CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
CONSENT AND FIRST AMENDMENT TO CREDIT AGREEMENT
CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 6, 2007
(the “First Amendment”) by and among NU HORIZONS ELECTRONICS CORP., a Delaware corporation having
its executive offices at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (the “Borrower”), each of the lenders
that is a signatory thereto identified under the caption “Lenders” on the signature pages
to the Credit Agreement (as defined below) (individually, a “Lender”, and collectively, the
“Lenders”), BANK OF AMERICA, N.A., a national banking association, as Documentation Agent for the
Lenders, JPMORGAN CHASE BANK, N.A., a national banking association, as Syndication Agent for the
Lenders, ISRAEL DISCOUNT BANK OF NEW YORK, a New York bank, as Syndication Agent for the Lenders
and CITIBANK, N.A., a national banking association, as administrative agent for the Lenders (the
“Administrative Agent”).
RECITALS
The Borrower, the Lenders, the Documentation Agent, the Syndication Agents and the
Administrative Agent entered into an Amended and Restated Credit Agreement dated as of January
31, 2007 (the “Credit Agreement”), pursuant to which certain financial accommodations were made
available to the Borrower.
The Borrower has requested that the Lenders and the Administrative Agent (a) consent to the
purchase by the Borrower of all of the shares of Tau Vermogensverwaltung GmbH, a limited liability
company registered in Germany, now known as Nu Horizons Electronics GmbH pursuant to a Share Sale
and Purchase Agreement dated as of January 5, 2007 by and among Xxxxxxxxxx Verwaltungsgesellschaft
mbH and the Borrower and (b) modify certain of the terms set forth in the Credit Agreement to
increase the loans, investments and guarantees limitations and the Lenders and the Administrative
Agent are willing to grant such consent and comply with such request to modify but only upon and
subject to the following terms and conditions.
NOW THEREFORE, in consideration of the premises and mutual covenants and promises exchanged
herein, the parties hereto mutually agree as follows:
Section 1. Definitions. Except as otherwise defined in this First Amendment,
terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Consent. Subject to the satisfaction of the conditions precedent
set forth in Section 4 below and the conditions contained in this Section, the Lenders consent to
the Borrower’s purchase of all of the issued and outstanding shares of Tau Vermogensverwaltung
GmbH, now known as Nu Horizons Electronics GmbH, a limited liability company registered in Germany
for approximately $36,250 and agree that (a) such acquisition shall be excluded from the
limitations on the number of Foreign Acquisitions and the aggregate number of Acquisitions
contained in clause (iii) of the definition of Permitted Acquisition and (b) the consideration
paid for such acquisition shall be excluded from the $25,000,000 aggregate limitation for all
Acquisitions consummated during the Commitment Period specified in clause (i) of the definition of
Permitted Acquisition. The foregoing consent is subject to the condition that subsequent to the
date of this First Amendment
(y) Nu Horizons Electronics GmbH shall not invest in (by capital contribution, loan, purchase or
otherwise) any firm, corporation, or other Person unless such investment constitutes a Permitted
Acquisition and (z) neither the Borrower nor any of its Domestic Subsidiaries shall be permitted to
make additional investments in Nu Horizons Electronics GmbH under Section 7.3(vii) of the Credit
Agreement, as amended hereby in Section 3 hereof, until such time as the Administrative Agent has
received a pledge of 65% of the capital stock of such entity.
Section 3. Amendment. Subject to the satisfaction of the conditions
precedent specified in Section 4 below:
(A) Section 7.1(vi) and (vii) of the Credit Agreement are hereby deleted and the following
is substituted therefor:
“(vi) indebtedness incurred by the Foreign Subsidiaries to
institutional lenders not to exceed: (y) prior to the effective date
(the “Increase Date”) of an increase in credit occurring after the
date of the First Amendment to the Amended and Restated Credit
Agreement dated June 6, 2007 of up to $15,000,000 (such increase,
the “D T Increase Amount”) under the institutional loan facility to
D T Electronics Limited, $45,000,000 in the aggregate and (z) after
the Increase Date, the lesser of $60,000,000 or $45,000,000 plus the
D T Increase Amount, each in the aggregate (such Increase Date to be
effective on the date of the Administrative Agent’s acceptance of an
Officers’ Certificate of the Borrower notifying the Administrative
Agent of such increase and providing relevant supporting
documentation of same), and (vii) other indebtedness which shall not
exceed in the aggregate for the Borrower and all Domestic
Subsidiaries, at any time outstanding, the sum of $1,000,000. In
determining indebtedness for purposes of clause (vi) above, the
maximum amount of availability of any credit facility from an
institutional lender, whether committed or advised (whether or not
outstanding), shall be deemed indebtedness for the purposes of such
clause.”
