EXHIBIT 10.25
RECEIVABLES SALE AGREEMENT
dated as of February 25, 2004
among
JABIL CIRCUIT, INC.,
as an Originator,
JABIL CIRCUIT OF TEXAS, LP,
as an Originator,
JABIL GLOBAL SERVICES, INC.,
as an Originator
and
JABIL CIRCUIT FINANCIAL II, INC.,
as Buyer
RECEIVABLES SALE AGREEMENT
THIS RECEIVABLES SALE AGREEMENT, dated as of February 25, 2004
is by and among JABIL CIRCUIT, INC., a Delaware corporation ("Jabil"), JABIL
CIRCUIT OF TEXAS, LP, a Florida limited partnership ("Jabil Texas"), JABIL
GLOBAL SERVICES, INC., a Florida corporation ("Jabil Global Services," together
with Jabil and Jabil Texas and each other Subsidiary of Jabil which enters into
a Joinder Agreement, each individually, an "Originator" and collectively, the
"Originators"), and JABIL CIRCUIT FINANCIAL II, INC., a Delaware corporation
("Buyer"). Unless defined elsewhere herein, capitalized terms used in this
Agreement shall have the meanings assigned to such terms in Exhibit I.
PRELIMINARY STATEMENTS
Originators now own, and from time to time hereafter will own,
Receivables. Originators wish to sell and assign to Buyer, and Buyer wishes to
purchase from Originators, all of the applicable Originator's right, title and
interest in and to such Receivables, together with the Related Security and
Collections with respect thereto.
Originators and Buyer intend the transactions contemplated
hereby to be true sales of the Receivables from the applicable Originator to
Buyer, providing Buyer with the full benefits of ownership of the Receivables,
and Originators and Buyer do not intend these transactions to be, or for any
purpose to be characterized as, loans from Buyer to Originators.
Following the purchase of Receivables from Originators, until
the Purchase Agreement referred to below is terminated, Buyer will sell
undivided interests therein and in the associated Related Security and
Collections pursuant to that certain Receivables Purchase Agreement dated as of
February 25, 2004 (as the same may from time to time hereafter be amended,
supplemented, restated or otherwise modified, the "Purchase Agreement") among
Buyer, as Seller, Jabil, as Servicer, Jupiter Securitization Corporation
("Jupiter"), 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
Jupiter and such Financial Institutions (in such capacity, the "Agent").
ARTICLE I
AMOUNTS AND TERMS
Section 1.1 Purchase of Receivables.
(a) In consideration for the Purchase Price (which may be
satisfied in connection with a capital contribution in accordance with Section
1.1(b)) and upon the terms and subject to the conditions set forth herein, (i)
effective on the date hereof, each 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 such
Originator, all of such Originator's right, title and interest in and to all
Receivables originated by such Originator and existing as of the close of
business on the Business Day immediately prior to the
date hereof, together, in each case, with all Related Security relating thereto
and all Collections thereof and (ii) from and after the date hereof, each
Originator hereby agrees to sell, assign, transfer, set over and otherwise
convey to Buyer, without recourse (except to the extent expressly provided
herein), and Buyer hereby agrees to purchase from such Originator, all of such
Originator's right, title and interest in and to all Receivables originated by
it from and after the date hereof 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 such
Originator's right, title and interest in and to all Receivables originated by
such Originator and 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; and Buyer shall be obligated to pay the
Purchase Price therefor in accordance with Section 1.2 (which may be satisfied
in connection with a capital contribution made pursuant to Section 1.1(b)). In
connection with the payment of the Purchase Price for any Receivables purchased
hereunder, Buyer may request that Originators deliver, and each Originator shall
deliver, such approvals, opinions, information, reports or documents as Buyer
may reasonably request.
(b) Jabil has agreed to offset the Buyer's obligation to
pay the Purchase Price for Receivables conveyed on the date hereof by amounts
owed by Jabil to Buyer on account of the issuance of Buyer's equity pursuant to
the Subscription Agreement. Jabil may elect to offset the Buyer's obligation to
pay the Purchase Price for Receivables conveyed to Buyer from Jabil on any day
after the date hereof if the Purchase Price is not paid in full in accordance
with Section 1.2(b) first and second, by making a capital contribution pursuant
to the Subscription Agreement and thereby increasing the value of Jabil's equity
interest in the Buyer. The Buyer agrees to offset the amount of such
contributions against the Purchase Price for such Receivables. Any such capital
contribution shall be confirmed in writing by Jabil and the Buyer on the Initial
Cutoff Date or the next applicable Settlement Date, as applicable, and shall
satisfy, and constitute the payment of, the payment of the Purchase Price for
the Receivables so contributed. All of the Receivables so paid for through such
offset shall constitute purchased Receivables hereunder and shall be subject to
all of the representations, warranties and indemnities made hereunder.
(c) It is the intention of the parties hereto that the
Purchase of Receivables made hereunder shall constitute a sale of "accounts" (as
such term is used in Article 9 of the UCC), 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,
each sale of Receivables hereunder is made without recourse to any Originator;
provided, however, that (i) each Originator shall be liable to Buyer for all
representations, warranties and covenants made by such Originator pursuant to
the terms of the Transaction Documents to which such 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 the applicable
Originator or any other Person arising in connection with the Receivables, the
related Contracts and/or other Related Security or any other obligations of such
Originator. In view of the intention of the parties hereto that the Purchase of
Receivables made hereunder shall constitute a sale of such Receivables rather
than loans secured thereby, each 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
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assignee), evidencing that Buyer has purchased such Receivables as provided in
this Agreement (or, if any master data processing records cannot be marked with
a legend, ▇▇▇▇ the related physical records with such a stamped legend no less
frequently than monthly) 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), each 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 from each
Originator of its respective Receivables in existence on the close of business
on the Business Day immediately preceding the date hereof (the "Initial Cutoff
Date"), if not satisfied in accordance with Section 1.1(b), shall be payable in
full by Buyer to each Originator on the date hereof, and shall be paid to each
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 such Originator to Buyer (each a "Subordinated
Loan") in an amount not to exceed the Maximum Subordinated Loan Amount. Each
Originator is hereby authorized by Buyer to endorse on the schedule attached to
its Subordinated Note made payable to and delivered to such Originator 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.
Each Receivable coming into existence after the Initial Cutoff Date shall be
sold or contributed to the Buyer on the Business Day immediately following the
day such Receivable was originated and the Purchase Price for such Receivable
shall be due and owing in full by Buyer to the applicable Originator on such
Business Day (except that Buyer may, with respect to any such Purchase Price,
offset against such Purchase Price any amounts owed by such Originator to Buyer
hereunder and which have become due but remain unpaid) and shall be paid to such
Originator in the manner provided in the following paragraphs (b), (c) and (d).
(b) With respect to any Receivables sold or contributed
hereunder after the date hereof, on the first Business Day after such Receivable
is originated, such Receivable shall be transferred to Buyer, and on such date
of Purchase, Buyer shall pay the Purchase Price therefor 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;
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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); and
third, solely in the case of Receivables originated
by Jabil, by accepting such Receivables as a contribution to Buyer's
capital in accordance with Section 1.1(b); provided, that no such
capital contribution shall be made from and after the date on which
Jabil has declared the Termination Date to have occurred.
Subject to the limitations set forth in Section 1.2(a)(ii), each Originator
irrevocably agrees to advance each Subordinated Loan requested by Buyer on or
prior to the Termination Date. The Subordinated Loans made by each Originator
shall be evidenced by, and shall be payable in accordance with the terms and
provisions of the applicable Subordinated Note and shall be payable solely from
funds which Buyer is not required under the Purchase Agreement to set aside for
the benefit of, or otherwise pay over to, the Purchasers.
(c) Subject to Section 8.9(b), this Agreement shall
terminate on the Termination Date. From and after the occurrence of a
Termination Event, no Originator shall be obligated to (but may, at its option):
(i) sell Receivables to Buyer, or (ii) contribute Receivables to Buyer's capital
pursuant to Section 1.1(b) unless such 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 or otherwise.
(d) Although the Purchase Price for each Receivable
coming into existence after the Initial Cutoff Date shall be paid in full by
Buyer to the applicable Originator on the date such Receivable is purchased, a
precise reconciliation of the Purchase Price between Buyer and such Originator
shall be effected on a monthly basis on Settlement Dates with respect to all
Receivables sold during the same Calculation Period most recently ended prior to
such Settlement Date and based on the information contained in the Monthly
Report delivered by the Servicer pursuant to Article VIII of the Purchase
Agreement for such Calculation Period. Although such reconciliation shall be
effected on Settlement Dates, increases or decreases in the amount owing under
the Subordinated Note made pursuant to Section 1.2(b) and any contribution of
capital by Jabil to Buyer made pursuant to Section 1.1(b) shall be deemed to
have occurred and shall be effective as of the date that the Purchase Price is
paid. On each Settlement Date, each Originator shall determine the net increase
or the net reduction in the outstanding principal amount of its Subordinated
Note occurring during the immediately preceding Calculation Period and shall
account for such net increase or net reduction in its books and records. Each
Originator hereby agrees that within three (3) Business Days after Buyer so
requests, such Originator will provide Buyer with a current report of daily
sales giving rise to Receivables purchased hereunder and a current daily report
of Collections received.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
(a) the Outstanding Balance of a Receivable is:
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(i) reduced as a result of any defective or rejected
goods or services, any discount or any adjustment or otherwise by the applicable
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 no longer true 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 in an
amount equal to the amount of such reduction or cancellation in the case of
clause (a) or the Outstanding Balance of such Receivable in the case of clause
(b). If such Purchase Price Credit exceeds the Original Balance of the
Receivables being sold by the applicable Originator on any day, then such
Originator shall pay the remaining amount of such Purchase Price Credit in cash
promptly thereafter, provided that if the Termination Date has not occurred, the
applicable Originator shall be allowed to deduct the remaining amount of such
Purchase Price Credit from any indebtedness owed to it under the Subordinated
Note to the extent permitted thereunder.
Section 1.4 Payments and Computations, Etc. 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 the applicable Originator designated from time to time by such
Originator or as otherwise directed by such Originator. 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, each Originator hereby sells, transfers, assigns and otherwise
conveys to Buyer all of such Originator's right and title to and interest in the
Records (other than Contracts) relating to all of its Receivables sold hereunder
and all rights (with respect to enforcement or otherwise) under the Contracts
relating to all of its Receivables sold hereunder, without the need for any
further documentation in connection with the Purchase. In connection with such
transfer, each 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 such Originator to account for the
Receivables, to the extent necessary to administer the Receivables, whether such
software is owned by such Originator or is owned by others and used by such
Originator under license agreements with respect thereto, provided that should
the consent of any licensor of such Originator to such grant of the license
described herein be required, such Originator hereby
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agrees that upon the request of Buyer (or the Agent as Buyer's assignee), such
Originator will use its reasonable efforts to obtain the consent of such
third-party licensor and provided further that none of the Buyer, the Agent or
the Servicer shall exercise its rights to such license until after the
occurrence of an Amortization Event. The license granted hereby shall be
irrevocable, and shall terminate on the date this Agreement terminates in
accordance with its terms. Upon the termination of this Agreement any such
software used by the Buyer, the Agent or the Servicer during the term of this
Agreement shall be returned to the applicable Originator.
