1
EXHIBIT 10.6(b)
EXHIBIT A
TO
CREDIT AGREEMENT
COMMITMENTS
REVOLVING LOAN COMMITMENTS
------------------------------------------------------------ ---------------------------------------------------------
Name of Lender Revolving Loan Commitment
-------------- -------------------------
------------------------------------------------------------ ---------------------------------------------------------
Bank One, NA $ 35,000,000
------------------------------------------------------------ ---------------------------------------------------------
ABN AMRO Bank N.V. $ 35,000,000
------------------------------------------------------------ ---------------------------------------------------------
Firstar Bank, N.A. $ 35,000,000
------------------------------------------------------------ ---------------------------------------------------------
▇▇▇▇▇▇ Trust and Savings Bank $ 23,000,000
------------------------------------------------------------ ---------------------------------------------------------
M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank $ 23,000,000
------------------------------------------------------------ ---------------------------------------------------------
National Westminster Bank PLC, $ 23,000,000
New York and Nassau Branches
------------------------------------------------------------ ---------------------------------------------------------
Fleet National Bank $ 23,000,000
------------------------------------------------------------ ---------------------------------------------------------
First Union National Bank, N.A. $ 23,000,000
------------------------------------------------------------ ---------------------------------------------------------
Bank of Tokyo-Mitsubishi Ltd., Chicago Branch $ 15,000,000
------------------------------------------------------------ ---------------------------------------------------------
BNP Paribas $ 15,000,000
------------------------------------------------------------ ---------------------------------------------------------
TOTAL $250,000,000
------------------------------------------------------------ ---------------------------------------------------------
2
EXHIBIT A-1
TO
CREDIT AGREEMENT
EUROCURRENCY PAYMENT OFFICES
Bank One, NA
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3
EXHIBIT B
TO
CREDIT AGREEMENT
FORM OF BORROWING/ELECTION NOTICE
TO: Bank One, NA (having its principal office in Chicago, IL), as
contractual representative (the "Administrative Agent") under that
certain Credit Agreement dated as of October 25, 2000 by and among
Plexus Corp., the Subsidiary Borrowers from time to time parties
thereto, the financial institutions from time to time parties thereto
as lenders (the "Lenders"), the Administrative Agent, Firstar Bank,
N.A., as Documentation Agent, and ABN AMRO Bank N.V., as Syndication
Agent (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement").
The undersigned Borrower hereby gives to the Administrative Agent [and
the Swing Line Bank] a [Borrowing/Election Notice pursuant to Section 2.1]
[Borrowing/Election Notice pursuant to Section 2.2] [a Borrowing/Election Notice
pursuant to Section 2.7] [Borrowing/Election Notice pursuant to Section 2.9(D)]
of the Credit Agreement, and such Borrower hereby requests to [borrow] [convert]
[continue] on , (the "Borrowing Date") from the Lenders on a
pro rata basis an aggregate principal amount of:
(a) [US $ ] [ in the Agreed Currency
described below] in Revolving Loans as a
| | Floating Rate Advance
| | Eurocurrency Rate Advance
- Applicable Interest Period of month(s).
- Agreed Currency: .
(b) $ in Swing Line Loans as a Floating Rate
Advance.
The undersigned hereby certifies to the Administrative Agent and the
Lenders that (i) the representations and warranties of the undersigned contained
in Article VI of the Credit Agreement are and shall be true and correct on and
as of the date hereof and on and as of the Borrowing Date (unless such
representation and warranty is made as of a specified date, in which case, such
representation and warranty shall be true and correct as of such date) except
for changes in the Schedules to the Credit Agreement affecting transactions
permitted by or not in violation of the Credit Agreement; (ii) no Default or
Unmatured Default has occurred and is continuing on the date hereof or on the
Borrowing Date or will result from the making of the proposed Advance; and (iii)
the conditions set forth in Sections 5.2 and 5.3, as applicable, of the Credit
Agreement have been satisfied.
4
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Borrowing/Election Notice.
Dated ,
--------------- ------
[PLEXUS CORP.]
[SUBSIDIARY BORROWER]
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
5
EXHIBIT C
TO
CREDIT AGREEMENT
FORM OF REQUEST FOR LETTER OF CREDIT
TO: (1), an Issuing Bank under that certain
Credit Agreement dated as of October 25, 2000 by and among Plexus
Corp., the Subsidiary Borrowers from time to time parties thereto, the
financial institutions from time to time parties thereto as lenders
(the "Lenders"), Bank One, NA (having its principal office in Chicago,
IL), as contractual representative for itself and the other Lenders
(the "Administrative Agent"), Firstar Bank, N.A., as Documentation
Agent, and ABN AMRO Bank N.V., as Syndication Agent (as the same may be
amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") and
BANK ONE, NA, as Administrative Agent BANK ONE, NA, as Administrative Agent
1 Bank One Plaza ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------
Telecopier: (312) 732- Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-----
Confirmation: (312) 732- Confirmation: (▇▇▇) ▇▇▇-▇▇▇▇
-----
Pursuant to Section 3.3 of the Credit Agreement, the undersigned
Borrower hereby gives to the Issuing Bank a request for issuance of a Letter of
Credit on behalf of such Borrower for the benefit of (2),
in the following Agreed Currency: [ ], in the amount of [US $
][ in such Agreed Currency], with an effective date of
, (the "Effective Date") and an expiry date of , .
The undersigned hereby certifies that (i) the representations and
warranties of the undersigned contained in Article VI of the Credit Agreement
are and shall be true and correct on and as of the date hereof and on and as of
the Effective Date (unless such representation and warranty is made as of a
specified date, in which case, such representation and warranty shall be true
and correct as of such date) except for changes in the Schedules to the Credit
Agreement affecting transactions permitted by or not in violation of the Credit
Agreement; (ii) no Default or Unmatured Default has occurred and is continuing
on the date hereof or on the Effective Date or will result from the issuance of
the proposed Letter of Credit; and (iii) the conditions set forth in Sections
3.4, 5.2 and 5.3 of the Credit Agreement have been satisfied.
--------
(1) Insert name of Issuing Bank.
(2) Insert name of beneficiary.
6
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Request for Letter of Credit.
Dated ,
----------------------- ------
[PLEXUS CORP.]
[SUBSIDIARY BORROWER]
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
2
7
EXHIBIT D
TO
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the "Assignee") is dated
as of , . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, restated, supplemented, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Section 14.3(B) of
the Credit Agreement and the date specified in Item 5 of Schedule 1 or two
Business Days (or such shorter period agreed to by the Administrative Agent)
after a Notice of Assignment substantially in the form of Appendix I (attached
hereto) has been delivered to the Administrative Agent. Such Notice of
Assignment must include the consents, if any, required to be delivered to the
Administrative Agent by Section 14.3(A) of the Credit Agreement. In no event
will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof are
not made on the proposed Effective Date. The Assignor will notify the Assignee
of the proposed Effective Date no later than the Business Day prior to the
proposed Effective Date. As of the Effective Date, (i) the Assignee shall have
the rights and obligations of a Lender under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder and (ii) the
Assignor shall relinquish its rights and be released from its corresponding
obligations under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each
8
Eurocurrency Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Rate Loan
either becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter referred to
as the "Payment Date"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Eurocurrency Rate Loan assigned to
the Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Rate Loan shall be
the Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the existing Interest Period applicable to such Eurocurrency Rate
Loan (the "Agreed Interest Rate") and any interest received by the Assignee in
excess of the Agreed Interest Rate shall be remitted to the Assignor. In the
event interest for the period from the Effective Date to but not including the
Payment Date is not paid by the Borrowers with respect to any Eurocurrency Rate
Loan sold by the Assignor to the Assignee hereunder, the Assignee shall pay to
the Assignor interest for such period on the portion of such Eurocurrency Rate
Loan sold by the Assignor to the Assignee hereunder at the applicable rate
provided by the Credit Agreement. In the event a prepayment of any Eurocurrency
Rate Loan which is existing on the Payment Date and assigned by the Assignor to
the Assignee hereunder occurs after the Payment Date but before the end of the
Interest Period applicable to such Eurocurrency Rate Loan, the Assignee shall
remit to the Assignor the excess of the prepayment penalty paid with respect to
the portion of such Eurocurrency Rate Loan assigned to the Assignee hereunder
over the amount which would have been paid if such prepayment penalty was
calculated based on the Agreed Interest Rate. The Assignee will also promptly
remit to the Assignor (i) any principal payments received from the
Administrative Agent with respect to Eurocurrency Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Loans assigned to
the Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans or fees, or the Payment Date, in the case of Eurocurrency
Rate Loans, and not previously paid by the Assignee to the Assignor.](3) In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The [Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or commitment fees is
made under the Credit Agreement with respect to the amounts assigned to the
Assignee hereunder (other than a payment of interest or commitment fees for the
period prior to the Effective Date or, in the case of Eurocurrency Rate Loans,
the Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was of 1% less than the interest rate paid by
the Borrowers or if the commitment fee was ___ of 1% less than the commitment
fee paid by the Borrowers, as applicable. In addition, the] [Assignee][Assignor]
agrees to pay a $4,000 processing fee required to be paid to the Administrative
Agent in connection with this Assignment Agreement.(4)
--------
(3) Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
(4) Assignor and Assignee to insert applicable payment terms.
2
9
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner o f the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. The
Assignor represents and warrants that it has the power and authority and legal
right to execute and deliver this Assignment Agreement and to perform its
obligations hereunder. The execution and delivery by the Assignor of this
Assignment Agreement and the performance by it of its obligations hereunder have
been duly authorized by proper proceedings. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor, the Administrative Agent, nor any other
Lender, nor any of its officers, directors, employees, agents or attorneys shall
be responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectibility of any Loan Document, including
without limitation, documents granting the Assignor, Administrative Agent and
the other Lenders a security interest in assets of the Borrowers or any
guarantor, (ii) any representation, warranty or statement made in or in
connection with any of the Loan Documents, (iii) the financial condition or
creditworthiness of the Borrowers or any guarantor, (iv) the performance of or
compliance with any of the terms or provisions of any of the Loan Documents, (v)
inspecting any of the property, books or records of the Borrowers, (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (vii) any
mistake, error of judgment, or action taken or omitted to be taken in connection
with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and
warrants that it has the power and authority and legal right to execute and
deliver this Assignment Agreement and to perform its obligations hereunder. The
execution and delivery by the Assignee of this Assignment Agreement and the
performance by it of its obligations hereunder have been duly authorized by
proper proceedings. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements requested by
the Assignee and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment Agreement, (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Lender and
based on such documents and information at it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, (iii) appoints and authorizes the Administrative Agent
to take such action as contractual representative on its behalf and to exercise
such powers under the Loan Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender, (v) agrees that its payment
instructions and notice instructions are as set forth in the attachment to
Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes].(5)
--------
(5) To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
3
10
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 14.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Revolving Loan Commitment occurs between the date of this Assignment
Agreement and the Effective Date, the percentage interest specified in Item 3 of
Schedule 1 shall remain the same, but the dollar amount purchased shall be
recalculated based on such reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws (including Section
735 ILCS 105/5-1 et seq. but otherwise without regard to the conflicts of laws
provisions) of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
4
11
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[NAME OF ASSIGNEE]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
5
12
SCHEDULE 1
Assignment Agreement
1. Description and Date of Credit Agreement:
CREDIT AGREEMENT DATED AS OF OCTOBER 25, 2000 BY AND AMONG PLEXUS CORP,
THE SUBSIDIARY BORROWERS FROM TIME TO TIME PARTIES THERETO, THE
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES THERETO AS LENDERS
(THE "LENDERS"), BANK ONE, NA (HAVING ITS PRINCIPAL OFFICE IN CHICAGO,
IL), AS CONTRACTUAL REPRESENTATIVE FOR ITSELF AND THE OTHER LENDERS
(THE "ADMINISTRATIVE AGENT"), FIRSTAR BANK, N.A., AS DOCUMENTATION
AGENT, AND ABN AMRO BANK N.V., AS SYNDICATION AGENT.
2. Date of Assignment Agreement: ,
3. Amounts to be Assigned(6) (As of Date of Item 2 above):
------------------------------------ -------------------- ------------------------
REVOLVING LOAN SWING LINE LOAN
FACILITY
------------------------------------ -------------------- ------------------------
TOTAL OF COMMITMENTS
(LOANS) UNDER $ $
THE CREDIT AGREEMENT ----------------- ------------------
------------------------------------ -------------------- ------------------------
ASSIGNEES PERCENTAGE OF
EACH FACILITY PURCHASED % %
UNDER THE ASSIGNMENT ----- -----
AGREEMENT
------------------------------------ -------------------- ------------------------
AMOUNT OF ASSIGNED SHARE
OF EACH FACILITY UNDER THE $ $
ASSIGNMENT AGREEMENT ----------------- ------------------
------------------------------------ -------------------- ------------------------
4. Assignee's Aggregate (Loan
Amount)** Commitment Amount
Purchased Hereunder: $
---------------------
----------
(6) Amounts to be described in Dollars or Agreed Currency, as applicable.
