Exhibit 10.1
AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of May 19, 1997
among
AMPHENOL FUNDING CORP.,
as Seller,
AMPHENOL CORPORATION
individually and as initial Servicer,
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION
as Purchaser,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.,
as Agent.
|| TABLE OF CONTENTS
ARTICLE I
THE COMMITMENT
SECTION 1.01 Commitment.......................................................2
SECTION 1.02 Purchase and Reinvestment Limits.................................2
SECTION 1.03 Making Purchases from Seller.....................................2
SECTION 1.04 Number of Participations.........................................3
SECTION 1.05 Commitment Termination Date......................................3
SECTION 1.06 Voluntary Termination of Commitment or Reduction of
Purchase Limit...................................................3
SECTION 1.07 Limitation of Ownership Interest.................................3
ARTICLE II
PARTICIPATION, PAY-OUT AMOUNT
AND RELATED DEFINITIONS
SECTION 2.01 Participation....................................................4
SECTION 2.02 Pay-Out Amount...................................................4
SECTION 2.03 Investment.......................................................5
SECTION 2.04 Yield Factor and Related Definitions.............................5
SECTION 2.05 Servicer's Fee Factor and Related Definitions....................7
SECTION 2.06 Total Reserves and Related Definitions...........................7
SECTION 2.07 Purchaser's Share................................................8
ARTICLE III
SETTLEMENTS
SECTION 3.01 Establishment and Use of Accounts................................9
SECTION 3.02 Non-Investment Reduction Day Settlement Procedures
for Collections..................................................9
SECTION 3.03 Investment Reduction Settlement Procedures for Collections......10
SECTION 3.04 Special Settlement Procedures; Reduction of Investment, etc.....11
SECTION 3.05 Reporting.......................................................13
SECTION 3.06 Payments and Computations, Etc..................................14
SECTION 3.07 Dividing or Combining Participations............................14
SECTION 3.08 Treatment of Collections and Deemed Collections.................15
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01 Fees............................................................15
Receivables Purchase Agreement - i
SECTION 4.02 Yield Protection................................................15
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.01 Conditions Precedent to Purchase................................17
SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments.........19
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of Seller........................20
SECTION 6.02 Representations and Warranties of Amphenol......................24
ARTICLE VII
COVENANTS OF SELLER AND AMPHENOL
SECTION 7.01 Affirmative Covenants of Seller and Amphenol....................28
SECTION 7.02 Reporting Requirements of Seller................................32
SECTION 7.03 Negative Covenants..............................................34
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01 Designation of Servicer.........................................37
SECTION 8.02 Duties of Servicer and Seller...................................39
SECTION 8.03 Rights of the Agent.............................................40
SECTION 8.04 Further Action Evidencing Purchases.............................42
SECTION 8.05 Application of Collections......................................42
ARTICLE IX
TERMINATION EVENTS
SECTION 9.01 Termination Events..............................................43
SECTION 9.02 Remedies........................................................44
ARTICLE X
THE AGENT
SECTION 10.01 Authorization and Action.......................................45
SECTION 10.02 Agent's Reliance, Etc..........................................45
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ARTICLE XI
ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 11.01 Restrictions on Assignments....................................46
SECTION 11.02 Evidence of Assignment; Endorsement on Certificate.............46
SECTION 11.03 Rights of Assignee.............................................46
SECTION 11.04 Rights of Collateral Trustee...................................46
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnities by Seller and Amphenol.............................47
ARTICLE XIII
SECURITY INTEREST
SECTION 13.01 Grant of Security Interest.....................................49
SECTION 13.02 Further Assurances.............................................49
SECTION 13.03 Remedies.......................................................49
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Amendments, Etc................................................49
SECTION 14.02 Notices, Etc...................................................50
SECTION 14.03 No Waiver; Cumulative Remedies................................50
SECTION 14.04 Binding Effect; Assignability..................................50
SECTION 14.05 GOVERNING LAW..................................................50
SECTION 14.06 Costs, Expenses and Taxes......................................50
SECTION 14.07 No Proceedings.................................................51
SECTION 14.08 No Recourse to Certain Persons.................................51
SECTION 14.09 Confidentiality................................................51
SECTION 14.10 Submission to Jurisdiction.....................................52
SECTION 14.11 Waiver of Jury Trial...........................................52
SECTION 14.12 Integration....................................................53
SECTION 14.13 Captions and Cross References..................................53
SECTION 14.14 Execution in Counterparts......................................53
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Receivables Purchase Agreement - iii
APPENDICES
APPENDIX A Definitions
SCHEDULES
SCHEDULE 6.01(f) Description of Proceedings
SCHEDULE 6.01(m) List of Offices where Records are Kept
SCHEDULE 6.01(n) List of Lock-box Banks
SCHEDULE 6.01(r) Trade Names and Corporate Reorganizations
SCHEDULE 7.01(g) Description of Credit and Collection Policy
SCHEDULE 7.03(d) List of Account Banks
EXHIBITS
EXHIBIT 1.03(a) Notice of Purchase
EXHIBIT 3.04(a) Form of Periodic Report
EXHIBIT 3.04(b) Form of Liquidation Statement
EXHIBIT 5.01(a) Form of Certificate
EXHIBIT 5.01(h)(i) Form of Lock-box Agreement
EXHIBIT 5.01(h)(ii)-1 Form of Collection Account Agreement
EXHIBIT 5.01(h)(ii)-2 Form of Liquidation Account Agreement
EXHIBIT 5.01(i)-1 Form of Opinion of Counsel to Seller, Servicer and the
Originators
EXHIBIT 5.01(i)-2 Form of Opinion of General Counsel of Seller, Servicer
and the Originators
EXHIBIT 11.01 Form of Assignment
Receivables Purchase Agreement - iv
THIS AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
"Agreement"), dated as of May 19, 1997, is among AMPHENOL FUNDING CORP., a
Delaware corporation having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Seller"), AMPHENOL CORPORATION, a Delaware
corporation having its principal office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (in its individual capacity, "Amphenol," and as the
initial Servicer), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, a Delaware
corporation having its principal office at c/▇ ▇▇▇▇▇▇▇▇▇▇▇ Contract Services,
Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Purchaser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECURITIES, INC., a Delaware corporation having its principal office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), as agent for Purchaser
(in such capacity, the "Agent"). Unless otherwise indicated, certain terms that
are capitalized and used throughout this Agreement are defined in Appendix A.
Background
1. Seller has a portfolio of Receivables referred to herein as the
Portfolio in which Seller intends to sell Participations referred to herein as
Participations.
2. The parties hereto (except that ▇▇▇▇▇▇▇ ▇▇▇▇▇ is the successor to
Bank of Montreal) entered into a Receivables Purchase Agreement, dated as of
December 3, 1993 (as amended to the date hereof, the "Original RPA"), pursuant
to which, among other things, the Seller agreed to sell to the Purchaser, and
the Purchaser agreed to purchase from the Seller, Participations in the
Portfolio. Seller has requested Purchaser, and Purchaser has agreed, on the
terms and subject to the conditions contained in this Agreement, to purchase
Participations from Seller from time to time during the term of this Agreement.
3. Seller and Purchaser also desire that, on the terms and subject to
the conditions of this Agreement, certain of the daily Collections in respect of
such Participations be reinvested in the Portfolio through the sale to Purchaser
of additional Participations in the Portfolio, such daily reinvestment of
Collections to be effected by an automatic daily adjustment to Purchaser's
Participations, and to be intended to permit Purchaser to maintain its
Investments fully invested in the Portfolio.
4. Purchaser expects generally to fund its Purchases and Reinvestments
through the issuance of Commercial Paper Notes. Purchaser has entered into a
Liquidity Agreement with the Banks providing for the making of loans by the
Banks secured by Participations in the event Purchaser hereunder is unable to
fund its Purchases or Reinvestments pursuant to this Agreement by the issuance
of Commercial Paper Notes or otherwise prefers to fund such Purchases or
Reinvestments under the Liquidity Agreement rather than by the issuance of
Commercial Paper Notes because the Commercial Paper Rate is unavailable or
otherwise not desirable, or is unable to pay such
Commercial Paper Notes at maturity from the proceeds of Collections from the
Portfolio in which it holds a Participation hereunder. Purchaser has also
entered into the Insurance Agreement with the Surety Bond Provider providing for
the issuance of the surety bond supporting payment of Portfolio Receivables.
5. ▇▇▇▇▇▇▇ ▇▇▇▇▇ has been requested, and is willing, to act as the Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
THE COMMITMENT
SECTION 1.01 Commitment. On the terms and subject to the conditions set
forth in this Agreement:
(a) Purchases. Purchaser shall purchase from Seller
Participations from time to time during the period from the date hereof
to the Commitment Termination Date. Each such purchase and, as the
context may require, the purchase price paid by Purchaser to Seller in
respect thereof, is called a "Purchase".
(b) Reinvestments. Pursuant to Section 3.02(a)(v), during the
period from the date hereof to the Commitment Termination Date,
Purchaser shall permit Servicer to cause certain of the Collections in
respect of each Participation to be applied on behalf of the Purchaser
to the reinvestment in Portfolio Receivables (herein called a
"Reinvestment").
Purchaser's obligation to make Purchases and Reinvestments is herein
called the "Commitment".
SECTION 1.02 Purchase and Reinvestment Limits. Under no circumstances
shall Purchaser make any Purchase or Reinvestment to the extent that, after
giving effect to such Purchase or Reinvestment, as the case may be:
(a) Purchase Limit. The Aggregate Investment would exceed an
amount (the "Purchase Limit") equal to $50,000,000, as such amount may
be reduced pursuant to Section 1.06; or
(b) Pay-Out Amount Limit. The Aggregate Pay-Out Amount would
exceed an amount (the "Pay-Out Amount Limit") equal to 100% of the Net
Portfolio Balance.
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SECTION 1.03 Making Purchases from Seller. (a) Notice of Purchase.
Seller may request a Purchase by delivering a notice substantially in the form
of Exhibit 1.03(a) to the Agent not later than 11:00 a.m. (Chicago time) on the
Business Day preceding the date of such proposed Purchase. Each such notice of a
proposed Purchase shall specify the desired amount and date of such Purchase and
the desired duration of the initial Yield Period for the resulting
Participation. The Agent shall select the duration of such initial, and each
subsequent, Yield Period in its discretion; provided that it shall use
reasonable efforts, taking into account market conditions, to accommodate
Seller's preferences.
(b) Amount of Purchase. The amount of a Purchase shall be equal to the
lesser of (x) the amount proposed by Seller pursuant to Section 1.03(a) and (y)
the maximum amount permitted under Section 1.02.
(c) Funding of Purchase. On the date of each Purchase, Purchaser shall,
upon satisfaction of the applicable conditions set forth in Article V, make
available to the Agent at its office indicated above the amount of its Purchase
(determined pursuant to Section 1.03(b)) in same day funds, and after the
Agent's receipt of such funds, the Agent shall make such funds immediately
available to Seller at such office.
SECTION 1.04 Number of Participations. The number of Participations
hereunder at any one time, after giving effect to any Purchase, Reinvestment,
division or combination, shall not exceed seven (7).
SECTION 1.05 Commitment Termination Date. (a) The "Commitment
Termination Date" shall be the earlier of (i) May 19, 2004 (herein, as such date
may be extended, called the "Scheduled Commitment Termination Date"), and (ii)
the date of termination of the Commitment pursuant to Section 1.06 or Section
9.02.
(b) The then Scheduled Commitment Termination Date may be extended in
the sole discretion of Purchaser and the Agent from time to time for an
additional one year period by written request given by Seller to the Agent not
more than ninety nor less than thirty days before the then Scheduled Commitment
Termination Date, and written acceptance given by the Agent to Seller not later
than such day.
SECTION 1.06 Voluntary Termination of Commitment or Reduction of
Purchase Limit. Seller may, upon at least five Business Days' notice to the
Agent, terminate the Commitment in whole or reduce in part the unused portion of
the Purchase Limit; provided, however, that (a) each partial reduction shall be
in an amount equal to $5,000,000 or an integral multiple thereof, and (b) after
giving effect to such partial reduction, the remaining Purchase Limit will not
be less than $25,000,000.
Receivables Purchase Agreement - 3
SECTION 1.07 Limitation of Ownership Interest. Nothing in this Agreement
shall be interpreted as providing Purchaser with an ownership interest in any
receivables that are not Portfolio Receivables.
ARTICLE II
PARTICIPATION, PAY-OUT AMOUNT
AND RELATED DEFINITIONS
SECTION 2.01 Participation.
(a) Definition and Computation of Participation. (i) For purposes of
this Agreement, "Participation" means, as the context may require, an undivided
ownership interest, stated as a percentage determined from time to time as
provided in clause (ii) below, in (A) all then outstanding Portfolio
Receivables, (B) all Related Security with respect to such Portfolio
Receivables, and (C) all Collections with respect to, and other proceeds of,
such Portfolio Receivables and Related Security.
(ii) The ownership interest in clause (i) above at any time shall
be computed as follows:
P = PA/NPB
where:
P = the Participation at any time;
PA = the Pay-Out Amount of such Participation at such
time as determined pursuant to Section 2.02; and
NPB = the Net Portfolio Balance.
(b) Frequency of Computation of Participation. Each Participation shall
be computed initially as of the opening of business of Servicer on the date of
Purchase of such Participation and shall be recomputed upon receipt of each
Periodic Report. In addition, until such Participation shall be reduced to zero,
such Participation shall be deemed to be automatically recomputed as of the
close of business of Servicer on each day, and, as so recomputed, shall
constitute the percentage ownership interest in the Portfolio Receivables, the
Related Security and the Collections and other proceeds with respect thereto
held by Purchaser on such day. Such Participation shall become zero at such time
as Purchaser shall have received the Earned Yield for such Participation, shall
have recovered the Investment in such Participation and shall have received all
other amounts payable to Purchaser
Receivables Purchase Agreement - 4
pursuant to this Agreement in respect of such Participation, and Servicer shall
have received the accrued Servicer's Fee for such Participation. Such
Participation shall remain constant from the time as of which any such
computation or recomputation is made until the time as of which the next such
recomputation, if any, shall be made.
SECTION 2.02 Pay-Out Amount. "Pay-Out Amount" of a Participation at any
times means an amount determined as follows:
PA = I + YF + SFF + TR
where:
PA = the Pay-Out Amount of a Participation at any time;
I = the Investment in such Participation, as determined
pursuant to Section 2.03;
YF = the Yield Factor of such Participation at such
time, as determined pursuant to Section 2.04;
SFF = the Servicer's Fee Factor of such Participation,
as determined pursuant to Section 2.05; and
TR = the Total Reserves of such Participation, as
determined pursuant to Section 2.06.
SECTION 2.03 Investment. "Investment" in a Participation means an amount
equal to: (i) the aggregate of the amounts theretofore paid to Seller for such
Participation: (A) by Purchase pursuant to Sections 1.01(a) and 1.03 and (B) by
Reinvestments pursuant to Sections 1.01(b) and 3.02(a)(v) less (ii) the
aggregate amount of Collections received and actually distributed to the
Purchaser on account of such Investment pursuant to Sections 3.02 and 3.03.
SECTION 2.04 Yield Factor and Related Definitions.
(a) Yield Factor. "Yield Factor" means, for a related Participation at
any time, an amount determined as follows:
YF = EY + UYR
where:
YF = the Yield Factor of such Participation at such time;
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EY = the Earned Yield of such Participation as
determined pursuant to Section 2.04(b); and
UYR = the Unearned Yield Reserve of such Participation
as determined pursuant to Section 2.04(d).
(b) Earned Yield. "Earned Yield" means, for any Participation (or
portion thereof) for each completed day in a related Yield Period during which
Purchaser owns such Participation, an amount equal to the sum of (a) the product
of (i) the Investment in such Participation on such day, (ii) the Purchaser Rate
per annum on such day and (iii) without duplicating the impact of the per annum
nature of the Purchaser Rate, 1/360, plus (b) the Negative Spread Fee for such
day (if any); provided, however, that if, pursuant to the definition of
"Purchaser Rate", different Purchaser Rates would apply to different portions of
such Participation, then Earned Yield shall be calculated separately with
respect to each such portion, and the Earned Yield for such Participation shall
be the sum of the Earned Yields so calculated for such portions.
(c) The Purchaser Rate. The "Purchaser Rate" for any Yield Period for
any related Participation (or portion thereof) means:
(i) in the case of a Participation (or portion thereof) funded by
Commercial Paper Notes, the Commercial Paper Rate for such Yield Period;
(ii) in the case of a Participation (or portion thereof) funded
pursuant to the Liquidity Agreement, the Bank Rate for such Yield
Period; provided, however, that the Bank Rate for such Yield Period will
be based on the Reference Rate rather than the IBOR Rate (Reserve
Adjusted) unless the Agent receives notice from Seller not later than
10:00 a.m. (Chicago time) two IBOR Business Days prior to the first day
of such Yield Period; and
(iii) with respect to any day on which a Termination Event shall
have occurred and shall be continuing, notwithstanding clauses (i) and
(ii) of this definition, the "Purchaser Rate" shall be a rate per annum
equal to the Reference Rate in effect on such day plus 2% per annum.
(d) Unearned Yield Reserve. "Unearned Yield Reserve" means, with respect
to any Participation at any time, an amount equal to the product of (A) the
related Investment in such Participation at such time, (B) the sum of (x) the
Bank Rate for such Participation (for a Yield Period deemed to commence at such
time for a period of one month) plus (y) the Yield Protection Margin deemed to
be in effect at such time, (C) without duplicating the impact of the per annum
nature of the rate described in clause (B), 1/360 and (D) the Adjusted Average
Term of the Portfolio.
(i) Yield Protection Margin. "Yield Protection Margin" means,
during any Yield Period, a rate per annum equal to 0.25 times the IBOR
Rate (Reserve Adjusted).
Receivables Purchase Agreement - 6
(ii) Adjusted Average Term. "Adjusted Average Term" means, on
any day, the product of 1.5 and the Average Term for such day.
(iii) Average Term. "Average Term" means, on any day, that period
(expressed in days) equal to the weighted average number of days (based
on aging categories) that the Portfolio Receivables are outstanding
until paid in full as shall be calculated by Servicer as set forth in
the most recent Periodic Report in accordance with the provisions
thereof; provided, however, that if the Agent shall disagree with any
such calculation, the Agent may recalculate the Average Term for such
day, which calculation shall, absent manifest errors, be conclusive.
SECTION 2.05 Servicer's Fee Factor and Related Definitions.
(a) Servicer's Fee Factor. "Servicer's Fee Factor" means, with respect
to any Participation at any time, an amount determined as follows:
SFF = SF + USFR
where:
SFF = the Servicer's Fee Factor for such Participation at
such time;
SF = the accrued and unpaid Servicer's Fee with respect
to such Participation at such time, as determined
pursuant to Section 2.05(b); and
USFR = the Unearned Servicer's Fee Reserve for such
Participation at such time, as determined pursuant
to Section 2.05(c).
(b) Servicer's Fee. "Servicer's Fee" means, with respect to any
Participation, an amount accrued each day in a Yield Period equal to (i) the
product of (x) 1%, (y) the Investment in such Participation at the close of
business on such day and (z) 1/360; or (ii) upon Servicer's reasonable request
on and after the date that Amphenol shall no longer be Servicer, an alternative
amount specified by Servicer not exceeding 110% of Servicer's reasonable
estimate of the costs and expenses to perform its obligations under this
Agreement during such Yield Period.
