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EXHIBIT 10.1
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
DATED AS OF JULY 1, 2001
BETWEEN
PLEXUS SERVICES CORP.,
as Originator,
AND
PLEXUS ABS, INC.,
as Buyer
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TABLE OF CONTENTS
Page
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ARTICLE I AMOUNTS AND TERMS OF THE PURCHASE.......................................................-3-
Section 1.1...............................Purchase of Receivables -3-
Section 1.2..............................Payment for the Purchase -4-
Section 1.3.....................Purchase Price Credit Adjustments -6-
Section 1.4.............................Payments and Computations -6-
Section 1.5...................................Transfer of Records -7-
Section 1.6......................................Characterization -7-
ARTICLE II REPRESENTATIONS AND WARRANTIES.........................................................-8-
Section 2.1..........Representations and Warranties of Originator -8-
ARTICLE III CONDITIONS OF PURCHASE...............................................................-13-
Section 3.1......................Conditions Precedent to Purchase -13-
Section 3.2...........Conditions Precedent to Subsequent Payments -13-
ARTICLE IV COVENANTS.............................................................................-14-
Section 4.1...................Affirmative Covenants of Originator -14-
Section 4.2......................Negative Covenants of Originator -19-
ARTICLE V TERMINATION EVENTS.....................................................................-20-
Section 5.1....................................Termination Events -20-
Section 5.2..............................................Remedies -21-
ARTICLE VI INDEMNIFICATION.......................................................................-22-
Section 6.1.............................Indemnities by Originator -22-
Section 6.2..............................Other Costs and Expenses -25-
ARTICLE VII MISCELLANEOUS........................................................................-26-
Section 7.1................................Waivers and Amendments -26-
Section 7.2...............................................Notices -26-
Section 7.3............Protection of Ownership Interests of Buyer -26-
Section 7.4.......................................Confidentiality -27-
Section 7.5...................................Bankruptcy Petition -28-
Section 7.6.........................................CHOICE OF LAW -29-
Section 7.7...............................CONSENT TO JURISDICTION -29-
Section 7.8..................................WAIVER OF JURY TRIAL -30-
Section 7.9........Integration; Binding Effect; Survival of Terms -30-
Section 7.10.......Counterparts; Severability; Section References -31-
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Exhibits and Schedules
Exhibit I - Definitions
Exhibit II - Principal Place of Business; Location(s) of Records;
Federal Employer Identification Number; Other Names
Exhibit III - Description of Lock-Boxes
Exhibit IV - Intentionally omitted
Exhibit V - Credit and Collection Policy
Exhibit VI - Intentionally omitted
Exhibit VII - Form of Subordinated Note
Schedule A List of Documents to Be Delivered to Buyer Prior to
the Purchase
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AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
THIS AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT, dated as
of July 1, 2001, is by and between PLEXUS SERVICES CORP., a Nevada corporation
(the "Originator"), and PLEXUS ABS, INC., a Nevada corporation ("Buyer"), and
amends and restates that certain
Receivables Sale Agreement dated as of October
6, 2000 (the "Existing Agreement"), by and among ELECTRONIC ASSEMBLY
CORPORATION, a Wisconsin corporation ("EAC" or an "Original Originator"),
TECHNOLOGY GROUP, INC., a Wisconsin corporation ("TGI" or an "Original
Originator"), SEAMED CORPORATION, a Washington corporation ("SeaMed" or an
Original Originator and, together with EAC and TGI, the "Original Originators"),
and the Buyer. Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Exhibit I hereto
(or, if not defined in Exhibit I hereto, the meaning assigned to such term in
Exhibit I to the Purchase Agreement).
PRELIMINARY STATEMENTS
The Original Originators and Buyer were party to the Existing
Agreement, pursuant to which the Original Originators sold and assigned
to Buyer and Buyer purchased from each such Original Originator all of
such Original Originator's right, title and interest in and to
receivables owned by such Original Originator, together with the
Related Security and Collections with respect thereto.
Pursuant to a series of mergers, asset contributions and
transfer transactions (the "Subsidiary Reorganization"), Plexus has
reorganized its subsidiary structure. In particular, and among other
things, pursuant to the Subsidiary Reorganization:
1. Agility, Incorporated, a Massachusetts
corporation, and e2E Corporation, an Oregon corporation (both
subsidiaries of Plexus), were merged into EAC, with EAC being
the surviving entity;
2. Plexus contributed the stock of TGI and SeaMed to
EAC;
3. Originator became a wholly-owned subsidiary of
EAC;
4. TGI and SeaMed were merged into Originator, with
Originator being the surviving entity;
5. EAC contributed substantially all of its assets to
Originator, which also assumed substantially all of the
liabilities of EAC;
6. In furtherance of and without limiting the
transfers described in paragraph 5 above, EAC has transferred
all of its right, title and interest in
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and to, and assigned all of its obligations under, the
Existing Agreement and in each of the subordinated notes
original executed by Buyer in favor of TGI, EAC and SeaMed,
respectively (the "Existing Subordinated Notes"), to
Originator, and Originator has accepted such transfer and
assignment; and
7. Originator formed three subsidiaries, Plexus
Electronic Assembly Corp., a Nevada corporation ("PEAC"),
Plexus Technology Group, Inc., a Nevada corporation ("PTGI"),
and Plexus NPI Plus Corp., a Nevada corporation ("PNPI"), into
which Originator contributed various assets, liabilities and
operations then held by Originator, but excluding accounts
receivable and any Receivables, Related Security, Collections
and other assets transferred hereunder.
As a result of the Subsidiary Reorganization, Originator is an indirect
wholly-owned subsidiary of Plexus, and Originator contracts with
customers for services, certain of which are performed on a subcontract
basis by PEAC, PTGI and PNPI.
Buyer now owns, and hereafter will from time to time own,
Receivables. Originator wishes to sell and assign to Buyer, and Buyer
wishes to purchase from Originator, all of Originator's right, title
and interest in and to such Receivables, together with the Related
Security and Collections with respect thereto.
Originator and Buyer intend the transactions contemplated
hereby to be true sales of the Receivables from Originator to Buyer,
providing Buyer with the full benefits of ownership of the Receivables,
and neither the Originator nor Buyer intends these transactions to be,
or for any purpose to be characterized as, loans from Buyer to
Originator.
Buyer sells, and will continue to sell, undivided interests
therein and in the associated Related Security and Collections pursuant
to that certain Receivables Purchase Agreement dated as of October 6,
2000 and amended as of July 1, 2001 (as the same may from time to time
hereafter be further amended, supplemented, restated or otherwise
modified, the "Purchase Agreement") among Buyer,
Plexus Corp., as
Servicer, Preferred Receivables Funding Corporation ("Company"), the
financial institutions from time to time party thereto as "Financial
Institutions" and Bank One, NA (Main Office Chicago) or any successor
agent appointed pursuant to the terms of the Purchase Agreement, as
agent for Company and such Financial Institutions (in such capacity,
the "Agent").
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual agreements herein contained and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
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ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 Purchase of Receivables.
(a) Effective on the date hereof, in consideration
for the Purchase Price and upon the terms and subject to the conditions set
forth herein, Originator does hereby sell, assign, transfer, set-over and
otherwise convey to Buyer, without recourse (except to the extent expressly
provided herein), and Buyer does hereby purchase from Originator, all of
Originator's right, title and interest in and to all Receivables existing as of
the close of business on the Business Day immediately prior to the date hereof
and all Receivables thereafter arising through and including the Termination
Date, together, in each case, with all Related Security relating thereto and all
Collections thereof. In accordance with the preceding sentence, on the date
hereof Buyer shall acquire all of Originator's right, title and interest in and
to all Receivables existing as of the close of business on the Business Day
immediately prior to the date hereof and thereafter arising through and
including the Termination Date, together with all Related Security relating
thereto and all Collections thereof. Buyer shall be obligated to pay the
Purchase Price for the Receivables purchased hereunder in accordance with
Section 1.2. In connection with consummation of the Purchase Price for any
Receivables purchased hereunder, Buyer may request that Originator deliver, and
Originator shall deliver, such approvals, opinions, information, reports or
documents as Buyer may reasonably request.