(b) Each 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 such 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. (a) If, notwithstanding the
intention of the parties expressed in Section 1.1(c), any sale or contribution
by any Originator to Buyer of Receivables hereunder shall be characterized by a
court of competent jurisdiction as a secured loan and not a sale, or such sale
shall for any reason be ineffective or unenforceable, then this Agreement is and
shall be deemed, as of the date hereof, 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, each Originator hereby grants to Buyer a
security interest in all of such Originator's right, title and interest in, to
and under the following assets, now existing or hereafter arising: (i) all
Receivables originated by it, (ii) the Collections, (iii) each Lock-Box, (iv)
each Collection Account, (v) all Related Security, (vi) all other rights and
payments relating to such Receivables, (vii) all proceeds of any of the
foregoing, and (viii) all other assets in which the Buyer has acquired, may
hereafter acquire and/or purports to have acquired an interest hereunder, to
secure the prompt and complete payment of a loan (in the event that any sale or
contribution hereunder is characterized as a secured 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. After the occurrence of an
Termination Event, Buyer and its assigns shall have, in addition to the rights
and remedies which they may have under this Agreement, all other rights and
remedies provided to a secured creditor after default under the UCC and other
applicable law, which rights and remedies shall be cumulative. Each Originator
hereby authorizes the Buyer (or its assigns), within the meaning of Section
9-509 of any applicable enactment of the UCC, as secured party, to file, without
the signature of the debtor, the UCC financing statements contemplated hereby.
(b) Each Originator acknowledges that Buyer, pursuant to
the Purchase Agreement, shall assign to the Agent, for the benefit of the Agent
and the Purchasers thereunder, all of its rights, remedies, powers and
privileges under this Agreement and that the Agent may further assign such
rights, remedies, powers and privileges to the extent permitted by the Purchase
Agreement. Each Originator agrees that the Agent, as the assignee of the 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
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limitation, the right to give or withhold any consents or approvals of Buyer to
be given or withheld hereunder, and, in any case without regard to whether
specific reference is made to Buyer's assigns in the provisions of this
Agreement which set forth such rights and remedies) and each Originator agrees
to cooperate fully with the Agent and the Purchasers in the exercise of such
rights and remedies. Each Originator further agrees to give to the Agent copies
of all notices it is required to give to Buyer hereunder.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Originators.
Each Originator hereby represents and warrants, as to itself, to Buyer that:
(a) Corporate Existence and Power. It is a corporation or
limited partnership duly organized, validly existing and in good standing under
the laws of its state of organization, and is duly qualified to do business and
is in good standing as a foreign entity, and has and holds all power, corporate
or otherwise, and all governmental licenses, authorizations, consents and
approvals required to carry on its business in each jurisdiction in which its
business is conducted.
(b) Power and Authority; Due Authorization Execution and
Delivery. The execution and delivery by such 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, such Originator's use of the
proceeds of the Purchase made hereunder, are within its powers and authority,
corporate or otherwise, and have been duly authorized by all necessary action,
corporate or otherwise, on its part. This Agreement and each other Transaction
Document to which such Originator is a party has been duly executed and
delivered by such Originator.
(c) No Conflict. The execution and delivery by such
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, by-laws
or limited partnership agreement (or equivalent organizational documents), (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, 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 any assets of such 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 such
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. Other than as disclosed on Schedule
A, there are no actions, suits or proceedings pending, or to the best of such
Originator's knowledge, threatened, against or affecting such Originator, or any
of its properties, in or before any court, arbitrator or
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other body, that could reasonably be expected to have a Material Adverse Effect.
Such 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 such Originator is a party constitute the legal,
valid and binding obligations of such Originator enforceable against such
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 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 such 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 such 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 the Purchase
hereunder will be used (i) for a purpose that violates, or would be inconsistent
with, Regulation T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction which is subject to Section 13 or 14 of the Securities Exchange Act
of 1934, as amended.
(i) Good Title. At the time each Receivable originated by
it came into existence, such Originator shall be the legal and beneficial owner
of each such Receivables and Related Security with respect thereto, free and
clear of any Adverse Claim, except as created by the Transaction Documents.
(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 such Originator) legal and equitable title
to, with the right to sell and encumber each Receivable originated by it
existing and hereafter arising, together with the Related Security and
Collections with respect thereto, free and clear of any Adverse Claim, except as
created by the Transactions Documents. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect Buyer's
ownership interest in the Receivables, the Related Security and the Collections.
None of the Contracts or Invoices constitute "chattel paper" or "instruments"
within the meaning of Section 9-102 of the UCC of any applicable jurisdiction.
(k) Places of Business. The principal places of business
and chief executive office of such 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
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been taken and completed. Such Originator's Federal Employer Identification
Number and sole jurisdiction of organization is correctly set forth on Exhibit
II.
(l) Collections. The conditions and requirements set
forth in Section 4.1(i) have at all times been satisfied and duly performed. The
names and addresses of all Collection Banks, together with the account numbers
of the Collection Accounts of Originator at each Collection Bank and the post
office box number of each Lock-Box, are listed on Exhibit III.
(m) Material Adverse Effect. Since August 31, 2003 no
event has occurred that would have a Material Adverse Effect.
(n) Names. In the past five (5) years, such Originator
has not used any corporate names, trade names or assumed names other than the
name in which such Originator has executed this Agreement.
(o) Ownership of Buyer. Jabil 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. Such
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. Such 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. Such 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. Each
Receivable, together with the Contract and Invoice 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 or Invoice is in
violation of any such law, rule or regulation.
(r) Compliance with Credit and Collection Policy. Such
Originator has complied in all material respects with the Credit and Collection
Policy with regard to each Receivable and the related Contract and Invoice, and
has not made any change to such Credit and Collection Policy, other than as
permitted under Section 4.2(c) and in compliance with the notification
requirements in Section 4.1(a)(vii).
(s) Payments to Originators. With respect to each
Receivable originated by it and transferred to Buyer hereunder and prior to the
date hereof, the Purchase Price received by such 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 such Originator of
any Receivable hereunder or prior to the date hereof 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 Invoice. Each Invoice with respect
to each Receivable is effective to create, and has created, a legal, valid and
binding obligation of the related Obligor to pay the Outstanding Balance of the
Receivable created thereunder and any accrued interest thereon, enforceable
against the Obligor in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to or limiting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable included in the
Net Receivables Balance as an Eligible Receivable on the date it came into
existence was an Eligible Receivable on such date.
(v) Accounting. The manner in which such Originator
accounts for the transactions contemplated by this Agreement does not jeopardize
the true sale analysis.
(w) No Adverse Selection. To the extent that such
Originator has retained Receivables that would be Eligible Receivables but which
have not been transferred to Buyer hereunder, such Originator has not selected
those Receivables to be transferred hereunder in any manner that materially
adversely affects Buyer.
(x) Compliance with Representations. On and as of the
date of each Purchase, such Originator hereby represents and warrants that all
of the other representations and warranties set forth in this Article II are
true and correct on and as of each such date (and after giving effect to all
Receivables in existence on each such date) as though made on and as of each
such date.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Purchase. The initial
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 B and (b) 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 Termination Date shall not have occurred; and (b) Buyer (or its assigns)
shall have received such other approvals, opinions or documents as it may
reasonably request. Each Originator represents and warrants that the
representations and warranties set forth in Article II are true and correct on
and as of the date each Receivable came into existence as though made on and as
of such date.
ARTICLE IV
COVENANTS
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Section 4.1 Affirmative Covenants of Originators. Until the
date on which this Agreement terminates in accordance with its terms, each
Originator hereby covenants, as to itself, as set forth below:
(a) Reporting. Such Originator will maintain, for itself
and each of its respective Subsidiaries, a system of accounting established and
administered in accordance with generally accepted accounting principles, and
furnish to Buyer and its assigns (or, in the case of any of the following
reporting requirements which are publicly available via ▇▇▇▇▇ or on Jabil's
website at ▇▇▇.▇▇▇▇▇.▇▇▇, notify the Buyer and the Agent that such reporting
requirement is so available):
(i) Annual Reporting. Within 90 days after the close of
each of its respective fiscal years, audited, unqualified financial statements
(which shall include balance sheets, statements of income and retained earnings
and a statement of cash flows) for Jabil for such fiscal year certified in a
manner acceptable to Buyer (and its assigns) by independent public accountants
acceptable to Buyer (and its assigns).
(ii) Quarterly Reporting. Within 45 days after the close
of the first three (3) quarterly periods of each of its respective fiscal years,
balance sheets of Jabil as at the close of each such period and statements of
income and retained earnings and a statement of cash flows for Jabil for the
period from the beginning of such fiscal year to the end of such quarter, all
certified by its chief financial officer.
(iii) Compliance Certificate. Together with the financial
statements required hereunder, a compliance certificate in substantially the
form of Exhibit IV signed by Jabil's Authorized Officer and dated the date of
such annual financial statement or such quarterly financial statement, as the
case may be.
(iv) Shareholders Statements and Reports. Promptly upon
the furnishing thereof to the shareholders of Jabil copies of all financial
statements, reports and proxy statements so furnished.
(v) S.E.C. Filings. Promptly upon the filing thereof,
copies of all registration statements and reports which such Originator or any
of its Subsidiaries files with the Securities and Exchange Commission and which
are required to be delivered to, or notification of the electronic availability
thereof is required to be provided to, the "Banks" and the "Agent" under (and as
defined in) the Jabil Loan Agreement.
(vi) Copies of Notices. Promptly upon its receipt of any
notice, request for consent, financial statements, certification, report or
other communication under or in connection with any Transaction Document from
any Person other than Buyer, the Agent or Jupiter, copies of the same.
(vii) Change in Credit and Collection Policy. At least
thirty (30) days prior to the effectiveness of any material change in or
material amendment to the Credit and Collection Policy, a copy of the Credit and
Collection Policy then in effect and a notice indicating such change or
amendment.
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(viii) Other Information. Promptly, from time to time, such
other information, documents, records or reports relating to the Receivables or
the condition or operations, financial or otherwise, of such 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. Such Originator will notify the Buyer (and
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 such Originator.
