EXHIBIT 10.18
EXECUTION COPY
AMENDMENT NO. 5
Dated as of November 16, 2001
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of August 10, 2000
THIS AMENDMENT NO. 5 dated as of November 16, 2001
("Amendment") is entered into by and among Jabil Circuit Financial, Inc., a
Delaware corporation (the "Seller"), Jabil Circuit, Inc., a Delaware corporation
(the "Sub-Servicer"), the financial institutions party hereto (the "Financial
Institutions"), Falcon Asset Securitization Corporation ("Falcon") and Bank One,
NA (Main Office Chicago), as Agent (the "Agent"). Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in the
RPA, as defined below.
PRELIMINARY STATEMENTS
A. The Seller, the Sub-Servicer, the Financial Institutions,
Falcon and the Agent are parties to that certain Receivables Purchase Agreement
dated as of August 10, 2000 (as the same has been amended prior to the date
hereof and may be further amended, restated, supplemented or otherwise modified
from time to time, the "RPA").
B. The parties hereto have agreed to amend the RPA on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Seller, the Sub-Servicer, the Purchasers and
the Agent agree as follows:
SECTION 1. Amendments to the RPA. Effective as of the date hereof,
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the RPA is hereby amended as follows:
1.1 Section 7.1(b) of the RPA is hereby amended to delete clause
(vii) thereof in its entirety and replace it with the following:
"(vii) Jabil Mexico and Jabil Chihuahua. As soon as the Seller
becomes aware thereof, notice of any action taken by Jabil Mexico,
Jabil Chihuahua or any other Person to assert any claim against any
property of Jabil, Jabil Mexico or Jabil Chihuahua in Mexico."
1.2 Section 8.1(b) of the RPA is hereby amended to delete the
parenthetical appearing in the fourth sentence thereof and replace it with the
following:
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"(other than (x) Jabil Mexico with respect to those
Receivables arising from the sale of products manufactured by Jabil
Mexico and (y) Jabil Chihuahua with respect to those Receivables
arising from the sale of products manufactured by Jabil Chihuahua)"
1.3 Section 8.5 of the RPA is hereby amended to delete clause (i)
thereof in its entirety and replace it with the following:
"(i) on the fifteenth(15th) day of each month and at such
times as the Agent shall request, a Monthly Report, such Monthly Report
and the calculations on which the information in such Monthly Report is
based not to include or otherwise give effect to any Unreported
Receivable and"
1.4 Section 9.1(f) of the RPA is hereby amended to delete clauses
(ii) and (iii) thereof in their entirety and replace them with the following:
(ii) the average of the Dilution Ratios as at the end of such
month and the two preceding months shall exceed 10% and the Dilution
Ratio as at the end of such month shall exceed 14%; or
(iii) the average of the Default Ratios as at the end of such
month and the two preceding months shall exceed 7.75% and the Default
Ratio as at the end of such month shall exceed 9.25%."
1.5 Section 10.1 of the RPA is hereby amended to delete clause
(xv) thereof in its entirety and replace it with the following:
"(xv) the operations of Jabil Mexico or Jabil Chihuahua and
the enforcement of the Agent's and the Purchaser's rights under either
Estoppel Letter; and"
1.6 Section 11.1 of the RPA is hereby amended to delete the term
"Estoppel Letter" appearing in the last sentence thereof and replace it with the
term "Estoppel Letters".
1.7 Exhibit I of the RPA is hereby amended to delete the
definition of "Dilution Horizon Ratio" contained therein in its entirety and
replace it with the following:
" `Dilution Horizon Ratio' means, as of the last day of any
calendar month, a percentage equal to (i) the Originator Sales during
the most recently ended calendar month divided by (ii) the aggregate
Outstanding Balance of all Eligible Receivables as of such date."
1.8 Exhibit I of the RPA is hereby further amended to delete the
definition of "Dilution Ratio" contained therein in its entirety and replace it
with the following:
" `Dilution Ratio' means, at any time, a percentage equal to
(i) the aggregate amount of Dilutions which accrued during the calendar
month then most recently ended, divided by (ii) the Originator Sales
during the month ending one (1) calendar month prior to such date."
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1.9 Exhibit I of the RPA is hereby further amended to delete the
definition of "Dilution Spike Ratio" contained therein in its entirety and
replace it with the following:
" `Dilution Spike Ratio' means, as of the last day of any
calendar month, a percentage equal to the highest Dilution Ratio as of
the last day of any of the twelve (12) months then most recently ended;
provided, that $8,000,000 shall be deducted from the Dilutions for the
month of February 2000 in calculating the Dilution Ratio for such month
for purposes of this definition."
1.10 Exhibit I of the RPA is hereby further amended to delete
clause (iv) of the definition of "Eligible Receivable" in its entirety and
replace it with the following:
"(iv) which by its terms is due and payable within 45 days of
the original billing date therefor (or in the case of a Receivable for
which Xxxxxxx Controls, Inc. is the Obligor, is due and payable on or
prior to the last day of the month immediately succeeding the month in
which the original billing date occurred), has not had its payment
terms extended, and has not had its original billing date changed for
any portion thereof,"
1.11 Exhibit I of the RPA is hereby further amended to delete
clause (xx) of the definition of "Eligible Receivable" in its entirety and
replace it with the following:
"(xx) which, if it arises from the sale of any
product manufactured outside of the United States (other than a product
manufactured by Jabil Mexico in Guadalajara, Mexico and other than a
product manufactured by Jabil Chihuahua in Chihuahua, Mexico) such
Receivable has been approved in writing by the Agent."