(B) Section 7.3 (vii) of the Credit Agreement is hereby deleted and the following is
substituted therefor:
“(vii) investments by the Borrower and its Domestic
Subsidiaries in stocks, securities or assets of Foreign Subsidiaries
or loans to Foreign Subsidiaries provided that (1) such investments
and loans do not exceed an aggregate amount of $60,000,000 at any
time and (2) such investments and loans together with the guarantees
permitted by Section 7.5 (iii) hereof do not exceed (y) prior to the
Increase Date, as defined in Section 7.1 (vi) hereof, $95,000,000 in
the aggregate and (z) after the Increase Date, the lesser of
$110,000,000
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or $95,000,000 plus the D T Increase Amount, each in the aggregate,
reduced, in each instance, by any amount utilized for any Minority
Interest Purchase under subsection (vi) above. In determining
investments for purposes of this Section, the Borrower’s investment
in its Foreign Subsidiaries shall be deemed to be the Borrower’s
investment account balances in same (including retained earnings).”
(C) Section 7.5 (iii) of the Credit Agreement is hereby deleted and the following is
substituted therefor:
“(iii) guarantees by the Borrower and its Foreign Subsidiaries
for obligations of Foreign Subsidiaries permitted by Section 7.1
(vi) hereof provided that such obligations together with investments
and loans permitted by Section 7.3 (vii) and Minority Interest
Purchases permitted by Section 7.3 (vi) do not exceed (y) prior to
the Increase Date, as defined in Section 7.1(vi) hereof, $95,000,000
in the aggregate and (z) after the Increase Date, the lesser of
$110,000,000 or $95,000,000 plus the D T Increase Amount, each in
the aggregate and, in each instance, such guarantees are not secured
by any property of the Borrower or its Domestic Subsidiaries. In
determining obligations guaranteed for purposes of clause (iii)
above: (y) the maximum amount of availability of any such
obligations, whether committed or advised (whether or not
outstanding), shall be deemed guaranteed obligations and (z) the
guaranteed amount pursuant to guarantees by the Borrower and/or one
or more guarantors of the same indebtedness obligations shall only
be counted once.”
Section 4. Conditions Precedent. The consent set forth in Section 2 hereof and the
amendment to the Credit Agreement set forth in Section 3 hereof shall become effective, on the
date of this First Amendment, upon the execution and delivery of this First Amendment by the
Borrower, the Administrative Agent and each of the Lenders necessary to constitute the Required
Lenders and the satisfaction of the following conditions:
(A) Certified Copies and Other Documents. The Administrative Agent shall have received
certificates of an officer of the Borrower dated the date of this First Amendment certifying (x) no
changes in the certificate of incorporation or by-laws from the date of the Agreement or attaching
copies of any amendments, (y) true and correct copies of resolutions adopted by the board of
directors of the Borrower (1) authorizing the borrowings and the other extensions of credit from
the Lenders under the Agreement as amended hereby, the execution, delivery and performance by the
Borrower of this First Amendment, and any related documents (2) approving forms in substantially
execution form of this First Amendment, and any related documents and (3) authorizing officers of
the Borrower to execute and deliver this First Amendment, and any related documents, and (z) the
incumbency and specimen signatures of the officers of the Borrower executing any documents
delivered to the Administrative Agent or a Lender by the Borrower in connection herewith.
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(B) Approval of the Administrative Agent and Agent’s Counsel. All other documents
and legal matters in connection with the transactions contemplated by this First Amendment shall be
satisfactory in form and substance to the Administrative Agent and its counsel.
Section 5. Representations and Warranties. The Borrower represents and
warrants to the Lenders that the representations and warranties set forth in the Credit Agreement
and in the other Loan Documents are true and complete on the date of this First Amendment and as if
made on and as of the date hereof (or, if such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
Section 6. Governing Law; Execution in Counterparts. Except as herein
provided, the Credit Agreement shall remain unchanged and in full force and effect. This First
Amendment may be executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto may execute this
First Amendment by signing any such counterpart. This First Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York (without regard to New
York conflicts of laws principles).
