EXHIBIT 3.6.1
AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT (the
"Amending Agreement") is made and is effective the 4th day of May, 2001, by and
between CELESTICA CORPORATION, a Delaware corporation ("Buyer"), and AVAYA INC.,
a Delaware corporation ("Seller").
WHEREAS Buyer and Seller entered into an Asset Purchase
Agreement (the "Asset Purchase Agreement") dated as of February 19, 2001,
providing, on the terms and conditions therein set forth, for the purchase by
Buyer from Seller and the sale by Seller to Buyer of the Purchased Assets;
AND WHEREAS Buyer and Seller wish to amend the Asset Purchase
Agreement as hereinafter provided to (i) update certain schedules thereto and
(ii) accurately reflect the parties' intentions with respect to the purchase and
sale of the Denver and Little Rock Purchased Inventory;
NOW THEREFORE THIS AMENDMENT NO. 1 TO THE ASSET PURCHASE
AGREEMENT WITNESSES THAT in consideration of the respective covenants and
agreements of the parties herein contained and for other good and valuable
consideration (the receipt and sufficiency of which are acknowledged by each
party), the parties agree as follows:
1. DEFINITIONS. Unless otherwise expressly defined herein, all terms which
appear in this Amending Agreement (including the recitals hereto) and which are
defined in the Asset Purchase Agreement shall have the respective meanings given
to them in the Asset Purchase Agreement.
2. AMENDMENTS TO THE ASSET PURCHASE AGREEMENT. The Asset Purchase Agreement is
amended as follows:
(a) the definition of "Delayed Closing" in Section 1.1 is hereby amended
by deleting the phrase "Denver and Little Rock Inventory Closing" and
replacing it with the phrase "Inventory Closings";
(b) the definition of "Delayed Closing Date" in Section 1.1 is hereby
amended by deleting the phrase "Denver and Little Rock Inventory
Closing Date" and replacing it with the phrase "Inventory Closing
Dates";
(c) the definition of "Delayed Purchased Assets" in Section 1.1 is hereby
deleted in its entirety and replaced with "means, collectively, the
Delayed Shreveport Purchased Assets, the Denver Purchased Inventory,
the Little Rock Purchased Inventory, the Denver Purchase Orders and
the Little Rock Purchase Orders";
(d) the definitions of "Denver and Little Rock Inventory Closing", "Denver
and Little Rock Inventory Closing Date", "Denver and Little Rock
Inventory Purchase Price", "Denver and Little Rock Inventory
Schedule", "Denver and Little Rock Purchase Orders", "Denver and
Little Rock Purchased Inventory", "Initial Denver and Little Rock
Inventory Net Book Value" and "Initial Denver and Little Rock
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Inventory Net Book Value of the Third Auditor" in Section 1.1 are
hereby deleted in their entirety;
(e) the following definitions are hereby inserted in alphabetical order in
Section 1.1 of the Asset Purchase Agreement:
"Applicable Inventory Purchase Price" has the meaning assigned in
Section 2.3(c)(i).
"Denver Purchase Orders" means, collectively, all purchase order
Contracts relating to the Denver Purchased Inventory.
"Denver Purchased Inventory" means, on any Inventory Closing Date, the
Purchased Inventory located at the Denver Premise which is to be
purchased by Buyer hereunder on such Inventory Closing Date.
"Initial Inventory Net Book Value" has the meaning assigned in Section
2.3(c)(iv).
"Initial Inventory Net Book Value of the Third Auditor" has the
meaning assigned in Section 2.3(c)(iv).
"Inventory Closing" means, in respect of a purchase and sale of any
Denver Purchased Inventory or any Little Rock Purchased Inventory, or
both, the completion of the purchase and sale of such Purchased
Inventory pursuant to and in accordance with the terms of this
Agreement.
"Inventory Closing Date" means the date on which Denver Purchased
Inventory or Little Rock Purchased Inventory or both are transferred
to Buyer in accordance with Section 7.1(c).
"Inventory Purchase Price" has the meaning assigned in Section
2.3(c)(i).
"Inventory Schedule" has the meaning assigned in Section 2.3(c)(ii).
"Little Rock Purchase Orders" means, collectively, all purchase order
Contracts relating to the Little Rock Purchased Inventory.
"Little Rock Purchased Inventory" means, on any Inventory Closing
Date, the Purchased Inventory located at the Little Rock Premise which
is to be purchased by Buyer hereunder on such Inventory Closing Date.
