EXHIBIT 10.18
AMENDMENT NO. 2
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of February 23, 2005
THIS AMENDMENT NO. 2 ("Amendment") is entered into as of
February 23, 2005 by and among Jabil Circuit Financial II, Inc., a
Delaware corporation (the "Seller"), Jabil Circuit, Inc., a Delaware
corporation (the "Servicer"), Jupiter Securitization Corporation
("Jupiter"), the financial institutions party hereto (the "Financial
Institutions") and JPMorgan Chase Bank, N.A. (successor by merger to Bank
One, NA (Main Office Chicago)), as Agent (the "Agent").
PRELIMINARY STATEMENT
A. The Seller, the Servicer, Jupiter, the Financial Institutions and
the Agent are parties to that certain Receivables Purchase Agreement dated as of
February 25, 2004 (as amended by Amendment No. 1 thereto dated as of April 22,
2004 and as otherwise amended, restated, supplemented or otherwise modified from
time to time, the "Purchase Agreement"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
B. The Seller, the Servicer, Jupiter, the Financial Institutions and
the Agent have agreed to amend the Purchase Agreement on the terms and subject
to the 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 parties hereto hereby agree as follows:
SECTION 1. Amendment. Effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 2 below, the
Purchase Agreement is hereby amended as follows:
(a) The following new Section 4.6 is added to the Purchase Agreement
immediately following Section 4.5 of the Purchase Agreement:
"Section 4.6. Liquidity Agreement Fundings. The parties hereto
acknowledge that Jupiter may put all or any portion of its Purchaser
Interests to the Financial Institutions at any time pursuant to the
Liquidity Agreement to finance or refinance the necessary portion of its
Purchaser Interests through a funding under the Liquidity Agreement to the
extent available. The fundings under the Liquidity Agreement will accrue
interest at the Discount Rate in accordance with this Article IV.
Regardless of whether a funding of Purchaser Interests by the Financial
Institutions constitutes the direct purchase of a Purchaser Interest
hereunder, an assignment under the Liquidity Agreement of a Purchaser
Interest originally funded by Jupiter or the sale of one or more
participations or other interests under the Liquidity Agreement in a
Purchaser
Interest originally funded by Jupiter, each Financial Institution
participating in a funding of a Purchaser Interest shall have the rights
and obligations of a "Purchaser" hereunder with the same force and effect
as if it had directly purchased such Purchaser Interest from Seller
hereunder."
(b) Clause (ii) of Section 8.5 of the Purchase Agreement is deleted
in its entirety and replaced with the following therefor:
(ii) on January 15th of each year, an updated Schedule F setting forth the
Foreign Excess Payable Amount for each Obligor and its Affiliates
(c) The phrase ", its obligation to pay Jupiter its Acquisition
Amounts" is deleted from the first sentence of Section 12.2 of the Purchase
Agreement.
(d) The following new Section 12.3 is added to the Purchase
Agreement immediately following Section 12.2 of the Purchase Agreement:
"Section 12.3. Terminating Financial Institutions.
(a) Each Financial Institution hereby agrees to deliver written
notice to the Agent not more than 30 Business Days and not less than
5 Business Days prior to the Liquidity Termination Date indicating
whether such Financial Institution intends to renew its Commitment
hereunder. If any Financial Institution fails to deliver such notice
on or prior to the date that is 5 Business Days prior to the
Liquidity Termination Date, such Financial Institution will be
deemed to have declined to renew its Commitment (each Financial
Institution which has declined or has been deemed to have declined
to renew its Commitment hereunder, a "Non-Renewing Financial
Institution"). The Agent shall promptly notify Jupiter of each
Non-Renewing Financial Institution and Jupiter, in its sole
discretion, may (A) to the extent of Commitment Availability,
declare that such Non-Renewing Financial Institution's Commitment
shall, to such extent, automatically terminate on a date specified
by Jupiter on or before the Liquidity Termination Date or (B) upon
one (1) Business Day's notice to such Non-Renewing Financial
Institution assign to such Non-Renewing Financial Institution on a
date specified by Jupiter its Pro Rata Share of the aggregate
Purchaser Interests then held by Jupiter, subject to, and in
accordance with, the Liquidity Agreement. In addition, Jupiter may,
in its sole discretion, at any time (x) to the extent of Commitment
Availability, declare that any Affected Financial Institution's
Commitment shall automatically terminate on a date specified by
Jupiter or (y) assign to any Affected Financial Institution on a
date specified by Jupiter its Pro Rata Share of the aggregate
Purchaser Interests then held by Jupiter, subject to, and in
accordance with, the Liquidity Agreement (each Affected Financial
Institution or each Non-Renewing Financial Institution is
hereinafter referred to as a "Terminating Financial Institution").
