Exhibit 10.A
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This Amendment No. 2 to Amended and Restated Receivables Purchase
Agreement (this "Amendment") is entered into as of November 25, 2002, among
Avnet Receivables Corporation, a Delaware corporation ("Seller"), Avnet, Inc., a
New York corporation ("Avnet"), as initial Servicer (the Servicer together with
Seller, the "Seller Parties" and each a "Seller Party"), each Financial
Institution signatory hereto (the "Financial Institutions"), each Company
signatory hereto (the "Companies") and Bank One, NA (Main Office Chicago), as
agent for the Purchasers (the "Agent").
RECITALS
Each of the parties hereto entered into that certain Amended and
Restated Receivables Purchase Agreement, dated as of February 6, 2002, and
amended such Amended and Restated Receivables Purchase Agreement pursuant to
Amendment No. 1 thereto, dated as of June 26, 2002 (such Amended and Restated
Receivables Purchase Agreement, as so amended, the "Purchase Agreement").
Each Seller Party has requested that the Agent and the Purchasers
amend certain provisions of the Purchase Agreement, all as more fully described
herein.
Subject to the terms and conditions hereof, each of the parties
hereto now desires to amend the Purchase Agreement as particularly described
herein.
AGREEMENT
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. Definitions Used Herein. Capitalized terms used herein
and not otherwise defined herein shall have the respective meanings set forth
for such terms in, or incorporated by reference into, the Purchase Agreement.
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Section 2. Amendments. Subject to the terms and conditions set forth
herein, the Purchase Agreement is hereby amended as follows:
(a) Section 5.1 (j) of the Purchase Agreement is hereby
amended by amending and restating, in its entirety, the first sentence of such
section to read as follows:
This Agreement, together with the filing of the financing statements
contemplated hereby, is effective to, and shall, upon each purchase
hereunder, transfer to the Agent for the benefit of the relevant Purchaser
or Purchasers (and the Agent for the benefit of such Purchaser or
Purchasers shall acquire from Seller) a valid and perfected first priority
undivided percentage ownership or security interest in all of Seller's
right, title and interest in, to and under each Receivable existing or
hereafter arising and in the Related Security and Collections with respect
thereto, free and clear of any Adverse Claim, except as created by the
Transaction Documents.
(b) Section 7.2(d) of the Purchase Agreement is hereby amended
by replacing the phrase "any Receivable, Related Security or Collections, or
upon or with respect to any Contract under which any Receivable arises" in the
first sentence of such section with the phrase "any of its Receivables, Related
Security or Collections, or upon or with respect to any Contract under which any
of its Receivables arise".
(c) Section 8.5 of the Purchase Agreement is hereby amended
and restated, in its entirety, to read as follows:
Section 8.5 The Reports. Servicer shall prepare and forward to the
Agent and Scotia (i) by 1:OO p.m. (Chicago time) on the third Business Day
following the last day of each fiscal month of the Servicer and at such
times as the Agent or the Required Purchasers shall request, a Monthly
Report (which shall include a work sheet calculating the Net Receivables
Balance and the amount of Eligible Receivables), (ii) by 1:OO p.m.
(Chicago time) on the third Business Day of each calendar week (other than
a calendar week in which a Monthly Report is required to be delivered
pursuant to clause (i) of this sentence), a Weekly Report with respect to
the preceding calendar week and (iii) at such times as the Agent or the
Required Purchasers
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
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shall request, a listing by Obligor of all Receivables together with an
aging of such Receivables.
(d) Section 9.1 (f) of the Purchase Agreement is hereby
amended and restated, in its entirety, to read as follows:
(f) As at the end of any calendar month, the three-month rolling
average of the Delinquency Ratio Trigger shall exceed 8.00%, or the
three-month rolling average of the Dilution Ratio Trigger shall exceed
6.00%, or the three-month rolling average of the Loss Ratio Trigger shall
exceed 5.25%.
(e) Section 9.1 of the Purchase Agreement is hereby amended by
adding the following new paragraph to such section immediately after paragraph
(k) of such section:
(1) Failure of an intercreditor agreement, in form and
substance satisfactory to the Agent and Scotia, with respect to the
restructuring of the Avnet Multi-Year Credit Agreement to be in full force
and effect on or before December 10, 2002.
(f) Exhibit I to the Purchase Agreement is hereby amended by
replacing the phrase "(i) 5%" in the definition of "Dilution Percentage"
appearing in such exhibit with the phrase "(i) 10%".
(g) Exhibit I to the Purchase Agreement is hereby amended by
adding, in appropriate alphabetical order, the following new definition to such
exhibit:
"Permitted Adverse Claim" means an Adverse Claim in favor of the
"Administrative Agent" (as defined in the Avnet Multi-Year Credit
Agreement) for the benefit of the "Lenders" (as defined in the Avnet
Multi-Year Credit Agreement).
(h) Exhibit I to the Purchase Agreement is hereby amended by
replacing the phrase "other interest, including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel paper,
instrument or general intangible, arising" in the definition of "Receivable"
appearing in such exhibit with the phrase "other interest (including, without
limitation, any indebtedness, obligation or
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
3
interest constituting an account, chattel paper, instrument or general
intangible), arising".