(ii) Material Adverse Effect. The occurrence of any event
or condition that has, or could reasonably be expected to have, a Material
Adverse Effect.
(iii) Defaults Under Other Agreements. The occurrence of a
default or an event of default under any other material financing arrangement
pursuant to which such Originator is a debtor or an obligor.
(iv) Downgrade of Jabil. Any downgrade in the rating of
any Indebtedness of Jabil by Standard and Poor's Ratings Group or by ▇▇▇▇▇'▇
Investors Service, Inc., setting forth the Indebtedness affected and the nature
of such change.
(v) Jabil Mexico, Jabil Chihuahua and Jabil Reynosa. As
soon as such Originator becomes aware thereof, notice of any action taken by
Jabil Mexico, Jabil Chihuahua, Jabil Reynosa or any other Person to assert any
claim against any property of Jabil, Jabil Mexico, Jabil Chihuahua or Jabil
Reynosa located in Mexico.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such 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. Such Originator will preserve and maintain its
corporate or partnership existence, as the case may be, rights, franchises and
privileges in the jurisdiction of its organization and qualify and remain
qualified in good standing as a foreign entity in each jurisdiction where its
business is conducted.
(d) Audits. Such Originator will furnish to Buyer (and
its assigns) from time to time such information with respect to it and the
Receivables as Buyer (or its assigns) may reasonably request. Such 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 such Originator,
permit Buyer (and 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 such Originator relating to its Receivables
and the Related Security, including, without limitation, the related Contracts
and Invoices, and (ii) to visit the offices and properties of such Originator
for the purpose of examining such materials described in clause (i) above, and
to discuss matters relating to such Originator's financial condition or its
Receivables and the Related Security or such Originator's performance under any
of the Transaction Documents or
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such Originator's performance under the Contracts and Invoices and, in each
case, with any of the officers or employees of such Originator having knowledge
of such matters; provided that such Originator shall not be required to pay for
the costs of such audit if (i) collectively, the Originators have paid the costs
of at least three other audits occurring during the nine month period
immediately preceding such audit, (ii) no Termination Event has occurred and
(iii) the results of the previous audits were acceptable to Buyer (or its
assigns).
(e) Keeping and Marking of Records and Books.
(i) Such Originator will maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing its 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 originated by it (including, without limitation,
records adequate to permit the immediate identification of each new Receivable
and all Collections of and adjustments to each existing Receivable). Such
Originator will give Buyer (and its assigns) notice of any material change in
the administrative and operating procedures referred to in the previous
sentence.
(ii) Such Originator will (A) on or prior to the date
hereof, ▇▇▇▇ its master data processing records and other books and records
relating to its Receivables with a legend, acceptable to Buyer (and its
assigns), describing Buyer's ownership interests in such Receivables and further
describing the Purchaser Interests of the Agent (on behalf of the Purchasers)
under the Purchase Agreement (or, if any master data processing records cannot
be marked with a legend, ▇▇▇▇ the related physical records with such a stamped
legend no less frequently than monthly) and (B) upon the request of Buyer (or
its assigns) at any time following the occurrence of an Amortization Event under
the Purchase Agreement, (x) ▇▇▇▇ each Invoice which constitutes chattel paper or
an instrument related to its Receivables with a legend describing Buyer's
ownership interests in its Receivables and further describing the Purchaser
Interests of the Agent (on behalf of the Purchasers) and (y) deliver to Buyer
(or its assigns) copies of all Contracts and Invoices (including, without
limitation, all multiple originals of any such Contract and Invoice which
constitutes chattel paper or an instrument) relating to its Receivables.
(f) Compliance with Contracts and Credit and Collection
Policy. Such Originator will timely and fully (i) perform and comply with all
provisions, covenants and other promises required to be observed by it under the
applicable Contracts related to its Receivables, and (ii) comply in all respects
with the Credit and Collection Policy in regard to each such Receivable and the
related Contract and Invoice. Such Originator will pay when due any taxes
payable in connection with its Receivables, exclusive of taxes on or measured by
income or gross receipts of Buyer and its assigns.
(g) Ownership. Such Originator will take all necessary
action to establish and maintain, irrevocably in Buyer, legal and equitable
title to the Receivables originated by it, and the Related Security and the
Collections with respect thereto, 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
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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).
(h) Purchasers' Reliance. Such 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 such Originator and any Affiliates thereof.
Therefore, from and after the date of execution and delivery of this Agreement,
such 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 such Originator and any Affiliates thereof and not just a
division of such Originator or Affiliate. Without limiting the generality of the
foregoing and in addition to the other covenants set forth herein, such
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 such 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. Such Originator will cause (1) all
Collections to be remitted to either a Lock-Box or a Collection Account, (2) all
proceeds from all Lock-Boxes to be directly deposited by a Collection Bank into
a Collection Account and (3) each Lock-Box and Collection Account to be subject
at all times to a Collection Account Agreement that is in full force and effect.
In the event any payments relating to Receivables are remitted directly to such
Originator or any Affiliate of such Originator, such Originator will remit (or
will cause all such payments to be remitted) directly to a Collection Bank for
deposit into a Collection Account within two (2) Business Days following receipt
thereof and, at all times prior to such remittance, such Originator will itself
hold or, if applicable, will cause such payments to be held in trust for the
exclusive benefit of Buyer and its assigns. Such Originator will transfer
exclusive ownership, dominion and control of each Lock-Box and Collection
Account owned by it to Buyer and, will not grant the right to take dominion and
control of any Lock-Box or Collection Account at a future time or upon the
occurrence of a future event to any Person, except to Buyer (and its assigns) as
contemplated by this Agreement and the Purchase Agreement.
