Exhibit 10K
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
This Amendment No. 1 to Receivables Sale Agreement (this
"Amendment") is entered into as of February 6, 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 (the "Sale Agreement").
Avnet Receivables Corporation, as Seller, Avnet, Inc., as Servicer,
the Financial Institutions listed as a party thereto, the Companies listed as a
party thereto and Bank One, NA (Main Office Chicago), as agent, are entering
into the Amended and Restated Receivables Purchase Agreement (the "Amended and
Restated RPA"), dated as of February 6, 2002.
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 Amended and Restated RPA,
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:
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 (as
amended hereby).
Section 2. Amendment to Preliminary Statements. Subject to the terms
and conditions set forth herein, the third paragraph of the Preliminary
Statements in the Sale Agreement is hereby deleted in its entirety and replaced
with the following:
Following the purchase of Receivables from Originator, Buyer will
sell undivided interests therein and in the associated Related Security
and Collections pursuant to that certain Amended and Restated Receivables
Purchase Agreement dated as of February 6, 2002 (as the same may from
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
time to time hereafter be amended, supplemented, restated or otherwise
modified, the "Purchase Agreement") among Buyer, Originator, as Servicer,
the commercial paper conduits from time to time party thereto as
"Companies" (the "Companies"), the financial institutions from time to
time party thereto as "Financial Institutions" and Bank One, NA (Main
Office Chicago) or any successor agent appointed pursuant to the terms of
the Purchase Agreement, as agent for such Companies and such Financial
Institutions (in such capacity, the "Agent").
Section 3. Amendment to Article I. Subject to the terms and
conditions set forth herein, Section 1.1(b) of the Sale Agreement is hereby
amended by deleting the last sentence of such section in its entirety and
replacing such sentence with the following:
Upon the request of Buyer or the Agent (as Buyer's assignee),
Originator will authorize and file such financing or continuation
statements, or amendments thereto or assignments thereof, and execute and
file such other instruments, documents or notices, as may be necessary or
appropriate to perfect and maintain the perfection of Buyer's ownership
interest in the Receivables and the Related Security and Collections with
respect thereto, or as Buyer or the Agent (as Buyer's assignee) may
reasonably request.
Section 4. Amendments to Article II.
(a) Subject to the terms and conditions set forth herein,
Section 2.1(k) of the Sale Agreement is hereby amended by deleting such section
in its entirety and replacing such section with the following:
(k) Places of Business, Jurisdiction of Organization and
Locations of Records. The principal places of business, jurisdiction of
organization and chief executive office of Originator and the offices
where it keeps all of its Records are located at the address(es) listed on
Exhibit II or such other locations of which Buyer has been notified in
accordance with Section 4.2(a) in jurisdictions where all action required
by Section 4.2(a) and/or Section 7.3(a) has been taken and completed.
Originator's organizational number assigned to it by its jurisdiction of
organization and Originator's Federal Employer Identification Number are
correctly set forth on Exhibit II. Originator has not changed the location
of its principal place of business and chief executive office or its
corporate structure within the four months prior to June 28, 2001.
Originator has not changed its jurisdiction of organization. Originator is
a New York corpora-
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
2
tion and is a "registered organization" (within the meaning of Section
9-102 of the UCC in effect in the State of New York).
(b) Subject to the terms and conditions set forth herein,
Section 2.1(l) of the Sale Agreement is hereby amended by deleting such section
in its entirety and replacing such section with the following:
(l) Collections. The conditions and requirements set
forth in Section 4.1(j) have at all times been satisfied and duly
performed. The names and addresses of all Collection Banks, together with
the account numbers of the Collection Accounts of Originator at each
Collection Bank and the post office box number of each Lock-Box, are
listed on Exhibit III. Originator has not granted any Person, other than
Buyer (and its assigns) dominion and control or "control" (within the
meaning of Section 9-104 of the UCC of all applicable jurisdictions) of
any Lock-Box or Collection Account, or the right to take dominion and
control or "control" (within the meaning of Section 9-104 of the UCC of
all applicable jurisdictions) of any such Lock-Box or Collection Account
at a future time or upon the occurrence of a future event. Originator has
taken all steps necessary to ensure that the Agent has "control" (within
the meaning of Section 9-104 of the UCC of all applicable jurisdictions)
over all of its Collection Accounts and Lock-Boxes.
