EXHIBIT 10.5
FIRST AMENDMENT TO PURCHASE AND SALE
AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of December
30, 1996 (this "Amendment"), is entered into among the Originators named in the
Purchase and Sale Agreement, dated as of December 3, 1993 (the "Agreement") (the
"Initial Originators"), AMPHENOL FUNDING CORP., a Delaware corporation ("AFC"),
THE SINE COMPANIES, INC., a Michigan corporation (the "New Originator" and, with
the Initial Originators, each an "Originator"), and AMPHENOL CORPORATION, a
Delaware corporation ("Amphenol").
RECITALS
1. The Initial Originators, AFC and Amphenol are parties to the Agreement;
and
2. The parties hereto desire to amend the Agreement in order to add the New
Originator as an Originator and a sub-servicer.
NOW THEREFORE. for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without
definition and that are defined in the Agreement and in Appendix A thereto shall
have the same meanings herein as in the Agreement.
2. New Originator. (a)(i) The New Originator is hereby added as an
Originator, and the definition of "Originators" in Appendix A to the Agreement
is hereby amended and restated in its entirety as follows:
"Originators" means Amphenol, Amphenol Interconnect Products
Corporation, a Delaware corporation, ▇▇▇▇ National Inc., a Delaware
corporation, Times Fiber Communications, Inc., a Delaware corporation, and
The Sine Companies, Inc., a Michigan corporation, together with their
successors as permitted under the Purchase and Sale Agreement.
(ii) Each of Sections 1.1(a), (b) and (e), Sections 1.2(a)(i) and (ii)
and the definition of "AUB" contained in Section 2.1 of the Agreement shall
read "December 27, 1996" instead of "December 6, 1993" with respect to the
New Originator only, and
(iii) the definition of "Initial Closing Date" contained in Appendix A
to the Agreement is hereby amended and restated in its entirety as follows:
"Initial Closing Date," with respect to each Originator, means
the date on which the first purchases under the Purchase and Sale
Agreement shall occur as to such Originator.
(b) For purposes of calculating the Cost of Funds Discount and the
Servicer's Fee Discount (per Sections 2.2(a) and (b), respectively, of the
Agreement) as of the Initial Closing Date for the New Originator, clause (i) of
the definitions of "COF" and "SF," respectively, shall be disregarded.
(c) Section 2.2(e)(A) of the Agreement shall read "November 30, 1996"
instead of "October 31, 1993" with respect to the New Originator only.
(d) Except as otherwise set forth herein, the New Originator hereby agrees
to be subject to the provisions of the Transaction Documents as if it originally
had been an Originator thereunder.
(e) Exhibit G to the Agreement is hereby amended and restated in its
entirety by Exhibit G attached hereto.
(f) Exhibit H to the Agreement is hereby amended and restated in its
entirety by Exhibit H attached hereto.
(g) Section 9(c) of each AFC Note is hereby amended such that the reference
to "Section 3.03(d)" therein is hereby replaced by "Section 3.03(c)."
(h) Appendix A to the Agreement is hereby amended by: (i) deleting clause
(a) of the definition of "Net Portfolio Balance" and substituting therefor the
following new clause (a):
(a)(i) 8% of the Purchase Limit for TCI Communications so long as it
is rated at least "Baa3" by ▇▇▇▇▇'▇ and "BBB-" by S&P, and (ii) if not so
rated, 6% of the Purchase Limit for TCI Communications so long as it is
rated at least "Ba1" by ▇▇▇▇▇'▇ and "BB" by S&P, in either such case so
long as it is not subject to review for downgrade or on "Credit Watch" by
such rating agencies;
3. Representations and Warranties. The New Originator (only as to itself)
hereby represents and warrants to AFC as follows:
(a) Representations and Warranties. (i) The representations and
warranties made by the Initial Originators in the Transaction Documents
(including those contained in Article VI of the Agreement, Including
Section 6.9(a), as to which "September 30, 1996"
page 2
is substituted for "September 30, 1993" therein, but excluding Section
6.15) are true and correct as to the New Originator as of the date hereof
as though made on the date hereof.
(ii) The New Originator does not use any trade name other than
its actual corporate name and the trade names set forth in Exhibit H.
From and after the date that fell five (5) years before the date
hereof, the New Originator has not been known by any legal name other
than its corporate name and/or the trade names set forth in Exhibit H.
From and after December 31, 1992, the New Originator has not been the
subject of any merger or other corporate reorganization.
