Exhibit 10.2
AMENDED AND RESTATED
GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT (this "Guaranty Agreement"),
dated as of October 13, 2005, is made by AVNET, INC., a New York corporation
(the "Guarantor"), to BANK OF AMERICA, N.A., a national banking association
organized and existing under the laws of the United States, as administrative
agent under the Credit Agreement defined below (in such capacity, the
"Administrative Agent"), each of the lenders now or hereafter party to the
Credit Agreement defined below (each, a "Lender" and, collectively, the
"Lenders" and, together with the Administrative Agent, collectively, the
"Secured Parties" and each a "Secured Party"). All capitalized terms used but
not otherwise defined herein shall have the meanings ascribed to such terms in
the Credit Agreement.
WITNESSETH:
WHEREAS, the Guarantor, AVNET LOGISTICS U.S., L.P., a Texas limited
partnership ("Logistics"), the lenders party thereto and the Administrative
Agent entered into a Credit Agreement dated as of June 7, 2004 (the "Existing
Credit Agreement"), pursuant to which such lenders have made available to the
Borrowers a revolving credit facility, with swingline, letter of credit and
multicurrency subfacilities;
WHEREAS, the Guarantor has guaranteed the obligations of Logistics under
the Existing Credit Agreement pursuant to a Guaranty Agreement dated as of June
7, 2004 (the "Existing Guaranty");
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent amend and restate the Existing Credit Agreement by entering
into an Amended and Restated Credit Agreement dated as of October 13, 2005 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, the execution and delivery of this Guaranty Agreement is a
condition precedent to the effectiveness of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree that the Existing Guaranty is hereby
amended and restated as this Guaranty Agreement with the effect that the
Existing Guaranty, as so amended and restated, is hereby continued into this
Guaranty Agreement, and this Guaranty Agreement shall constitute neither a
release nor novation of any obligation arising under the Existing Guaranty, and
the obligations in effect under the Existing Guaranty shall continue in effect
on the terms hereof, including amendment and expansion of the obligations
guaranteed by the Existing Guaranty to include the obligations and liabilities
of the Borrowers under the Credit Agreement, all as follows:
1. GUARANTY. The Guarantor hereby confirms its payment and performance
obligations under the Existing Guaranty and unconditionally, absolutely,
continually and irrevocably guarantees to each Secured Party the payment and
performance in full of the
Guaranteed Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Guaranteed Liabilities" means: (a) each Designated Borrower's prompt
payment in full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement,
the Notes, and all other Loan Documents heretofore, now or at any time or times
hereafter owing, arising, due or payable from such Designated Borrower to any
one or more of the Secured Parties, including principal, interest, premiums and
fees (including, but not limited to, loan fees and fees and expenses of
counsel); and (b) each Designated Borrower's prompt, full and faithful
performance, observance and discharge of each and every agreement, undertaking,
covenant and provision to be performed, observed or discharged by such
Designated Borrower under the Credit Agreement, the Notes and all other Loan
Documents. The Guarantor's obligations to the Secured Parties under this
Guaranty Agreement are hereinafter collectively referred to as the "Guarantor's
Obligations".
The Guarantor agrees that it is directly and primarily liable for the
Guaranteed Liabilities.
2. PAYMENT. If any Designated Borrower shall default in payment or
performance of any of the Guaranteed Liabilities, whether principal, interest,
premium, fee (including, but not limited to, loan fees and fees and expenses of
counsel), or otherwise, when and as the same shall become due, and after
expiration of any applicable grace period, whether according to the terms of the
Credit Agreement, by acceleration, or otherwise, or upon the occurrence and
during the continuance of any Event of Default under the Credit Agreement, then
the Guarantor will, upon demand by the Administrative Agent, fully pay to the
Administrative Agent, for the benefit of the Secured Parties, an amount equal to
all the Guaranteed Liabilities then due and owing.
