Exhibit 10.20
FIRST AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE
AGREEMENT, dated as of September 26, 1997 (this "AMENDMENT"), is entered into
among AMPHENOL FUNDING CORP., a Delaware corporation (the "SELLER"), AMPHENOL
CORPORATION, a Delaware corporation ("AMPHENOL"), POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, a Delaware corporation (the "PURCHASER"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECURITIES, INC., a Delaware corporation, as the agent for the Purchaser (in
such capacity, the "AGENT").
RECITALS
1. The Seller, Amphenol, the Purchaser and the Agent are parties to the
Amended and Restated Receivables Purchase Agreement dated as of May 19, 1997
(the "AGREEMENT"); and
2. The parties hereto desire to amend the Agreement as hereinafter set
forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1.CERTAIN DEFINED TERMS. Capitalized terms that are used but not defined
herein shall have the meaning set forth in the Agreement and Appendix A thereto.
2.ADDITION OF AMPHENOL CANADA CORP.. (a) Appendix A to the Agreement is
hereby amended by: (i) amending and restating the definition of "Originators" in
its entirety as follows:
"ORIGINATORS" means Amphenol, Amphenol Interconnect Products
Corporation, a Delaware corporation, Sine Systems*▇▇▇▇ Connectors
Corporation, a Delaware corporation, Times Fiber Communications, Inc., a
Delaware corporation, and Amphenol Canada Corp., an Ontario corporation,
together with their successors as permitted under the Purchase and Sale
Agreement.
(ii) adding the following definition of "Canadian Purchase and Sale
Agreement" in alphabetical order:
"CANADIAN PURCHASE AND SALE AGREEMENT" means the Canadian Purchase and
Sale Agreement, dated as of September 26, 1997, among Amphenol Canada
Corp., the Seller and the Servicer, as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time
in accordance with the terms thereof and with the Receivables Purchase
Agreement.
(iii) amending and restating clause (ix) of the definition of "Eligible
Receivable" in its entirety as follows:
(ix) except with respect to Receivables originated by Amphenol
Canada Corp. that are denominated in Canadian Dollars and that have an
aggregate Unpaid Balance of up to C$1,500,000, which is denominated
and payable only in Dollars;
(iv) amending clause (xiii)(A) of the definition of "Eligible Receivable"
by replacing the reference to "3.5%" therein with "7.0%;"
(v) amending and restating clause (xv) of the definition of "Eligible
Receivable" in its entirety as follows:
(xv) as to which each of the Seller's and the Purchaser's first
priority interest, respectively, has been perfected under the applicable
UCC (or, with respect to Amphenol Canada Corp., under the Personal Property
Security Act (Ontario) or any applicable federal law of Canada or any of
the provinces or territories thereof relating to the registration,
recording or perfection of security interests or the assignment of debts;
PROVIDED, that such registration need not have been made in Nova Scotia,
Newfoundland and New Brunswick if the aggregate Unpaid Balance of
Receivables the Obligors of which are located in such provinces is less
than 1% of the aggregate Unpaid Balance of all of the Receivables
originated by Amphenol Canada Corp.); and
(vi) amending the definition of "Purchase and Sale Agreement" in its
entirety as follows:
"PURCHASE AND SALE AGREEMENT" means each of: (a) the Amended and
Restated Purchase and Sale Agreement, dated as of May 19, 1997, among the
Seller, the Originators (other than Amphenol Canada Corp.) and the
Servicer, as the same may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms thereof
and with the Receivables Purchase Agreement, and (b) the Canadian Purchase
and Sale Agreement.
(b) Amphenol Canada Corp. (the "NEW ORIGINATOR"), pursuant to Section
8.01(c) of the Agreement, is appointed as a Servicer Person with respect to that
portion of the Portfolio Receivables sold by the New Originator to the Seller.
(c) Schedule 6.01(m) to the Agreement is hereby amended and restated in its
entirety by SCHEDULE 6.01(M) attached hereto.
(d) Schedule 6.01(n) to the Agreement is hereby amended and restated in its
entirety by SCHEDULE 6.01(N) attached hereto.
page 2
(e) Schedule 6.01(r) to the Agreement is hereby amended and restated in its
entirety by SCHEDULE 6.01(R) attached hereto.
(f) Section 1.02(a) of the Agreement is hereby amended by replacing the
reference to "$50,000,000" therein with "$60,000,000."
