Exhibit 10.8


 


SEVENTH AMENDMENT TO
AMENDED AND RESTATED

RECEIVABLES PURCHASE AGREEMENT


 


THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES
PURCHASE AGREEMENT, dated as of June  18, 2004 (this
“Amendment”), is entered into among AMPHENOL
FUNDING CORP., a Delaware corporation (the “Seller”), AMPHENOL CORPORATION, a Delaware
corporation (“Amphenol”), FAIRWAY
FINANCE COMPANY, LLC (as successor to Pooled Accounts Receivable
Capital Corporation), a Delaware limited liability company (the “Purchaser”),
and HARRIS NESBITT CORP.
(formerly, Nesbitt Burns Securities, Inc.), a Delaware corporation, as the
agent for the Purchaser (in such capacity, the “Agent”).


 


RECITALS:


 


WHEREAS,
the Seller, Amphenol, the Purchaser and the Agent are parties to the Amended
and Restated Receivables Purchase Agreement dated as of May 19, 1997 (as
amended through the date hereof, the “Agreement”); and


 


WHEREAS, the parties
hereto desire to further 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.             Defined Terms. 
Capitalized terms used but not defined herein have the meaning set forth
in the Agreement and Appendix A thereto. In addition, the following terms have
the following respective meanings:


 


2.             Amendments.


 


(a)           Section 1.05(a) of the
Agreement is hereby amended by deleting the date “July 16, 2004” therein
and substituting the date “May 18, 2007” therefor.


 


(b)           Section 11.01 of the Agreement
is hereby amended by deleting the phrase “consent of the Agent” therein and
substituting the phrase “consent of the Agent (such consent not to be
unreasonably withheld)” therefor.


 


(c)           Clause (iii) of the definition
of “Defaulted Receivable” set forth in Appendix A to the Agreement is
hereby amended and restated in its entirety as follows:


 


(iii)
[Intentionally Omitted]


 


(d)           Clause (iii) of the definition
of “Eligible Receivable” set forth in Appendix A to the Agreement is
hereby amended and restated in its entirety as follows:


 


(iii) the Obligor of which (A) is a United States resident (except
pursuant to clause (xiii)), (B) is not an Affiliate of Seller, any
Originator or any other


 

















 


Amphenol Person and (C) is not a government or a governmental subdivision
or agency; provided, however, if the Obligor of a Receivable is a
United States government or a United States governmental subdivision or agency,
such Receivable shall be deemed to satisfy the requirements of this clause (C) to the extent that the sum of the
Unpaid Balance of such Receivable when added to the Unpaid Balance of all other
Receivables the Obligor of which is a United States government or a United
States governmental subdivision or agency does not exceed 5% of the Purchase Limit at such time,
as determined without giving effect to this proviso;


 


(e)           Clause (xiii) of the
definition of “Eligible Receivable” set forth in Appendix A to the
Agreement is hereby amended and restated in its entirety as follows:


 


(xiii) the Obligor of which Receivable is not a United States resident
if: (A) the Unpaid Balance of such Receivable, when added to the Unpaid Balance
of all other Receivables (other than Receivables described in clauses (B)
and (C) below) of all Obligors that are not United States residents,
does not exceed 7.0% of the Purchase Limit, (B) such Receivable is backed by an
irrevocable letter of credit issued by a bank or financial institution that is
rated at least “A” by S&P and “A2” by Moody’s (a “Rated L/C Bank”), provided, that the Unpaid Balance of any
such Receivable when added to the Unpaid Balance of all other Receivables
backed by such Rated L/C Bank does not exceed 3% of the Purchase Limit or (C) such Obligor is a resident of a
country whose sovereign rating is at least “AA” and “A-1” by S&P and “Aa2”
and “P-1” by Moody’s; provided,
that the Unpaid Balance of such Receivable when added to the Unpaid Balance of
all other Receivables of such Obligor does not exceed 2% of the Purchase Limit, provided
further, that the Unpaid Balance of such Receivable when added to
the Unpaid Balance of all other Receivables of Obligors which are residents of
any country with a sovereign rating as set forth in this clause (C)
shall not exceed 17% of the
Purchase Limit;


 


(f)            Clause (xvi) of the
definition of “Eligible Receivable” set forth in Appendix A to the
Agreement is hereby amended by (i) deleting the percentage “10%” therein and
substituting the percentage “12%”
therefor and (ii) deleting period at the end thereof and substituting the
phrase “; and” therefor.


 


(g)           A new clause (xvii) is hereby
added to the definition of “Eligible Receivable” set forth in Appendix A
to the Agreement, to be and to read as follows:


 


(xvii) as to which
no payments have been extended, or the terms of payment thereof rewritten
(unless consented to by the Agent).


 


(h)           Appendix A is hereby amended
by adding the following definition where alphabetically appropriate:


 


“Rated L/C Bank”
has the meaning set forth in clause (xiii) of the definition of
“Eligible Receivable” set forth in this Appendix A.