3. ABSOLUTE RIGHTS AND OBLIGATIONS. This is a guaranty of payment and not
of collection. The Guarantor's Obligations under this Guaranty Agreement shall
be absolute and unconditional irrespective of, and the Guarantor hereby
expressly waives, to the extent permitted by law, any defense to its obligations
under this Guaranty Agreement by reason of:
(a) any lack of legality, validity or enforceability of the Credit
Agreement, of any of the Notes, of any other Loan Document, or of any other
agreement or instrument creating, providing security for, or otherwise
relating to any of the Guarantor's Obligations, any of the Guaranteed
Liabilities, or any other guaranty of any of the Guaranteed Liabilities
(the Loan Documents and all such other agreements and instruments being
collectively referred to as the "Related Agreements");
(b) any action taken under any of the Related Agreements, any exercise
of any right or power therein conferred, any failure or omission to enforce
any right conferred thereby, or any waiver of any covenant or condition
therein provided;
(c) any acceleration of the maturity of any of the Guaranteed
Liabilities or of any other obligations or liabilities of any Person under
any of the Related Agreements;
(d) any release, exchange, non-perfection, lapse in perfection,
disposal, deterioration in value, or impairment of any security for any of
the Guaranteed
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Liabilities, for any of the Guarantor's Obligations, or for any other
obligations or liabilities of any Person under any of the Related
Agreements;
(e) any dissolution of any Designated Borrower or any other party to a
Related Agreement, or the combination or consolidation of any Designated
Borrower or any other party to a Related Agreement into or with another
entity or any transfer or disposition of any assets of any Designated
Borrower or any other party to a Related Agreement;
(f) any extension (including without limitation extensions of time for
payment), renewal, amendment, restructuring or restatement of, any
acceptance of late or partial payments under, or any change in the amount
of any borrowings or any credit facilities available under, the Credit
Agreement, any of the Notes or any other Loan Document or any other Related
Agreement, in whole or in part;
(g) the existence, addition, modification, termination, reduction or
impairment of value, or release of any other guaranty (or security
therefor) of the Guaranteed Liabilities (including without limitation
obligations arising under any other guaranty now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other consent
to any change in or departure from any term or provision contained in the
Credit Agreement, any other Loan Document or any other Related Agreement,
including without limitation any term pertaining to the payment or
performance of any of the Guaranteed Liabilities or any of the obligations
or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice to or
knowledge of the Guarantor) which may or might in any manner or to any
extent vary the risks of the Guarantor, or might otherwise constitute a
legal or equitable defense available to, or discharge of, a surety or a
guarantor, including without limitation any right to require or claim that
resort be had to any Designated Borrower or to any collateral in respect of
the Guaranteed Liabilities or Guarantor's Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantor's Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. All Guarantor's Obligations will be paid
in lawful currency of the United States of America and in immediately available
funds, regardless of any law, regulation or decree now or hereafter in effect
that might in any manner affect the Guaranteed Liabilities, or the rights of any
Secured Party with respect thereto as against any Designated Borrower, or cause
or permit to be invoked any alteration in the time, amount or manner of payment
by any Designated Borrower of any or all of the Guaranteed Liabilities.
5. EVENTS OF DEFAULT. Without limiting the provisions of Section 2 hereof,
in the event that there shall occur and be continuing an Event of Default, then
notwithstanding any
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collateral or other security or credit support for the Guaranteed Liabilities,
at the Administrative Agent's election and without notice thereof or demand
therefor, the Guarantor's Obligations shall immediately be and become due and
payable.
6. SUITS. The Guarantor from time to time shall pay to the Administrative
Agent for the benefit of the Secured Parties, on demand, at the Administrative
Agent's place of business set forth in the Credit Agreement or such other
address as the Administrative Agent shall give notice of to the Guarantor, the
Guarantor's Obligations as they become or are declared due, and in the event
such payment is not made forthwith, the Administrative Agent may proceed to suit
against the Guarantor. At the Administrative Agent's election, one or more and
successive or concurrent suits may be brought hereon by the Administrative Agent
against the Guarantor, whether or not suit has been commenced against any
Designated Borrower or any other Person and whether or not the Secured Parties
have taken or failed to take any other action to collect all or any portion of
the Guaranteed Liabilities or have taken or failed to take any actions against
any collateral securing payment or performance of all or any portion of the
Guaranteed Liabilities, and irrespective of any event, occurrence, or condition
described in Section 3 hereof.