(j) Taxes. Such 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.
(k) Insurance. Such Originator will maintain in effect,
or cause to be maintained in effect, at such Originator's own expense, such
casualty and liability insurance as such Originator deems appropriate in its
good faith business judgement.
Section 4.2 Negative Covenants of Originators. Until the date
on which this Agreement terminates in accordance with its terms, each Originator
hereby covenants, as to itself, that:
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(a) Name Change, Offices and Records. Such Originator
will not change its name (within the meaning of Section 9-507(c) of any
applicable enactment of the UCC) or its identity, corporate structure,
jurisdiction of organization, or relocate its chief executive office or any
office where Records are kept unless it shall have: (i) given the Buyer and the
Agent at least forty-five (45) days' prior written notice thereof, (ii)
delivered to the Buyer and the Agent all financing statements, instruments and
other documents requested by the Buyer or the Agent in connection with such
change so that Buyer and the Agent, for the benefit of itself and the
Purchasers, continue to have a first priority, perfected ownership or security
interest in the Receivables, the Related Security and any Collections thereon,
and (iii) in the case of a change of the jurisdiction of organization, delivered
to the Agent an opinion of counsel in form and substance satisfactory to the
Agent, as to such organization and the applicable Originator's valid existence
and good standing and the perfection and priority of the Buyer's and the Agent's
ownership or security interest in the Receivables, the Related Security and any
Collections thereon.
(b) Change in Payment Instructions to Obligors. Such
Originator will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, 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 Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement with respect to the new Collection Account
or Lock-Box; provided, however, that such Originator may make changes in
instructions to Obligors regarding payments if such new instructions require
such Obligor to make payments to another existing Collection Account.
(c) Modifications to Contracts, Invoices and Credit and
Collection Policy. Such Originator will not amend, modify or otherwise make any
change to the Credit and Collection Policy or any Contract or Invoice that could
adversely affect the collectibility of the Receivables or decrease the credit
quality of any newly created Receivables. Except as otherwise permitted in its
capacity as Servicer pursuant to Article VIII of the Purchase Agreement, Jabil
will not extend, amend or otherwise modify the terms of any Receivable or any
Invoice related thereto other than in accordance with the Credit and Collection
Policy, other than with the prior written consent of the Buyer (and its assigns)
in compliance with the notification requirements in Section 4.1(a)(vii).
(d) Sales, Liens. Such Originator will not sell, assign
(by operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, or create or suffer to exist any Adverse Claim upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Receivable, Related Security or Collections, or upon or with respect to any
Contract or Invoice under which any Receivable arises, or any Lock-Box or
Collection Account, 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 such Originators 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 such Originator. Such
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 which gives rise to a Receivable.
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(e) No Adverse Selection. To the extent that such
Originator has retained Receivables that would be Eligible Receivables but which
have not been transferred to Buyer hereunder, such Originator will not select
those Receivables to be transferred hereunder in any manner that materially
adversely affects Buyer.
(f) Accounting for Purchase. Such 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 its Receivables and the Related Security by such
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 such
Receivables and the Related Security by such 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
ADMINISTRATION AND COLLECTION
Section 5.1 Designation of Servicer. Buyer is acquiring the
Receivables from the Originators with all of the associated rights and
obligations, including the obligation to service the Receivables. Jabil has,
however, been designated, and has agreed to act as Servicer (as defined in the
Purchase Agreement) for Purchaser pursuant to the terms of the Purchase
Agreement and to perform all of the duties and obligations of the Servicer set
forth herein and in the Purchase Agreement with respect to the Receivables,
Related Security related thereto and Collections thereof, and Buyer consents to
such designation.
Section 5.2 Responsibilities of Jabil and Originators.
Anything herein to the contrary notwithstanding, the exercise by Buyer (or its
assignees) of its rights hereunder shall not release Jabil, as Servicer, or any
Originator from any of their duties or obligations with respect to any
Receivables or under the related Contracts or Invoices. Buyer shall not be
obligated to perform the obligations of Jabil or either Originator, and so long
as Jabil is Servicer under the Purchase Agreement or Section 5.3 of this
Agreement, Buyer shall have no obligation or liability with respect to any
Receivables or related Contracts or Invoices.
Section 5.3 Termination of Purchase Agreement. Upon
termination of the Purchase Agreement for any reason, and if this Agreement
shall not be terminated and shall remain in full force and effect, Jabil shall
continue to be designated as, and hereby agrees to perform all of the duties and
obligations of, Servicer for Buyer with respect to the Receivables, Related
Security related thereto and Collections thereof, pursuant to the same terms and
conditions as provided in Article VIII of the Purchase Agreement, which terms
and conditions are hereby incorporated by reference (and modified as may be
appropriate to conform to this Agreement). In consideration of Jabil's agreement
to perform such duties and obligations, Buyer agrees to pay over to Jabil a fee
on the first calendar day of each month, in arrears for the immediately
preceding month, equal to the actual servicing costs of the Servicer during such
month plus 5% of such actual servicing costs, as compensation for its servicing
activities.