13
5. Proposed Effective Date: ,
------------- ----
Accepted and Agreed:
[NAME OF ASSIGNOR]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
[NAME OF ASSIGNEE]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
2
14
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
15
APPENDIX I
to Assignment Agreement
NOTICE OF ASSIGNMENT
,
--------------- -----
To: Bank One, NA, as Agent Bank One, NA, as Agent
1 Bank One Plaza ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Telephone No.: (312) 732- Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
----
Facsimile No.: (312) 732- Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
----
PLEXUS CORP.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement") described
in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to Section 14.3(B) of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of , (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1. The Effective Date of the Assignment
shall be the later of the date specified in Section 14.3(B) of the Credit
Agreement and the date specified in Item 5 of Schedule 1 or two Business Days
(or such shorter period as agreed to by the Administrative Agent) after this
Notice of Assignment and any consents and fees required by Sections 14.3(A) and
14.3(B) of the Credit Agreement have been delivered to the Administrative Agent,
provided that the Effective Date shall not occur if any condition precedent
agreed to by the Assignor and the Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Borrowers and the
Administrative Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the Administrative Agent before the date specified
in Item 5 of Schedule 1 to determine if the Assignment
16
Agreement will become effective on such date pursuant to Section 3 hereof, and
will confer with the Administrative Agent to determine the Effective Date
pursuant to Section 3 hereof if it occurs thereafter. The Assignor shall notify
the Administrative Agent if the Assignment Agreement does not become effective
on any proposed Effective Date as a result of the failure to satisfy the
conditions precedent agreed to by the Assignor and the Assignee. At the request
of the Administrative Agent, the Assignor will give the Administrative Agent
written confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before the
Effective Date the processing fee of $4,000 required by Section 14.3(B) of the
Credit Agreement.
6. If notes are outstanding on the Effective Date, the Assignor and the
Assignee may request and direct that the Administrative Agent prepare and cause
the Borrowers to execute and deliver new notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and the Assignee, as
applicable, each agree to deliver to the Administrative Agent the original
note(s) received by it from the Borrowers upon its receipt of a new note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
contractual representative under the Loan Documents in accordance with the terms
thereof. The Assignee acknowledges that the Administrative Agent has no duty to
supply information with respect to the Borrowers or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.
2
17
[NAME OF ASSIGNOR]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[NAME OF ASSIGNEE]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ACKNOWLEDGED AND CONSENTED TO:
BANK ONE, NA, as Administrative Agent
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
[Attach photocopy of Schedule 1 to Assignment]
3
18
EXHIBIT E
TO
CREDIT AGREEMENT
FORM OF BORROWERS' COUNSELS' OPINION(S)
Attached
19
EXHIBIT F
TO
CREDIT AGREEMENT
LIST OF CLOSING DOCUMENTS
Attached
20
EXHIBIT G
TO
CREDIT AGREEMENT
FORM OF OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am the of
PLEXUS CORP., a corporation duly organized and existing under the laws of the
State of Wisconsin (the "Company"). Capitalized terms used herein and not
otherwise defined herein are as defined in that that certain Credit Agreement
dated as of October 25, 2000 by and among the Company, the Subsidiary Borrowers
from time to time parties thereto, the financial institutions from time to time
parties thereto as lenders (the "Lenders"), Bank One, NA (having its principal
office in Chicago, IL), as contractual representative for itself and the other
Lenders (the "Administrative Agent"), Firstar Bank, N.A., as Documentation
Agent, and ABN AMRO Bank, N.V., as Syndication Agent (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement").
I further certify on behalf of the Company, that as of the date hereof,
to the best of my knowledge, after diligent inquiry of all relevant persons at
the Company and its respective Subsidiaries, (i) the representations and
warranties of the Company contained in Article VI of the Credit Agreement shall
have been true and correct at all times during the period commencing on
, 20 and ending on , 20 and as of the date of this
Officer's Certificate (unless such representation and warranty is made as of a
specified date, in which case, such representation and warranty shall be true
and correct as of such date) and (ii) as of the date of this Officer's
Certificate no Default or Unmatured Default exists [other than the following
(describe the nature of the Default or Unmatured Default and the status
thereof)].
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the Company
on this day of , .
PLEXUS CORP.
By:
-----------------------------------------
Title:
--------------------------------------
21
EXHIBIT H
TO
CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
Pursuant to [Section 5.3] [Section 7.1(A)(iii)] of that certain Credit
Agreement dated as of October 25, 2000 by and among Plexus Corp. (the
"Company"), the Subsidiary Borrowers from time to time parties thereto (together
with the Company, collectively, the "Borrowers"), the financial institutions
from time to time parties thereto as lenders (the "Lenders"), Bank One, NA
(having its principal office in Chicago, IL), as contractual representative for
itself and the other Lenders (the "Administrative Agent"), ABN AMRO Bank N.A.,
as Syndication Agent, and Firstar Bank, N.A., as Documentation Agent (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), the Company, through its respective
, hereby deliver to the Administrative Agent [,
together with the financial statements being delivered to the Agent pursuant to
Section 7.1(A) of the Credit Agreement,] this Compliance Certificate (the
"Certificate") [for the accounting period from , 20 to
, 20 ] (the "Accounting Period"). Capitalized terms used herein
shall have the meanings set forth in the Credit Agreement. Subsection references
herein relate to subsections of the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Company;
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrowers and their respective Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate [except as set forth below]; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrowers' compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and correct.
22
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this day of , 20 .
The Company hereby certifies on behalf of itself and the other Borrowers through
its , that the information set forth herein and on the attached
Schedule I hereto is accurate as of , , to the best of such
officer's knowledge, after diligent inquiry, and that the financial statements
delivered herewith present fairly the financial position of the Borrowers and
their respective Subsidiaries at the dates indicated and the results of their
operations and changes in their financial position for the periods indicated in
conformity with Agreement Accounting Principles, consistently applied.
Dated ,
--------- ----
PLEXUS CORP.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
23
SCHEDULE I
to
COMPLIANCE CERTIFICATE
I. FINANCIAL COVENANTS
A. MAXIMUM LEVERAGE RATIO (Section 7.4(A))
(1) Indebtedness of the Company and its Subsidiaries (other than
Hedging Obligations) $
----------
(2) EBITDA
(a) Net Income $
----------
(b) Interest Expense + $
----------
(c) Taxes + $
----------
(d) EBIT = $
----------
(e) Depreciation + $
----------
(f) Amortization + $
----------
(g) EBITDA = $
----------
(3) "Leverage Ratio" (Ratio of (1) to (2)(g)) to 1.00
----
(4) Maximum Leverage Ratio 3.25 to 1.00
B. INTEREST EXPENSE COVERAGE RATIO (Section 7.4(B)).
(1) EBITR
(a) EBIT (as determined under item I(A)(2)(d) above) $
----------
(b) Rentals + $
----------
(c) EBITR = $
----------
(2) Interest Expense + Rentals for such fiscal quarter $
----------
(3) "Interest Expense Coverage Ratio" (Ratio of (1)(c) to (2)) to 1.0
----
(4) Minimum Interest Expense Coverage Ratio 2.00 to 1.00
24
II. OTHER MISCELLANEOUS PROVISIONS
A. INDEBTEDNESS (Section 7.3(A))
(1) State the aggregate amount of all Non-Controlled Subsidiary
Investments ($10,000,000 maximum permitted) $
----------
(2) Receivables Facility Attributed Indebtedness
--------------------------------------------
(a) Amount of Receivables Facility Attributed Indebtedness $
----------
(b) Consolidated assets of the Company and its Subsidiaries $
----------
(c) 20% of line (b) x 20% = $
((a) not permitted to exceed (c)) ----------
(3) Aggregate principal amount of other Indebtedness incurred by
the Subsidiaries not otherwise permitted under Section 7.3(A)
[Maximum $30,000,000][Please attached a detailed schedule
setting forth all such Subsidiary Indebtedness] $
----------
B. ASSET SALES (Section 7.3(B))
(1) State whether any asset sales other than (i) sales of
inventory in the ordinary course of business and (ii)
transfers of Receivables and Receivables Related Security
pursuant to Section 7.3(B)(iii) Yes/No
(2) If yes, attach as a schedule hereto the details of such asset
sales and calculation of compliance with Section 7.3(B)(v).
C. INVESTMENTS (Section 7.3(D))
(1) Aggregate amount of Investments, including Permitted Existing
Investments and including Investments in joint ventures, made
pursuant to Section 7.3(C)(ix) $
[Maximum: $25,000,000] ----------
D. MATERIAL SUBSIDIARY CALCULATIONS (Sections 7.2(K) and 7.3(Q))
(1) Material Domestic Subsidiaries
Set forth below is a list of all Domestic Subsidiaries of
Plexus Corp. which either (i) represents more than five
percent (5%) of consolidated assets (other than SPVs) as would
be shown in the consolidated financial statements of the
Company and its Subsidiaries as at the beginning of the
twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than
five percent (5%) of the EBITDA of the Company and its
Subsidiaries (other than SPVs) as reflected in the financial
statements referred to in clause (i) above. Also set forth
below is an indication of whether such Subsidiaries are
parties
25
to the Subsidiary Guaranty.
------------------------------------------------------------------------- -------------------------
Name of Material Domestic Subsidiaries and Jurisdiction of Formation Signatory to Subsidiary
Guaranty (Yes/No)
------------------------------------------------------------------------- -------------------------
PLEXUS INTERNATIONAL SERVICES, INC., a Nevada corporation Yes
------------------------------------------------------------------------- -------------------------
ELECTRONIC ASSEMBLY CORP., a Wisconsin corporation Yes
------------------------------------------------------------------------- -------------------------
TECHNOLOGY GROUP, INC., a Wisconsin corporation Yes
------------------------------------------------------------------------- -------------------------
AGILITY, INC., a Massachusetts corporation Yes
------------------------------------------------------------------------- -------------------------
SEAMED CORPORATION, a Washington corporation Yes
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
(2) Material Foreign Subsidiaries
Set forth below is a list of all Foreign Subsidiaries of
Plexus Corp. which either (i) represents more than five
percent (5%) of consolidated assets (other than SPVs) as would
be shown in the consolidated financial statements of the
Company and its Subsidiaries as at the beginning of the
twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than
five percent (5%) of the EBITDA of the Company and its
Subsidiaries (other than SPVs) as reflected in the financial
statements referred to in clause (i) above. Also set forth
below is an indication of whether 60% of the stock of such
Subsidiaries has been pledged pursuant to a Pledge Agreement.
------------------------------------------------------------------------- -------------------------
Name of Material Foreign Subsidiaries and Jurisdictions of Formation Signatory to Subsidiary
Guaranty (Yes/No)
------------------------------------------------------------------------- -------------------------
PLEXUS CORP. LIMITED, a Scottish corporation Yes
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
------------------------------------------------------------------------- -------------------------
26
(3) Non-Guarantor/Non-Pledged Subsidiaries.
(a) Set forth below is the sum of the aggregate assets of
(1) all of the Company's Domestic Subsidiaries (other than
the SPVs) which are not Subsidiary Guarantors plus (2)
all of the Borrower's Foreign Subsidiaries in connection
with which the Administrative Agent has not received
a Pledge Agreement (or Pledge Agreement with respect
to its parent corporation) $
-----------------
(b) Set forth below is an amount equal to the highest of (1)
fifteen percent (15%) of the Company and its Subsidiaries
consolidated assets and (2) fifteen percent (15%) of the
EBITDA of the Company and its Subsidiaries. $
-----------------
[The amount in (a) is nor permitted to be greater
than the amount in (b)]
27
EXHIBIT I
TO
CREDIT AGREEMENT
FORM OF SUBSIDIARY GUARANTY
Attached
28
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of the 25th day
of October, 2000, by PLEXUS INTERNATIONAL SERVICES, INC., a Nevada corporation,
ELECTRONIC ASSEMBLY CORP., a Wisconsin corporation, TECHNOLOGY GROUP, INC., a
Wisconsin corporation, AGILITY, INC., a Massachusetts corporation and SEAMED
CORPORATION, a Washington corporation (collectively, the "Initial Guarantors"
and along with any additional Subsidiaries which become parties to this Guaranty
by executing a Supplement hereto in the form attached as Annex I, the
"Guarantors"), in favor of the Administrative Agent under (and as defined in)
the Credit Agreement referred to below;
WITNESSETH:
WHEREAS, PLEXUS CORP., a Wisconsin corporation (the "Company") and the
Subsidiary Borrowers (collectively, the "Borrowers"), the institutions from time
to time parties thereto as lenders (the "Lenders"), ABN AMRO BANK N.V., as
Syndication Agent, FIRSTAR BANK, N.A., as Documentation Agent, and BANK ONE, NA,
a national banking association having its principal office in Chicago, Illinois,
in its capacity as contractual representative for the Lenders (the
"Administrative Agent"), have entered into a certain Credit Agreement dated as
of October 25, 2000 (as the same may be amended, modified, supplemented and/or
restated, and as in effect from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
and other financial accommodations to be made by the Lenders to the Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Guarantors
(constituting all of the Subsidiaries of the Company required to execute this
Guaranty pursuant to Section 7.2(K) of the Credit Agreement) execute and deliver
this Guaranty, whereby each of the Guarantors shall guarantee the payment when
due of all "Obligations" (as defined in the Credit Agreement), including,
without limitation, all principal, interest and other amounts that shall be at
any time payable by the Borrowers under the Credit Agreement or the other Loan
Documents, and all Hedging Obligations under any Designated Hedging Agreement;
and
WHEREAS, in consideration of the direct and indirect financial and
other support that one or more of the Borrowers has provided, and such direct
and indirect financial and other support as the Borrowers may in the future
provide, to the Guarantors, and in order to induce the Lenders and the
Administrative Agent to enter into the Credit Agreement, each of the Guarantors
is willing to guarantee the Obligations of the Borrowers under the Credit
Agreement and the other Loan Documents and all Hedging Obligations under any
Designated Hedging Agreements;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
29
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, partnership or limited liability company duly
and properly incorporated or formed, validly existing and in good standing under
the laws of its jurisdiction of incorporation or formation, and has all
requisite authority to conduct its business as a foreign Person in each
jurisdiction in which its business is conducted, except where the failure to
have such requisite authority would not have a Material Adverse Effect.
