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Exhibit 10.5(b)(ii)
1997 Plexus 10-K
CORPORATE GUARANTEE AGREEMENT
THIS AGREEMENT is made as of March 20, 1997, by Technology Group, Inc., a
Wisconsin corporation (hereinafter called "Guarantor").
R E C I T A L S :
A. Firstar Bank Milwaukee, National Association, ▇▇▇▇▇▇ Trust and Savings
Bank and Bank One, Wisconsin (collectively, the "Banks"), and Firstar Bank
Milwaukee, National Association, as Agent (the "Agent") have entered into a
Credit Agreement dated as of the date hereof (the "Credit Agreement") with
Plexus Corp. (the "Company") providing for revolving credit loans to the
Company in an aggregate principal amount of up to $40,000,000.
B. The Banks have required, as a condition to making credit available to
the Company pursuant to the Credit Agreement, that the Guarantor guarantee the
Obligations (as hereinafter defined) on the terms stated herein.
C. It is necessary for the business purposes of the Guarantor that the
Company continue to obtain such credit from the Banks. The Guarantor is a
wholly-owned subsidiary of the Company. It is expected that substantially all
of the credit extended to the Company pursuant to the Credit Agreement will be
advanced to the Guarantor and Electronic Assembly Corporation, another
wholly-owned subsidiary of the Company (the "Co-Guarantor") to meet the needs
of the Guarantor and the Co-Guarantor for working capital and other general
corporate purposes. In addition, the Guarantor provides engineering and design
services to customers of the Company and the Co-Guarantor and expansion of the
business of the Company and the Co-Guarantor will indirectly benefit the
business of the Guarantor.
D. The term "Obligations" is used herein in its most comprehensive sense
and includes any and all debts, obligations, and liabilities of Company to the
Banks, or any of them, whether heretofore, now, or hereafter made, incurred, or
created, whether voluntary or involuntary and however arising, whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, secured or unsecured, whether Company is liable individually or
jointly with others, whether for principal, interest or other debts,
obligations or liabilities, and whether or
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not any or all such debts, obligations and liabilities are or become barred by
any statute of limitations or otherwise unenforceable. Without limitation of
the foregoing, "Obligations" shall include all indebtedness and other
obligations of Company to the Banks under (i) the Credit Agreement as from
time to time in effect, including all extensions, renewals and refundings
thereof, and (ii) any agreements of Company with one or more of the Banks (or
their affiliates) relating to interest rate, currency or commodity swaps, caps,
floors, collars, options or similar hedging arrangements.
C O V E N A N T S :
IN CONSIDERATION OF these premises and any credit or financial
accommodation now or hereafter granted by the Banks to Company, it is agreed
that:
1. Guarantee. The Guarantor hereby (a) unconditionally guarantees
the full and prompt payment and performance of the Obligations when
due, whether by acceleration or otherwise, or (if earlier) at the
time Company becomes the subject of bankruptcy or other insolvency
proceedings; (b) agrees to pay all costs, expenses and reasonable
attorneys' fees incurred by the Banks or the Agent in enforcing this
Agreement and the Obligations and realizing on any collateral for
either; and (c) agrees to pay to the Banks the amount of any payments
made to the Banks or another in connection with any of the
Obligations which are recovered from the Banks by a trustee,
receiver, creditor or other party pursuant to applicable law.
2. Guarantee of Payment. This is a guarantee of payment, and not
of collection. The Banks shall not be obligated to: (a) take any
steps whatsoever to collect from, or to file any claim of any kind
against, the Company, any other guarantor, or any other person or
entity liable for payment or performance of any of the Obligations;
or (b) take any steps whatsoever to protect, accept, obtain, enforce,
take possession of, perfect any interest in, foreclose or realize on
collateral or security, if any, for the payment or performance of any
of the Obligations or any guarantee of any of the Obligations; or (c)
in any other respect exercise any diligence whatever in collecting or
attempting to collect any of the Obligations by any means.
