EXHIBIT 10B
EXECUTION VERSION
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of March 28, 2003, is entered into by and among AVNET, INC., a New York
corporation ("Avnet"), the lenders party to the Credit Agreement referred to
below (each a "Lender" and, collectively, the "Lenders") and BANK OF AMERICA,
N.A., as administrative agent for itself and the other Lenders (in such
capacity, the "Administrative Agent").
RECITALS
A. Avnet, the Lenders and the Administrative Agent are parties to
that certain Credit Agreement (Multi-Year) dated as of October 25, 2001, as
amended or modified by that First Amendment to Credit Agreement (Multi-Year)
dated as of March 29, 2002, that Second Amendment to Credit Agreement
(Multi-Year) dated as of October 10, 2002, that certain letter agreement dated
as of November 8, 2002, that Third Amendment to Credit Agreement dated as of
November 23, 2002, that Fourth Amendment to Credit Agreement dated as of
December 9, 2002, that Fifth Amendment to Credit Agreement dated as of December
12, 2002, that Sixth Amendment to Credit Agreement dated as of December 13,
2002, and that Seventh Amendment to Credit Agreement dated as of January 30,
2003 (as so amended or modified, the "Credit Agreement"), pursuant to which the
Administrative Agent and the Lenders have extended certain credit facilities to
Avnet and certain of its Subsidiaries.
B. Avnet has requested that the Administrative Agent and the
Lenders agree to certain amendments of the Credit Agreement.
The Administrative Agent and the Lenders are willing to amend the
Credit Agreement subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to such terms in the
Credit Agreement as amended hereby.
2. Amendments to Credit Agreement. The Credit Agreement shall be
amended, effective as of the Effective Date, as follows:
(a) At Section 1.01, at the defined term "EBITDA", by
replacing the dollar amount "$25,000,000" with "$47,700,000".
(b) Section 6.07(m) shall be amended by replacing the
dollar amount "$10,000,000" with "$20,000,000".
(c) Section 6.14 shall be amended as follows:
(i) In clause (v) of subsection (h), by
replacing the dollar amount "$5,000,000" with "$15,000,000"; and
(ii) In subsection (l), by replacing the dollar
amount "$5,000,000" with "$15,000,000".
(d) Section 6.17 shall be amended by adding the following
at the end thereof:
";provided, however, that notwithstanding the other provisions
of this Section 6.17, Avnet shall be permitted to repay,
prepay, cause the redemption or Substantive Defeasement of, or
repurchase, and cancel any or all Capital Markets Notes having
original stated maturities in year 2004 (collectively, the
"2004 Notes Redemption"), provided Avnet delivers to the
Administrative Agent on each date on which Avnet becomes
obligated to consummate a 2004 Notes Redemption a certificate
signed by a Responsible Officer of Avnet certifying that on
and as of such date (i) there exists no Default or Event of
Default, and (ii) the representations and warranties of Avnet
contained in Article V of the Credit Agreement are true and
correct, except to the extent that such representations and
warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date."
(e) Section 6.25 shall deleted in its entirety and
replaced with the following:
"6.25 SEI INVESTMENT. Avnet shall, as and when required under
the terms of the guarantee provision (the "SEI Guaranty
Provision") in that Share Purchase Agreement dated as of
August 25, 1999 between Avnet and SEI Investments B.V., pay or
deliver any amount required to be paid or delivered pursuant
to the SEI Guaranty Provision (collectively, the "SEI
Payments") and such SEI Payments shall be (a) in the form of
common stock of Avnet issued for such purposes (and not
acquired by Avnet pursuant to any secondary market purchase or
stock redemption program), or (b) in the form of cash,
provided that in the event of any such cash payment, Avnet
shall deliver to the Administrative Agent on the date such SEI
Payment is made a certificate signed by a Responsible Officer
of Avnet certifying that on and as of such date (the "SEI
Payment Date"):
(i) there exists no Default or Event of Default;
(ii) on a pro forma basis, based upon (A) the
most recent quarterly or annual financial statements delivered
by Avnet under Section 6.01(a) or (b) or (B) if the SEI
Payment Date falls between the end of a financial quarter and
the date on which Avnet delivers financial statements pursuant
to Section 6.01(a) or (b) in respect of such quarter,
preliminary financial statements prepared by Avnet in
accordance with GAAP and fairly presenting the financial
condition of Avnet and its consolidated Subsidiaries as of the
date thereof and their results of operations for the period
covered thereby, subject to the absence of footnotes and to
ordinary quarter-end adjustments, and in either event (A) and
(B), modified to take into account the effect of such SEI
Payment as if such SEI Payment had
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occurred on the last day of such quarter, no breach of Section
6.11(b) or (c) would occur as a result of such SEI Payment,
and attaching a properly completed pro forma Compliance
Certificate to the same effect; and
(iii) the representations and warranties of Avnet
contained in Article V of the Credit Agreement are true and
correct, except to the extent that such representations and
warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date."
