AMENDMENT NO. 12 TO AMENDED AND
RESTATED
RECEIVABLES PURCHASE AGREEMENT
This
Amendment No. 12 to Amended and Restated Receivables Purchase
Agreement (this “ Amendment ”) is dated as of
August 28, 2008, among Avnet Receivables Corporation, a
Delaware corporation (“ Seller ”), Avnet, Inc.,
a New York corporation (“ Avnet ”), as initial
Servicer (the Servicer together with Seller, the “ Seller
Parties ” and each a “ Seller Party
”), each Financial Institution signatory hereto
(collectively, the “ Financial Institutions ”),
each Company signatory hereto (the “ Companies
”) and JPMorgan Chase Bank, N.A. (successor by merger to Bank
One, NA (Main Office Chicago)), as agent for the Purchasers (the
“ Agent ”).
Each
of the parties hereto entered into that certain Amended and
Restated Receivables Purchase Agreement, dated as of
February 6, 2002, and amended such Amended and Restated
Receivables Purchase Agreement pursuant to Amendment No. 1
thereto, dated as of June 26, 2002, and further amended such
Amended and Restated Receivables Purchase Agreement pursuant to
Amendment No. 2 thereto, dated as of November 25, 2002,
and further amended such Amended and Restated Receivables Purchase
Agreement pursuant to Amendment No. 3 thereto, dated as of
December 9, 2002, and further amended such Amended and
Restated Receivables Purchase Agreement pursuant to Amendment
No. 4 thereto, dated as of December 12, 2002, and further
amended such Amended and Restated Receivables Purchase Agreement
pursuant to Amendment No. 5 thereto, dated as of June 23,
2003, and further amended such Amended and Restated Receivables
Purchase Agreement pursuant to Amendment No. 6 thereto, dated
as of August 15, 2003, and further amended such Amended and
Restated Receivables Purchase Agreement pursuant to Amendment
No. 7 thereto, dated as of August 3, 2005, and further
amended such Amended and Restated Receivables Purchase Agreement
pursuant to Amendment No. 8 thereto, dated as of
August 1, 2006, and further amended such Amended and Restated
Receivables Purchase Agreement pursuant to Amendment No. 9 thereto,
dated as of August 31, 2006, and further amended such Amended
and Restated Receivables Purchase Agreement pursuant to Amendment
No. 10 thereto, dated January 12, 2007 and effective as
of September 6, 2006, and further amended such Amended and
Restated Receivables Purchase Agreement pursuant to Amendment
No. 11 thereto, dated as of August 29, 2007 (such Amended
and Restated Receivables Purchase Agreement, as so amended, the
“ Purchase Agreement ”).
Each
Seller Party has requested that the Agent and the Purchasers amend
certain provisions of the Purchase Agreement, all as more fully
described herein.
Subject
to the terms and conditions hereof, each of the parties hereto now
desires to amend the Purchase Agreement as more particularly
described herein.
AMENDMENT NO. 12 TO AMENDED
AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
1
NOW,
THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1.
Definitions Used Herein . Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings set
forth for such terms in, or incorporated by reference into, the
Purchase Agreement.
Section 2.
Amendments . Subject to the terms and conditions set forth
herein, the Purchase Agreement is hereby amended as
follows:
(a) Section 9.1(f)
of the Purchase Agreement is hereby amended by deleting in its
entirety the phrase “Dilution Ratio Trigger shall exceed
8.25%” and replacing it with the phrase “Dilution Ratio
Trigger shall exceed 9.00%.”
(b) Article X
of the Purchase Agreement is hereby amended by adding the following
Section 10.5 to the end of such Article:
Section 10.5
Accounting Based Consolidation Event . (a) If an Accounting
Based Consolidation Event shall at any time occur then, upon demand
by the Agent, Seller shall pay to the Agent, for the benefit of the
relevant Affected Entity, such amounts as such Affected Entity
reasonably determines will compensate or reimburse such Affected
Entity for any resulting (i) fee, expense or increased cost
charged to, incurred or otherwise suffered by such Affected Entity,
(ii) reduction in the rate of return on such Affected
Entity’s capital or reduction in the amount of any sum
received or receivable by such Affected Entity or
(iii) opportunity cost, internal capital charge or other
imputed cost determined by such Affected Entity to be allocable to
Seller or the transactions contemplated in this Agreement in
connection therewith. Amounts under this Section 10.5 may be
demanded at any time without regard to the timing of issuance of
any financial statement by any Company or by any Affected
Entity.
(b)
For purposes of this Section 10.5, the following terms shall
have the following meanings:
“
Accounting Based Consolidation Event ” means the
consolidation, for financial and/or regulatory accounting purposes,
of all or any portion of the assets and liabilities of any Company
that are subject to this Agreement or any other Transaction
Document with all or any portion of the assets and liabilities of
an Affected Entity. An Accounting Based Consolidation Event shall
be deemed to occur on the date any Affected Entity shall
AMENDMENT NO. 12 TO AMENDED
AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
2
acknowledge in
writing that any such consolidation of the assets and liabilities
of any Company shall occur.
“
Affected Entity ” means (i) any Financial
Institution, (ii) any insurance company, bank or other funding
entity providing liquidity, credit enhancement or back-up purchase
support or facilities to any Company, (iii) any agent,
administrator or manager of any Company, or (iv) any bank
holding company in respect of any of the foregoing.
(c) Article XII
of the Purchase Agreement is hereby amended by adding the following
Section 12.3 to the end of such Article:
Section 12.3
Federal Reserve . Notwithstanding any other provision of
this Agreement to the contrary, any Financ
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