(b) It is the intention of the parties hereto that
the Purchase of Receivables made hereunder shall constitute a sale, which sale
is absolute and irrevocable and provides Buyer with the full benefits of
ownership of the Receivables. Except for the Purchase Price Credits owed
pursuant to Section 1.3, the sale of Receivables hereunder is made without
recourse to Originator; provided, however, that (i) Originator shall be liable
to Buyer for all representations, warranties, covenants and indemnities made by
Originator pursuant to the terms of the Transaction Documents to which
Originator is a party, and (ii) such sale does not constitute and is not
intended to result in an assumption by Buyer or any assignee thereof of any
obligation of Originator or any other Person arising in connection with the
Receivables, the related Contracts and/or other Related Security or any other
obligations of Originator. In view of the intention of the parties hereto that
the Purchase of Receivables made hereunder shall constitute a sale of such
Receivables
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rather than loans secured thereby, Originator agrees that it will, on or prior
to the date hereof and in accordance with Section 4.1(e)(ii), ▇▇▇▇ its master
data processing records relating to the Receivables with a legend acceptable to
Buyer and to the Agent (as Buyer's assignee), evidencing that Buyer has
purchased such Receivables as provided in this Agreement and to note in its
financial statements that its Receivables have been sold to Buyer. Upon the
request of Buyer or the Agent (as Buyer's assignee), Originator will execute and
file such financing or continuation statements, or amendments thereto or
assignments thereof, and such other instruments or notices, as may be necessary
or appropriate to perfect and maintain the perfection of Buyer's ownership
interest in the Receivables and the Related Security and Collections with
respect thereto, or as Buyer or the Agent (as Buyer's assignee) may reasonably
request.
Section 1.2 Payment for the Purchase.
(a) The Purchase Price for the Purchase of
Receivables in existence on the close of business on the Business Day
immediately preceding the date hereof (the "Initial Cutoff Date") shall be
payable in full by Buyer to the Originator, and shall be paid to Originator in
the following manner:
(i) by delivery of immediately available
funds, to the extent of funds made available to Buyer in connection
with its subsequent sale of an interest in such Receivables to the
Purchasers under the Purchase Agreement; and
(ii) the balance, by delivery of the
proceeds of a subordinated revolving loan from Originator to Buyer (a
"Subordinated Loan") in an amount not to exceed the lesser of (A) the
remaining unpaid portion of such Purchase Price of the Receivables and
(B) the maximum Subordinated Loan that could be borrowed without
rendering Buyer's Net Worth less than the Required Capital Amount.
Originator is hereby authorized by Buyer to endorse on the schedule
attached to the Subordinated Note an appropriate notation evidencing
the date and amount of each advance thereunder, as well as the date of
each payment with respect thereto, provided that the failure to make
such notation shall not affect any obligation of Buyer thereunder.
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The Purchase Price for each Receivable coming into existence after the Initial
Cutoff Date shall be due and owing in full by Buyer to the Originator or its
designee on the date each such Receivable came into existence (except that Buyer
may, with respect to any such Purchase Price, offset against such Purchase Price
any amounts owed by Originator to Buyer hereunder and that have become due but
remain unpaid) and shall be paid to Originator in the manner provided in the
following paragraphs (b), (c) and (d).
(b) With respect to any Receivables coming into
existence after the Initial Cutoff Date, on each Settlement Date, Buyer shall
pay the Purchase Price therefor in accordance with Section 1.2(d) and in the
following manner:
first, by delivery of immediately available funds, to
the extent of funds available to Buyer from its subsequent sale of an
interest in the Receivables to the Agent for the benefit of the
Purchasers under the Purchase Agreement or other cash on hand;
second, by delivery of the proceeds of a Subordinated
Loan, provided that the making of any such Subordinated Loan shall be
subject to the provisions set forth in Section 1.2(a)(ii).
Subject to the limitations set forth in Section 1.2(a)(ii), Originator
irrevocably agrees to advance each Subordinated Loan requested by Buyer on or
prior to the Termination Date. The Subordinated Loans shall be evidenced by, and
shall be payable in accordance with the terms and provisions of the Subordinated
Note and shall be payable solely from funds that Buyer is not required under the
Purchase Agreement to set aside for the benefit of, or otherwise pay over to,
the Purchasers.
(c) From and after the Termination Date, Originator
shall not be obligated to (but each may, at its option) sell Receivables to
Buyer unless Originator reasonably determines that the Purchase Price therefor
will be satisfied with funds available to Buyer from sales of interests in the
Receivables pursuant to the Purchase Agreement, Collections, proceeds of
Subordinated Loans, other cash on hand or otherwise.
(d) Although the Purchase Price for each Receivable
coming into existence after the Initial Cutoff Date shall be due and payable in
full by Buyer to the Originator of such Receivable on the date such Receivable
came into existence, settlement of the Purchase Price between Buyer and
Originator shall be effected on a monthly basis on Settlement Dates with respect
to all Receivables coming into existence during the same Calculation Period and
based on the information contained in the Monthly Report delivered by the
Servicer pursuant to
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Article VIII of the Purchase Agreement for the Calculation Period then most
recently ended. Although settlement shall be effected on Settlement Dates,
increases or decreases in the amount owing under the Subordinated Note made
pursuant to Section 1.2(b) shall be deemed to have occurred and shall be
effective as of the last Business Day of the Calculation Period to which such
settlement relates.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
(a) the Outstanding Balance of a Receivable is:
(i) reduced as a result of any defective or
rejected or returned goods or services, any discount or any adjustment
or otherwise by the Originator (other than cash Collections on account
of the Receivables),
(ii) 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
(b) any of the representations and warranties set
forth in Article II are not true when made or deemed made with respect to any
Receivable,
then, in such event, Buyer shall be entitled to a credit (each, a "Purchase
Price Credit") against the Purchase Price otherwise payable hereunder equal to
(A) in the case of any reduction, discount or adjustment pursuant to Section
1.3(a)(i) or any reduction (but not cancellation) pursuant to Section
1.3(a)(ii), the amount of such reduction, discount or adjustment, and (B) in all
other circumstances set forth in Sections 1.3(a) or (b), the Outstanding Balance
of such Receivable (calculated before giving effect to the applicable reduction
or cancellation). If such Purchase Price Credit exceeds the Original Balance of
the Receivables coming into existence on any day, then the Originator shall pay
the remaining amount of such Purchase Price Credit in cash immediately, provided
that if the Termination Date has not occurred, Originator shall be allowed to
deduct the remaining amount of such Purchase Price Credit from any indebtedness
owed to it under the Subordinated Note.
Section 1.4 Payments and Computations. All amounts to be paid
or deposited by Buyer hereunder shall be paid or deposited in accordance with
the terms hereof on the day when due in immediately available funds to the
account of Originator designated
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from time to time by Originator or as otherwise directed by Originator. Until
further written notice from Originator to Buyer, Originator hereby directs Buyer
to make all payments and deposits for the account of such Buyer to
Plexus
Corp.'s account no.121517-807 at Firstar Bank, N.A. In the event that any
payment owed by any Person hereunder becomes due on a day that is not a Business
Day, then such payment shall be made on the next succeeding Business Day. If any
Person fails to pay any amount hereunder when due, such Person agrees to pay, on
demand, the Default Fee in respect thereof until paid in full; provided,
however, that such Default Fee shall not at any time exceed the maximum rate
permitted by applicable law. All computations of interest payable hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first but excluding the last day) elapsed.
Section 1.5 Transfer of Records.
(a) In connection with the Purchase of Receivables hereunder,
Originator hereby sells, transfers, assigns and otherwise conveys to Buyer all
of Originator's right and title to and interest in the Records relating to all
Receivables sold hereunder, without the need for any further documentation in
connection with the Purchase. In connection with such transfer, Originator
hereby grants to each of Buyer, the Agent and the Servicer an irrevocable,
non-exclusive license to use, without royalty or payment of any kind, all
software used by Originator to account for the Receivables, to the extent
necessary to administer the Receivables, whether such software is owned by
Originator or is owned by others and used by Originator under license agreements
with respect thereto, provided that should the consent of any licensor of such
software be required for the grant of the license described herein, to be
effective, Originator hereby agrees that upon the request of Buyer (or Buyer's
assignee), Originator will use its reasonable efforts to obtain the consent of
such third-party licensor. The license granted hereby shall be irrevocable until
the indefeasible payment in full of the Aggregate Unpaids, and shall terminate
on the date this Agreement terminates in accordance with its terms.
(b) Originator (i) shall take such action requested by Buyer
and/or the Agent (as Buyer's assignee), from time to time hereafter, that may be
necessary or appropriate to ensure that Buyer and its assigns under the Purchase
Agreement have an enforceable ownership interest in the Records relating to the
Receivables purchased from Originator hereunder, and (ii) shall use its
reasonable efforts to ensure that Buyer, the Agent and the Servicer each has an
enforceable right (whether by license or sublicense or otherwise) to use all of
the computer software used to account for the Receivables and/or to recreate
such Records.