(b) Enforceability. The execution and delivery by it of this
Amendment, and the performance of its obligations under the Transaction
Documents (including this Amendment and the Agreement, as amended hereby),
are within its corporate powers and have been duly authorized by all
necessary corporate action on its part. This Amendment and the Agreement,
as amended hereby, are its valid and legally binding obligations,
enforceable in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(c) No Default. Both before and immediately after giving effect to
this Amendment and the transactions contemplated hereby, no Termination
Event, Unmatured Termination Event, Purchase and Sale Termination Event or
Unmatured Purchase and Sale Termination Event exists or shall exist.
4. Effect of Amendment. Except as expressly amended and modified by this
Amendment, all provisions of the Agreement shall remain in full force and
effect. After this Amendment becomes effective, all references in the Agreement
(or in any other Transaction Document) to "this Agreement", "hereof"', "herein"
or words of similar effect referring to the Agreement shall be deemed to be
references to the Agreement as amended by this Amendment. This Amendment shall
not be deemed, expressly or impliedly, to waive, amend or supplement any
provision of the Agreement other than as set forth herein.
5. Effectiveness. This Amendment shall become effective as of the date
hereof upon receipt by the Servicer (on AFC's behalf) of the following:
(a) counterparts of this Amendment (whether by facsimile or otherwise)
executed by each of the parties hereto,
(b) an Originator Assignment Certificate in the form of Exhibit D to
the Agreement, duly completed, executed and delivered by the New
Originator,
page 3
(c) a copy of the resolutions of the Board of Directors of the New
Originator, each Initial Originator, AFC and Amphenol, in each case
approving the Transaction Documents to be delivered by it and the
transactions contemplated hereby and thereby, and in each case certified by
the Secretary or an Assistant Secretary of such Person,
(d) a good standing certificate for each of the New Originator and
Amphenol issued as of a recent date acceptable to the Servicer by the
Secretary of State of the jurisdiction of its incorporation,
(e) a certificate of the Secretary or an Assistant Secretary of: (i)
the New Originator and (ii) unless previously provided, by each other party
hereto, in each case certifying the names and true signatures of the
officers authorized on such Person's behalf to sign the Transaction
Documents to be delivered by it (on which certificates the Servicer and AFC
may conclusively rely until such time as the Servicer shall receive from
any such Person a revised certificate meeting the requirements of this
paragraph),
(f) the certificate or articles of incorporation or other
organizational document of the New Originator, duly certified by the
Secretary of State of the jurisdiction of its incorporation as of a recent
date acceptable to the Servicer, together with a copy of the by-laws of the
New Originator, each duly certified by the Secretary or an Assistant
Secretary of the New Originator,
(g) originals of the proper financing statements (Form UCC-1) that
have been duly executed and name the New Originator as the assignor and AFC
as the assignee (and the Purchaser or the Collateral Trustee as assignee of
AFC) of the Receivables generated by the New Originator as may be necessary
or, in the Servicer's or the Agent's opinion, desirable under the UCC of
all appropriate jurisdictions to perfect AFC's ownership interest in all
Receivables and such other rights, accounts, instruments and moneys
(including, without limitation, Related Security) in which an ownership or
Security interest may be assigned to it hereunder,
(h) a written search report from a Person satisfactory to the Servicer
listing all effective: (i) financing statements that name the New
Originator as debtor or assignor and that are filed in the jurisdictions in
which filings were made pursuant to the foregoing paragraph, together with
copies of such financing statements (none of which, except for those
described in the foregoing paragraph, shall cover any Receivable or any
right related to any Receivable that is of the type described in Section
1.1 of the Agreement which is to be sold to AFC hereunder), and (ii) tax
and judgment lien search reports from a Person satisfactory to the Servicer
showing no evidence of such liens filed against the New Originator,
(i) favorable opinions from: (i) Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
special counsel to the New Originator, AFC, the Initial Originators and
Amphenol, and (ii)
page 4
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the New Originator, AFC, the Initial
Originators and Amphenol, in each case in form and substance satisfactory
to the Servicer and the Agent,
(j) an AFC Note in favor of the New Originator, duly executed by AFC,
(k) an Originator Note in favor of AFC from the New Originator, duly
executed by the New Originator,
(l) a certificate from an officer of the New Originator to the effect
that the Servicer and the New Originator have placed on the most recent,
and have taken all steps reasonably necessary to ensure that there shall be
placed on each subsequent, data processing report that it generates that
are of the type that any proposed purchaser or lender would use to evaluate
the Receivables the following legend (or the substantive equivalent
thereof): "THE RECEIVABLES DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL
FUNDING CORP. PURSUANT TO A PURCHASE AND SALE AGREEMENT, DATED AS OF
DECEMBER 3, 1993, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AMONG
AMPHENOL CORPORATION, CERTAIN OTHER ORIGINATORS, AND AMPHENOL FUNDING
CORP.; AND UNDIVIDED, FRACTIONAL OWNERSHIP INTERESTS IN THE RECEIVABLES
DESCRIBED HEREIN HAVE BEEN SOLD TO POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION PURSUANT TO A RECEIVABLES PURCHASE AGREEMENT, DATED AS OF
DECEMBER 3, 1993, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AMONG
AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC. (AS SUCCESSOR TO
BANK OF MONTREAL), AS AGENT.", and
(m) confirmation that: (i) all the Obligors of the New Originator have
been instructed to deposit all Collections of Portfolio Receivables
directly to a post office box related to the relevant Lock-box Account with
a Lock-box Bank or (ii) if not so instructed, the New Originator will
transfer any Collections that it receives to the relevant Lock-box Account
pursuant to Section 8.2(a) of the Agreement.