(c) Unearned Servicer's Fee Reserve. "Unearned Servicer's Fee Reserve"
means, for any Participation at any time, an amount equal to the product of (x)
the related Investment in such Participation at such time times (y) 1% (or if
Servicer's Fee is calculated pursuant to clause (b)(ii) above, the percentage
determined by dividing such Investment at the close of business on such day by
the amount of the Servicer's Fee accrued for such day, multiplying the quotient
by l/360 and
Receivables Purchase Agreement - 7
expressing the product as a percentage), times (z) a fraction the numerator of
which is the number of days equal to the then Adjusted Average Term and the
denominator of which is 360.
SECTION 2.06 Total Reserves and Related Definitions. (a) The "Total
Reserves" of any Participation on any day means the Investment in such
Participation at the opening of business of Purchaser on such day multiplied by
the greater of: (i) the Dilution Reserve Percentage plus the Loss Reserve
Percentage and (ii) 12%.
(b) The "Dilution Reserve Percentage" of any Participation on any day
means an amount, expressed as a percentage, determined as follows:
DRP = [(1.5 x ED) + ((DS-ED) x DS/ED)] x DHR
where:
DRP = the Dilution Reserve Percentage at such time;
ED = the "Expected Dilution" means the average of the
Dilution Ratios for the 12 most recent calendar
months;
DS = the "Dilution Spike" means the highest three-month
rolling average of the Dilution Ratio during the 12
most recent calendar months; and
DHR = the "Dilution Horizon Ratio" means the gross
sales of the Originators during the most recent
calendar month divided by Eligible Receivables.
(c) The "Loss Reserve Percentage" of any Participation on any day means
an amount, expressed as a percentage, determined as follows:
LRP = (1.5 x LR x LHR) / (1-(1.5 x LR x LHR))
where:
LRP = the Loss Reserve Percentage at such time;
LR = the "Loss Ratio" means the highest three-month
rolling average of the Default Ratio during the 12
most recent calendar months; and
LHR = the "Loss Horizon Ratio" means the gross sales of
the Originators during the four most recent
calendar months divided by the Eligible
Receivables.
Receivables Purchase Agreement - 8
SECTION 2.07 Purchaser's Share. "Purchaser's Share" of any Participation
with regard to any Collections of Portfolio Receivables received (or deemed
received) by Seller or Servicer on any day means an amount equal to the product
of: (a) the amount of such Collections received (or deemed received) by Seller
or Servicer on such day, times (b)(i) if such day is not an Investment Reduction
Day, such Participation (expressed as a decimal) on such day, and (ii) if such
day is an Investment Reduction Day, the Pro Rata Share in respect of such
Participation (expressed as a decimal) on such day; provided, however, that
after such time as a Participation shall equal zero, the Purchaser's Share of
Collections therefor shall also equal zero.
ARTICLE III
SETTLEMENTS
SECTION 3.01 Establishment and Use of Accounts. (a) Lock-box Accounts.
Seller hereby agrees to establish (or already has established in connection with
the Original RPA) the Lock-box Accounts listed on Schedule 6.01(n) (and the
related post office boxes) on or before the date of the first Purchase
hereunder. The Lock-box Accounts shall be used to receive Collections. No funds
other than Collections shall be deposited or transferred intentionally into any
Lock-box Account.
(b) Liquidation Account. Seller hereby agrees to establish (or already
has established in connection with the Original RPA) the Liquidation Account on
or before the date of the first Purchase hereunder. The Liquidation Account
shall be used to receive transfers of certain amounts of the Purchaser's Share
of Collections prior to Settlement Dates and for the other purposes described in
the Transaction Documents. No funds other than those transferred in accordance
with this Article III shall be transferred or deposited into the Liquidation
Account.
(c) Collection Account. Seller hereby agrees to establish (or already
has established in connection with the Original RPA) the Collection Account on
or before the date of the first Purchase hereunder. The Collection Account may
be used to receive transfers of certain amounts of the Seller's share of
Collections and for the other purposes described in the Transaction Documents.
SECTION 3.02 Non-Investment Reduction Day Settlement Procedures for
Collections.
(a) Daily Procedure. On each day (other than an Investment Reduction
Day), Servicer shall be deemed to have received an amount equal to the
Purchaser's Share of Collections of Portfolio Receivables that are deposited in
the Lock-box Accounts on such day in respect of all Participations; and
(i) Servicer may transfer from the Lock-box Accounts to the
Collection Account (or may apply in accordance with Section 7.03(g)) the
Seller's share of Collections in an amount
Receivables Purchase Agreement - 9
equal to the excess of (A) the aggregate Collections deposited in the
Lock-box Accounts on such day over (B) the Purchaser's Share of such
Collections for all Participations,
(ii) out of the portion of the Purchaser's Share of such
Collections that is allocable to each respective Participation, Servicer
shall hold in trust for the benefit of Purchaser and shall transfer to
the Liquidation Account (or may retain in one or more Lock-box Accounts)
an amount equal to the Earned Yield on the Investment in such
Participation accrued to (and including) such day and not previously so
transferred to the Liquidation Account as aforesaid,
(iii) Out of the portion of the Purchaser's Share of such
Collections that is allocable to each respective Participation, Servicer
shall transfer to its own account at its convenience, but in any event
within five (5) days, the amount of the Servicer's Fee allocated to such
Participation (as determined in accordance with Section 2.05(b)) which
has accrued to (and including) such day but which has not previously
been transferred to Servicer's account as aforesaid,
(iv) Servicer shall apply an amount equal to the remainder of the
portion of the Purchaser's Share of such Collections that is allocable
to each respective Participation to reduce the Investment in each such
Participation, such amount to be applied pro rata in accordance with the
amount of each such Investment before such reduction (it being
understood that such amount need not be physically paid to Purchaser
under this clause (iv)),
(v) After such reduction, but subject to Section 3.04(b), the
amount referred to in the foregoing clause (iv) with respect to each
Investment shall be reinvested by Servicer by means of a Reinvestment in
the related Participation, thereby increasing the Investment in such
Participation and causing a recomputation of such Participation pursuant
to Section 2.01 as of the end of such day, and
(vi) After any such Reinvestment, Servicer may transfer from the
Lock-box Accounts to the Collection Account the amount referred to in
the foregoing clause (v), or may apply such amount to make Restricted
Payments permitted by Section 7.03(f).
(b) Settlement Date Procedure. On each Settlement Date for each
Participation (if no Investment Reduction Day shall have occurred during the
Settlement Period then ending), Servicer shall transfer from the Liquidation
Account (or from the Lock-box Accounts), as applicable, to the Purchaser's
Account the amounts set aside as described in Section 3.02(a)(ii) and the
amounts, if any, set aside pursuant to Section 3.04(b) or (c) for payment to the
Agent on such Settlement Date; provided, however, that, if any Yield Period for
a related Participation shall exceed three months, Servicer shall pay to the
Agent within two Business Days of the last day of each three-month period in
such Yield Period all Earned Yield that shall have accrued through such last day
to the same extent as if such Yield Period had ended on such last day.
Receivables Purchase Agreement - 10
(c) Order of Application. Upon the Agent's receipt of funds distributed
pursuant to Section 3.02(b), the Agent shall distribute them (i) to Purchaser in
payment of the Earned Yield for such Participation and (ii) in the case of any
amounts set aside pursuant to Section 3.04(b) or (c), to Purchaser in reduction
of the related Investment.
SECTION 3.03 Investment Reduction Settlement Procedures for Collections.
(a) Daily Procedure. On each Investment Reduction Day Servicer shall set aside
and hold in trust for Purchaser the Purchaser's Share (calculated in respect of
all Participations) of the Collections in respect of the Portfolio Receivables
that were deposited in the Lock-box Accounts on such day by transferring an
amount equal to the Purchaser's Share of such Collections no later than one
Business day after the Servicer Persons' (or the relevant Servicers') deposit of
such Collections into the relevant Lock-box Account, (i) to the Liquidation
Account (if no Termination Event shall be continuing on such day) or (ii) upon
the request of the Agent, to the Purchaser's Account (if a Termination Event
shall be continuing on such day).
(b) Settlement Date Procedure. On each Settlement Date for each
Participation, if one or more Investment Reduction Days for such Participation
occurs during the related Yield Period for such Settlement Period, Servicer
shall transfer from the Liquidation Account (or from the Lock-box Accounts), as
applicable, to the Purchaser's Account the amounts that have been deposited or
retained therein pursuant to Sections 3.02(a)(ii) and 3.03(a), but that have not
already been transferred to the Purchaser's Account; provided, however, that the
total amount transferred to the Purchaser's Account (on an aggregate basis,
taking into account both amounts transferred pursuant to this Section 3.03(b)
and amounts transferred pursuant to Section 3.03(a) in respect of each
Participation) shall not exceed the sum of (i) the Earned Yield for such
Participation, (ii) the Investment in such Participation, (iii) the aggregate of
other amounts owed hereunder by Seller to Purchaser or Agent (including, without
limitation, all fees payable pursuant to the Fee Letter) and (iv) the accrued
Servicer's Fee payable with respect to such Participation.
(c) Order of Application. Upon receipt of funds deposited to the
Purchaser's Account pursuant to Section 3.03(b), the Agent shall distribute them
(i) to Purchaser or the Agent (as the case may be) (A) in payment of the Earned
Yield for the relevant Participation(s), (B) in reduction of the related
Investment in such Participation(s), and (C) in payment of any other amounts
owed by Seller hereunder to Purchaser or the Agent, in each case until reduced
to zero, and (ii) to Servicer in payment of the accrued Servicer's Fee allocated
to such Participation(s), also until reduced to zero. If there shall be
insufficient funds on deposit for the Agent to distribute funds in payment in
full of the aforementioned amounts, the Agent shall distribute funds, first, in
payment of the Earned Yield for the relevant Participation(s), second, if
Amphenol is not the Servicer, the amount described in the foregoing clause (ii)
owing to such Person, third, in reduction of the related Investment in such
Participation(s), fourth, in payment of other amounts payable to Purchaser or
the Agent, and fifth, if Amphenol is the Servicer, in payment of the Servicer's
Fee payable with respect to such Participation(s) owing to Amphenol.
Receivables Purchase Agreement - 11
SECTION 3.04 Special Settlement Procedures; Reduction of Investment,
etc.
(a) Deemed Collections. If on any day:
(i) the Unpaid Balance of any Portfolio Receivable is:
(A) reduced as a result of any defective, rejected or
returned merchandise or services, any cash discount, incorrect
▇▇▇▇▇▇▇▇ or any other adjustment by Seller, any Originator or any
other Affiliate of Seller,
(B) reduced or cancelled as a result of a setoff in
respect of any claim or dispute by the Obligor thereof against
Seller, any Originator or any other Affiliate of Seller (whether
such claim arises out of the same or a related or an unrelated
transaction), or
(C) reduced on account of the obligation of Seller, any
Originator or any other Affiliate of Seller to pay to the
related Obligor any rebate or refund; or
(ii) any of the representations or warranties of Seller set
forth in Section 6.01(k) or (o) is no longer true with respect to the
Portfolio Receivable,
then, on such day, Seller shall be deemed to have received a Collection of such
Portfolio Receivable: (I) in the case of clause (i) above, in the amount of such
reduction; and (II) in the case of clause (ii) above, in the amount of the
Unpaid Balance of such Pool Receivable.
On or before the fourteenth calendar day after the Month End Date of
each month that contains one or more days on which Seller is deemed to have
received such a Collection, Seller shall transfer an amount equal to the
aggregate amount of such deemed Collections to Servicer (such transfer to be
made, to the greatest extent practicable, from the Collection Account) and
Servicer shall distribute such transferred amount in the manner set forth in
Section 3.02(a) or Section 3.03(a), as the case may be, as if such transferred
amount actually had been received by Seller on the date of such transfer from
the Obligors of such Receivables and as if such transferred amount actually had
been deposited into one or more of the Lock-box Accounts on the date of such
transfer.
(b) Unreinvested Collections. Collections that may not be reinvested by
means of Reinvestments in a Participation on account of the application of the
Pay-Out Amount Limit or the Purchase Limit pursuant to Section 1.02 shall be so
reinvested as soon as practicable without violating such Pay-Out Amount Limit or
Purchase Limit, as the case may be, unless the Conditions Precedent have not
been satisfied. To the extent and so long as such Collections may not be so
reinvested, Servicer shall hold such Collections for the benefit of Purchaser
for payment to the Agent on the Settlement Date for the Yield Period in which
such Collections are accumulated to the extent that permitted Reinvestments
cannot occur before such Settlement Date, and the related Investment
Receivables Purchase Agreement - 12
as to such Participation shall be deemed reduced in the amount to be paid to the
Agent only when in fact so paid. During any Investment Reduction Period, all
such Collections shall be held in the Liquidation Account, and upon one Business
Day's written notice given by the Agent to Seller, Servicer shall transfer such
Collections from the Liquidation Account to the Purchaser's Account.
(c) Seller's Reduction of Investment. If at any ▇▇▇▇ ▇▇▇▇▇▇ shall wish
to cause the reduction of the Investment in a related Participation (but not to
commence the liquidation of all Participations), Seller may do so as follows:
(i) Seller shall give the Agent at least five Business Days'
prior written notice thereof (including the amount of such proposed
reduction and the proposed date on which such reduction will commence),
(ii) on the proposed date of commencement of such reduction and
on each day thereafter, Servicer shall stop reinvesting Collections
until the amount thereof not so reinvested shall equal the desired
amount of reduction, and
(iii) Servicer shall hold such Collections for the benefit of
Purchaser in the Liquidation Account, for payment to the Agent on the
Settlement Date for the Yield Period in which such Collections are
accumulated, and the Investment in such Participation shall be deemed
reduced in the amount to be paid to the Agent only when in fact so paid;
provided, however, that
(A) the amount of any such reduction shall be not less than
$5,000,000 and shall be an integral multiple of $1,000,000, and the
Aggregate Investment after giving effect to such reduction shall not be
less than $5,000,000 and shall be in an integral multiple of $1,000,000;
provided, that the Aggregate Investment after giving effect to such
reduction may be $0,
(B) Seller shall use reasonable efforts to attempt to choose a
reduction amount, and the date of the commencement thereof, so that such
reduction shall commence and conclude in the same Yield Period, and
(C) if two or more Participations shall be outstanding at the
time of any proposed reduction, unless the Agent shall otherwise
consent, such proposed reduction shall be applied to the Participation
with the shortest remaining Yield Period.
(d) Allocations of Obligor's Payments. Except as provided in Section
3.04(a) or as otherwise required by law or the underlying Contract, all
Collections received from an Obligor of any Receivable shall be applied to such
Obligor's Receivables then outstanding in the order of the age of such
Receivables, starting with the oldest such Receivable; provided, however, that,
if payment
Receivables Purchase Agreement - 13
is designated by such Obligor for application to specific Receivables, it shall
be applied to such specified Receivables.
(e) Permitted Investments. Any amounts in the Liquidation Account or the
Collection Account, as the case may be, may be invested by Seller (or Servicer
on Seller's behalf) in Permitted Investments, so long as Purchaser's interest in
such Permitted Investments is perfected and such Permitted Investments are
subject to no Adverse Claims other than those of Purchaser provided hereunder.
SECTION 3.05 Reporting. (a) On or prior to the fifteenth Business Day of
each month (the "Report Date"), Servicer shall prepare and forward to the Agent:
(i) a Periodic Report, relating to each Participation owned by
Purchaser, as of the close of business of Servicer on the preceding
Month End Date,
(ii) a listing by Obligor of all Portfolio Receivables together
with an aging of such Portfolio Receivables as of such Month End Date,
and
(iii) a certificate of Seller signed on its behalf by its chief
financial officer, dated as of such Month End Date, to the effect that
no Termination Event or Unmatured Termination Event has occurred and is
continuing.
(b) On or prior to each Settlement Date of any Settlement Period
containing an Investment Reduction Day, Servicer shall prepare and forward to
the Agent a Liquidation Statement as of the close of business of Servicer on
such Settlement Date.
(c) On or prior to each Settlement Date, Seller will advise the Agent
and the Servicer of each Investment Reduction Day that occurrred during such
Settlement Period ending on such Settlement Date.
(d) Upon the request of the Agent, and upon the Commitment Termination
Date, Servicer shall deliver to the Agent and the Surety Bond Provider a General
Trial Balance as of the date specified in such request or as of the Commitment
Termination Date, as the case may be.
SECTION 3.06 Payments and Computations, Etc. (a) All amounts to be paid
or deposited by Seller hereunder shall be paid or deposited in accordance with
the terms hereof no later than 11:00 a.m. (Chicago time) on the day when due in
lawful money of the United States of America in same day funds to a special
account (account number 372968-8) in the name of the Purchaser (the "Purchaser's
Account") and maintained at ▇▇▇▇▇▇ Trust and Savings Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Receivables Purchase Agreement - 14
(b) Seller or Servicer, as applicable, shall, to the extent permitted by
law, pay to the Agent interest on all amounts not paid or deposited when due
hereunder at 2% per annum above the Reference Rate, payable on demand; provided,
however, that such interest rate shall not at any time exceed the maximum rate
permitted by applicable law. Such interest shall be retained by the Agent except
to the extent that such failure to make a timely payment or deposit has
continued beyond the date for distribution by the Agent of such overdue amount
to Purchaser, in which case such interest accruing after such date shall be for
the account of, and distributed by the Agent to, Purchaser.
(c) All computations of interest and all computations of Earned Yield,
Negative Spread Fee and other fees hereunder shall be made on the basis of a
year of 360 days for the actual number of days (including the first but
excluding the last day) elapsed.
SECTION 3.07 Dividing or Combining Participations.
(a) Division of Participations. The Agent may as of the last day of any
Yield Period for any then existing Participation, divide such existing
Participation on such last day into two or more new Participations, each such
new Participation having such Investment as the Agent determines, and all such
new Participations collectively having Investments in an aggregate amount equal
to the Investment of such existing Participation.
(b) Combination of Participations. The Agent may as of the last day of
any Yield Period, or on or before the date of any proposed Purchase of a
Participation by Purchaser, on such last day or such date of Purchase, as the
case may be, combine into one new Participation such existing and/or proposed
Participations or any combination thereof, such new Participation having an
Investment equal to the sum of the Investments of such Participations so
combined.
SECTION 3.08 Treatment of Collections and Deemed Collections. Seller
shall deliver forthwith to Servicer an amount equal to all Collections deemed
received by Seller pursuant to Section 3.04(a), and Seller shall hold or
distribute such Collections as Earned Yield, accrued Servicer's Fee, repayment
of Investment, etc. to the same extent as if such Collections had actually been
received on such date. If Collections are being paid to the Agent, or lock boxes
or accounts directly or indirectly owned or controlled by the Agent, Servicer
shall forthwith cause any deemed Collections to be paid to the Agent or such
lock boxes or accounts. So long as Seller shall hold any Collections or deemed
Collections required to be paid to Servicer or the Agent, it shall hold such
Collections in trust and separate and apart from its own funds and shall clearly
▇▇▇▇ its records to reflect such trust.
Receivables Purchase Agreement - 15
ARTICLE IV
FEES AND YIELD PROTECTION
SECTION 4.01 Fees. Seller shall pay to the Agent and Purchaser the fees
in the amount and in the times set forth in the Fee Letter.
