EXHIBIT 10.2(b)
LIMITED WAIVER AND THIRD AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
This LIMITED WAIVER AND THIRD AMENDMENT TO RECEIVABLES
PURCHASE AGREEMENT (this "Waiver and Amendment") is entered into as of April 25,
2002, and amends that certain Receivables Purchase Agreement, dated as of
October 6, 2000, amended as of July 1, 2001 and further amended as of October 3,
2001 (such agreement, as so amended, the "Existing Agreement"), among Plexus
ABS, Inc., a Nevada corporation ("Seller"), Plexus Corp., a Wisconsin
corporation ("Plexus"), as initial Servicer (the Servicer together with Seller,
the "Seller Parties" and each a "Seller Party"), the Financial Institutions
party thereto from time to time, Preferred Receivables Funding Corporation
("PREFCO") and Bank One, NA (Main Office Chicago), as agent for the Purchasers
thereunder and any successor agent thereunder (together with its successors and
assigns thereunder, the "Agent"). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Existing
Agreement.
RECITALS:
WHEREAS, the Seller Parties, the Financial Institutions,
PREFCO and the Agent are parties to the Existing Agreement;
WHEREAS, each Seller Party has requested that the Agent, the
Financial Institutions and PREFCO grant certain waivers with respect to certain
provisions of the Existing Agreement as more fully described herein; and
WHEREAS, the Seller Parties, the Financial Institutions,
PREFCO and the Agent desire to amend certain provisions of the Existing
Agreement 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. Limited Waiver. Subject to the terms and conditions
set forth herein, each of the Agent, the Financial Institutions and PREFCO
hereby waives the Amortization Event that occurred as of January 31, 2002 with
respect to Section 9.1(f)(ii) of the Existing Agreement solely as a result of
the average of the Open Debit Memo Ratios for the calendar months of November
2001, December 2001 and
LIMITED WAIVER AND AMENDMENT NO. 3 TO
RECEIVABLES PURCHASE AGREEMENT
January, 2002 exceeding 5.25%.
Section 2. Amendments. Subject to the terms and conditions set
forth herein, Exhibit I of the Existing Agreement is hereby amended by:
(a) replacing the definition of "Aggregate Reserves"
set forth in Exhibit I of the Existing Agreement in its entirety with the
following:
"Aggregate Reserves" means, on any date of determination, an
amount equal to eighteen percent (18%) of the Net Receivables Balance
on such date.
(b) replacing the definition of "Concentration Limit"
set forth in Exhibit I of the Existing Agreement in its entirety with the
following:
"Concentration Limit" means, at any time, (a) for any Obligor
other than as described in part (b) of this definition, 4% of the
aggregate Outstanding Balance of all Eligible Receivables and (b)(i)
for Motorola, Inc., 9% of the aggregate Outstanding Balance of all
Eligible Receivables, (ii) for Arrowpoint Communications, Inc. and
Cisco Systems, Inc., collectively and not individually, 12% of the
aggregate Outstanding Balance of all Eligible Receivables, (iii) for
General Electric Company, 12% of the aggregate Outstanding Balance of
all Eligible Receivables, (iv) for Siemens AG, 12% of the aggregate
Outstanding Balance of all Eligible Receivables and (v) for each of the
foregoing Obligors, such other amount for such Obligor designated by
the Agent (each of the foregoing, a "Special Concentration Limit");
provided, that in the case of an Obligor and any Affiliate of such
Obligor, the Concentration Limit shall be calculated as if such Obligor
and such Affiliate are one Obligor; and provided, further, that Company
or the Required Financial Institutions may, upon not less than three
Business Days' notice to Seller, cancel any Special Concentration
Limit.
Section 3. Conditions to Effectiveness of Waiver and
Amendments. The waiver set forth in Section 1 of this Waiver and Amendment and
the amendments set forth in Section 2 of this Waiver and Amendment shall become
effective as of the date hereof, upon the satisfaction of the following
conditions precedent:
(a) Amendment. This Waiver and Amendment shall have
been duly executed and delivered by each of the parties hereto.
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RECEIVABLES PURCHASE AGREEMENT
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(b) Officer's Certificate. The Agent shall have
received a certificate of an authorized officer of each of the Servicer and
Seller in the forms set forth as Exhibits A and B, respectively, certifying as
to matters set forth in Sections 4(a) and (b) of this Waiver and Amendment.
(c) Waiver and Amendment Fee. The Agent shall have
received, in immediately available funds, payment of a fully earned,
non-refundable waiver and amendment fee equal to $35,000.