(g) The following provision is hereby added as Section 1.03(d) of the
Agreement:
(d) For all purposes of this Agreement, except in connection with
clause (ix) of the definition of "Eligible Receivables," all calculations
in respect of the Receivables originated by Amphenol Canada Corp. that are
denominated in Canadian Dollars shall be calculated as if such Canadian
Dollars were converted on the date of such calculation to United States
Dollars at a spot rate for the purchase of U.S. Dollars determined by the
Chicago office of the Bank of Montreal in its sole discretion.
(h) Section 12.01(b) of the Agreement is hereby renumbered Section 12.01(c)
and the following provision is hereby added as Section 12.01(b):
(b) In addition to the indemnities set forth in CLAUSE (A), if the
Servicer or the Seller shall, in connection with the Receivables originated
by Amphenol Canada Corp., be required by law to deduct or withhold any
Canadian taxes from or in respect of any payment hereunder, then
(i) the payment or sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional amounts
paid under this clause) the recipient of such payment shall receive an
amount equal to the amount that it would have received if no deduction
or withholding had been made, and
(ii) the Servicer or the Seller, as applicable, shall pay the
full amount deducted or withheld to the relevant taxation or other
authority in accordance with applicable law.
(i) Section 2.05(b)(i) of the Agreement is hereby revised by adding the
following to the end thereof: "(MINUS the amount of such product relating to the
Receivables originated by Amphenol Canada Corp., for which no Servicer's Fee is
paid)".
(j) Section 8.01(d)(i) of the Agreement is hereby amended and restated in
its entirety 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 (other
than the Receivables originated by Amphenol Canada Corp.) as measured on
the latest Month End Date referred to in the most recent Periodic Report;
or
page 3
(k) Section 12.01 of the Agreement is hereby amended by adding after the
word "losses" in the sixth line thereof the following: "(including any losses
resulting from the U.S. Dollar-equivalent value of collections of any Canadian
Dollar-denominated Receivable being less than the anticipated value of such
collections on the date such Receivable was added to the Portfolio solely as a
result of a weakening of the Canadian Dollar versus the U.S. Dollar from such
date; PROVIDED, that such indemnification shall not exceed the amount of losses,
if any, that the Purchaser shall have incurred with respect to any
Participation)".
(l) Section 6.02 of the Agreement is hereby amended, with respect to the
New Originator only, as follows: (i) the phrase "the state of its incorporation"
contained in Section 6.02(a) of the Agreement is hereby replaced by "the laws of
the province of Ontario, Canada," (ii) the phrase "federal, state or foreign"
contained in Section 6.02(e)(c) of the Agreement is hereby replaced by "federal,
provincial, territorial, state or foreign," (ii) the phrase "Except for the
filing of the UCC financing statements referred to in Article V of the Purchase
and Sale Agreement" contained in Section 6.02(h) of the Agreement is hereby
replaced by "Except for the filing of the assignments, financing statements,
financing change statements and other similiar statements referred to in Article
V of the Canadian Purchase and Sale Agreement," and (iv) the phrase ", or any
similar laws, rules or regulations applicable to Canadian corporations" is
hereby added to the end of Section 6.02(k) of the Agreement
3.REPRESENTATIONS AND WARRANTIES. Each of the Seller (as to itself) and
Amphenol (as to itself and with respect to each other Originator) hereby
represents and warrants to the Purchaser and the Agent as follows:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Sections 6.01 and 6.02 of the Agreement (including after
considering the New Originator as an Originator under the Transaction
Documents) are true and correct as of the date hereof.
(b) ENFORCEABILITY. The execution and delivery by it of this
Amendment, and the performance of its obligations under this Amendment and
the Agreement, as amended hereby, are within its corporate powers and have
been duly authorized by all necessary corporate action on its part. The
Agreement (as amended hereby) is its valid and legally binding obligations,
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.
(c) NO DEFAULT. Both before and immediately after giving effect to
this Amendment and the transactions contemplated hereby, no Termination
Event or Unmatured Termination Event exists or shall exist.
page 4
4.EFFECT OF AMENDMENT. All provisions of the Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect.
After this Amendment becomes effective, all references in the Agreement (or in
any other Transaction Document) to "this Agreement," "hereof," "herein" or words
of similar effect referring to the Agreement shall be deemed to be references to
the Agreement as amended by this Amendment. This Amendment shall not be deemed,
either expressly or impliedly, to waive, amend or supplement any provision of
the Agreement other than as set forth herein.