SECTION 4.02 Yield Protection. (a) If (i) Regulation D of the Board of
Governors of the Federal Reserve System or (ii) any Regulatory Change occurring
after the date hereof:
(A) shall subject an Affected Party to any tax, duty or other
charge with respect to any Participation owned by or funded by it, or
any obligations or right to make Purchases or Reinvestments or to
provide funding therefor, or shall change the basis of taxation of
payments to the Affected Party of any Investments or Earned Yield made
by or owed to or funded by it or any other amounts due under this
Agreement in respect of any Participations owned by or funded by it or
its obligations or rights, if any, to make Purchases or Reinvestments or
to provide funding therefor (except for changes in the rate of tax on
the overall net income of such Affected Party imposed by the United
States of America or the jurisdiction in which such Affected Party's
principal executive office is located);
(B) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of
Governors of the Federal Reserve System but excluding any reserve
included in the determination of Earned Yield), special deposit,
compulsory loan or similar requirement against assets of, deposits or
obligations with or for the account of (or with or for the account of
any Affiliate of), or credit extended by, any Affected Party;
(C) shall change the amount of capital maintained or required,
requested or directed to be maintained by such Affected Party;
(D) shall change the rate for, or the manner in which the Federal
Deposit Insurance Corporation (or any successor thereto) assesses,
deposit insurance premiums or similar charges applicable to such
Affected Party; or
(E) shall impose any other condition affecting any Participations
owned or funded by any Affected Party, its Certificates, if any, or its
obligations or rights, if any, to make Purchases or Reinvestments or to
provide funding therefor;
and the result of any of the foregoing is or would be:
(x) to increase the cost to (or in the case of Regulation D
referred to above to impose a cost on): (I) an Affected Party funding or
making or maintaining any Purchases or
Receivables Purchase Agreement - 16
Reinvestments, or loans or other extensions of credit under the
Liquidity Agreement, or any commitment of such Affected Party with
respect to any of the foregoing, or (II) the Agent for continuing its,
or Seller's, relationship with Purchaser,
(y) to reduce the amount of any sum received or receivable by an
Affected Party under this Agreement, the Liquidity Agreement or the
Insurance Agreement with respect thereto, or
(z) in the reasonable determination of such Affected Party, to
reduce the rate or return on the capital of an Affected Party as a
consequence of its obligations hereunder or arising in connection
herewith to a level below that which any such Affected Party could
otherwise have achieved,
then, within thirty days after demand by such Affected Party (which demand shall
be accompanied by a statement setting forth the basis of such demand), Seller
shall pay directly to such Affected Party, subject to the second sentence of
subsection (b) below, such additional amount or amounts as will compensate such
Affected Party for such additional or increased cost or such reduction.
(b) Each Affected Party will promptly notify Seller and the Agent within
30 days after it has knowledge of any event occurring after the date hereof
which will entitle such Affected Party to such additional amounts as
compensation pursuant to this Section 4.02. Such additional amounts shall accrue
from the date of such event (or if such notice is not given within 30 days after
such Affected Party's knowledge of such Event, from the date which is 30 days
prior to the date such notice is given by such Affected Party).
(c) In determining any amount provided for in this Section 4.02, the
Affected Party may use any reasonable averaging and attribution methods that it
(in its sole discretion) shall deem applicable. Any Affected Party when making a
claim under this Section 4.02 shall submit to Seller a statement as to such
increased cost or reduced return (including calculation thereof in reasonable
detail), which statement shall, in the absence of manifest error, be conclusive
and binding upon Seller.
ARTICLE V
CONDITIONS OF PURCHASES
SECTION 5.01 Conditions Precedent to Purchase. The effectiveness of this
Agreement is subject to the condition precedent that the Agent shall have
received the following, each (unless otherwise indicated) dated the date hereof,
in form and substance satisfactory to the Agent:
Receivables Purchase Agreement - 17
(a) Except to the extent already delivered in connection with
the Original RPA, a Certificate;
(b) A copy of the resolutions of the Board of Directors of Seller
and each Originator approving this amendment and restatement of the
Original RPA and the transactions contemplated hereby, certified by the
Secretary or Assistant Secretary of each such Person;
(c) Good standing certificates for Seller and each Originator
issued by the Secretary of State of the jurisdiction of such Person's
incorporation;
(d) Except to the extent that the certificates delivered in
connection with the Original RPA remain true and correct, a certificate
of the Secretary or Assistant Secretary of Seller and each Originator
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 certificate the Agent and Purchaser may conclusively
rely until such time as the Agent shall receive from Seller a revised
certificate meeting the requirements of this subsection (d));
(e) Except to the extent that the certificate of incorporation,
other organizational document and/or by-laws delivered in connection
with the Original RPA remain true and correct, the certificate of
incorporation or other organizational document of each of Seller and
each Originator, duly certified by the Secretary of State of the
jurisdiction of such Person's incorporation as of a recent date
acceptable to Agent, together with a copy of the by-laws of each of
Seller and each Originator, duly certified by the Secretary or an
Assistant Secretary of such Person;
(f) Except to the extent already delivered in connection with the
Original RPA: (i) acknowledgment copies of proper financing statements
(Form UCC-1), filed on or prior to the date of the initial Purchase,
naming Seller as assignor/seller of receivables or an undivided interest
therein and Purchaser as the secured party and purchaser as may be
necessary or, in the opinion of the Agent, desirable under the UCC to
perfect Purchaser's interests in all Participations in which an interest
may be assigned to it or otherwise created or arising hereunder and (ii)
executed copies of proper Uniform Commercial Code Form UCC-3 termination
statements necessary to release all liens and other Adverse Claims of
any Person in any Receivables, Related Security and the Lock-box
Accounts previously granted by any Person;
(g)(i) A written search report provided to the Agent by a search
service acceptable to the Agent, listing all effective financing
statements that name Seller or any Originator as debtor or assignor and
that are filed in the jurisdictions in which filings were made pursuant
to subsection (f) above and in such other jurisdictions that Agent shall
reasonably request, together with copies of such financing statements
(none of which shall cover any Receivable or interests therein or
proceeds of any thereof), and (ii) tax and judgment lien search reports
Receivables Purchase Agreement - 18
from a Person satisfactory to the Agent showing no evidence of such lien
filed against Seller or any Originator;
(h) Except to the extent already delivered in connection with the
Original RPA, duly executed copies of (i) Lock-box Agreements with each
of the Lock-box Banks and (ii) Account Agreements with each of the
Account Banks;
(i) Favorable opinions from:
(i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to Amphenol (as
the Servicer), Seller and the Originators, substantially in the
form of Exhibit 5.01(i)-1; and
(ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of Amphenol (as
the Servicer), Seller and the Originators, substantially in the
form of Exhibit 5.01(i)-2;
(j) Except to the extent already delivered in connection with the
Original RPA, such powers of attorney as the Agent shall reasonably
request to enable Agent to collect all amounts due under any and all
Portfolio Receivables;
(k) A Periodic Report as of the most recent Month End Date;
(l) Except to the extent already delivered in connection with the
Original RPA, the Servicer Person Letter Agreement, duly executed by
Seller, Amphenol and the Originators;
(m) Evidence (i) of the execution and delivery by each of the
parties thereto of the amended and restated Purchase and Sale Agreement,
dated as of the date hereof, and all documents, agreements and
instruments contemplated thereby (which evidence shall include copies,
either original or facsimile, of each of such documents, instruments and
agreements), (ii) that each of the conditions precedent to the
effectiveness of such amended and restated Purchase and Sale Agreement
has been satisfied to the Agent's satisfaction, and (iii) that the
initial purchases under such amended and restated Purchase and Sale
Agreement have been consummated;
(n) A certificate from an officer of Amphenol (in form
satisfactory to the Agent) to the effect that, on the date hereof,
Seller has a Tangible Net Worth, as calculated in accordance with GAAP,
of at least Four Million Dollars ($4,000,000);
(o) A certificate from an officer of Amphenol to the effect that
Servicer and each 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
which are of the type which any proposed purchaser or lender would use
to evaluate the Receivables, the following legend (or the substantive
thereof): "THE RECEIVABLES
Receivables Purchase Agreement - 19
DESCRIBED HEREIN HAVE BEEN SOLD TO AMPHENOL FUNDING CORP. PURSUANT TO AN
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, DATED AS OF MAY 19,
1997, 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 AN AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT,
DATED AS OF MAY 19, 1997, AS THE SAME MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME, AMONG AMPHENOL FUNDING CORP., AMPHENOL CORPORATION,
POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, AND ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECURITIES, INC., AS AGENT";
(p) The Fee Letter, together with the fees payable to the Agent
pursuant thereto and all costs and expenses due and payable pursuant to
Section 14.06, if then invoiced;
(q)(i) Duly executed and delivered counterparts of the Amphenol
Credit Agreement (which agreement shall have a revolving credit term
that expires no earlier than the Scheduled Commitment Termination Date)
permitting the transactions contemplated by the Transaction Documents
and not providing for any Adverse Claims in the Receivables, Related
Security, Lock-box Accounts and other collateral described in Section
13.01, and (ii) confirmation that the recapitalization of Amphenol and
its Affiliates shall have closed;
(r) A certificate from an authorized officer of Amphenol and an
authorized officer of Seller as to the satisfaction of the conditions
set forth in Section 5.02; and
(s) The Agent shall have received evidence of the execution and
delivery of an amendment to the Liquidity Agreement in connection with
this amendment and restatement of the Original RPA.
SECTION 5.02 Conditions Precedent to All Purchases and Reinvestments.
Each Purchase (including the initial Purchase) and each Reinvestment hereunder
shall be subject to the further condition precedent ("Conditions Precedent")
that on the date of such Purchase or Reinvestment the following statements shall
be true (and Seller by accepting the amount of such Purchase or by receiving the
proceeds of such Reinvestment shall be deemed to have certified that):
(a) The representations and warranties contained in Sections
6.01 and 6.02 are true and correct on and as of such day as though made
on and as of such day and shall be deemed to have been made on such day
(except to the extent that any such representation or warranty is
expressed to be made only as of an earlier date, in which case such
representation or warranty shall have been true and correct on and as of
such earlier date);
Receivables Purchase Agreement - 20
(b) No event has occurred and is continuing, or would result from
such Purchase or Reinvestment, that constitutes a Termination Event or
an Unmatured Termination Event;
(c) After giving effect to each proposed Purchase or
Reinvestment, the Aggregate Investment will not exceed the Purchase
Limit and the Aggregate Pay-Out Amount will not exceed the Pay-Out
Amount Limit; and
(d) The Commitment Termination Date shall not have occurred;
provided, however, that the absence of the occurrence and continuance of an
Unmatured Termination Event (other than an Unmatured Termination Event with
respect to an event described in Section 9.01(f)) shall not be a Condition
Precedent to:
(i) any Reinvestment being made with the proceeds of Collections
that were, on the same day, applied in reduction of the Aggregate
Investment, or
(ii) any other Reinvestment or any Purchase on any day which does
not cause the Aggregate Investment, after giving effect to such
Reinvestment or Purchase (and any Reinvestment referred to in clause (i)
next above) to exceed the Aggregate Investment as of the opening of
business on such day.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of Seller. In order to
induce Purchaser and the Agent to enter into this Agreement and, in the case of
Purchaser, to make Purchases and Reinvestments hereunder, Seller hereby
represents and warrants to Purchaser and the Agent as to itself as follows:
(a) Organization and Good Standing. It is a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation; and has all requisite corporate power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted.
(b) Due Qualification. It is duly licensed or qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business
requires such qualification, licenses or approvals (except to the extent
that the failure to be so licensed or qualified would not be reasonably
likely to have a Material Adverse Effect),
Receivables Purchase Agreement - 21
(c) Power and Authority; Due Authorization. It has (i) all
necessary corporate power and authority and legal right (A) to execute,
deliver and perform its obligations under each Transaction Document to
which it is a party, and (B) to sell and assign Participations on the
terms and conditions herein provided, and (ii) duly authorized by all
necessary corporate action (including, if required, any shareholder
action) such execution, delivery and performance of such Transaction
Documents. Seller had at all relevant times, and now has, all necessary
power and authority and legal right to acquire and own the Portfolio
Receivables, to sell and assign Participations and to incur obligations
hereunder.
(d) Valid Sale; Binding Obligations. Each Purchase made pursuant
to this Agreement shall constitute a valid sale, transfer and assignment
of the relevant Participation to Purchaser, enforceable against
creditors of, and purchasers from, Seller; and this Agreement
constitutes, and each other Transaction Document executed or to be
executed by Seller, when duly executed and delivered, constitutes or
will constitute, a legal, valid and binding obligation of Seller
enforceable in accordance with its 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.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and
the fulfillment of the terms hereof and thereof, will not (i) conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under: (A) the articles or certificate of incorporation or by-laws of
Seller, or (B) any indenture, loan agreement, mortgage, deed of trust or
other agreement or instrument to which Seller is a party or by which it
or any of its properties is otherwise bound, (ii) result in the creation
or imposition of any Adverse Claim upon any of its Receivables or
related properties pursuant to the terms of any such indenture, loan
agreement, mortgage, deed of trust or other agreement or instrument,
other than the Transaction Documents, or (iii) violate any law or any
order, rule or regulation applicable to Seller of any court or of any
federal, state or foreign regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over Seller or
any of its properties.
(f) No Proceedings. Except as described in Schedule 6.01(f),
(i) there is: (A) no order, judgment, decree,
injunction, stipulation or consent order of or with any court or
other government authority to which Seller is subject, and (B)
there is no action, suit, arbitration, regulatory proceeding or
investigation pending or threatened, before or by any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality, against Seller, that, in either
case, individually or in the aggregate, is reasonably likely to
have a Material Adverse Effect; and
Receivables Purchase Agreement - 22
(ii) there is no action, suit, proceeding, arbitration or
regulatory or governmental investigation, pending or threatened,
before or by any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (A) asserting the
invalidity of this Agreement, the Certificate or any other
Transaction Document, (B) seeking to prevent the sale and
assignment of any Participation, the issuance of the Certificate,
or the consummation of any of the other transactions contemplated
by this Agreement or any other Transaction Document, or (C)
seeking to adversely affect the federal income tax attributes of
the Purchases and Reinvestments hereunder or the Certificate.
(g) Bulk Sales Act. No transaction contemplated by this Agreement
or the other Transaction Documents requires compliance with, or will be
subject to avoidance under, any bulk sales act or similar law.
(h) Government Approvals. No authorization, consent, approval or
other action by, and no notice to or filing with, any court,
governmental authority or regulatory body or other Person, domestic or
foreign (which has not been obtained or made), is or will be required
for the due execution, delivery or performance by Seller of any
Transaction Document to which it is a party, except for the filing of
the UCC Financing Statements referred to in Article V, all of which, at
the time required in Article V, shall have been duly made and shall be
in full force and effect.
(i) Financial Condition. (i) Seller's balance sheet as of the
date of this Agreement, certified by the Financial Officer, copies of
which have been furnished to Purchaser and the Agent, fairly presents
Seller's assets and liabilities at such date; and
(ii) Since December 31, 1996, no event has occurred that
has had, or is reasonably likely to have, a Material Adverse
Effect.
(j) Margin Regulations. The use of all funds acquired by Seller
under this Agreement will not conflict with or contravene any of
Regulations G, T, U and X promulgated by the Board of Governors of the
Federal Reserve System from time to time.
(k) Quality of Title. Seller owns each Portfolio Receivable,
together with the related Contract and all purchase orders and other
agreements related to such Portfolio Receivable, free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result
of any action taken
Receivables Purchase Agreement - 23
by Purchaser or by the Agent) except as expressly provided herein or in
the Purchase and Sale Agreement. When Purchaser makes a Purchase, it
shall have acquired and shall continue to maintain a valid and perfected
first priority undivided percentage ownership interest to the extent of
its Participation in each Portfolio Receivable and in the Related
Security and Collections with respect thereto free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result
of any action taken by Purchaser or by the Agent except as expressly
provided under this Agreement or under the Purchase and Sale Agreement).
No effective financing statement or other instrument similar in effect
covering any Portfolio Receivable, any interest therein, the Related
Security or Collections with respect thereto is on file in any recording
office except such as may be filed (i) in favor of the relevant
Originator in accordance with the Contracts, (ii) in favor of the Seller
in accordance with the Purchase and Sale Agreement, (iii) in favor of
Purchaser or the Agent in accordance with this Agreement, (iv) in
connection with any Adverse Claim arising solely as the result of any
action taken by Purchaser (or any assignee thereof) or by the Agent or
(v) in favor of the Collateral Trustee.
(l) Accurate Reports. No Periodic Report (if prepared by Seller
or any Originator, or to the extent that information contained therein
was supplied by Seller or any Originator), information, exhibit,
financial statement, document, book, record or report furnished or to be
furnished by Seller or any Originator to the Agent or Purchaser in
connection with this Agreement or the other Transaction Documents was or
will be inaccurate in any material respect as of the date it was or will
be dated or (except as otherwise disclosed to the Agent or Purchaser, as
the case may be, at such time) as of the date so furnished, or contained
or will contain any material misstatement of fact or omitted or will
omit to state a material fact or any fact necessary to make the
statements contained therein not materially misleading.
(m) Offices. The principal places of business and chief executive
offices of Seller is located at its address referred to in Section 14.02
and the offices where Seller keeps all its books, records and documents
evidencing Portfolio Receivables, the related Contracts and all purchase
orders and other agreements related to such Portfolio Receivables are
located at the address specified in Exhibit 6.01(m) (or at such other
locations, notified to the Agent in accordance with Section 7.01(f), in
jurisdictions where all action required by Section 8.04 has been taken
and completed).
(n) Lock-box Accounts. The names and addresses of all the
Lock-box Banks, together with the account numbers of the lock-box
accounts of Seller at such Lock-box Banks, are specified in Exhibit
6.01(n) (or at such other Lock-box Banks and/or with such other lock-box
accounts as have been notified to the Agent in accordance with Section
7.03(d)).
(o) Eligible Receivables. Each Receivable included in the
Seller's calculation of the Net Portfolio Balance as an Eligible
Receivable on the date of any Purchase or Reinvestment shall be an
Eligible Receivable on such date.
(p) Capitalization.The authorized capital stock of Seller
consists of one thousand (1000) shares of common stock, without par
value ("Seller Common Stock"), 100 of which shares are currently issued
and outstanding. All of such outstanding shares of Seller Common Stock
are validly issued, fully paid and nonassessable and are owned
(beneficially and of
Receivables Purchase Agreement - 24
record) by the Originators in the amounts set forth in Schedule 1 to
the Subscription Agreement.
(q) Licenses and Labor Controversies. (i) Seller has not failed
to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to the
conduct of its business, which violation or failure to obtain would be
reasonably likely to have a Material Adverse Effect;
(ii) There are no labor controversies pending against
Seller that have had (or are reasonably likely to have) a
Material Adverse Effect.
(r) Trade Names. Seller does not use any trade name other than
its actual corporate name and the trade names set forth in Schedule
6.01(r). From and after December 3, 1988, Seller has not been known by
any legal name other than its corporate name as of the date hereof, nor
has it been the subject of any merger or other corporate reorganization,
except as set forth in Schedule 6.01(r).
(s) Taxes. Seller has filed all federal and other tax returns and
reports required by law to have been filed by it and has paid all taxes
and governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves, if any, in
accordance with GAAP shall have been set aside on its respective books.