ARTICLE VI
TERMINATION EVENTS
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Section 6.1 Termination Events. The occurrence of any one or
more of the following events shall constitute a Termination Event:
(a) Any Originator shall fail (i) to make any payment or
deposit required hereunder when due, (ii) to observe or perform any covenant set
forth in Section 4.2 and such failure shall continue for three (3) consecutive
Business Days or (iii) to perform or observe any term, covenant or agreement
hereunder (other than as referred to in clauses (i) and (ii) of this paragraph
(a)) or any other Transaction Document to which it is a party and such failure
shall continue for five (5) consecutive Business Days.
(b) Any material representation, warranty, certification
or statement made by any Originator in this Agreement, any other Transaction
Document or in any other document delivered pursuant hereto or thereto shall
prove to have been incorrect when made or deemed made.
(c) Failure of any Originator or any of its respective
Subsidiaries to pay any Indebtedness when due, which individually or together
with other such Indebtedness as to which any such failures exists has an
aggregate outstanding principal amount in excess of $15,000,000 (hereinafter,
"Material Indebtedness"); or the default by any Originator or any of its
respective Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any such Material Indebtedness was
created or is governed, the effect of which is to cause, or to permit the holder
or holders of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its stated maturity; or any such Material Indebtedness of
any Originator or any of its respective Subsidiaries shall be declared to be due
and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the date of maturity thereof.
(d) (i) Any Originator or any of its respective
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 any proceeding shall be
instituted by or against any Originator or any of its respective 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 (ii) any Originator or any of its
respective Subsidiaries shall take any corporate action to authorize any of the
actions set forth in the foregoing clause (i) of this subsection (d). For the
purposes of this Section 6.1(d), "Subsidiary" shall exclude a Subsidiary which
(i) is not engaged in any business activity, (ii) has no Subsidiaries engaged in
any business activity and (iii) has no Indebtedness outstanding in excess of
$10,000.
(e) One or more final judgments for the payment of money
in any amount of $10,000,000 or more individually or in the aggregate, shall be
entered against any Originator or any of their respective Subsidiaries 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.
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Section 6.2 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 Originators 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 any
Originators to Buyer. The aforementioned rights and remedies shall be in
addition to all other rights and remedies of Buyer and its assigns available
under 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 VII
INDEMNIFICATION
Section 7.1 Indemnities by Originators. Without limiting any
other rights that Buyer may have hereunder or under applicable law, each
Originator, jointly and severally, hereby agrees to indemnify 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) 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, excluding, however:
(i) Indemnified Amounts to the extent a final judgment of
a court of competent jurisdiction holds that such Indemnified Amounts resulted
from 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
(iii) taxes imposed by the United States, by the
jurisdiction in which such Indemnified Party's principal executive office is
located, or by any other jurisdiction in the United States where such
Indemnified Party has established a taxable nexus other than in connection with
the transactions contemplated by this Agreement, 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 Intended Characterization, but not including any
such taxes resulting from the adoption after the date hereof of any law or any
amendment or change in the interpretation of any existing or future law that
subjects such Indemnified Party to taxes that would not be imposed by any law or
the interpretation thereof existing on the date hereof (except for changes in
the rate of such taxes);
provided, however, that nothing contained in this sentence shall limit the
liability of Originators or limit the recourse of Buyer to Originators for
amounts otherwise specifically provided to be paid by Originators under the
terms of this Agreement. Without limiting the generality of the
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foregoing indemnification, each Originator shall, jointly and severally,
indemnify the Indemnified Parties 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 such
Originator (or any officers of such Originator) under or in connection
with this Agreement, any other Transaction Document or any other
information or report delivered by such Originator pursuant hereto or
thereto, which shall have been false or incorrect when made or deemed
made;
(ii) the failure by such Originator, to comply with any
applicable law, rule or regulation with respect to any Receivable,
Contract or Invoice related thereto, or the nonconformity of any
Receivable, Contract or Invoice included therein with any such
applicable law, rule or regulation or any failure of such Originator to
keep or perform any of its obligations, express or implied, with
respect to any Contract or Invoice;
(iii) any failure of such 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 or similar claim arising out
of or in connection with merchandise, insurance or services that are
the subject of any Contract, Invoice or any Receivable;
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the payment
of any Receivable (including, without limitation, a defense based on
such Receivable or the related Invoice or 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 a
Purchase, the ownership of the Receivables or any other investigation,
litigation or proceeding relating to such Originator in which any
Indemnified Party becomes involved as a result of any of the
transactions contemplated hereby;
(viii) any inability to litigate any claim against any
Obligor in respect of any Receivable as a result of such Obligor being
immune from civil and commercial law and suit on the grounds of
sovereignty or otherwise from any legal action, suit or proceeding;
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(ix) any Termination Event described in Section 6.1(d);
(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, the Related Security and the Collections, 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;
(xii) any action or omission by such Originator which
reduces or impairs the rights of Buyer with respect to any Receivable
or the value of any such Receivable;
(xiii) the operations of Jabil Mexico, Jabil Chihuahua or
Jabil Reynosa and the enforcement of the Agent's and the Purchaser's
rights under any Estoppel Letter; and
(xiv) any attempt by any Person to void the Purchase
hereunder under statutory provisions or common law or equitable action.
Section 7.2 Other Costs and Expenses. Originators 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. Originators 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.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Waivers and Amendments.
(a) 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.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by each Originator and
Buyer and, to the extent required under the Purchase Agreement, the Agent and
the Financial Institutions or the Required Financial Institutions.
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Section 8.2 Notices. Except as provided below, 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 8.2.
Section 8.3 Protection of Ownership Interests of Buyer.
(a) Each 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 request, to perfect, protect or more fully evidence the Purchaser
Interests, or to enable Buyer (or its assigns) to exercise and enforce their
rights and remedies hereunder. At any time after the occurrence of an
Amortization Event under the Purchase Agreement, Buyer (or its assigns) may, at
the applicable Originator's sole cost and expense, direct such Originator to
notify the Obligors of Receivables originated by such 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. Such Originator shall, at the request of
Buyer (or its assigns) withhold the identity of Buyer in any such notification.
(b) If any 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 obligation, and Buyer's (or such
assigns') costs and expenses incurred in connection therewith shall be payable
by the applicable Originator as provided in Section 7.2. Each 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(es)-in-fact, to act on behalf of such Originator (i) to
execute on behalf of such 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 interests in the Receivables. This appointment is
coupled with an interest and is irrevocable.
Section 8.4 Confidentiality.
(a) Each Originator shall maintain and shall cause each
of its employees and officers to maintain the confidentiality of this Agreement
and the other confidential proprietary information with respect to the Agent and
Jupiter and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated
herein, except that (i) such Originator and its officers and employees may
disclose such information to such Originator's external accountants and
attorneys and as required by any
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applicable law or order of any judicial or administrative proceeding and (ii)
such Originator and its officers and employees may disclose the Transaction
Documents, other than the Fee Letter and the Concentration Limit Letter
Agreement (or any information contained in the Fee Letter or the Concentration
Limit Letter Agreement that may also be contained in any other Transaction
Document), to any institution providing financial services to such Originator,
pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Agent (as assignee of Buyer).
(b) Anything herein to the contrary notwithstanding, each
Originator hereby consents to the disclosure of any nonpublic information with
respect to it (i) to Buyer, the Agent, the Financial Institutions or Jupiter by
each other, (ii) by Buyer, the Agent or the Purchasers to any prospective or
actual assignee or participant of any of them or (iii) by the Agent to any
rating agency, Commercial Paper dealer or provider of a surety, guaranty or
credit or liquidity enhancement to Jupiter or any entity organized for the
purpose of purchasing, or making loans secured by, financial assets for which
Bank One acts as the administrative agent and to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing. In
addition, the Purchasers and the Agent may disclose any such nonpublic
information pursuant to any law, rule, regulation, direction, request or order
of any judicial, administrative or regulatory authority or proceedings (whether
or not having the force or effect of law).
Section 8.5 Bankruptcy Petition. Each 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
Jupiter, it will not institute against, or join any other Person in instituting
against, Jupiter any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
Section 8.6 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF NEW YORK.
Section 8.7 CONSENT TO JURISDICTION. EACH 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 SUCH ORIGINATOR PURSUANT TO THIS AGREEMENT AND SUCH 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 ANY ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY 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
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CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH ORIGINATOR
PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
Section 8.8 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 ORIGINATORS PURSUANT TO THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER.
Section 8.9 Integration; Binding Effect; Survival of Terms.
(a) This Agreement, the Subordinated Notes, the
Subscription Agreement and each Collection Account Agreement contain the final
and complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter hereof superseding
all prior oral or written understandings.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns (including any trustee in bankruptcy). This Agreement shall create and
constitute the continuing obligations of the parties hereto in accordance with
its terms and shall remain in full force and effect until terminated in
accordance with its terms; provided, however, that the rights and remedies with
respect to (i) any breach of any representation and warranty made by any
Originator pursuant to Article II, (ii) the indemnification and payment
provisions of Article VII, and Section 8.5 shall be continuing and shall survive
any termination of this Agreement.
Section 8.10 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 which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Unless otherwise
expressly indicated, all references herein to "Article," "Section," "Schedule"
or "Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
Section 8.11 Joinder of Originators. Subject to the approval
of the Agent, any wholly-owned domestic Subsidiary of Jabil may become an
Originator hereunder by entering into a Joinder Agreement with Buyer. From and
after the effective date of such Joinder Agreement, subject to the terms and
conditions set forth therein, and upon the Agent's receipt of each other
agreement, document, lien search report, financing statement, opinion and
certificate requested by the Agent, such Subsidiary shall become a party hereto
as an Originator, entitled to the rights and subject to the obligations of an
Originator hereunder.
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Section 8.12 Termination. Upon termination of the Purchase
Agreement for any reason and if this Agreement is not terminated, all references
herein to, and all provisions herein related to, the Purchase Agreement,
Jupiter, the Financial Institutions, the Purchasers, the Agent, the Purchaser
Interests, the Collection Accounts, the Lock Box Accounts and other terms
specific to the Purchase Agreement, shall be of no further effect, except such
provisions as the Originators and Buyer may continue in effect, delete or amend
in an amendment to this Agreement upon such termination of the Purchase
Agreement. If Buyer thereafter enters into agreements to sell Receivables to
other purchasers, the Originators agree to amend this Agreement accordingly on
terms similar to those herein relating to the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
set forth herein.
JABIL CIRCUIT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Treasurer
cc: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
JABIL CIRCUIT OF TEXAS, LP
By: Jabil Texas Holdings, LLC,
its sole General Partner
By: Jabil Circuit, Inc.
its sole Manager and Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
cc: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
JABIL GLOBAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
cc: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
JABIL CIRCUIT FINANCIAL II, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Assistant Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