Section 1.6 Characterization. If, notwithstanding the
intention of the parties expressed in Section 1.1(b), any sale or contribution
by Originator to Buyer of Receivables hereunder shall be characterized as a
secured loan and not a sale or such sale
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shall for any reason be ineffective or unenforceable, then this Agreement shall
be deemed to constitute a security agreement under the UCC and other applicable
law. For this purpose and without being in derogation of the parties' intention
that the sale of Receivables hereunder shall constitute a true sale thereof,
Originator hereby grants to Buyer a duly perfected security interest in all of
Originator's right, title and interest in, to and under all Receivables now
existing and hereafter arising, all Collections and Related Security with
respect thereto, each Lock-Box, all other rights and payments relating to the
Receivables and all proceeds of the foregoing to secure the prompt and complete
payment of a loan deemed to have been made in an amount equal to the Purchase
Price of the Receivables together with all other obligations of Originator
hereunder, which security interest shall be prior to all other Adverse Claims
thereto. Buyer and its assigns 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.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Originator.
Originator hereby represents and warrants to Buyer on the date hereof, on the
date of the Purchase and on each date that any Receivable comes into existence
that:
(a) Corporate Existence and Power. Originator is a
corporation duly organized, validly existing and in good standing or active
status under the laws of its state of incorporation, and is duly qualified to do
business and is in good standing or active status as a foreign corporation 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 Originator of this Agreement and
each other Transaction Document to which it is a party, and the performance of
its obligations hereunder and thereunder, and Originator's use of the proceeds
of the
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Purchase of the Receivables 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 Originator
is a party has been duly executed and delivered by Originator.
(c) No Conflict. The execution and delivery by
Originator 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 (or equivalent organizational documents) or any shareholder agreements,
voting trusts, and similar arrangements applicable to any of its authorized
shares, (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 Originator 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 Originator 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 Originator's knowledge, threatened,
against or affecting Originator, 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. Originator 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 Originator is a party constitute the legal, valid
and binding obligations of Originator enforceable against Originator 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
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creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
(g) Accuracy of Information. All information
heretofore furnished by Originator or any of its Affiliates to Buyer (or its
assigns) 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 Originator or any of its Affiliates
to Buyer (or its assigns) 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
Price payment to Originator hereunder will be used (i) for a purpose that
violates, or would be inconsistent with, any law, rule or regulation applicable
to Originator or (ii) to acquire any security in any transaction that is subject
to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to the Purchase
hereunder and upon the creation of each Receivable coming into existence after
the Initial Cut-Off Date, Originator (i) is the legal and beneficial owner of
the Receivables to be sold by Originator hereunder and (ii) is the legal and
beneficial owner of the Related Security with respect thereto or possesses a
valid and perfected security interest therein, in each case, 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 Originator'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 transfer
to Buyer (and Buyer shall acquire from Originator) (i) legal and equitable title
to, with the right to sell and encumber each Receivable existing and hereafter
arising, together with the Collections with respect thereto, and (ii) all of
Originator's right, title and interest in the Related Security associated with
each Receivable, in each case, free and clear of any Adverse Claim, except as
created by the Transactions Documents. There have
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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 Buyer's ownership 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 Originator and the
offices where it keeps all of its Records are located at the address(es) listed
on Exhibit II or such other locations of which Buyer has been notified in
accordance with Section 4.2(a) in jurisdictions where all action required by
Section 4.2(a) has been taken and completed. Originator's Federal Employer
Identification Number is correctly set forth on Exhibit II. Originator has not
changed the location of its principal place of business and chief executive
office or its identity or corporate, limited liability company or other
organizational structure within the four months prior to the date of this
Agreement. Originator has not changed its jurisdiction of organization.
Originator is a Nevada corporation and a "registered organization" (as defined
in Section 9-102(a)(70) of any applicable enactment of the UCC) organized under
the law of the state of Nevada.
(l) Collections. The conditions and requirements set
forth in Section 4.1(i) 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 III. Originator has not
granted any Person, other than Buyer (and its assigns) 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. Since March 31, 2001, no
event has occurred that could reasonably be expected to have a Material Adverse
Effect.
(n) Names. In the past five (5) years, Originator has
not used any corporate names, trade names or assumed names other than as listed
on Exhibit II.
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(o) Ownership of Buyer.
Plexus Corp. owns, directly
or indirectly, 100% of the issued and outstanding capital stock of Buyer, 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 Buyer.
(p) Not a Holding Company or an Investment Company.
Originator 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. Originator 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. Originator 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.
Originator has complied in all material respects with the Credit and Collection
Policy with regard to each Receivable and the related Contracts, and has not
made any change to such Credit and Collection Policy, except such material
change as to which Buyer (or its assigns) has been notified in accordance with
Section 4.1(a)(vii).
(s) Payments to Originator. With respect to each
Receivable of Originator transferred to Buyer hereunder, the Purchase Price
received by Originator constitutes reasonably equivalent value in consideration
therefor and such transfer was not made for or on account of an antecedent debt.
No transfer by Originator of any Receivable hereunder is or may be voidable
under any section of the Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101
et seq.), as amended.
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(t) Enforceability of Contracts. Each Contract with
respect to each Receivable sold by Originator hereunder 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 at
any time in the Net Receivables Balance as an Eligible Receivable was, on the
later to occur of the date of the Purchase and the date it came into existence,
an Eligible Receivable on such date.
(v) Accounting. The manner in which Originator
accounts for the transactions contemplated by this Agreement does not jeopardize
the characterization of the transactions contemplated herein as being true
sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Purchase. The Purchase
under this Agreement is subject to the conditions precedent that (a) Buyer shall
have received on or before the date of such purchase those documents listed on
Schedule A, (b) the Subsidiary Reorganization and the transactions contemplated
thereby shall have been consummated and all agreements, instruments and other
documents related to the Subsidiary Reorganization shall be in full force and
effect and (c) all of the conditions to the initial purchase under the Purchase
Agreement shall have been satisfied or waived in accordance with the terms
thereof.
Section 3.2 Conditions Precedent to Subsequent Payments.
Buyer's obligation to pay for Receivables coming into existence after the
Initial Cutoff Date shall be subject to the further conditions precedent that
(a) the Facility Termination Date shall not have occurred; (b) Buyer (or its
assigns) shall have received such other approvals, opinions
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or documents as it may reasonably request and (c) on the date such Receivable
came into existence, the following statements shall be true (and acceptance of
the proceeds of any payment for such Receivable shall be deemed a representation
and warranty by the Originator of such Receivable that such statements are then
true):
(i) the representations and warranties set forth in
Article II are true and correct on and as of the date such Receivable came into
existence as though made on and as of such date; and
(ii) no event has occurred and is continuing that
will constitute a Termination Event or a Potential Termination Event.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash, through an increase in the
amounts outstanding under the Subordinated Note, by offset of amounts owed to
Buyer and/or by offset of capital contributions), title to such Receivable and
the Related Security and Collections with respect thereto shall vest in Buyer,
whether or not the conditions precedent to Buyer's obligation to pay for such
Receivable were in fact satisfied. The failure of Originator to satisfy any of
the foregoing conditions precedent, however, shall give rise to a right of Buyer
to rescind the related purchase and direct Originator to pay to Buyer an amount
equal to the Purchase Price payment that shall have been made with respect to
any Receivables related thereto.
ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of Originator. Until the
date on which this Agreement terminates in accordance with its terms, Originator
hereby covenants as set forth below:
(a) Reporting Requirements.
(i) 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
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the collectibility of the Receivables or decrease the credit quality of
any newly created Receivables, requesting Buyer's consent thereto.
(ii) 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 Originator as Buyer (or its assigns) may from time to
time reasonably request in order to protect the interests of Buyer (and
its assigns) under or as contemplated by this Agreement.
(b) Notices. Originator will notify the Buyer (or its
assigns) 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) Termination Events or Potential
Termination Events. The occurrence of each Termination Event and each
Potential Termination Event, by a statement of an Authorized Officer of
Originator.
(ii) Judgment and Proceedings. (1) The entry
of any judgment or decree against Originator or any of its Subsidiaries
if the aggregate amount of all judgments and decrees then outstanding
against Originator and its Subsidiaries could reasonably be expected to
have a Material Adverse Effect, and (2) the institution of any
litigation, arbitration proceeding or governmental proceeding against
Originator that could reasonably be expected to have a Material Adverse
Effect.
(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) Defaults Under Other Agreements. The
occurrence of a default or an event of default under any other
financing arrangement pursuant to which Originator is a debtor or an
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obligor that could reasonably be expected to have a Material Adverse
Effect.
(c) Compliance with Laws and Preservation of
Corporate Existence. Originator 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 be so qualified
could not reasonably be expected to have a Material Adverse Effect.. Originator
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.
