EXHIBIT 10.20
AMENDMENT NO. 3 AND CONSENT
to
RECEIVABLES PURCHASE AGREEMENT
Dated as of May 13, 2005
THIS AMENDMENT NO. 3 AND CONSENT (this "Amendment") is entered into as
of May 13, 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 Amendment No. 2 thereto dated as of February 23, 2005 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.
C. The Seller has requested that the subdivision of Varian, Inc.
heretofore purchased by Jabil Circuit, Inc. be deemed not to be a "New Business
Line" for purposes of clause (xviii) of the definition of "Eligible Receivable"
and Jupiter, the Financial Institutions and the Agent are willing to consent to
such designation 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 3 below,
the Purchase Agreement is hereby amended as follows:
(a) Each occurrence of the phrase "Indebtedness (as defined in
Exhibit XII)" appearing in Section 7.1(b)(v), Section 9.1(c) and Section 9.1(d)
is hereby deleted and replaced with the phrase "Debt (as defined in the Five
Year Credit Agreement)".
(b) Section 9.1(f) of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following therefor:
(f) As at the end of any calendar month:
(i) the average of the Delinquency Ratios as at
the end of such month and the two preceding months shall
exceed 9.0%; or
(ii) the average of the Default Ratios as at the
end of such month and the two preceding months shall exceed
4.5%.
(c) Section 9.1(k) of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following therefor:
(k) Jabil shall fail to perform, observe or
otherwise satisfy any of the financial covenants set forth in Section
5.03 of the Five Year Credit Agreement.
(d) Exhibit I to the Purchase Agreement is hereby amended
to add the following definition thereto, in alphabetical order:
"Five Year Credit Agreement" means that certain Five
Year Credit Agreement dated as of May 11, 2005 among Jabil, the
financial institutions and other institutional lenders party thereto as
"Lenders", JPMorgan Chase Bank, N.A., as syndication agent, and
Citibank, N.A., as administrative agent, without giving effect to any
amendment, restatement, supplement or other modification to such
agreement unless such amendment, restatement, supplement or
modification is consented to in a separate writing by JPMorgan Chase
Bank, N.A., in its capacity as Agent hereunder, and by each Financial
Institution party hereto at such time.
(e) The definition of "Default Ratio" in Exhibit I to the
Purchase Agreement is hereby amended to delete the phrase "91 days from the
original invoice date" appearing in clause (i)(B) thereof and to replace
therefor the phrase "61 days from the original due date".
(f) The definition of "Defaulted Receivable" in Exhibit I
to the Purchase Agreement is restated in its entirety as follows:
"Defaulted Receivable" means a Receivable as to which
any payment, or part thereof, remains unpaid for 61 days or more, but
less than 91 days, from the original due date for such payment.
(g) The definition of "Delinquent Receivable" in Exhibit
I to the Purchase Agreement is restated in its entirety as follows:
"Delinquent Receivable" means a Receivable as to
which any payment, or part thereof, remains unpaid for 61 days or more
from the original due date for such Receivable.
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(h) Clause (iv) of the definition of "Eligible
Receivable" in Exhibit I to the Purchase Agreement is hereby amended to delete
the percentage "20%" appearing in the proviso thereto with respect to Extended
Term Receivables and to replace therefor the percentage "30%".
(i) The definition of "Loss Horizon Ratio" in Exhibit I
to the Purchase Agreement is hereby amended to delete the phrase "three-month
period" appearing in clause (i) thereof and to replace therefor the phrase
"three and one half-month period".
(j) The definition of "Purchase Limit" in Exhibit I to
the Purchase Agreement is restated in its entirety as follows:
"Purchase Limit" means $175,000,000.
(k) Exhibit XII of the Purchase Agreement is hereby
deleted in its entirety.
(l) 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
"$145,000,000" and replace it with the amount "$175,000,000".
SECTION 2. Consent. Notwithstanding any contrary provision
of the Purchase Agreement, each of the parties hereto agrees that the
subdivision of Varian, Inc. heretofore purchased by Jabil Circuit, Inc. shall be
deemed not to be a "New Business Line" for purposes of clause (xviii) of the
definition of "Eligible Receivable".
SECTION 3. 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) receipt by the Agent of an amendment fee in the amount of $25,000.
SECTION 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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/ XXX XXXX
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Name: Xxx Xxxx
Title: President
JABIL CIRCUIT, INC., as Servicer
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: VP & Controller
Signature Page to Amendment No.3 and Consent to
Receivables Purchase Agreement
JUPITER SECURITIZATION CORPORATION
By: /s/ XXXXXXX XXXXXX
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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
Signature Page to Amendment No.3 and Consent to
Receivables Purchase Agreement