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by each of its
obligations hereunder have been duly authorized by proper proceedings, and this
Guaranty constitutes a legal, valid and binding obligation of each Guarantor,
enforceable against such Guarantor, in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will (i) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on it or
its certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) or the provisions of any
indenture, instrument or material agreement to which it is a party or is
subject, or by which it, or its property, is bound, (ii) or conflict with or
constitute a default thereunder, except such interference or default which
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect, or (iii) result in the creation or imposition of any
Lien in, of or on its property pursuant to the terms of any such indenture,
instrument or material agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority, is required to authorize, or is
required in connection with the execution, delivery and performance by it of, or
the legality, validity, binding effect or enforceability against it of, this
Guaranty.
In addition to the foregoing, each of the Guarantors covenants that, so
long as any Lender has any Commitment outstanding under the Credit Agreement or
any amount payable under the Credit Agreement or any other Obligations or
Hedging Obligations under Designated Hedging Agreements shall remain unpaid, it
will, and, if necessary, will enable the Borrowers to, fully comply with those
covenants and agreements of the Borrowers applicable to such Guarantor set forth
in the Credit Agreement.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due
2
30
(whether at stated maturity, upon acceleration or otherwise) of (a) the
Obligations and (b) all Hedging Obligations under the Designated Hedging
Agreements, including, without limitation, (i) the principal of and interest on
each Advance made to any of the Borrowers pursuant to the Credit Agreement, (ii)
any Reimbursement Obligations of the Borrowers, (iii) all Hedging Obligations
owing to any Lender or any affiliate of any Lender under any Designated Hedging
Agreement and (iv) all other amounts payable by the Borrowers or any of their
Subsidiaries under the Credit Agreement, any Designated Hedging Agreement and
the other Loan Documents (all of the foregoing being referred to collectively as
the "Guaranteed Obligations"). Upon failure by any Borrower or any of their
Affiliates, as applicable, to pay punctually any such amount, each of the
Guarantors agrees that it shall forthwith on demand pay such amount at the place
and in the manner specified in the Credit Agreement, any Designated Hedging
Agreement or the relevant Loan Document, as the case may be. Each of the
Guarantors hereby agrees that this Guaranty is an absolute, irrevocable and
unconditional guaranty of payment and is not a guaranty of collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, indulgence,
compromise, waiver or release of or with respect to the Guaranteed
Obligations or any part thereof or any agreement relating thereto, or
with respect to any obligation of any other guarantor of any of the
Guaranteed Obligations, whether (in any such case) by operation of law
or otherwise, or any failure or omission to enforce any right, power or
remedy with respect to the Guaranteed Obligations or any part thereof
or any agreement relating thereto, or with respect to any obligation of
any other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the
Credit Agreement, any Designated Hedging Agreement or any other Loan
Document, including, without limitation, any such amendment which may
increase the amount of, or the interest rates applicable to, any of the
Obligations guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity with respect
to the Guaranteed Obligations or any part thereof, or any nonperfection
or invalidity of any direct or indirect security for the Guaranteed
Obligations;
(iv) any change in the corporate, partnership or other
existence, structure or ownership of any Borrower or any other
guarantor of any of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any
Borrower or any other guarantor of the Guaranteed Obligations, or any
of their respective assets or any resulting release or discharge of any
obligation of any Borrower or any other guarantor of any of the
Guaranteed Obligations;
3
31
(v) the existence of any claim, setoff or other rights which
the Guarantors may have at any time against any Borrower, any other
guarantor of any of the Guaranteed Obligations, the Administrative
Agent, any holder of Obligations or any other Person, whether in
connection herewith or in connection with any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or any other invalidity or
unenforceability relating to or against any Borrower or any other
guarantor of any of the Guaranteed Obligations, for any reason related
to the Credit Agreement, any Designated Hedging Agreement, any other
Loan Document, or any provision of applicable law or regulation
purporting to prohibit the payment by any Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed
Obligations;
(vii) the failure of the Administrative Agent to take any
steps to perfect and maintain any security interest in, or to preserve
any rights to, any security or collateral for the Guaranteed
Obligations, if any;
(viii) the election by, or on behalf of, any one or more of
the holders of Obligations, in any proceeding instituted under Chapter
11 of Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the
"Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(ix) any borrowing or grant of a security interest by any
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy
Code;
(x) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the holders of Obligations
the Administrative Agent for repayment of all or any part of the
Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become
party to this Guaranty or any amendment, change, or reaffirmation
hereof; or
(xii) any other act or omission to act or delay of any kind by
any Borrower, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any holder of Obligations or any other Person or
any other circumstance whatsoever which might, but for the provisions
of this Section 4, constitute a legal or equitable discharge of any
Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In
Certain Circumstances. Each of the Guarantors' obligations hereunder shall
remain in full force and effect until all Guaranteed Obligations shall have been
paid in full in cash and the Commitments and all Letters of Credit issued under
the Credit Agreement shall have terminated or expired. If at any time any
payment of the principal of or interest on any Advance or Reimbursement
4
32
Obligation or any other amount payable by the Borrower or any other party under
the Credit Agreement, any Designated Hedging Agreement or any other Loan
Document is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of any Borrower or otherwise, each of
the Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against any Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(a) Subordination of Subrogation. Until the Guaranteed Obligations have
been indefeasibly paid in full in cash, the Guarantors (i) shall have no right
of subrogation with respect to such Guaranteed Obligations and (ii) waive any
right to enforce any remedy which the Issuing Banks, holders of the Guaranteed
Obligations or the Administrative Agent now have or may hereafter have against
any Borrower, any endorser or any guarantor of all or any part of the
Obligations or any other Person, and the Guarantors waive any benefit of, and
any right to participate in, any security or collateral given to the holders of
Guaranteed Obligations and the Administrative Agent to secure the payment or
performance of all or any part of the Guaranteed Obligations or any other
liability of the Borrowers to the holders of the Guaranteed Obligations. Should
any Guarantor have the right, notwithstanding the foregoing, to exercise its
subrogation rights, each Guarantor hereby expressly and irrevocably (A)
subordinates any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set off that the
Guarantor may have to the indefeasible payment in full in cash of the Guaranteed
Obligations and (B) waives any and all defenses available to a surety, guarantor
or accommodation co-obligor until the Guaranteed Obligations are indefeasibly
paid in full in cash. Each Guarantor acknowledges and agrees that this
subordination is intended to benefit the Administrative Agent and the holders of
the Guaranteed Obligations and shall not limit or otherwise affect such
Guarantor's liability hereunder or the enforceability of this Guaranty, and that
the Administrative Agent, the holders of the Guaranteed Obligations and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 7(a).
(b) Subordination of Intercompany Indebtedness. Each Guarantor agrees
that any and all claims of such Guarantor against either any Borrower or any
other Guarantor hereunder (each an "Obligor") with respect to any "Intercompany
Indebtedness" (as hereinafter defined), any endorser, obligor or any other
guarantor of all or any part of the Guaranteed Obligations, or against any of
its properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Guaranteed Obligations. Notwithstanding any
right of any Guarantor to ask, demand, ▇▇▇ for, take or receive any payment from
any Obligor, all rights, liens and security interests of such Guarantor, whether
now or hereafter arising and howsoever existing, in any assets of any other
Obligor shall be and are subordinated to the rights of the
5
33
holders of the Guaranteed Obligations and the Administrative Agent in those
assets. No Guarantor shall have any right to possession of any such asset or to
foreclose upon any such asset, whether by judicial action or otherwise, unless
and until all of the Guaranteed Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied (in cash) and all
financing arrangements pursuant to any Loan Document or any Designated Hedging
Agreement have been terminated. If all or any part of the assets of any Obligor,
or the proceeds thereof, are subject to any distribution, division or
application to the creditors of such Obligor, whether partial or complete,
voluntary or involuntary, and whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors or any other
action or proceeding, or if the business of any such Obligor is dissolved or if
substantially all of the assets of any such Obligor are sold, then, and in any
such event (such events being herein referred to as an "Insolvency Event"), any
payment or distribution of any kind or character, either in cash, securities or
other property, which shall be payable or deliverable upon or with respect to
any indebtedness of any Obligor to any Guarantor ("Intercompany Indebtedness")
shall be paid or delivered directly to the Administrative Agent for application
on any of the Guaranteed Obligations, due or to become due, until such
Guaranteed Obligations (other than contingent indemnity obligations) shall have
first been fully paid and satisfied (in cash). Should any payment, distribution,
security or instrument or proceeds thereof be received by the applicable
Guarantor upon or with respect to the Intercompany Indebtedness after any
Insolvency Event and prior to the satisfaction of all of the Guaranteed
Obligations (other than contingent indemnity obligations) and the termination of
all financing arrangements pursuant to any Loan Document and/or Designated
Hedging Agreements, such Guarantor shall receive and hold the same in trust, as
trustee, for the benefit of the holders of the Guaranteed Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of such
Persons, in precisely the form received (except for the endorsement or
assignment of the Guarantor where necessary), for application to any of the
Guaranteed Obligations, due or not due, and, until so delivered, the same shall
be held in trust by the Guarantor as the property of the holders of the
Guaranteed Obligations. If any such Guarantor fails to make any such endorsement
or assignment to the Administrative Agent, the Administrative Agent or any of
its officers or employees is irrevocably authorized to make the same. Each
Guarantor agrees that until the Guaranteed Obligations (other than the
contingent indemnity obligations) have been paid in full (in cash) and satisfied
and all financing arrangements pursuant to any Loan Document or any Designated
Hedging Agreement have been terminated, no Guarantor will assign or transfer to
any Person (other than the Administrative Agent) any claim any such Guarantor
has or may have against any Obligor.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following
6
34
indefeasible payment in full in cash of the Guaranteed Obligations and
termination of the Credit Agreement and the Designated Hedging Agreements, such
Guarantor shall be entitled to receive contribution and indemnification payments
from, and be reimbursed by, each other Guarantor for the amount of such excess,
pro rata based upon their respective Allocable Amounts in effect immediately
prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor or Guarantors
to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Credit
Agreement and the Designated Hedging Agreements.
SECTION 9. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by any Borrower under the Credit Agreement, any
counterparty to any Designated Hedging Agreement or any other Loan Document is
stayed upon the insolvency, bankruptcy or reorganization of any Borrower or any
of their Affiliates, all such amounts otherwise subject to acceleration under
the terms of the Credit Agreement, any Designated Hedging Agreement or any other
Loan Document shall nonetheless be payable by each of the Guarantors hereunder
forthwith on demand by the Administrative Agent.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be given in the manner prescribed in Article XV of the
Credit Agreement with respect to the Administrative Agent at its notice address
therein and with respect to any Guarantor at the address set forth below or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of such Article XV.
7
35
Notice Address for Guarantors:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11. No Waivers. No failure or delay by the Administrative Agent
or any holders of Guaranteed Obligations in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided in this Guaranty, the Credit Agreement, any Designated Hedging
Agreement and the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the holders of Guaranteed Obligations and their
respective successors and permitted assigns, provided, that no Guarantor shall
have any right to assign its rights or obligations hereunder without the consent
of all of the Lenders, and any such assignment in violation of this Section 12
shall be null and void; and in the event of an assignment of any amounts payable
under the Credit Agreement, any Designated Hedging Agreement or the other Loan
Documents in accordance with the respective terms thereof, the rights hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty shall be binding upon each of the
Guarantors and their respective successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries, which become parties hereto by executing a
Supplement hereto in the form attached as Annex I, neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by each of the Guarantors and the Administrative Agent
with the consent of the Required Lenders under the Credit Agreement.
8
36
SECTION 14. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
GUARANTY, ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY
ACKNOWLEDGING AND AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY GUARANTOR AND
THE ADMINISTRATIVE AGENT OR ANY HOLDER OF GUARANTEED OBLIGATIONS ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING ss.735 ILCS 105/5-1 ET SEQ. BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS.
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN CLAUSE (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS (UNLESS THE FEDERAL
COURTS WILL NOT ACCEPT JURISDICTION, IN WHICH CASE THEY SHALL BE RESOLVED
EXCLUSIVELY BY STATE COURTS LOCATED IN CHICAGO, ILLINOIS), BUT THE PARTIES
HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN
ALL DISPUTES BROUGHT PURSUANT TO THIS CLAUSE (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH GUARANTOR AGREES THAT THE
ADMINISTRATIVE AGENT OR ANY HOLDER OF GUARANTEED OBLIGATIONS SHALL HAVE THE
RIGHT TO PROCEED AGAINST EACH GUARANTOR OR ITS RESPECTIVE PROPERTY IN A COURT IN
ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
GUARANTOR OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. EACH GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. EACH GUARANTOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS CLAUSE (B).