(f) Section 2.1 is hereby amended by:
(i) deleting the phrase "Sections 2.1(a) through 2.1(j)"
and replacing it with the phrase "Sections 2.1(a)
through 2.1(k)";
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(ii) deleting the word "and" after the phrase "the Business Records" in
clause (i);
(iii) deleting the "." and replacing it with "; and" at the end of
clause (j); and
(iv) adding the following provision after clause (j):
"(k) the furniture and equipment and other similar items owned
and used by Seller at the cafeteria in the Denver Premise.";
(g) Section 2.3(c) is hereby deleted in its entirety and replaced by the
following:
"(c) Inventory Closings
(i) In consideration of the sale, transfer, assignment,
conveyance and delivery by Seller of the Denver Purchased
Inventory and the Little Rock Purchased Inventory, Buyer shall
pay to Seller on each Inventory Closing Date, the net book value
of the Purchased Inventory to be purchased on such Inventory
Closing Date (as may be adjusted in accordance with this Section
2.3(c), each the "APPLICABLE INVENTORY PURCHASE PRICE") and, on
the last Inventory Closing Date, TWENTY SEVEN MILLION DOLLARS
($27,000,000) (together with the Applicable Inventory Purchase
Price, the "INVENTORY PURCHASE PRICE", and the Inventory Purchase
Price together with the Initial Purchase Price and the Shreveport
Purchase Price, the "PURCHASE PRICE") in cash by wire transfer of
immediately available funds to an account designated by Seller's
written instructions to Buyer at least two (2) Business Days
prior to the applicable Inventory Closing. The net book value of
the Denver Purchased Inventory and the Little Rock Purchased
Inventory to be purchased and sold on each Inventory Closing Date
shall be determined in accordance with this Section 2.3(c).
(ii) As close as possible to each Inventory Closing Date,
but in any event not more than five (5) Business Days prior
thereto, Seller will in good faith prepare and deliver to Buyer a
schedule (the "INVENTORY SCHEDULE") setting forth the net book
value of the Purchased Inventory to be purchased and sold on such
Inventory Closing Date. In order to prepare the Inventory
Schedule for such Inventory Closing Date, Buyer shall provide
Seller full access during regular business hours to the Denver
Premise and the Little Rock Premise, as appropriate, and the
relevant records necessary to prepare the Inventory Schedule. The
Inventory Schedule shall be prepared in a manner consistent with
the preparation of the Initial Balance Sheet. During such five
(5) day period, Seller and Buyer shall jointly conduct a physical
inventory of the Purchased Inventory to be purchased and sold on
such Inventory Closing Date. To the extent Buyer agrees with
Seller's calculation of the net book value of the Purchased
Inventory to be purchased and sold on such Inventory
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Closing Date as set forth in the Inventory Schedule for such
Inventory Closing Date, or if Seller and Buyer agree on a
different net book value amount, Buyer shall pay Seller on such
Inventory Closing Date such agreed upon amount. To the extent
Buyer and Seller cannot reasonably agree on the net book value of
the Purchased Inventory to be purchased and sold on such
Inventory Closing Date by the day immediately prior to such
Inventory Closing Date, Buyer shall nevertheless be obligated to
pay Seller on such Inventory Closing Date the net book value
amount set forth in the Inventory Schedule for such Inventory
Closing Date, subject to the audit rights set forth in Section
2.3(c)(iii) below.
(iii) To the extent Buyer and Seller cannot reasonably agree
on the net book value of the Purchased Inventory to be purchased
and sold on an Inventory Closing Date, promptly following such
Inventory Closing Date, Seller's Auditor and Buyer's Auditor
shall select the Third Auditor who shall definitively decide the
net book value of the Purchased Inventory to be purchased and
sold on such Inventory Closing Date. The Third Auditor will be
given full access by Buyer, during regular business hours, to the
relevant records and other work papers necessary to review the
Inventory Schedule. Buyer and Seller shall each pay one-half of
the fee charged by the Third Auditor, and each shall be solely
responsible for any fees charged by auditors of such party.
(iv) An amount equal to the net book value of the Purchased
Inventory to be purchased and sold on any Inventory Closing Date
set forth in the Inventory Schedule shall be referred to as the
"INITIAL INVENTORY NET BOOK VALUE." An amount equal to the net
book value of the Purchased Inventory to be purchased and sold on
such Inventory Closing Date as determined by the Third Auditor
shall be referred to as the "INITIAL INVENTORY NET BOOK VALUE OF
THE THIRD AUDITOR." If the Initial Inventory Net Book Value in
respect of any Inventory Closing is less than the Initial
Inventory Net Book Value of the Third Auditor, then Buyer shall
pay the difference between such amounts to Seller in cash by wire
transfer of immediately available funds to an account designated
by Seller's written instructions to Buyer, and if the Initial
Inventory Net Book Value in respect of any Inventory Closing is
greater than the applicable Initial Inventory Net Book Value of
the Third Auditor, then Seller shall pay the difference between
such amounts to Buyer in cash by wire transfer of immediately
available funds to an account designated by Buyer's written
instructions to Seller. Any such payment shall be made on or
before 60 calendar days after the applicable Inventory Closing
Date, and any such payment shall be considered an addition or
reduction, as applicable, to the Purchase Price.";
(h) Section 2.4 is hereby amended by deleting the phrase "Denver and