Section 5. Amendments to Article IV.
(a) Subject to the terms and conditions set forth herein,
Section 4.1(a)(vi) of the Sale Agreement is hereby amended by replacing the
phrase "Buyer, the Agent or Company" in such section with the phrase "Buyer or
the Agent".
(b) Subject to the terms and conditions set forth herein,
Section 4.1(b)(v) of the Sale Agreement is hereby amended by replacing the
phrase "Standard and Poor's Ratings Group" in such section with the phrase
"Standard and Poor's Ratings Services".
(c) Subject to the terms and conditions set forth herein,
Section 4.1(i) of the Sale Agreement is hereby amended:
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RECEIVABLES SALE AGREEMENT
3
(i) by inserting the phrase "or establish 'control'
(within the meaning of Section 9-104 of the UCC of all applicable
jurisdictions)" immediately following the phrase "take dominion and
control" in such section; and
(ii) by adding the sentence "With respect to any
Lock-Box or Collection Account, Originator shall take all steps necessary
to ensure that the Agent has 'control' (within the meaning of Section
9-104 of the UCC of all applicable jurisdictions) over such Lock-Box or
Collection Account." to the end of such section.
(d) Subject to the terms and conditions set forth herein, the
following Section 4.1(l) is added to the Sale Agreement:
(l) Segregation of Other Servicer Collected Funds. Upon the request
of the Agent or Scotia and subject to Originator's ability to do so,
Originator shall, within six days of the date any Other Servicer Collected
Funds are deposited, credited or funded to any Collection Account, (i)
specifically identify all such Other Servicer Collected Funds and (ii)
cause all Other Servicer Collected Funds to be transferred from the
applicable Collection Account.
(e) Subject to the terms and conditions set forth herein, the
following Section 4.1(m) is added to the Sale Agreement:
(m) Elimination of Other Servicer Collected Funds. Within 60 days of
the date hereof, Originator shall eliminate all Other Servicer Collected
Funds from, and prevent all Other Servicer Collected Funds from being
deposited, credited or otherwise funded to, any and all Collection
Accounts.
(f) Subject to the terms and conditions set forth herein,
Section 4.2(a) of the Sale Agreement is hereby amended by deleting such section
in its entirety and replacing such section with the following:
(a) Name Change, Jurisdiction of Organization, Corporate
Structure, Offices and Records. Originator will not change its name,
identity, jurisdiction of organization or corporate structure (within the
meaning of Sections 9-503 and/or 9-507 of the UCC of all applicable
jurisdictions) or relocate its chief executive office, principal place of
business or any office where Records are kept unless it shall have: (i)
given Buyer (or its assigns) at least forty-five (45) days' prior written
notice thereof and (ii) delivered to Buyer (or its assigns) all financing
statements, instruments and other documents requested by Buyer (or its
assigns) in connection with such change or relocation.
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RECEIVABLES SALE AGREEMENT
4
Section 6. Amendments to Article VI. Subject to the terms and
conditions set forth herein, Section 6.1 of the Sale Agreement is hereby
amended:
(a) by adding the phrase ", or the use of the proceeds of any
purchase hereunder," immediately after the phrase "arising out of or as a result
of this Agreement";
(b) by adding the phrase "funding or ownership," immediately
after the phrase "or the acquisition,"; and
(c) by adding the phrase "or any Receivable or any Contract or
any Related Security," immediately after the phrase "by Buyer of an interest in
the Receivables,".
Section 7. Amendments to Article VII.
(a) Subject to the terms and conditions set forth herein,
Section 7.3(a) of the Sale Agreement is hereby amended by adding the sentence
"Without limiting the foregoing, Originator will, upon the request of Buyer (or
its assigns), file such financing or continuation statements, or amendments
thereto or assignments thereof, and execute and file such other instruments and
documents, that may be necessary or desirable, or that Buyer (or its assigns)
may reasonably request, to perfect, protect or evidence the interest of Buyer
hereunder and the Purchaser Interests" immediately after the first sentence of
such section.