(C) SERVICE OF PROCESS. EACH GUARANTOR WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY APPOINTS CT
9
37
CORPORATION WHOSE ADDRESS IS ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
AS EACH GUARANTOR'S AGENT FOR THE PURPOSE OF ACCEPTING ANY WRITS, SERVICE OF
PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING ISSUED BY ANY COURT.
NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE AGENT OR
THE HOLDERS OF THE GUARANTEED OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR
SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(D) VENUE. EACH GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(E) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 15 WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty
shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc.
(A) Taxes.
(i) Any and all payments by any of the Guarantors hereunder
(whether in respect of principal, interest, fees or otherwise) shall be
made free and clear of and
10
38
without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings or any interest, penalties
and liabilities with respect thereto including those arising after the
date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by
a Governmental Authority but excluding, in the case of each Lender and
the Administrative Agent, such taxes (including income taxes, franchise
taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income
by the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities
which the Administrative Agent or a Lender determines to be applicable
to this Guaranty, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "Taxes"). If any Guarantor shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder to any holder of Obligations, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions or withholdings (including deductions applicable to
additional sums payable under this Section 17(A)) such Lender or
Administrative Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions or withholdings
been made, (ii) the applicable Guarantor shall make such deductions or
withholdings, and (iii) the applicable Guarantor shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall
be or become applicable (y) after the date of this Guaranty, to such
payments by the applicable Guarantor made to the Lending Installation
or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of
any other Lending Installation, to such payments made to such other
Lending Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce the
applicable Guarantor's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Commitments of
such Lender.
(ii) In addition, each of the Guarantors agrees to pay any present
or future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, or from the execution, delivery or registration of, or
otherwise with respect to, this Guaranty, the other Loan Documents, the
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "Other Taxes").
(iii) Subject to the exceptions in the Credit Agreement, each of
the Guarantors indemnifies each Lender and the Administrative Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 17(A)) paid by such
11
39
Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be
made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. If the Taxes or Other Taxes with respect to which any
Guarantor has made either a direct payment to the taxation or other
authority or an indemnification payment hereunder are subsequently
refunded to any Lender, such Lender will return to the applicable
Guarantor an amount equal to the lesser of the indemnification payment
or the refunded amount. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section
17(A) submitted to the applicable Guarantor and the Administrative
Agent (if a Lender is so submitting) by such Lender or the
Administrative Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be deemed presumptively correct. With respect to such
deduction or withholding for or on account of any Taxes and to confirm
that all such Taxes have been paid to the appropriate Governmental
Authorities, the applicable Guarantor or Guarantors shall promptly (and
in any event not later than thirty (30) days after receipt) furnish to
each Lender and the Administrative Agent such certificates, receipts
and other documents as may be required (in the reasonable judgment of
such Lender or the Administrative Agent) to establish any tax credit to
which such Lender or the Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by any Guarantor, the applicable Guarantor shall
furnish to the Administrative Agent the original or a certified copy of
a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of
the Guarantors hereunder, the agreements and obligations of the
Guarantors contained in this Section 17(A) shall survive the payment in
full of all Guaranteed Obligations and the termination of this
Guaranty.
(B) Expenses of Enforcement, Etc. Subject to the terms of the Credit
Agreement, after the occurrence of a Default under the Credit Agreement, the
Lenders shall have the right at any time to direct the Administrative Agent to
commence enforcement proceedings with respect to the Guaranteed Obligations. The
Guarantors agree to reimburse the Administrative Agent and the holders of
Obligations for any costs and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Administrative Agent and
the holders of Obligations, which attorneys may be employees of the
Administrative Agent or the holders of Obligations) paid or incurred by the
Administrative Agent or any holders of Obligation in connection with the
collection and enforcement of amounts due under the Loan Documents, including
without limitation this Guaranty. The Administrative Agent agrees to distribute
payments received from any of the Guarantors hereunder to the holders of
Obligations on a pro rata basis for application in accordance with the terms of
the Credit Agreement.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
holder of Obligations and the
12
40
Administrative Agent may, without notice to any Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and
apply toward the payment of all or any part of the Guaranteed Obligations (i)
any indebtedness due or to become due from such holder of Obligations or the
Administrative Agent to any Guarantor, and (ii) any moneys, credits or other
property belonging to any Guarantor, at any time held by or coming into the
possession of such holder of Obligations or the Administrative Agent or any of
their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrowers and any and all endorsers and/or other Guarantors of all or any part
of the Guaranteed Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations, or any part thereof, that
diligent inquiry would reveal, and each Guarantor hereby agrees that none of the
holders of Obligations or the Administrative Agent shall have any duty to advise
such Guarantor of information known to any of them regarding such condition or
any such circumstances. In the event any holder of Obligations or the
Administrative Agent, in its sole discretion, undertakes at any time or from
time to time to provide any such information to a Guarantor, such holder of
Obligations or the Administrative Agent shall be under no obligation (i) to
undertake any investigation not a part of its regular business routine, (ii) to
disclose any information which such holder of Obligations or the Administrative
Agent, pursuant to accepted or reasonable commercial finance or banking
practices, wishes to maintain confidential or (iii) to make any other or future
disclosures of such information or any other information to such Guarantor.
SECTION 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 21. Merger. This Guaranty represents the final agreement of
each of the Guarantors with respect to the matters contained herein and may not
be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Guarantor and any holder of Obligations
or the Administrative Agent.
SECTION 22. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
13
41
IN WITNESS WHEREOF, the Initial Guarantors has caused this
Guaranty to be duly executed by its authorized officer as of the day and year
first above written.
PLEXUS INTERNATIONAL SERVICES,
INC.
ELECTRONIC ASSEMBLY CORP.
TECHNOLOGY GROUP, INC.
SEAMED CORPORATION
In each case:
By:
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Treasurer
AGILITY, INC.
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Treasurer
14
42
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as of
the 25th day of October, 2000, by and among PLEXUS INTERNATIONAL SERVICES, INC.,
ELECTRONIC ASSEMBLY CORP., TECHNOLOGY GROUP, INC., AGILITY, INC., SEAMED
CORPORATION (the "Initial Guarantors" and along with any additional Subsidiaries
which become parties to this Guaranty by executing a Supplement hereto in the
form attached as Annex I, the "Guarantors") in favor of the Administrative Agent
under the Credit Agreement. Capitalized terms used herein and not defined herein
shall have the meanings given to them in the Guaranty. By its execution below,
the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership] [limited
liability company], agrees to become, and does hereby become, a Guarantor under
the Guaranty and agrees to be bound by such Guaranty as if originally a party
thereto. By its execution below, the undersigned represents and warrants as to
itself that all of the representations and warranties contained in Section 2 of
the Guaranty are true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Guaranty as of this day of , .
[NAME OF NEW GUARANTOR]
By:
-------------------------------------
Title:
----------------------------------
15
43
EXHIBIT J
TO
CREDIT AGREEMENT
FORM OF REVOLVING LOAN NOTE
Attached
44
FORM OF REVOLVING LOAN NOTE
$ Chicago, Illinois
--------------- [DATE]
FOR VALUE RECEIVED, the undersigned, PLEXUS CORP., a Wisconsin
corporation (the "Borrower"), HEREBY UNCONDITIONALLY PROMISES TO PAY to the
order of [ ] (the "Lender") the principal sum of [ ]
AND NO/100 DOLLARS ($[ ]), or, if less, the aggregate unpaid amount
of all "Revolving Loans" (as defined in the Credit Agreement referred to below)
made by the Lender to such Borrower pursuant to the "Credit Agreement" (as
defined below), on the "Termination Date" (as such term is defined in the Credit
Agreement) or on such earlier date as may be required by the terms of the Credit
Agreement. Capitalized terms used herein and not otherwise defined herein are as
defined in the Credit Agreement.
The undersigned Borrower promises to pay interest on the unpaid
principal amount of each Revolving Loan made to it from the date of such
Revolving Loan until such principal amount is paid in full at a rate or rates
per annum determined in accordance with the terms of the Credit Agreement.
Interest hereunder is due and payable at such times and on such dates as set
forth in the Credit Agreement.
At the time of each Revolving Loan, and upon each payment or
prepayment of principal of each Revolving Loan, the Lender shall make a notation
either on the schedule attached hereto and made a part hereof, or in such
Lender's own books and records, in each case specifying the amount of such
Revolving Loan, the respective Interest Period thereof (in the case of
Eurocurrency Rate Loans) or the amount of principal paid or prepaid with respect
to such Revolving Loan, as applicable; provided that the failure of the Lender
to make any such recordation or notation shall not affect the Obligations of the
undersigned Borrower hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the promissory notes referred
to in, and is entitled to the benefits of, that certain Credit Agreement dated
as of October 25, 2000 by and among Plexus Corp., the Subsidiary Borrowers from
time to time parties thereto (collectively, the "Borrowers"), the financial
institutions from time to time parties thereto as lenders (the "Lenders"), Bank
One, NA (having its principal office in Chicago, IL), as contractual
representative for itself and the other Lenders (the "Administrative Agent"),
Firstar Bank, N.A., as Documentation Agent, and ABN AMRO Bank N.A., as
Syndication Agent (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"). The Credit
Agreement, among other things, (i) provides for the making of Revolving Loans by
the Lender to the undersigned Borrower and the other Borrowers under the Credit
Agreement from time to time in an aggregate amount not to exceed at any time
outstanding the Dollar Amount first above mentioned, the indebtedness of the
undersigned Borrower resulting from each such Revolving Loan to it being
evidenced by this Revolving Loan Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments of the principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest
are hereby waived by the Borrower.
Whenever in this Revolving Loan Note reference is made to the
Administrative Agent, the Lender or the Borrower, such reference shall be deemed
to include, as applicable, a reference to their respective successors and
assigns. The provisions of this Revolving Loan Note shall be binding upon and
45
shall inure to the benefit of said successors and assigns. The Borrower's
successors and assigns shall include, without limitation, a receiver, trustee or
debtor in possession of or for the Borrower.
This Revolving Loan Note shall be interpreted, and the rights
and liabilities of the parties hereto determined, in accordance with the
internal laws (including Section 735 ILCS 105/5-1 et seq. but otherwise without
regard to the conflicts of laws provisions) of the State of Illinois.
PLEXUS CORP.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
2
46
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
--------------------------------------------------------------------------------------------------------------------
Amount of
---------
Principal Unpaid
--------- ------
Amount of Type of Interest Paid or Principal Notation Made
---------- ------- --------- -------- ---------- -------------
Date Loan Loan Currency Period/ Rate Prepaid Balance By
---- ---- ------------- ------------ ------- ------- --
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47
EXHIBIT K
TO
CREDIT AGREEMENT
FORM OF ASSUMPTION LETTER
, 20
------------- --
To the Administrative Agent and the Lenders party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
October 25, 2000 by and among Plexus Corp., the Subsidiary Borrowers from time
to time parties thereto, the financial institutions from time to time parties
thereto as lenders (the "Lenders"), Bank One, NA (having its principal office in
Chicago, IL), as contractual representative for itself and the other Lenders
(the "Administrative Agent"), Firstar Bank, N.A., as Documentation Agent, and
ABN AMRO Bank N.V., as Syndication Agent (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement and used herein are used herein as defined
therein.
The undersigned, (the "Subsidiary"), a
[corporation], wishes to become a "Subsidiary Borrower" under the Credit
Agreement, and accordingly hereby agrees that from the date hereof it shall
become a "Subsidiary Borrower" under the Credit Agreement and agrees that from
the date hereof and until the payment in full of the principal of and interest
on all Advances made to it under the Credit Agreement and performance of all of
its other obligations thereunder, and termination hereunder of its status as a
"Subsidiary Borrower" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are stated to
apply to a "Borrower" or a "Subsidiary Borrower." Without limiting the
generality of the foregoing, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Sections 6.1, 6.2,
6.3 and 6.18 of the Credit Agreement is hereby made by such Subsidiary on and as
of the date hereof as if made on and as of the date hereof and as if such
Subsidiary is the "Borrower" and this Assumption Letter is the "Agreement"
referenced therein, and (ii) it has heretofore received a true and correct copy
of the Credit Agreement (including any modifications thereof or supplements or
waivers thereto) as in effect on the date hereof. In addition, the Subsidiary
hereby authorizes each of the Borrowers to act on its behalf as and to the
extent provided for in Article II of the Credit Agreement in connection with the
selection of Types and Interest Periods for Advances and the conversion and
continuation of Advances.
So long as the principal of and interest on all Advances made to
the Subsidiary Borrower under the Credit Agreement shall have been repaid or
paid in full, all Letters of Credit issued for the account of the Subsidiary
Borrower have expired or been returned and terminated and all other obligations
of the Subsidiary Borrower under this Agreement shall have been fully performed,
the Company may, by not less than five Business Days' prior notice to the
Administrative Agent (who shall promptly notify the Lender thereof) terminate
its status as a "Subsidiary Borrower."
48
CHOICE OF LAW. THIS ASSUMPTION LETTER SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT
OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered
this Assumption Letter as of the date and year first above written.