Section 7. Expenses, etc. The Borrower agrees to pay or reimburse the
Administrative Agent for all reasonable out-of-pocket costs and expenses of the Administrative
Agent (including, without limitation, the reasonable fees and expenses of Xxxxx & Xxxx-Xxxxx, LLP)
in connection with the negotiation, preparation, execution and delivery of this First Amendment
and the transactions contemplated hereby.
Section 8. Effective Date. This First Amendment is dated for convenience as
of June 6, 2007 and shall be effective as of such date, on the delivery of an executed counterpart
to the Borrower upon satisfaction of the conditions precedent contained in Section 4 hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Credit Agreement to
be duly executed and delivered by their duly authorized officers, all as of the day and year first
above written.
| Borrower: NU HORIZONS ELECTRONICS CORP. |
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| By: | /s/ Xxxx Xxxxxxxxxxx | |||
| Xxxx Xxxxxxxxxxx | ||||
| Vice President, Treasurer and Chief Financial Officer |
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| Administrative Agent: CITIBANK, N.A., as Administrative Agent |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Vice President | ||||
| Documentation Agent: BANK OF AMERICA, N.A., as Documentation Agent |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxxx | ||||
| Senior Vice President | ||||
| Syndication Agent: JPMORGAN CHASE BANK, N.A., as Syndication Agent |
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| By: | /s/ Xxxx X. Xxxxxx | |||
| Xxxx X. Xxxxxx | ||||
| Associate | ||||
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| ISRAEL DISCOUNT BANK OF NEW YORK, as Syndication Agent | ||||||||
| By: | /s/ Xxxxx Xxxxxxxx
|
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| First Vice President | ||||||||
| By: | /s/ Xxxxxxx Xxxx
|
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| Assistant Vice President | ||||||||
| Notice Addresses: | Lenders: | |||||||
| CITIBANK, N.A. | CITIBANK, N.A. | |||||||
000 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx, XX 00000 |
By: | /s/ Xxxxxx X. Xxxxxx | ||||||
| Vice President | ||||||||
| JPMORGAN CHASE BANK, N.A. | JPMORGAN CHASE BANK, N.A. | |||||||
000 Xxxxx Xxxxxxx Xxxx, Xxxxx 0 Xxxxxxxx, XX 00000 |
By: | Xxxx X. Xxxxxx | ||||||
| Associate | ||||||||
| ISRAEL DISCOUNT BANK OF NEW YORK | ISRAEL DISCOUNT BANK OF NEW YORK | |||||||
000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 |
By: |
/s/ Xxxxx Xxxxxxxx |
||||||
| First Vice President | ||||||||
| By: | /s/ Xxxxxxx Xxxx
|
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| Assistant Vice President | ||||||||
| BANK OF AMERICA, N.A. | BANK OF AMERICA, N.A. | |||||||
0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 |
By: | Xxxxxx X. Xxxxxxxxxx | ||||||
| Senior Vice President | ||||||||
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| SOVEREIGN BANK | SOVEREIGN BANK | |||||||
0 Xxxxxxxxxx Xxxxxxxxxx Xxxxx 000 Xxxxx |
Xx: | /s/ Xxxxxxxxx Xxxxxx | ||||||
Xxxxxxxx, XX 00000
|
||||||||
| Senior Vice President | ||||||||
| HSBC BANK USA, NATIONAL | HSBC BANK USA, NATIONAL | |||||||
| ASSOCIATION | ASSOCIATION | |||||||
000 Xxxxx Xxxxxx Xxxx Xxxxxxxx, XX 00000 |
By: | /s/ Xxxxxxxxxxx X. Xxxxxxxxxx | ||||||
| First Vice President | ||||||||
| NORTH FORK BANK | NORTH FORK BANK | |||||||
000 Xxxxxxxxxxx Xxxx Xxxxxxxx, XX 00000 |
By: | /s/ Xxxxx Xxxxx | ||||||
| Senior Vice President | ||||||||
| BANK LEUMI USA | BANK LEUMI USA | |||||||
00 Xxxxx Xxxxxxx Xxxx Xxxxx 000 |
By: | /s/ Xxxx Xxxx | ||||||
Xxxxxxxx, XX 00000
|
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| First Vice President | ||||||||
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