The parties hereto expressly acknowledge that any declaration of the
termination of any Commitment, any assignment pursuant to this
Section 12.3 and the order of priority of any such termination or
assignment among Terminating Financial Institutions shall be made by
Jupiter in its sole and absolute discretion.
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(b) Upon any assignment to a Terminating Financial Institution as
provided in this Section 12.3, any remaining Commitment of such
Terminating Financial Institution shall automatically terminate.
Upon reduction to zero of the Capital of all of the Purchaser
Interests of a Terminating Financial Institution (after application
of Collections thereto pursuant to Sections 2.2 and 2.3) all rights
and obligations of such Terminating Financial Institution hereunder
shall be terminated and such Terminating Financial Institution shall
no longer be a "Financial Institution" hereunder; provided, however,
that the provisions of Article X shall continue in effect for its
benefit with respect to Purchaser Interests held by such Terminating
Financial Institution prior to its termination as a Financial
Institution.
(e) Article XIII of the Purchase Agreement is deleted in its
entirety.
(f) Each of the references to "Article XIII" in Section 4.1 of, and
in the definition of "Broken Funding Costs" in Exhibit I to, the Purchase
Agreement are replaced by a reference to "the Liquidity Agreement".
(g) Each of the references to "Section 13.1" in Sections 6.2, 12.1
and 14.13 of the Purchase Agreement is replaced by a reference to "the Liquidity
Agreement".
(h) Each of the references to "Section 13.6" in Section 2.2 of the
Purchase Agreement and in the definitions of "Commitment", "Non-Renewing
Financial Institution" and "Terminating Financial Institution" in Exhibit I to
the Purchase Agreement is replaced by a reference to "Section 12.3".
(i) The phrase "(except pursuant to Sections 13.1 or 13.5)" in
Section 14.1(b)(i) of the Purchase Agreement is replaced by the following
phrase: "(except pursuant to the Liquidity Agreement or Section 12.3)".
(j) The definitions of "Acquisition Amount", "Adjusted Funded
Amount", "Adjusted Liquidity Price", "Defaulting Financial Institution",
"Jupiter Residual", "Jupiter Transfer Price", "Jupiter Transfer Price Deficit",
"Jupiter Transfer Price Reduction", "Non-Defaulting Financial Institution" and
"Reduction Percentage" in Exhibit I to the Purchase Agreement are deleted in
their entirety.
(k) The definition of "Commitment Availability" in Exhibit I to the
Purchase Agreement is restated in its entirety as follows:
"Commitment Availability" means at any time the positive
difference (if any) between (a) an amount equal to the aggregate amount of
the Commitments at such time minus (b) the Aggregate Capital at such time.
(l) The definition of "Dilution Reserve" in Exhibit I to the
Purchase Agreement is restated in its entirety as follows:
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"Dilution Reserve" means, on any date, an amount equal to the
greatest of (i) $12,000,000, (ii) an amount equal to 7% of the Net
Receivables Balance on such date, and (iii) an amount equal to the
Dilution Percentage multiplied by the Net Receivables Balance on such
date.
(m) The definition of "Discount Rate" in Exhibit I to the Purchase
Agreement is restated in its entirety as follows:
"Discount Rate" means, the LIBO Rate or the Base Rate, as
applicable, with respect to each Purchaser Interest of the Financial
Institutions and any Purchaser Interest of Jupiter, an undivided interest
in which has been assigned by Jupiter to a Financial Institution pursuant
to the Liquidity Agreement.
(n) The definition of "Foreign Excess Payable Amount" in Exhibit I
to the Purchase Agreement is restated in its entirety as follows:
"Foreign Excess Payable Amount" means, for any Obligor and its
Affiliates, (a) at all times the rating then assigned to Jabil's senior
unsecured long-term non-credit enhanced debt is at least BB- by Standard &
Poor's Ratings Group or Ba3 by Xxxxx'x Investors Service, Inc., the amount
by which the Estimated Foreign Payable Amount of such Obligor exceeds the
outstanding receivables owing to all Foreign Jabil Entities by such
Obligor and all of its Affiliates as of November 30 of the previous year,
and (b) at all times the rating then assigned to Jabil's senior unsecured
long-term non-credit enhanced debt is less than BB- and less than Ba3, the
Estimated Foreign Payable Amount of such Obligor. For purposes of this
definition, "Estimated Foreign Payable Amount" with respect to any Obligor
means the estimated average outstanding balance of all accounts payable
due from all Foreign Jabil Entities to such Obligor (or any of its
Affiliates), which amount shall be estimated annually by the Servicer, and
reported pursuant to Section 8.5, based (x) on the total amount of
purchases made, or expected to be made, by all Foreign Jabil Entities from
such Obligor during the two fiscal quarters of the Seller ending in
February of each year and (y) the payment terms applicable, or expected to
be applicable, to such purchases.