(d) Audits. Originator will furnish to Buyer (or its
assigns) from time to time such information with respect to it and the
Receivables as Buyer (or its assigns) may reasonably request. Originator will,
from time to time during regular business hours as requested by Buyer (or its
assigns), upon reasonable notice and at the sole cost of Originator, permit
Buyer (or its assigns) or their respective agents or representatives, (i) to
examine and make copies of and abstracts from all Records in the possession or
under the control of Originator relating to the Receivables of Originator and
the Related Security, including, without limitation, the related Contracts, and
(ii) to visit the offices and properties of Originator for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to Originator's financial condition or the Receivables and the Related
Security or Originator's performance under any of the Transaction Documents or
Originator's performance under the Contracts and, in each case, with any of the
officers or employees of Originator having knowledge of such matters.
(e) Keeping and Marking of Records and Books.
(i) Originator will maintain and implement
administrative and operating procedures (including, without limitation,
an ability to recreate records evidencing the 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
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(including, without limitation, records adequate to permit the
immediate identification of each new Receivable and all Collections of
and adjustments to each existing Receivable). Originator will give
Buyer (or its assigns) notice of any material change in the
administrative and operating procedures referred to in the previous
sentence.
(ii) Originator will (A) on or prior to the
date hereof, ▇▇▇▇ its master data processing records and other books
and records relating to the Receivables with a legend, acceptable to
Buyer (or its assigns), describing Buyer's ownership interests in the
Receivables and further describing the Purchaser Interests of the Agent
(on behalf of the Purchasers) under the Purchase Agreement and (B) upon
the occurrence and during the continuance of an Amortization Event
pursuant to the Purchase Agreement, upon the request of Buyer (or its
assigns), (x) ▇▇▇▇ each Contract with a legend describing Buyer's
ownership interests in the Receivables and further describing the
Purchaser Interests of the Agent (on behalf of the Purchasers) and (y)
deliver to Buyer (or its assigns) 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. Originator will 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) Ownership. Originator will take all necessary
action to establish and maintain, irrevocably in Buyer, (A) legal and equitable
title to the Receivables of Originator and the Collections and (B) all of
Originator's right, title and interest in the Related Security associated with
the Receivables, in each case, free and clear of any Adverse Claims other than
Adverse Claims in favor of Buyer (and its assigns) (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 Buyer's interest in such Receivables, Related Security
and Collections and such other action to perfect, protect or more fully evidence
the interest of Buyer as Buyer (or its assigns) may reasonably request).
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(h) Purchasers' Reliance. Originator acknowledges
that the Agent and the Purchasers are entering into the transactions
contemplated by the Purchase Agreement in reliance upon Buyer's identity as a
legal entity that is separate from
Plexus Corp. and any Affiliates thereof,
including the Originator. Therefore, from and after the date of execution and
delivery of this Agreement, Originator will take all reasonable steps including,
without limitation, all steps that Buyer or any assignee of Buyer may from time
to time reasonably request to maintain Buyer's identity as a separate legal
entity and to make it manifest to third parties that Buyer is an entity with
assets and liabilities distinct from those of Originator and any Affiliates
thereof and not just a division of Originator or any such Affiliate. Without
limiting the generality of the foregoing and in addition to the other covenants
set forth herein, Originator (i) will not hold itself out to third parties as
liable for the debts of Buyer nor purport to own the Receivables and other
assets acquired by Buyer, (ii) will take all other actions necessary on its part
to ensure that Buyer is at all times in compliance with the covenants set forth
in Section 7.1(i) of the Purchase Agreement and (iii) will cause all tax
liabilities arising in connection with the transactions contemplated herein or
otherwise to be allocated between Originator and Buyer on an arm's-length basis
and in a manner consistent with the procedures set forth in U.S. Treasury
Regulations Sections 1.1502-33(d) and 1.1552-1.
(i) Collections. Originator will cause (1) all
proceeds from all Lock-Boxes to be directly deposited (A) for so long as no
Amortization Event has occurred and is continuing under the Purchase Agreement,
to a Plexus Account and (B) upon the occurrence and during the continuance of an
Amortization Event under the Purchase Agreement, if so required by the Agent
thereunder, to 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 Originator or any
Affiliate of Originator, Originator will remit (or will cause all such payments
to be remitted) (X) for so long as no Amortization Event has occurred and is
continuing under the Receivables Purchase Agreement, to a Plexus Account and (Y)
upon the occurrence and during the continuance of an Amortization Event under
the Receivables Purchase Agreement, to a Designated Account, in each case within
two (2) Business Days following receipt thereof. Originator will transfer
exclusive ownership, dominion and control of each Lock-Box to Buyer and, will
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 Buyer (or
its assigns) as contemplated by this Agreement and the Purchase Agreement.
(j) Taxes. Originator will file all tax returns and
reports required by law to be filed by it and 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
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have been set aside on its books. Originator will pay when due any taxes payable
in connection with the Receivables of Originator, exclusive of taxes on or
measured by income or gross receipts of Buyer and its assigns.
Section 4.2 Negative Covenants of Originator. Until the date
on which this Agreement terminates in accordance with its terms, Originator
hereby covenants that:
(a) Name Change, Offices and Records. Originator will
not change its name, identity, jurisdiction of organization or corporate
structure (within the meaning of Section 9-507 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 Buyer (or its assigns) at least thirty (30)
days' prior written notice thereof and (ii) delivered to Buyer (or its assigns)
all financing statements, instruments and other documents requested by Buyer (or
its assigns) in connection with such change or relocation.
(b) Change in Payment Instructions to Obligors.
Originator 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
Buyer (or its assigns) 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 Originator may make changes in instructions to Obligors regarding payments
if such new instructions require such Obligor to make payments to another
existing Lock-Box.
(c) Modifications to Contracts and Credit and
Collection Policy. Originator will not 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 Buyer's (or its assigns') prior written consent. Except as otherwise
permitted in its capacity as Servicer pursuant to Article VIII of the Purchase
Agreement, Originator will not 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. Originator will not sell, assign
(by operation of law or otherwise) or otherwise dispose of, or grant any option
with
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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 Buyer provided for herein), and Originator
will defend the right, title and interest of Buyer in, to and under any of the
foregoing property, against all claims of third parties claiming through or
under Originator. Originator shall 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 of which gives rise to any
Receivable.
(e) Accounting for Purchase. Originator will not, and
will not permit any Affiliate to, account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby in any manner
other than the sale of the Receivables and the Related Security by Originator to
Buyer or in any other respect account for or treat the transactions contemplated
hereby in any manner other than as a sale of the Receivables and the Related
Security by Originator to Buyer except to the extent that such transactions are
not recognized on account of consolidated financial reporting in accordance with
generally accepted accounting principles.
ARTICLE V
TERMINATION EVENTS
Section 5.1 Termination Events. The occurrence of any one or
more of the following events shall constitute a Termination Event:
(a) Originator 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)) or any other Transaction Document to which it is a party and such
failure shall continue for three (3) consecutive Business Days.
(b) Any representation, warranty, certification or
statement made by Originator in this Agreement, any other Transaction Document
to which it
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is a party or in any other document delivered pursuant hereto or thereto shall
prove to have been incorrect when made or deemed made.
(c) Failure of Originator to pay any Indebtedness
when due, or the default by Originator 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 Originator 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) Originator 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 Originator 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) Originator or any of its Subsidiaries shall take any corporate action
to authorize any of the actions set forth in the foregoing clauses (i) or (ii)
of this subsection (d).
(e) A Change of Control shall occur.
(f) 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 Originator on claims not covered by insurance or as to
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.