 


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(i)            The definition of “Net Portfolio
Balance” set forth in Appendix A to the Agreement is hereby amended and
restated in its entirety as follows:


 


“Net Portfolio
Balance” means, at any time, the Unpaid Balance of the Eligible Receivables
in the Portfolio at such time, as reduced by the sum of the aggregate amount by
which the Unpaid Balance of all Portfolio Receivables of each Obligor exceeds
the Concentration Limit for such Obligor at such time. For purposes hereof, “Concentration
Limit” for any Obligor means at any time the greater of (x) the Special
Concentration Limit for such Obligor and (y) 3.5% of the Purchase Limit at such
time so long as such Obligor is rated “Baa2” or higher by Moody’s and “BBB” or
higher by S&P, and if not so rated, 3.0%
of the Purchase Limit at such time. “Special Concentration Limit” for
any Obligor means the amount designated as such by the Agent in a writing
delivered to Seller (and approved by S&P and Moody’s); provided, however, until the Agent shall
otherwise notify Seller in writing, the Special Concentration Limit for each of
(a) Cap Stone, Inc. (so long as its subordinated debt is rated at least “Ba3”
by Moody’s), Powell Electronics Corp. and Newark Electronics, Inc. shall be
3.5% and (b) Avnet, Inc. (so long as its senior unsecured debt is rated at
least “Ba2” by Moody’s and at least “BBB-” by S&P), Dell, Inc. (so long as
its senior unsecured debt is rated at least “A3” by Moody’s and at least “A-”
by S&P) and Raytheon Company (so long as its senior unsecured debt is rated
at least “Baa3” by Moody’s and at least “BBB-” by S&P) shall be 4%; and
provided, further, it being understood and agreed that the Agent, in
setting any Special Concentration Limit for any Obligor, shall be entitled to
consider, among other things, the credit exposure of Purchaser and the Banks to
such Obligor arising in connection with this Agreement and other agreements to
which Purchaser is a party. In the case of any Obligor which is an Affiliate of
any other Obligor (an “Affiliated Obligor”), the Concentration Limit,
the Special Concentration Limit and the Receivables related thereto shall be
calculated as if such Obligor and such Affiliated Obligor were one Obligor.


 


(j)            Clause (b) of the definition
of “Regulatory Change” set forth in Appendix A to the Agreement is
hereby amended by deleting the period at the end thereof and substituting the
phrase “; or” therefor.


 


(k)           A new clause (c) and a new
concluding paragraph are hereby added to the definition of “Regulatory Change”
set forth in Appendix A to the Agreement:


 


(c)           the
issuance, publication or release of any regulation, interpretation, directive,
requirement or request of a type described in clause
(a)(ii) above to the effect that the obligations of any liquidity
bank under the Liquidity Agreement are not entitled to be included in the zero
percent category of off-balance sheet assets for purposes of any risk-weighted
capital guidelines applicable to such liquidity provider or any related
Affected Party.


 


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For the avoidance of doubt, any
interpretation of Account Research Bulletin No. 51 by the Financial Accounting
Standards Board shall constitute a Regulatory Change.


 


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 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.


 


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 reasonably satisfactory to the Agent:


 


(a)           an original of this
Amendment and the First Amendment, dated as of the date hereof, to the Purchase
and Sale Agreement and all other documents, agreements and instruments
contemplated hereby or thereby, in each case duly executed and delivered by each
of the parties hereto or thereto;


 


(b)           evidence of the
payment of (1) the $127,500 balance of the “Amendment Fee” (as set forth in the
Fee Letter) and (ii) 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;


 


(c)           evidence in form and
substance satisfactory to the Agent of financing statements (Form UCC-1), to be
filed as of the date hereof, as may be necessary or desirable, in


 


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the opinion of the Agent, under the UCC of all appropriate
jurisdictions to perfect Purchaser’s interests in all Participations in which
an interest may be assigned to it or otherwise created or arising under the
Agreement;


 


(d) Favorable opinions from:


 


(i) Pillsbury Winthrop LLP, counsel to
Amphenol (as the Servicer), the Seller and the Originators; and


 


(ii) Edward C. Wetmore, General Counsel of
Amphenol (as the Servicer), the Seller and the Originators;


 


(d)           written
confirmation from each rating agency rating the Purchaser’s Commercial Paper
Notes to the effect that this Amendment will not result in a downgrade or
withdrawal of the rating of such Commercial Paper Notes;


 


(e)           a
Periodic Report as of May 31, 2004; and


 


(f)            such
other information, documents and opinions as the Agent shall reasonably
request.


 


6.             Condition Subsequent.  On or prior to thirty (30) days after the date hereof, Amphenol
shall provide the Agent with duly executed copies of any additional Lock-box
Agreements (in each case in form and substance reasonably satisfactory to the
Agent) with each of the additional Lock-box Banks with respect to those certain
additional originators being added pursuant to the First Amendment, dated as of
the date hereof, to the Purchase and Sale Agreement.  The failure to deliver such Lock-box Agreements by such date
shall constitute a Termination Event under the Agreement.


 


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 laws of 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.


 


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IN WITNESS WHEREOF,
the parties have executed this Amendment as of the date first written above.


 


	
   

  	
  AMPHENOL FUNDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  AMPHENOL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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  FAIRWAY FINANCE COMPANY, LLC,

  
	
   

  	
  as Purchaser

  
	
   

  	
   

  
	
   

  	
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  HARRIS NESBITT CORP., as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
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  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


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