EXHIBIT 10.1
FIRST AMENDMENT TO
AMENDED AND RESTATED
RECEIVABLES SALE AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES SALE
AGREEMENT (this "Amendment") is entered into as of June 28, 2002, and amends
that certain Amended and Restated Receivables Sale Agreement, dated as of July
1, 2001 (such agreement, the "Existing Agreement"), by and between Plexus ABS,
Inc., a Nevada corporation ("Buyer") and Plexus Services Corp., a Nevada
corporation ("Originator"). Capitalized terms used herein and not otherwise
defined shall have the respective meanings set forth in the Existing Agreement.
RECITALS:
WHEREAS, the Buyer and Originator are parties to the Existing
Agreement;
WHEREAS, the Buyer, Plexus Corp., a Wisconsin corporation, as
initial Servicer, the Financial Institutions party thereto, Preferred
Receivables Funding Corporation and Bank One, NA (Main Office Chicago), as
agent, are entering into the Fourth Amendment to Receivables Purchase Agreement,
dated as of the date hereof (the "RPA Amendment"); and
WHEREAS, the Buyer and Originator desire to amend certain
provisions of the Existing Agreement, subject to the terms and conditions
hereof, to, among other things, conform the Existing Agreement with the
amendments contemplated by the RPA Amendment, as more fully described herein.
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments. Subject to the terms and conditions set
forth herein, the Existing Agreement is hereby amended by:
(a) adding the following new subsection to the end of
Section 4.2 of the Existing Agreement:
(f) Collections. Originator will not deposit or
otherwise credit, or cause or permit to be so deposited or credited, to
any Lock Box, Plexus Account or Designated Account cash, cash proceeds
or other amounts, other than Collections. Originator will not deposit
or otherwise credit, or cause or permit to be so deposited or credited,
any Collections or proceeds thereof to any lock-box account or other
account other than a Plexus Account or a Designated Account, as
applicable.
(b) adding the proviso "; provided that 'Receivable'
shall not include any Excluded Receivable" to the end of the first sentence of
the definition of "Receivable" in Exhibit I of the Existing Agreement.
Section 2. Conditions to Effectiveness of Amendments. The
amendments set forth in Section 1 of this Amendment shall become effective as of
the date hereof, upon the satisfaction of the following conditions precedent:
(a) Amendment. This Amendment shall have been duly
executed and delivered by each of the parties hereto.
(b) Officer's Certificate. The Buyer shall have
received a certificate of an authorized officer of Originator in the form set
forth as Exhibit A certifying as to matters set forth in Sections 3(a) and (b)
of this Amendment.
(c) RPA Amendment. All conditions precedent contained
in Section 2 of the RPA Amendment shall have been satisfied and the RPA
Amendment shall be in full force and effect.
Section 3. Representations and Warranties. The Originator
represents and warrants that, as of the date hereof, both before and after
giving effect to the amendments set forth in Section 1 of this Amendment:
(a) no Termination Event or Potential Termination
Event has occurred and is continuing; and
(b) all of the representations and warranties
contained in the Existing Agreement and in the other Transaction Documents are
true and correct.
Section 4. Miscellaneous.
FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT
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(a) Effect; Ratification. The amendments set forth
herein are effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Existing
Agreement or of any other instrument or agreement referred to therein; or (ii)
prejudice any right or remedy which the Buyer (or any of its assigns) may now
have or may have in the future under or in connection with the Existing
Agreement, as amended hereby, or any other instrument or agreement referred to
therein. Each reference in the Existing Agreement to "this Agreement," "herein,"
"hereof" and words of like import and each reference in the other Transaction
Documents to the "Receivables Sale Agreement," the "Sale Agreement" or the
Existing Agreement shall mean the Existing Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Existing
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Existing Agreement and each other instrument or
agreement referred to therein, except as herein amended, are hereby ratified and
confirmed and shall remain in full force and effect.
(b) Transaction Documents. This Amendment is a
Transaction Document executed pursuant to the Existing Agreement and shall be
construed, administered and applied in accordance with the terms and provisions
thereof.
(c) Costs, Fees and Expenses. Originator agrees to
reimburse the Buyer on demand for all costs, fees and expenses (including the
reasonable fees and expenses of counsel to the Buyer) incurred in connection
with the preparation, execution and delivery of this Amendment.
(d) Counterparts. This Amendment may be executed in
any number of counterparts, each such counterpart constituting an original and
all of which when taken together shall constitute one and the same instrument.
(e) Severability. Any provision contained in this
Amendment which is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions of this Amendment in that
jurisdiction or the operation, enforceability or validity of such provision in
any other jurisdiction.
(f) Confirmation of Sale and Grant of Security
Interest. Originator hereby confirms (i) the sale of the Receivables, Related
Security and Collections pursuant to Section 1.1 of the Existing Agreement and
(ii) the grant of
FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT
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security interest pursuant to Section 1.6 of the Existing Agreement to Buyer in
all of Originator's right, title and interest in, to and under all Receivables,
all Collections and Related Security with respect thereto, each Lock-Box, all
other rights and payments relating to the Receivables and all proceeds of the
foregoing (each capitalized term used in this sentence shall have the respective
meanings set forth for such term in the Existing Agreement, as amended hereby).
(g) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS.
(Signature Page Follows)
FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
PLEXUS ABS, INC.
By:
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Name:
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Title:
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PLEXUS SERVICES CORP.
By:
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Name:
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Title:
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FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT
EXHIBIT A
OFFICER'S CERTIFICATE
I, ______________, am the _______________ of Plexus Services
Corp., a Nevada corporation ("Originator"). I execute and deliver this Officer's
Certificate, dated as of June 28, 2002, on behalf of Originator pursuant to
Section 2(b) of the First Amendment to Amended and Restated Receivables Sale
Agreement (the "Amendment"), dated as of the date hereof, between Originator and
Plexus ABS, Inc., a Nevada corporation ("Buyer"), amending certain provisions of
that certain Amended and Restated Receivables Sale Agreement, dated as of July
1, 2001 (the "Existing Agreement"), between Originator and Buyer. Capitalized
terms used herein and not defined herein shall have the meanings set forth for
such terms in the Existing Agreement.
I hereby certify, on behalf of Originator, that to the best of
my knowledge after due inquiry, as of the date hereof, both before and after
giving effect to the amendments set forth in Section 1 of the Amendment, (a) no
Termination Event or Potential Termination Event has occurred and is continuing
and (b) the representations and warranties contained in the Existing Agreement
and in the other Transaction Documents are true and correct as of the date
hereof.
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Name:
Title:
FIRST AMENDMENT TO AMENDED AND
RESTATED RECEIVABLES SALE AGREEMENT