(o) The following definition of "Liquidity Agreement" is added to
Exhibit I to the Purchase Agreement:
"Liquidity Agreement" means the agreement entered into by
Jupiter with the Financial Institutions in connection herewith for the
purpose of providing liquidity with respect to the Capital funded by
Jupiter under this Agreement.
(p) The definition of "Liquidity Termination Date" in Exhibit I to
the Purchase Agreement is restated in its entirety as follows:
"Liquidity Termination Date" means February 22, 2006.
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(q) The definition of "Loss Reserve Floor" in Exhibit I to the
Purchase Agreement is restated in its entirety as follows:
"Loss Reserve Floor" means 16.5%.
(r) The definition of "Pro Rata Share" in Exhibit I to the Purchase
Agreement is restated in its entirety as follows:
"Pro Rata Share" means, for each Financial Institution, a
percentage equal to (i) the Commitment of such Financial Institution,
divided by (ii) the aggregate amount of all Commitments of all Financial
Institutions hereunder, adjusted as necessary to give effect to the
application of the terms of the Liquidity Agreement or Section 12.3.
(s) The definition of "Purchase Limit" in Exhibit I to the Purchase
Agreement is restated in its entirety as follows:
"Purchase Limit" means $145,000,000.
(t) The Commitment amount of JPMorgan Chase Bank, N.A. (successor by
merger to Bank One, NA (Main Office Chicago) set forth on Schedule A to the
Purchase Agreement is hereby amended to delete the amount "$122,400,000" and
replace it with the amount "$145,000,000".
SECTION 2. Conditions Precedent. This Amendment shall become
effective and be deemed effective, as of the date first above written, upon the
latest to occur of (i) the date hereof, (ii) receipt by the Agent of one copy of
this Amendment duly executed by each of the parties hereto, and (iii) payment by
the Seller to Jupiter of an amendment fee in the amount of $50,000.
SECTION 3. Covenants, Representations and Warranties of the
Seller and the Servicer.
(a) Upon the effectiveness of this Amendment, each of the Seller and
the Servicer hereby reaffirms all covenants, representations and warranties made
by it in the Purchase Agreement, 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.
(b) Each of the Seller and the Servicer hereby represents and
warrants as to itself (i) that this Amendment constitutes the legal, valid and
binding obligation of such party enforceable against such party 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, that no event shall have occurred and be continuing which constitutes
an Amortization Event or a Potential Amortization Event.
SECTION 4. Fees, Costs, Expenses and Taxes. Without limiting the
rights of the Agent and the Purchasers set forth in the Purchase Agreement and
the other Transaction
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Documents, the Seller agrees to pay on demand all reasonable fees and
out-of-pocket expenses of counsel for the Agent and the Purchasers incurred in
connection with the preparation, execution and delivery of this Amendment and
the other instruments and documents to be delivered in connection herewith and
with respect to advising the Agent and the Purchasers as to their rights and
responsibilities hereunder and thereunder.
SECTION 5. Reference to and Effect on the Purchase Agreement.
(a) Upon the effectiveness of this Amendment, each reference in the
Purchase Agreement to "this Agreement," "hereunder," "hereof," "herein,"
"hereby" or words of like import shall mean and be a reference to the Purchase
Agreement as amended hereby, and each reference to the Purchase Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Purchase Agreement shall mean and be a reference to the Purchase
Agreement as amended hereby.
(b) Except as specifically amended hereby, the Purchase Agreement
and 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.
(c) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Purchaser or
the Agent under the Purchase Agreement or any of the other Transaction
Documents, nor constitute a waiver of any provision contained therein.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF
CONFLICTS) OF THE STATE OF ILLINOIS.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed on the date first set forth above by their respective officers
thereto duly authorized, to be effective as hereinabove provided.
JABIL CIRCUIT FINANCIAL II, INC.,
as Seller
By: /s/ XXXXX XXXXXXXX
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
JABIL CIRCUIT, INC., as Servicer
By: /s/ XXXXXX XXXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chief Financial Officer
JUPITER SECURITIZATION CORPORATION
By: /s/ XXXXXXX XXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank
One, N.A. (Main Office
Chicago)),
as a Financial Institution and
as Agent
By: /s/ XXXXXXX XXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
