AMENDMENT NO. 6 TO RECEIVABLES SALE AGREEMENT
Exhibit
10.1
AMENDMENT NO. 6 TO
This Amendment No. 6 to Receivables Sale Agreement (this “Amendment”) is entered into
as of August 3, 2005, 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, and further amended such Receivables
Sale Agreement pursuant to Amendment No. 4 thereto, dated as of December 12, 2002, and further
amended such Receivables Sale Agreement pursuant to Amendment No. 5 thereto, dated as of August 15,
2003 (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 JPMorgan Chase Bank, N.A. (successor by merger to
Bank One, NA (Main Office Chicago)), as agent, are entering into Amendment No. 7 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:
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 deleting the phrase “(other
than a Permitted Adverse Claim)” from the end of the first sentence in such section.
(b) Section 4.1(l) of the Sale Agreement is hereby amended by replacing the phrase “Upon the
request of the Agent or Scotia” in such section with the phrase “Upon the request of the Agent or
any Financial Institution”.
(c) Section 4.2(d) of the Sale Agreement is hereby amended by (i) deleting the following
phrase “; provided that, after the Termination Date, Originator may grant or create a
Permitted Adverse Claim upon any Receivable arising after the Termination Date, together with any
Collections and Related Security with respect to any such Receivable arising after the Termination
Date” from the end of the first sentence in such section and (ii) deleting the following phrase “,
other than a Permitted Adverse Claim; provided that such Permitted Adverse Claim does not
create or suffer to exist any Adverse Claim on or with respect to (i) the proceeds of any inventory
which proceeds constitute Receivables, Related Security or Collections or (ii) any returned or
repossessed inventory or goods the sale, lease or financing of which gave rise to any Receivable”
from the end of the last sentence in such section.
(d) Section 5.1(f) of the Sale Agreement is hereby amended and restated in its entirety to
read as follows:
(f) (i) the “Consolidated Interest Coverage Ratio” (as defined in the Current
Avnet Credit Agreement) as of the end of any period of four fiscal quarters of
Avnet shall be less than 3.00 to 1.00 or (ii) the “Consolidated Leverage Ratio”
(as defined in the Current Avnet Credit Agreement) at any time during any period
set forth below shall be greater than the ratio set forth below opposite such
period:
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Maximum Consolidated | ||||
Period | Leverage Ratio | |||
April 3, 2005 through
July 2, 2005 |
5.00 to 1.00 | |||
July 3, 2005 through
October 1, 2005 |
4.75 to 1.00 | |||
October 2, 2005 through
December 31, 2005 |
4.50 to 1.00 | |||
January 1, 2006 through
July 1, 2006 |
4.25 to 1.00 | |||
July 2, 2006 and thereafter |
4.00 to 1.00 |
(e) Section 7.4(b) of the Sale Agreement is hereby amended by replacing the phrase “Bank One
or Scotia acts as the administrative agent” in such section with the phrase “the Agent or any
Financial Institution acts as the administrative agent”.
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 5 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).
(d) No Termination Event or Potential Termination Event. As of the date
hereof, both before and after giving effect to this Amendment, no
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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. Without limiting Section 6.2 of the Sale Agreement, Originator agrees to reimburse
Buyer and its assigns upon demand for all reasonable and documented out-of-pocket 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
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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 ORIGINATOR PURSUANT TO THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER OR THEREUNDER
(Signature
Page Follows)
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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. |
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By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | Sr. Vice President, Chief Financial Officer and Assistant Secretary | |||
AVNET RECEIVABLES CORPORATION |
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By: | /s/ Xxxxxxx Xxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxx | |||
Title: | President and Treasurer | |||