Section 5.2 Remedies. Upon the occurrence and during the
continuation of a Termination Event, Buyer may take any of the following
actions: (i) declare the Termination Date to have occurred, whereupon the
Termination Date shall forthwith occur, without demand, protest or further
notice of any kind, all of which are hereby expressly waived by Originator;
provided, however, that upon the occurrence of a Termination Event
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described in Section 5.1(d), or of an actual or deemed entry of an order for
relief with respect to Originator under the Federal Bankruptcy Code, the
Termination Date shall automatically occur, without demand, protest or any
notice of any kind, all of which are hereby expressly waived by Originator and
(ii) to the fullest extent permitted by applicable law, declare that the Default
Fee shall accrue with respect to any amounts then due and owing by Originator to
Buyer. The aforementioned rights and remedies shall be without limitation and
shall be in addition to all other rights and remedies of Buyer and its assigns
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 VI
INDEMNIFICATION
Section 6.1 Indemnities by Originator. Without limiting any
other rights that Buyer may have hereunder or under applicable law, Originator
hereby agrees, severally and not jointly, to indemnify (and pay upon demand to)
Buyer and its 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 Buyer or any
such assign) 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 Buyer of an interest in the Receivables of Originator, excluding,
however:
(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;
(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
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(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 under the Purchase Agreement as a
loan or loans by the Purchasers to Buyer secured by, among other
things, the Receivables, the Related Security and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of Originator or limit the recourse of Buyer to Originator for amounts
otherwise specifically provided to be paid by Originator under the terms of this
Agreement. Without limiting the generality of the foregoing indemnification,
Originator shall indemnify Buyer for Indemnified Amounts (including, without
limitation, losses in respect of uncollectible receivables, regardless of
whether reimbursement therefor would constitute recourse to Originator) relating
to or resulting from:
(i) any representation or warranty made by
Originator (or any officers of Originator) under or in connection with
this Agreement, any other Transaction Document or any other information
or report delivered by Originator pursuant hereto or thereto that shall
have been false or incorrect when made or deemed made;
(ii) the failure by 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 Originator to keep or perform any
of its obligations, express or implied, with respect to any Contract;
(iii) any failure of 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
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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 of Originator (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 any Purchase Price Payment of Originator, the ownership
of the Receivables or any other investigation, litigation or proceeding
relating to 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 of Originator 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 Termination Event described in
Section 5.1(d) with respect to Originator;
(x) any failure to vest and maintain vested
in Buyer, or to transfer to Buyer, legal and equitable title to, and
ownership of, the Receivables and the Collections of Originator, and
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all of Originator's right, title and interest in the Related Security
associated with the Receivables of Originator, in each case, free and
clear of any Adverse Claim;
(xi) 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 of Originator, the
Related Security and Collections with respect thereto, and the proceeds
of any thereof, whether at the time of the Purchase or at any
subsequent time;
(xii) any action or omission by Originator
that reduces or impairs the rights of Buyer with respect to any
Receivable of Originator or the value of any such Receivable;
(xiii) any attempt by any Person to void the
Purchase hereunder under statutory provisions or common law or
equitable action; and
(xiv) the failure of any Receivable of
Originator included in the calculation of the Net Receivables Balance
as an Eligible Receivable to be an Eligible Receivable at the time so
included.
Section 6.2 Other Costs and Expenses. The Originator shall be
liable for, and shall pay to Buyer 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. The Originator shall pay to Buyer on
demand any and all costs and expenses of Buyer, 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 a Termination Event.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Waivers and Amendments.
No failure or delay on the part of Buyer (or its
assigns) 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.
(a) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by Originator and
Buyer and, to the extent required under the Purchase Agreement, the Agent and
the Financial Institutions or the Required Financial Institutions.
Section 7.2 Notices. 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 7.2.
Section 7.3 Protection of Ownership Interests of Buyer.
Originator 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 Buyer (or its
assigns) may reasonably request, to perfect, protect or more fully evidence the
interest of Buyer hereunder and the Purchaser Interests, or to enable Buyer (or
its assigns) to exercise and enforce their rights and remedies hereunder. Upon
the occurrence an during the continuance of a Termination Event hereunder or of
an
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Amortization Event under the Purchase Agreement, Buyer (or its assigns) may, at
the applicable Originator's sole cost and expense, direct Originator to notify
the Obligors of Receivables of Originator of the ownership interests of Buyer
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 Buyer or its
designee.
(a) If Originator fails to perform any of its
obligations hereunder, Buyer (or its assigns) may (but shall not be required to)
perform, or cause performance of, such obligations, and Buyer's (or such
assigns') costs and expenses incurred in connection therewith shall be payable
by Originator as provided in Section 6.2. Originator irrevocably authorizes
Buyer (and its assigns) at any time and from time to time in the sole discretion
of Buyer (or its assigns), and appoints Buyer (and its assigns) as its
attorney(ies)-in-fact, to act on behalf of Originator (i) to execute on behalf
of Originator as debtor and to file financing statements necessary or desirable
in Buyer's (or its assigns') sole discretion to perfect and to maintain the
perfection and priority of the interest of Buyer 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 Buyer (or its assigns) in their sole discretion deem necessary
or desirable to perfect and to maintain the perfection and priority of Buyer's
(or its assigns') interests in the Receivables. This appointment is coupled with
an interest and is irrevocable. The authorization set forth in the second
sentence of this Section 7.3(b) is intended to meet all requirements for
authorization by a debtor under Article 9 of any applicable enactment of the
UCC, including, without limitation, Section 9-509 thereof.
Section 7.4 Confidentiality.
Originator 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 Originator and its officers and employees may disclose such
information to Originator'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).
(a) Anything herein to the contrary notwithstanding,
Originator hereby consents to the disclosure of any nonpublic information with
respect to it (i) to Buyer, the Agent, the Financial Institutions or Company by
each
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31
other, (ii) by Buyer, 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).
(b) Buyer 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 Originator,
the Obligors and their respective businesses obtained by it in connection with
the due diligence evaluations, structuring, negotiating and execution of the
Transaction Documents, and the consummation of the transactions contemplated
herein and any other activities of Buyer arising from or related to the
transactions contemplated herein provided, however, that each of Buyer and its
employees and officers shall be permitted to disclose such confidential or
proprietary information: (i) to the Agent and the other Purchasers, (ii) to any
prospective or actual assignee or participant of the Agent or the other
Purchasers who execute a confidentiality agreement for the benefit of the
Originator and Buyer on terms comparable to those required of Buyer hereunder
with respect to such disclosed information, (iii) to any rating agency, provider
of a surety, guaranty or credit or liquidity enhancement to Company, (iv) to any
officers, directors, employees, outside accountants and attorneys of any of the
foregoing, and (v) to the extent required pursuant to any applicable law, rule,
regulation, direction, request or order of any judicial, administrative or
regulatory authority or proceedings with competent jurisdiction (whether or not
having the force or effect of law) so long as such required disclosure is made
under seal to the extent permitted by applicable law or by rule of court or
other applicable body.
Section 7.5 Bankruptcy Petition. (a) Originator and Buyer each
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 Financial Institution that is a special purpose bankruptcy remote entity, 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.
-28-
32
(b) Originator covenants and agrees that, prior to
the date that is one year and one day after the payment in full of all
outstanding obligations of Buyer under the Purchase Agreement, it will not
institute against, or join any other Person in instituting against, Buyer 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.
Limitation of Liability. Except with respect to any claim arising out of the bad
faith, willful misconduct or gross negligence of Company, the Agent or any
Financial Institution, no claim may be made by Originator 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 Originator hereby waives, releases, and
agrees not to ▇▇▇ upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor.
Section 7.6 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 7.7 CONSENT TO JURISDICTION. ORIGINATOR 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 ORIGINATOR PURSUANT TO THIS AGREEMENT AND ORIGINATOR 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 BUYER (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST
ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
ORIGINATOR AGAINST BUYER (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY
-29-
33
ORIGINATOR PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A STATE OR
FEDERAL COURT SITTING IN CHICAGO,
ILLINOIS.
Section 7.8 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 ORIGINATOR PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.9 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 Originator, Buyer and their respective successors and
permitted assigns (including any trustee in bankruptcy). Originator may not
assign any of its rights and obligations hereunder or any interest herein
without the prior written consent of Buyer. Buyer may assign at any time its
rights and obligations hereunder and interests herein to any other Person
without the consent of Originator. Without limiting the foregoing, Originator
acknowledges that Buyer, pursuant to the Purchase Agreement, may assign to the
Agent, for the benefit of the Purchasers, its rights, remedies, powers and
privileges hereunder and that the Agent may further assign such rights,
remedies, powers and privileges to the extent permitted in the Purchase
Agreement. Originator agrees that the Agent, as the assignee of Buyer, shall,
subject to the terms of the Purchase Agreement, have the right to enforce this
Agreement and to exercise directly all of Buyer's rights and remedies under this
Agreement (including, without limitation, the right to give or withhold any
consents or approvals of Buyer to be given or withheld hereunder) and Originator
agrees to cooperate fully with the Agent in the exercise of such rights and
remedies. 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
-30-
34
breach of any representation and warranty made by Originator pursuant to Article
II; (ii) the indemnification and payment provisions of Article VI; and (iii)
Section 7.5 shall be continuing and shall survive any termination of this
Agreement.
Section 7.10 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.
Amendment and Restatement. This Agreement amends and restates in its entirety
the Existing Agreement. Upon the effectiveness of this Agreement, the terms and
provisions of the Existing Agreement shall, subject to this Section 7.12, be
superseded hereby. Notwithstanding the amendment and restatement of the Existing
Agreement by this Agreement, the Originator shall continue to be liable to the
Indemnified Parties with respect to agreements on the part of the Original
Originators under the Existing Agreement to indemnify any of the Indemnified
Parties in connection with events or conditions arising or existing prior to the
date hereof. This Agreement is given in substitution for the Existing Agreement.
