of Plexus or
any such Affiliate. Without limiting the generality of the foregoing and in
addition to the other covenants set forth herein, Seller will:
(A) conduct its own business in its
own name and require that all full-time employees of Seller, if any,
identify themselves as such and not as employees of Plexus or any
Affiliate thereof (including, without limitation, by means of providing
appropriate employees with business or identification cards identifying
such employees as Seller's employees);
(B) compensate all employees,
consultants and agents directly, from Seller's own funds, for services
provided to Seller by such employees, consultants and agents and, to
the extent any employee, consultant or agent of Seller is also an
employee, consultant or agent of Plexus or any Affiliate thereof,
allocate the compensation of such employee, consultant or agent between
Seller and Plexus or such Affiliate, as applicable, on a basis that
reflects the services rendered to Seller and Plexus or such Affiliate,
as applicable;
(C) clearly identify its offices (by
signage or otherwise) as its offices and, if such office is located in
the offices of Plexus, Seller shall lease such office at a fair market
rent;
(D) have a separate telephone
number, which will be answered only in its name and separate
stationery, invoices and checks in its own name;
(E) conduct all transactions with
Plexus or any Affiliate thereof (including, without limitation, any
delegation by Plexus of its obligations hereunder as Servicer) strictly
on an arm's-length basis, and allocate all overhead expenses
(including, without limitation, telephone and other utility charges)
for items shared between Seller and Plexus or any Affiliate thereof on
the basis of actual use to the extent practicable and, to the extent
such allocation is not practicable, on a basis reasonably related to
actual use;
(F) at all times have a Board of
Directors consisting of at least three members, at least one member of
which is an Independent Director;
(G) observe all corporate
formalities as a distinct entity, and ensure that all corporate actions
relating to (A) the selection, maintenance or replacement of the
Independent Director, (B) the dissolution or liquidation of Seller or
(C) the initiation of,
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participation in, acquiescence in or consent to any bankruptcy,
insolvency, reorganization or similar proceeding involving Seller, are
duly authorized by unanimous vote of its Board of Directors (including
the Independent Director);
(H) maintain Seller's books and
records separate from those of Plexus and any Affiliate thereof and
otherwise readily identifiable as its own assets rather than assets of
Plexus and any Affiliate thereof;
(I) prepare its financial statements
separately from those of Plexus and insure that any consolidated
financial statements of Plexus or any Affiliate thereof that include
Seller and that are filed with the Securities and Exchange Commission
or any other governmental agency have notes clearly stating that Seller
is a separate corporate entity and that its assets will be available
first and foremost to satisfy the claims of the creditors of Seller;
(J) except as herein specifically
otherwise provided, maintain the funds or other assets of Seller
separate from, and not commingled with, those of Plexus or any
Affiliate thereof and only maintain bank accounts or other depository
accounts to which Seller alone is the account party, into which Seller
alone makes deposits and from which Seller alone (or the Agent
hereunder) has the power to make withdrawals;
(K) pay all of Seller's operating
expenses from Seller's own assets (except for certain payments by
Plexus or any Affiliate thereof pursuant to allocation arrangements
that comply with the requirements of this Section 7.1(i));
(L) operate its business and
activities such that: it does not engage in any business or activity of
any kind, or enter into any transaction or indenture, mortgage,
instrument, agreement, contract, lease or other undertaking, other than
the transactions contemplated and authorized by this Agreement and the
Receivables Sale Agreement; and does not create, incur, guarantee,
assume or suffer to exist any indebtedness or other liabilities,
whether direct or contingent, other than (1) as a result of the
endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business, (2) the
incurrence of obligations under this Agreement, (3) the incurrence of
obligations, as expressly contemplated in the Receivables Sale
Agreement, to make payment to each Originator thereunder for the
purchase of Receivables from such Originator under the Receivables Sale
Agreement, and (4) the incurrence of operating expenses in the ordinary
course of business of the type otherwise contemplated by this
Agreement;
(M) maintain its corporate charter
in conformity with this Agreement, such that it does not amend,
restate, supplement or otherwise modify its Certificate of
Incorporation or By-Laws in any respect that would impair its ability
to comply with the terms or provisions of any of the Transaction
Documents, including, without limitation, Section 7.1(i) of this
Agreement;
(N) maintain the effectiveness of,
and continue to perform under the Receivables Sale Agreement, such that
it does not amend, restate, supplement, cancel, terminate or otherwise
modify the Receivables Sale Agreement, or give any consent, waiver,
directive or approval thereunder or waive any default, action, omission
or breach under the Receivables Sale Agreement or otherwise grant any
indulgence thereunder, without (in each case) the prior written consent
of the Agent;
(O) maintain its corporate
separateness such that it does not merge or consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether
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in one transaction or in a series of transactions, and except as
otherwise contemplated herein) all or substantially all of its assets
(whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets of, any Person, nor at any time create,
have, acquire, maintain or hold any interest in any Subsidiary;
(P) maintain at all times the
Required Capital Amount (as defined in the Receivables Sale Agreement)
and refrain from making any dividend, distribution, redemption of
capital stock or payment of any subordinated indebtedness that would
cause the Required Capital Amount to cease to be so maintained; and
(Q) take such other actions as are
necessary on its part to ensure that the facts and assumptions set
forth in the opinion issued by Xxxxxxx & Xxxxx LLP, as counsel for
Seller, in connection with the closing or initial Incremental Purchase
under this Agreement and relating to substantive consolidation issues,
and in the certificates accompanying such opinion, remain true and
correct in all material respects at all times.
(j) Collections. Such Seller Party will cause (1) all
proceeds from all Lock-Boxes to be directly deposited to a bank account (A) for
so long as no Amortization Event has occurred and is continuing, in the name of
Plexus or an Affiliate thereof (a "Plexus Account") and (B) upon the occurrence
and during the continuance of an Amortization Event, if so required by the
Agent, to a bank account designated by the Agent (a "Designated Account"), and
(2) each Lock-Box to be subject at all times to a Lock-Box Agreement that is in
full force and effect. In the event any payments relating to Receivables are
remitted directly to Seller or any Affiliate of Seller, Seller will remit (or
will cause all such payments to be remitted) (X) for so long as no Amortization
Event has occurred and is continuing, to a Plexus Account and (Y) upon the
occurrence and during the continuance of an Amortization Event, to a Designated
Account, in each case within two (2) Business Days following receipt thereof.
Seller will maintain exclusive ownership, dominion and control (subject to the
terms of this Agreement) of each Lock-Box and shall not grant the right to take
dominion and control of any Lock-Box at a future time or upon the occurrence of
a future event to any Person, except to the Agent as contemplated by this
Agreement.
(k) Taxes. Such Seller Party will file all tax
returns and reports required by law to be filed by it and will promptly pay all
taxes and governmental charges at any time owing, except any such taxes which
are not yet delinquent or are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books. Seller will pay when due any taxes
payable in connection with the Receivables, exclusive of taxes on or measured by
income or gross receipts of Company, the Agent or any Financial Institution.
(l) Insurance. Seller will maintain in effect, or
cause to be maintained in effect, at Seller's own expense, such casualty and
liability insurance as Seller shall deem appropriate in its good faith business
judgment. The foregoing requirements shall not be construed to negate, reduce or
modify, and are in addition to, Seller's obligations hereunder.
(m) Payments to Originators. With respect to any
Receivable purchased by Seller from an Originator, such sale shall be effected
under, and in strict compliance with the terms of, the Receivables Sale
Agreement, including, without limitation, the terms relating to the amount and
timing of payments to be made to such Originator in respect of the purchase
price for such Receivable.
(n) GECC UCC Filings. Seller will use its reasonable
best efforts to cause EAC to obtain and file UCC-3 Termination Statements in the
State of Wisconsin for each of the GECC UCC Filings as soon as practicable
following the date hereof.
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Section 7.2 Negative Covenants of the Seller Parties. Until
the date on which the Aggregate Unpaids have been indefeasibly paid in full and
this Agreement terminates in accordance with its terms, each Seller Party hereby
covenants, as to itself, that:
(a) Name Change, Offices and Records. Such Seller
Party will not change its name, identity or corporate structure (within the
meaning of Section 9-402(7) of any applicable enactment of the UCC) or relocate
its chief executive office or any office where Records are kept unless it shall
have: (i) given the Agent at least thirty (30) days' prior written notice
thereof and (ii) delivered to the Agent all financing statements, instruments
and other documents requested by the Agent in connection with such change or
relocation.
(b) Change in Payment Instructions to Obligors.
Except as may be required by the Agent pursuant to Section 8.2(b), such Seller
Party will not add or terminate any Lock-Box, or make any change in the
instructions to Obligors regarding payments to be made to any Lock-Box, unless
the Agent shall have received, at least ten (10) days before the proposed
effective date therefor, (i) written notice of such addition, termination or
change and (ii) with respect to the addition of a Lock-Box, an executed Lock-Box
Agreement with respect to the new Lock-Box; provided, however, that the Servicer
may make changes in instructions to Obligors regarding payments if such new
instructions require such Obligor to make payments to another existing Lock-Box
that is then subject to a Lock-Box Agreement.
(c) Modifications to Contracts and Credit and
Collection Policy. Such Seller Party will not, and will not permit any
Originator to, make any change to the Credit and Collection Policy that could
adversely affect the collectibility of the Receivables or decrease the credit
quality of any newly created Receivables without the Agent's prior written
consent. Except as provided in Section 8.2(d), the Servicer will not, and will
not permit any Originator to, extend, amend or otherwise modify the terms of any
Receivable or any Contract related thereto other than in accordance with the
Credit and Collection Policy.
(d) Sales, Liens. Seller will not sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, or create or suffer to exist any Adverse Claim upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Receivable, Related Security or Collections, or upon or with respect to any
Contract under which any Receivable arises, or any Lock-Box, or assign any
right to receive income with respect thereto (other than, in each case, the
creation of the interests therein in favor of the Agent and the Purchasers
provided for herein), and Seller will defend the right, title and interest of
the Agent and the Purchasers in, to and under any of the foregoing property,
against all claims of third parties claiming through or under Seller or any
Originator. Seller will not create or suffer to exist any mortgage, pledge,
security interest, encumbrance, lien, charge or other similar arrangement on any
of its inventory, the financing or lease of which gives rise to any Receivable.
(e) Net Receivables Balance. At no time prior to the
Amortization Date shall Seller permit the Net Receivables Balance to be less
than an amount equal to the sum of (i) the Aggregate Capital plus (ii) the
Aggregate Reserves.
(f) Termination Date Determination. Seller will not
designate the Termination Date (as defined in the Receivables Sale Agreement),
or send any written notice to any Originator in respect thereof, without the
prior written consent of the Agent, except with respect to the occurrence of
such Termination Date arising pursuant to Section 5.1(d) of the Receivables Sale
Agreement.
(g) Restricted Junior Payments. From and after the
occurrence of any Amortization Event, Seller will not make any Restricted Junior
Payment if, after giving effect thereto, Seller would fail to meet its
obligations set forth in Section 7.2(e).
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ARTICLE VIII
ADMINISTRATION AND COLLECTION
Section 8.1 Designation of Servicer. (a) The servicing,
administration and collection of the Receivables shall be conducted by such
Person (the "Servicer") so designated from time to time in accordance with this
Section 8.1. Plexus is hereby designated as, and hereby agrees to perform the
duties and obligations of, the Servicer pursuant to the terms of this Agreement.
The Agent may, at any time following the occurrence of an Amortization Event,
designate as Servicer any Person to succeed Plexus or any successor Servicer.
(b) Without the prior written consent of the Agent
and the Required Financial Institutions, Plexus shall not be permitted to
delegate any of its duties or responsibilities as Servicer to any Person other
than (i) Seller and (ii) with respect to certain Charged-Off Receivables,
outside collection agencies in accordance with its customary practices. Seller
shall not be permitted to further delegate to any other Person any of the duties
or responsibilities of the Servicer delegated to it by Plexus. If at any time
the Agent shall designate as Servicer any Person other than Plexus, all duties
and responsibilities theretofore delegated by Plexus to Seller may, at the
discretion of the Agent, be terminated forthwith on notice given by the Agent to
Plexus and to Seller.
(c) Notwithstanding the foregoing subsection (b), (i)
Plexus shall be and remain primarily liable to the Agent and the Purchasers for
the full and prompt performance of all duties and responsibilities of the
Servicer hereunder and (ii) the Agent and the Purchasers shall be entitled to
deal exclusively with Plexus in matters relating to the discharge by the
Servicer of its duties and responsibilities hereunder. The Agent and the
Purchasers shall not be required to give notice, demand or other communication
to any Person other than Plexus in order for communication to the Servicer and
its sub-servicer or other delegate with respect thereto to be accomplished.
Plexus, at all times that it is the Servicer, shall be responsible for providing
any sub-servicer or other delegate of the Servicer with any notice given to the
Servicer under this Agreement.
Section 8.2 Duties of Servicer. (a) The Servicer shall take or
cause to be taken all such actions as may be necessary or advisable to collect
each Receivable from time to time, all in accordance with applicable laws, rules
and regulations, with reasonable care and diligence, and in accordance with the
Credit and Collection Policy.
(b) The Servicer will instruct all Obligors to pay
all Collections directly to a Lock-Box. The Servicer shall effect a Lock-Box
Agreement substantially in the form of Exhibit VI with respect to each Lock-Box
into which Collections are paid. In the case of any remittances received in any
Lock-Box that shall have been identified, to the satisfaction of the Servicer,
to not constitute Collections or other proceeds of the Receivables or the
Related Security, the Servicer shall promptly remit such items to the Person
identified to it as being the owner of such remittances. From and after the date
the Agent delivers a Lock-Box Notice pursuant to Section 8.3, the Agent may
request that the Servicer, and the Servicer thereupon promptly shall instruct
all Obligors with respect to the Receivables, to remit all payments thereon to a
new Lock-Box or to a Designated Account and, at all times thereafter, Seller and
the Servicer shall not deposit or otherwise credit, and shall not permit any
other Person to deposit or otherwise credit to such new Lock-Box or such
Designated Account any cash or payment item other than Collections.
(c) The Servicer shall administer the Collections in
accordance with the procedures described herein and in Article II. The Servicer
shall set aside and hold in trust for the account of Seller and the Purchasers
their respective shares of the Collections in accordance with Article II. The
Servicer shall, upon the request of the Agent, segregate, in a manner acceptable
to the Agent, all cash, checks and other instruments received by it from time to
time constituting Collections from the general funds of the Servicer or Seller
prior to the remittance thereof in accordance with Article II. If the Servicer
shall be required to segregate Collections pursuant to the preceding sentence,
the Servicer shall segregate and deposit with a bank designated by the Agent
such allocable share of Collections of Receivables set aside for the Purchasers
on the first Business Day following receipt by the Servicer of such Collections,
duly endorsed or with duly executed instruments of transfer.
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(d) The Servicer may, in accordance with the Credit
and Collection Policy, extend the maturity of any Receivable or adjust the
Outstanding Balance of any Receivable as the Servicer determines to be
appropriate to maximize Collections thereof; provided, however, that such
extension or adjustment shall not alter the status of such Receivable as a
Charged-Off Receivable or limit the rights of the Agent or the Purchasers under
this Agreement. Notwithstanding anything to the contrary contained herein, the
Agent shall have the absolute and unlimited right to direct the Servicer to
commence or settle any legal action with respect to any Receivable or to
foreclose upon or repossess any Related Security.