(i) Exhibit I to the Purchase Agreement is hereby amended by
deleting, in its entirety, the definition of "Weekly Reporting Condition"
appearing in such exhibit.
Section 3. Conditions to Effectiveness of this Amendment. This
Amendment shall become effective as of the date hereof, upon the satisfaction of
the conditions precedent that:
(a) Amendment. The Agent shall have received, on or before the
date hereof, executed counterparts of this Amendment, duly executed by each of
the parties hereto.
(b) Amendment to Receivables Sale Agreement. The Agent shall
have received, on or before the date hereof, duly executed copies of Amendment
No. 3 to Receivables Sale Agreement, dated as of the date hereof and in the form
of Exhibit A hereto (the "RSA Amendment"), by and among Seller and Avnet; and
the RSA Amendment shall be in full force and effect.
(c) Fee Letters. Each of the Agent and Scotia shall have
received, on or before the date hereof, amended and restated Fee Letters, in
form and substance satisfactory to the Agent or Scotia (as applicable), in each
case, duly executed by the parties thereto.
(d) Amendment Fee. The Related Financial Institution for the
Bank One Company shall have received, on or before the date hereof, in
immediately available funds, a non-refundable, fully-earned amendment fee equal
to 10 basis point (.10%) of the Bank One Company's Company Purchase Limit, as
set forth on Schedule A to the Purchase Agreement. The Related Financial
Institution for the Scotia Company shall have received, on or before the date
hereof, in immediately available funds, a non-refundable, fully-earned amendment
fee equal to 10 basis point (.10%) of the Scotia Company's Company Purchase
Limit, as set forth on Schedule A to the Purchase Agreement.
(e) Representations and Warranties. As of the date hereof,
both before and after giving effect to this Amendment, all of the
representations and warranties contained in the Purchase Agreement and in each
other Transaction Document
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
4
shall be true and correct in all material respects as though made on the date
hereof (and by its execution hereof, each of Seller and the Servicer shall be
deemed to have represented and warranted such).
(f) No Amortization Event. As of the date hereof, both before
and after giving effect to this Amendment, no Amortization Event or Potential
Amortization Event shall have occurred and be continuing (and by its execution
hereof, each of Seller and the Servicer shall be deemed to have represented and
warranted such).
Section 4. Miscellaneous.
(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, or
acknowledgment of, any amendment, waiver or modification of any other term or
condition of the Purchase Agreement or of any other instrument or agreement
referred to therein or (ii) prejudice any right or remedy which any Purchaser or
the Agent may now have or may have in the future under or in connection with the
Purchase Agreement, as amended hereby, or any other instrument or agreement
referred to therein. Each reference in the Purchase Agreement to "this
Agreement," "herein," "hereof" and words of like import and each reference in
the other Transaction Documents to the "Receivables Purchase Agreement" or to
the "Purchase Agreement" shall mean the Purchase Agreement as amended hereby.
This Amendment shall be construed in connection with and as part of the Purchase
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Purchase 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 Purchase Agreement and shall be construed,
administered and applied in accordance with the terms and provisions thereof.
(c) Costs, Fees and Expenses. In addition to the fees payable
pursuant to Section 3(d), Seller agrees to reimburse the Agent and the
Purchasers upon demand for all costs, fees and expenses (including the
reasonable fees and expenses of counsels to the Agent and the Purchasers)
incurred in connection with the preparation, execution and delivery of this
Amendment.
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
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(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
that 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) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
(g) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT, ANY DOCUMENT EXECUTED BY ANY
SELLER PARTY PURSUANT TO THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER.
(h) Amendment to Receivables Sale Agreement. Each of the Agent
and each Purchaser, by its execution hereof, consents to Seller's execution and
delivery of the RSA Amendment. Each of the Agent and each Purchaser deems this
paragraph to constitute its prior written consent to Seller's execution of the
RSA Amendment and deems this paragraph to satisfy the requirements of Section
7.1(i)(N) of the Purchase Agreement.
(Signature Pages Follow)
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first written above.
AVNET RECEIVABLES CORPORATION, as Seller
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President and Treasurer
AVNET, INC., as Servicer
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
PREFERRED RECEIVABLES FUNDING CORPORATION,
as a Company
By:
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Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By:
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Name:
Title:
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first written above.
AVNET RECEIVABLES CORPORATION, as Seller
By:
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Name:
Title:
AVNET, INC., as Servicer
By:
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Name:
Title:
PREFERRED RECEIVABLES FUNDING CORPORATION,
as a Company
By: /s/ Xxxxxx Xxxxxx
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Authorized Signer
BANK ONE, NA (MAIN OFFICE CHICAGO), as a
Financial Institution and as Agent
By: /s/ Xxxxxx Xxxxxx
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Name: XXXXXX XXXXXX
Title: Director, Capital Markets
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
LIBERTY STREET FUNDING CORP., as a Company
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
THE BANK OF NOVA SCOTIA, as a Financial
Institution
By:
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Name:
Title:
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
LIBERTY STREET FUNDING CORP., as a Company
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA, as a Financial
Institution
By: /s/ J. Xxxx Xxxxxxx
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Name: J. XXXX XXXXXXX
Title: MANAGING DIRECTOR
AMENDMENT NO. 2 TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