(t) Compliance with Applicable Laws. Seller is in compliance with
the requirements of (i) all applicable laws, rules, regulations and
orders of all governmental authorities (excluding with respect to
environmental matters, which are covered by clause (ii)) and (ii) to the
best of its knowledge, all applicable environmental laws, rules,
regulations and orders of all governmental authorities, in the case of
each of clauses (i) and (ii), including federal, state, local or
foreign, a breach of any of which, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect.
SECTION 6.02 Representations and Warranties of Amphenol. In order to
induce Purchaser and the Agent to enter into this Agreement and, in the case of
Purchaser, to make Purchases and Reinvestments hereunder, Amphenol hereby
represents and warrants to Purchaser and the Agent as to itself and with respect
to each other Originator as follows:
(a) Organization and Good Standing. Each Originator has been duly
organized and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with power and
authority to own its properties and to conduct its business as such
properties are presently owned and such business is presently conducted.
Receivables Purchase Agreement - 25
(b) Due Qualification. Each Originator is duly licensed or
qualified to do business as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such licensing or qualification (except
to the extent that the failure to be so licensed or qualified would not
be reasonably likely to have a Material Adverse Effect).
(c) Power and Authority; Due Authorization. Each Originator has:
(i) all necessary power, authority and legal right: (A) to execute and
deliver, and perform its obligations under, each Transaction Document to
which it is a party and (B) to generate, own, sell and assign
Receivables on the terms and subject to the conditions herein and
therein provided; and (ii) duly authorized such execution and delivery
and such sale and assignment and the performance of such obligations by
all necessary corporate action (including, if required, any shareholder
action).
(d) Binding Obligations. This Agreement and each other
Transaction Document signed or to be signed by each Originator, when
duly executed and delivered, constitutes or will constitute, a legal,
valid and binding obligation of such Originator, enforceable in
accordance with its 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.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents, and
the fulfillment of the terms hereof or thereof, will not (a) conflict
with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice, lapse of time or both) a default
under (i) each Originator's articles or certificate of incorporation or
by-laws, or (ii) any indenture, loan agreement, mortgage, deed of trust
or other agreement or instrument to which any Originator is a party or
by which any Originator or any of their respective properties is bound,
except for any conflict, breach or default that would not be reasonably
likely to have a Material Adverse Effect, (b) result in the creation or
imposition of any Adverse Claim upon any Originator's properties
pursuant to the terms of any such indenture, loan agreement, mortgage,
deed of trust or other agreement or instrument, other than the
Transaction Documents, or (c) violate any law or any order, rule or
regulation applicable to it of any court or of any federal, state or
foreign regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over any Originator or any of its
properties, except for any violation that would not be reasonably likely
to have a Material Adverse Effect.
(f) No Proceedings. Except as described in Schedule 6.01(f),
there is no action, suit, proceeding or investigation pending before any
court, regulatory body, arbitrator, administrative agency or other
tribunal or governmental instrumentality: (i) asserting the
Receivables Purchase Agreement - 26
invalidity of any Transaction Document, (ii) seeking to prevent the
issuance of any such Originator's Originator Assignment Certificate or
the consummation of any of the transactions contemplated by any
Transaction Document, or (iii) seeking any determination or ruling that
is reasonably likely to have a Material Adverse Effect.
(g) Bulk Sales Acts. No transaction contemplated hereby requires
compliance with, or will be subject to avoidance under, any bulk sales
act or similar law.
(h) Government Approvals. Except for the filing of the UCC
financing statements referred to in Article V of the Purchase and Sale
Agreement, all of which, at the time required in such Article V, shall
have been duly made and shall be in full force and effect, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required for each
Originator's due execution, delivery and performance of any Transaction
Document to which it is a party, except where the failure to receive or
make such authorization, approval, action, notice or filing would not be
reasonably likely to have a Material Adverse Effect.
(i) Financial Condition. (i) The consolidated balance sheets of
Amphenol and its consolidated subsidiaries as of December 31, 1996, and
the related statements of income and shareholders' equity of Amphenol
and its consolidated subsidiaries for the fiscal year then ended
certified by Price Waterhouse, Amphenol's independent accountants,
copies of which have been furnished to the Agent, present fairly the
consolidated financial position of Amphenol and its consolidated
subsidiaries as at such date and the consolidated results of the
operations of Amphenol and its consolidated subsidiaries for the period
ended on such date, all in accordance with GAAP consistently applied;
and
(ii) Since December 31, 1996, no event has occurred that
has had, or is reasonably likely to have, a Material Adverse
Effect.
(j) Licenses, Contingent Liabilities and Labor Controversies. (i)
No Originator has failed to obtain any licenses, permits, franchises or
other governmental authorizations necessary to the ownership of its
properties or to the conduct of its business, which violation or failure
to obtain would be reasonably likely to have a Material Adverse Effect.
(ii) There are no labor controversies pending against any
Originator that have had (or are reasonably likely to have) a
Material Adverse Effect.
(k) Margin Regulations. No use of any funds acquired by any
Originator under the Purchase and Sale Agreement will conflict with or
contravene any of Regulations G, T, U and X promulgated by the Board of
Governors of the Federal Reserve System from time to time.
Receivables Purchase Agreement - 27
(l) Quality of Title. (i) Each Receivable of each Originator
(together with the Related Security for such Receivable) which is to be
sold to Seller under the Purchase and Sale Agreement is or shall be
owned by such Originator, free and clear of any Adverse Claim, except as
provided herein and in the Purchase and Sale Agreement. Whenever Seller
makes a purchase under the Purchase and Sale Agreement, it shall have
acquired and shall continue to have maintained a valid and perfected
ownership interest (free and clear of any Adverse Claim) in all
Receivables generated by such Originator and all Collections related
thereto, and in such Originator's entire right, title and interest in
and to the Related Security with respect thereto.
(ii) No effective financing statement or other instrument
similar in effect covering any Receivable generated by any
Originator or any right related to any such Receivable that is of
the type described in Section 1.1 of the Purchase and Sale
Agreement is on file in any recording office except such as may
be filed in favor of Seller or the Originators, as the case may
be, in accordance with the Purchase and Sale Agreement or in
favor of Purchaser in accordance with this Agreement.
(m) Accuracy of Information. All factual written information
heretofore or contemporaneously furnished (and prepared) by each
Originator to Seller, Purchaser or the Agent for purposes of or in
connection with any Transaction Document or any transaction contemplated
hereby or thereby is, and all other such factual written information
hereafter furnished (and prepared) by such Originator to Seller,
Purchaser or the Agent pursuant to or in connection with any Transaction
Document will be, true and accurate in every material respect on the
date as of which such information is dated or certified. No information
contained in any report delivered pursuant to Section 7.2 of the
Purchase and Sale Agreement or in any Purchase Report shall be
incomplete by omitting to state any material fact necessary to make such
information not misleading on the date as of which such information is
dated or certified.
(n) Offices. Each Originator's principal place of business and
chief executive office are located at their respective addresses set
forth on the signature pages to the Purchase and Sale Agreement under
such Originator's signature thereto, and the offices where such
Originator keeps all its books, records and documents evidencing its
Receivables, the related Contracts and all other agreements related to
such Receivables are located at the addresses specified in Exhibit
6.01(m) (or at such other locations, notified to Servicer and the Agent
in accordance with Section 7.01(f), in jurisdictions where all action
required by Section 8.05 has been taken and completed).
(o) Trade Names. No Originator uses any trade name other than its
actual corporate name and the trade names set forth in Schedule 6.01(r).
Except as set forth on Schedule 6.01(r), from and after December 3,
1988, each Originator has not been known by any legal name other than
its corporate name as of the date hereof, nor has any Originator been
the
Receivables Purchase Agreement - 28
subject of any merger or other corporate reorganization, except as set
forth in Schedule 6.01(r).
(p) Taxes. Each Originator has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
(q) Compliance with Applicable Laws. Each Originator is in
compliance with the requirements of all applicable laws, rules,
regulations and orders of all governmental authorities, a breach of any
of which, individually or in the aggregate, would be reasonably likely
to have a Material Adverse Effect.
ARTICLE VII
COVENANTS OF SELLER AND AMPHENOL
SECTION 7.01 Affirmative Covenants of Seller and Amphenol. From the date
hereof until the first day following the Commitment Termination Date on which
all Participations shall be reduced to zero and all Obligations hereunder shall
have been finally and fully paid and performed, Seller hereby covenants and
agrees with Purchaser and the Agent as to itself, and Amphenol hereby covenants
and agrees with Purchaser and the Agent as to itself, Seller and each
Originator, that, unless the Agent shall otherwise consent in writing, it shall:
(a) Compliance with Laws, Etc. Comply, and in the case of
Amphenol, cause each Originator to comply, in all material respects with
all applicable laws, rules, regulations and orders that relate to the
Portfolio Receivables and related Contracts except where the failure to
so comply would not materially and adversely affect the collectability
of the Portfolio Receivables or the rights of Purchaser hereunder.
(b) Preservation of Corporate Existence. Preserve and maintain
its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in
good standing as a foreign corporation in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would have a Material Adverse Effect.
(c) Audits. (i) At any time and from time to time during regular
business hours (and upon two Business Days' prior notice so long as no
Termination Event is continuing), permit, and in the case of Amphenol,
cause the Seller and each Originator to permit, the Agent, or its agents
or representatives (and/or, if the Agent shall have consented (which
consent shall
Receivables Purchase Agreement - 29
not be unreasonably withheld), the Surety Bond Provider or its agents or
representatives) (A) to examine and make copies of and abstracts from
all books, records and documents (including, without limitation,
computer tapes and disks) in possession or under the control of Seller,
Amphenol or any other Originator relating to Receivables, including,
without limitation, the related Contracts and purchase orders and other
agreements, and (B) to visit the offices and properties of Seller,
Amphenol and each Originator for the purpose of examining such materials
described in clause (i)(A) above, and to discuss matters relating to
Portfolio Receivables or the performance hereunder with any of the
officers or employees of Seller, Amphenol and each Originator having
knowledge of such matters, and (ii) without limiting the foregoing
clause (i), from time to time on request of the Agent (given not more
than once in each calendar year so long as no Termination Event shall
have occurred and be continuing), permit certified public accountants or
other auditors acceptable to the Agent to conduct, at Seller's expense
(so long as such expenses for Seller's account do not exceed $15,000 in
a calendar year), a review of Seller's and Amphenol's books and records
with respect to the Receivables.
(d) Keeping of Records and Books of Account. Maintain and
implement, and in the case of Amphenol, cause Seller and each Originator
to maintain and implement, administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing Portfolio Receivables in the event of the destruction of the
originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the
collection of all Portfolio Receivables (including, without limitation,
records adequate to permit the daily identification of each new
Portfolio Receivable and all Collections of and adjustments to each
existing Portfolio Receivable).
(e) Performance and Compliance with Receivables and Contracts.
Subject to Section 7.03(b), in the case of Amphenol, at its expense
timely and fully perform and comply, and cause each other Originator
timely and fully to perform and comply, in all material respects with
all of the provisions, covenants and other promises required to be
observed by it under the Contracts related to the Portfolio Receivables
and all purchase orders and other agreements related to such Portfolio
Receivables.
(f) Location of Records. Keep, and in the case of Amphenol, cause
each other Originator to keep, its principal place of business and chief
executive office, and the offices where it keeps its records concerning
the Portfolio Receivables, all related Contracts and all purchase orders
and other agreements related to such Portfolio Receivables (and all
original documents relating thereto), at the address(es) referred to in
Section 6.01(m) or, upon 15 days' prior written notice to the Agent, at
such other locations in jurisdictions where all action required by
Section 8.04 shall have been taken and completed.
(g) Credit and Collection Policies. In the case of Amphenol,
comply, and cause each other Originator to comply, in all material
respects with the Credit and Collection Policy of
Receivables Purchase Agreement - 30
Amphenol and each such Originator, respectively, in regard to each
Portfolio Receivable and the related Contract.
(h) Collections. (i) In the case of Amphenol (individually and
not as Servicer), promptly remit, and cause each other Originator
promptly to remit, to the applicable post office box related to the
Lock-box Accounts (or cause to be deposited directly to such Lockbox
Accounts) all Collections received by Amphenol or such other
Originators, as the case may be;
(ii) Amphenol agrees to instruct, and to cause each other
Originator to instruct, all Obligors to cause all Collections of
Portfolio Receivables to be deposited directly with a Lock-box
Bank; and
(iii) Amphenol shall, and shall cause each Servicer Person
to, promptly draw on any letter of credit supporting any
Receivable originated by it in order to ensure the timely payment
of such Receivable, and shall cause the proceeds of such drawing
to be deposited to a Lock-box Account on the date such drawing is
honored by the issuer of such letter of credit.
(i) Separate Corporate Existence. Amphenol and Seller hereby
acknowledge that Purchaser and the Agent are entering into the
transactions contemplated by this Agreement in reliance upon Seller's
identity as a legal entity separate from Servicer, Amphenol, and the
Originators. Therefore, from and after the date hereof, Seller and
Amphenol shall take all reasonable steps to continue Seller's identity
as a separate legal entity and to make it apparent to third Persons that
Seller is an entity with assets and liabilities distinct from those of
Servicer, Amphenol, the Originators and any other Person, and is not a
division of Servicer, Amphenol, any Originator or any other Person.
Without limiting the generality of the foregoing and in addition to and
consistent with the covenant set forth in Section 7.01(b), Seller and
Amphenol shall take such actions, and Amphenol shall cause the
Originators to take such actions, as shall be required in order that:
(i) Seller will be a limited purpose corporation whose
primary activities are restricted in its certificate of
incorporation to purchasing Receivables from the Originators,
entering into agreements for the servicing of such Receivables,
selling Participations, making Originator Loans and conducting
such other activities as it deems necessary or appropriate to
carry out its primary activities;
(ii) Not less than one member of Seller's Board of
Directors (the "Independent Directors") shall be individuals who
are not direct, indirect or beneficial stockholders, officers,
directors, employees, affiliates, associates, customers or
suppliers of any Amphenol Person or any of its Affiliates.
Seller's Board of Directors shall not approve, or take any other
action to cause, the commencement of a
Receivables Purchase Agreement - 31
voluntary case or other proceeding with respect to Seller under any
applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law, or the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian or
other similar official for Seller unless in each case all of the
Independent Directors shall approve the taking of such action in writing
prior to the taking of such action. The Independent Directors' fiduciary
duty shall be to Seller (and creditors) and not to Seller's shareholders
in respect of any decision of the type described in the preceding
sentence. In the event an Independent Director resigns or otherwise
ceases to be a director of Seller, there shall be selected a replacement
Independent Director who shall not be an individual within the
proscriptions of the first sentence of this clause (ii) or any
individual who has any other type of professional relationship with any
Amphenol Person or any of its Affiliates or any management personnel of
any such Person or Affiliate and who shall be (x) a tenured professor at
a business or law school, (y) a retired judge or (z) an established
independent member of the business community, having a sound reputation
and experience relative to the duties to be performed by such individual
as an Independent Director;
(iii) No Independent Director shall at any time serve as
a trustee in bankruptcy for any Amphenol Person;
(iv) Any employee, consultant or agent of Seller will be
compensated from Seller's own bank accounts for services provided
to Seller except as provided herein in respect of Servicer's Fee.
Seller will engage no agents other than a Servicer for the
Receivables, which Servicer will be fully compensated for its
services to Seller by payment of the Servicer's Fee;
(v) Seller will contract with Servicer to perform for
Seller all operations required on a daily basis to service its
Receivables. Seller will pay Servicer a monthly fee based on the
level of Receivables being managed by Servicer. Seller will not
incur any material indirect or overhead expenses for items shared
between Seller and any Amphenol Person which are not reflected in
the Servicer's Fee. To the extent, if any, that Seller and any
Amphenol Person share items of expenses not reflected in the
Servicer's Fee, such as legal, auditing and other professional
services, such expenses will be allocated to the extent practical
on the basis of actual use or the value of services rendered, and
otherwise on a basis reasonably related to the actual use or the
value of services rendered, it being understood that Amphenol
shall pay all expenses relating to the preparation, negotiation,
execution and delivery of the Transaction Documents and the
Liquidity Agreement, including, without limitation, legal,
commitment, agency and other fees;
Receivables Purchase Agreement - 32
(vi) Seller's operating expenses will not be paid by any
Amphenol Person unless Seller shall have agreed in writing with
such Amphenol Person to reimburse such Amphenol Person for any
such payments;
(vii) Seller will have its own separate mailing address
and stationery;
(viii) Seller's books and records will be maintained
separately from those of every other Amphenol Person;
(ix) Any financial statements of any Amphenol Person which
are consolidated to include Seller will contain detailed notes
clearly stating that Seller is a separate corporate entity and
has sold ownership interests in Seller's accounts receivable;
(x) Seller's assets will be maintained in a manner that
facilitates their identification and segregation from those of
any other Amphenol Person;
(xi) Seller will strictly observe corporate formalities in
its dealings with each Amphenol Person, and funds or other assets
of Seller will not be commingled with those of any Amphenol
Person. Seller shall not maintain joint bank accounts or other
depository accounts to which any Amphenol Person (other than
Amphenol in its capacity as Servicer or any other Originator in
its capacity as a Servicer Person) has independent access. None
of Seller's funds will at any time be pooled with any funds of
any other Amphenol Person;
(xii) Seller shall pay to the appropriate Amphenol Person
the marginal increase (or, in the absence of such increase, the
market amount of its portion) of the premium payable with respect
to any insurance policy that covers Seller and any other Amphenol
Person, but Seller shall not, directly or indirectly, be named or
enter into an agreement to be named, as a direct or contingent
beneficiary or loss payee, under any such insurance policy, with
respect to any amounts payable due to occurrences or events
related to any other Amphenol Person;
(xiii) Seller will maintain arm's length relationships
with each Amphenol Person. Any Amphenol Person that renders or
otherwise furnishes services to Seller will be compensated by
Seller at market rates for such services; and
(xiv) Neither Seller nor any Amphenol Person will be or
will hold itself out to be responsible for the debts of the other
or the decisions or actions respecting the daily business and
affairs of the other.
(j) Post Office Boxes. Except to the extent already provided in
connection with the Original RPA, within 60 days after the date hereof,
Amphenol shall deliver to the Agent
Receivables Purchase Agreement - 33
(with a copy for Purchaser) a certificate from an authorized officer of
Amphenol to the effect that (i) 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 Seller (unless such post office boxes are in
the name of the relevant Lock-box Banks) and (ii) all relevant
postmasters have been notified that each of Servicer (and each 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).
SECTION 7.02 Reporting Requirements of Seller. From the date hereof
until the first day following the Commitment Termination Date on which all
Participations shall be reduced to zero and all Obligations shall have been
finally and fully paid and performed, Seller will, unless the Agent shall
otherwise consent in writing, furnish to the Agent the following:
(a) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the end of each of the first three
quarters of each fiscal year of Amphenol and Seller, (i) copies of (A)
the unaudited consolidated balance sheet of Amphenol and its
consolidated subsidiaries, and (B) the unaudited balance sheet of
Seller, in each case as at the end of such quarter, together with
unaudited statements of earnings, stockholders' equity
and cash flows for such quarter and the portion of the fiscal year
through such quarter, prepared in accordance with GAAP (subject to
ordinary course audit adjustments; provided that any adjusted financial
statements shall be furnished to the Agent as soon as reasonably
practical thereafter) and certified by the chief financial officer,
treasurer or chief accounting officer of Amphenol (such officer being
herein called the "Financial Officer"), (ii) a letter from the Financial
Officer certifying to the best knowledge of the Financial Officer that
neither a Termination Event nor an Unmatured Termination Event has
occurred and is continuing;
(b) Annual Financial Statements. As soon as available and in any
event within 120 days after the end of each fiscal year of each of
Amphenol and Seller, a copy of (A) the consolidated balance sheet of
Amphenol and its consolidated subsidiaries, and (B) the balance sheet of
Seller, in each case as at the end of such fiscal year, together with
the related statements of earnings, stockholders' equity and cash flows
for such fiscal year, each prepared in accordance with GAAP applied
consistently throughout the periods reflected therein (Amphenol's
consolidated balance sheet and such related statements to be certified
without any Impermissible Qualification by independent certified public
accountants of nationally recognized standing, and Seller's balance
sheet and such related statements to be certified by the Financial
Officer);
(c) Reports to Holders and Exchanges. In addition to the reports
required by subsections (a) and (b) above, promptly upon the Agent's
request, copies of any publicly-filed reports or other documents,
including any reports or registration statements that
Receivables Purchase Agreement - 34
Amphenol or Seller files with the Securities and Exchange Commission or
any national securities exchange other than registration statements
relating to employee benefit plans;
(d) ERISA. Promptly after receiving any notice of any Reportable
Event (as defined in Title IV of ERISA) with respect to any Amphenol
Person that would be reasonably likely to have a Material Adverse
Effect, a copy of such notice;
(e) Termination Events. As soon as possible after the occurrence
of, and in any event within three Business Days after the occurrence of,
each Termination Event and each Unmatured Termination Event, a written
statement of Seller's chief financial officer or chief accounting
officer setting forth details thereof and the action that Seller
proposes to take with respect thereto, in each case in reasonable
detail;
(f) Litigation. As soon as possible, and in any event within
three Business Days of Seller's knowledge thereof, written notice of (i)
any action, suit, proceeding, arbitration, regulatory or governmental
investigation of the type described in Schedule 6.01(f) not previously
disclosed to the Agent, and (ii) any material adverse development in
previously disclosed actions, suits, proceedings, arbitrations,
regulatory or governmental investigations; and
(g) Other. Promptly, from time to time, such other information,
documents, records or reports with respect to the Receivables or the
conditions or operations, financial or otherwise, of Seller or Amphenol
as the Agent may from time to time reasonably request in order to
protect the interests of the Agent or Purchaser in connection with this
Agreement.
SECTION 7.03 Negative Covenants. From the date hereof until the date
following the Commitment Termination Date on which all Participations shall be
reduced to zero and all Obligations hereunder shall have been finally and fully
paid and performed, Seller and Amphenol shall perform their respective
Obligations under this Section 7.03, unless the Agent shall otherwise consent in
writing:
(a) Sales, Liens, Etc. Except as otherwise provided herein or in
the Purchase and Sale Agreement, neither Seller nor Amphenol shall sell,
assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Adverse Claim upon or with respect to, any
Portfolio Receivable or related Contract or Related Security, any
interest therein, or upon or with respect to any lock-box account to
which any Collections of any Portfolio Receivable are sent, or assign
any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables. Except as otherwise
permitted in Section 8.02(c), Seller and Amphenol shall not, and
Amphenol shall not permit any Originator to, extend, amend or otherwise
modify in any material respect the terms of any Portfolio Receivable, or
amend, modify or waive, in any material respect, any term or
Receivables Purchase Agreement - 35
condition of any Contract related thereto (which term or condition
relates to payment under, or the enforcement of, such Contract).
(c) Change in Business or Credit and Collection Policy. Seller
and Amphenol shall not, and Amphenol shall not permit any Originator to,
make any change in the character of its business or materially alter its
Credit and Collection Policy, which change would, in either case, be
reasonably likely to have a Material Adverse Effect.
(d) Change in Payment Instructions to Obligors. Add or terminate
any bank as a Lock-box Bank from those listed in Exhibit 6.01(n) or make
any material change in its instructions to Obligors regarding
Collections or payments to be made to any Lock-box Bank, unless (i) the
Agent shall have received notice of such addition, termination or change
and duly executed copies of Lock-box Agreements with each new Lock-box
Bank and copies of such instructions (which shall be in form and
substance acceptable to the Agent) and (ii) Purchaser previously shall
have consented in writing to such addition, termination or change (which
consent, in the case of any such addition or termination, shall not be
unreasonably withheld by Purchaser). Seller shall not add or terminate
any bank as an Account Bank from those listed in Schedule 7.03(d) or
make any change in its instructions regarding payments to be made by any
Account Bank, unless (A) the Agent shall have received duly executed
counterparts of an Account Agreement with each new Account Bank and
copies of such instructions (which shall be in form and substance
acceptable to the Agent) and (B) Purchaser previously shall have
consented in writing to such addition, termination or change (which
consent, in the case of any such addition or termination, shall not be
unreasonably withheld by Purchaser).
(e) Mergers, Acquisitions, Sales, etc. (i) Seller shall not:
(A) be a party to any merger or consolidation, or
directly or indirectly purchase or otherwise acquire,
whether in one or a series of transactions, all or
substantially all of the assets or any stock of any class
of, or any partnership or joint venture interest in, any
other Person, or sell, transfer, assign, convey or lease
any of its property and assets (including, without
limitation, any Receivable or any interest therein) other
than pursuant to this Agreement;
(B) make, incur or suffer to exist an investment
in, equity contribution to, loan, credit or advance to, or
payment obligation in respect of the deferred purchase
price of property from any other Person, except for
Permitted Investments and the Originator Notes; or
(C) create any direct or indirect Subsidiary or
otherwise acquire direct or indirect ownership of any
equity interests in any other Person.
Receivables Purchase Agreement - 36
(ii) Amphenol shall not, and shall not permit any other
Originator to (unless such Originator is removed from the
Purchase and Sale Agreement in accordance with the provisions
thereof):
(A) be a party to any merger or consolidation,
except (1) a merger or consolidation involving Amphenol or
an Originator where Amphenol or the Originator is the
surviving corporation, or (2) a merger or consolidation
among two or more Originators (including, without
limitation, Amphenol), or
(B) directly or indirectly sell, transfer, assign,
convey or lease (1) whether in one or a series of
transactions, all or substantially all of its assets,
except to another Originator (including, without
limitation, Amphenol), or (2) any Receivables or any
interest therein (other than pursuant to this Agreement or
the Purchase and Sale Agreement).
(f) Restricted Payments.
(i) General Restriction. Except in accordance with this
Section 7.03(f), Seller shall not (A) purchase or redeem any
shares of its capital stock, (B) declare or pay any Dividend or
set aside any funds for any such purpose, (C) prepay, purchase or
redeem any subordinated indebtedness of Seller, (D) lend or
advance any funds or (E) repay any loans or advances to, for or
from any other Amphenol Person. Actions of the type described in
this clause (i) are herein collectively called "Restricted
Payments".
(ii) Types of Permitted Payments. Subject to the
limitations set forth in clause (iii) below, Seller may make
Restricted Payments so long as such Restricted Payments are made
only to the Originators and only in one or more of the following
ways:
(A) Seller may make cash payments (including
prepayments) on the AFC Notes in accordance with their
terms; and
(B) if no amounts are then outstanding under the
AFC Notes, Seller may (1) declare and pay Dividends and
(2) make demand loans to one or more of the Originators
(so long as each such loan is evidenced by an Originator
Note).
(iii) Specific Restrictions. Seller may make Restricted
Payments only out of funds in the Lock-box Accounts that do not
represent the Purchaser's Share of any
Receivables Purchase Agreement - 37
Collections (or deemed Collections). Furthermore, Seller shall
not pay, make or declare:
(A) any Dividend if, after giving effect thereto,
Seller's Tangible Net Worth would be less than Four
Million Dollars ($4,000,000); or
(B) any Restricted Payment (including any Dividend)
if, after giving effect thereto, any Termination Event or
Unmatured Termination Event shall have occurred and be
continuing.
(g) Use of Seller's Share of Collections. Seller shall apply its
share of Collections to make payments in the following order of
priority: first, the payment of its expenses (including, without
limitation, the Obligations payable to Purchaser and the Agent
hereunder), second, the payment of accrued and unpaid interest on the
AFC Notes, third, the payment of the outstanding principal amount of the
AFC Notes, and fourth, other legal and valid corporate purposes.
(h) Amendments to Certain Documents. (i) Neither Seller nor
Amphenol shall, and Amphenol shall not permit any other Originator to,
amend, supplement, amend and restate, or otherwise modify the Purchase
and Sale Agreement, any Originator Assignment Certificate, any AFC Note,
any Originator Note, the Subscription Agreement, any Lock-box Agreement,
any agreement between a Lock-box Bank and Seller which is referred to in
any Lock-box Agreement, or Seller's certificate of incorporation or
by-laws, except (A) in accordance with the terms of such document,
instrument or agreement (and, in the case of any agreement between a
Lock-box Bank and Seller which is referred to in any Lock-box
Agreement, in accordance with the terms of the relevant Lock-box
Agreement) and (B) with the advance written consent of Purchaser and the
Agent.
(ii) Amphenol shall not, and it shall not permit any
Amphenol Person (including Seller or any Originator) to, enter
into, execute and deliver, or otherwise become bound by, any
agreement, instrument, document or other arrangement that
restricts the right of any Amphenol Person that is a party to
this Agreement or any other Transaction Document to amend,
supplement, amend and restate or otherwise modify, or to extend
or renew, or to waive any right under, this Agreement or any
other Transaction Document.
(i) Deposits to Special Accounts. Deposit or otherwise credit, or
cause or permit to be so deposited or credited by any Originator or any
other Person, to any Lock-box Account or any Bank Account cash or cash
proceeds other than Collections of Receivables.
(j) Incurrence of Indebtedness. Seller shall not (i) create,
incur or permit to exist any Indebtedness, Guaranty or liability or (ii)
cause or permit to be issued for its account any
Receivables Purchase Agreement - 38
letters of credit or bankers' acceptances, except for Indebtedness
incurred pursuant to an AFC Note and liabilities incurred pursuant to or
in connection with the Transaction Documents or otherwise permitted
therein.
ARTICLE VIII
ADMINISTRATION AND COLLECTION
SECTION 8.01 Designation of Servicer.
(a) Amphenol as Initial Servicer. The servicing, administering and
collection of the Receivables shall be conducted by the Person designated as
servicer hereunder ("Servicer") from time to time in accordance with this
Section 8.01. Until the Agent gives notice to Amphenol of the designation of a
new Servicer (the "Successor Notice"), which notice may be given at any time
after the occurrence and during the continuance of a Termination Event, Amphenol
is hereby designated as, and hereby agrees to perform the duties and obligations
of, Servicer pursuant to the terms hereof.
(b) Successor Notice. Upon Amphenol's receipt of a Successor Notice,
Amphenol agrees that it will terminate its activities as Servicer hereunder, and
will cause each Servicer Person to terminate its activities in that capacity, in
a manner that the Agent indicates will facilitate the transition of the
performance of such activities to the new Servicer. The Agent, or such other
Person as the Agent shall designate, shall assume each and all of the
obligations of Amphenol (and each Servicer Person) to service, administer and
collect such Receivables, on the terms and subject to the conditions herein set
forth, and Amphenol shall use its best efforts (and shall cause each Servicer
Person to use its best efforts) to assist the Agent (or its designee) in
assuming such obligations. Prior to designating such Person (other than the
Agent) as the new Servicer, the Agent agrees to use reasonable efforts to
obtain at least two competitive bids from Persons of sound reputation that are
experienced in the business of servicing portfolios of trade receivables and/or
that are otherwise acceptable to the Agent and rating agencies then rating
Purchaser's Commercial Paper Notes, and agrees to designate as the new Servicer
such Person submitting the lowest of such bids; provided, however, that such
Person's bid meets all requirements of the Agent specified in its request for
such bids; and provided further, that the failure of the Agent to obtain such
bids shall not adversely affect the right of the Agent to designate a new
Servicer pursuant to Sections 8.01(a) and (b).
(c) Subcontracts. Servicer hereby appoints, and Purchaser and the Agent
hereby consent to the appointment by Servicer of, each Originator to act as a
Servicer Person with respect to the portion of the Portfolio Receivables sold by
such Originator to Seller; provided, that Servicer shall remain liable for the
performance of all duties and obligations of Servicer pursuant to the terms of
this Agreement and the other Transaction Documents. The obligations and rights
of each Originator, as a Servicer Person, are set forth in certain letter
agreements by and among the parties hereto and the Originators (each a "Servicer
Person Letter Agreement").
Receivables Purchase Agreement - 39
(d) Servicer's Fee. Seller hereby agrees to pay to Servicer a fee (the
"Servicer's Fee") for each calendar month (or portion thereof in which such
Person was acting as Servicer) from and including the date hereof to but
excluding the date on which all amounts payable under or in connection with this
Agreement and the Purchase and Sale Agreement have been finally paid in full
(and this Agreement and the Purchase and Sale Agreement shall have terminated),
in an amount calculated as follows:
(i) at any time when Amphenol is the Servicer, an amount equal to
one-twelfth of 1% of the Unpaid Balance of the Portfolio Receivables as
measured on the latest Month End Date referred to in the most recent
Periodic Report; or
(ii) on and after Servicer's reasonable request made at any time
when Amphenol is not the Servicer, the greater of (A) an amount
calculated pursuant to the foregoing clause (i) or (B) an alternative
amount specified by Servicer not exceeding 110% of the aggregate costs
and expenses incurred by Servicer during such calendar month in
connection with performing its obligations under this Agreement and the
other Transaction Documents.
Such Servicer's Fee shall be paid out of the Seller's share of the Collections
of Receivables, except to the extent the Servicer's Fee is expressly provided to
be paid out of the Purchaser's Share of such Collections pursuant to Section
3.02(a)(iii). Accrued Servicer's Fees shall be payable at the times and in the
amounts specified in Article III. In addition, on the fifteenth day of each
calendar month (or, if such day is not a Business Day, on the next Business
Day), Seller and Servicer shall determine whether there was an aggregate
underpayment (in which case Seller shall make an appropriate additional payment
to Servicer on such date) or overpayment (in which case Servicer shall make, out
of the Seller's share of such Collections, an appropriate rebate to Seller on
such date) of the Servicer's Fee during the most recent calendar month.
SECTION 8.02 Duties of Servicer and Seller.
(a) Appointment; Duties in General. Each of Seller, Purchaser and the
Agent hereby appoints the Servicer, from time to time designated pursuant to
Section 8.01, as its agent to enforce their respective rights and interests in
and under the Portfolio Receivables, the Contracts and the Related Security.
Servicer shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Receivable (or shall cause each Servicer Person to
take or cause to be taken all such actions as may be necessary or advisable to
collect each Receivable sold by it to Seller) from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy of the
applicable Originator.
(b) Allocation of Collections. Servicer shall set aside for the account
of Seller and Purchaser their respective allocable shares of the Collections in
accordance with Article III.
Receivables Purchase Agreement - 40
(c) Modification of Receivables. Servicer may adjust, and may permit
each Servicer Person to adjust, in accordance with the Credit and Collection
Policy of the applicable Originator, the Unpaid Balance of any Receivable of
such Originator to reflect the reductions or cancellations described in the
first sentence of Section 3.04(a). Servicer shall, or shall cause the applicable
Servicer Person to, write off Receivables from time to time in accordance with
the Credit and Collection Policy of the applicable Originator.
(d) Documents and Records. Amphenol shall cause each Originator to
deliver to Servicer, and Servicer shall hold in trust for Seller and Purchaser
in accordance with their respective interests, all documents, instruments and
records (including, without limitation, computer tapes or disks and Contracts)
that evidence or relate to Receivables of such Originator, except that an
Originator shall not be required to make such a delivery to the extent that (but
only so long as) such Originator is acting as a Servicer Person pursuant to this
Agreement.
(e) Certain Duties to Seller. Servicer shall, as soon as practicable
following receipt, turn over to Seller that portion of Collections of
Receivables representing Seller's undivided interest therein, less, in the event
Amphenol is no longer the Servicer, all reasonable and appropriate out-of-pocket
costs and expenses of Servicer of servicing, collecting and administering the
Receivables to the extent not covered by the Servicer's Fee received by it.
(f) Authorization to Act as Seller's Agent. Seller hereby appoints
Servicer (but only for so long as Amphenol is the Servicer in the case of
clauses (i), (v) and (vi) below) as its agent for the following purposes: (i)
selecting the amount of each requested Purchase, (ii) specifying accounts to
which payments are to be made to Seller, (iii) making transfers among, deposits
to and withdrawals from the Lock-box Accounts and other deposit accounts of
Seller for the purposes described in the Transaction Documents, (iv) arranging
payment by Seller of all fees, expenses, other Obligations and other amounts
payable under the Transaction Documents, (v) consenting to assignments and
delegations by Purchaser and (vi) causing the reduction of the Investment
pursuant to Section 3.04(c). Seller irrevocably agrees that (A) it shall be
bound by all actions taken by Servicer pursuant to the preceding sentence, and
(B) that Purchaser, the Agent, the Lock-box Banks, the Account Banks and the
banks holding all other deposit accounts of Seller are entitled to accept
submissions, determinations, selections, specifications, transfers, deposits and
withdrawal requests, and payments from Servicer on behalf of Seller.
(g) Termination. The authorization of Servicer (and each Servicer
Person) under this Agreement (and, in the case of the Servicer Persons, under
the Purchase and Sale Agreement) shall terminate upon receipt by the Agent,
after the Commitment Termination Date, of an amount equal to (i) the Aggregate
Investment plus (ii) accrued Earned Yield for each Participation plus (iii) all
other amounts owed to Purchaser and the Agent and (unless otherwise agreed to by
Servicer and the Agent) to Servicer under this Agreement.
Receivables Purchase Agreement - 41
(h) Agreement Not to Resign. Amphenol acknowledges that Purchaser and
the Agent have relied on Amphenol's agreement to act as the Servicer hereunder
in their respective decisions to execute and deliver the Transaction Documents.
In recognition of the foregoing, Amphenol agrees not to resign as Servicer
voluntarily, or to permit any other Originator to resign as a Servicer Person
voluntarily, unless Amphenol or such Originator is not permitted by law to serve
in such capacity, as evidenced by an opinion of counsel to such effect, which
opinion shall be satisfactory in form and substance to the Agent.
SECTION 8.03 Rights of the Agent.
(a) Notice to Obligors. At any time after the occurrence of and during
the continuation of a Termination Event, the Agent may notify the Obligors of
Receivables, or any of them, of the Purchaser's ownership of Participations.
(b) Notice to Lock-box Banks. At any time following the earlier to occur
of (i) the occurrence of (and during the continuation of) a Termination Event,
or (ii) any of the Conditions Precedent shall not be satisfied and the Agent
shall have requested implementation of the settlement procedures set forth in
Section 3.03, the Agent is hereby authorized to give notice to the Lock-box
Banks, as provided in the Lock-box Agreements, of the transfer to the Agent (for
the benefit of Purchaser) of dominion and control over the Lock-box Accounts to
which the Obligors of Receivables make payments. Seller hereby transfers to the
Agent (for the benefit of Purchaser), effective when the Agent shall give notice
to the Lock-box Banks as provided in the Lock-box Agreements, the exclusive
dominion and control over such Lock-box Accounts, and shall take any further
action that the Agent may reasonably request to effect such transfer. The Agent
is hereby authorized to give notice to the Account Banks, as provided in the
Account Agreements, of the transfer of dominion and control over the Collection
Account and the Liquidation Account to the Agent (for the benefit of Purchaser).