(e) The Servicer shall hold in trust for Seller and
the Purchasers all Records that (i) evidence or relate to the Receivables, the
related Contracts and Related Security or (ii) are otherwise necessary or
desirable to collect the Receivables and shall, as soon as practicable upon
demand of the Agent, deliver or make available to the Agent all such Records, at
a place selected by the Agent. The Servicer shall, as soon as practicable
following receipt thereof turn over to Seller any cash collections or other cash
proceeds received with respect to Indebtedness not constituting Receivables. The
Servicer shall, from time to time at the request of any Purchaser, furnish to
the Purchasers (promptly after any such request) a calculation of the amounts
set aside for the Purchasers pursuant to Article II.
(f) Any payment by an Obligor in respect of any
indebtedness owed by it to any Originator or Seller shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Agent, be applied as a Collection of any Receivable
of such Obligor (starting with the oldest such Receivable) to the extent of any
amounts then due and payable thereunder before being applied to any other
receivable or other obligation of such Obligor.
Section 8.3 Collection Notices. The Agent is authorized at any
time to date and to deliver to the Lock-Box Processor of any Lock-Box a Lock-Box
Notice. Seller hereby transfers to the Agent for the benefit of the Purchasers,
effective when the Agent delivers such notice, the exclusive ownership and
control of each Lock-Box. In case any authorized signatory of Seller whose
signature appears on a Lock-Box Agreement shall cease to have such authority
before the delivery of such notice, such Lock-Box Notice shall nevertheless be
valid as if such authority had remained in force. Seller hereby authorizes the
Agent, and agrees that the Agent shall be entitled to (i) endorse Seller's name
on checks and other instruments representing Collections, (ii) enforce the
Receivables, the related Contracts and the Related Security and (iii) take such
action as shall be necessary or desirable to cause all cash, checks and other
instruments constituting Collections of Receivables to come into the possession
of the Agent rather than Seller.
Section 8.4 Responsibilities of Seller. Anything herein to the
contrary notwithstanding, the exercise by the Agent and the Purchasers of their
rights hereunder shall not release the Servicer, any Originator or Seller from
any of their duties or obligations with respect to any Receivables or under the
related Contracts. The Purchasers shall have no obligation or liability with
respect to any Receivables or related Contracts, nor shall any of them be
obligated to perform the obligations of Seller.
Section 8.5 Reports. The Servicer shall prepare and forward to
the Agent (i) on the 15th day of each month or, if such day is not a Business
Day, on the next Business Day thereafter, and at such times as the Agent shall
request, a Monthly Report and (ii) at such times as the Agent shall request, a
listing by Obligor of all Receivables together with an aging of such
Receivables.
Section 8.6 Servicing Fees. In consideration of Plexus's
agreement to act as Servicer hereunder, the Purchasers hereby agree that, so
long as Plexus shall continue to perform as Servicer hereunder, Seller shall pay
over to Plexus a fee (the "Servicing Fee") on the first calendar day of each
month, in arrears for the immediately preceding month, not to exceed 3% per
annum of the average Net Receivables Balance outstanding during such period, as
compensation for its servicing activities.
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ARTICLE IX
AMORTIZATION EVENTS
Section 9.1 Amortization Events. The occurrence of any one or
more of the following events shall constitute an Amortization Event:
(a) Any Seller Party shall fail (i) to make any
payment or deposit required hereunder when due, or (ii) to perform or observe
any term, covenant or agreement hereunder (other than as referred to in clause
(i) of this paragraph (a) and paragraph 9.1(e)) and such failure shall continue
for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or
statement made by any Seller Party in this Agreement, any other Transaction
Document or in any other document delivered pursuant hereto or thereto shall
prove to have been incorrect when made or deemed made.
(c) Failure of Seller to pay any Indebtedness when
due or the failure of any other Seller Party to pay Indebtedness when due; or
the default by any Seller Party in the performance of any term, provision or
condition contained in any agreement under which any such Indebtedness was
created or is governed, the effect of which, in each case, is to cause such
Indebtedness to become due prior to its stated maturity; or any such
Indebtedness of any Seller Party shall be declared to be due and payable or
required to be prepaid (other than by a regularly scheduled payment) prior to
the date of maturity thereof.
(d) (i) Any Seller Party or any of its Subsidiaries
shall generally not pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or shall make a general
assignment for the benefit of creditors; or (ii) any proceeding shall be
instituted by or against any Seller Party or any of its Subsidiaries seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or any
substantial part of its property or (iii) any Seller Party or any of its
Subsidiaries shall take any corporate action to authorize any of the actions set
forth in clauses (i) or (ii) above in this subsection (d).
(e) Seller shall fail to comply with the terms of
Section 2.6 hereof.
(f) As at the end of any calendar month, (i) the
Liquidation Period for each of the two most recently-ended calendar months shall
exceed 50 days, or (ii) the average Open Debit Memo Ratios for the three most
recently-ended calendar months shall exceed 5.25%.
(g) The default by Plexus under its obligations under
Section 6.1(a), (b) or (c) of that certain Amended and Restated Credit Agreement
dated as of June 15, 2000, by and among Plexus, as borrower, and Firstar Bank,
National Association, Xxxxxx Trust & Savings Bank and Bank One, NA, as lenders,
(i) as in effect on the date hereof or (ii) if amended, restated or otherwise
modified from time to time (including any revolving credit facility replacing
the foregoing Credit Agreement) so long as (A) Bank One is a lender under the
terms of such Credit Agreement or credit facility and (B) Bank One has consented
to any such replacement credit facility and to any such amendment, restatement
or other modification under such Credit Agreement or replacement credit facility
in its capacity as a lender thereunder.
(h) A Change of Control shall occur.
(i) (i) One or more final judgments for the payment
of money shall be entered against Seller or (ii) one or more final judgments for
the payment of money in an amount in excess of $5,000,000, individually or in
the aggregate, shall be entered against the Servicer on claims not covered by
insurance or as to
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which the insurance carrier has denied its responsibility, and such judgment
shall continue unsatisfied and in effect for fifteen (15) consecutive days
without a stay of execution.
(j) The "Termination Date" under and as defined in
the Receivables Sale Agreement shall occur under the Receivables Sale Agreement
or the Seller, or any Originator shall fail to observe any term or condition of
the Sale Agreement, or the Seller shall waive its right to enforce the terms and
conditions of the Sale Agreement, or any Originator shall for any reason cease
to transfer, or cease to have the legal capacity to transfer, or otherwise be
incapable of transferring Receivables to Seller under the Receivables Sale
Agreement.
(k) This Agreement shall terminate in whole or in
part (except in accordance with its terms), or shall cease to be effective or to
be the legally valid, binding and enforceable obligation of Seller, or any
Obligor shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability, or the Agent for the benefit of the
Purchasers shall cease to have a valid and perfected first priority security
interest in the Receivables, the Related Security and the Collections with
respect thereto, the Related Equipment and the Lock-Boxes.
Section 9.2 Remedies. Upon the occurrence and during the
continuation of an Amortization Event, the Agent may, or upon the direction of
the Required Financial Institutions shall, take any of the following actions:
(i) replace the Person then acting as Servicer, (ii) declare the Amortization
Date to have occurred, whereupon the Amortization Date shall forthwith occur,
without demand, protest or further notice of any kind, all of which are hereby
expressly waived by each Seller Party; provided, however, that upon the
occurrence of an Amortization Event described in Section 9.1(d)(ii), or of an
actual or deemed entry of an order for relief with respect to any Seller Party
under the Federal Bankruptcy Code, the Amortization Date shall automatically
occur, without demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Seller Party, (iii) to the fullest extent
permitted by applicable law, declare that the Default Fee shall accrue with
respect to any of the Aggregate Unpaids outstanding at such time, (iv) deliver
the Lock-Box Notices to the Lock-Box Processors of any or all of the Lock-Boxes,
and (v) notify Obligors of the Purchasers' interest in the Receivables. The
aforementioned rights and remedies shall be without limitation, and shall be in
addition to all other rights and remedies of the Agent and the Purchasers
otherwise available under any other provision of this Agreement, by operation of
law, at equity or otherwise, all of which are hereby expressly preserved,
including, without limitation, all rights and remedies provided under the UCC,
all of which rights shall be cumulative.
ARTICLE X
INDEMNIFICATION
Section 10.1 Indemnities by The Seller Parties. Without
limiting any other rights that the Agent or any Purchaser may have hereunder or
under applicable law, (A) Seller hereby agrees to indemnify (and pay upon demand
to) the Agent and each Purchaser and their respective assigns, officers,
directors, agents and employees (each an "Indemnified Party") from and against
any and all damages, losses, claims, taxes, liabilities, costs, expenses and for
all other amounts payable, including reasonable attorneys' fees (which attorneys
may be employees of the Agent or such Purchaser) and disbursements (all of the
foregoing being collectively referred to as "Indemnified Amounts") awarded
against or incurred by any of them arising out of or as a result of this
Agreement or the acquisition, either directly or indirectly, by a Purchaser of
an interest in the Receivables, and (B) the Servicer hereby agrees to indemnify
(and pay upon demand to) each Indemnified Party for Indemnified Amounts awarded
against or incurred by any of them arising out of the Servicer's activities as
Servicer hereunder excluding, however, in all of the foregoing instances under
the preceding clauses (A) and (B):
(i) Indemnified Amounts to the
extent a final judgment of a court of competent jurisdiction holds that
such Indemnified Amounts resulted from bad faith, gross negligence or
willful misconduct on the part of the Indemnified Party seeking
indemnification;
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(ii) Indemnified Amounts to the
extent the same includes losses in respect of Receivables that are
uncollectible on account of the insolvency, bankruptcy or lack of
creditworthiness of the related Obligor; or
(iii) taxes imposed by the
jurisdiction in which such Indemnified Party's principal executive
office is located, on or measured by the overall net income of such
Indemnified Party to the extent that the computation of such taxes is
consistent with the characterization for income tax purposes of the
acquisition by the Purchasers of Purchaser Interests as a loan or loans
by the Purchasers to Seller secured by the Receivables, the Related
Security, the Lock-Boxes and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Seller Party or limit the recourse of the Purchasers to any
Seller Party for amounts otherwise specifically provided to be paid by such
Seller Party under the terms of this Agreement. Without limiting the generality
of the foregoing indemnification, Seller shall indemnify each Indemnified Party
for Indemnified Amounts (including, without limitation, losses in respect of
uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to Seller or the Servicer) relating to or resulting from:
(i) any representation or warranty
made by any Seller Party or any Originator (or any officers of any such
Person) under or in connection with this Agreement, any other
Transaction Document or any other information or report delivered by
any such Person pursuant hereto or thereto, which shall have been false
or incorrect when made or deemed made;
(ii) the failure by Seller, the
Servicer or any Originator to comply with any applicable law, rule or
regulation with respect to any Receivable or Contract related thereto,
or the nonconformity of any Receivable or Contract included therein
with any such applicable law, rule or regulation or any failure of any
Originator to keep or perform any of its obligations, express or
implied, with respect to any Contract;
(iii) any failure of Seller, the
Servicer or either any Originator to perform its duties, covenants or
other obligations in accordance with the provisions of this Agreement
or any other Transaction Document;
(iv) any products liability,
personal injury or damage suit, or other similar claim arising out of
or in connection with merchandise, insurance or services that are the
subject of any Contract or any Receivable;
(v) any dispute, claim, offset or
defense (other than discharge in bankruptcy of the Obligor) of the
Obligor to the payment of any Receivable (including, without
limitation, a defense based on such Receivable or the related Contract
not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms), or any other
claim resulting from the sale of the merchandise or service related to
such Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) the commingling of Collections
of Receivables at any time with other funds;
(vii) any investigation, litigation
or proceeding related to or arising from this Agreement or any other
Transaction Document, the transactions contemplated hereby, the use of
the proceeds of an Incremental Purchase or a Reinvestment, the
ownership of
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the Purchaser Interests or any other investigation, litigation or
proceeding relating to Seller, the Servicer or any Originator in which
any Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
(viii) any inability to litigate any
claim against any Obligor in respect of any Receivable as a result of
such Obligor being immune from civil and commercial law and suit on the
grounds of sovereignty or otherwise from any legal action, suit or
proceeding;
(ix) any Amortization Event
described in Section 9.1(d);
(x) any failure of Seller to acquire
and maintain legal and equitable title to, and ownership of any
Receivable and the Related Security and Collections with respect
thereto from the Originator of such Receivable, free and clear of any
Adverse Claim (other than as created hereunder); or any failure of
Seller to give reasonably equivalent value to the Originator of any
Receivable under the Receivables Sale Agreement in consideration of the
transfer by such Originator of such Receivable, or any attempt by any
Person to void such transfer under statutory provisions or common law
or equitable action;
(xi) any failure to vest and
maintain vested in the Agent for the benefit of the Purchasers, or to
transfer to the Agent for the benefit of the Purchasers, legal and
equitable title to, and ownership of, a first priority perfected
undivided percentage ownership interest (to the extent of the Purchaser
Interests contemplated hereunder) or security interest in the
Receivables, the Related Security and the Collections, free and clear
of any Adverse Claim (except as created by the Transaction Documents);
(xii) the failure to have filed, or
any delay in filing, financing statements or other similar instruments
or documents under the UCC of any applicable jurisdiction or other
applicable laws with respect to any Receivable, the Related Security
and Collections with respect thereto, and the proceeds of any thereof,
whether at the time of any Incremental Purchase or Reinvestment or at
any subsequent time;
(xiii) any action or omission by any
Seller Party that reduces or impairs the rights of the Agent or the
Purchasers with respect to any Receivable or the value of any such
Receivable;
(xiv) any attempt by any Person to
void any Incremental Purchase or Reinvestment hereunder under statutory
provisions or common law or equitable action; and
(xv) the failure of any Receivable
included in the calculation of the Net Receivables Balance as an
Eligible Receivable to be an Eligible Receivable at the time so
included.
Section 10.2 Increased Cost and Reduced Return.
If after the date hereof, any Funding Source shall be charged
any fee, expense or increased cost on account of the adoption of any applicable
law, rule or regulation (including any applicable law, rule or regulation
regarding capital adequacy) or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency (a
"Regulatory Change"): (i) that subjects any Funding Source to any charge or
withholding on or with respect to any Funding Agreement or a Funding Source's
obligations under a Funding
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Agreement, or on or with respect to the Receivables, or changes the basis of
taxation of payments to any Funding Source of any amounts payable under any
Funding Agreement (except for changes in the rate of tax on the overall net
income of a Funding Source or taxes excluded by Section 10.1) or (ii) that
imposes, modifies or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirement against assets of, deposits with or for
the account of a Funding Source, or credit extended by a Funding Source pursuant
to a Funding Agreement or (iii) that imposes any other condition the result of
which is to increase the cost to a Funding Source of performing its obligations
under a Funding Agreement, or to reduce the rate of return on a Funding Source's
capital as a consequence of its obligations under a Funding Agreement, or to
reduce the amount of any sum received or receivable by a Funding Source under a
Funding Agreement or to require any payment calculated by reference to the
amount of interests or loans held or interest received by it, then, upon 15
days' prior written notice by the Agent to Seller (which notice shall be
accompanied by a statement setting forth in reasonable detail the basis of such
increased cost or other effect on the rate of return on capital), Seller shall
pay to the Agent, for the benefit of the relevant Funding Source, such amounts
charged to such Funding Source or such amounts to otherwise compensate such
Funding Source for such increased cost or such reduction.
Section 10.3 Other Costs and Expenses. Seller shall pay to the
Agent and Company on demand all costs and out-of-pocket expenses in connection
with the preparation, execution, delivery and administration of this Agreement,
the transactions contemplated hereby and the other documents to be delivered
hereunder, including without limitation, the cost of Company's auditors auditing
the books, records and procedures of Seller, reasonable fees and out-of-pocket
expenses of legal counsel for Company and the Agent (which such counsel may be
employees of Company or the Agent) with respect thereto and with respect to
advising Company and the Agent as to their respective rights and remedies under
this Agreement. Seller shall pay to the Agent on demand any and all costs and
expenses of the Agent and the Purchasers, if any, including reasonable counsel
fees and expenses in connection with the enforcement of this Agreement and the
other documents delivered hereunder and in connection with any restructuring or
workout of this Agreement or such documents, or the administration of this
Agreement following an Amortization Event.