Upon the effectiveness of this Agreement, each reference to the Existing
Agreement in any other document, instrument or agreement executed and/or
delivered in connection therewith shall mean and be a reference to this
Agreement. This Agreement is not a novation. Nothing contained herein or in any
of the other Transaction Documents, unless expressly herein or therein stated to
the contrary, is intended to amend, modify or otherwise affect any other
instrument, document or agreement executed and/or delivered in connection with
the Existing Agreement. All amounts outstanding under the Existing Agreement
immediately prior to giving effect to this Agreement to the Buyer and to each
other Indemnified Party shall be deemed to be outstanding under this Agreement.
[SIGNATURE PAGE FOLLOWS]
-31-
35
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 SERVICES CORP.
By:
-------------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PLEXUS ABS, INC.
By:
-------------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
36
EXHIBIT I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined).
As used in the Agreement and the Exhibits, Schedules and Annexes thereto,
capitalized terms have the meanings set forth in this Exhibit I (such meanings
to be equally applicable to the singular and plural forms thereof). If a
capitalized term is used in the Agreement, or any Exhibit, Schedule or Annex
thereto, and not otherwise defined therein or in this Exhibit I, such term shall
have the meaning assigned thereto in Exhibit I to the Purchase Agreement.
"Agent" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Agreement" means the Amended and Restated
Receivables Sale
Agreement, dated as of July 1, 2001, between Originator and Buyer, as the same
may be amended, restated or otherwise modified.
"Buyer" has the meaning set forth in the preamble to the
Agreement.
"Calculation Period" means each calendar month or portion
thereof that elapses during the term of the Agreement. The first Calculation
Period shall commence on the date of the Purchase of Receivables hereunder and
the final Calculation Period shall terminate on the Termination Date.
"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 Originator.
"Company" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Credit and Collection Policy" means the credit and collection
policies and practices relating to Contracts and Receivables existing on the
date hereof and summarized in Exhibit V, as modified from time to time in
accordance with the Agreement.
"Default Fee" means a per annum rate of interest equal to the
sum of (i) the Prime Rate, plus (ii) 2% per annum.
"Dilutions" means, at any time, the aggregate amount of
reductions or cancellations described in Section 1.3(a) of the Agreement.
Exh. I-2
37
"Discount Factor" means a percentage calculated to provide
Buyer with a reasonable return on its investment in the Receivables after taking
account of (i) the time value of money based upon the anticipated dates of
collection of the Receivables and the cost to Buyer of financing its investment
in the Receivables during such period and (ii) the risk of nonpayment by the
Obligors. Originator and Buyer may agree from time to time to change the
Discount Factor based on changes in one or more of the items affecting the
calculation thereof, provided that any change to the Discount Factor shall take
effect as of the commencement of a Calculation Period, shall apply only
prospectively and shall not affect the Purchase Price payment made prior to the
Calculation Period during which Originator and Buyer agree to make such change.
"Existing Agreement" has the meaning set forth in the preamble
to the Agreement.
"Existing Subordinated Notes" has the meaning set forth in the
Preliminary Statements to the Agreement.
"Initial Cutoff Date" has the meaning set forth in Section
1.2(a).
"Material Adverse Effect" means a material adverse effect on
(i) the financial condition or operations of Originator and its Subsidiaries,
(ii) the ability of Originator to perform its obligations under the Agreement or
any other Transaction Document, (iii) the legality, validity or enforceability
of the Agreement or any other Transaction Document, (iv) Originator's, Buyer's,
the Agent's or any Purchaser's interest in the Receivables generally or in any
significant portion of the Receivables, the Related Security or Collections with
respect thereto, or (v) the collectibility of the Receivables generally or of
any material portion of the Receivables.
"Net Worth" means as of the last Business Day of each
Calculation Period preceding any date of determination, the excess, if any, of
(a) the aggregate Outstanding Balance of the Receivables at such time, over (b)
the sum of (i) the Aggregate Capital outstanding at such time, plus (ii) the
aggregate outstanding principal balance of the Subordinated Loans (including any
Subordinated Loan proposed to be made on the date of determination).
"Original Balance" means, with respect to any Receivable
coming into existence after the Initial Cutoff Date, the Outstanding Balance of
such Receivable on the date it was created.
"Original Originator" has the meaning set forth in the
preamble to the Agreement.
"Originator" has the meaning set forth in the preamble to the
Agreement.
Exh. I-3
38
"PEAC" has the meaning set forth in the Preliminary Statements
to the Agreement.
"PNPI" has the meaning set forth in the Preliminary Statements
to the Agreement.
"PTGI" has the meaning set forth in the Preliminary Statements
to the Agreement.
"Potential Termination Event" means an event that, with the
passage of time or the giving of notice, or both, would constitute a Termination
Event.
"Purchase" means the purchase pursuant to Section 1.1(a) of
the Agreement by Buyer from Originator of the Receivables of Originator and the
Related Security and Collections related thereto, together with all related
rights in connection therewith.
"Purchase Agreement" has the meaning set forth in the
Preliminary Statements to the Agreement.
"Purchase Price" means, with respect to the Purchase, the
aggregate price to be paid by Buyer to Originator for the Receivables that are
the subject of such Purchase in accordance with Section 1.2 of the Agreement for
the Receivables, Collections and Related Security being sold to Buyer, which
price shall equal on any date (i) the product of (x) the Outstanding Balance of
such Receivables on such date, multiplied by (y) one minus the Discount Factor
in effect on such date, minus (ii) any Purchase Price Credits to be credited
against the Purchase Price otherwise payable to Originator in accordance with
Section 1.3 of the Agreement.
"Purchase Price Credit" has the meaning set forth in Section
1.3 of the Agreement.
"Receivable" means all indebtedness and other obligations owed
to the Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Agreement) or Buyer (after giving effect to the
transfers under the Agreement) or in which Originator or Buyer 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 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
Exh. I-4
39
referred to in the immediately preceding sentence shall be a Receivable
regardless or whether the account debtor or the Originator treats such
indebtedness, rights or obligations as a separate payment obligation.
"Related Security" means, with respect to any Receivable of
Originator:
(i) all of Originator's interest in the
Related Equipment or other inventory and goods (including returned or
repossessed inventory or goods), if any, the sale of which by
Originator 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 Originator's right, title and
interest in each Lock-Box, and
(vii) all proceeds of any of the foregoing.
▇▇▇. ▇-▇
▇▇
"▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇" means, as of any date of
determination, $1,000,000.
"Settlement Date" means, with respect to each Calculation
Period, the date that is three Business Days after the date on which the Monthly
Report is due pursuant to Section 8.5 of the Purchase Agreement.
"Subordinated Loan" has the meaning set forth in Section
1.2(a) of the Agreement.
"Subordinated Note" means each promissory note in
substantially the form of Exhibit VII hereto as more fully described in Section
1.2 of the Agreement, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Subsidiary Reorganization" has the meaning set forth in the
Preliminary Statements to the Agreement.
"Termination Date" means the earliest to occur of (i) the
Facility Termination Date, (ii) the Business Day immediately prior to the
occurrence of a Termination Event set forth in Section 5.1(d), (iii) the
Business Day specified in a written notice from Buyer to Originator following
the occurrence of any other Termination Event, and (iv) the date that is thirty
(30) Business Days after Buyer's receipt of written notice from Originator that
it wishes to terminate the facility evidenced by this Agreement.
"Termination Event" has the meaning set forth in Section 5.1
of the Agreement.
"Transaction Documents" means, collectively, this Agreement,
each Lock-Box Agreement, the Subordinated Notes and all other instruments,
documents and agreements executed and delivered in connection herewith.
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-6
41
EXHIBIT II
Places of Business; Locations of Records;
Federal Employer Identification Number(s); Other Names
Plexus Services Corp.:
Places of Business:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations of Records:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Federal Employer Identification Number: ▇▇-▇▇▇▇▇▇▇
Corporate, Partnership Trade and Assumed Names: None
42
EXHIBIT III
DESCRIPTION OF LOCK-BOXES
Lock-Box Processor Lock-Box Number Address
------------------ --------------- -------
Firstar Bank, N.A. 890 Plexus ABS, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Firstar Bank, N.A. 557 Plexus ABS, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
43
EXHIBIT IV
[Intentionally Omitted.]
44
EXHIBIT V
Credit and Collection Policy
ORDER PROCESSING/BILLING
MANUFACTURING: Invoices are sent out daily to customers at the time of shipment.