Seller hereby transfers to the Agent (for the benefit of Purchaser), effective
when the Agent shall give notice to the Account Banks as provided in the Account
Agreements, the exclusive dominion and control over such Accounts, and shall
take any further action that the Agent may reasonably request to effect such
transfer.
(c) Rights on Servicer Transfer. At any time following the designation
of a Servicer other than Amphenol pursuant to Section 8.01:
(i) The Agent may direct any Obligors of Receivables to pay all
amounts payable under any Receivable directly to the Agent or its
designee.
(ii) The Agent may direct any Originator to make payment of all
amounts payable to Seller under any Transaction Document (other than any
Originator Note) to which such Originator is a party directly to the
Agent or its designee.
Receivables Purchase Agreement - 42
(iii) Seller shall, at the Agent's request and at Seller's
expense, give notice of Purchaser's ownership of Participations to each
Obligor and direct that payments be made directly to the Agent or its
designee.
(iv) Seller and Amphenol shall, at the Agent's request, (A)
assemble (and, in the case of Amphenol, cause each other Originator to
assemble) all of the documents, instruments and other records
(including, without limitation, computer programs, tapes and disks and
Contracts) which evidence the Receivables, and the related Contracts and
Related Security, or which are otherwise necessary or desirable to
collect such Receivables, and shall make the same available to the Agent
at a place selected by the Agent or its designee, (B) segregate all
cash, checks and other instruments received by it from time to time
constituting Collections of Receivables in a manner acceptable to the
Agent and shall, promptly upon receipt, remit all such cash, checks and
instruments, duly endorsed or with duly executed instruments of
transfer, to the Agent or its designee, and (C) permit (and Amphenol
agrees to cause each Originator to permit), any successor Servicer and
its agents, employees and assignees access to its respective facilities
and its books, records, documents and instruments (including, without
limitation, computer programs, tapes and disks and Contracts) related to
Receivables.
(v) Each of Seller, Amphenol and Purchaser hereby authorizes the
Agent to take any and all steps in Seller's name and on behalf of
Seller, Amphenol or Purchaser which are necessary, in the reasonable
determination of the Agent, to collect all amounts due under any and all
Receivables, including, without limitation, indorsing Seller's or any
Originator's name on checks and other instruments representing
Collections and enforcing such Receivables, the related Contracts and
the Related Security therefor.
(vi) Seller hereby irrevocably appoints the Agent to act as
Seller's attorney-in-fact, with full authority in the place and stead of
Seller and in the name of Seller or otherwise, to take any action and to
execute any instrument that the Agent, in its reasonable determination,
may deem necessary to accomplish the purposes of this Agreement,
including, without limitation:
(A) to ask, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for moneys due and to
become due under or in respect of any Receivable;
(B) to receive, indorse and collect any drafts or other
instruments, documents and chattel paper related to the
Receivables or the Related Security, or constituting Collections;
(C) to file any claims or take any action or institute any
proceedings which Purchaser, in its reasonable determination, may
deem necessary for the collection of
Receivables Purchase Agreement - 43
any of the Receivables or otherwise to enforce the rights of the
Agent and Purchaser with respect to any of the Receivables; and
(D) to perform the affirmative obligations of Seller under
any Transaction Document (other than the Originator Notes).
Seller hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 8.03(c) is irrevocable and coupled with an
interest.
SECTION 8.04 Further Action Evidencing Purchases. Seller agrees that
from time to time, at its expense, it will promptly execute and deliver all
further instruments and documents, and take all further action, that the Agent
may reasonably request in order to perfect, protect or more fully evidence the
Participations purchased by Purchaser hereunder, or to enable any of Purchaser,
any holder of a Certificate or the Agent to exercise or enforce any of their
respective rights hereunder or under their Certificates. Without limiting the
generality of the foregoing, Seller will upon the request of the Agent: (i)
execute and file such financing or continuation statements, or amendments
thereto or assignments thereof, and such other instruments or notices as may be
necessary or appropriate; (ii) ▇▇▇▇ conspicuously each Contract evidencing each
Portfolio Receivable, ▇▇▇▇ its master data processing records evidencing such
Portfolio Receivables and related Contracts with the legend described in Section
5.01(o); and (iii) deliver to Purchaser all letters of credit supporting the
payment of any Portfolio Receivable, together with all necessary instruments of
transfer or assignment. Seller hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto and assignments
thereof, relative to all or any of the Portfolio Receivables and the Related
Security now existing or hereafter arising in the name of Seller. If Seller
fails to perform any of its agreements or obligations under this Agreement, the
Agent may (but shall not be required to) itself perform, or cause performance
of, such Agreement or obligation, and the expenses of the Agent incurred in
connection therewith shall be payable by Seller as provided in Section 12.01.
SECTION 8.05 Application of Collections. Any payment by an Obligor in
respect of any indebtedness owed by it to Seller shall, except as otherwise
specified by such Obligor or otherwise required by contract or law and unless
otherwise instructed by the Agent, be applied as a Collection of any Portfolio
Receivable or Receivables of such Obligor to the extent of any amounts then due
and payable thereunder before being applied to any other indebtedness of such
Obligor.
Receivables Purchase Agreement - 44
ARTICLE IX
TERMINATION EVENTS
SECTION 9.01 Termination Events. A termination event ("Termination
Events") shall occur if any of the following events occurs:
(a)(i) Servicer (if Amphenol) shall fail to perform or observe
any term, covenant or agreement hereunder (other than as referred to in
clause (ii)) and such failure shall remain unremedied for three Business
Days, or (ii) Servicer (if Amphenol) or Seller shall fail to make any
payment or deposit to be made by it hereunder when due;
(b) Any representation or warranty made or deemed to be made by
Seller, Servicer, Amphenol or any Originator (or any of their respective
officers) under or in connection with any Transaction Document or any
Periodic Report or Liquidation Statement or other information or report
delivered pursuant hereto shall prove to have been false or incorrect in
any material respect when made or deemed made;
(c) Seller, Amphenol or any other Originator shall fail to
perform or observe in any material respect any other term, covenant or
agreement contained in this Agreement or in any other Transaction
Document on its part to be performed or observed and any such failure
shall remain unremedied for 30 Business Days after written notice
thereof shall have been given by the Agent to Seller;
(d) A default shall have occurred under any agreements,
indentures or instruments under which Seller, Amphenol or any Material
Subsidiary of Amphenol has outstanding indebtedness for borrowed money
(including guarantees of such indebtedness but excluding non-recourse
indebtedness) in excess of $20 million in principal amount and: (i) such
indebtedness is already due and payable in full or (ii) such default has
resulted in the acceleration of the maturity of such indebtedness, in
each case after a period of five days during which period such default
shall not have been cured or such acceleration shall not have been
rescinded; provided, that no "Termination Event" shall result from any
acceleration of any indebtedness existing under the Original RPA due to
the recapitalization of Amphenol and its subsidiaries referred to in
Section 5.01(q)(i);
(e) An Event of Bankruptcy shall have occurred with respect to
Seller, Amphenol or any other Originator;
(f) The Aggregate Pay-Out Amount shall exceed the Pay-Out Amount
Limit at any time during any month and such condition shall continue to
exist unremedied for two Business Days after the related Report Date
with respect to such month;
Receivables Purchase Agreement - 45
(g) The Default Ratio exceeds 8.0% at any time or the arithmetic
mean of the Default Ratios for the most recent three calendar months
exceeds 5.5%;
(h) The Dilution Ratio exceeds 7.75% at any time;
(i) The arithmetic mean of the Delinquency Ratios for the most
recent three calendar months exceeds 9.5% at any time;
(j) The Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Internal Revenue Code with regard to any
of the assets of Seller and such lien shall not have been released
within ten Business Days, or the Pension Benefit Guaranty Corporation
shall, or shall indicate its intention to, file notice of a lien
pursuant to Section 4068 of ERISA with regard to any of the assets of
Seller or any Originator;
(k) The warranties in Sections 6.01(i)(ii) and 6.02(i)(ii) shall
not be true at any time;
(l) A Change in Control shall have occurred;
(m)(i) Any Transaction Document, or any ownership or other
interest granted or created thereunder, shall (except in accordance with
its terms), in whole or in part, terminate, cease to be effective or
cease to be the legally valid, binding and enforceable obligation of
Seller, Servicer or any Originator; or (ii) Seller, Servicer, any
Originator or any other Amphenol Person shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability;
(n) Seller's Tangible Net Worth shall be less than $4,000,000 for
more than five (5) consecutive Business Days; or
(o) a Purchase and Sale Termination Event shall have occurred
and be continuing.
SECTION 9.02 Remedies.
(a) Optional Termination. Upon the occurrence of a Termination Event
(other than a Termination Event described in Section 9.01(e), (g), (h) or (i)),
the Agent shall, at the request, or may with the consent, of Purchaser, by
notice to Seller declare the Commitment Termination Date to have occurred.
(b) Automatic Termination. Upon the occurrence of a Termination Event
described in Section 9.01(e), (g), (h) or (i) the Commitment Termination Date
shall be deemed to have occurred automatically; provided, however, that with
respect to any proceeding instituted against Seller pursuant to 11 U.S.C. ss.303
(an "Involuntary Federal Proceeding"), the settlement procedures described in
Section 3.03 shall become applicable upon the commencement of such Proceeding
and
Receivables Purchase Agreement - 46
no further Purchases or Reinvestments of Collections shall be made; and provided
further, that if such Involuntary Federal Proceeding is dismissed within 60 days
after its commencement, and if no other Termination Event has occurred, then
following such dismissal the Commitment shall be reinstated as if the Commitment
Termination Date had not occurred upon the commencement of such Involuntary
Federal Proceeding.
(c) Additional Remedies. Upon any termination of the Commitment pursuant
to this Section 9.02, the Agent and Purchaser, in addition to all other rights
and remedies under this Agreement or otherwise, shall have all other rights and
remedies provided under the UCC of each applicable jurisdiction and other
applicable laws, which rights shall be cumulative. Without limiting the
foregoing or the general applicability of Article XI hereof, (i) the occurrence
of a Termination Event shall not deny Purchaser any remedy in addition to
termination of the Commitment to which Purchaser may be otherwise appropriately
entitled, whether at law or in equity, and (ii) Purchaser may elect to assign
any Participation owned by Purchaser to an assignee following the occurrence of
any Termination Event.
ARTICLE X
THE AGENT
SECTION 10.01 Authorization and Action. Purchaser hereby appoints
▇▇▇▇▇▇▇ ▇▇▇▇▇ as its Agent under and for purposes of each Transaction Document,
and authorizes the Agent to act on its behalf under each Transaction Document
and to exercise such powers hereunder and thereunder as are delegated to the
Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto.
SECTION 10.02 Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or the Agent under or in connection with this
Agreement (including, without limitation, the Agent's servicing, administering
or collecting Portfolio Receivables as Servicer pursuant to Section 8.01),
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, the Agent: (i) may consult with legal
counsel (including counsel for Seller), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to Purchaser or
any holder of a Certificate and shall not be responsible to Purchaser or any
holder of a Certificate for any statements, warranties or representations made
in or in connection with this Agreement or any other Transaction Document; (iii)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or any
other Transaction Document on the part of Seller or any Originator or to inspect
the property (including the books and records) of Seller or any Originator; (iv)
shall not be responsible to Purchaser or any holder of a Certificate for the due
Receivables Purchase Agreement - 47
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any other Transaction Document, the Certificates or any other
instrument or document furnished pursuant hereto; and (v) shall incur no
liability under or in respect of this Agreement or any other Transaction
Document by acting upon any notice (including notice by telephone), consent,
certificate or other instrument or writing (which may be by telex) believed by
it to be genuine and signed or sent by the proper party or parties.
ARTICLE XI
ASSIGNMENT OF PURCHASER'S INTEREST
SECTION 11.01 Restrictions on Assignments. None of Amphenol, Seller or
Purchaser may assign its rights hereunder or any interest herein without the
prior written consent of the Agent, and, subject to Section 9.02(c), Purchaser
may not assign any Participation (or portion thereof) to any Person without the
prior written consent of Seller; except that (i) Purchaser may assign a
Participation (or any portion thereof) to the Surety Bond Provider pursuant to
the Insurance Agreement, and (ii) Purchaser may assign and grant a security
interest in each Participation, and in all Purchaser's rights under this
Agreement, to Bank of Montreal Trust Company, as Collateral Trustee, and any
successor in such capacity, to secure Purchaser's obligations under or in
connection with the Commercial Paper Notes, the Liquidity Agreement, the
Insurance Agreement, the Depositary Agreement (as defined in the Liquidity
Agreement) and certain other obligations of Purchaser incurred in connection
with the funding of the Purchases and Reinvestments hereunder, which assignment
and grant of a security interest shall not be considered an "assignment" for
purposes of the second sentence of this Section 11.01 or, prior to the
enforcement of such security interest, for purposes of any other provision of
this Agreement; provided, that, notwithstanding any such assignment permitted
pursuant to clause (i) or (ii), the Purchaser's obligations hereunder shall
remain unchanged. Within five Business Days after notice of such proposed
assignment, Seller agrees to advise the Agent of its consent or non-consent
thereto.
SECTION 11.02 Evidence of Assignment; Endorsement on Certificate. Any
assignment of any Participation (or portion thereof) may be evidenced by an
instrument of assignment in the form of Exhibit 11.01 or by such other
instrument(s) as may be satisfactory to Purchaser, the Agent and the assignee.
Purchaser hereby authorizes the Agent to, and the Agent agrees that it shall,
endorse the Certificate to reflect any assignments made pursuant to this Article
XI or otherwise.
SECTION 11.03 Rights of Assignee. Upon the assignment of any
Participation (or portion thereof) in accordance with this Article XI, to an
assignee (other than the Surety Bond Provider or the Collateral Trustee), such
assignee shall have all of the rights of Purchaser hereunder with respect to
such Participation (or portion thereof) and all references to Purchaser
(including in Section 4.02) shall be deemed to apply to such assignee to the
extent of its interest in the related Investment and the related Collection.
Receivables Purchase Agreement - 48
SECTION 11.04 Rights of Collateral Trustee. Seller hereby agrees that,
upon notice to Seller, the Collateral Trustee may exercise all the rights of
Agent hereunder with respect to all Participations (or portions thereof) and
Collections with respect thereto that are owned by Purchaser. Without limiting
the foregoing, upon such notice the Collateral Trustee: (a) may request Servicer
to segregate the Purchaser's Share of Collections from the Seller's allocable
share, and from each other's allocable share, in accordance with Section
8.02(b), (b) may give the Successor Notice pursuant to Section 8.01(a), (c) may
give or require the Agent to give notice to the Lock-box Banks as referred to in
Section 8.03(b), and (d) may direct the Obligors of Portfolio Receivables to
make payments in respect thereof directly to an account designated by it to the
same extent as the Agent might have done.
ARTICLE XII
INDEMNIFICATION
SECTION 12.01 Indemnities by Seller and Amphenol.
(a) General Indemnity. Without limiting any other rights which any such
Person may have hereunder or under applicable law, Seller hereby agrees, and
Amphenol jointly and severally with Seller, hereby agrees, to indemnify each of
the Agent, Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇▇, the Banks, the Surety Bond Provider, their
respective Affiliates, successors, transferees and assigns and all officers,
directors, shareholders, controlling persons, employees and agents of any of the
foregoing (each an "Indemnified Party"), forthwith on demand, from and against
any and all damages, losses, claims, liabilities and related costs and expenses,
including reasonable attorneys' fees and disbursements (all of the foregoing
being collectively referred to as "Indemnified Amounts") awarded against or
incurred by any of them arising out of or relating to the failure of Seller,
Amphenol or any Originator to perform its obligations under any Transaction
Document or arising out of claims asserted against an Indemnified Party relating
to the transactions contemplated thereby or the use of proceeds therefrom,
including (without limitation) in respect of the ownership or funding of a
Participation or in respect of any Receivable or any Contract, excluding,
however, (x) Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party, (y) recourse
(except as otherwise specifically provided in this Agreement) for Defaulted
Receivables or (z) any tax based upon or measured by net income or gross
receipts. Without limiting the foregoing, Seller agrees, and Amphenol jointly
and severally with Seller agrees, to indemnify each Indemnified Party for
Indemnified Amounts arising out of or relating to:
(i) the transfer by Seller of any interest in any Receivable
other than a Participation;
(ii) the breach of any representations or warranties made by
Seller, Amphenol (or any of their respective officers) under or in
connection with this Agreement, any Periodic Report, Purchase Report or
Liquidation Statement or any other information or report delivered by
Receivables Purchase Agreement - 49
Seller or Servicer pursuant hereto which shall have been false or
incorrect in any material respect when made or deemed made;
(iii) the failure by Seller, Amphenol or any Originator to comply
with any applicable law, rule or regulation with respect to any
Receivable or the related Contract, or the nonconformity of any
Receivable or the related Contract with any such applicable law, rule or
regulation;
(iv) the failure to vest and maintain vested in Purchaser an
undivided percentage ownership interest, to the extent of each
Participation owned by it hereunder, in the
Receivables in, or purporting to be in, the Portfolio, free and clear of
any Adverse Claim, other than an Adverse Claim arising solely as a
result of an act of Purchaser or the Agent, whether existing at the time
of the Purchase of such Participation or at any time thereafter;
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of
any applicable jurisdiction or other applicable laws with respect to any
Receivables in, or purporting to be in, the Portfolio, whether at the
time of any Purchase, Reinvestment or any subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy) of the Obligor to the payment of any Receivable in, or
purporting to be in, the Portfolio (including, without limitation, a
defense based on such Receivable's or the related Contract's not being a
legal, valid and binding obligation of such Obligor enforceable against
it in accordance with its terms), or any other claim resulting from the
sale of the merchandise or services related to such Receivable or the
furnishing or failure to furnish such merchandise or services;
(vii) any failure of Amphenol, as Servicer or otherwise, to
perform its duties or obligations in accordance with the provisions of
Article VIII;
(viii) any products liability claim arising out of or in
connection with merchandise or services that are the subject of any
Portfolio Receivable; or
(ix) any tax or governmental fee or charge (other than any tax
upon or measured by net income), all interest and penalties thereon or
with respect thereto, and all out-of-pocket costs and expenses,
including the reasonable fees and expenses of counsel in defending
against the same, which may arise by reason of the purchase or ownership
of any Participation, or other interest in the Portfolio Receivables or
in any goods which secure any such Portfolio Receivables.
(b) Contribution. If for any reason the indemnification provided above
in this Section 12.01 is unavailable to an Indemnified Party or is insufficient
to hold an Indemnified Party harmless, then
Receivables Purchase Agreement - 50
Seller and Amphenol shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by such Indemnified Party on the one hand and Seller and Amphenol on the other
hand but also the relative fault of such Indemnified Party as well as any other
relevant equitable considerations.