ARTICLE XI
THE AGENT
Section 11.1 Authorization and Action. Each Purchaser hereby
designates and appoints Bank One to act as its agent hereunder and under each
other Transaction Document, and authorizes the Agent to take such actions as
agent on its behalf and to exercise such powers as are delegated to the Agent by
the terms of this Agreement and the other Transaction Documents together with
such powers as are reasonably incidental thereto. The Agent shall not have any
duties or responsibilities, except those expressly set forth herein or in any
other Transaction Document, or any fiduciary relationship with any Purchaser,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Agent shall be read into this Agreement or any
other Transaction Document or otherwise exist for the Agent. In performing its
functions and duties hereunder and under the other Transaction Documents, the
Agent shall act solely as agent for the Purchasers and does not assume nor shall
be deemed to have assumed any obligation or relationship of trust or agency with
or for any Seller Party or any of such Seller Party's successors or assigns. The
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to this Agreement, any other Transaction
Document or applicable law. The appointment and authority of the Agent hereunder
shall terminate upon the indefeasible payment in full of all Aggregate Unpaids.
Each Purchaser hereby authorizes the Agent to execute each of the Uniform
Commercial Code financing statements on behalf of such Purchaser (the terms of
which shall be binding on such Purchaser).
Section 11.2 Delegation of Duties. The Agent may execute any
of its duties under this Agreement and each other Transaction Document by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
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Section 11.3 Exculpatory Provisions. Neither the Agent nor any
of its directors, officers, agents or employees shall be (i) liable for any
action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Transaction Document (except for
its, their or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Purchasers for any recitals, statements,
representations or warranties made by any Seller Party contained in this
Agreement, any other Transaction Document or any certificate, report, statement
or other document referred to or provided for in, or received under or in
connection with, this Agreement, or any other Transaction Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, or any other Transaction Document or any other document
furnished in connection herewith or therewith, or for any failure of any Seller
Party to perform its obligations hereunder or thereunder, or for the
satisfaction of any condition specified in Article VI, or for the perfection,
priority, condition, value or sufficiency of any collateral pledged in
connection herewith. The Agent shall not be under any obligation to any
Purchaser to ascertain or to inquire as to the observance or performance of any
of the agreements or covenants contained in, or conditions of, this Agreement or
any other Transaction Document, or to inspect the properties, books or records
of the Seller Parties. The Agent shall not be deemed to have knowledge of any
Amortization Event or Potential Amortization Event unless the Agent has received
notice from Seller or a Purchaser.
Section 11.4 Reliance by Agent. The Agent shall in all cases
be entitled to rely, and shall be fully protected in relying, upon any document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to Seller),
independent accountants and other experts selected by the Agent. The Agent shall
in all cases be fully justified in failing or refusing to take any action under
this Agreement or any other Transaction Document unless it shall first receive
such advice or concurrence of Company or the Required Financial Institutions or
all of the Purchasers, as applicable, as it deems appropriate and it shall first
be indemnified to its satisfaction by the Purchasers, provided that unless and
until the Agent shall have received such advice, the Agent may take or refrain
from taking any action, as the Agent shall deem advisable and in the best
interests of the Purchasers. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of Company or
the Required Financial Institutions or all of the Purchasers, as applicable, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Purchasers.
Section 11.5 Non-Reliance on Agent and Other Purchasers. Each
Purchaser expressly acknowledges that neither the Agent, nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agent hereafter
taken, including, without limitation, any review of the affairs of any Seller
Party, shall be deemed to constitute any representation or warranty by the
Agent. Each Purchaser represents and warrants to the Agent that it has and will,
independently and without reliance upon the Agent or any other Purchaser and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of Seller and
made its own decision to enter into this Agreement, the other Transaction
Documents and all other documents related hereto or thereto.
Section 11.6 Reimbursement and Indemnification. The Financial
Institutions agree to reimburse and indemnify the Agent and its officers,
directors, employees, representatives and agents ratably according to their Pro
Rata Shares, to the extent not paid or reimbursed by the Seller Parties (i) for
any amounts for which the Agent, acting in its capacity as Agent, is entitled to
reimbursement by the Seller Parties hereunder and (ii) for any other expenses
incurred by the Agent, in its capacity as Agent and acting on behalf of the
Purchasers, in connection with the administration and enforcement of this
Agreement and the other Transaction Documents.
Section 11.7 Agent in its Individual Capacity. The Agent and
its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with Seller or any Affiliate of Seller as though the Agent
were not the Agent hereunder. With respect to the acquisition of Purchaser
Interests pursuant to this Agreement, the Agent shall have the same rights and
powers under this Agreement in its individual capacity as any
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Purchaser and may exercise the same as though it were not the Agent, and the
terms "Financial Institution," "Purchaser," "Financial Institutions" and
"Purchasers" shall include the Agent in its individual capacity.[OMEGA]1
Section 11.8 Successor Agent. The Agent may, upon five days'
notice to Seller and the Purchasers, and the Agent will, upon the direction of
all of the Purchasers (other than the Agent, in its individual capacity) resign
as Agent. If the Agent shall resign, then the Required Financial Institutions
during such five-day period shall appoint from among the Purchasers a successor
agent. If for any reason no successor Agent is appointed by the Required
Financial Institutions during such five-day period, then effective upon the
termination of such five day period, the Purchasers shall perform all of the
duties of the Agent hereunder and under the other Transaction Documents and
Seller and the Servicer (as applicable) shall make all payments in respect of
the Aggregate Unpaids directly to the applicable Purchasers and for all purposes
shall deal directly with the Purchasers. After the effectiveness of any retiring
Agent's resignation hereunder as Agent, the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Transaction
Documents and the provisions of this Article XI and Article X shall continue in
effect for its benefit with respect to any actions taken or omitted to be taken
by it while it was Agent under this Agreement and under the other Transaction
Documents.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS
Section 12.1 Assignments. (a) Seller and each Financial
Institution hereby agree and consent to the complete or partial assignment by
Company of all or any portion of its rights under, interest in, title to and
obligations under this Agreement to the Financial Institutions pursuant to
Section 13.1 or to any other Person, and upon such assignment, Company shall be
released from its obligations so assigned. Further, Seller and each Financial
Institution hereby agree that any assignee of Company of this Agreement or all
or any of the Purchaser Interests of Company shall have all of the rights and
benefits under this Agreement as if the term "Company" explicitly referred to
such party, and no such assignment shall in any way impair the rights and
benefits of Company hereunder. Neither Seller nor the Servicer shall have the
right to assign its rights or obligations under this Agreement.
(b) Any Financial Institution may at any time and
from time to time assign to one or more Persons ("Purchasing Financial
Institutions") all or any part of its rights and obligations under this
Agreement pursuant to an assignment agreement, substantially in the form set
forth in Exhibit VII hereto (the "Assignment Agreement") executed by such
Purchasing Financial Institution and such selling Financial Institution. The
consent of Company shall be required prior to the effectiveness of any such
assignment. Each assignee of a Financial Institution must (i) have a short-term
debt rating of A-1 or better by Standard & Poor's Ratings Group and P-1 by
Xxxxx'x Investor Service, Inc. and (ii) agree to deliver to the Agent, promptly
following any request therefor by the Agent or Company, an enforceability
opinion in form and substance satisfactory to the Agent and Company. Upon
delivery of the executed Assignment Agreement to the Agent, such selling
Financial Institution shall be released from its obligations hereunder to the
extent of such assignment. Thereafter the Purchasing Financial Institution shall
for all purposes be a Financial Institution party to this Agreement and shall
have all the rights and obligations of a Financial Institution under this
Agreement to the same extent as if it were an original party hereto and no
further consent or action by Seller, the Purchasers or the Agent shall be
required.
(c) Each of the Financial Institutions agrees that in
the event that it shall cease to have a short-term debt rating of A-1 or better
by Standard & Poor's Ratings Group and P-1 by Xxxxx'x Investor Service, Inc. (an
"Affected Financial Institution"), such Affected Financial Institution shall be
obliged, at the request of Company or the Agent, to assign all of its rights and
obligations hereunder to (x) another Financial Institution or (y) another
funding entity nominated by the Agent and acceptable to Company, and willing to
participate in this Agreement through the Liquidity Termination Date in the
place of such Affected Financial Institution; provided that the Affected
Financial Institution receives payment in full, pursuant to an Assignment
Agreement, of an amount equal to such Financial Institution's Pro Rata Share of
the Aggregate Capital and Yield owing to the Financial
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Institutions and all accrued but unpaid fees and other costs and expenses
payable in respect of its Pro Rata Share of the Purchaser Interests of the
Financial Institutions.
Section 12.2 Participations. Any Financial Institution may, in
the ordinary course of its business at any time sell to one or more Persons
(each a "Participant") participating interests in its Pro Rata Share of the
Purchaser Interests of the Financial Institutions, its obligation to pay Company
its Acquisition Amounts or any other interest of such Financial Institution
hereunder. Notwithstanding any such sale by a Financial Institution of a
participating interest to a Participant, such Financial Institution's rights and
obligations under this Agreement shall remain unchanged, such Financial
Institution shall remain solely responsible for the performance of its
obligations hereunder, and Seller, Company and the Agent shall continue to deal
solely and directly with such Financial Institution in connection with such
Financial Institution's rights and obligations under this Agreement. Each
Financial Institution agrees that any agreement between such Financial
Institution and any such Participant in respect of such participating interest
shall not restrict such Financial Institution's right to agree to any amendment,
supplement, waiver or modification to this Agreement, except for any amendment,
supplement, waiver or modification described in Section 14.1(b)(i).
ARTICLE XIII
LIQUIDITY FACILITY
Section 13.1 Transfer to Financial Institutions. Each
Financial Institution hereby agrees, subject to Section 13.4, that immediately
upon written notice from Company delivered on or prior to the Liquidity
Termination Date, it shall acquire by assignment from Company, without recourse
or warranty, its Pro Rata Share of one or more of the Purchaser Interests of
Company as specified by Company. Each such assignment by Company shall be made
pro rata among all of the Financial Institutions, except for pro rata
assignments to one or more Terminating Financial Institutions pursuant to
Section 13.6. Each such Financial Institution shall, no later than 1:00 p.m.
(Chicago time) on the date of such assignment, pay in immediately available
funds (unless another form of payment is otherwise agreed between Company and
any Financial Institution) to the Agent at an account designated by the Agent,
for the benefit of Company, its Acquisition Amount. Unless a Financial
Institution has notified the Agent that it does not intend to pay its
Acquisition Amount, the Agent may assume that such payment has been made and
may, but shall not be obligated to, make the amount of such payment available to
Company in reliance upon such assumption. Company hereby sells and assigns to
the Agent for the ratable benefit of the Financial Institutions, and the Agent
hereby purchases and assumes from Company, effective upon the receipt by Company
of the Company Transfer Price, the Purchaser Interests of Company that are the
subject of any transfer pursuant to this Article XIII.
Section 13.2 Transfer Price Reduction Yield. If the Adjusted
Funded Amount is included in the calculation of the Company Transfer Price for
any Purchaser Interest, each Financial Institution agrees that the Agent shall
pay to Company the Reduction Percentage of any Yield received by the Agent with
respect to such Purchaser Interest.
Section 13.3 Payments to Company. In consideration for the
reduction of the Company Transfer Prices by the Company Transfer Price
Reductions, effective only at such time as the aggregate amount of the Capital
of the Purchaser Interests of the Financial Institutions equals the Company
Residual, each Financial Institution hereby agrees that the Agent shall not
distribute to the Financial Institutions and shall immediately remit to Company
any Yield, Collections or other payments received by it to be applied pursuant
to the terms hereof or otherwise to reduce the Capital of the Purchaser
Interests of the Financial Institutions.
Section 13.4 Limitation on Commitment to Purchase from
Company. Notwithstanding anything to the contrary in this Agreement, no
Financial Institution shall have any obligation to purchase any Purchaser
Interest from Company, pursuant to Section 13.1 or otherwise, if:
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(i) Company shall have voluntarily
commenced any proceeding or filed any petition under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or
reorganization of Company or taken any corporate action for the purpose
of effectuating any of the foregoing; or
(ii) involuntary proceedings or an
involuntary petition shall have been commenced or filed against Company
by any Person under any bankruptcy, insolvency or similar law seeking
the dissolution, liquidation or reorganization of Company and such
proceeding or petition shall have not been dismissed.
Section 13.5 Defaulting Financial Institutions. If one or more
Financial Institutions defaults in its obligation to pay its Acquisition Amount
pursuant to Section 13.1 (each such Financial Institution shall be called a
"Defaulting Financial Institution" and the aggregate amount of such defaulted
obligations being herein called the "Company Transfer Price Deficit"), then upon
notice from the Agent, each Financial Institution other than the Defaulting
Financial Institutions (a "Non-Defaulting Financial Institution") shall promptly
pay to the Agent, in immediately available funds, an amount equal to the lesser
of (x) such Non-Defaulting Financial Institution's proportionate share (based
upon the relative Commitments of the Non-Defaulting Financial Institutions,
after excluding the Commitment of any Approved Unconditional Liquidity
Providers) of the Company Transfer Price Deficit and (y) the unused portion of
such Non-Defaulting Financial Institution's Commitment; provided, however, that
if an Approved Unconditional Liquidity Provider is the Defaulting Financial
Institution, the Non-Defaulting Financial Institutions shall have no obligation
to pay any amount to the Agent pursuant to this Section 13.5 as a result of a
default by such Approved Unconditional Liquidity Provider; provided, further,
that in no event shall any Approved Unconditional Liquidity Provider be required
to make any payment as a Non-Defaulting Financial Institution pursuant to this
Section 13.5. A Defaulting Financial Institution shall forthwith upon demand pay
to the Agent for the account of the Non-Defaulting Financial Institutions all
amounts paid by each Non-Defaulting Financial Institution on behalf of such
Defaulting Financial Institution, together with interest thereon, for each day
from the date a payment was made by a Non-Defaulting Financial Institution until
the date such Non-Defaulting Financial Institution has been paid such amounts in
full, at a rate per annum equal to the Federal Funds Effective Rate plus two
percent (2%). In addition, without prejudice to any other rights that Company
may have under applicable law, each Defaulting Financial Institution shall pay
to Company forthwith upon demand, the difference between such Defaulting
Financial Institution's unpaid Acquisition Amount and the amount paid with
respect thereto by the Non-Defaulting Financial Institutions, together with
interest thereon, for each day from the date of the Agent's request for such
Defaulting Financial Institution's Acquisition Amount pursuant to Section 13.1
until the date the requisite amount is paid to Company in full, at a rate per
annum equal to the Federal Funds Effective Rate plus two percent (2%).
Section 13.6 Terminating Financial Institutions.