(b) Subject to the terms and conditions set forth herein,
Section 7.3(b) of the Sale Agreement is hereby amended:
(i) by replacing the phrase "to execute on behalf of
Originator as debtor and to file financing statements" in such section
with the phrase "to authorize on behalf of Originator as debtor and to
file financing or continuation statements (and amendments thereto and
assignments thereof)"; and
(ii) by adding the sentence "The authorization by
Originator set forth in the second sentence of this Section 7.3(b) is
intended to meet all requirements for authorization by a debtor under
Article 9 of any applicable enactment of
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
5
the UCC, including, without limitation, Section 9-509 thereof." at the end
of such section.
(c) Subject to the terms and conditions set forth herein,
Section 7.4(a) of the Sale Agreement is hereby amended by replacing the phrase
"and Company" in such section with the phrase "and each Purchaser".
(d) Subject to the terms and conditions set forth herein,
Section 7.4(b) of the Sale Agreement is hereby amended:
(i) by replacing the phrase "or Company" in such section
with the phrase "or Companies";
(ii) by replacing the phrase "by the Agent to any rating
agency, Commercial Paper dealer or provider of a surety, guaranty or
credit or liquidity enhancement to Company" in such section with the
phrase "by the Agent or any Purchaser to any rating agency, Funding
Source, Commercial Paper dealer or provider of a surety, guaranty or
credit or liquidity enhancement to any Company"; and
(iii) by adding the phrase "or Scotia" immediately after
the phrase "financial assets for which Bank One".
(e) Subject to the terms and conditions set forth herein,
Section 7.4(c) of the Sale Agreement is hereby amended by replacing the phrase
"liquidity enhancement to Company" in such section with the phrase "liquidity
enhancement to any Company".
(f) Subject to the terms and conditions set forth herein,
Section 7.5(a) of the Sale Agreement is hereby amended:
(i) by replacing each occurrence of the phrase "Company"
in such section with the phrase "any Company"; and
(ii) by replacing the occurrence of the phrase
"Financial Institution" with the phrase "Funding Source".
(g) Subject to the terms and conditions set forth herein,
Section 7.6 of the Sale Agreement is hereby amended by replacing each occurrence
of the phrase "Company" in such section with the phrase "any Company".
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
6
Section 8. Amendments to Exhibit I.
(a) Subject to the terms and conditions set forth herein,
Exhibit I to the Sale Agreement is hereby amended by deleting the definition of
"Receivable" in its entirety and replacing such definition with the following:
"Receivable" means all indebtedness and other obligations owed to
Originator (at the time it arises, and before giving effect to any
transfer or conveyance under the Agreement) or Buyer (after giving effect
to the transfers under the Agreement) or in which Originator or Buyer has
a security interest or other interest, including, without limitation, any
indebtedness, obligation or interest constituting an account, chattel
paper, instrument or general intangible, arising in connection with the
sale or lease of goods or the rendering of services by Originator and
further includes, without limitation, the obligation to pay any Finance
Charges with respect thereto; provided, that 'Receivable' shall not
include any Excluded Receivable. Indebtedness and other rights and
obligations arising from any one transaction, including, without
limitation, indebtedness and other rights and obligations represented by
an individual invoice, shall constitute a Receivable separate from a
Receivable consisting of the indebtedness and other rights and obligations
arising from any other transaction; provided, that any indebtedness,
rights or obligations referred to in the immediately preceding sentence
shall be a Receivable regardless of whether the account debtor or
Originator treats such indebtedness, rights or obligations as a separate
payment obligation.
(b) Subject to the terms and conditions set forth herein,
Exhibit I to the Sale Agreement is hereby amended by replacing the phrase
"letters of credit, insurance" in clause (iii) of the defined term "Related
Security" with the phrase "letters of credit, insurance, 'supporting
obligations' (within the meaning of Section 9-102(a) of the UCC of all
applicable jurisdictions)".
(c) Subject to the terms and conditions set forth herein,
Exhibit I to the Sale Agreement is hereby amended by adding the following
definition in proper alphabetical order:
"RSA Amendment" means that certain Amendment No. 1 to Receivables
Sale Agreement, dated as of February 6, 2002, between Originator and
Buyer.
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
7
(d) Subject to the terms and conditions set forth herein,
Exhibit I to the Sale Agreement is hereby amended by replacing the phrase "this
Agreement, each Collection Account Agreement" in the defined term "Transaction
Documents" with the phrase "this Agreement, the RSA Amendment, each Collection
Account Agreement".