7. SET-OFF AND WAIVER. The Guarantor waives any right to assert against any
Secured Party as a defense, counterclaim, set-off, recoupment or cross claim in
respect of its Guarantor's Obligations, any defense (legal or equitable) or
other claim which the Guarantor may now or at any time hereafter have against
any Designated Borrower or any or all of the Secured Parties without waiving any
additional defenses, set-offs, counterclaims or other claims otherwise available
to the Guarantor. The Guarantor agrees that each Secured Party shall have a lien
for all the Guarantor's Obligations upon all deposits or deposit accounts, of
any kind, or any interest in any deposits or deposit accounts, now or hereafter
pledged, mortgaged, transferred or assigned to such Secured Party or otherwise
in the possession or control of such Secured Party for any purpose (other than
solely for safekeeping) for the account or benefit of the Guarantor, including
any balance of any deposit account or of any credit of the Guarantor with the
Secured Party, whether now existing or hereafter established, and hereby
authorizes each Secured Party from and after the occurrence of an Event of
Default at any time or times with or without prior notice to apply such balances
or any part thereof to such of the Guarantor's Obligations to the Secured
Parties then due and in such amounts as provided for in the Credit Agreement or
otherwise as they may elect. For the purposes of this Section 7, all remittances
and property shall be deemed to be in the possession of a Secured Party as soon
as the same may be put in transit to it by mail or carrier or by other bailee.
8. WAIVER OF NOTICE; SUBROGATION.
(a) The Guarantor hereby waives to the extent permitted by law notice
of the following events or occurrences: (i) acceptance of this Guaranty
Agreement; (ii) the Lenders' heretofore, now or from time to time hereafter
making Loans and issuing Letters of Credit and otherwise loaning monies or
giving or extending credit to or for the benefit of any Designated Borrower
or otherwise entering into arrangements with any Designated Borrower giving
rise to Guaranteed Liabilities, whether pursuant to the Credit Agreement or
the Notes or any other Loan Document or Related Agreement or any
amendments, modifications, or supplements thereto, or replacements or
extensions
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thereof; (iii) presentment, demand, default, non-payment, partial payment
and protest; and (iv) any other event, condition, or occurrence described
in Section 3 hereof. The Guarantor agrees that each Secured Party may
heretofore, now or at any time hereafter do any or all of the foregoing in
such manner, upon such terms and at such times as each Secured Party, in
its sole and absolute discretion, deems advisable, without in any way or
respect impairing, affecting, reducing or releasing the Guarantor from the
Guarantor's Obligations, and the Guarantor hereby consents to each and all
of the foregoing events or occurrences.
(b) The Guarantor hereby agrees that payment or performance by the
Guarantor of its Guarantor's Obligations under this Guaranty Agreement may
be enforced by the Administrative Agent on behalf of the Secured Parties
upon demand by the Administrative Agent to the Guarantor without the
Administrative Agent being required, the Guarantor expressly waiving to the
extent permitted by law any right it may have to require the Administrative
Agent, to (i) prosecute collection or seek to enforce or resort to any
remedies against any Designated Borrower or any other guarantor of the
Guaranteed Liabilities, or (ii) seek to enforce or resort to any remedies
with respect to any security interests, Liens or encumbrances granted to
the Administrative Agent or any Lender or other party to a Related
Agreement by any Designated Borrower or any other Person on account of the
Guaranteed Liabilities or any guaranty thereof, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY THE GUARANTOR THAT DEMAND UNDER
THIS GUARANTY AGREEMENT MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE
PROVISIONS HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE
FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT.