(a) Each Financial Institution hereby agrees to
deliver written notice to the Agent not more than 30 Business Days and not less
than 5 Business Days prior to the Liquidity Termination Date indicating whether
such Financial Institution intends to renew its Commitment hereunder. If any
Financial Institution fails to deliver such notice on or prior to the date that
is 5 Business Days prior to the Liquidity Termination Date, such Financial
Institution will be deemed to have declined to renew its Commitment (each
Financial Institution that has declined or has been deemed to have declined to
renew its Commitment hereunder, a "Non-Renewing Financial Institution"). The
Agent shall promptly notify Company of each Non-Renewing Financial Institution
and Company, in its sole discretion, may (A) to the extent of Commitment
Availability, declare that such Non-Renewing Financial Institution's Commitment
shall, to such extent, automatically terminate on a date specified by Company on
or before the Liquidity Termination Date or (B) upon one (1) Business Days'
notice to such Non-Renewing Financial Institution assign to such Non-Renewing
Financial Institution on a date specified by Company its Pro Rata Share of the
aggregate Purchaser Interests then held by Company, subject to, and in
accordance with, Section 13.1. In addition, Company may, in its sole discretion,
at any time (x) to the extent of Commitment Availability, declare that any
Affected Financial Institution's Commitment shall automatically
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terminate on a date specified by Company or (y) assign to any Affected Financial
Institution on a date specified by Company its Pro Rata Share of the aggregate
Purchaser Interests then held by Company, subject to, and in accordance with,
Section 13.1 (each Affected Financial Institution or each Non-Renewing Financial
Institution is hereinafter referred to as a "Terminating Financial
Institution"). The parties hereto expressly acknowledge that any declaration of
the termination of any Commitment, any assignment pursuant to this Section 13.6
and the order of priority of any such termination or assignment among
Terminating Financial Institutions shall be made by Company in its sole and
absolute discretion.
(b) Upon any assignment to a Terminating Financial
Institution as provided in this Section 13.6, any remaining Commitment of such
Terminating Financial Institution shall automatically terminate. Upon reduction
to zero of the Capital of all of the Purchaser Interests of a Terminating
Financial Institution (after application of Collections thereto pursuant to
Sections 2.2 and 2.3) all rights and obligations of such Terminating Financial
Institution hereunder shall be terminated and such Terminating Financial
Institution shall no longer be a "Financial Institution" hereunder; provided,
however, that the provisions of Article X shall continue in effect for its
benefit with respect to Purchaser Interests held by such Terminating Financial
Institution prior to its termination as a Financial Institution.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Waivers and Amendments. (a) No failure or delay
on the part of the Agent or any Purchaser in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy.
The rights and remedies herein provided shall be cumulative and nonexclusive of
any rights or remedies provided by law. Any waiver of this Agreement shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing in accordance with the
provisions of this Section 14.1(b). Company, Seller and the Agent, at the
direction of the Required Financial Institutions, may enter into written
modifications or waivers of any provisions of this Agreement, provided, however,
that no such modification or waiver shall:
(i) without the consent of each
affected Purchaser, (A) extend the Liquidity Termination Date or the
date of any payment or deposit of Collections by Seller or the
Servicer, (B) reduce the rate or extend the time of payment of Yield or
any CP Costs (or any component of Yield or CP Costs), (C) reduce any
fee payable to the Agent for the benefit of the Purchasers, (D) except
pursuant to Article XII hereof, change the amount of the Capital of any
Purchaser, any Financial Institution's Pro Rata Share (except pursuant
to Sections 13.1 or 13.5) or any Financial Institution's Commitment,
(E) amend, modify or waive any provision of the definition of Required
Financial Institutions or this Section 14.1(b), (F) consent to or
permit the assignment or transfer by Seller of any of its rights and
obligations under this Agreement, (G) change the definition of
"Eligible Receivable," "Net Receivables Balance," "Aggregate Reserves,"
"Liquidation Period," or "Open Debit Memo Ratio" or (H) amend or modify
any defined term (or any defined term used directly or indirectly in
such defined term) used in clauses (A) through (G) above in a manner
that would circumvent the intention of the restrictions set forth in
such clauses; or
(ii) without the written consent of
the then Agent, amend, modify or waive any provision of this Agreement
if the effect thereof is to affect the rights or duties of such Agent.
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Notwithstanding the foregoing, (i) without the consent of the Financial
Institutions, but with the consent of Seller, the Agent may amend this Agreement
solely to add additional Persons as Financial Institutions hereunder and (ii)
the Agent, the Required Financial Institutions and Company may enter into
amendments to modify any of the terms or provisions of Article XI, Article XII,
Section 14.13 or any other provision of this Agreement without the consent of
Seller, provided that such amendment has no negative impact upon Seller. Any
modification or waiver made in accordance with this Section 14.1 shall apply to
each of the Purchasers equally and shall be binding upon Seller, the Purchasers
and the Agent.
Section 14.2 Notices. Except as provided in this Section 14.2,
all communications and notices provided for hereunder shall be in writing
(including bank wire, telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other parties hereto at their respective
addresses or telecopy numbers set forth on the signature pages hereof or at such
other address or telecopy number as such Person may hereafter specify for the
purpose of notice to each of the other parties hereto. Each such notice or other
communication shall be effective (i) if given by telecopy, upon the receipt
thereof, (ii) if given by mail, three (3) Business Days after the time such
communication is deposited in the mail with first class postage prepaid or (iii)
if given by any other means, when received at the address specified in this
Section 14.2. Seller hereby authorizes the Agent to effect purchases and Tranche
Period and Discount Rate selections based on telephonic notices made by any
Person whom the Agent in good faith believes to be acting on behalf of Seller.
Seller agrees to deliver promptly to the Agent a written confirmation of each
telephonic notice signed by an authorized officer of Seller; provided, however,
the absence of such confirmation shall not affect the validity of such notice.
If the written confirmation differs from the action taken by the Agent, the
records of the Agent shall govern absent manifest error.
Section 14.3 Ratable Payments. If any Purchaser, whether by
setoff or otherwise, has payment made to it with respect to any portion of the
Aggregate Unpaids owing to such Purchaser (other than payments received pursuant
to Section 10.2 or 10.3) in a greater proportion than that received by any other
Purchaser entitled to receive a ratable share of such Aggregate Unpaids, such
Purchaser agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of such Aggregate Unpaids held by the other Purchasers so
that after such purchase each Purchaser will hold its ratable proportion of such
Aggregate Unpaids; provided that if all or any portion of such excess amount is
thereafter recovered from such Purchaser, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
Section 14.4 Protection of Ownership Interests of the
Purchasers. (a) Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents, and take all
actions, that may be necessary or desirable, or that the Agent may request, to
perfect, protect or more fully evidence the Purchaser Interests, or to enable
the Agent or the Purchasers to exercise and enforce their rights and remedies
hereunder. Upon the occurrence and during the continuance of an Amortization
Event, the Agent may, or the Agent may direct Seller or the Servicer to, notify
the Obligors of Receivables, at Seller's expense, of the ownership or security
interests of the Purchasers under this Agreement and may also direct that
payments of all amounts due or that become due under any or all Receivables be
made directly to the Agent or its designee. Seller or the Servicer (as
applicable) shall, at any Purchaser's request, withhold the identity of such
Purchaser in any such notification.
(b) If any Seller Party fails to perform any of its
obligations hereunder, the Agent or any Purchaser may (but shall not be required
to) perform, or cause performance of, such obligations, and the Agent's or such
Purchaser's costs and expenses incurred in connection therewith shall be payable
by Seller as provided in Section 10.3. Each Seller Party irrevocably authorizes
the Agent at any time and from time to time in the sole discretion of the Agent,
and appoints the Agent as its attorney-in-fact, to act on behalf of such Seller
Party (i) to execute on behalf of Seller as debtor and to file financing
statements necessary or desirable in the Agent's sole discretion to perfect and
to maintain the perfection and priority of the interest of the Purchasers in the
Receivables and (ii) to file a carbon, photographic or other reproduction of
this Agreement or any financing statement with respect to the Receivables as a
financing statement in such offices as the Agent in its sole discretion deems
necessary or desirable to perfect and to maintain the perfection and priority of
the interests of the Purchasers in the Receivables. This appointment is coupled
with an interest and is irrevocable.
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Section 14.5 Confidentiality. (a) Each Seller Party and each
Purchaser shall maintain and shall cause each of its employees and officers to
maintain the confidentiality of this Agreement and the other confidential or
proprietary information with respect to the Agent and Company and their
respective businesses obtained by it or them in connection with the structuring,
negotiating and execution of the transactions contemplated herein, except that
such Seller Party and such Purchaser and its officers and employees may disclose
such information to such Seller Party's and such Purchaser's external
accountants and attorneys and as required by any applicable law, rule,
regulation, direction or order of any judicial or administrative proceeding with
competent jurisdiction (whether or not having the force or effect of law).
(b) Anything herein to the contrary notwithstanding,
each Seller Party hereby consents to the disclosure of any nonpublic information
with respect to it (i) to the Agent, the Financial Institutions or Company by
each other, (ii) by the Agent or the Purchasers to any prospective or actual
assignee or participant of any of them and (iii) by the Agent to any rating
agency, Commercial Paper dealer or provider of a surety, guaranty or credit or
liquidity enhancement to Company or any entity organized for the purpose of
purchasing, or making loans secured by, financial assets for which Bank One acts
as the administrative agent and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing. In addition, the Purchasers
and the Agent may disclose any such nonpublic information pursuant to any law,
rule, regulation, direction, request or order of any judicial, administrative or
regulatory authority or proceedings (whether or not having the force or effect
of law).
Section 14.6 Bankruptcy Petition. Seller, the Servicer, the
Agent and each Financial Institution hereby covenants and agrees that, prior to
the date that is one year and one day after the payment in full of all
outstanding senior indebtedness of Company or any Unconditional Liquidity
Provider, it will not institute against, or join any other Person in instituting
against, Company or any such entity any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States.
Section 14.7 Limitation of Liability. Except with respect to
any claim arising out of the willful misconduct or gross negligence of Company,
the Agent or any Financial Institution, no claim may be made by any Seller Party
or any other Person against Company, the Agent or any Financial Institution or
their respective Affiliates, directors, officers, employees, attorneys or agents
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Seller Party hereby waives,
releases, and agrees not to xxx upon any claim for any such damages, whether or
not accrued and whether or not known or suspected to exist in its favor.
Section 14.8 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF ILLINOIS.
Section 14.9 CONSENT TO JURISDICTION. EACH SELLER PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH PERSON PURSUANT TO THIS AGREEMENT AND EACH SELLER PARTY HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR ANY PURCHASER TO BRING
PROCEEDINGS AGAINST ANY SELLER PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY ANY SELLER PARTY AGAINST THE AGENT
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OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR ANY PURCHASER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH SELLER PARTY
PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR FEDERAL COURT
SITTING IN CHICAGO, ILLINOIS.
Section 14.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, ANY DOCUMENT
EXECUTED BY ANY SELLER PARTY PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
Section 14.11 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction
Document contain the final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns (including any trustee in bankruptcy). This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms and shall remain in full force and effect until terminated in
accordance with its terms; provided, however, that the rights and remedies with
respect to (i) any breach of any representation and warranty made by any Seller
Party pursuant to Article V, (ii) the indemnification and payment provisions of
Article X, and Sections 14.5 and 14.6 shall be continuing and shall survive any
termination of this Agreement.
Section 14.12 Counterparts; Severability; Section References.
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same Agreement. Any provisions of this Agreement that are prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Unless otherwise
expressly indicated, all references herein to "Article," "Section," "Schedule"
or "Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
Section 14.13 Bank One Roles. Each of the Financial
Institutions acknowledges that Bank One acts, or may in the future act, (i) as
administrative agent for Company or any Financial Institution, (ii) as issuing
and paying agent for the Commercial Paper, (iii) to provide credit or liquidity
enhancement for the timely payment for the Commercial Paper and (iv) to provide
other services from time to time for Company or any Financial Institution
(collectively, the "Bank One Roles"). Without limiting the generality of this
Section 14.13, each Financial Institution hereby acknowledges and consents to
any and all Bank One Roles and agrees that in connection with any Bank One Role,
Bank One may take, or refrain from taking, any action that it, in its
discretion, deems appropriate, including, without limitation, in its role as
administrative agent for Company, and the giving of notice to the Agent of a
mandatory purchase pursuant to Section 13.1.
Section 14.14 Characterization. (a) It is the intention of the
parties hereto that each purchase hereunder shall constitute and be treated as
an absolute and irrevocable sale, which purchase shall provide the applicable
Purchaser with the full benefits of ownership of the applicable Purchaser
Interest. Except as specifically provided in this Agreement, each sale of a
Purchaser Interest hereunder is made without recourse to Seller;
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provided, however, that (i) Seller shall be liable to each Purchaser and the
Agent for all representations, warranties, covenants and indemnities made by
Seller pursuant to the terms of this Agreement, and (ii) such sale does not
constitute and is not intended to result in an assumption by any Purchaser or
the Agent or any assignee thereof of any obligation of Seller or any Originator
or any other person arising in connection with the Receivables, the Related
Security, or the related Contracts, or any other obligations of Seller or any
Originator.
(b) In addition to any ownership interest that the
Agent may from time to time acquire pursuant hereto, Seller hereby grants to the
Agent for the ratable benefit of the Purchasers a valid and perfected security
interest in all of Seller's right, title and interest in, to and under all
Receivables now existing or hereafter arising, the Collections, each Lock-Box,
all Related Security, all other rights and payments relating to such
Receivables, and all proceeds of any thereof prior to all other liens on and
security interests therein to secure the prompt and complete payment of the
Aggregate Unpaids. The Agent and the Purchasers shall have, in addition to the
rights and remedies that they may have under this Agreement, all other rights
and remedies provided to a secured creditor under the UCC and other applicable
law, which rights and remedies shall be cumulative.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
PLEXUS ABS, INC.
By: /s/
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address: 0000 Xxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
PLEXUS CORP.
By: /s/
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address: 00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
PREFERRED RECEIVABLES FUNDING CORPORATION
By: /s/
--------------------------------------------
Authorized Signatory
Address: c/o Bank One, NA (Main Office
Chicago), as Agent
Asset Backed Finance
Suite IL1-0079, 1-19
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
35
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial
Institution and as Agent
By: /s/
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Address: Bank One, NA (Main Office Chicago)
Asset Backed Finance
Suite IL1-0594, 1-19
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
36
EXHIBIT I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Accrual Period" means each calendar month, provided that the initial
Accrual Period hereunder means the period from (and including) the date of the
initial purchase hereunder to (and including) the last day of the calendar month
thereafter.
"Acquisition Amount" means, on the date of any purchase from Company of
one or more Purchaser Interests pursuant to Section 13.1, (a) with respect to
each Financial Institution (other than any Unconditional Liquidity Provider),
the lesser of (i) such Financial Institution's Pro Rata Share of the sum of (A)
the lesser of (1) the Adjusted Liquidity Price of each such Purchaser Interest
and (2) the Capital of each such Purchaser Interest and (B) all accrued and
unpaid CP Costs for each such Purchaser Interest and (ii) such Financial
Institution's unused Commitment and (b) with respect to each Unconditional
Liquidity Provider, the lesser of (x) such Unconditional Liquidity Provider's
Pro Rata Share of the sum of (1) the Capital of each such Purchaser Interest and
(2) all accrued and unpaid CP Costs for each such Purchaser Interest and (y)
such Unconditional Liquidity Provider's unused Commitment.
"Adjusted Funded Amount" means, in determining the Company Transfer
Price for any Purchaser Interest, an amount equal to the sum of (a) the Adjusted
Liquidity Price of each such Purchaser Interest and (b) an amount equal to each
Unconditional Liquidity Provider's Pro Rata Share of the difference between (i)
the Adjusted Liquidity Price of each such Purchaser Interest and (ii) the
Capital of each such Purchaser Interest.
"Adjusted Liquidity Price" means an amount equal to:
RI [(i) DC + (ii) NDR ]
----
1.045
where:
RI = the undivided percentage interest evidenced
by such Purchaser Interest.
DC = the Deemed Collections.
NDR = the Outstanding Balance of all Receivables
as to which any payment, or part thereof,
has not remained unpaid for (a) in the case
of EAC Receivables and SeaMED Receivables,
more than 60 days from the original invoice
date for such payment, and (b) in the case
of TGI Receivables, more than 90 days from
the original invoice date for such payment.
Each of the foregoing shall be determined from the most recent Monthly Report
received from the Servicer.