Occasionally, product is shipped and there is a delay in invoicing of 1 or 2
days. Such sales are booked as "Accrued Sales" until actual invoicing occurs.
All the invoicing for EAC is out of the Neenah, WI office except for the
Seattle, WA location and is out of Neenah, WI for TGI. Customer credit is
completed on all new customers and continues throughout the relationship by the
Corporate Customer Risk Manager. Deposits are required for some customers to
cover inventory purchased for a specific job or those customers that show a
larger credit risk to the Company. The customer deposits are not applied against
the receivables and sit in a separate liability account. Letters of credit may
be required for some customers.
EAC's customers will sometimes supply the inventory to Plexus for their product.
In these instances, EAC will invoice for the gross amount when the product is
shipped and then issue a credit memo at the end of the month for the credit owed
for "customer supplied inventory".
ENGINEERING: The program project managers issue proposals and manage the
project. Once a proposal is signed by the customer, TGI may begin the job prior
to receiving a P.O. Typically it takes several weeks for customers to issue a
P.O. Therefore, TGI will accrue for the sale so that the sales and expenses will
be recognized. A "retention receivable" is created in a separate general ledger
account for the accrued sale. Once the P.O. is received the receivable is
removed from the retention receivable account to the regular receivable account
and begins to age. The retention receivables account also includes ▇▇▇▇▇▇▇▇ for
work completed but not invoiced due to contract terms (milestones).
Since TGI acts in a consulting role for engineering services, most of TGI's
▇▇▇▇▇▇▇▇ are based on billable hours. Customers are billed at the end of the
month based on either the percentage of completion or a fixed contract amount.
The ▇▇▇▇▇▇▇▇ based on the percentage of completion are calculated based on the
hours completed plus materials used. For fixed contracts, the customer is billed
according to the agreed upon proposal. TGI customers are required to sign a
"Professional Service Agreement". A clause within this agreement states recourse
if the customer cancels all costs incurred to date plus 2 months of expenses.
TGI bills on 4/5/4 week quarter. Therefore the end of each month may be several
days prior to the calendar month end. TGI will accrue for the unbilled labor
relating to these days at the end of the month. TGI has an account titled
"Unbilled Labor Accrual" which is included
45
in sales but not on the receivables aging. The following month this accrual
would be reversed and the actual hours billed would be included in the new
months ▇▇▇▇▇▇▇▇.
Periodically a customer of TGI's will request an "Advance Billing" (e.g. it is
the customer's fiscal year end but the project is not complete). The Advance
▇▇▇▇▇▇▇▇ are not included in sales but are on the receivables aging. If a
customer makes a payment on the Advance Billing, the only amount that can be
recognized is for the hours completed and the uncompleted portion is included in
the customer deposit account.
TERMS
Payment terms for both EAC and TGI are net 30 days. Some customers are offered
discounts, but rarely. EAC and TGI receivable turnover as of September 2000 is
42 days on average.
EAC requires customer deposit for some customers and these are typically to
cover the carry cost of inventory but sometimes for new customers. The customer
deposits are not applied against the receivables and sit in a separate liability
account. TGI sometimes requires deposits but this is not common.
COLLECTIONS/CHARGEOFFS
For both EAC and TGI, customers are called after 30 days past invoice date to
request payment and to ascertain any payment problems. Plexus' Corporate
Customer Risk Manager is responsible for all credit issues. However, initial
collection calls are made from the respective accounting departments, with
follow up from the respective divisional Controller. If collection becomes a
problem, the Corporate Customer Risk Manager gets involved. If the matter
remains unresolved and is not material, the receivable is either approved to be
charged-off or a credit memo is issued. In the rare situation, if that
collection still does not occur and is material, the CFO, VP-Finance, or
VP-Legal will make contact.
EAC's past due receivables are monitored on a daily basis by the accounting
personnel in the accounts receivable and the billing function, who report to the
Assistant Controller. For the WA location, collections are initially handled
on-site. Since TGI customers are billed on a monthly basis, TGI holds a weekly
meeting to review retention receivables and past due receivables with all the
project managers and directors of operations for each location. Retention
receivables are reviewed to make sure that the P.O.s are submitted. Once the
P.O.'s are submitted these receivables will transfer from the retention
receivables to the trade receivables account and begin to age.
Both EAC and TGI use the direct method to charge-off receivables.
Accounts are not typically restructured or converted to notes for EAC or TGI.
Exh. V-3
46
EAC does require letters of credit for some customers.
DISPUTE RESOLUTION
For EAC, receivable disputes are typically a result of pricing disputes, proof
of delivery, or the customer has not received the invoice. The two latter
reasons require a copy to be faxed to the customer and the dispute is usually
cleared up. For TGI, receivable disputes are for pricing and billed labor hours,
billed labor hours. Disputes are handled in various ways by customer (i.e.,
rebilling the customer).
Some customers want to be re-billed, so the original invoice will be credited
and new invoice will be issued.
RETURNS
EAC's customers return goods. When this occurs and the customer has already paid
their invoice, a debit memo (DM) is issued for the returned goods. Once the
re-work is completed and shipped to the customer, the DM is removed with a
credit memo and a new invoice is issued.
CASH APPLICATION
EAC and TGI each have a separate lockbox which sweep into the
Plexus Corp.
control account. All the accounts as of September 2000 are at Firstar Bank of
Milwaukee and are managed at headquarters. EAC uses an upload from cash
management system to record the cash receipts on a daily basis. TGI's cash
receipts are not as numerous and are not updated automatically. The supporting
documents for TGI's cash receipts are sent daily via mail.
Checks received from customers at the company offices are deposited once or
twice a week. These receipts are rarely for customer receivables.
Cash that could not be matched up to a particular invoice prior to the month end
will remain as "On Account" on the EAC receivables aging. This unapplied cash
remains in On Account until researched and resolved. Occasionally unapplied
credit memos will also be On Account until researched and applied.
Exh. V-4
47
EXHIBIT VI
[Intentionally Omitted.]
48
EXHIBIT VII
Form of Subordinated Note
SUBORDINATED NOTE
July 1, 2001
1. Note. FOR VALUE RECEIVED, the undersigned, PLEXUS ABS, INC,
a Nevada corporation ("SPV"), hereby unconditionally promises to pay to the
order of PLEXUS SERVICES CORP., a Nevada corporation ("Originator"), in lawful
money of the United States of America and in immediately available funds, on the
date following the Termination Date that is one year and one day after the date
on which (i) the Outstanding Balance of all Receivables sold under the "Sale
Agreement" referred to below has been reduced to zero and (ii) Originator has
paid to the Buyer all indemnities, adjustments and other amounts that may be
owed thereunder in connection with the Purchases (the "Collection Date"), the
aggregate unpaid principal sum outstanding of all "Subordinated Loans" made from
time to time by Originator to SPV pursuant to and in accordance with the terms
of that certain Amended and Restated
Receivables Sale Agreement dated as of July
1, 2001, between Originator and SPV (as amended, restated, supplemented or
otherwise modified from time to time, the "Sale Agreement"). Reference to
Section 1.2 of the Sale Agreement is hereby made for a statement of the terms
and conditions under which the loans evidenced hereby have been and will be
made. All terms that are capitalized and used herein and that are not otherwise
specifically defined herein shall have the meanings ascribed to such terms in
the Sale Agreement.
2. Interest. SPV further promises to pay interest on the
outstanding unpaid principal amount hereof from the date hereof until payment in
full hereof at a rate equal to the Base Rate; provided, however, that if SPV
shall default in the payment of any principal hereof, SPV promises to pay, on
demand, interest at the rate of the Base Rate plus 2.00% per annum on any such
unpaid amounts, from the date such payment is due to the date of actual payment.
Interest shall be payable on the first Business Day of each month in arrears;
provided, however, that SPV may elect on the date any interest payment is due
hereunder to defer such payment and upon such election the amount of interest
due but unpaid on such date shall constitute principal under this Subordinated
Note. The outstanding principal of any loan made under this Subordinated Note
shall be due and payable on the Collection Date and may be repaid or prepaid at
any time without premium or penalty.
3. Principal Payments. Originator is authorized and directed
by SPV to enter on the grid attached hereto, or, at its option, in its books and
records, the date and amount of each loan made by it that is evidenced by this
Subordinated Note and the amount of each payment of principal made by SPV, and
absent manifest error, such entries shall constitute prima facie evidence of the
accuracy of the information so entered; provided that
49
neither the failure of Originator to make any such entry or any error therein
shall expand, limit or affect the obligations of SPV hereunder.