(c) The Guarantor further agrees with respect to this Guaranty
Agreement that it shall have no right of subrogation, reimbursement,
contribution or indemnity, nor any right of recourse to security for the
Guaranteed Liabilities unless and until 93 days immediately following the
Facility Termination Date (as defined below) shall have elapsed without the
filing or commencement, by or against any Designated Borrower, of any state
or federal action, suit, petition or proceeding seeking any reorganization,
liquidation or other relief or arrangement in respect of creditors of, or
the appointment of a receiver, liquidator, trustee or conservator in
respect to, such Designated Borrower or its assets. This waiver is
expressly intended to prevent the existence of any claim in respect to such
subrogation, reimbursement, contribution or indemnity by the Guarantor
against the estate of any Designated Borrower within the meaning of Section
101 of the Bankruptcy Code in the event of a subsequent case involving any
Designated Borrower. If an amount shall be paid to the Guarantor on account
of such rights at any time prior to termination of this Guaranty Agreement
in accordance with the provisions of Section 20 hereof, such amount shall
be held in trust for the benefit of the Secured Parties and shall forthwith
be paid to the Administrative Agent, for the benefit of the Secured
Parties, to be credited and applied upon the Guarantor's Obligations,
whether matured or unmatured, in accordance with the terms of the Credit
Agreement or otherwise as the Secured Parties may elect. The agreements in
this subsection shall survive repayment of all of the
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Guarantor's Obligations, the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination in
accordance with Section 20 hereof, and occurrence of the Facility
Termination Date. For purposes of this Guaranty Agreement, "Facility
Termination Date" means the date as of which all of the following shall
have occurred: (a) each Borrower shall have permanently terminated the
credit facilities under the Loan Documents by final payment in full of all
Outstanding Amounts, together with all accrued and unpaid interest and fees
thereon, other than (i) the undrawn portion of Letters of Credit and (ii)
all letter of credit fees relating thereto accruing after such date (which
fees shall be payable solely for the account of the L/C Issuer and shall be
computed (based on interest rates and the Applicable Rate then in effect)
on such undrawn amounts to the respective expiry dates of the Letters of
Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative
Agent and the L/C Issuer shall have been made; (b) all Commitments shall
have terminated or expired; and (c) each Borrower shall have fully, finally
and irrevocably paid and satisfied in full all of its obligations and
liabilities arising under the Loan Documents, including, with respect to
each Borrower, the Obligations of such Borrower (except for future
obligations consisting of continuing indemnities and other contingent
Obligations that may be owing to any Agent-Related Person or any Lender
pursuant to the Loan Documents and expressly survive termination of the
Credit Agreement or any other Loan Document).
9. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 20 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by the Administrative
Agent on behalf of the Secured Parties by written notice directed to the
Guarantor in accordance with Section 22 hereof.
10. REPRESENTATIONS AND WARRANTIES. The Guarantor warrants and represents
to the Administrative Agent, for the benefit of the Secured Parties, that it is
duly authorized to execute and deliver this Guaranty Agreement, and to perform
its obligations under this Guaranty Agreement, that this Guaranty Agreement has
been duly executed and delivered on behalf of the Guarantor by its duly
authorized representatives; that this Guaranty Agreement is legal, valid,
binding and enforceable against the Guarantor in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles; and that the
Guarantor's execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of any of its Organization Documents, any
agreement or instrument to which the Guarantor is a party, or any law, order,
regulation, decree or award of any governmental authority or arbitral body to
which it or its properties or operations is subject.
11. EXPENSES. The Guarantor agrees to be liable for the payment of all
reasonable fees and expenses, including fees and expenses of counsel, incurred
by any Secured Party in connection with the enforcement of this Guaranty
Agreement, whether or not suit be brought.
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12. REINSTATEMENT. The Guarantor agrees that this Guaranty Agreement shall
continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Guaranteed Liabilities
is rescinded or must be restored for any reason, or is repaid by any Secured
Party in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
13. ATTORNEY-IN-FACT. To the extent permitted by law, the Guarantor hereby
appoints the Administrative Agent, for the benefit of the Secured Parties, as
the Guarantor's attorney-in-fact for the purposes of carrying out the provisions
of this Guaranty Agreement and taking any action and executing any instrument
which the Administrative Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment is coupled with an interest and is
irrevocable; provided, that the Administrative Agent shall have and may exercise
rights under this power of attorney only upon the occurrence and during the
continuance of an Event of Default.