(e) Subject to the terms and conditions set forth herein,
Exhibit I to the Sale Agreement is hereby amended by deleting the first
occurrence of the sentence "All terms used in Article 9 of the UCC in the State
of New York, and not specifically defined herein, are used herein as defined in
such Article 9." from the last paragraph of such Exhibit I.
Section 9. Amendment to Exhibit II. Subject to the terms and
conditions set forth herein, Exhibit II to the Sale Agreement is hereby amended
by deleting such Exhibit in its entirety and replacing it with the Annex I
attached hereto.
Section 10. Amendment to Exhibit III. Subject to the terms and
conditions set forth herein, Exhibit III to the Sale Agreement is hereby amended
by replacing the phrase "P.O. Xxx 000000 Xxxxxx, Xxxxx 00000-0000" in its
entirety under the heading "Lock-Box" in the row numbered 1. with the phrase
"P.O. Xxx 000000 Xxxxxx, Xxxxx 00000-0000".
Section 11. Amendment to Exhibit IV. Subject to the terms and
conditions set forth herein, Exhibit IV to the Sale Agreement is hereby amended
by deleting such Exhibit in its entirety and replacing it with the Annex II
attached hereto.
Section 12. Conditions to Effectiveness of Amendment. This Amendment
shall become effective as of February 6, 2002, 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.
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
8
(b) Amended and Restated RPA. All conditions precedent
contained in Section 6.1 of the Amended and Restated RPA shall have been
satisfied and the Amended and Restated RPA 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).
(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 13. 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.
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
9
(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 pay all
costs, fees and expenses in connection with the preparation, execution and
delivery of this Amendment (including the reasonable fees and expenses of
counsel 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 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) Confirmation of Sale and Grant of Security Interest.
Originator hereby confirms (i) the sale of Receivables, Related Security and
Collections pursuant to Section 1.1 of the Sale Agreement and (ii) the grants of
security interest pursuant to Section 1.6 of the Sale Agreement to Buyer in all
of Originator's right, title and interest in, to and under all Receivables, all
Collections and Related Security with respect thereto, each Lock-Box and
Collection Account, all other rights and payments relating to the Receivables
and all proceeds of the foregoing (each capitalized term used in this sentence
shall have the respective meanings set forth for such term in, or incorporated
by reference into, the Sale Agreement, as amended hereby).
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
10
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 and Secretary
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
CONSENTED TO BY:
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Financial Institution and as Agent
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
PREFERRED RECEIVABLES FUNDING CORPORATION,
as a Company
By: /s/ Xxxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA,
as a Financial Institution
By: /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: Director
LIBERTY STREET FUNDING CORP.,
as a Company
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: President
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
ANNEX I
EXHIBIT II
Places of Business; Jurisdictions of Organization and Chief Executive Offices;
Locations of Records; Organizational Number(s);
Federal Employer Identification Numbers(s); Other Names
Principal Place of Business: Avnet, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Jurisdictions of Organization: New York
Chief Executive Offices: 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Location(s) of Records: 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
0000 Xxxxx 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Organizational Number: None
Federal Employer
Identification Number: 00-0000000
Other Names: Not applicable
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
ANNEX II
EXHIBIT IV
Form of Compliance Certificate
This Compliance Certificate is furnished pursuant to that certain
Receivables Sale Agreement dated as of June 28, 2001, between Avnet, Inc.
("Originator") and Avnet Receivables Corporation (as the same may be amended,
supplemented, restated or otherwise modified from time to time, the
"Agreement"). Capitalized terms used and not otherwise defined herein are used
with the meanings attributed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of Originator.
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of Originator and its Subsidiaries during the
accounting period covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Termination Event or a Potential Termination Event during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below.
4. Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which Originator has taken, is taking, or
proposes to take with respect to each such condition or event:
5. As of the date hereof, the jurisdiction of organization of
Originator is New York, Originator is a "registered organization" (within the
meaning of Section 9-102 of the UCC in effect in New York), and Originator has
not changed its jurisdiction of organization since June 28, 2001.
The foregoing certifications, together with the computations set
forth in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this day of ,
20__.
__________________________
Name
AMENDMENT NO. 1 TO
RECEIVABLES SALE AGREEMENT