1.12 Exhibit I of the RPA is hereby further amended to delete the
definition of "Estoppel Letter" contained therein in its entirety and replace it
with the following:
" `Estoppel Letters' means each of (i) that certain estoppel
letter agreement dated as of August 10, 2000 executed by Jabil Mexico
for the benefit of the Agent, on behalf of the Purchasers and (ii) that
certain estoppel letter agreement dated as of November 16, 2001
executed by Jabil Chihuahua for the benefit of the Agent, on behalf of
the Purchasers."
1.13 Exhibit I of the RPA is hereby further amended to add the
following definition after the definition of "Jabil" contained therein:
" `Jabil Chihuahua' means Jabil Circuit de Chihuahua, S.A. de
C.V., a corporation organized under the laws of Mexico as a Sociedad
Anonima de Capital Variable."
1.14 Exhibit I of the RPA is hereby further amended to delete the
date "November 16, 2001" occurring in the definition of "Liquidity Termination
Date" contained therein and replace it with the date "May 8, 2002".
1.15 Exhibit I of the RPA is hereby further amended to delete the
definition of "Purchase Limit" contained therein in its entirety and replace it
with the following:
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" `Purchase Limit' means $100,000,000."
1.16 Exhibit I of the RPA is hereby further amended to delete the
term "Estoppel Letter" appearing in the definition of "Transaction Documents"
contained therein and replace it with the term "Estoppel Letters".
1.17 Exhibit I of the RPA is hereby further amended to add the
following definition after the definition of "Unconditional Liquidity Provider"
contained therein:
" `Unreported Receivable' means a Receivable described on
Schedule E, as such schedule may be modified from time to time by the
Seller with the consent of the Agent."
1.18 Exhibit III of the RPA is hereby amended to add the following
information under the Guadalajara, Mexico information:
CHIHUAHUA, MEXICO
x/x Xxxxx Xxxxxxx xx Xxxxxxxxx XX xx XX
Xxxxxxxxx Xxxxx #11341
Complejo Industrial Chihuahua
Chihuahua, Chihuahua, Mexico CP31109
1.19 Exhibit IV of the RPA is hereby amended to add the following
Collection Account Information:
Collection Bank Lockbox Address Related Collection Account
Bank One, NA P.O. Box 22825 10-93863 Jabil Circuit Financial,
Xxxxxxx, XX 00000-0000 Inc. (Texas)
Bank One, NA P.O. Box 730802 11-00221 Jabil Circuit Financial,
Xxxxxx, XX 00000-0000 Inc. (Chihuahua)
Bank One, NA P.O. Box 22275 10-63544 Jabil Circuit Financial,
Xxxxxxx, XX 00000-0000 Inc. (Florida)
1.20 The RPA is hereby amended to add Schedule E thereto in the
form attached hereto as Annex A.
SECTION 2. Conditions Precedent. This Amendment shall become effective
as of the date first above written, upon receipt by the Agent of:
(i) four (4) copies of this Amendment duly executed by
each of the Seller, the Sub-Servicer, the Purchasers and the Agent;
(ii) each of the documents set forth on Schedule I hereto;
and
(iii) the Amendment Fee (as such term is defined in the Fee
Letter referred to on Schedule I hereto).
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SECTION 3. Covenants, Representations and Warranties of the
Seller and the Sub-Servicer.
3.1 Upon the effectiveness of this Amendment, each of the Seller
(individually and in its capacity as Servicer) and the Sub-Servicer hereby
reaffirms all covenants, representations and warranties made by it, to the
extent the same are not amended hereby, in the RPA, as amended, and agrees that
all such covenants, representations and warranties shall be deemed to have been
re-made as of the effective date of this Amendment.
3.2 Each of the Seller (individually and in its capacity as
Servicer) and the Sub-Servicer hereby represents and warrants, (i) that this
Amendment constitutes the legal, valid and binding obligation of such Person
enforceable against such Person in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity which may limit the availability of
equitable remedies and (ii) upon the effectiveness of this Amendment, no
Amortization Event or Potential Amortization Event has occurred or is
continuing.
SECTION 4. Reference to the Effect on the RPA.
4.1 Upon the effectiveness of this Amendment, each reference in
the RPA to "this Agreement," "hereunder," "hereof," "herein," "hereby" or words
of like import shall mean and be a reference to the RPA as amended hereby, and
each reference to the RPA in any other document, instrument or agreement
executed and/or delivered in connection with the RPA shall mean and be a
reference to the RPA as amended hereby.
4.2 Except as specifically amended hereby, the RPA and the other
documents, instruments and agreements executed and/or delivered in connection
therewith shall remain in full force and effect and are hereby ratified and
confirmed.
4.3 The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Purchasers or
the Agent under the RPA or any of the other Transaction Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
SECTION 5. Headings. Section headings in the Amendment are included
herein for convenience of reference only and shall not constitute part of this
Amendment for any other purpose.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS.
SECTION 7. Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
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SECTION 8. Fees and Expenses. The Seller hereby confirms its
agreement to pay on demand all reasonable costs and expenses in connection with
the preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in
connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel to the Agent.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
JABIL CIRCUIT FINANCIAL, INC.
By:
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Name:
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Title:
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JABIL CIRCUIT, INC.
By:
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Name:
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Title:
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FALCON ASSET SECURITIZATION
CORPORATION
By:
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Name:
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Title: 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: Authorized Signatory
Signature Page to Amendment No. 5
ANNEX A TO AMENDMENT NO. 5 TO
RECEIVABLES PURCHASE AGREEMENT
SCHEDULE E
UNREPORTED RECEIVABLES
Receivables for which the Obligor is Redback Networks
Signature Page to Amendment No. 5