4. Subordination. Originator shall have the right to receive,
and SPV shall make, any and all payments relating to the loans made under this
Subordinated Note provided that, after giving effect to any such payment, the
aggregate Outstanding Balance of Receivables (as each such term is defined in
the Receivables Purchase Agreement hereinafter referred to) owned by SPV at such
time exceeds the sum of (a) the Aggregate Unpaids (as defined in the Receivables
Purchase Agreement) outstanding at such time under the Receivables Purchase
Agreement, plus (b) the aggregate outstanding principal balance of all loans
made under this Subordinated Note. Originator hereby agrees that at any time
during which the conditions set forth in the proviso of the immediately
preceding sentence shall not be satisfied, Originator shall be subordinate in
right of payment to the prior payment of any indebtedness or obligation of SPV
owing to the Agent or any Purchaser under that certain Receivables Purchase
Agreement dated as of October 6, 2000, by and among SPV, Originator, as
Servicer, various "Purchasers" from time to time party thereto, and Bank One, NA
(Main Office Chicago), as the "Agent" (as amended, restated, supplemented or
otherwise modified from time to time, the "Purchase Agreement"). The
subordination provisions contained herein are for the direct benefit of, and may
be enforced by, the Agent and the Purchasers and/or any of their respective
assignees (collectively, the "Senior Claimants") under the Purchase Agreement.
Until the date on which all "Capital" outstanding under the Purchase Agreement
has been repaid in full and all other obligations of SPV and/or the Servicer
thereunder and under the "Fee Letter" referenced therein (all such obligations,
collectively, the "Senior Claim") have been indefeasibly paid and satisfied in
full, Originator shall not institute against SPV any proceeding of the type
described in Section 5.1(d) of the Sale Agreement unless and until the
Collection Date has occurred. Should any payment, distribution or security or
proceeds thereof be received by Originator in violation of this Section 4,
Originator agrees that such payment shall be segregated, received and held in
trust for the benefit of, and deemed to be the property of, and shall be
immediately paid over and delivered to the Agent for the benefit of the Senior
Claimants.
5. Bankruptcy; Insolvency. Upon the occurrence of any
proceeding of the type described in Section 5.1(d) of the Sale Agreement
involving SPV as debtor, then and in any such event the Senior Claimants shall
receive payment in full of all amounts due or to become due on or in respect of
the Aggregate Capital and the Senior Claim (including "CP Costs" and "Yield" as
defined and as accruing under the Purchase Agreement after the commencement of
any such proceeding, whether or not any or all of such CP Costs or Yield is an
allowable claim in any such proceeding) before Originator is entitled to receive
payment on account of this Subordinated Note, and to that end, any payment or
distribution of assets of SPV of any kind or character, whether in cash,
securities or other property, in any applicable insolvency proceeding, that
would otherwise be payable to or deliverable upon or with respect to any or all
indebtedness under this Subordinated Note, is hereby assigned to and shall be
paid or delivered by the Person making such payment or delivery (whether a
trustee in bankruptcy, a receiver, custodian or liquidating trustee or
otherwise)
Exh. VII-2
50
directly to the Agent for application to, or as collateral for the payment of,
the Senior Claim until such Senior Claim shall have been paid in full and
satisfied.
6. Amendments. This Subordinated Note shall not be amended or
modified except in accordance with Section 7.1 of the Sale Agreement. The terms
of this Subordinated Note may not be amended or otherwise modified without the
prior written consent of the Agent for the benefit of the Purchasers.
7. GOVERNING LAW. THIS SUBORDINATED NOTE HAS BEEN MADE AND
DELIVERED AT CHICAGO,
ILLINOIS, AND SHALL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS AND
DECISIONS OF THE STATE OF
ILLINOIS. WHEREVER POSSIBLE EACH PROVISION OF THIS
SUBORDINATED NOTE SHALL BE INTERPRETED IN SUCH MANNER AS TO BE EFFECTIVE AND
VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS SUBORDINATED NOTE SHALL
BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
SUBORDINATED NOTE.
8. Waivers. All parties hereto, whether as makers, endorsers,
or otherwise, severally waive presentment for payment, demand, protest and
notice of dishonor. Originator additionally expressly waives all notice of the
acceptance by any Senior Claimant of the subordination and other provisions of
this Subordinated Note and expressly waives reliance by any Senior Claimant upon
the subordination and other provisions herein provided.
Exh. VII-3
51
9. Assignment. This Subordinated Note may not be assigned,
pledged or otherwise transferred to any party other than Originator without the
prior written consent of the Agent, and any such attempted transfer shall be
void.
PLEXUS ABS, INC.
By:
-------------------------------
Title:
Exh. VII-4
52
Schedule
to
SUBORDINATED NOTE
SUBORDINATED LOANS AND PAYMENTS OF PRINCIPAL
Amount of Amount of Unpaid
Subordinated Principal Principal Notation made
Date Loan Paid Balance by
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
--------------- ------------------------ ------------------- ------------------- -------------------
Exh. VII-5
53
SCHEDULE A
DOCUMENTS TO BE DELIVERED TO BUYER
1. The Amended and Restated
Receivables Sale Agreement, duly executed by the
parties thereto.
2. Copy of the Resolutions of the Board of Directors of Originator certified by
its Secretary, authorizing Originator's execution, delivery and performance of
the Amended and Restated
Receivables Sale Agreement and the other documents to
be delivered by it thereunder.
3. Articles or Certificate of Incorporation of Originator certified by the
Secretary of State of the jurisdiction of incorporation of Originator.
4. Good Standing Certificate for 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. Nevada
b. Wisconsin
5. A certificate of the Secretary of Originator certifying: (i) the names and
signatures of the officers authorized on its behalf to execute the Amended and
Restated
Receivables Sale Agreement and any other documents to be delivered by
it thereunder and (ii) a copy of 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. Nevada
b. Wisconsin
▇. ▇▇▇▇▇▇▇▇▇▇
7. Time stamped receipt copies of proper financing statements, duly filed under
the UCC on or before the date of the Amended and Restated
Receivables Sale
Agreement in all jurisdictions as may be necessary or, in the opinion of Buyer
(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 Amended and Restated Receivables Sale Agreement.
54
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 Originator.
9. Executed Lock-Box Agreements for each Lock-Box.
10. A favorable opinion of legal counsel for the Originator reasonably
acceptable to Buyer (or its assigns) that addresses the following matters and
such other matters as Buyer (or its assigns) may reasonably request:
o Originator is a corporation, validly existing, and in good standing or
active status under the laws of its state of incorporation.
o 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 Originator's business.
o The execution and delivery by Originator of the Amended and Restated
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 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
Originator; or
(c) result in the creation or imposition of any Adverse Claim on
assets of Originator or any of its Subsidiaries (except as
contemplated by the Receivables Sale Agreement).
o The Amended and Restated Receivables Sale Agreement and each other
Transaction Document to which it is a party has been duly executed and
delivered by Originator and constitutes the legal, valid, and binding
obligation of 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.
o The provisions of the Amended and Restated Receivables Sale Agreement
are effective to create a valid security interest in favor of Buyer in
all Receivables and
Sch. A-2
55
upon the filing of financing statements, Buyer shall acquire a first
priority, perfected security interest in such Receivables.
o To the best of the opinion giver's knowledge, there is no action, suit
or other proceeding against Originator or any Affiliate of Originator,
that would materially adversely affect the business or financial
condition of Originator and its Affiliates taken as a whole or which
would materially adversely affect the ability of Originator to perform
its obligations under the Amended and Restated Receivables Sale
Agreement.
11. A "true sale" opinion and "substantive consolidation" opinion of counsel for
the Originator with respect to the transactions contemplated by the Amended and
Restated 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 Amended and Restated Receivables Sale
Agreement.
13. Executed copy of a Subordinated Note by Buyer in favor of Originator.
14. A direction letter executed by Originator authorizing Buyer (and its
assignees) and directing warehousemen to allow Buyer (and its assignees) to
inspect and make copies from Originator's books and records maintained at
off-site data processing or storage facilities.
15. Evidence satisfactory to the Buyer and its assigns of (i) the merger of
Agility, Incorporated, EAC and e2E Corporation, with EAC being the surviving
entity and (ii) the merger of TGI, Originator and SeaMed, with Originator being
the surviving entity.
16. Evidence satisfactory to the Buyer and its assigns of the contribution by
EAC to Originator of all of its right, title and interest in, to and under any
Receivables, Related Security and Collections then owned by EAC, and in each of
the Existing Subordinated Notes.
17. Evidence satisfactory to the Buyer and its assigns of the assignment by EAC
and the assumption by Originator of all of EAC's right, title and interest in
and to, and all of EAC's liability and obligations under, the Existing
Agreement, each of the Existing Subordinated Notes and any and all documents and
instruments related thereto.
Sch. A-3