5.EFFECTIVENESS. This Amendment shall become effective as of the date
hereof upon receipt by the Agent of the following, in form and substance
satisfactory to the Agent in its sole discretion:
(a) counterparts of this Amendment (whether by facsimile or otherwise)
executed by each of the other parties hereto,
(b) a written statement from both ▇▇▇▇▇'▇ and S&P that this Amendment
(and the contemporaneous Canadian Purchase and Sale Agreement) will not
result in a downgrade or withdrawal of the rating of the Commercial Paper
Notes,
(c) an acknowledgment and acceptance from Capital Markets Assurance
Corporation,
(d) duly executed copies of Lock-box Agreements with each of the
Lock-box Banks pertaining to the New Originator,
(e) such powers of attorney as the Agent reasonably shall request to
enable the Agent to collect all amounts due under any and all Portfolio
Receivables originated by the New Originator,
(f) a Servicer Person Letter Agreement for the New Originator in
substantially the form of the Servicer Person Letter Agreement, dated
December 3, 1993, entered into in relation to the Agreement,
(g) the payment of all invoiced costs and expenses of the Purchaser,
the Agent and their respective Affiliates (including, without limitation,
the reasonable fees and expenses of counsel) pursuant to Section
14.06(a)(i) of the Agreement,
(h) an executed copy of the Canadian Purchase and Sale Agreement, and
evidence that all the conditions precedent to the effectiveness thereof
either have been satisfied or permanently waived, and
(i) a favorable opinion of: (i) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special
New York counsel to Amphenol and AFC, and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General
Counsel for the New Originator, Amphenol and AFC.
page 5
6.COVENANTS. Within 60 days after the date hereof, Amphenol shall deliver
to the Agent (with a copy for the Purchaser) a certificate from an authorized
officer to the effect that: (a) the name of the renter of all post office boxes
into which Collections of the Receivables originated by the New Originator may
from time to time be mailed have been changed to the name of AFC (unless such
post office boxes are in the name of the relevant Lock-box Banks) and (b) all
relevant postmasters have been notified that each of the Servicer, the New
Originator (as a Servicer Person) and the Agent are authorized to collect mail
delivered to such post office boxes (unless such post office boxes are in the
name of the relevant Lock-box Banks).
7.COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute but one and the same instrument.
8.GOVERNING LAW. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
any otherwise applicable principles of conflicts of law), except to the extent
that the validity or perfection of the interests of the 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.
9.SECTION HEADINGS. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this
Amendment, the Agreement or any provision hereof or thereof.
page 6
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first written above.
AMPHENOL FUNDING CORP.
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
AMPHENOL CORPORATION
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
POOLED ACCOUNTS RECEIVABLE
CAPITAL CORPORATION, as Purchaser
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC., as Agent
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
By:
------------------------------
Name:
--------------------------
Title:
-------------------------
page 7
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 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sine Systems*▇▇▇▇ Connectors Subsidiary ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇
Sine Systems*▇▇▇▇ Connectors Subsidiary ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇,
Corporation IL 60126
Amphenol Canada Corp. Subsidiary ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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 ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BANK A/C # LOCKBOX #
------------ --------------- -------------
9. AIPC Fleet 1522450 825
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
10. AIPC ▇▇▇▇▇ Fargo 4159259290 7629
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
11. SINE NBD Bank 0033820-44 78139
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. ACC First Chicago NBD Bank 54-90723 73514
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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
TIMES FIBER COMMUNICATIONS, Times Fiber Communications, Inc.
INC. Times Fiber Communications
Times
Times Fiber
TFC
SINE SYSTEMS*▇▇▇▇ CONNECTORS The Sine Companies, Inc.
CORPORATION Sine Connector Corporation
Sine
Aaxico
Tri-Mate
Sine Products Company
Sine Electro-Mold, Inc.
Mil-Specialists, Inc.
▇▇▇▇-National, Inc.
▇▇▇▇
Sine Systems*▇▇▇▇ Connectors Corporation
AMPHENOL FUNDING CORP. Amphenol Funding Corp.
AFC
AMPHENOL CANADA CORP. Amphenol Canada Corp.
From and after: (a) December 3, 1988, none of Amphenol Funding Corporation,
Amphenol Corporation, Amphenol Interconnect Products Corporation and Times Fiber
Communications, Inc. has been the subject of any merger or other corporate
reorganization and (b) July 31, 1997, Sine Systems*▇▇▇▇ Connectors Corporation
has not been the subject of any merger or other corporate reorganization, except
as follows: pursuant to an Agreement and Plan of Merger, dated as of January 23,
1997, between Amphenol Corporation and NXS Acquisition Corp. ("NXS"), a
wholly-owned subsidiary of KKR 1996 Fund L.P., on May 19, 1997 approximately 75%
of the outstanding shares of Amphenol Corporation's Class A common stock were
purchased by NXS for $26.00 per share in cash and approximately 25% of such
outstanding shares were retained by other stockholders.