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3. Guarantee Absolute and Unconditional. The Guarantor's
liability for payment and performance of the Obligations shall be
absolute and unconditional; the Guarantor unconditionally and
irrevocably waives each and every defense which, under principles of
guarantee or suretyship law, would otherwise operate to impair or
diminish such liability; and nothing whatever except actual full
payment and performance to the Banks of the Obligations (and all
other debts, obligations and liabilities of Guarantor under this
Agreement) shall operate to discharge the Guarantor's liability
hereunder. Without limiting the generality of the foregoing, the
Banks shall have the exclusive right, which may be exercised from
time to time without diminishing or impairing the liability of the
Guarantor in any respect, and without notice of any kind to the
Guarantor, to: (a) extend any additional credit to Company; (b)
accept any collateral, security or guarantee for any Obligations or
any other credit; (c) determine how, when and what application of
payments, credits and collections, if any, shall be made on the
Obligations and any other credit and accept partial payments; (d)
determine what, if anything, shall at any time be done with respect
to any collateral or security; subordinate, sell, transfer,
surrender, release or otherwise dispose of all or any of such
collateral or security; and purchase or otherwise acquire any such
collateral or security at foreclosure or otherwise; and (e) with or
without consideration grant, permit or enter into any waiver,
amendment, extension, modification, refinancing, indulgence,
compromise, settlement, subordination, discharge or release of: (i)
any of the Obligations and any agreement relating to any of the
Obligations, (ii) any obligations of any guarantor or other person or
entity liable for payment or performance of any of the Obligations,
and any agreement relating to such obligations and (iii) any
collateral or security or agreement relating to collateral or
security for any of the foregoing.
4. Guarantor Waivers. The Guarantor hereby unconditionally waives
(a) presentment, notice of dishonor, protest, demand for payment and
all notices of any kind, including without limitation: notice of
acceptance hereof; notice of the creation of any of the Obligations;
notice of nonpayment, nonperformance or other default on any of the
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Obligations; and notice of any action taken to collect upon or
enforce any of the Obligations; (b) any subrogation to the rights of
the Banks against the Company, any other claim against the Company
which arises as a result of payments made by the Guarantor pursuant
to this Agreement, and any claim for contribution against any
co-guarantor, until the Obligations have been paid or performed in
full and such payments are not subject to any right of recovery; and
(c) any setoffs or counterclaims against the Banks which would
otherwise impair the Banks' rights against the Guarantor hereunder.
5. Independent Investigation. Guarantor has made an independent
investigation and evaluation of the financial condition of the
Company and the value of any collateral, and has not relied (and will
not rely) on any information or evaluation provided by the Banks
regarding such condition or value.
6. Representations and Warranties. Guarantor represents and
warrants that:
a. The execution, delivery and performance of this Agreement by
the Guarantor are within the corporate powers of the Guarantor,
have been duly authorized by all necessary corporate action and
do not and will not (i) require any consent or approval of the
stockholders of the Guarantor which has not been obtained, (ii)
violate any provision of the articles of incorporation or
by-laws of the Guarantor or of any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Guarantor or any
subsidiary of the Guarantor, (iii) require the consent or
approval of, or filing or registration with, any governmental
body, agency or authority, or (iv) result in a breach of or
constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property of the Guarantor
or any subsidiary of the Guarantor pursuant to, any indenture or
other agreement or instrument under which the Guarantor or any
subsidiary of the Guarantor is a party or by which it or any of
its properties may be bound or affected.
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b. This Agreement constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its
terms, except that such enforceability may be limited by
bankruptcy or similar laws affecting the enforceability of
creditors' rights generally.
c. The financial statements of the Guarantor furnished to the
Banks fairly present the financial condition of the Guarantor
for the periods shown therein, and since the dates covered by
the most recent of such financial statements, there has been no
material adverse change in the Guarantor's assets or the conduct
of its business. Except as expressly shown on such financial
statements, the Guarantor owns all of its assets free and clear
of all liens; is not a party to any litigation, nor is any
litigation threatened to the knowledge of the Guarantor which
would, if adversely determined, cause any material adverse
change in its business or assets; and has no delinquent tax
liabilities, nor have any tax deficiencies been proposed against
it.
7. Financial Information. The Guarantor shall provide to the
Banks such information regarding the financial condition of the
Guarantor as the Banks may reasonably request from time to time.
8. Continuing Guarantee. This Agreement shall inure to the benefit of
the Banks and their respective successors and assigns, including
every holder or owner of any of the Obligations, and shall be binding
upon the Guarantor and Guarantor's successors and assigns. This is a
continuing guarantee and shall continue in effect until the Banks
shall have received written notice of termination from Guarantor;
provided that this guarantee shall continue in effect thereafter with
respect to all Obligations which arise or are committed for prior to
Banks' receipt of such notice of termination (including all
subsequent extensions and renewals thereof, including extensions
and renewals at increased rates, and all subsequently accruing
interest and other charges thereon) until all such Obligations and
all obligations of Guarantor
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hereunder shall be paid or performed in full and such payments
are not subject to any right of recovery.
9. Miscellaneous. This Agreement constitutes the entire agreement
between the Banks and Guarantor with respect to the subject matter
hereof, superseding all previous communications and negotiations, and
no representation, understanding, promise or condition concerning the
subject matter hereof shall be binding upon the Banks unless
expressed herein. This Agreement shall be governed by the internal
laws of the State of Wisconsin.
TECHNOLOGY GROUP, INC.
By: /s/
Title:
(CORPORATE SEAL)
Attest: /s/
Title: