Exhibit 10.E
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
This Amendment No. 4 to Receivables Sale Agreement (this "Amendment") is
entered into as of December 12, 2002, between Avnet, Inc., a New York
corporation ("Originator"), and Avnet Receivables Corporation, a Delaware
corporation ("Buyer").
RECITALS
Originator and Buyer entered into that certain Receivables Sale Agreement,
dated as of June 28, 2001, and amended such Receivables Sale Agreement pursuant
to Amendment No. 1 thereto, dated as of February 6, 2002, and further amended
such Receivables Sale Agreement pursuant to Amendment No. 2 thereto, dated as of
June 26, 2002, and further amended such Receivables Sale Agreement pursuant to
Amendment No. 3 thereto, dated as of November 25, 2002 (such agreement, as so
amended, the "Sale Agreement").
Avnet Receivables Corporation, as Seller, Avnet, Inc., as Servicer, the
Financial Institutions party thereto, the Companies party thereto and Bank One,
NA (Main Office Chicago), as agent, are entering into Amendment No. 3 to Amended
and Restated Receivables Purchase Agreement, dated as of the date hereof (the
"RPA Amendment").
Each of the parties hereto now desires to amend the Sale Agreement,
subject to the terms and conditions hereof, to, among other things, conform the
Sale Agreement with the amendments contemplated by the RPA Amendment, as more
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:
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
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 Sale Agreement.
Section 2. Amendments. Subject to the terms and conditions set forth
herein, the Sale Agreement is hereby amended as follows:
(a) Section 2.1(o) of the Sale Agreement is hereby amended by adding
the following phrase to the end of the first sentence in such section, "(other
than a Permitted Adverse Claim)".
(b) Section 5.1(f) of the Sale Agreement is hereby amended and
restated, in its entirety, to read as follows:
(f) (i) The senior unsecured long-term debt rating of Avnet shall be
withdrawn or shall be BB or lower, as determined by Standard & Poor's
Ratings Services, or (ii) the senior unsecured long-term debt rating of
Avnet shall be withdrawn or shall be Ba2 or lower, as determined by
Xxxxx'x Investors Service, Inc.
Section 3. Conditions to Effectiveness of Amendment. This Amendment
shall become effective as of the date hereof, upon the satisfaction of the
conditions precedent that:
(a) Amendment. The Buyer and 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) RPA Amendment. All conditions precedent contained in Section 3
of the RPA Amendment shall have been satisfied and the RPA Amendment shall be
in full force and effect.
(c) 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 Sale Agreement and in each other Transaction
Document shall be true and correct as though made on and as of the date hereof
(and by its execution hereof, each of Buyer and Originator shall be deemed to
have represented and warranted such).
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
2
(d) No Termination Event or Potential Termination Event. As of the
date hereof, both before and after giving effect to this Amendment, no
Termination Event or Potential Termination Event shall have occurred and be
continuing (and by its execution hereof, Buyer and Originator 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 (i) to be a consent to any
amendment, waiver or modification of any other term or condition of the Sale
Agreement or of any other instrument or agreement referred to therein or (ii) to
prejudice any right or remedy which Buyer (or any of its assigns) may now have
or may have in the future under or in connection with the Sale Agreement, as
amended hereby, or any other instrument or agreement referred to therein. Each
reference in the Sale Agreement to "this Agreement," "herein," "hereof" and
words of like import and each reference in the other Transaction Documents to
the Sale Agreement, to the "Receivables Sale Agreement" or to the "Sale
Agreement" shall mean the Sale Agreement as amended hereby. This Amendment shall
be construed in connection with and as part of the Sale Agreement and all terms,
conditions, representations, warranties, covenants and agreements set forth in
the Sale 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 Sale Agreement and shall be construed,
administered and applied in accordance with the terms and provisions thereof.
(c) Costs, Fees and Expenses. Originator agrees to reimburse Buyer
and its assigns upon demand for all costs, fees and expenses in connection with
the preparation, execution and delivery of this Amendment (including the
reasonable fees and expenses of counsels to Buyer and its assigns).
(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 which is
held to be inoperative, unenforceable or invalid in any jurisdiction shall, as
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
3
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.
(Signature Page Follows)
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
4
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, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
AVNET RECEIVABLES CORPORATION
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
AMENDMENT NO. 4 TO
RECEIVABLES SALE AGREEMENT