"Adverse Claim" means a lien, security interest, charge or encumbrance,
or other right or claim in, of or on any Person's assets or properties in favor
of any other Person.
Exh. I-1
37
"Affected Financial Institution" has the meaning specified in Section
12.1(c).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person or any Subsidiary of such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this Agreement.
"Aggregate Capital" means, on any date of determination, the aggregate
amount of Capital of all Purchaser Interests outstanding on such date.
"Aggregate Reduction" has the meaning specified in Section 1.3.
"Aggregate Reserves" means, on any date of determination, an amount
equal to the fifteen percent (15%) of the Net Receivables Balance on such date.
"Aggregate Unpaids" means, at any time, an amount equal to the sum of
all Aggregate Capital and all other unpaid Obligations (whether due or accrued)
at such time.
"Agreement" means this Receivables Purchase Agreement, as it may be
amended or modified and in effect from time to time.
"Amortization Date" means the earliest to occur of (i) the day on which
any of the conditions precedent set forth in Section 6.2 are not satisfied, (ii)
the Business Day immediately prior to the occurrence of an Amortization Event
set forth in Section 9.1(d)(ii), (iii) the Business Day specified in a written
notice from the Agent following the occurrence of any other Amortization Event,
(iv) the date that is 30 Business Days after the Agent's receipt of written
notice from Seller that it wishes to terminate the facility evidenced by this
Agreement and (v) the date of assignment by Company to all of the Financial
Institutions pursuant to Section 13.1 hereof.
"Amortization Event" has the meaning specified in Article IX.
"Approved Unconditional Liquidity Provider" means an Unconditional
Liquidity Provider which has received approval from Standard & Poor's Ratings
Group and Xxxxx'x Investors Service, Inc. to be relieved from any obligation to
pay amounts as a Non-Defaulting Financial Institution pursuant to Section 13.5
hereof.
"Assignment Agreement" has the meaning set forth in Section 12.1(b).
"Authorized Officer" means, with respect to any Person, its president,
corporate controller, treasurer or chief financial officer.
"Bank One" means Bank One, NA (Main Office Chicago) in its individual
capacity and its successors.
"Broken Funding Costs" means for any Purchaser Interest that: (i) has
its Capital reduced without compliance by Seller with the notice requirements
hereunder or (ii) does not become subject to an Aggregate Reduction following
the delivery of any Reduction Notice or (iii) is assigned under Article XIII or
terminated prior to the date on which it was originally scheduled to end; an
amount equal to the excess, if any, of (A) the CP Costs or Yield (as applicable)
that would have accrued during the remainder of the Tranche Periods or the
tranche periods for Commercial Paper determined by the Agent to relate to such
Purchaser Interest (as applicable) subsequent to the date of such reduction,
assignment or termination (or in respect of clause (ii) above, the date such
Aggregate
Exh. I-2
38
Reduction was designated to occur pursuant to the Reduction Notice) of the
Capital of such Purchaser Interest if such reduction, assignment or termination
had not occurred or such Reduction Notice had not been delivered, over (B) the
sum of (x) to the extent all or a portion of such Capital is allocated to
another Purchaser Interest, the amount of CP Costs or Yield actually accrued
during the remainder of such period on such Capital for the new Purchaser
Interest, and (y) to the extent such Capital is not allocated to another
Purchaser Interest, the income, if any, actually received during the remainder
of such period by the holder of such Purchaser Interest from investing the
portion of such Capital not so allocated. In the event that the amount referred
to in clause (B) exceeds the amount referred to in clause (A), the relevant
Purchaser or Purchasers agree to pay to Seller the amount of such excess. All
Broken Funding Costs shall be due and payable hereunder upon demand.
"Business Day" means any day on which banks are not authorized or
required to close in New York, New York or Chicago, Illinois and The Depository
Trust Company of New York is open for business, and, if the applicable Business
Day relates to any computation or payment to be made with respect to the LIBO
Rate, any day on which dealings in dollar deposits are carried on in the London
interbank market.
"Capital" of any Purchaser Interest means, at any time, (A) the
Purchase Price of such Purchaser Interest, minus (B) the sum of the aggregate
amount of Collections and other payments received by the Agent that in each case
are applied to reduce such Capital in accordance with the terms and conditions
of this Agreement; provided that such Capital shall be restored (in accordance
with Section 2.5) in the amount of any Collections or other payments so received
and applied if at any time the distribution of such Collections or payments are
rescinded, returned or refunded for any reason.
"Change of Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 30% or more of the outstanding shares of voting stock of any
Seller Party.
"Charged-Off Receivable" means a Receivable: (i) as to which the
Obligor thereof has taken any action, or suffered any event to occur, of the
type described in Section 9.1(d) (as if references to Seller Party therein refer
to such Obligor); (ii) as to which the Obligor thereof, if a natural person, is
deceased, (iii) that, consistent with the Credit and Collection Policy, would be
written off Seller's books as uncollectible, (iv) that has been identified by
Seller as uncollectible or (v) as to which any payment, or part thereof, remains
unpaid for (a) in the case of a EAC Receivable or a SeaMED Receivable, more than
60 days from the original invoice date for such payment, and (b) in the case of
a TGI Receivable, more than 90 days from the original invoice date for such
payment.
"Collections" means, with respect to any Receivable, all cash
collections and other cash proceeds in respect of such Receivable, including,
without limitation, all yield, Finance Charges or other related amounts accruing
in respect thereof and all cash proceeds of Related Security with respect to
such Receivable.
"Commercial Paper" means promissory notes of Company issued by Company
in the commercial paper market.
"Commitment" means, for each Financial Institution, the commitment of
such Financial Institution to purchase Purchaser Interests from (i) Seller and
(ii) Company, in an amount not to exceed (i) in the aggregate, the amount set
forth opposite such Financial Institution's name on Schedule A to this
Agreement, as such amount may be modified in accordance with the terms hereof
(including, without limitation, any termination of Commitments pursuant to
Section 13.6 hereof) and (ii) with respect to any individual purchase hereunder,
its Pro Rata Share of the Purchase Price therefor.
"Commitment Availability" means at any time the positive difference (if
any) between (a) an amount equal to the aggregate amount of the Commitments
minus an amount equal to 2% of such aggregate Commitments at such time minus (b)
the Aggregate Capital at such time.
Exh. I-3
39
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Residual" means the sum of the Company Transfer Price
Reductions.
"Company Transfer Price" means, with respect to the assignment by
Company of one or more Purchaser Interests to the Agent for the benefit of one
or more of the Financial Institutions pursuant to Section 13.1, the sum of (i)
the lesser of (a) the Capital of each such Purchaser Interest and (b) the
Adjusted Funded Amount of each such Purchaser Interest and (ii) all accrued and
unpaid CP Costs for each such Purchaser Interest.
"Company Transfer Price Deficit" has the meaning set forth in Section
13.5.
"Company Transfer Price Reduction" means in connection with the
assignment of a Purchaser Interest by Company to the Agent for the benefit of
the Financial Institutions, the positive difference (if any) between (i) the
Capital of such Purchaser Interest and (ii) the Adjusted Funded Amount for such
Purchaser Interest.
"Concentration Limit" means, at any time, (a) for any Obligor other
than as described in part (b) of this definition, 3% of the aggregate
Outstanding Balance of all Eligible Receivables and (b)(i) for Lucent
Technologies Inc., Receivables with an aggregate Outstanding Balance not in
excess of $15 million, (ii) for Motorola, Inc., 9% of the aggregate Outstanding
Balance of all Eligible Receivables, (iii) for Arrowpoint Communications, Inc.
and Cisco Systems, Inc., collectively and not individually, $12 million, (iii)
for General Electric Company, 9% of the aggregate Outstanding Balance of all
Eligible Receivables, (iv) for Siemens AG, 9% of the aggregate Outstanding
Balance of all Eligible Receivables and (v) for each of the foregoing Obligors,
such other amount for such Obligor designated by the Agent (each of the
foregoing, a "Special Concentration Limit"); provided, that in the case of an
Obligor and any Affiliate of such Obligor, the Concentration Limit shall be
calculated as if such Obligor and such Affiliate are one Obligor; and provided,
further, that Company or the Required Financial Institutions may, upon not less
than three Business Days' notice to Seller, cancel any Special Concentration
Limit.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or application for a letter of credit.
"Contract" means, with respect to any Receivable, any and all
instruments, agreements, invoices or other writings pursuant to which such
Receivable arises or that evidences such Receivable.
"CP Costs" means, for each day, the sum of (i) discount or yield
accrued on Pooled Commercial Paper on such day, plus (ii) any and all accrued
commissions in respect of placement agents and Commercial Paper dealers, and
issuing and paying agent fees incurred, in respect of such Pooled Commercial
Paper for such day, plus (iii) other costs associated with funding small or
odd-lot amounts with respect to all receivable purchase facilities that are
funded by Pooled Commercial Paper for such day, minus (iv) any accrual of income
net of expenses received on such day from investment of collections received
under all receivable purchase facilities funded substantially with Pooled
Commercial Paper, minus (v) any payment received on such day net of expenses in
respect of Broken Funding Costs related to the prepayment of any Purchaser
Interest of Company pursuant to the terms of any receivable purchase facilities
funded substantially with Pooled Commercial Paper. In addition to the foregoing
costs, if Seller shall request any Incremental Purchase during any period of
time determined by the Agent in its sole discretion to result in incrementally
higher CP Costs applicable to such Incremental Purchase, the Capital associated
with any such Incremental Purchase shall, during such period, be deemed to be
funded by Company in a special pool (which may include capital associated with
other receivable purchase facilities) for purposes of determining such
additional CP Costs applicable only to such special pool and charged each day
during such period against such Capital.
Exh. I-4
40
"Credit and Collection Policy" means Seller's credit and collection
policies and practices relating to Contracts and Receivables existing on the
date hereof and summarized in Exhibit VIII hereto, as modified from time to time
in accordance with this Agreement.
"Debit Memo" means a debit memo issued by EAC or SeaMED to an Obligor
for inventory returned for work or repair for which the applicable Obligor has
deducted the value of such inventory.
"Deemed Collections" means the aggregate of all amounts Seller shall
have been deemed to have received as a Collection of a Receivable. Seller shall
be deemed to have received a Collection in full of a Receivable if at any time
(i) the Outstanding Balance of any such Receivable is either (x) reduced as a
result of any defective or rejected goods or services, any discount or any
adjustment or otherwise by Seller (other than cash Collections on account of the
Receivables) or (y) reduced or canceled as a result of a setoff in respect of
any claim by any Person (whether such claim arises out of the same or a related
transaction or an unrelated transaction) or (ii) any of the representations or
warranties in Article V are no longer true with respect to any Receivable.
"Default Fee" means with respect to any amount due and payable by
Seller in respect of any Aggregate Unpaids, an amount equal to the greater of
(i) $1000 and (ii) interest on any such unpaid Aggregate Unpaids at a rate per
annum equal to 2% above the Prime Rate.
"Defaulting Financial Institution" has the meaning set forth in Section
13.5.
"Designated Account" has the meaning set forth in Section 7.1(j).
"Designated Obligor" means an Obligor indicated by the Agent to Seller
in writing.
"Discount Rate" means, the LIBO Rate or the Prime Rate, as applicable,
with respect to each Purchaser Interest of the Financial Institutions.
"EAC" means Electronic Assembly Corporation, a Wisconsin corporation.
"EAC Receivable" means any Receivable for which EAC is the Originator.
"Eligible Receivable" means, at any time, a Receivable:
(i) the Obligor of which (a) if a natural person, is a
resident of the United States or, if a corporation or other business
organization, is organized under the laws of the United States or any
political subdivision thereof and has its chief executive office in the
United States; (b) is not an Affiliate of any of the parties hereto;
(c) is not a Designated Obligor; and (d) is not a government or a
governmental subdivision or agency,
(ii) that is not a Charged-Off Receivable,
(iii) that by its terms is due and payable within 60 days of
the original billing date therefor and has not had its payment terms
extended,
(iv) that is an "account" or "chattel paper" within the
meaning of Section 9-105 and Section 9-106, respectively, of the UCC of
all applicable jurisdictions,
(v) that is denominated and payable only in United States
dollars in the United States,
(vi) that arises under a Contract in substantially the form of
one of the form contracts set forth on Exhibit IX hereto or otherwise
approved by the Agent in writing, that, together with such Receivable,
is in
Exh. I-5
41
full force and effect and constitutes the legal, valid and binding
obligation of the related Obligor enforceable against such Obligor in
accordance with its terms subject to no offset, counterclaim or other
defense,
(vii) that arises under a Contract that (A) does not require
the Obligor under such Contract to consent to the transfer, sale or
assignment of the rights and duties of the Originator of such
Receivable or any of its assignees under such Contract and (B) does not
contain a confidentiality provision that purports to restrict the
ability of any Purchaser to exercise its rights under this Agreement,
including, without limitation, its right to review the Contract,
(viii) that arises under a Contract that contains an
obligation to pay a specified sum of money, contingent only upon the
sale of goods or the provision of services by the Originator of such
Receivable,
(ix) that, together with the Contract related thereto, does
not contravene any law, rule or regulation applicable thereto
(including, without limitation, any law, rule and regulation relating
to truth in lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices and privacy) and
with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation,
(x) that satisfies all applicable requirements of the Credit
and Collection Policy,
(xi) that was generated in the ordinary course of the
Originator of such Receivable's business,
(xii) that arises solely from the sale of goods or the
provision of services to the related Obligor by the Originator of such
Receivable, and not by any other Person (in whole or in part),
(xiii) as to which the Agent has not notified Seller that the
Agent has determined that such Receivable or class of Receivables is
not acceptable as an Eligible Receivable, including, without
limitation, because such Receivable arises under a Contract that is not
acceptable to the Agent,
(xiv) that is not subject to any right of rescission, set-off,
counterclaim, any other defense (including defenses arising out of
violations of usury laws) of the applicable Obligor against the
Originator of such Receivable or any other Adverse Claim, and the
Obligor thereon holds no right as against such Originator to cause such
Originator to repurchase the goods or merchandise the sale of which
shall have given rise to such Receivable (except with respect to sale
discounts effected pursuant to the Contract, or defective goods
returned in accordance with the terms of the Contract),
(xv) as to which the Originator of such Receivable has
satisfied and fully performed all obligations on its part with respect
to such Receivable required to be fulfilled by it (including all
obligations with respect to any partial, interim or progress payment),
and no further action is required to be performed by any Person with
respect thereto other than payment thereon by the applicable Obligor,
and
(xvi) all right, title and interest to and in which has been
validly transferred by the Originator of such Receivable directly to
Seller under and in accordance with the Receivables Sale Agreement, and
Seller has good and marketable title thereto free and clear of any
Adverse Claim.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Facility Account" means Seller's Account No. 153790376872 at US Bank,
in Las Vegas NV, ABA #000000000.
Exh. I-6
42
"Facility Termination Date" means the earliest of (i) October 6, 2003,
(ii) the Liquidity Termination Date and (iii) the Amortization Date.
"Federal Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy," as amended and any successor statute thereto.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum for each day during such period equal to (a) the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the preceding
Business Day) by the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities; or (b) if such rate is not so
published for any day that is a Business Day, the average of the quotations at
approximately 10:30 a.m. (Chicago time) for such day on such transactions
received by the Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means that certain letter agreement dated as of the date
hereof among Seller, Servicer and the Agent, as it may be amended or modified
and in effect from time to time.
"Finance Charges" means, with respect to a Contract, any finance,
interest, late payment charges or similar charges owing by an Obligor pursuant
to such Contract.
"Financial Institutions" has the meaning set forth in the preamble in
this Agreement.
"Funding Agreement" means this Agreement and any agreement or
instrument executed by any Funding Source with or for the benefit of Company.
"Funding Source" means (i) any Financial Institution or (ii) any
insurance company, bank or other funding entity providing liquidity, credit
enhancement or back-up purchase support or facilities to Company.
"GAAP" means generally accepted accounting principles in effect in the
United States of America as of the date of this Agreement.
"GECC UCC Filings" means, collectively, (a) that certain UCC financing
statement filed by General Electric Capital Corporation ("GECC") against EAC,
file number #1682386 and file date 6/25/97, (b) that certain UCC financing
statement filed by GECC against EAC, file number #1686824 and file date 7/15/97
and (c) that certain UCC financing statement filed by GECC against EAC, file
number #1728373 and file date 1/13/98.
"Incremental Purchase" means a purchase of one or more Purchaser
Interests that increases the total outstanding Aggregate Capital hereunder.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations that are evidenced by notes, acceptances, or other
instruments, (v) capitalized lease obligations, (vi) net liabilities under
interest rate swap, exchange or cap agreements, (vii) Contingent Obligations and
(viii) liabilities in respect of unfunded vested benefits under plans covered by
Title IV of ERISA.
"Independent Director" shall mean a member of the Board of Directors of
Seller who is not at such time, and has not been at any time during the
preceding five (5) years, (A) a director, officer, employee or affiliate of
Seller, any Originator, or any of their respective Subsidiaries or Affiliates,
or (B) the beneficial owner (at the time of such individual's appointment as an
Independent Director or at any time thereafter while serving as an Independent
Exh. I-7
43
Director) of any of the outstanding common shares of Seller, any Originator, or
any of their respective Subsidiaries or Affiliates, having general voting
rights;
"LIBO Rate" means the rate per annum equal to the sum of (i) (a) the
applicable British Bankers' Association Interest Settlement Rate for deposits in
U.S. dollars appearing on Reuters Screen FRBD as of 11:00 a.m. (London time) two
Business Days prior to the first day of the relevant Tranche Period, and having
a maturity equal to such Tranche Period, provided that, (i) if Reuters Screen
FRBD is not available to the Agent for any reason, the applicable LIBO Rate for
the relevant Tranche Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Tranche Period,
and having a maturity equal to such Tranche Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Agent, the
applicable LIBO Rate for the relevant Tranche Period shall instead be the rate
determined by the Agent to be the rate at which Bank One offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Tranche Period, in the approximate amount to be funded at the LIBO
Rate and having a maturity equal to such Tranche Period, divided by (b) one
minus the maximum aggregate reserve requirement (including all basic,
supplemental, marginal or other reserves) that is imposed against the Agent in
respect of Eurocurrency liabilities, as defined in Regulation D of the Board of
Governors of the Federal Reserve System as in effect from time to time
(expressed as a decimal), applicable to such Tranche Period plus (ii) .75% per
annum. The LIBO Rate shall be rounded, if necessary, to the next higher 1/16 of
1%.
"Liquidation Period" means, for any calendar month, the number of days
equal to the result of multiplying (a) a fraction, the numerator of which is the
aggregate Outstanding Balance of all Receivables as of the first calendar day of
such calendar month and the denominator of which is the aggregate amount of all
Collections made during such calendar month, and (b) 30.
"Liquidity Termination Date" means October 4, 2001.
"Lock-Box" means each locked postal box that is subject to a Lock-Box
Agreement in form and substance satisfactory to the Agent and into which any
Collections are collected or deposited and that is listed on Exhibit IV.
"Lock-Box Agreement" means an agreement substantially in the form of
Exhibit VI among the applicable Originator, Seller, the Agent and the Lock-Box
Processor party thereto.
"Lock-Box Notice" means a notice in the form set forth as Annex A of
Exhibit VI.
"Lock-Box Processor" means a bank or other Person approved in writing
by the Agent that has been granted exclusive access to a Lock-Box for the
purpose of retrieving and processing payments made on Receivables.
"Material Adverse Effect" means a material adverse effect on (i) the
financial condition or operations of any Seller Party and its Subsidiaries, (ii)
the ability of any Seller Party to perform its obligations under this Agreement,
(iii) the legality, validity or enforceability of this Agreement or any other
Transaction Document, (iv) any Purchaser's interest in the Receivables generally
or in any significant portion of the Receivables, the Related Security or the
Collections with respect thereto, or (v) the collectibility of the Receivables
generally or of any material portion of the Receivables.
"Monthly Report" means a report, in substantially the form of Exhibit X
hereto (appropriately completed), furnished by the Servicer to the Agent
pursuant to Section 8.5.
Exh. I-8
44
"Net Receivables Balance" means, at any time, the aggregate Outstanding
Balance of all Eligible Receivables at such time reduced by the aggregate amount
by which the Outstanding Balance of all Eligible Receivables of each Obligor and
its Affiliates exceeds the Concentration Limit for such Obligor.
"Non-Defaulting Financial Institution" has the meaning set forth in
Section 13.5.
"Non-Renewing Financial Institution" has the meaning set forth in
Section 13.6(a).
"Obligations" shall have the meaning set forth in Section 2.1.
"Obligor" means a Person obligated to make payments pursuant to a
Contract.
"Open Debit Memo Ratio" means, for any calendar month, a fraction, the
numerator of which is the aggregate dollar amount of all Debit Memos that were
open on the last day of such calendar month and the denominator of which is the
aggregate Outstanding Balance of all EAC Receivables and SeaMED Receivables as
of the last day of such calendar month.
"Originator" means each of (a) Electronic Assembly Corporation, (b)
Technology Group, Inc., and (c) SeaMED Corporation, each in its respective
capacity as a seller under the Receivables Sale Agreement.
"Outstanding Balance" of any Receivable at any time means the then
outstanding principal balance thereof.
"Participant" has the meaning set forth in Section 12.2.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plexus Account" has the meaning set forth in Section 7.1(j).
"Pooled Commercial Paper" means Commercial Paper notes of Company
subject to any particular pooling arrangement by Company, but excluding
Commercial Paper issued by Company for a tenor and in an amount specifically
requested by any Person in connection with any agreement effected by Company.
"Potential Amortization Event" means an event that, with the passage of
time or the giving of notice, or both, would constitute an Amortization Event.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Proposed Reduction Date" has the meaning set forth in Section 1.3.
"Pro Rata Share" means, for each Financial Institution, a percentage
equal to (i) the Commitment of such Financial Institution, divided by (ii) the
aggregate amount of all Commitments of all Financial Institutions hereunder,
adjusted as necessary to give effect to the application of the terms of Sections
13.5 or 13.6.
"Purchase Limit" means fifty million dollars ($50,000,000).
"Purchase Notice" has the meaning set forth in Section 1.2.
Exh. I-9
45
"Purchase Price" means, with respect to any Incremental Purchase of a
Purchaser Interest, the amount paid to Seller for such Purchaser Interest that
shall not exceed the least of (i) the amount requested by Seller in the
applicable Purchase Notice, (ii) the unused portion of the Purchase Limit on the
applicable purchase date and (iii) the excess, if any, of the Net Receivables
Balance (less the Aggregate Reserves) on the applicable purchase date over the
aggregate outstanding amount of Aggregate Capital determined as of the date of
the most recent Monthly Report, taking into account such proposed Incremental
Purchase.
"Purchasers" means Company and each Financial Institution.
"Purchaser Interest" means, at any time, an undivided percentage
ownership interest (computed as set forth below) associated with a designated
amount of Capital, selected pursuant to the terms and conditions hereof in (i)
each Receivable arising prior to the time of the most recent computation or
recomputation of such undivided interest, (ii) all Related Security with respect
to each such Receivable, and (iii) all Collections with respect to, and other
proceeds of, each such Receivable. Each such undivided percentage interest shall
equal:
C
------
NRB-AR
where:
C = the Capital of such Purchaser Interest.
AR = the Aggregate Reserves.
NRB = the Net Receivables Balance.
Such undivided percentage ownership interest shall be initially computed on its
date of purchase. Thereafter, until the Amortization Date, each Purchaser
Interest shall be automatically recomputed (or deemed to be recomputed) on each
day prior to the Amortization Date. The variable percentage represented by any
Purchaser Interest as computed (or deemed recomputed) as of the close of the
business day immediately preceding the Amortization Date shall remain constant
at all times thereafter.
"Purchasing Financial Institution" has the meaning set forth in Section
12.1(b).
"Receivable" means all indebtedness and other obligations owed to
Seller or an Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Receivables Sale Agreement or hereunder) or in
which Seller or such Originator has a security interest or other interest,
including, without limitation, any indebtedness, obligation or interest
constituting an account, chattel paper, instrument or general intangible,
arising in connection with the sale of goods or the rendering of services by
such Originator, and further includes, without limitation, the obligation to pay
any Finance Charges with respect thereto. Indebtedness and other rights and
obligations arising from any one transaction, including, without limitation,
indebtedness and other rights and obligations represented by an individual
invoice, shall constitute a Receivable separate from a Receivable consisting of
the indebtedness and other rights and obligations arising from any other
transaction; provided further, that any indebtedness, rights or obligations
referred to in the immediately preceding sentence shall be a Receivable
regardless of whether the account debtor or Seller treats such indebtedness,
rights or obligations as a separate payment obligation.
Receivables Sale Agreement" means that certain Receivables Sale
Agreement, dated as of October 6, 2000, among the Originators and Seller, as the
same may be amended, restated or otherwise modified from time to time.
Exh. I-10
46
"Records" means, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including, without
limitation, computer programs, tapes, disks, punch cards, data processing
software and related property and rights) relating to such Receivable, any
Related Security therefor and the related Obligor.
"Reduction Notice" has the meaning set forth in Section 1.3.
"Reduction Percentage" means, for any Purchaser Interest acquired by
the Financial Institutions from Company for less than the Capital of such
Purchaser Interest, a percentage equal to a fraction the numerator of which is
the Company Transfer Price Reduction for such Purchaser Interest and the
denominator of which is the Capital of such Purchaser Interest.
"Regulatory Change" has the meaning set forth in Section 10.2(a).
"Reinvestment" has the meaning set forth in Section 2.2.
"Related Equipment" means with respect to any Receivable, the goods
leased to or financed for the Obligor which lease or financing gave rise to such
Receivable and all financing statements or other filings with respect thereto.
"Related Security" means, with respect to any Receivable:
(i) all of Seller's interest in the Related Equipment
or other inventory and goods (including returned or repossessed
inventory or goods), if any, the sale, financing or lease of which by
the Originator thereof gave rise to such Receivable, and all insurance
contracts with respect thereto,
(ii) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing
such Receivable,
(iii) all guaranties, letters of credit, insurance
and other agreements or arrangements of whatever character from time to
time supporting or securing payment of such Receivable whether pursuant
to the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and
agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of Seller's right, title and interest in, to
and under the Receivables Sale Agreement in respect of such Receivable,
and
(vii) all proceeds of any of the foregoing.
"Required Financial Institutions" means, at any time, Financial
Institutions with Commitments in excess of 66-2/3% of the Purchase Limit,
together with the Agent.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of
capital stock of Seller now or hereafter outstanding, except a dividend payable
solely in shares of that class of stock or in any junior class of stock of
Seller, (ii) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any shares of
any class of capital stock
Exh. I-11
47
of Seller now or hereafter outstanding, (iii) any payment or prepayment of
principal of, premium, if any, or interest, fees or other charges on or with
respect to, and any redemption, purchase, retirement, defeasance, sinking fund
or similar payment and any claim for rescission with respect to the Subordinated
Loans (as defined in the Receivables Sale Agreement), (iv) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of
capital stock of Seller now or hereafter outstanding, and (v) any payment of
management fees by Seller (except for reasonable management fees to an
Originator or its Affiliates in reimbursement of actual management services
performed).
"SeaMED" means SeaMED Corporation, a Washington corporation.
"SeaMED Receivable" means any Receivable for which SeaMED is the
Originator.
"Seller" has the meaning set forth in the preamble to this Agreement.
"Seller Parties" has the meaning set forth in the preamble to this
Agreement.
"Servicer" means at any time the Person (which may be the Agent) then
authorized pursuant to Article VIII to service, administer and collect
Receivables.
"Servicer Fee" has the meaning set forth in Section 8.6.
"Settlement Date" means (A) the Business Day of each month that is
three Business Days after the Business Day on which the Monthly Report is due
pursuant to Section 8.5, and (B) the last day of the relevant Tranche Period in
respect of each Purchaser Interest of the Financial Institutions.
"Settlement Period" means (A) in respect of each Purchaser Interest of
Company, the immediately preceding Accrual Period, and (B) in respect of each
Purchaser Interest of the Financial Institutions, the entire Tranche Period of
such Purchaser Interest.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, limited liability company, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of Seller.
"Termination Date" has the meaning set forth in Section 2.2.
"Termination Percentage" has the meaning set forth in Section 2.2.
"Terminating Financial Institution" has the meaning set forth in
Section 13.6(a).
"Terminating Tranche" has the meaning set forth in Section 4.3(b).
"TGI" means Technology Group, Inc., a Wisconsin corporation.
"TGI Receivable" means any Receivable for which TGI is the Originator.
"Tranche Period" means, with respect to any Purchaser Interest held by
a Financial Institution:
(a) if Yield for such Purchaser Interest is calculated on the
basis of the LIBO Rate, a period of one, two, three or six months, or
such other period as may be mutually agreeable to the Agent and Seller,
Exh. I-12
48
commencing on a Business Day selected by Seller or the Agent pursuant
to this Agreement. Such Tranche Period shall end on the day in the
applicable succeeding calendar month that corresponds numerically to
the beginning day of such Tranche Period, provided, however, that if
there is no such numerically corresponding day in such succeeding
month, such Tranche Period shall end on the last Business Day of such
succeeding month; or
(b) if Yield for such Purchaser Interest is calculated on the
basis of the Prime Rate, a period commencing on a Business Day selected
by Seller and agreed to by the Agent, provided no such period shall
exceed one month.
If any Tranche Period would end on a day that is not a Business Day, such
Tranche Period shall end on the next succeeding Business Day, provided, however,
that in the case of Tranche Periods corresponding to the LIBO Rate, if such next
succeeding Business Day falls in a new month, such Tranche Period shall end on
the immediately preceding Business Day. In the case of any Tranche Period for
any Purchaser Interest that commences before the Amortization Date and would
otherwise end on a date occurring after the Amortization Date, such Tranche
Period shall end on the Amortization Date. The duration of each Tranche Period
that commences after the Amortization Date shall be of such duration as selected
by the Agent.
"Transaction Documents" means, collectively, this Agreement, each
Purchase Notice, the Receivables Sale Agreement, each Lock-Box Agreement, the
Fee Letter, the Subordinated Notes (as defined in the Receivables Sale
Agreement) and all other instruments, documents and agreements executed and
delivered in connection herewith.
"Transfer Certificate" has the meaning set forth in Section 1.2(b).
"UCC" means the Uniform Commercial Code as from time to time in effect
in the specified jurisdiction.
"Unconditional Liquidity Provider" means a Financial Institution that
is identified by the Agent or by Bank One as an entity that will not under any
circumstance receive any Company Transfer Price Reduction hereunder.
"Yield" means for each respective Tranche Period relating to Purchaser
Interests of the Financial Institutions, an amount equal to the product of the
applicable Discount Rate for each Purchaser Interest multiplied by the Capital
of such Purchaser Interest for each day elapsed during such Tranche Period,
annualized on a 360 day basis.
All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in Article 9 of the UCC in the State of
Illinois, and not specifically defined herein, are used herein as defined in
such Article 9.
Exh. I-13
49
EXHIBIT II
FORM OF PURCHASE NOTICE
[Date]
Bank One, NA (Main Office Chicago), as Agent
1 Bank One Plaza, 21st Floor
Asset-Backed Finance
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
Re: PURCHASE NOTICE
Ladies and Gentlemen:
Reference is hereby made to the Receivables Purchase Agreement, dated
as of October 6, 2000, by and among Plexus ABS, Inc, a Nevada corporation (the
"Seller"), Plexus Corp., as Servicer, the Financial Institutions, Preferred
Receivables Funding Corporation ("Company"), and Bank One, NA (Main Office
Chicago), as Agent (the "Receivables Purchase Agreement"). Capitalized terms
used herein shall have the meanings assigned to such terms in the Receivables
Purchase Agreement.
The Agent is hereby notified of the following Incremental Purchase:
Purchase Price: $
------------------------------------------------
Date of Purchase:
-------------------------------------------------
Requested Tranche Period:
Requested Discount Rate: [LIBO Rate] [Prime Rate] [Pooled Commercial Paper
rate]
Please credit the Purchase Price in immediately available funds to our
Facility Account [and then wire-transfer the Purchase Price in immediately
available funds on the above-specified date of purchase to:
[Account Name]
[Account No.]
[Bank Name & Address]
[ABA #]
Reference:
Telephone advice to: [Name] @ tel. No. ( )
Please advise [Name] at telephone no ( ) if Company
will not be making this purchase.
In connection with the Incremental Purchase to be made on the above
listed "Date of Purchase" (the "Purchase Date"), the Seller hereby certifies
that the following statements are true on the date hereof, and will be true on
the Purchase Date (before and after giving effect to the proposed Incremental
Purchase):
Exh. II-1
50
(i) the representations and warranties of the Seller set forth
in Section 5.1 of the Receivables Purchase Agreement are true and correct on and
as of the Purchase Date as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result
from the proposed Incremental Purchase, that will constitute an Amortization
Event or a Potential Amortization Event;
(iii) the Facility Termination Date has not occurred, the
Aggregate Capital does not exceed the Purchase Limit and the aggregate Purchaser
Interests do not exceed 100%; and
(iv) the amount of Aggregate Capital is $ after
giving effect to the Incremental Purchase to be made on the Purchase Date.
Very truly yours,
PLEXUS ABS, INC.
By:
-------------------------------------
Name:
Title:
Exh. II-2
51
EXHIBIT III
PLACES OF BUSINESS OF THE SELLER PARTIES;
LOCATIONS OF RECORDS;
FEDERAL EMPLOYER IDENTIFICATION NUMBER(S)
Plexus Corp.
Places of Business and Locations of Records:
00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
FEIN: 00-0000000
Corporate, Partnership Trade and Assumed Names: None.
Plexus ABS, Inc.
Places of Business and Locations of Record:
00 Xxxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
FEIN: Applied for
Corporate, Partnership Trade and Assumed Names: None.
Exh. III-1
52
EXHIBIT IV
DESCRIPTION OF LOCK-BOXES
-------------------------------------------------------------------------------------------------------------
Lock-Box Processor Lock-Box Number Address
-------------------------------------------------------------------------------------------------------------
Firstar Bank, N.A. 890 Plexus Technology Group
000 X. Xxxxxxxxx Xxx. Xxxxxx #000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
-------------------------------------------------------------------------------------------------------------
Firstar Bank, N.A. 557 Plexus Electronic Assembly
000 X. Xxxxxxxxx Xxx. Xxxxxx #000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
-------------------------------------------------------------------------------------------------------------
Exh. IV-1
53
EXHIBIT V
FORM OF COMPLIANCE CERTIFICATE
To: Bank One, NA (Main Office Chicago), as Agent
This Compliance Certificate is furnished pursuant to that certain
Receivables Purchase Agreement dated as of October 6, 2000, among Plexus ABS,
Inc. (the "Seller"), Plexus Corp. (the "Servicer"), the Purchasers party thereto
and Bank One, NA (Main Office Chicago), as agent for such Purchasers (the
"Agreement").
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of Seller.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of Seller and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event that constitutes
an Amortization Event or Potential Amortization Event, as each such term is
defined under the Agreement, during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth in paragraph 5 below.
4. Schedule I attached hereto sets forth financial data and
computations evidencing the compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct.
5. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action that Seller has taken, is taking, or
proposes to take with respect to each such condition or event:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this day of , .
Exh. V-1
54
SCHEDULE I TO COMPLIANCE CERTIFICATE
A. Schedule of Compliance as of , with Section of the
Agreement. Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the
Agreement.
This schedule relates to the month ended:
Exh. V-2
55
EXHIBIT VI
FORM OF LOCK-BOX AGREEMENT
[On letterhead of Originator]
,
---------- ----
[Lock-Box Processor]
Re: [Name of Originator]
Ladies and Gentlemen:
Reference is hereby made to each of the departmental post
office boxes listed on Schedule 1 hereto (each, a "Lock-Box") of which one or
more of you has exclusive control for the purpose of receiving mail and
processing payments therefrom pursuant to the Lock-Box Service Agreement dated
originally by and between you and [Originator] (the "Service
Agreement"). You hereby confirm your agreement to perform the services described
therein. Among the services you have agreed to perform therein, is to endorse
all checks and other evidences of payment received in each of the Lox-Boxes, and
credit such payments to a certain account.
[Originator] (the "Company") hereby informs you that the
Company has transferred to its related company (a wholly-owned subsidiary of
Plexus Corp.), Plexus ABS, Inc., a Nevada corporation (the "Seller"), all of the
Company's right, title and interest in and to the items from time to time
received in the Lock-Boxes, but that the Company has agreed to continue to
service the receivables giving rise to such items. Accordingly, the Company and
the Seller hereby request that the name of the Lock-Box be changed to "PLEXUS
ABS, INC." The Seller hereby further advises you that it has sold undivided
interests in the receivables giving rise to such items to a group of purchasers
for whom Bank One, NA (Main Office Chicago) acts as agent (in such capacity, the
"Agent") and has granted a security interest to the Agent in all of the Seller's
right, title and interest in and to the Lock-Box and the funds therein.
Each of the Company and the Seller hereby irrevocably
instructs you, and you hereby agree, that upon receiving notice from the Agent
in the form attached hereto as ANNEX A: (i) the name of the Lock-Box will be
changed to the Agent (or any designee of the Agent), and the Agent will have
exclusive ownership of and access to the Lock-Boxes, and none of the Company,
the Seller, nor any of their respective affiliates will have any control of the
Lock-Boxes or any access thereto, (ii) you will redirect the funds from the
Lock-Boxes as the Agent may request, (iii) you will transfer monies in the
Lock-Box, at any time, as directed by the Agent, (iv) all services to be
performed by you under the Service Agreement will be performed on behalf of the
Agent, and (v) all correspondence or other mail which you have agreed to send to
the Company or the Seller will be sent to the Agent at the following address:
Bank One, NA, as Agent
Mail Code XX0-0000, 00xx Xxxxx
1 Bank Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Credit Manager, Asset Backed Finance Division
Moreover, upon such notice, the Agent will have all rights and
remedies given to the Company (and the Seller, as the Company's assignee) under
the Service Agreement. The Company agrees, however, to continue to pay all fees
and other assessments due thereunder at any time.
Xxx. XX-0
00
You hereby acknowledge that monies received in the Lock-Box or
deposited in any other account established with you by the Agent for the purpose
of receiving funds from the Lock-Boxes are subject to the liens of the Agent,
and will not be subject to deduction, set-off, banker's lien or any other right
you or any other party may have against the Company or the Seller except that
you may debit the Lock-Box for any items deposited therein that are returned or
otherwise not collected and for all charges, fees, commissions and expenses
incurred by you in providing services hereunder, all in accordance with your
customary practices for the charge back of returned items and expenses. You will
be liable only for direct damages in the event you fail to exercise ordinary
care. You shall be deemed to have exercised ordinary care if your action or
failure to act is in conformity with general banking usages or is otherwise a
commercially reasonable practice of the banking industry. You shall not be
liable for any special, indirect or consequential damages, even if you have been
advised of the possibility of these damages.
The parties acknowledge that you may assign or transfer your
rights and obligations hereunder to a wholly-owned subsidiary of Bank One
Corporation.
The Seller agrees to indemnify you for, and hold you harmless
from, all claims, damages, losses, liabilities and expenses, including legal
fees and expenses, resulting from or with respect to this letter agreement and
the administration and maintenance of the Lock-Box and the services provided
hereunder, including, without limitation: (a) any action taken, or not taken, by
you in regard thereto in accordance with the terms of this letter agreement, (b)
the breach of any representation or warranty made by the Seller pursuant to this
letter agreement, (c) any item, including, without limitation, any automated
clearinghouse transaction, which is returned for any reason, and (d) any failure
of the Seller to pay any invoice or charge to you for services in respect to
this letter agreement and the Lock-Box or any amount owing to you from the
Seller with respect thereto or to the service provided hereunder.
THIS LETTER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS. This letter agreement may be
executed in any number of counterparts and all of such counterparts taken
together will be deemed to constitute one and the same instrument.
This letter agreement contains the entire agreement between
the parties, and may not be altered, modified, terminated or amended in any
respect, nor may any right, power or privilege of any party hereunder be waived
or released or discharged, except upon execution by all parties hereto of a
written instrument so providing. In the event that any provision in this letter
agreement is in conflict with, or is inconsistent with, any provision of the
Service Agreement, this letter agreement will exclusively govern and control.
Each party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the
rights of each party hereunder.
Please indicate your agreement to the terms of this letter
agreement by signing in the space provided below. This letter agreement will
become effective immediately upon execution of a counterpart of this letter
agreement by all parties hereto.
Very truly yours,
[ORIGINATOR]
By:
PLEXUS ABS, INC.
By:
Xxx. XX-0
00
XXXXXXXXXXXX AND AGREED TO AS OF THE
6TH DAY OF OCTOBER, 2000:
FIRSTAR BANK, N.A.
By:
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO), AS AGENT
By:
Name:
Title:
Xxx. XX-0
00
XXXXX X
FORM OF NOTICE
[On letterhead of the Agent]
[Date]
Firstar Bank, N.A.
000 X. Xxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Re: [Originator]/Plexus ABS, Inc.
Ladies and Gentlemen:
We hereby notify you that we are exercising our rights
pursuant to that certain letter agreement dated October 6, 2000 (the "Letter
Agreement") among [Originator] and Plexus ABS, Inc., you and us, to have the
name of, and to have exclusive ownership and control of, the Lock-Boxes
identified in the Letter Agreement (the "Lock-Box") maintained with you,
transferred to us. Henceforth all remittances to the Lock-Box should be sent at
the end of each day to account no. in the name of at Bank
One, NA (Main Office Chicago), in Chicago, Illinois, Reference: Plexus ABS,
Inc., or as otherwise directed by the undersigned. You have further agreed to
perform all other services you are performing under the "Service Agreement" (as
defined in the Letter Agreement) on our behalf.
We appreciate your cooperation in this matter.
Very truly yours,
BANK ONE, NA (MAIN OFFICE CHICAGO), AS AGENT
By:
----------------------------
Title:
----------------------------
Xxx. XX-0
00
XXXXXXXX 1
[ORIGINATOR]
LOCKBOX # LOCKBOX ADDRESS
Xxx. XX-0
00
XXXXXXX XXX
FORM OF ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Assignment
Agreement") is entered into as of the day of , , by and
between ("Assignor") and ("Assignee").
PRELIMINARY STATEMENTS
A. This Assignment Agreement is being executed and delivered
in accordance with Section 12.1(b) of that certain Receivables Purchase
Agreement dated as of October 6, 2000, by and among Plexus ABS, Inc., Plexus
Corp., as Servicer, Preferred Receivables Funding Corporation, Bank One, NA
(Main Office Chicago), as Agent, and the Financial Institutions party thereto
(as amended, modified or restated from time to time, the "Purchase Agreement").
Capitalized terms used and not otherwise defined herein are used with the
meanings set forth or incorporated by reference in the Purchase Agreement.
B. Assignor is a Financial Institution party to the Purchase
Agreement, and Assignee wishes to become a Financial Institution thereunder; and
C. Assignor is selling and assigning to Assignee an undivided
% (the "Transferred Percentage") interest in all of Assignor's
rights and obligations under the Purchase Agreement and the Transaction
Documents, including, without limitation, Assignor's Commitment and (if
applicable) the Capital of Assignor's Purchaser Interests as set forth herein.
AGREEMENT
The parties hereto hereby agree as follows:
1. The sale, transfer and assignment effected by this
Assignment Agreement shall become effective (the "Effective Date") two (2)
Business Days (or such other date selected by the Agent in its sole discretion)
following the date on which a notice substantially in the form of Schedule II to
this Assignment Agreement ("Effective Notice") is delivered by the Agent to
Company, Assignor and Assignee. From and after the Effective Date, Assignee
shall be a Financial Institution party to the Purchase Agreement for all
purposes thereof as if Assignee were an original party thereto and Assignee
agrees to be bound by all of the terms and provisions contained therein.
2. If Assignor has no outstanding Capital under the Purchase
Agreement, on the Effective Date, Assignor shall be deemed to have hereby
transferred and assigned to Assignee, without recourse, representation or
warranty (except as provided in paragraph 6 below), and the Assignee shall be
deemed to have hereby irrevocably taken, received and assumed from Assignor, the
Transferred Percentage of Assignor's Commitment and all rights and obligations
associated therewith under the terms of the Purchase Agreement, including,
without limitation, the Transferred Percentage of Assignor's future funding
obligations under Section 4.1 of the Purchase Agreement.
3. If Assignor has any outstanding Capital under the Purchase
Agreement, at or before 12:00 noon, local time of Assignor, on the Effective
Date Assignee shall pay to Assignor, in immediately available funds, an amount
equal to the sum of (i) the Transferred Percentage of the outstanding Capital of
Assignor's Purchaser Interests (such amount, being hereinafter referred to as
the "Assignee's Capital"); (ii) all accrued but unpaid (whether or not then due)
Yield attributable to Assignee's Capital; and (iii) accruing but unpaid fees and
other costs and expenses payable in respect of Assignee's Capital for the period
commencing upon each date such unpaid amounts commence accruing, to and
including the Effective Date (the "Assignee's Acquisition Cost"); whereupon,
Assignor shall be deemed to have sold, transferred and assigned to Assignee,
without recourse,
Exh. VII-1
61
representation or warranty (except as provided in paragraph 6 below), and
Assignee shall be deemed to have hereby irrevocably taken, received and assumed
from Assignor, the Transferred Percentage of Assignor's Commitment and the
Capital of Assignor's Purchaser Interests (if applicable) and all related rights
and obligations under the Purchase Agreement and the Transaction Documents,
including, without limitation, the Transferred Percentage of Assignor's future
funding obligations under Section 4.1 of the Purchase Agreement.
4. Concurrently with the execution and delivery hereof,
Assignor will provide to Assignee copies of all documents requested by Assignee
that were delivered to Assignor pursuant to the Purchase Agreement.
5. Each of the parties to this Assignment Agreement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Assignment Agreement.
6. By executing and delivering this Assignment Agreement,
Assignor and Assignee confirm to and agree with each other, the Agent and the
Financial Institutions as follows: (a) other than the representation and
warranty that it has not created any Adverse Claim upon any interest being
transferred hereunder, Assignor makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made by any other Person in or in connection with the Purchase Agreement or the
Transaction Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of Assignee, the Purchase Agreement or any
other instrument or document furnished pursuant thereto or the perfection,
priority, condition, value or sufficiency of any collateral; (b) Assignor makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Seller, any Obligor, any Seller Affiliate or the
performance or observance by the Seller, any Obligor, any Seller Affiliate of
any of their respective obligations under the Transaction Documents or any other
instrument or document furnished pursuant thereto or in connection therewith;
(c) Assignee confirms that it has received a copy of the Purchase Agreement and
copies of such other Transaction Documents, and other documents and information
as it has requested and deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement; (d) Assignee will,
independently and without reliance upon the Agent, Company, the Seller or any
other Financial Institution or Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Purchase Agreement and
the Transaction Documents; (e) Assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers under the
Transaction Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (f) Assignee
agrees that it will perform in accordance with their terms all of the
obligations that, by the terms of the Purchase Agreement and the other
Transaction Documents, are required to be performed by it as a Financial
Institution or, when applicable, as a Purchaser.