[Name of Subsidiary Borrower]
By:
-------------------------------------------
Title:
----------------------------------------
Address for Notices under the Credit Agreement:
Consented to:
PLEXUS CORP.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
2
49
EXHIBIT L
TO
CREDIT AGREEMENT
FORM OF COMMITMENT AND ACCEPTANCE
Dated , 2000
-------------
Reference is made to the Credit Agreement dated as of October 25, 2000
among Plexus Corp., a Wisconsin corporation (the "Company"), the Subsidiary
Borrowers from time to time party thereto (together with the Company,
collectively, the "Borrowers"), the financial institutions party thereto (the
"Lenders"), Bank One, N.A, having its principal place of business in Chicago,
Illinois, as contractual representative for the Lenders (the "Administrative
Agent"), Firstar Bank, N.A., as Documentation Agent, and ABN AMRO Bank N.V., as
Syndication Agent (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Terms defined in
the Credit Agreement are used herein with the same meaning.
Pursuant to Section 2.5(B) of the Credit Agreement, the Company has
requested an increase in the Aggregate Commitment from $ to
$ . Such increase in the Aggregate Commitment is to become effective
on the date (the "Effective Date") which is the later of (i) , and
(ii) the date on which the conditions precedent set forth in Section 2.5(B) in
respect of such increase have been satisfied. In connection with such requested
increase in the Aggregate Commitment, the Borrowers, the Administrative Agent
and (the "Accepting Bank") hereby agree as follows:
1. Effective as of the Effective Date, [the Accepting Bank shall become
a party to the Credit Agreement as a Lender and shall have all of the rights and
obligations of a Lender thereunder and shall thereupon have a Commitment under
and for purposes of the Credit Agreement in an amount equal to the] [the
Commitment of the Accepting Bank under the Credit Agreement shall be increased
from $ to the] amount set forth opposite the Accepting Bank's name on
the signature page hereof.
[2. The Accepting Bank hereby (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Commitment and Acceptance
Agreement; (ii) agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Administrative Agent to take such action as
contractual representative on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender]
3. The Company on behalf of all of the Borrowers hereby represents and
warrants that as of the date hereof and as of the Effective Date, no event shall
have occurred and then be continuing which constitutes a Default or an Unmatured
Default.
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4. THIS COMMITMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS (INCLUDING SECTION 735 ILCS
105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
5. This Commitment and Acceptance Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment and
Acceptance Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
PLEXUS CORP.
By:
-----------------------------------------
Title:
--------------------------------------
BANK ONE, N.A., as Administrative Agent
By:
-----------------------------------------
Title:
--------------------------------------
COMMITMENT ACCEPTING BANK
$ [BANK]
------------
By:
-----------------------------------------
Title:
--------------------------------------
2
51
Reaffirmations of Guarantors
Each of the undersigned hereby acknowledges receipt of the foregoing
Commitment and Acceptance. Capitalized terms used in this Reaffirmation and not
defined herein shall have the meanings given to them in the Credit Agreement
referred to in the foregoing Commitment and Acceptance. Without in any way
establishing a course of dealing by the Administrative Agent or any Lender, the
undersigned reaffirms the terms and conditions of the Guaranty dated as of
October 25, 2000 executed by it and acknowledges and agrees that such Guaranty
and each and every other Loan Document executed by the undersigned in connection
with the Credit Agreement remain in full force and effect and are hereby
ratified, reaffirmed and confirmed. All references to the Credit Agreement
contained in the above-referenced documents shall be a reference to the Credit
Agreement as so amended by the Commitment and Acceptance and as the same may
from time to time hereafter be amended, modified or restated. The failure of any
Guarantor to sign this Reaffirmation shall not release, discharge or otherwise
affect the obligations of any of the Guarantors hereunder or under the Guaranty.
[SIGNATURE BLOCKS FOR GUARANTORS]
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52
EXHIBIT M
TO
CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
Attached
53
TABLE OF CONTENTS
1. INTERPRETATION..............................................................1
2. UNDERTAKING TO GUARANTEE AND PAY............................................4
3. PLEDGE......................................................................4
4. UNDERTAKING TO DEPOSIT AND FURTHER ASSURANCES...............................4
5. REPRESENTATIONS AND WARRANTIES..............................................6
6. UNDERTAKINGS................................................................7
7. PLEDGOR'S RIGHTS BEFORE ENFORCEMENT.........................................8
8. ENFORCEMENT.................................................................9
9. DEALINGS WITH PLEDGED PROPERTY ON ENFORCEMENT...............................9
10. APPLICATION OF MONEYS.....................................................10
11. GENERAL RIGHTS OF ADMINISTRATIVE AGENT....................................11
12. LIABILITY OF ADMINISTRATIVE AGENT, DELEGATES AND NOMINEES.................12
13. PROTECTION OF THIRD PARTIES...............................................13
14. CONTINUING SECURITY.......................................................13
15. OTHER SECURITY............................................................14
16. PLEDGE NOT TO BE AFFECTED.................................................14
17. RELEASE OF PLEDGED PROPERTY...............................................15
18. POWER OF ATTORNEY.........................................................16
19. CURRENCY INDEMNITY........................................................16
20. CERTIFICATE TO BE CONCLUSIVE EVIDENCE.....................................17
21. STAMP DUTY................................................................17
22. COMMUNICATIONS............................................................17
23. RIGHTS AND WAIVERS........................................................17
24. INVALIDITY................................................................18
25. ASSIGNATION BY ADMINISTRATIVE AGENT.......................................18
26. GOVERNING LAW.............................................................18
27. JURISDICTION..............................................................18
SCHEDULES
PART 1 ORIGINAL SHARES.........................................................1
PART 2 WRITTEN RESOLUTION OF PLEXUS CORP. LIMITED..............................2
PART 3 FORM OF PROXY BY THE ADMINISTRATIVE AGENT OR ITS
NOMINEE.................................................................3
i
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EXECUTION COPY
PLEXUS INTERNATIONAL SERVICES, INC.,
as Pledgor
- AND -
BANK ONE, NA
(having its principal office in Chicago, Illinois, U.S.A.),
as Administrative Agent
--------------------------------------------------------------------------------
PLEDGE OVER SHARES
--------------------------------------------------------------------------------
55
PLEDGE OVER SHARES
BETWEEN
1. PLEXUS INTERNATIONAL SERVICES, INC., a company incorporated in Nevada,
USA and having it's principal office at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "PLEDGOR");
AND
2. BANK ONE, NA (having its principal office in Chicago, Illinois,
U.S.A.), in its capacity as agent (the "ADMINISTRATIVE AGENT", which
expression includes its successors in title and assigns) for itself and
the other Holders of Secured Obligations (as defined below) under the
Credit Agreement.
WHEREAS, Plexus Corp., the subsidiary borrowers from time to time parties
thereto, the financial institutions from time to time parties thereto
(collectively, the "LENDERS"), ABN AMRO Bank, as Syndication Agent, Firstar
Bank, N.A., as Documentation Agent and the Administrative Agent have entered
into that certain Credit Agreement dated as of 25 October 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), pursuant to which the Lenders have agreed, subject to the terms and
conditions provided therein, to make loans and other financial accommodations to
Plexus Corp. and such subsidiary borrowers.
WHEREAS, the Pledgor is the owner of one hundred per cent. (100%) of the issued
and outstanding capital stock of the Company.
WHEREAS, under the terms of the Credit Agreement, the Pledgor, as a Subsidiary
Guarantor (as defined in the Credit Agreement), is required to enter into a
Subsidiary Guaranty in the form attached as Exhibit I to the Credit Agreement
(the "SUBSIDIARY GUARANTY").
WHEREAS, under the terms of the Credit Agreement, the Administrative Agent and
the Holders of Secured Obligations (as defined below) have required that sixty
per cent. (60%) of the outstanding capital stock of each first - tier Material
Foreign Subsidiary (as defined in the Credit Agreement) be pledged to the
Administrative Agent.
WHEREAS, the Company is a Material Foreign Subsidiary under and as defined in
the Credit Agreement.
WHEREAS, the Administrative Agent and the Holders of Secured Obligations have
required under the terms of the Credit Agreement, that the Pledgor execute and
deliver this Pledge.
NOW THIS PLEDGE WITNESSES as follows:
1. INTERPRETATION
1.1 Words and expressions defined in the Credit Agreement shall, in the
absence of express indication to the contrary and save where the
context or subject matter otherwise requires, have the same meanings
when used in this Pledge.
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1.2 DEFINITIONS
In this Pledge (which expression shall include the recitals and
schedule hereto):
"BUSINESS DAY" has the meaning given to it in the Credit Agreement.
"COMPANY" means Plexus Corp. Limited, registration number 207257, which
has its registered office at ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
"CREDIT AGREEMENT" has the meaning given to it in the recitals hereto.
"DELEGATE" means a delegate or sub-delegate appointed pursuant to
clause 11.4.
"DERIVED ASSETS" means all Shares, rights or other property of a
capital nature which accrue or are offered, issued or paid at any time
(by way of bonus, rights, redemption, conversion, exchange,
substitution, consolidation, subdivision, preference, warrant, option,
purchase or otherwise) in respect of:
(a) the Original Shares; or
(b) any Further Shares; or
(c) any Shares, rights or other property previously accruing, offered,
issued or paid as mentioned in this definition.
"DISSOLUTION" of a person includes the bankruptcy, insolvency,
liquidation, amalgamation, reconstruction, reorganisation,
administration, administrative or other receivership, or dissolution of
that person, and any equivalent or analogous proceeding by whatever
name known and in whatever jurisdiction, and any step taken (including,
but without limitation, the presentation of a petition or the passing
of a resolution) for or with a view to any of the foregoing.
"DIVIDENDS" means all dividends, interest and other income paid or
payable in respect of the Original Shares, any Further Shares or any
Derived Assets.
"EVENT OF DEFAULT" means a Default under the Credit Agreement.
"FURTHER SHARES" means all Shares (other than the Original Shares and
any Shares comprised in any Derived Assets) which, subject to clause
4.5, the Pledgor and the Administrative Agent may at any time agree
shall be subject to the Pledge.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in
respect of its Loans, (ii) the Issuing Banks in respect of the L/C
Obligations, (iii) the Administrative Agent, the Lenders, the Swing
Line Bank and the Issuing Banks in respect of all other present and
future obligations and liabilities of the Borrowers or any of their
Subsidiaries, Holdings or Enterprises of every type and description
arising under or in connection with the Credit Agreement or any other
Loan Document, (iv) each indemnitee in respect of the obligations and
liabilities of the Borrowers to such Persons under the Credit
Agreement, (v) each Lender (or affiliate thereof), in respect of all
Hedging
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57
Obligations under Designated Hedging Agreements and (vi) their
respective successors, transferees and assignees.
"LENDERS" has the meaning given to it in the recitals hereto.
"ORIGINAL SHARES" means the Shares listed in part 1 of the Schedule
hereto constituting but not exceeding 60 per cent. of the issued share
capital of the Company at the date hereof.
"PLEDGE" means all or any of the Security created, or which may at
anytime be created, by or pursuant to this Pledge.
"PLEDGED PROPERTY" means the Original Shares, any Further Shares, any
Derived Assets and any Dividends.
"PROCEEDINGS" means any proceeding, suit or action arising out of or in
connection with this Pledge.
"RIGHTS" means rights, benefits, powers, privileges, authorities,
discretions and remedies (in each case, of any nature whatsoever).
"SECURED OBLIGATIONS" means any and all existing and future Obligations
of the Borrowers or Guarantors to the Administrative Agent, the
Lenders, the Swing Line Bank, the Issuing Banks, or any of them, under
or with respect of the Loan Documents, whether for principal, interest,
fees, expenses or otherwise and any and all existing and future Hedging
Obligations of the Borrowers or the Guarantors or any of their
respective Subsidiaries under Designated Hedging Agreements.
"SECURITY" includes any security, mortgage, fixed or floating charge,
encumbrance, lien, pledge, hypothecation, assignment by way of
security, or title retention arrangement (other than in respect of
goods purchased in the ordinary course of trading), and any agreement
or arrangement having substantially the same economic or financial
effect as any of the foregoing (including any "hold back" or "flawed
asset" arrangement).
"SHARES" means stocks, shares and other securities of any kind.
"TAX" includes any present or future tax, levy, impost, duty, pledge,
fee, deduction or withholding of any nature, and any interest or
penalty in respect thereof.
1.3 REFERENCES AND CONSTRUCTION
(a) In this Pledge, unless otherwise specified:
(i) references to clauses and schedules are to clauses of and
schedules to this Pledge;
(ii) headings to clauses are for convenience only and are to be
ignored in construing this Pledge;
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58
(iii) references to a "person" are to be construed so as to
include any individual, firm, company, government, state or
agency of a state, local or municipal authority, or any
joint venture, association or partnership (whether or not
having separate legal personality);
(iv) references to a "company" are to be construed so as to
include any company, limited liability company, corporation
or other body corporate, wherever and however incorporated
or established; and
(v) references to any statute or statutory provision include
that statute or provision as it may have been, or may from
time to time be, amended, modified, re-enacted, or replaced
and include references to all by-laws, instruments, orders
and regulations for the time being made thereunder or
deriving validity therefrom.
(b) Except to the extent that the context otherwise requires, any
reference in this Pledge to "this Pledge" or any other pledge,
agreement or instrument is a reference to this Pledge or, as the
case may be, the relevant pledge, agreement or instrument as
amended, supplemented, replaced or novated from time to time and
includes a reference to any document which amends, supplements,
replaces, novates or is entered into, made or given pursuant to or
in accordance with any of the terms of this Pledge or, as the case
may be, the relevant pledge, agreement or instrument.
2. UNDERTAKING TO GUARANTEE AND PAY
The Pledgor undertakes with the Administrative Agent to guarantee the
payment and discharge of all the Secured Obligations in accordance with
the provisions of the Subsidiary Guaranty and shall pay and discharge
all the obligations in accordance with and arising under the provisions
of the Subsidiary Guaranty.
3. PLEDGE
As continuing security for the payment and discharge of all the Secured
Obligations, and the payment and discharge of the obligations arising
under the Subsidiary Guaranty the Pledgor pledges and assigns to the
Administrative Agent for the benefit of itself and the other Holders of
Secured Obligations its whole right, title, interest and benefit
(including any Rights) in and to the Original Shares and all other
securities (if any) which are hereafter transferred or delivered to the
Administrative Agent or its nominee or otherwise agreed to be held on
the terms of this Pledge (including without prejudice to the foregoing
generality, the Further Shares and any Derived Assets).
4. UNDERTAKING TO DEPOSIT AND FURTHER ASSURANCES
4.1 ORIGINAL SHARES AND FURTHER SHARES
Subject to clause 4.5, the Pledgor shall, immediately after the
execution of this Pledge in the case of Original Shares, and within
seven Business Days of each occasion on
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59
which the Administrative Agent and the Pledgor agree that any Shares
shall become Further Shares, deposit with the Administrative Agent:
(a) all share certificates, documents of title and other documentary
evidence of ownership in relation to such Shares; and
(b) transfers of such Shares duly executed by the Pledgor or (if
appropriate) its nominee in whose name such shares are registered
with the name of the transferee left blank or, if the
Administrative Agent so requires, duly executed by the Pledgor or
such nominee in favour of the Administrative Agent (or the
Administrative Agent's nominee) and stamped, and such other
documents as the Administrative Agent may reasonably require (and
which the Pledgor may competently execute or procure) to enable
the Administrative Agent (or the Administrative Agent's nominee)
or, after the occurrence of an Event of Default, any purchaser to
be registered as the owner of, or otherwise to obtain legal title
to, such Shares.
4.2 DERIVED ASSETS
Subject to clause 4.5, the Pledgor shall, within seven Business Days of
the accrual, offer, issue or payment of any Derived Assets, deliver or
pay to the Administrative Agent or procure the delivery or payment to
the Administrative Agent (to the extent not already delivered or paid)
of:
(a) all such Derived Assets or the share certificates, renounceable
certificates, letters of allotment, documents of title and other
documentary evidence of ownership in relation to them; and
(b) transfers of any Shares comprised in such Derived Assets duly
executed by the Pledgor or (if appropriate) its nominee in whose
name such shares are registered with the name of the transferee
left blank or, if the Administrative Agent so requires, duly
executed by the Pledgor or such nominee in favour of the
Administrative Agent (or the Administrative Agent's nominee) and
stamped, and such other documents as the Administrative Agent may
reasonably require (and which the Pledgor may competently execute
or procure) to enable the Administrative Agent (or the
Administrative Agent's nominee) or, after the occurrence of an
Event of Default, any purchaser to be registered as the owner or,
or otherwise to obtain legal title to, the Shares comprised in
such Derived Assets.
4.3 AMENDMENT TO ARTICLES OF ASSOCIATION
The Pledgor shall, immediately upon the execution of this Pledge,
procure that a special resolution of the Company is passed resolving to
amend its Articles of Association in the form specified in Part 2 of
the Schedule. From and after the date hereof, the Pledgor undertakes
that it shall not permit the Articles of Association of the Company to
be amended or modified in any way that would be adverse to the
interests of the Administrative Agent or the Holders of Secured
Obligations.
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4.4 FURTHER ASSURANCES
In addition to and without prejudice to anything else contained in this
Pledge, the Pledgor shall, at its own cost, promptly execute and do all
such pledges, instruments, transfers, renunciations, proxies, notices,
documents, assurances, acts and things in such form as the
Administrative Agent may from time to time deem reasonably necessary or
advisable:
(a) for perfecting, preserving or protecting the Pledge or the
priority of the Pledge; and
(b) for facilitating the realisation of the Pledge or for enforcing
the same or exercising any of the Administrative Agent's Rights
hereunder.
4.5 LIMITATION ON PLEDGED PROPERTY
Notwithstanding anything to the contrary provided in this Pledge, the
Pledgor undertakes with the Administrative Agent that under no
circumstances shall the Pledged Property exceed, nor any steps be taken
by either the Pledgor or the Administrative Agent that would result in
the Pledged Property exceeding, 60 per cent. in nominal value of the
entire issued share capital of the Company.
4.6 The Pledgor shall, immediately on receipt of the relevant transfer
document delivered pursuant to this Pledge, procure registration of the
Administrative Agent (or its nominee) as registered holder of all
Shares (in the relevant register of members or otherwise) and shall
procure the waiver or amendment of all relevant restrictions on
transfer of all such Shares to the Administrative Agent (or its
nominee) or by it on disposal under Clause 9 below.
5. REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants to the Administrative Agent that:
(a) it is the sole direct, unfettered legal and beneficial owner of
the Pledged Property;
(b) no Security (other than the Pledge) exists on, over or with
respect to any of the Pledged Property;
(c) it has not sold, transferred, lent, assigned, parted with its
interest in, disposed of, granted any option in respect of or
otherwise dealt with any of its Rights, title and interest in and
to the Pledged Property, or agreed to do any of the foregoing
(other than pursuant to this Pledge);
(d) the Original Shares, any Further Shares and any Shares comprised
in any Derived Assets represent but do not exceed 60 per cent. in
nominal value of the entire issued share capital of the Company;
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61
(e) the Original Shares, any Further Shares and any Shares comprised
in any Derived Assets are fully paid and there are no moneys or
liabilities outstanding in respect of any of the Pledged Property;
(f) the Original Shares, any Further Shares and any Shares comprised
in any Derived Assets have been duly authorised and validly issued
and are free from any restrictions on transfer or rights of
pre-emption;
(g) it has the power to enter into, and perform and comply with its
obligations under, this Pledge, and to create the Pledge;
(h) the execution, delivery and performance of this Pledge will not
contravene any law or regulation to which the Pledgor is subject
or any provision of the Pledgor's Memorandum and Articles of
Association (or equivalent incorporation documents);
(i) all actions, conditions and things required to be taken, fulfilled
and done (including the obtaining of any necessary consents) in
order to:
(i) enable it lawfully to enter into, and perform and comply
with its obligations under, this Pledge;
(ii) ensure that those obligations are valid, legal, binding and
enforceable;
(iii) permit the creation of the Pledge and ensure that (subject
to all necessary registrations thereof being made) the
Pledge is a valid, legal, binding and enforceable first
fixed security over the Pledged Property ranking in priority
to the interests of any liquidator, administrator or
creditor of the Pledgor, except as expressly permitted
otherwise in the Credit Agreement; and
(iv) make this Pledge admissible in evidence in the courts of
Scotland;
have been taken, fulfilled and done;
(j) the obligations of the Pledgor under this Pledge and (subject to
all necessary registrations thereof being made) the Pledge are and
will be until fully discharged valid, legal, binding and
enforceable and the Pledge constitutes a first fixed security over
the Pledged Property ranking in priority to the interests of any
liquidator, administrator or creditor of the Pledgor, except as
expressly permitted otherwise in the Credit Agreement; and
(k) each of the above representations and warranties will be correct
and complied with in all respects at all times during the
continuance of the Pledge as if repeated then by reference to the
then existing circumstances.
6. UNDERTAKINGS
The Pledgor shall (except as provided in the Credit Agreement):
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(a) not create, attempt to create or permit to subsist any Security
(other than the Pledge) on, over or with respect to any of the
Pledged Property or the right to receive or be paid the same or
agree to do so;
(b) not sell, transfer, lend, assign, part with its interest in,
dispose of, grant any option in respect of or otherwise deal with
any of its Rights, title and interest in and to the Pledged
Property, or agree to do any of the foregoing (otherwise than
pursuant to this Pledge);
(c) not take or omit to take any action which act or omission could
materially adversely affect or diminish the value of any of the
Pledged Property;
(d) ensure that there are no moneys or liabilities outstanding in
respect of any of the Pledged Property;
(e) ensure that the Original Shares, any Further Shares and any Shares
comprised in any Derived Assets are free from any restriction on
transfer or rights of pre-emption;
(f) take all action within its power to procure, maintain in effect
and comply with all the terms and conditions of all approvals,
authorisations, consents and registrations necessary or
appropriate for anything provided for on its part in this Pledge;
(g) ensure that the Pledge will at all times be a legally valid and
binding first fixed security over the Pledged Property ranking in
priority to the interests of any liquidator, administrator or
creditor of the Pledgor;
(h) without prejudice to clause 5(e), punctually pay all calls,
subscription moneys and other moneys payable on or in respect of
any of the Pledged Property and indemnify and keep indemnified the
Administrative Agent and its nominees against any cost,
liabilities or expenses which it or they may suffer or incur as a
result of any failure by the Pledgor to pay the same;
(i) deliver to the Administrative Agent a copy of every circular,
notice, report, set of accounts or other document received by the
Pledgor in respect of or in connection with any of the Pledged
Property forthwith upon receipt by the Pledgor of such document;
(j) promptly deliver to the Administrative Agent all such information
concerning the Pledged Property as the Administrative Agent may
reasonably request from time to time; and
(k) ensure that the Company does not issue any shares after the date
of this Pledge.
7. PLEDGOR'S RIGHTS BEFORE ENFORCEMENT
7.1 Subject to clause 7.2 until the Pledge shall become enforceable,
the Pledgor shall be entitled to:
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63
(a) receive and retain free from the Pledge any Dividends paid to it
(and at the request and cost of the Pledgor the Administrative
Agent agrees to execute and procure the execution of such
documents as may from time to time in the reasonable opinion of
the Administrative Agent be necessary or appropriate to give
effect thereto); and
(b) exercise all voting and other Rights relating to the Pledged
Property and to the extent that the Administrative Agent (or its
nominee) is the registered holder of the Pledged Property, the
Administrative Agent shall or, as the case may be, procure that
its nominee shall, in respect of the exercise of all voting and
other Rights relating to the Pledged Property (i) act in
accordance with the reasonable instructions of the Pledgor, and
(ii) execute a proxy in favour of the Pledgor in accordance with
clause 7.3 provided that the Pledgor shall not exercise or
instruct the Administrative Agent (or its nominee) to exercise
voting and other Rights in a manner prejudicial in any material
respects to the interests of the Administrative Agent (or its
nominee) under this Pledge and in particular, the Pledgor shall
not exercise or instruct the Administrative Agent (or its nominee)
to exercise any voting rights if such exercise would result in the
Original Shares, any Further Shares and any Shares comprised in
any Derived Assets representing less than 60 per cent. in nominal
value of the entire issued share capital of the Company,
provided that the entitlement of the Pledgor under this clause may at
any time be terminated upon and to the extent of any written notice by
the Administrative Agent to the Pledgor evidencing the Administrative
Agent's intention 5 Business Days thenceforth to direct the exercise of
such Rights for the purpose of preserving the value of the Pledge.
7.2 Subject to clause 7.1, the Administrative Agent and its nominee shall
be under no obligation to act in relation to the Pledged Property in
any way and shall not be liable to the Pledgor for acting or omitting
to act in any way in relation to the Pledged Property.
7.3 Following the execution of this Pledge the Administrative Agent or its
nominee (as the case may be) may execute a proxy in favour of the
Pledgor substantially in the form set out in Part 3 of the Schedule
hereto, and such proxy shall terminate immediately following an Event
of Default.
8. ENFORCEMENT
Subject to clause 7, the Pledge shall become enforceable, upon and at any
time after the occurrence of an Event of Default.
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9. DEALINGS WITH PLEDGED PROPERTY ON ENFORCEMENT
9.1 RIGHTS OF ADMINISTRATIVE AGENT
At any time after the Pledge has become enforceable, the Administrative
Agent shall have the right, without any notice to or consent of the
Pledgor:
(a) POSSESSION
(to the extent it has not already done so) to take possession of,
collect and get in the Pledged Property, and in particular to take
any steps necessary to vest all or any of the Pledged Property in
the name of the Administrative Agent or its nominee (including
completing any transfers of any Shares comprised in the Pledged
Property) and to receive and retain any Dividends;
(b) SELL
to sell, exchange, convert into money or otherwise dispose of or
realise the Pledged Property (whether by public offer or private
contract) to any person and for such consideration (whether
comprising cash, debentures or other obligations, Shares or other
valuable consideration of any kind) and on such terms (whether
payable or deliverable in a lump sum or by instalments) as it may
think fit, and for this purpose to complete any transfers of the
Pledged Property;
(c) VOTING RIGHTS
for the purpose of preserving the value of the Pledge or realising
the same, to exercise or direct the exercise of all voting and
other Rights relating to the Pledged Property in such manner as it
may think fit;
(d) CLAIMS
to settle, adjust, refer to arbitration, compromise and arrange any
claims, accounts, disputes, questions and demands relating in any
way to the Pledged Property;
(e) LEGAL ACTIONS
to bring, prosecute, enforce, defend and abandon actions, suits
and proceedings in relation to the Pledged Property; and
(f) OTHER RIGHTS
to do all such other acts and things it may consider necessary
or expedient for the realisation of the Pledged Property or
incidental to the exercise of any of the Rights conferred on it
under or in connection with this Pledge or otherwise and to concur
in the doing of anything which it has the Right to do and to do any
such thing jointly with any other person.
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9.2 OBLIGATIONS OF PLEDGOR
After the Pledge has become enforceable all Dividends shall be paid to
and retained by the Administrative Agent, and any such moneys which may
be received by the Pledgor shall, pending such payment, be segregated
from any other property of the Pledgor and held in trust for the
Administrative Agent;
10. APPLICATION OF MONEYS
All moneys arising from the exercise of the powers of enforcement under
this Pledge shall (except as may be otherwise required by applicable
law) be held and applied in the following order of priority (but
without prejudice to the right of the Administrative Agent to recover
any shortfall from the Pledgor):
(a) in or towards the payment or discharge of such of the Secured
Obligations and any obligations arising under the Subsidiary
Guaranty in such order as set forth in Section 13.3 of the
Credit Agreement; and
(b) after all the Secured Obligations and any obligations arising
under the Subsidiary Guaranty have been paid or discharged in
full, in payment of any surplus to the Pledgor or other person
entitled to it.
11. GENERAL RIGHTS OF ADMINISTRATIVE AGENT
11.1 REDEMPTION OF SECURITY
The Administrative Agent may at any time redeem any Security over the
Pledged Property having priority to the Pledge or procure the transfer
thereof to the Administrative Agent and may settle the accounts of
encumbrancers. Any accounts so settled shall be conclusive and binding
on the Pledgor. The Pledgor shall on demand pay to the Administrative
Agent all principal moneys, interest, costs, charges, losses,
liabilities and expenses of and incidental to any such redemption or
transfer.
11.2 SUSPENSE ACCOUNT
The Administrative Agent may, for as long as any of the Secured
Obligations and any obligations arising under the Subsidiary Guaranty
for which any other person may be liable as principal debtor, co-surety
or as co-guarantor with the Pledgor have not been paid or discharged in
full, at its sole discretion, place and retain on a suspense account,
for as long as it considers fit, any moneys received, recovered or
realised under or in connection with this Pledge to the extent of such
Secured Obligations and any obligations arising under the Subsidiary
Guaranty without any obligation on the part of the Administrative Agent
to apply the same in or towards the discharge of such Secured
Obligations or any obligations arising under the Subsidiary Guaranty.
11.3 NEW ACCOUNT
At any time following:
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(a) the Administrative Agent receiving notice (either actual or
constructive) of any subsequent Security affecting the Pledged
Property; or
(b) the Dissolution of the Pledgor,
the Administrative Agent may open a new account in the name of the
Pledgor (whether or not it permits any existing account to continue).
If the Administrative Agent does not open such a new account, it shall
nevertheless be treated as if it had done so at the time when the
notice was received or was deemed to have been received or, as the case
may be, the Dissolution commenced. Thereafter, all payments made by the
Pledgor to the Administrative Agent or received by the Administrative
Agent for the account of the Pledgor shall be credited or treated as
having been credited to the new account and shall not operate to reduce
the amount secured by this Pledge at the time when the Administrative
Agent received or was deemed to have received such notice or, as the
case may be, the Dissolution commenced.
11.4 DELEGATION
The Administrative Agent may delegate in any manner to any person any
of the Rights which are for the time being exercisable by the
Administrative Agent under this Pledge. Any such delegation may be made
upon such terms and conditions (including power to sub-delegate) as the
Administrative Agent may think fit.
11.5 SET-OFF BY ADMINISTRATIVE AGENT
The provisions of clause 13.1 of the Credit Agreement shall apply to
this Pledge and shall apply to the Administrative Agent in its capacity
as a Lender, regardless of the place of payment or booking branch, and
for that purpose the Administrative Agent may convert one currency into
another at the rate of exchange determined by the Administrative Agent
in its absolute discretion to be prevailing at the date of set-off. For
the purposes of this clause 11 and clause 16 set-off shall include any
right of retention, compensation, balancing of accounts on insolvency,
and any deduction.
12. LIABILITY OF ADMINISTRATIVE AGENT, DELEGATES AND NOMINEES
12.1 POSSESSION
If the Administrative Agent or any Delegate shall take possession of
the Pledged Property, it may at any time relinquish such possession.
12.2 ADMINISTRATIVE AGENT'S LIABILITY
The Administrative Agent shall not in any circumstances (whether by
reason of taking possession of the Pledged Property or for any other
reason whatsoever and whether as mortgagee in possession or on any
other basis whatsoever):
(a) be liable to account to the Pledgor or any other person for
anything except the Administrative Agent's own actual receipts; or
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(b) be liable to the Pledgor or any other person for any costs,
charges, losses, damages, liabilities or expenses arising from
any realisation of the Pledged Property or from any exercise
or non-exercise by the Administrative Agent of any Right
conferred upon it in relation to the Pledged Property or from
any act, default, omission or misconduct of the Administrative
Agent, its officers, employees or agents in relation to the
Pledged Property except to the extent that they shall be
caused by the Administrative Agent's own fraud, gross
negligence or wilful misconduct or that of its officers or
employees.
12.3 DELEGATE'S AND NOMINEE'S LIABILITY
All provisions of clause 12.2 shall apply, mutatis mutandis, in respect
of the liability of any Delegate or nominee of the Administrative Agent
or any officer, employee or agent of the Administrative Agent, any
Delegate or any nominee of the Administrative Agent.
12.4 INDEMNITY
The Administrative Agent, any nominee of the Administrative Agent and
every Delegate, attorney, manager, agent or other person appointed by
the Administrative Agent hereunder shall be entitled to be indemnified
out of the Pledged Property in respect of all liabilities and expenses
incurred by any of them in the execution or purported execution of any
of its Rights and against all actions, proceedings, costs, claims and
demands in respect of any matter or thing done or omitted in anyway
relating to the Pledged Property, and the Administrative Agent and any
such Delegate, attorney, manager, agent or other person appointed by
the Administrative Agent hereunder may retain and pay all sums in
respect of the same out of any moneys received. The rights to
indemnification set forth in this clause 12.4 shall be in addition to
and not in any way in limitation of the rights to indemnification
granted under Section 11.7 of the Credit Agreement.
13. PROTECTION OF THIRD PARTIES
13.1 No person dealing with the Administrative Agent or any Delegate shall
be concerned to enquire whether any event has happened upon which any
of the Rights conferred under or in connection with this Pledge or
otherwise are or may be exercisable, whether any consent, regulations,
restrictions or directions relating to such Rights have been obtained
or complied with or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such Rights or as to
the application of any money borrowed or raised or other proceeds of
enforcement. All the protections to purchasers at law for the time
being in force shall apply to any person purchasing from or dealing
with the Administrative Agent or any Delegate.
13.2 The receipt of the Administrative Agent shall be an absolute and
conclusive discharge to a purchaser and shall release him of any
obligation to see to the application of any moneys paid to or by the
direction of the Administrative Agent.
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13.3 In clauses 13.1 and 13.2, "PURCHASER" includes any person acquiring,
for money or money's worth, any Security over, or any other interest or
right whatsoever in relation to, any of the Pledged Property.
14. CONTINUING SECURITY
The Pledge shall be a continuing security for, the guarantee of the
Secured Obligations, and any obligations arising under the Subsidiary
Guaranty and shall not be satisfied, discharged or affected by any
intermediate payment or settlement of account (whether or not any
Secured Obligations or any obligations arising under the Subsidiary
Guaranty remain outstanding thereafter) or any other matter or thing
whatsoever including the intermediate satisfaction by the Borrowers or
any of them of the whole or any part of the Secured Obligations or any
obligations arising under the Subsidiary Guaranty.
15. OTHER SECURITY
The Pledge shall be in addition to and shall not be prejudiced by any
other Security or any guarantee or indemnity or other document which
the Administrative Agent or the Holders of Secured Obligations may at
any time hold for the payment of the Secured Obligations and any
obligations arising under the Subsidiary Guaranty.
16. PLEDGE NOT TO BE AFFECTED
Without prejudice to clauses 14 and 15, neither the Pledge nor the
liability of the Pledgor for the Secured Obligations and any
obligations arising under the Subsidiary Guaranty shall be prejudiced
or affected by:
(a) any variation or amendment of, or waiver or release granted under
or in connection with, any other Security or any guarantee or
indemnity or other document;
(b) time being given, or any other indulgence or concession being
granted, by the Administrative Agent or the Holders of Secured
Obligations to the Pledgor or any other person;
(c) any of the obligations of any Borrower (or the Pledgor) under the
Loan Documents or under any other Security relating to the Credit
Agreement being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
(d) any failure to take, or fully to take, any Security contemplated
by the Credit Agreement or otherwise agreed to be taken in respect
of any Borrower's or the Pledgor's obligations under the Loan
Documents;
(e) any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any such Security
or taken in respect of any Borrower's or the Pledgor's obligations
under the Loan Documents;
(f) the Dissolution of the Pledgor or any other person;
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(g) any change in the constitution of the Pledgor;
(h) any amalgamation, merger or reconstruction that may be effected by
the Administrative Agent with any other person or any sale or
transfer of the whole or any part of the undertaking, property and
assets of the Administrative Agent to any other person;
(i) the existence of any claim, set-off or other right which the
Pledgor may have at any time against the Administrative Agent or
any other person;
(j) the making or absence of any demand for payment of any Secured
Obligations or any obligations arising under the Subsidiary
Guaranty on the Pledgor or any other person, whether by the
Administrative Agent or any other person;
(k) any arrangement or compromise entered into by the Administrative
Agent with the Pledgor or any other person; or
(l) any other thing done or omitted or neglected to be done by the
Administrative Agent or any other person or any other dealing,
fact, matter or thing which, but for this provision, might operate
to prejudice or affect the liability of the Pledgor for the
Secured Obligations and any obligations arising under the
Subsidiary Guaranty.
17. RELEASE OF PLEDGED PROPERTY
17.1 RELEASE OF PLEDGED PROPERTY
If the Administrative Agent, acting reasonably, is satisfied that:
(a) all Secured Obligations and any obligations arising under the
Subsidiary Guaranty have been irrevocably paid or discharged in
full in cash, neither the Holders of Secured Obligations nor the
Administrative Agent has any further contingent obligations to
lend or grant or create any other commitment or liabilities under
or in connection with the Credit Agreement or any instruments or
documents related or issued pursuant thereto and the Credit
Agreement has been terminated; or
(b) Security or a guarantee for the Secured Obligations and any
obligations arising under the Subsidiary Guaranty, in each case
acceptable in its absolute discretion to the Administrative Agent,
has been provided in substitution for this Pledge; or
(c) no Event of Default has occurred at the time the Pledgor sells
some or all of the Pledged Property pursuant to the terms of the
Credit Agreement, or will occur as a consequence of such sale,
then, subject to clause 17.2, the Administrative Agent shall at the
request and cost of the Pledgor execute such Pledges and documents and
do all such acts and things as may be necessary to release, re-assign
and discharge or (where applicable under clause 17.1(c)) partially
release, re-assign and discharge the Pledged Property from
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the Pledge and the Administrative Agent shall so far as it is
reasonably able and at the request and cost of the Pledgor promptly
procure the re-registration of the Pledged Property in the name of the
Pledgor or as the Pledgor may direct.
17.2 RETENTION OF PLEDGE
If the Pledgor requests the Administrative Agent to release, reassign
and discharge the Pledged Property from the Pledge following any
payment or discharge made or Security or guarantee given in relation to
the Secured Obligations and any obligations arising under the
Subsidiary Guaranty by a person other than the Pledgor (a "RELEVANT
TRANSACTION"), the Administrative Agent shall be entitled to retain
this Pledge (and all stock and share certificates, documents of title
and other documentary evidence of ownership in relation to the Pledged
Property deposited with the Administrative Agent pursuant to clause 4)
and shall not be obliged to release, reassign and discharge the Pledged
Property from the Pledge until the expiry of the Retention Period in
relation to that Relevant Transaction. If at any time before the expiry
of that Retention Period the Dissolution of such other person shall
have commenced, the Administrative Agent may continue to retain this
Pledge (and all such stock and share certificates, documents of title
and documentary evidence) and shall not be obliged to release, reassign
and discharge the Pledged Property from the Pledge for such further
period as the Administrative Agent may determine.
17.3 RETENTION PERIOD
For the purpose of clause 17.2, "RETENTION PERIOD" means, in relation
to any Relevant Transaction, the period which commences on the date
when that Relevant Transaction was made or given, and which ends on the
date falling one month after the expiration of the maximum period
within which that Relevant Transaction can be avoided, reduced or
invalidated by virtue of any applicable law or for any other reason
whatsoever.
18. POWER OF ATTORNEY
18.1 APPOINTMENT
The Pledgor hereby appoints, irrevocably and by way of security, the
Administrative Agent and any person nominated in writing by the
Administrative Agent as attorney of the Pledgor severally to be the
attorney of the Pledgor (with full powers of substitution and
delegation), on its behalf and in its name or otherwise, at such time
and in such manner as the attorney may think fit:
(a) to do anything which the Pledgor is or may be obliged to do (but
has not done) under this Pledge including, but without limitation,
to complete and execute any transfer of Shares; and
(b) generally to exercise all or any of the Rights conferred on the
Administrative Agent in relation to the Pledged Property or under
or in connection with this Pledge.
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18.2 RATIFICATION
The Pledgor undertakes to ratify and confirm whatever any attorney
shall do or purport to do in the exercise or purported exercise of the
power of attorney in clause 18.1.
19. CURRENCY INDEMNITY
19.1 CURRENCY INDEMNITY
If, under any applicable law, whether pursuant to a decree or judgement
against the Pledgor or the Dissolution of the Pledgor or for any other
reason, any payment under or in connection with this Pledge is made or
falls to be satisfied in a currency (the "OTHER CURRENCY") other than
the currency in which the relevant payment is expressed to be payable
(the "REQUIRED CURRENCY"), then, to the extent that the payment
actually received by the Administrative Agent (when converted into the
Required Currency at the rate of exchange on the date of payment or, if
it is not practicable for the Administrative Agent to make the
conversion on that date, at the rate of exchange as soon afterwards as
it is practicable for the Administrative Agent to do so or, in the case
of a Dissolution, at the rate of exchange on the latest date permitted
by applicable law for the determination of liabilities in such
Dissolution) falls short of the amount expressed to be due or payable
under or in connection with this Pledge, the Pledgor shall, as an
original and independent obligation under this Pledge, indemnify and
hold the Administrative Agent harmless against the amount of such
shortfall.
19.2 RATE OF EXCHANGE
For the purpose of clause 19.1, "RATE OF EXCHANGE" means the rate at
which the Administrative Agent is able on the relevant date to purchase
the Required Currency with the Other Currency and shall take into
account any commission, premium and other costs of exchange and Taxes
payable in connection with such purchase.
20. CERTIFICATE TO BE CONCLUSIVE EVIDENCE
For all purposes, including any Proceedings, a copy of a certificate
signed by an officer of the Administrative Agent as to the amount of
any indebtedness comprised in the Secured Obligations and any
obligations arising under the Subsidiary Guaranty for the time being
shall, in the absence of manifest error, be conclusive evidence against
the Pledgor as to the amount thereof.
21. STAMP DUTY
The Pledgor shall pay promptly, and in any event before any penalty
becomes payable, all stamp, documentary and similar Taxes, if any,
payable in connection with the entry into, performance, enforcement or
admissibility in evidence of this Pledge or any other document referred
to in this Pledge, and shall indemnify the Administrative Agent against
any liability with respect to, or resulting from any delay in paying or
omission to pay, any such ▇▇▇.
▇▇
▇▇
▇▇. COMMUNICATIONS
Save as specifically otherwise provided in this Pledge, the provisions
of Article XV of the Credit Agreement shall apply to any notice, demand
or other communication to be served under this Pledge. For the purposes
hereof, the address and facsimile number of each party hereto shall be
as shown immediately after its name on the signature page of this
Pledge or at such other address or number as it may from time to time
notify in writing to the other party.
23. RIGHTS AND WAIVERS
23.1 DELAY
No delay or omission on the part of the Administrative Agent in
exercising any Right provided by law or under this Pledge shall impair
such Right or operate as a waiver thereof or of any other Right.
23.2 SINGLE OR PARTIAL EXERCISE
The single or partial exercise by the Administrative Agent of any Right
provided by law or under this Pledge shall not preclude any other or
further exercise thereof or the exercise of any other Right.
23.3 RIGHTS TO BE CUMULATIVE
The Rights provided in this Pledge are cumulative with, and not
exclusive of, any Rights provided by law.
24. INVALIDITY
If at any time any provision of this Pledge is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Pledge; nor
(b) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this Pledge,
shall be affected or impaired.
25. ASSIGNATION BY ADMINISTRATIVE AGENT
The Administrative Agent may at any time, without the consent of the
Pledgor, assign or transfer the whole or, as the case may be, any part
of the Administrative Agent's Rights under this Pledge to any person to
whom the whole or any part of any of the Administrative Agent's Rights
under the Credit Agreement shall be assigned or transferred.
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26. GOVERNING LAW
This Pledge shall be governed by and construed in accordance with Scots
law.
27. JURISDICTION
27.1 The Parties to this Pledge irrevocably agree for the exclusive benefit
of the Administrative Agent that the Courts of Scotland are to have
jurisdiction to settle any disputes which may arise out of or in
connection with this Pledge and that accordingly any Proceedings may be
brought in such Court. Nothing contained in this clause shall limit the
right of the Administrative Agent to take Proceedings against the
Pledgor in any other Court or competent jurisdiction, nor shall the
taking of Proceedings in one or more jurisdiction preclude the taking
of Proceedings in any other jurisdiction, whether concurrently or not,
to the extent permitted by the law of such other jurisdiction.
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27.2 The Pledgor hereby appoints the persons below to accept service of any
proceedings in the Scottish courts on its behalf. If for any reason any
such agent shall cease to act as agent aforesaid of the Pledgor, the
Pledgor shall forthwith appoint a replacement agent in Glasgow. Failing
such appointment within 15 days after demand by any other party to this
Agreement, the Administrative Agent shall be entitled to appoint
another agent on behalf of the Pledgor. Nothing herein shall affect the
right to reserve process in any other manner permitted by law.
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: G ▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
IN WITNESS WHEREOF these presents typewritten on this and the preceding 18 pages
together with the schedule of three parts annexed hereto are executed as
follows:-
Subscribed for and on behalf of
PLEXUS INTERNATIONAL SERVICES, INC. --------------------------------------
Authorised Signatory
at Neenah, Wisconsin
on the 25th day of October 2000
acting by ▇▇▇▇ ▇. ▇▇▇▇▇▇, its authorised signatory
acting under the authority of its board of directors
before this witness
Name:
------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: Plexus Corp.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Title: Vice President Law & Administration
Notice Details
Address: Plexus International Services, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: 920.751.3234
Attention of: ▇▇▇▇ ▇ ▇▇▇▇▇▇
75
[▇▇▇▇▇▇▇/▇▇▇▇▇ LETTERHEAD]
Subscribed for and on behalf of --------------------------
BANK ONE, NA Authorised Signatory
(Main Office Chicago, Illinois, U.S.A.),
at Milwaukee, Wisconsin
on the 25th day of October 2000
acting by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
its authorised signatory
before this witness
Name:
----------------------------------
Address: Bank One, NA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Notice Details
Address: Bank One, NA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Midwest Corporate Banking
Suite WI1-2042
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
2
76
[▇▇▇▇▇▇▇/▇▇▇▇▇ LETTERHEAD]
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING PLEDGE OVER SHARES BY PLEXUS
INTERNATIONAL SERVICES, INC. IN FAVOUR OF BANK ONE, NA
PART 1
ORIGINAL SHARES
Name of Company No. of Class of Nominal Registered
--------------- ------ -------- ------- ----------
Shares Shares Value holder(s)
------ ------ ----- ----------
of each as at the date hereof
------- ---------------------
Share
-----
Plexus Corp.
Limited registered 60, being 60% of ordinary (pound)1.00 Plexus International
number 207257 the Company's Services Inc.
issued shares as at
the date hereof
S-1
77
[▇▇▇▇▇▇▇/▇▇▇▇▇ LETTERHEAD]
PART 2
WRITTEN RESOLUTION OF PLEXUS CORP. LIMITED
(the "COMPANY")
We, the undersigned, being the sole member for the time being of the above named
Company entitled to receive notice of and to attend and vote at General Meetings
of the Company HEREBY PASS the following written resolution and agree that the
said resolution shall, pursuant to Regulation 53 of Table A in the Schedule to
the Companies (Tables A to F) Regulations 1985 ("TABLE A"), for all purposes be
as valid and effective as if the same had been passed by a Special Resolution at
a General Meeting of the Company duly convened and held.
It is hereby resolved that:
1. The lien referred to in Article 5 of, and regulation 8 of Table A as
modified and incorporated into the Articles of Association of the
Company shall not apply to any share registered in the name of Bank
One, NA or it's nominee.
2. The Articles of Association of the Company be amended by renumbering
the existing Article 9 as Article 9.1 and inserting the following new
Article 9.2:
"Notwithstanding anything contained in these Articles, the directors
shall not decline to register any transfer of shares, nor may they
suspend registration thereof; (i) where such a transfer is executed in
favour of any bank or institution to whom such shares have been pledged
by way of security, or to any nominee of such a bank or institution
pursuant to the creation of such security, or (ii) where such a
transfer is executed by any bank or institution, to whom such shares
have been pledged by way of security, or by any nominee of such a bank
or institution, pursuant to the power of sale under such security, and
a certificate by any official of such bank or institution that the
shares were so pledged and the transfer was so executed shall be
conclusive evidence of such facts."
Dated this day of , 2000
For and on behalf of
Plexus International Services, Inc.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
S-2
78
[▇▇▇▇▇▇▇/▇▇▇▇▇ LETTERHEAD]
PART 3
[FORM OF PROXY BY THE ADMINISTRATIVE AGENT OR ITS NOMINEE]
PLEXUS CORP. LIMITED
WE, [BANK ONE, NA] [Nominee Co] being a member of the above-named Company hereby
revocably appoint subject to the terms of a Pledge Over Shares dated (the
"PLEDGE OVER SHARES"), PLEXUS INTERNATIONAL SERVICES, INC. ("PLEXUS") as our
proxy to the attend and vote for us and on our behalf at all Meetings of the
Members of the Company provided that Plexus will at all times act in accordance
with the terms of the Pledge Over Shares and that this proxy will
notwithstanding the foregoing generality terminate on an Event of Default as
defined in the Pledge Over Shares or otherwise in accordance with the terms of
the Pledge Over Shares.
Dated this [ ] day of [ ]
Signature
----------------------------
Pledgor authorised signatory
----------------------------
Administrative Agent
authorised signatory
S-3
79
EXHIBIT N
TO
CREDIT AGREEMENT
FORM OF DESIGNATION AGREEMENT
Dated , 20
-------- ----
Reference is made to the Credit Agreement dated as of October
25, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement") among Plexus Corp., a Wisconsin corporation (the "Company"), the
Subsidiary Borrowers from time to time party thereto (together with the Company,
collectively, the "Borrowers"), the lenders from time to time party thereto (the
"Lenders") Bank One, N.A. (having its principal office in Chicago, IL), as
Administrative Agent, Firstar Bank, N.A., as Documentation Agent, ABN AMRO Bank
N.V., as Syndication Agent, and Banc One Capital Markets, Inc., as Lead Arranger
and Sole Bookrunner. Terms defined in the Credit Agreement are used herein as
therein defined.
(the "Designating Lender"), (the "Designated Lender"),
and the Company, on behalf of itself and the other Borrowers, agree as follows:
1. The Designating Lender hereby designates the Designated Lender, and the
Designated Lender hereby accepts such designation, as its Designated Lender
under the Credit Agreement.
2. The Designating Lender makes no representations or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or
the performance or observance by the Borrowers of any of its obligations
under the Credit Agreement or any other instrument or document furnished
pursuant thereto.
3. The Designated Lender (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Article VII thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Designation Agreement; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the
Designating Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action it may be permitted
to take under the Credit Agreement; (iii) confirms that it is an Eligible
Designated Lender; (iv) appoints and authorizes the Designating Lender as
its administrative agent and attorney-in-fact and grants the Designating
Lender an irrevocable power of attorney to receive payments made for the
benefit of the Designated Lender under the Credit Agreement and to deliver
and receive all communications and notices under the Credit Agreement, if
any, that Designated Lender is obligated to deliver or has the right to
receive thereunder; (v) acknowledges that it is subject to and bound by the
confidentiality provisions of the Credit Agreement (except as permitted
under Section 14.5 thereof); and (vi) acknowledges that the Designating
Lender retains the sole right and responsibility to vote under the Credit
Agreement, including, without limitation, the right to approve any
amendment, modification or waiver of any provision of the Credit Agreement,
and agrees that the Designated Lender shall be bound by all such votes,
approvals, amendments, modifications and waivers and all other agreements
of the Designating Lender pursuant to or in connection with the Credit
Agreement.
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4. Following the execution of this Designation Agreement by the Designating
Lender, the Designated Lender and the Company, it will be delivered to the
Administrative Agent for acceptance and recording by the Administrative
Agent. The effective Date of this Designation Agreement shall be the date
of acceptance thereof by the Administrative Agent, unless otherwise
specified on the signature page hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of the
Effective Date (a) the Designated Lender shall have the right to make Loans
as a Lender pursuant to Section 2.1 or 2.2 of the Credit Agreement and the
rights of a Lender related thereto and (b) the making of any such Loans by
the Designated Lender shall satisfy the obligations of the Designating
Lender under the Credit Agreement to the same extent, and as if, such Loans
were made by the Designating Lender.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the internal laws (including ss. 735 ILCS 105/5-1 et seq.
but otherwise without regard to the conflicts of laws provisions) of the
State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Designation
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
Effective Date(7):
[NAME OF DESIGNATING LENDER]
By:
-----------------------------
Name:
---------------------------
Title:
---------------------------
[NAME OF DESIGNATED LENDER]
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
PLEXUS CORP.
By:
------------------------------
Name:
-----------------------------
Title:
----------------------------
-------------------------
7 This date should be no earlier than the date of acceptance by the
Administrative Agent.
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Accepted and Approved this
day of ,
---- --------- ----
BANK ONE, N.A. (having its principal place
of business in Chicago, IL), as Administrative
Agent
By:
--------------------------------
Title:
----------------------------
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