Section 4. Representations and Warranties. Each of Seller and
the Servicer represents and warrants to the Financial Institutions, PREFCO and
the Agent that, as of the date hereof, and after giving effect to the waiver set
forth in Section 1 of this Waiver and Amendment and the amendments set forth in
Section 2 of this Waiver and Amendment:
(a) no Amortization Event or Potential Amortization
Event has occurred and is continuing; and
(b) all of the representations and warranties
contained in the Existing Agreement, as waived and amended by this Waiver and
Amendment, and in the other Transaction Documents are true and correct.
Section 5. Miscellaneous.
(a) Effect; Ratification. The waiver and 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 Financial Institutions,
PREFCO or the Agent 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 Purchase
Agreement," the "Purchase Agreement" or the Existing Agreement shall mean the
Existing Agreement as amended hereby. This Waiver and 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
LIMITED WAIVER AND AMENDMENT NO. 3 TO
RECEIVABLES PURCHASE AGREEMENT
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agreement referred to therein, except as herein waived or amended, are hereby
ratified and confirmed and shall remain in full force and effect.
(b) Transaction Documents. This Waiver and 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. Seller agrees to
reimburse the Agent and each Purchaser on demand for all costs, fees and
expenses (including the reasonable fees and expenses of counsel to the Agent and
the Purchasers) incurred in connection with the preparation, execution and
delivery of this Waiver and Amendment.
(d) Counterparts. This Waiver and 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
Waiver and 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
Waiver and Amendment in that jurisdiction or the operation, enforceability or
validity of such provision in any other jurisdiction.
(f) GOVERNING LAW. THIS WAIVER AND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ILLINOIS.
(Signature Page Follows)
LIMITED WAIVER AND AMENDMENT NO. 3 TO
RECEIVABLES PURCHASE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have executed this
Waiver and 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 CORP.
By:
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Name:
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Title:
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PREFERRED RECEIVABLES FUNDING CORPORATION
By:
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Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO), as a Financial
Institution and as Agent
By:
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Name:
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Title:
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LIMITED WAIVER AND AMENDMENT XX. 0 XX
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EXHIBIT A
OFFICER'S CERTIFICATE
I, ______________, am the _______________ of Plexus Corp. (the
"Servicer"). I execute and deliver this Officer's Certificate, dated as of April
25, 2002, on behalf of the Servicer pursuant to Section 3(b) of the Waiver and
Third Amendment to Receivables Purchase Agreement (the "Waiver and Amendment"),
dated as of the date hereof, among the Seller Parties, the Financial
Institutions, PREFCO and the Agent (each as defined therein), amending certain
provisions of that certain Receivables Purchase Agreement, dated as of October
6, 2000, amended as of July 1, 2001 and further amended as of October 3, 2001
(such agreement, as so amended, the "Existing Agreement"), among the Seller
Parties, the Financial Institutions, PREFCO and the Agent. 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 the Servicer, that to the best
of my knowledge after due inquiry, as of the date hereof, and after giving
effect to the waiver set forth in Section 1 of the Waiver and Amendment and the
amendments set forth in Section 2 of the Waiver and Amendment, (a) no
Amortization Event or Potential Amortization Event has occurred and is
continuing and (b) the representations and warranties of Seller and the Servicer
contained in the Existing Agreement, as waived and amended by the Waiver and
Amendment, and in the other Transaction Documents are true and correct as of the
date hereof.
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Name:
Title:
LIMITED WAIVER AND AMENDMENT NO. 3 TO
RECEIVABLES PURCHASE AGREEMENT
EXHIBIT B
OFFICER'S CERTIFICATE
I, ______________, am the _______________ of Plexus ABS, Inc.
("Seller"). I execute and deliver this Officer's Certificate, dated as of April
25, 2002, on behalf of Seller pursuant to Section 3(b) of the Waiver and Third
Amendment to Receivables Purchase Agreement (the "Waiver and Amendment"), dated
as of the date hereof, among the Seller Parties, the Financial Institutions,
PREFCO and the Agent (each as defined therein), amending certain provisions of
that certain Receivables Purchase Agreement, dated as of October 6, 2000,
amended as of July 1, 2001 and further amended as of October 3, 2001 (such
agreement, as so amended, the "Existing Agreement"), among the Seller Parties,
the Financial Institutions, PREFCO and the Agent. 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 Seller, that to the best of my
knowledge after due inquiry, as of the date hereof, and after giving effect to
the waiver set forth in Section 1 of the Waiver and Amendment and the amendments
set forth in Section 2 of the Waiver and Amendment, (a) no Amortization Event or
Potential Amortization Event has occurred and is continuing and (b) the
representations and warranties of Seller contained in the Existing Agreement, as
waived and amended by the Waiver and Amendment, and in the other Transaction
Documents are true and correct as of the date hereof.
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Name:
Title:
LIMITED WAIVER AND AMENDMENT NO. 3 TO
RECEIVABLES PURCHASE AGREEMENT