7. Each party hereto represents and warrants to and agrees
with the Agent that it is aware of and will comply with the provisions of the
Purchase Agreement, including, without limitation, Sections 4.1, 13.1 and 14.6
thereof.
8. Schedule I hereto sets forth the revised Commitment of
Assignor and the Commitment of Assignee, as well as administrative information
with respect to Assignee.
9. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS.
10. Assignee hereby covenants and agrees that, prior to the
date that is one year and one day after the payment in full of all senior
indebtedness for borrowed money of Company, it will not institute against, or
join any other Person in instituting against, Company any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
Exh. VII-2
62
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective duly authorized officers
of the date hereof.
[ASSIGNOR]
By:
-------------------------------------
Title:
[ASSIGNEE]
By:
-------------------------------------
Title:
Exh. VII-3
63
SCHEDULE I TO ASSIGNMENT AGREEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
DATE:
---------------, ----
TRANSFERRED PERCENTAGE: %
----------
-----------------------------------------------------------------------------------------------------------------------------
X-0 X-0 X-0 X-0
-----------------------------------------------------------------------------------------------------------------------------
ASSIGNOR COMMITMENT COMMITMENT OUTSTANDING RATABLE SHARE OF
(PRIOR TO GIVING EFFECT (AFTER GIVING EFFECT CAPITAL OUTSTANDING
TO THE ASSIGNMENT TO THE ASSIGNMENT (IF ANY) CAPITAL
AGREEMENT) AGREEMENT)
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
X-0 X-0 X-0
-----------------------------------------------------------------------------------------------------------------------------
ASSIGNEE COMMITMENT OUTSTANDING RATABLE SHARE OF
(AFTER GIVING EFFECT CAPITAL OUTSTANDING
TO THE ASSIGNMENT (IF ANY) CAPITAL
AGREEMENT)
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
ADDRESS FOR NOTICES
-------------------
----------------
----------------
Attention:
Phone:
Fax:
Exh. VII-4
64
SCHEDULE II TO ASSIGNMENT AGREEMENT
EFFECTIVE NOTICE
TO: , Assignor
------------------------
-----------------------
-----------------------
-----------------------
TO: , Assignee
------------------------
-----------------------
-----------------------
-----------------------
The undersigned, as Agent under the Receivables Purchase Agreement
dated as of October 6, 2000, by and among Plexus ABS, Inc., a Nevada
corporation, Plexus Corp., as Servicer, Preferred Receivables Funding
Corporation, Bank One, NA (Main Office Chicago), as Agent, and the Financial
Institutions party thereto, hereby acknowledges receipt of executed counterparts
of a completed Assignment Agreement dated as of , between
, as Assignor, and , as Assignee. Terms
defined in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Effective Date will be , .
2. Company hereby consents to the Assignment Agreement as required by
Section 12.1(b) of the Receivables Purchase Agreement.
Exh. VII-5
65
[3. Pursuant to such Assignment Agreement, the Assignee is required to
pay $ to Assignor at or before 12:00 noon (local time of Assignor)
on the Effective Date in immediately available funds.]
Very truly yours,
BANK ONE, NA (MAIN OFFICE CHICAGO),
individually and as Agent
By:
---------------------------------
Title:
------------------------------
PREFERRED RECEIVABLES FUNDING
CORPORATION
By:
---------------------------------
Authorized Signatory
Exh. VII-6
66
EXHIBIT VIII
CREDIT AND COLLECTION POLICY
See Exhibit V to Receivables Sale Agreement
Exh. VIII-1
67
EXHIBIT IX
FORM OF CONTRACT(S)
See Attached
[not included herein]
Exh. IX-1
68
EXHIBIT X
FORM OF MONTHLY REPORT
In addition to such other information as may be included on this
exhibit, each Monthly Report should set forth the following with respect to the
related Calculation Period (as defined in the Receivables Sale Agreement): (i)
the aggregate Outstanding Balance of Receivables created and conveyed by each
Originator to Seller in purchases pursuant to the Receivables Sale Agreement
during such Calculation Period, as well as the Net Receivables Balance included
therein, (ii) the aggregate purchase price payable to each Originator in respect
of such purchases, specifying the Discount Factor (as defined in the Receivables
Sale Agreement) in effect for such Calculation Period and the aggregate Purchase
Price Credits (as defined in the Receivables Sale Agreement) deducted in
calculating such aggregate purchase price, (iii) the aggregate amount of funds
received by the Servicer during such Calculation Period that are to be applied
as Reinvestments, (iv) the increase or decrease in the amount outstanding under
the Subordinated Notes (as defined in the Receivables Sale Agreement) as of the
end of such Calculation Period after giving effect to the application of funds
toward the aggregate purchase price and the restrictions on Subordinated Loans
(as defined in the Receivables Sale Agreement) set forth in Section 1.2(a)(ii)
of the Receivables Sale Agreement.
The above is a true and accurate accounting pursuant to the terms of
the Receivables Purchase Agreement dated [month, day, year] (the "Agreement"),
by and among Plexus ABS, Inc. and Bank One, NA (Main Office Chicago), as Agent,
and I have no knowledge of the existence of any conditions or events that
constitute an Amortization Event or Potential Amortization Event, as each such
term is defined under the Agreement, during or at the end of the accounting
period covered by this monthly report or as of the date of this certificate,
except as set forth below.
By:______________________
Name:___________________
Title:____________________
Company Name:___________
Date:____________________
69
SCHEDULE A
COMMITMENTS OF FINANCIAL INSTITUTIONS
Financial Institution Commitment
--------------------- ----------
Bank One, NA (Main Office Chicago) $51,000,000
A-1
70
SCHEDULE B
DOCUMENTS TO BE DELIVERED TO THE AGENT
ON OR PRIOR TO THE INITIAL PURCHASE
PART I: DOCUMENTS TO BE DELIVERED IN CONNECTION WITH THE RECEIVABLES
SALE AGREEMENT
1. The Receivables Sale Agreement, duly executed by the parties thereto.
2. Copy of the Resolutions of the Board of Directors of each Originator
certified by its Secretary, authorizing such Originator's execution,
delivery and performance of the Receivables Sale Agreement and the
other documents to be delivered by it thereunder.
3. Articles or Certificate of Incorporation of each Originator certified
by the Secretary of State of the jurisdiction of incorporation of such
Originator on or within thirty (30) days prior to the initial Purchase
(as defined in the Receivables Sale Agreement).
4. Good Standing Certificate for each Originator issued by the Secretaries
of State of its state of incorporation and each jurisdiction where it
has its principal place of business or maintains its books and records
relating to any Receivables, Contracts and/or Related Security, each of
which is listed below:
a. TGI: Wisconsin
b. EAC: Wisconsin
c. SeaMED: Wisconsin and Washington
5. A certificate of the Secretary of each Originator certifying: (i) the
names and signatures of the officers authorized on its behalf to
execute the Receivables Sale Agreement and any other documents to be
delivered by it thereunder and (ii) a copy of such Originator's
By-Laws.
6. Pre-filing state and federal tax lien, judgment lien and UCC lien
searches against Originator from the following jurisdictions:
a. TGI: Wisconsin
b. EAC: Wisconsin
c. SeaMED: Wisconsin and Washington
7. Time stamped receipt copies of proper financing statements, duly filed
under the UCC on or before the date of the initial Purchase (as defined
in the Receivables Sale Agreement) in all jurisdictions as may be
necessary or, in the opinion of Seller (or its assigns), desirable,
under the UCC of all appropriate jurisdictions or any comparable law in
order to perfect the ownership interests contemplated by the
Receivables Sale Agreement.
8. Time stamped receipt copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of
any Person in the Receivables, Contracts or Related Security previously
granted by any Originator.
9. Executed Lock-Box Agreements for each Lock-Box.
10. A favorable opinion of legal counsel for the Originators reasonably
acceptable to Seller (or its assigns) that addresses the following
matters and such other matters as Seller (or its assigns) may
reasonably request:
Sch. B-1
71
-- Ech Originator is a corporation, validly existing,
and in good standing or active status under the laws
of its state of incorporation.
-- Each Originator has all requisite authority to
conduct its business in each jurisdiction where
failure to be so qualified would have a material
adverse effect on such Originator's business.
-- The execution and delivery by each Originator of the
Receivables Sale Agreement and each other Transaction
Document to which it is a party and its performance
of its obligations thereunder have been duly
authorized by all necessary corporate action and
proceedings on the part of such Originator and will
not:
(a) require any action by or in respect of, or
filing with, any governmental body, agency
or official (other than the filing of UCC
financing statements);
(b) contravene, or constitute a default under,
any provision of applicable law or
regulation or of its articles or certificate
of incorporation or bylaws or of any
agreement, judgment, injunction, order,
decree or other instrument binding upon such
Originator; or
(c) result in the creation or imposition of any
Adverse Claim on assets of such Originator
or any of its Subsidiaries (except as
contemplated by the Receivables Sale
Agreement).
-- The Receivables Sale Agreement and each other
Transaction Document to which it is a party has been
duly executed and delivered by each Originator and
constitutes the legal, valid, and binding obligation
of such Originator enforceable in accordance with its
terms, except to the extent the enforcement thereof
may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights
generally and subject also to the availability of
equitable remedies if equitable remedies are sought.
-- The provisions of the Receivables Sale Agreement are
effective to create a valid security interest in
favor of Seller in all Receivables and upon the
filing of financing statements, Seller shall acquire
a first priority, perfected security interest in such
Receivables.
-- To the best of the opinion giver's knowledge, there
is no action, suit or other proceeding against any
Originator or any Affiliate of any Originator, that
would materially adversely affect the business or
financial condition of such Originator and its
Affiliates taken as a whole or which would materially
adversely affect the ability of such Originator to
perform its obligations under the Receivables Sale
Agreement.
11. A "true sale" opinion and "substantive consolidation" opinion of
counsel for the Originators with respect to the transactions
contemplated by the Receivables Sale Agreement.
12. Executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with the Receivables Sale
Agreement.
13. Executed copies of Subordinated Notes (as defined in the Receivables
Sale Agreement) by Seller in favor of each Originator.
Sch. B-2
72
14. A direction letter executed by each Originator authorizing Seller (and
its assignees) and directing warehousemen to allow Seller (and its
assignees) to inspect and make copies from such Originator's books and
records maintained at off-site data processing or storage facilities.
PART II: DOCUMENTS TO BE DELIVERED IN CONNECTION WITH THE AGREEMENT
1. The Receivables Purchase Agreement, duly executed by the parties
thereto.
2. Copy of the Resolutions of the Board of Directors of each Seller Party
certified by its Secretary authorizing such Person's execution,
delivery and performance of this Agreement and the other documents to
be delivered by it hereunder.
3. Articles or Certificate of Incorporation of each Seller Party and
certified by the Secretary of State of its jurisdiction of
incorporation on or within thirty (30) days prior to the initial
Incremental Purchase.
4. Good Standing Certificate for each Seller Party issued by the
Secretaries of State of its state of incorporation and each
jurisdiction where it has its principal place of business or maintains
its books and records relating to any Receivables, Contracts and/or
Related Security, each of which is listed below:
a. Seller: Nevada
b. Servicer: Wisconsin
5. A certificate of the Secretary of each Seller Party certifying (i) the
names and signatures of the officers authorized on its behalf to
execute this Agreement and any other documents to be delivered by it
hereunder and (ii) a copy of such Person's By-Laws.
6. Time stamped receipt copies of proper financing statements, duly filed
under the UCC on or before the date of the initial Incremental Purchase
in all jurisdictions as may be necessary or, in the opinion of the
Agent, desirable, under the UCC of all appropriate jurisdictions or any
comparable law in order to perfect the ownership interests contemplated
by this Agreement.
7. Time stamped receipt copies of proper UCC termination statements, if
any, necessary to release all security interests and other rights of
any Person in the Receivables, Contracts or Related Security previously
granted by Seller.
8. Executed copies of Lock-Box Agreements for each Lock-Box.
9. A favorable opinion of legal counsel for the Seller Parties reasonably
acceptable to the Agent that addresses the following matters and such
other matters as the Agent may reasonably request:
-- Each Seller Party is a corporation duly incorporated,
validly existing, and in good standing under the laws
of its state of incorporation.
-- Each Seller Party has all requisite authority to
conduct its business in each jurisdiction where
failure to be so qualified would have a material
adverse effect on such Person's business.
-- The execution and delivery by each Seller Party of
this Agreement and each other Transaction Document to
which it is a party and its performance of its
obligations thereunder have been duly authorized by
all necessary corporate action and proceedings on the
part of such Person and will not:
Sch. B-3
73
(a) require any action by or in respect of, or
filing with, any governmental body, agency
or official (other than the filing of UCC
financing statements);
(b) contravene, or constitute a default under,
any provision of applicable law or
regulation or of its articles or certificate
of incorporation or bylaws or of any
agreement, judgment, injunction, order,
decree or other instrument binding upon such
Person; or
(c) result in the creation or imposition of any
Adverse Claim on assets of such Person or
any of its Subsidiaries (except as
contemplated by this Agreement).
-- This Agreement and each other Transaction Document to
which such Person is a party has been duly executed
and delivered by such Person and constitutes the
legal, valid, and binding obligation of such Person,
enforceable in accordance with its terms, except to
the extent the enforcement thereof may be limited by
bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and
subject also to the availability of equitable
remedies if equitable remedies are sought.
-- The provisions of the Agreement are effective to
create a valid security interest in favor of the
Agent for the benefit of the Purchasers in all
Receivables, and upon the filing of financing
statements, the Agent for the benefit of the
Purchasers shall acquire a first priority, perfected
security interest in such Receivables.
-- To the best of the opinion giver's knowledge, there
is no action, suit or other proceeding against any
Seller Party or any of their respective Affiliates,
that would materially adversely affect the business
or financial condition of such Person and its
Affiliates taken as a whole or that would materially
adversely affect the ability of such Person to
perform its obligations under any Transaction
Document to which it is a party.
10. If requested by Company or the Agent, a favorable opinion of legal
counsel for each Financial Institution, reasonably acceptable to the
Agent that addresses the following matters:
-- This Agreement has been duly authorized by all
necessary corporate action of such Financial
Institution.
-- This Agreement has been duly executed and delivered
by such Financial Institution and, assuming due
authorization, execution and delivery by each of the
other parties thereto, constitutes a legal, valid and
binding obligation of such Financial Institution,
enforceable against such Financial Institution in
accordance with its terms.
11. A Compliance Certificate.
12. The Fee Letter.
13. A Monthly Report as at August 31, 2000.
14. Executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with this Agreement.
Sch. X-0
00
00. For each Purchaser that is not incorporated under the laws of the
United States of America, or a state thereof, two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Purchaser is entitled to receive payments
under the Agreement without deduction or withholding of any United
States federal income taxes.
Sch. B-5
75
Exhibits and Schedules
Exhibit I Definitions
Exhibit II Form of Purchase Notice
Exhibit III Places of Business of the Seller Parties; Locations of
Records; Federal Employer Identification Number(s)
Exhibit IV Description of Lock-Boxes
Exhibit V Form of Compliance Certificate
Exhibit VI Form of Lock-Box Agreement
Exhibit VII Form of Assignment Agreement
Exhibit VIII Credit and Collection Policy
Exhibit IX Form of Contract(s)
Exhibit X Form of Monthly Report
Schedule A Commitments
Schedule B Closing Documents
i