ARTICLE XIII
SECURITY INTEREST
SECTION 13.01 Grant of Security Interest. To secure the prompt payment
and performance of all obligations of Seller arising in connection with this
Agreement, the Certificate and each other Transaction Document, whether now or
hereafter existing, due or to become due, direct or indirect, or absolute or
contingent, including, without limitation, all Indemnified Amounts, payments on
account of Collections received or deemed to be received and fees, Seller hereby
assigns and grants to Purchaser a first priority security interest in all of
Seller's right, title and interest in, to and under all of the following,
whether now or hereafter existing: (a) all of Seller's rights, remedies, powers
and privileges under, or in respect of, the Purchase and Sale Agreement (other
than under, or in respect of, the Originator Notes), (b) all Lock-box Accounts,
the Collection Account, the Liquidation Account, all funds on deposit in each of
the foregoing accounts and all certificates and instruments, if any, from time
to time evidencing such accounts and funds on deposit therein, all investments
made with such funds, all claims thereunder or in connection therewith, and all
interest, dividends, moneys, instruments, securities and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing, and (d) all proceeds and amounts
received or receivable by Seller under any or all of the foregoing. This
Agreement shall constitute a security agreement under applicable law with regard
to the security interest granted pursuant to this Section 13.01.
SECTION 13.02 Further Assurances. The provisions of Section 8.04 shall
apply to the security interest granted under Section 13.01 as well as to the
Purchases and all Participations hereunder.
SECTION 13.03 Remedies. Upon the occurrence of a Termination Event,
Purchaser shall have, with respect to the collateral granted pursuant to Section
13.01, and in addition to all other rights and remedies available to Purchaser
or the Agent under this Agreement or other applicable law, all the rights and
remedies of a secured party upon default under the UCC.
Receivables Purchase Agreement - 51
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by Seller or Amphenol therefrom
shall in any event be effective unless the same shall be in writing and signed
by (i) Seller, Amphenol, the Agent and Purchaser (with respect to an amendment)
or (ii) the Agent and Purchaser (with respect to a waiver or consent by them) or
Seller or Amphenol (as applicable) (with respect to a waiver or consent by
them), as the case may be, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment (other than an extension of the
Scheduled Commitment Termination Date) shall be effective unless the rating
agencies then rating Purchaser's Commercial Paper Notes shall have issued a
written statement that such amendment will not result in a downgrade or
withdrawal of the rating of such Commercial Paper Notes.
SECTION 14.02 Notices, Etc. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimile communication) and shall be personally delivered or sent by
facsimile (to be followed by mail) to the intended party at the address or
facsimile number of such party set forth under its name on the signature pages
hereof or at such other address or facsimile number as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be effective, (i) if personally delivered, when received,
and (ii) if transmitted by facsimile, when sent, receipt confirmed by telephone
or electronic means, except that notices and communications pursuant to Article
I shall not be effective until received.
SECTION 14.03 No Waiver; Cumulative Remedies. No failure on the part of
the Agent, any Affected Party, any Indemnified Party, Purchaser or any other
holder of any Participation (or any portion thereof) to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 14.04 Binding Effect; Assignability. This Agreement shall be
binding upon and inure to the benefit of Seller, Amphenol, the Agent and
Purchaser and their respective successors and assigns, and the provisions of
Section 4.02 and Article XII shall inure to the benefit of the Affected Parties
and the Indemnified Parties, respectively, and their respective successors and
assigns; provided, however, that nothing in the foregoing shall be deemed to
authorize any assignment not permitted in Section 11.01. This Agreement shall
create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until such
time, after the Commitment Termination Date, as all Participations shall have
been reduced to zero and all Obligations shall have been finally and fully paid
and performed. The rights and remedies
Receivables Purchase Agreement - 52
with respect to any breach of any representation and warranty made by Seller or
Amphenol pursuant to Article VI and the provisions of Article XII and Sections
4.02, 14.06 and 14.07 shall be continuing and shall survive any termination of
this Agreement.
SECTION 14.05 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCEPT
TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE INTERESTS OF PURCHASER IN
THE RECEIVABLES, OR REMEDIES HEREUNDER IN RESPECT THEREOF, ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 14.06 Costs, Expenses and Taxes. In addition to its obligations
under Article XII, Seller and Amphenol, jointly and severally, agree to pay on
demand:
(a)(i) all costs and expenses of Purchaser, the Agent, ▇▇▇▇▇▇▇
▇▇▇▇▇ and Bank of Montreal (including, without limitation, the
reasonable fees and expenses of counsel thereof) in connection with (A)
the preparation, execution and delivery of this Agreement, the
Certificate, the other Transaction Documents and the Liquidity
Agreement, (B) the preparation, execution and delivery of any waiver,
amendment or other modification to this Agreement, any of the
Transaction Documents and, to the extent caused by any such waiver,
amendment or modification, any waiver, amendment or other modification
to the Liquidity Agreement, and in each case all related certificates
and other documents, and (C) the enforcement of this Agreement, the
Certificate and the other Transaction Documents or any claim of breach
of contract, breach of warranty or any other breach of this Agreement,
the Certificate or any of the other Transaction Documents or any tort
claim relating to any of the foregoing, and (ii) all costs and expenses
of the Surety Bond Provider (including, without limitation, the
reasonable fees and expenses of its counsel) in connection with the
circumstance described in clause (C) above; and
(b) all stamp and other taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing and
recording of this Agreement, the Certificates or the other Transaction
Documents, and agrees to indemnify each Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.
SECTION 14.07 No Proceedings. Each of Seller, Amphenol, the Agent and
▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby agree that they will not institute against Purchaser, or
join any other Person in instituting against Purchaser, any insolvency
proceeding (namely, any proceeding of the type referred to in the definition of
Event of Bankruptcy) so long as any Commercial Paper Notes issued by Purchaser
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which any such Commercial Paper Notes shall have been
outstanding.
Receivables Purchase Agreement - 53
SECTION 14.08 No Recourse to Certain Persons. No recourse under any
obligation, covenant or agreement of Purchaser contained in this Agreement shall
be had against any stockholder, employee, officer, director, affiliate or
incorporator of Purchaser; provided, however, that nothing in this Section 14.08
shall relieve any of the foregoing persons from any liability which such Person
may otherwise have for its gross negligence or willful misconduct, it being
understood, however, that recourse by the Seller to any of the foregoing persons
in the event of any such Person's gross negligence or willful misconduct shall
be limited to the assets of Purchaser.
SECTION 14.09 Confidentiality. Each of the Purchaser and the Agent and
each of its respective successors and assigns hereby agrees that it will
maintain and cause its respective employees and Affiliates to maintain the
confidentiality of all non-public information with respect to Seller, Amphenol
and any other Originator and each of their respective businesses obtained by any
such party in connection with the exercise of its rights pursuant to Section
7.01(c), except (i) as may be required or appropriate in communications with its
respective independent public accountants, legal advisors or with independent
financial rating agencies, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over it, (iii) as may be required
or appropriate in response to any summons or subpoena or in connection with any
litigation or similar proceeding, (iv) as may be required by or in order to
comply with any law, order, regulation or ruling, and (v) to any Bank, the
Surety Bond Provider, any dealer or placement agent for Purchaser's Commercial
Paper Notes (only as to the Periodic Reports), and any actual or potential
assignee of, or participants in, any of the rights or obligations of Purchaser,
any Bank, the Surety Bond Provider or the Agent; provided, that such Person has
been informed of and has agreed to the foregoing confidentiality restrictions.
SECTION 14.10 Submission to Jurisdiction. EACH PARTY HERETO HEREBY
IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ILLINOIS OR UNITED
STATES FEDERAL COURTS SITTING IN CHICAGO, ILLINOIS, OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION
14.02; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS SECTION 14.10
SHALL AFFECT ANY PARTY'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING ANY
Receivables Purchase Agreement - 54
ACTION OR PROCEEDING AGAINST ANY PARTY OR ITS RESPECTIVE PROPERTY IN THE COURTS
OF ANY OTHER JURISDICTIONS.
SECTION 14.11 Waiver of Jury Trial. EACH PARTY HERETO WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR RELATING TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP
EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT,
AND AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY
BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER
PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
SECTION 14.12 Integration. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire Agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written understandings.
SECTION 14.13 Captions and Cross References. The various captions
(including, without limitation, the table of contents) in this Agreement are
included for convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. References in this Agreement to any
underscored Section or Exhibit are to such Section or Exhibit of this Agreement,
as the case may be. Appendix A and the Exhibits hereto are hereby incorporated
by reference into and made a part of this Agreement.
SECTION 14.14 Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement.
[Signature pages begin on next page]
Receivables Purchase Agreement - 55
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
AMPHENOL FUNDING CORP.,
as Seller
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
AMPHENOL CORPORATION, individually
and as initial Servicer
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as
Agent
By:
----------------------------------------
Name:
------------------------------------
Title:
------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule 6.01(f)
to Receivables Purchase Agreement
DESCRIPTION OF PROCEEDINGS
Amphenol Funding Corporation
NONE
Amphenol Corporation
NONE
Amphenol Interconnect Products Corporation
NONE
Times Fiber Communications, Inc.
NONE
▇▇▇▇ National Inc.
NONE
The Sine Companies, Inc.
NONE
Schedule 6.01(f)-1
Schedule 6.01(m)
to Receivables Purchase Agreement
AMPHENOL CORPORATION
LIST OF OFFICES WHERE RECORDS ARE KEPT
Name Division/Subsidiary Address
---- ------------------- -------
Amphenol Corporation Subsidiary ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Amphenol Interconnect Subsidiary ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Products Corporation
Amphenol - Aerospace Operations Division ▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(f/k/a Bendix Connector Operations)
Amphenol Fiber Optic Products Division ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇-National, Inc. Subsidiary ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Amphenol Communications & Network Division ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Products Division (f/k/a
RF/Microwave Operations)
Amphenol Spectra Strip/ITD Division ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Times Fiber Communications, Inc. Subsidiary ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Times Fiber Communications, Inc. Subsidiary ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
The Sine Companies, Inc. Subsidiary ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Schedule 6.01(m)-1
Schedule 6.01(n)
to Receivables Purchase Agreement
AMPHENOL CORPORATION
SUMMARY OF LOCKBOX ACCOUNT NUMBERS
BANK A/C # LOCKBOX #
---- ----- ---------
1. AAO Northern Trust 963445 92386
Floor B-11
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. AAO ▇▇▇▇▇ Fargo 4159259282 7628
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. AAO NationsBank 0180744946 840690
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4. FOP Bank of America - Illinois 7377169 98291
20th Floor ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. CNP Bank of America - Illinois 7164769 96144
20th Floor ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. CNP Fleet 1522434 840
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
7. SS Fleet 9369245973 152
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
8. TFC Fleet 0000227608 ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule 6.01(n)-1
BANK A/C # LOCKBOX #
---- ----- ---------
9. AIPC Fleet 1522450 825
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. AIPC ▇▇▇▇▇ Fargo 4159259290 7629
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. P/N Northern Trust 4103327 92616
Floor B-11
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. SINE NBD Bank 0033820-44 78139
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule 6.01(n)-2
Schedule 6.01(r)
to Receivables Purchase Agreement
TRADE NAMES AND CORPORATE REORGANIZATIONS
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
Schedule 6.01(r)-1
Sine Electro-Mold, Inc.
Mil-Specialists, Inc.
Amphenol Funding Corp. Amphenol Funding Corp.
AFC
From and after December 3, 1988, none of Amphenol Funding Corporation,
Amphenol Corporation, Amphenol Interconnect Products Corporation, ▇▇▇▇-National,
Inc. and Times Fiber Communications, Inc. has been the subject of any merger or
other corporate reorganization. From and after December 31, 1992, the Sine
Companies, Inc. has not been the subject of any merger or other corporate
reorganization except as follows: Amphenol Corporation has entered into an
Agreement and Plan of Merger, dated as of January 23, 1997, with NXS Acquisition
Corp. ("NXS"), a wholly-owned subsidiary of KKR 1996 Fund L.P., pursuant to
which approximately 90% of the outstanding shares of Amphenol Corporation's
Class A common stock will be purchased by NXS for $26.00 per share in cash and
approximately 10% of such outstanding shares will be retained by other
stockholders.
Schedule 6.01(r)-2
Schedule 7.01(g)
to Receivables Purchase Agreement
DESCRIPTION OF CREDIT AND COLLECTION POLICY
[Amphenol to provide]
Schedule 7.01(g)-1
Schedule 7.03(d)
to Receivables Purchase Agreement
LIST OF ACCOUNT BANKS
Fleet Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Collection Account
ABA #▇▇▇▇▇▇▇▇▇
A/C Amphenol Funding Corporation
A/C #▇▇▇-▇▇▇-▇▇▇▇
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Liquidation Account
ABA #▇▇▇▇▇▇▇▇▇
A/C Amphenol Funding Corporation
A/C #▇▇-▇▇▇-▇▇▇
Schedule 7.03(d)-1
Exhibit 1.03(a)
to Receivables Purchase Agreement
NOTICE OF PURCHASE
-----------, ----
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Receivables
Purchase Agreement, dated as of May 19, 1997 (as heretofore amended or
supplemented, the "Purchase Agreement"), among Amphenol Funding Corp.,
("Seller"), Amphenol Corporation, as Servicer, Pooled Accounts Receivable
Capital Corporation ("Purchaser") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc., as agent
for Purchaser (the "Agent"). Capitalized terms used in this Purchase Notice and
not otherwise defined herein shall have the meanings assigned thereto in the
Purchase Agreement.
This letter constitutes a Purchase Notice pursuant to Section 1.03(a) of
the Purchase Agreement. Seller desires to sell a Participation on _________, ___
for a purchase price of $________. Seller requests an initial Yield Period of
___ days for such Participation.
Seller hereby represents and warrants as of the date hereof, and as of
the date of Purchase, as follows:
(i) the representations and warranties contained in Section 6.01 of the
Purchase Agreement are correct on and as of such dates as though made on and as
of such dates and shall be deemed to have been made on such dates;
(ii) no Termination Event or Unmatured Termination Event has occurred
and is continuing, or would result from such Purchase;
(iii) after giving effect to the Purchase proposed hereby, the Aggregate
Investment will not exceed the Purchase Limit and the Payout Amount will not
exceed the Payout Amount Limit; and
(iv) the Commitment Termination Date shall not have occurred.
Exhibit 1.03(a)-1
IN WITNESS WHEREOF, the undersigned has caused this Purchase Notice to
be executed by its duly authorized officer as of the date first above written.
AMPHENOL FUNDING CORP.
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
Exhibit 1.03(a)-2
Exhibit 3.04(a)
to Receivables Purchase Agreement
FORM OF PERIODIC REPORT
[▇▇▇▇▇▇▇ to provide]
Exhibit 3.04(a)-1
Exhibit 3.04(b)
to Receivables Purchase Agreement
FORM OF LIQUIDATION STATEMENT
Liquidation Statement No.__
dated ____________, 19__
for Participations
sold pursuant to
Amended and Restated
Receivables Purchase Agreement
Dated as of May 19, 1997
among
Amphenol Funding Corp.,
as Seller,
Pooled Accounts Receivable Capital Corporation,
as Purchaser
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.,
as Agent
Yield Period Beginning:__________
Ending:___________
The following dates within the Yield Period were
Investment Reduction Days: _________________________.(1)
Part I. Allocation of Collections to Participation
on Investment Reduction Days
A. Allocation on each Investment Reduction Day
(See Schedule I for calculations.)
1. Investment Reduction Day occurring on __/__/__ $___
--------
(1) A liquidation statement is only required for Yield Periods during which
one or more Investment Reduction Days occurred.
Exhibit 3.04(b)-1
2. Investment Reduction Day occurring on __/__/__(2) $___
B. Allocation on all Investment Reduction Days collectively
(sum of sub-items of Part I-A) $___
C. Aggregate Earned Yield for Investment Reduction Days occurring
in the Yield Period $___
D. Allocation of Investment Reduction Day Collections to
reduction of Investment (lesser of (x) Part I-B minus Part
I-C and (y) amount of Investment on the last day of the
Settlement Period) $___
E. Allocation of Investment Reduction Day Collections to other
amounts owed by Seller to Purchaser and the Agent (Part I-B
minus the sum of Parts I-C and I-D) $___
F. Allocation of Investment Reduction Day Collections to
Servicer's Fee (Part I-B minus the sum of Parts I-C, I-D and
II-E) $___
G. Excess Collections on Investment Reduction Days (Part I-B
minus the sum of Parts I-C, I-D, I-E and I-F) $___
Part II. Amounts to be Deposited to Purchaser's
Account on Last Day of Settlement Period
A. Aggregate unpaid Earned Yield for the Settlement Period $___
B. Collections allocated to reduction of Investment in respect
of Investment Reduction Days in the Settlement Period (Part
I-D) $___
C. Aggregate Servicer's Fee for non-Investment Reduction Days
in the Settlement Period $___
D. D. Collections allocated to Servicer's Fee in respect of
Investment Reduction Days in the Settlement Period (Part I-F) $___
Part III. Payments
A. Aggregate amounts to be paid to Purchaser (sum of Part II-A
plus Part II-B) $___
--------
(2) Expand or contract to reflect actual number of Investment Reduction
Days.
Exhibit 3.04(b)-2
B. Purchase Price of additional Participations, if any, to
be purchased on last day of Settlement Period $___
C. Aggregate amounts to be paid by Agent to Seller (sum of
Parts I-G and III-B) $___
D. Aggregate amounts to be paid by Agent to Servicer (sum
of Parts II-C and II-D) $___
The Servicer certifies the above figures, and the
figures on the attached Schedules, to be true and complete.
AMPHENOL CORPORATION
Date: By:
----------- -----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 3.04(b)-3
Schedule I
to Liquidation Statement
Allocation of Collections to Participation
on Investment Reduction Day Occurring on __/__/__
(the "Calculation Date")(3)
1. Dollar amount of all Collections received (or deemed received(4))
on the Calculation Date $___
2. Allocation of such Collections to Participation ("The Purchaser's
Share")
2.01 The product of Collections (from Line 1) multiplied by the
Pro Rata Share(5) of the Participation on the Calculation Date $___
2.02 Enter the amount on Line 2.01 above here and in the appropriate
sub-item of Part I-A of the main body of the Liquidation
Statement. $___
--------
(3) To be completed for each Investment Reduction Day occurring in the
subject Yield Period.
(4) This should include the full amount of Collections deemed received
pursuant to Sections 3.03(a) and 3.04 of the Purchase Agreement.
(5) Pro Rata Share is equal to a fraction the numerator of which is the
Investment in such Participation and the denominator of which is the Aggregate
Investment, as of the Calculation Date.
Exhibit 3.04(b)-4
Exhibit 5.01(a)
to Receivables Purchase Agreement
FORM OF CERTIFICATE
CERTIFICATE OF ASSIGNMENTS
Reference is made to the Amended and Restated Receivables Purchase
Agreement, dated as of May 19, 1997 (the "Purchase Agreement") among the
undersigned, AMPHENOL CORPORATION, POOLED ACCOUNTS RECEIVABLE CAPITAL
CORPORATION ("Purchaser"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent. Terms
defined in the Purchase Agreement are used herein as therein defined.
The undersigned hereby sells, assigns and transfers unto Purchaser each
Participation purchased from the undersigned pursuant to the Purchase Agreement.
Each Purchase by Purchaser from the undersigned of an Participation
shall be endorsed by the Agent on a grid with respect to each such Participation
which has been or shall be attached hereto (and upon such attachment made a part
hereof) or, at the Agent's option, in the records of the Agent, and such
endorsement shall evidence the ownership by Purchaser of the Participation(s) so
purchased; provided, however, that the failure of the Agent to make any such
endorsement shall not void or otherwise impair any Purchase or limit the
undersigned's obligations under the Purchase Agreement with respect to the
Participation(s) so purchased.