3. Representations and Warranties. Avnet hereby represents and
warrants to the Administrative Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is
continuing, either immediately prior to or after giving effect to this
Amendment.
(b) The execution, delivery and performance by Avnet of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligations
of Avnet, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of Avnet contained
in Article V of the Credit Agreement as amended hereby are true and correct as
of the Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date.
(d) Avnet is entering into this Amendment on the basis of
its own investigation and for its own reasons, without reliance upon the
Administrative Agent, the Lenders or any other Person.
(e) As of the Effective Date, there are no Designated
Borrowers under the Credit Agreement.
(f) The information set forth on Schedule 1 attached
hereto in respect of Avnet do Brasil LTDA ("Avnet Brasil") and Soluciones
Mercantiles, S. de X.X. de C.V. (Mexico) ("Soluciones") is true and correct in
all material respects to the best of Avnet's knowledge.
4. Effective Date. This Amendment will become effective as of the
date shown first above, provided each of the following conditions precedent has
been satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received from
each of Avnet and the Required Lenders a duly executed original (or, if elected
by the Administrative Agent, an executed facsimile copy) counterpart to this
Amendment.
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(b) The Administrative Agent shall have received from the
secretary or assistant secretary of Avnet a certificate providing satisfactory
evidence of the authorization of the execution, delivery and performance by
Avnet of this Amendment and any other documents contemplated hereby.
(c) The Administrative Agent shall have received from
Avnet a certificate executed by a Responsible Officer of Avnet, dated as of the
Effective Date and certifying that (i) all representations and warranties
contained herein are true and correct on and as of the Effective Date as though
made on and as of such date and (ii) on and as of the Effective Date, no event
has occurred which has or would reasonably be likely to have a material adverse
effect on the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of Avnet or of Avnet and its
Subsidiaries taken as a whole.
(d) The Administrative Agent shall have received
satisfactory evidence that Avnet has paid (i) all Attorney Costs of the
Administrative Agent, and (ii) all other reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment and any other documents to
be delivered in connection herewith, in each case to the extent invoiced prior
to the Effective Date (including any previously invoiced and outstanding
Attorney Costs that relate to services previously provided).
(e) The Administrative Agent shall have received, in form
and substance satisfactory to it, such additional approvals, consents, opinions,
documents and other information as the Administrative Agent may request.
(f) The Administrative Agent shall have received, in form
and substance satisfactory to it, an irrevocable notice pursuant to Section
2.06(a) of the Credit Agreement from Avnet (such notice, the "Reduction
Notice"), which Reduction Notice shall specify the reduction of the Aggregate
Commitments to $350,000,000, such reduction to occur as of the Effective Date.
(g) The Effective Date shall have occurred no later than
March 28, 2003.
For purposes of determining compliance with the conditions specified in this
Section 4,each Lender that has executed this Amendment and delivered it to the
Administrative Agent shall be deemed to have consented to, approved or accepted,
or to be satisfied with, each document or other matter either sent, or made
available for inspection, by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
5. Reservation of Rights. Avnet acknowledges and agrees that the
execution and delivery by the Administrative Agent and the Required Lenders of
this Amendment shall not (a) be deemed to create a course of dealing or
otherwise obligate the Administrative Agent or any Lender to execute similar
amendments under the same or similar circumstances in the future or (b) be
deemed to create any implied waiver of any right or remedy of the Administrative
Agent or any Lender with respect to any term or provision of any Loan Document.
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6. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Credit Agreement are and shall remain in full
force and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Amendment. This
Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement. The Credit Agreement, as amended hereby, is hereby ratified by Avnet.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF
SECTIONS 9.19 AND 9.20 OF THE CREDIT AGREEMENT, THE PROVISIONS OF WHICH ARE BY
THIS REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Administrative Agent of a facsimile transmitted document
purportedly bearing the signature of A Lender or Avnet shall bind such Lender or
Avnet, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Administrative Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Administrative Agent.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with reference
to the matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 9.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
(g) Avnet covenants to pay to or reimburse the
Administrative Agent, upon demand, for all out-of-pocket costs and expenses
incurred in connection with the development, preparation, negotiation, execution
and delivery of this Amendment and the other documents contemplated hereby.
(h) This Amendment shall constitute a Loan Document.
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(i) The Lenders hereby acknowledge that the
Administrative Agent shall not be required to request foreign law Collateral
Documents relating to pledges of shares or other interests (collectively, the
"Specified Collateral Documents") of Avnet Brasil and Soluciones (collectively,
the "Specified Subsidiaries"), and the Administrative Agent hereby agrees that
Avnet shall not be required to deliver the Specified Collateral Documents
regarding the Specified Subsidiaries; provided, however, that upon the
occurrence of a Default or Event of Default, the Administrative Agent shall, at
the request of the Required Lenders, require Avnet to deliver the Specified
Collateral Documents regarding the Specified Subsidiaries and Avnet shall
deliver the Specified Collateral Documents in accordance with the terms and
conditions set forth in the Collateral Documents.
(j) The Lenders hereby consent (i) to the Administrative
Agent returning to Avnet a stock certificate (the "eConnections Certificate")
evidencing 3,867,366 shares of Series B Convertible Preferred Stock of
eConnections, Inc. ("eConnections") and to Avnet tendering such eConnections
Certificate to eConnections in connection with a liquidation plan by
eConnections for a consideration of approximately$0.2315 per share (the
"eConnections Transaction"), and (ii) to Avnet selling 132,000 shares of common
stock of Clear Technologies, Inc. through its Subsidiary Savoir Technology
Group, Inc. pursuant to an existing contractual obligation for a consideration
of $1,500,000 or more, payable over five years following the sale of such shares
(the "Clear Technologies Transaction"; and together with the eConnections
Transaction, collectively, the "Permitted Dispositions") and (iii) to the
Administrative Agent releasing all Lender Liens thereon; provided that (i) the
Permitted Dispositions shall be substantially consummated no later than May
31, 2003, (ii) no Default or Event of Default shall exist on the date of the
release of the Lender Liens in respect of the Permitted Dispositions, and (iii)
no material change of the Permitted Dispositions shall have occurred without the
prior written consent of the Required Lenders.
(k) Solely for the purpose of the Reduction Notice, the
Lenders hereby waive the notice requirement in connection with a reduction of
the Aggregate Commitments by Avnet set forth in clause (i) of Section 2.06(a) of
the Credit Agreement.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
AVNET, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President And
Chief Financial Officer
Signature Page for the Eighth Amendment to Credit Agreement
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BANK OF AMERICA, N.A., as the
Administrative Agent, a Lender, the L/C
Issuer and the Swing Line Lender
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Principal
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ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: XXXXXX XXXXX
Title: SENIOR VICE PRESIDENT
By: /s/ XXXXX XXX
------------------------------
Name: XXXXX XXX
Title: VICE PRESIDENT
Signature Page for the Eighth Amendment to Credit Agreement
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XXX XXXX XX XXXX XXXXXX, as a
Lender
By:____________________________
Name:__________________________
Title:_________________________
Signature Page for the Eighth Amendment to Credit Agreement
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BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as a Lender
By:____________________________
Name:__________________________
Title:_________________________
Signature Page for the Eighth Amendment to Credit Agreement
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BANK ONE, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Signature Page for the Eighth Amendment to Credit Agreement
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CREDIT SUISSE FIRST BOSTON, as a
Lender
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------------
Name: XXXXXXXXXXX XXXXX
Title: VICE PRESIDENT
By: /s/ Xxx X. Xxxxx
----------------------------
Name: XXX X. XXXXX
Title: ASSOCIATE
Signature Page for the Eighth Amendment to Credit Agreement
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WACHOVIA BANK,NATIONAL
ASSOCIATION, as a Lender
By: ____________________________
Name: __________________________
Title: _________________________
Signature Page for the Eighth Amendment to Credit Agreement
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FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxx X. Melicharel
-----------------------------
Name: XXXXXX X. MELICHAREL
Title: SVP
Signature Page for the Eighth Amendment to Credit Agreement
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KBC BANK, N.V., as a Lender
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name:__________________________
Title:_________________________
Signature Page for the Eighth Amendment to Credit Agreement
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NATEXIS BANQUES POPULAIRES,
as a Lender
By: ____________________________
Name: __________________________
Title: _________________________
By: ____________________________
Name: __________________________
Title: _________________________
Signature Page for the Eighth Amendment to Credit Agreement
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THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Second Vice President
Signature Page for the Eighth Amendment to Credit Agreement
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SKANDINAVISKA ENSKILDA
XXXXXX XX (PUBL), as a Lender
By:____________________________
Name:__________________________
Title:_________________________
Signature Page for the Eighth Amendment to Credit Agreement
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STANDARD CHARTERED BANK, as
a Lender
By: /s/ Xxxx Xxxxxxx Xxxxxxxx
----------------------------
Name: XXXX XXXXXXX XXXXXXXX
Title: Sr. Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------
Name: XXXXXX XXXXXXXXXX
Title: AVP/CREDIT DOCUMENTATION
STANDARD CHARTERED BANK NY
Signature Page for the Eighth Amendment to Credit Agreement
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UNICREDITO ITALIANO, NEW YORK
BRANCH, as a Lender
By:____________________________
Name:__________________________
Title:_________________________
By:____________________________
Name:__________________________
Title:_________________________
Signature Page for the Eighth Amendment to Credit Agreement
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