6. Covenants. Within 60 days after the date hereof, the New Originator
shall deliver to the Servicer (on behalf of AFC) a certificate from an
authorized officer to the effect that: (a) the name of the renter of all post
office boxes into which Collections may from time to time be mailed have been
changed to the name of AFC (unless such post office boxes are in the name of the
relevant Lock-box Banks) and (b) all relevant postmasters have been notified
that each of the Servicer, the New Originator (as a Servicer Person) and the
Agent are authorized to collect mail delivered to such post office boxes (unless
such post office boxes are in the name of the relevant Lock-box Banks).
page 5
7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
any otherwise applicable principles of conflicts of law), except to the extent
that the perfection (and the effect of perfection or nonperfection) of AFC's
interests in the Receivables is governed by the laws of a jurisdiction other
than the State of New York.
9. Section Headings. The various headings of this Amendment are included
for convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement or any provision hereof or thereof.
page 6
IN WITNESS WHEREOF, the parties have executed this Amendment of the date
first written above.
AMPHENOL FUNDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: E.V.P. & C.F.O.
AMPHENOL CORPORATION,
individually and as the initial Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: E.V.P. & C.F.O.
AMPHENOL INTERCONNECT PRODUCTS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: E.V.P. & C.F.O.
▇▇▇▇ NATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: E.V.P. & C.F.O.
TIMES FIBER COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: E.V.P. & C.F.O.
page 7
THE SINE COMPANIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: 203/265-8628
ACKNOWLEDGED AND CONSENTED TO
as of this 30th day of December, 1996 by:
POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, as the Purchaser
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent
By:
---------------------------------------
Name: _______________________________
Title: _______________________________
By:
---------------------------------------
Name: _______________________________
Title: _______________________________
page 8
THE SINE COMPANIES INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address: _________________________________
_________________________________
Attention: _________________________________
Facsimile: _________________________________
ACKNOWLEDGED AND CONSENTED TO
as of this 30th day of December, 1996 by:
POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, as the Purchaser
By: /s/ ▇▇▇▇▇▇▇ [Illegible]
----------------------------------------
Name: ▇▇▇▇▇▇▇ [Illegible]
Title: VICE PRESIDENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent
By:
---------------------------------------
Name: _______________________________
Title: _______________________________
By:
---------------------------------------
Name: _______________________________
Title: _______________________________
page 8
THE SINE COMPANIES INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address: _________________________________
_________________________________
Attention: _________________________________
Facsimile: _________________________________
ACKNOWLEDGED AND CONSENTED TO
as of this 30th day of December, 1996 by:
POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION, as the Purchaser
By:
----------------------------------------
Name: ___________________________________
Title: ___________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: Managing Director
Exhibit G
LOCATION OF RECORDS
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Route ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
page 9
Exhibit H
TRADE NAMES
Legal Entity Trade Names
Amphenol Corporation Amphenol Corporation
Amphenol RF
Amphenol Products
Bendix Connector Operations
Spectra-Strip
Amphenol
Amphenol Aerospace Operations
Amphenol Communication & Network Products
AAO
Amphenol FOP
Amphenol Fiber Optic Products
Amphenol Interconnect Products Amphenol Interconnect Products Corporation
Corporation Amphenol Products
Amphenol
Amphenol Endicott
Endicott
AIPC
▇▇▇▇-National, Inc. ▇▇▇▇-National, Inc.
▇▇▇▇
Times Fiber Communications, Times Fiber Communications, Inc.
Inc. Times Fiber Communications
Times
Times Fiber
TFC
The Sine Companies, Inc. The Sine Companies. Inc.
Sine Connector Corporation
Sine
Aaxico
Tri-Mate
Sine Products Company
Sine Eiectro-Mold, Inc.
Mil-Specialists, Inc.
page 10