This Certificate of Assignments is made without recourse except as
provided in the Purchase Agreement. This Certificate of Assignments is made
pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the undersigned contained in the Purchase Agreement
and is to be governed by and construed and interpreted in accordance with the
Purchase Agreement and the internal laws of the State of New York.
Assignment by Purchaser of one or more Participations, or any portion
thereof, is subject to the terms of the Purchase Agreement, including, without
limitation, Article XI thereof. Any such assignment shall be endorsed by the
Agent for Purchaser on the grid(s) with respect to such Participation(s)
attached hereto or, at the Agent's option, in the records of the Agent, and such
endorsement shall evidence the ownership by the assignee named therein of the
Participation(s) (or portion thereof) so assigned; provided, however, that the
failure of the Agent to make any such endorsement shall not void or otherwise
impair any such assignment or limit the undersigned's obligations under the
Purchase Agreement to the assignee with respect to the Participation(s) (or
portion thereof) so assigned.
Exhibit 5.01(a)-1
Each reduction in the Investment in each Participation as a result of
the occurrence of an Investment Reduction Day with respect to such Participation
and each combination or division of one or more Participations shall also be
endorsed by the Agent for Purchaser on the grid(s) with respect to such
Participation(s) attached hereto or, at the Agent's option, in the records of
the Agent.
The undersigned hereby certifies on and as of the date of each Purchase
that the conditions set forth in Section 5.02 of the Purchase Agreement are
fulfilled on such date.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed this day of ________, 199__.
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Exhibit 5.01(a)-2
Grid With Respect to Participation No. ___ (6)
Attached to and Made a Part of Certificate of Assignment
dated __________, 199_ from Amphenol Funding Corp.
to Pooled Accounts Receivable Capital Corporation
Date of Amount of Amount of Amount of
Endorsed Original Amount of Reduction of Increase of
Transaction Investment Assignment Investment Investment
----------- ---------- ---------- ---------- ----------
--------
(6) A separate grid should be attached reflecting each Participation as
sold.
Exhibit 5.01(a)-3
Exhibit 5.01(h)(i)
to Receivables Purchase Agreement
FORM OF LOCK-BOX AGREEMENT
--------, ----
-------------
-------------
-------------
Ladies and Gentlemen:
Reference is made to lock-box account no. ________ and demand deposit
account no. __________ maintained with you (collectively, the "Account").
Pursuant to an Amended and Restated Purchase and Sale Agreement, dated as of May
19, 1997, among ____________ (the "Originator"), various other originators of
receivables, Amphenol Funding Corp. (the "Seller") and Amphenol Corporation,
individually and as the initial Servicer (the "Servicer"), the Originator has
assigned, sold or transferred, and may hereafter assign, sell or transfer, to
the Seller: (a) certain accounts, chattel paper, instruments and general
intangibles (collectively, the "Receivables") with respect to which payments are
or may hereafter be made to the Account and (b) all of its right, title and
interest in and to the Account.
Pursuant to an Amended and Restated Receivables Purchase Agreement,
dated as of May 19, 1997 (the "Receivables Purchase Agreement"), among the
Seller, the Servicer, Pooled Accounts Receivable Capital Corporation, as
Purchaser (the "Purchaser"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc., as the agent
for the Purchaser (the "Agent"), the Seller has assigned and/or may hereafter
assign to the Purchaser one or more undivided percentage interests in certain of
the Receivables, and has granted to the Purchaser a security interest in the
Account. Your execution of this letter agreement is a condition precedent to the
continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in
Exhibit 5.01(h)(i)-1
connection with the Account directly to the Agent, at its address set forth
below its signature hereto or otherwise notified to you, for the account of the
Purchaser (account no. 372968-8, maintained by ▇▇▇▇▇▇ Trust and Savings Bank in
Chicago, Illinois), or otherwise in accordance with the instructions of the
Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including (without limitation):
(a) the right to specify when payments are to be made out of or in connection
with the Account and (b) the right to require preparation of duplicate monthly
bank statements on the Account for the Agent's audit purposes and mailing of
such statements directly to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile, it will be deemed to have been received when the
notice is sent and receipt is confirmed by telephone or other electronic means.
All other notices will be deemed to have been received when actually received,
or in the case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Account and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Account shall be maintained by you for the benefit
of, and amounts from time to time therein held by you as agent for, the Agent on
the terms provided herein. Upon execution hereof, the Account is to be entitled
"AMPHENOL FUNDING CORP. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., AS AGENT FOR POOLED
ACCOUNTS RECEIVABLE CAPITAL CORPORATION". Except as otherwise provided in this
letter agreement, the Account is to be processed in accordance with the
procedures, agreements and instructions currently in effect and as they may be
modified from time to time. In making, agreeing to or accepting such
modifications, before receipt of the Agent's notice described above, you may
disregard the interest of the Agent in the Account; provided, that you shall
endeavor to notify the Agent of material changes in your standard procedures.
All service charges and fees with respect to the Account shall continue to be
payable by us at all times, including after your receipt of the Agent's notice
described above.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other party asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the Account or any funds
from time to time therein, except for your rights to payment of your service
charges and fees, to make deductions
Exhibit 5.01(h)(i)-2
for returned items, and to make appropriate adjustments with respect to entries
previously posted (and your security interest to secure such rights, to the
extent provided automatically under applicable law, in items deposited in the
Account and proceeds thereof). Except for such rights, you shall have no
additional rights in the Account or funds therein. To the extent you may ever
have such additional rights, you hereby expressly subordinate all such
additional rights to all rights of the Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon ten days' prior written notice thereof from you to the Agent and the
undersigned. Incoming mail addressed to the post office box related to the
Account received after such cancellation (including before the Agent's notice
described above has been delivered to you) shall be forwarded in accordance with
the Agent's instructions. This letter agreement may also be terminated upon
written notice to you by the Agent stating that the Receivables Purchase
Agreement pursuant to which this letter agreement was obtained is no longer in
effect. Except as otherwise provided in this paragraph, this letter agreement
may not be terminated or amended without the prior written consent of the Agent.
Until you have received evidence reasonably satisfactory to you of the
authorization of persons giving instructions on behalf of the Agent, upon
receipt of a notice from the Agent as described above, you may freeze the
Account and refuse to follow any instructions.
You shall have no obligation to honor any request to pay out any funds
in the Account in excess of collected, available funds in the Account.
If you are unable for any reason to validly charge against the Account
(by reason of insufficient funds or otherwise) an amount of your service charges
and fees, deductions for returned items or appropriate adjustments with respect
to entries previously posted, each of the Seller and Amphenol Corporation (and
the Agent, but only to the extent relating to fees that accrued or credits that
were withdrawn after your receipt of the Agent's notice as described above)
agrees to pay such amount to you on demand.
Each of the Seller and Amphenol Corporation (and the Agent, but only
after your receipt of the Agent's notice as described above) agrees to indemnify
and defend you and hold you harmless from any loss, cost, claim or expense
(including reasonable attorneys' fees) that you suffer or incur relating to: (a)
the deposit of items into the Account, (b) any use by the Agent or the Seller of
any amounts in the Account, notwithstanding that such use may be unauthorized,
fraudulent, outside the scope of the purchase by the Purchaser, or otherwise, or
(c) any specific instructions to you from the Seller (or, after your receipt of
the Agent's notice as described above, the Agent), except (in each case) for any
loss, cost, claim or expense caused by your gross negligence, willful misconduct
or failure to follow such instructions (provided, that the instructions provided
pursuant to clause (c): (i) shall not be contrary to your contract with the
Originator or with this letter agreement, (ii) shall not be materially contrary
to your standard procedures and (iii) shall be capable of being followed by
you).
Exhibit 5.01(h)(i)-3
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMPHENOL CORPORATION, individually
and as Servicer
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
----------------------
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 5.01(h)(i)-4
Accepted and confirmed as of
the date first written above:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent
By:
---------------------------
Name:
-----------------------
Title:
----------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
Address for notice:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit 5.01(h)(i)-5
Acknowledged and agreed to as
of the date first written above:
---------------------------------
By:
---------------------------
Name:
-----------------------
Title:
----------------------
Address for notice:
------------------------------
------------------------------
------------------------------
Attention:_____________________
Telephone: (___) ___-____
Facsimile No.: (___) ___-____
Exhibit 5.01(h)(i)-6
ANNEX A
to Lockbox Agreement
[Letterhead of the Agent]
------------------------------
------------------------------
------------------------------
Re: Amphenol Funding Corp.
Lock-box Account No. _________
Ladies and Gentlemen:
Reference is made to the letter agreement dated as of ____________ (the
"Letter Agreement") among Amphenol Funding Corp., Amphenol Corporation, Pooled
Accounts Receivable Capital Corporation (the "Purchaser"), the undersigned, as
Agent for the Purchaser, and you concerning the above described lock-box
accounts (the "Accounts"). We hereby give you notice of our assumption of
ownership and control of the Accounts as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Accounts [directly to the undersigned, at [our address
set forth above], for the account of the Purchaser (account no. _______)].
[other instructions]
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as
Agent
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
Exhibit 5.01(h)(i)-7
Exhibit 5.01(h)(ii)-1
to Receivables Purchase Agreement
FORM OF COLLECTION ACCOUNT AGREEMENT
November 23, 1993
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fleet Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to account no. ▇▇▇-▇▇▇-▇▇▇▇ maintained with you (the
"Account"). Pursuant to a Receivables Purchase Agreement dated as of December 3,
1993 among Amphenol Funding Corp., as seller ("Seller"), Amphenol Corporation,
as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE CAPITAL CORPORATION, as
Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent for Purchaser (the
"Agent"), Seller has granted to Purchaser a security interest in the Account.
Your execution of this letter agreement is a condition precedent to our
continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account directly to
the Agent, at its address set forth below its signature hereto or otherwise
notified to you, for the account of Purchaser (account no. 936-214-7297), or
otherwise in accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitation, (i)
the right to specify when payments are to be made out of or in connection with
the Account and (ii) the right to require preparation of duplicate monthly bank
statements on the
Exhibit 5.01(h)(ii)-1-1
Account for the Agent's audit purposes and mailing of such statements directly
to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile it will be deemed to have been received when
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received, or in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Account and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Account shall be maintained by you for the benefit
of, and amounts from time to time therein held by you as agent for, the Agent on
and subject to the terms provided herein. The Account is to be entitled
"AMPHENOL FUNDING CORP. COLLECTION ACCOUNT". Except as otherwise provided in
this letter agreement payments to the Account are to be processed in accordance
with the standard procedures currently in effect. All service charges and fees
with respect to the Account shall continue to be payable by us as under the
arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not
to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising, and acknowledge that you have not
heretofore received a notice, writ, order or any form of legal process from any
other party asserting, claiming or exercising, any right of set-off, banker's
lien or other purported form of claim with respect to the Account or any funds
from time to time therein. Except for your right to payment of your service
charges and fees and to make deductions for returned items, you shall have no
rights in the Account or funds therein. To the extent you may ever have such
rights, you hereby expressly subordinate all such rights to all rights of the
Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to the post office box related to the Account received
after such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Purchase Agreement pursuant to
which this letter agreement was obtained is no longer in effect. Except as
otherwise provided in this paragraph, this letter agreement may not be
terminated or amended without the prior written consent of the Agent.
Exhibit 5.01(h)(ii)-1-2
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
AMPHENOL CORPORATION,
as Servicer
By:
---------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Accepted and confirmed as
of the date first written above:
BANK OF MONTREAL, AS AGENT
By:
----------------------------
Name:
------------------------
Title:
-----------------------
Address for notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Facsimile no.:
Exhibit 5.01(h)(ii)-1-3
Acknowledged and agreed to as of
the date first written above:
FLEET BANK N.A.
By:
----------------------------
Name:
------------------------
Title:
-----------------------
Address for notice:
▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit 5.01(h)(ii)-1-4
[Letterhead of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.]
[Name and Address
of Collection Account Bank]
Re: Amphenol Funding Corp.
Collection Account No.
Ladies and Gentlemen:
Reference is made to the letter agreement dated ______, 19__ (the
"Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS
RECEIVABLE CAPITAL CORPORATION (the "Purchaser"), and you concerning the above
described account (the "Account"). We hereby give you notice of our assumption
of ownership and control of the Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Account[s] [directly to the undersigned, at [our address
set forth above], for the account of Purchaser (account no. ____)].
[other instructions]
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.,
as Agent
By:
-----------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Exhibit 5.01(h)(ii)-1-5
Exhibit 5.01(h)(ii)-2
to Receivables Purchase Agreement
FORM OF LIQUIDATION ACCOUNT AGREEMENT
December 3, 1993
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to our liquidation account no. ▇▇-▇▇▇-▇▇▇ maintained
with you (the "Account[s]"). Pursuant to a Receivables Purchase Agreement dated
as of December 3, 1993 among Amphenol Funding Corp., as seller ("Seller"),
Amphenol Corporation, as servicer ("Servicer"), POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser ("Purchaser"), and BANK OF MONTREAL, as agent
for Purchaser (the "Agent"), Seller has granted to Purchaser a security interest
in the Account. Your execution of this letter agreement is a condition precedent
to our continued maintenance of the Account with you.
We hereby transfer exclusive ownership and control of the Account to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election.
We hereby irrevocably instruct you, at all times from and after the date
of your receipt of notice from the Agent as described above, to make all
payments to be made by you out of or in connection with the Account directly to
the Agent, at its address set forth below its signature hereto or otherwise
notified to you, for the account of Purchaser (account no. 379909-5, maintained
by ▇▇▇▇▇▇ Trust and Savings Bank in Chicago, Illinois), or otherwise in
accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of notice from the Agent as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Account, including, without limitation, (i)
the right to specify when payments are to be made out of or in connection with
the Account and (ii) the right to require preparation of duplicate monthly bank
statements on the
Exhibit 5.01(h)(ii)-2-4
Account for the Agent's audit purposes and mailing of such statements directly
to an address specified by the Agent.
Notice from the Agent may be personally served or sent by facsimile or
U.S. mail, certified return receipt requested, to the address or facsimile
number set forth under your signature to this letter agreement (or to such other
address or facsimile number as you shall notify to the Agent in writing). If
notice is given by facsimile it will be deemed to have been received when
receipt is confirmed by telephone or other electronic means. All other notices
will be deemed to have been received when actually received, or in the case of
personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control (subject to the condition subsequent
described above) of the Account and its ownership of and security interest in
the amounts from time to time on deposit therein and agree that from the date
hereof the Account shall be maintained by you for the benefit of, and amounts
from time to time therein held by you as agent for, the Agent on and subject to
the terms provided herein. The Account is to be entitled "AMPHENOL FUNDING CORP.
LIQUIDATION ACCOUNT". Except as otherwise provided in this letter agreement
payments to the Account are to be processed in accordance with the standard
procedures currently in effect. All service charges and fees with respect to the
Account shall continue to be payable by us as under the arrangements currently
in effect.
By executing this letter agreement: (a) you irrevocably waive and agree
not to assert, claim or endeavor to exercise, irrevocably bar and estop yourself
from asserting, claiming or exercising any right of set-off, banker's lien or
other purported form of claim with respect to the Account or any funds from time
to time therein, except for your rights to payment of your service charges and
fees, to make deductions for returned items, and (b) you acknowledge that you
have not heretofore received a notice, writ, order or any form of legal process
from any other party asserting, claiming or exercising any right of set-off,
banker's lien or other purported form of claim with respect to the Account or
any funds from time to time therein. Except as provided above, to the extent
that you may ever have such rights, you hereby expressly subordinate all such
rights to all rights of the Agent.
You may terminate this letter agreement by cancelling the Account
maintained with you, which cancellation and termination shall become effective
only upon thirty days' prior written notice thereof from you to the Agent.
Incoming mail addressed to the post office box related to the Account received
after such cancellation shall be forwarded in accordance with the Agent's
instructions. This letter agreement may also be terminated upon written notice
to you by the Agent stating that the Receivables Purchase Agreement pursuant to
which this letter agreement was obtained is no longer in effect. Except as
otherwise provided in this paragraph, this letter agreement may not be
terminated or amended without the prior written consent of the Agent.
Exhibit 5.01(h)(ii)-2-4
Please acknowledge your agreement to the terms set forth in this letter
agreement by signing in the space provided below the two copies hereof enclosed
herewith, sending one such signed copy to the Agent at its address provided
above and returning the other signed copy to us.
Very truly yours,
AMPHENOL FUNDING CORP.
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AMPHENOL CORPORATION,
as Servicer
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Accepted and confirmed as of
the date first written above:
BANK OF MONTREAL, AS AGENT
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for notice:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:_______________
Facsimile no.:___________
Exhibit 5.01(h)(ii)-2-4
Acknowledged and agreed to as of
the date first written above:
BANKERS TRUST COMPANY
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address for notice:
----------------------------------
----------------------------------
Attention:________________________
Facsimile No.:____________________
Exhibit 5.01(h)(ii)-2-4
[Letterhead of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc.]
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Amphenol Funding Corp.
Liquidation Account No.
Ladies and Gentlemen:
Reference is made to the letter agreement dated ________, 19__ (the
"Letter Agreement") among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned (as successor to the Bank of Montreal), as Agent for POOLED ACCOUNTS
RECEIVABLE CAPITAL CORPORATION, and you concerning the above described account
(the "Account"). We hereby give you notice of our assumption of ownership and
control of the Account as provided in the Letter Agreement.
We hereby instruct you to make all payments to be made by you out of or
in connection with the Account [directly to the undersigned, at [our address set
forth above], for the account of Purchaser (account no. ____)].
[other instructions]
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.,
as Agent
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 5.01(h)(ii)-2-4
Exhibit 5.01(i)-1
to Receivables Purchase Agreement
FORM OF OPINION OF COUNSEL TO SELLER, SERVICER AND THE ORIGINATORS
[To be attached]
Exhibit 5.01(i)-1-1
Exhibit 5.01(i)-2
to Receivables Purchase Agreement
FORM OF OPINION OF GENERAL COUNSEL OF SELLER, SERVICER
AND THE ORIGINATORS
[To be attached]
Exhibit 5.01(i)-2-1
Exhibit 11.01
to Receivables Purchase Agreement
FORM OF ASSIGNMENT
Assignment dated __________ __, 19 , made by the undersigned to _______
pursuant to the Amended and Restated Receivables Purchase Agreement dated as of
May 19, 1997 (the "Purchase Agreement"; terms defined therein being used herein
as therein defined) among AMPHENOL FUNDING CORP., AMPHENOL CORPORATION, the
undersigned and ▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as agent.
In consideration of the payment of $________, receipt of which payment
is hereby acknowledged, the undersigned hereby assigns to ______ [all of] [an
undivided ___% interest in] the undersigned's right, title and interest in and
to Participation No[s]. ___ [, ____ and ____] purchased by the undersigned in
[a] Purchase[s] on _____, 19__, [_____, 19__, [etc.]] under the Purchase
Agreement.
This Assignment is made without recourse except that the undersigned
hereby represents and warrants that it is the owner of the Participation[s]
referred to above and that it has not created any Adverse Claim upon or with
respect to such Participation[s].
This Assignment shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed and delivered by its duly authorized officer or agent as of the
date first written above.
POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION
By:
---------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Exhibit 11.01-1