14. RULES OF INTERPRETATION. The rules of interpretation contained in
Section 1.02 of the Credit Agreement shall be applicable to this Guaranty
Agreement and are hereby incorporated by reference. All representations and
warranties contained herein shall survive the delivery of documents and any
extension of credit referred to herein or guaranteed hereby.
15. ENTIRE AGREEMENT. This Guaranty Agreement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements, understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Except as provided in Section 20, neither this Guaranty Agreement nor
any portion or provision hereof or thereof may be changed, altered, modified,
supplemented, discharged, canceled, terminated, or amended orally or in any
manner other than as provided in the Credit Agreement.
16. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement and the terms,
covenants and conditions hereof and thereof, shall be binding upon and inure to
the benefit of the parties hereto and thereto, and to their respective heirs,
legal representatives, successors and assigns; provided, however, that the
Guarantor shall not be permitted to assign any of its rights, powers, duties or
obligations under this Guaranty Agreement or any other interest herein or
therein without the prior written consent of the Administrative Agent. Without
limiting the generality of the foregoing sentence of this Section 16, any Lender
may assign to one or more Persons, or grant to one or more Persons
participations in or to, all or any part of its rights and obligations under the
Credit Agreement (to the extent permitted by the Credit Agreement); and to the
extent of any such assignment or participation such other Person shall, to the
fullest extent permitted by law, thereupon become vested with all the benefits
in respect thereof granted to such Lender herein or otherwise, subject however,
to the provisions of the Credit Agreement, including Article IX thereof
(concerning the Administrative Agent) and Section 10.06 thereof concerning
assignments and participations. All references herein to the Administrative
Agent shall include any successor thereof.
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17. [INTENTIONALLY OMITTED].
18. SEVERABILITY. The provisions of this Guaranty Agreement are independent
of and separable from each other. If any provision hereof shall for any reason
be held invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision hereof, but this
Guaranty Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
19. COUNTERPARTS. This Guaranty Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Guaranty
Agreement to produce or account for more than one such counterpart executed by
the Guarantor against whom enforcement is sought. Without limiting the foregoing
provisions of this Section 19, the provisions of Section 10.10 of the Credit
Agreement shall be applicable to this Guaranty Agreement.
20. TERMINATION. Subject to reinstatement pursuant to Section 12 hereof,
this Guaranty Agreement, and all of the Guarantor's Obligations hereunder
(excluding those Guarantor's obligations relating to Guaranteed Liabilities that
expressly survive such termination) shall terminate on the Facility Termination
Date.
21. REMEDIES CUMULATIVE; LATE PAYMENTS. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the
Administrative Agent or any other Secured Party provided by law or under the
Credit Agreement, the other Loan Documents or other applicable agreements or
instruments. The making of the Loans and other credit extensions pursuant to the
Credit Agreement and other Related Agreements shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the Guarantor's
guaranty of the Guaranteed Liabilities pursuant to the terms hereof. Any amounts
not paid when due under this Guaranty Agreement shall bear interest at the
Default Rate.
22. NOTICES. Any notice required or permitted hereunder shall be given, (a)
with respect to the Guarantor, at the address indicated in Schedule 10.02 of the
Credit Agreement and (b) with respect to the Administrative Agent or any other
Secured Party, at the Administrative Agent's address indicated in Schedule 10.02
of the Credit Agreement. All such addresses may be modified, and all such
notices shall be given and shall be effective, as provided in Section 10.02 of
the Credit Agreement for the giving and effectiveness of notices and
modifications of addresses thereunder.
23. GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Amended and Restated Guaranty Agreement as of the day and year first
written above.
GUARANTOR:
AVNET, INC.
By:
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Name:
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Title:
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ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By:
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