Little Rock Purchase Orders" in each case and replacing it with
"Denver Purchase Orders and Little Rock Purchase Orders";
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(i) Sections 2.6(d) and 2.6(e) are hereby amended by deleting in its
entirety the phrase "Denver and Little Rock Purchase Order" in each
case and replacing it with "Denver Purchase Order or a Little Rock
Purchase Order" and deleting in its entirety the phrase "Denver and
Little Rock Inventory Closing Date" in each case and replacing it with
"Inventory Closing Date";
(j) Section 3.16 is hereby amended by deleting the phrase "Denver and
Little Rock Inventory Closing Date" in each case and replacing it with
"applicable Inventory Closing Date";
(k) Section 5.4(f) is hereby amended by deleting the first sentence
thereof in its entirety and replacing it with the following:
"From and after the Effective Time on the Initial Closing Date, Buyer
shall be responsible for all accrued, unused vacation balances owed to
Transferred Employees who are Represented Employees who elect, prior
to the Initial Closing Date, to transfer such accrued, unused vacation
balances to their employment with Buyer and Seller shall deliver to
the Buyer at least one (1) Business Day prior to the Initial Closing
Date a list of all such Transferred Employees, which list shall set
out the accrued, unused vacation balances so transferred and the
applicable hourly wage rate of such Transferred Employees. The Initial
Purchase Price shall be reduced by an amount equal to the aggregate of
all accrued, unused vacation balances transferred to Buyer in
accordance with this Section 5.4(f).";
(l) Section 7.1(c) is hereby deleted in its entirety and replaced by the
following:
"Subject to compliance with the terms and conditions hereof, the
transfer of the Denver Purchased Inventory and the Little Rock
Purchased Inventory and the assignment and assumption of the related
Denver Purchase Orders and Little Rock Purchase Orders, as the case
may be, shall be effective on a sequential basis in accordance with a
timetable to be mutually agreed by Seller and Buyer during a period of
time which shall begin on the Initial Closing Date and shall end no
later than October 1, 2001. At the Effective Time on each Inventory
Closing Date, Seller will transfer to Buyer title to any Denver
Purchased Inventory and any Little Rock Purchased Inventory being
transferred on such date.";
(m) Exhibit A to Schedule 1.1(a) of the Asset Purchase Agreement is hereby
deleted in its entirety and replaced with Schedule 1.1(a)(A) attached
to this Amending Agreement;
(n) Exhibit A to Schedule 1.1(b) of the Asset Purchase Agreement is hereby
deleted in its entirety and replaced with Schedule 1.1(b)(A) attached
to this Amending Agreement;
(o) Exhibit B to Schedule 1.1(c) of the Asset Purchase Agreement is hereby
deleted in its entirety and replaced with Schedule 1.1(c)(B) attached
to this Amending Agreement;
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(p) Schedule 2.1(b) of the Asset Purchase Agreement, together with the
exhibits thereto, is hereby deleted in its entirety and replaced with
Schedule 2.1(b) attached to this Amending Agreement;
(q) Schedule 2.1(c) of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced with Schedule 2.1(c) attached to this
Amending Agreement;
(r) Schedule 2.2(j) of the Asset Purchase Agreement, together with the
exhibits thereto, is hereby deleted in its entirety and replaced with
Schedule 2.2(j) attached to this Amending Agreement;
(s) Exhibit A to Schedule 2.4(a) of the Asset Purchase Agreement is hereby
deleted in its entirety and replaced with Schedule 2.4(a)(A) attached
to this Amending Agreement;
(t) Schedule 3.9(a) of the Asset Purchase Agreement is hereby deleted in
its entirety and replaced with Schedule 3.9(a) attached to this
Amending Agreement;
(u) Exhibits A, B2, C1 and E to Schedule 3.10 of the Asset Purchase
Agreement are hereby deleted in their entirety and replaced with
Schedules 3.10(A), 3.10(B2) 3.10(C1) and 3.10(E) attached to this
Amending Agreement, respectively; and
(v) Schedule 3.18 of the Asset Purchase Agreement is hereby deleted in its
entirety and replaced with Schedule 3.18 attached to this Amending
Agreement.
3. COVENANT OF SELLER. Seller agrees that it shall repair all leaks in the roof
at the Little Rock Premise, which leaks are in existence on the date hereof, and
be liable for all costs related thereto. If such repair has not been completed
within 30 days of the date hereof, Buyer may have the repairs performed and
invoice Seller for reimbursement of the cost of the repairs, and Seller shall
reimburse Buyer for such costs.
4. CONFIRMATION OF THE ASSET PURCHASE AGREEMENT. Except as specifically provided
for in the foregoing provisions of this Amending Agreement, the Asset Purchase
Agreement shall continue in full force and effect and each of Buyer and Seller
hereby confirms the terms of the Asset Purchase Agreement, as so amended. This
Amending Agreement and the Asset Purchase Agreement shall be read, interpreted,
construed and have effect as, and shall constitute, one agreement with the same
effect as if the amendments made by this Amending Agreement had been contained
in the Asset Purchase Agreement as of the date hereof.
5. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
New York.
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6. COUNTERPARTS. This Amending Agreement may be executed in one or more
counterparts, each of which when so executed shall constitute an original and
all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF the parties hereto have executed this
Amendment No. 1 to the Asset Purchase Agreement.
CELESTICA CORPORATION
by: ______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
AVAYA INC.
by: _____________________________________
Name:
Title: