EXECUTION VERSION
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of December 12, 2002, 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, and that
Fourth Amendment to Credit Agreement dated as of December 9, 2002 (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.
C. 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 as follows, effective as of the Effective Date:
(a) Section 1.01 of the Credit Agreement shall be amended as
follows:
(i) By amending and restating the following defined
term in its entirety:
"Foreign Stock Collateral" means, at any time,
Collateral issued by any First Tier Foreign Subsidiary (other
than any Dormant Subsidiary) and pledged to the Administrative
Agent pursuant to the Foreign Stock Pledge Agreement.
(ii) By inserting the following additional defined
term in the proper alphabetical order:
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"EU Affiliate" means Banc of America Securities
Limited, a limited liability company organized under the laws
of England and Wales, and any successor thereto.
(b) Section 2.01(b) of the Credit Agreement shall be amended
by inserting after the phrase "provided, however," the following: "that the
aggregate amount of all Administrative Agent Advances outstanding at any time
shall not exceed $5,000,000; and provided further,".
(c) Article II of the Credit Agreement shall be further
amended by adding the following at the end thereof:
"2.16 PARALLEL DEBT. Solely for purposes of ensuring
and preserving the validity, effectiveness and enforceability
of certain Collateral Documents relating to certain of Avnet's
European Subsidiaries, Avnet shall owe to the EU Affiliate and
to the Administrative Agent, as a separate and independent
obligation, an amount equal to the Outstanding Amount of all
Loans and L/C Obligations from time to time outstanding (such
obligation, the "Parallel Obligation"); provided that (i) the
Parallel Obligation shall not be in replacement of any
Outstanding Amount owing to the Lenders, which shall continue
to exist unaffected by the existence of the Parallel
Obligation; (ii) any payment made to the Administrative Agent
or any Lender in respect of any Outstanding Amount shall be
deemed made also in respect of and shall to such extent be
deemed to satisfy the Parallel Obligation; (iii) any payment
made to or received by the EU Affiliate or the Administrative
Agent in respect of the Parallel Obligation shall be
immediately transferred to the Administrative Agent for the
ratable benefit of the Lenders in accordance with the terms
hereof, and shall be promptly applied to the then Outstanding
Amount; and (iv) the EU Affiliate shall be entitled to the
same rights and benefits as the Lenders pursuant to Article
III in respect of the Parallel Obligation. For the avoidance
of doubt, it is noted that security granted to the
Administrative Agent or the EU Affiliate to secure the
Parallel Obligation shall be granted to the Administrative
Agent or the EU Affiliate, as the case may be, in its capacity
as creditor (in its own name and behalf) of the Parallel
Obligation. The Administrative Agent is hereby authorized to
execute such documents and instruments with the EU Affiliate
as may be necessary or appropriate in order to further
effectuate the foregoing."
(d) Section 6.07 of the Credit Agreement shall be amended as
follows:
(i) By renumbering subsection (n) as subsection (o);
and
(ii) By inserting the following as a new subsection
(n):
"(n) With respect to any Foreign Subsidiary of Avnet
party to any Collateral Document containing a prohibition on
the incurrence of
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Liens, such Liens on property of such Foreign Subsidiary as
are specifically permitted under such prohibition;"
(e) Section 6.21(b) of the Credit Agreement shall be amended
as follows:
(i) By inserting after the first occurrence of the
phrase "Collateral Documents" the following: "(other than legal opinions, which
are to be delivered directly to the Administrative Agent)";
(ii) By deleting the phrase "Schedule 6.21" and
replacing it with "Schedule 6.21-1"; and
(iii) By inserting at the end of the first sentence
thereof the following: "provided, however, that notwithstanding the foregoing,
those Collateral Documents listed on Schedule 6.21-2 shall be executed and
delivered no later than January 15, 2003".
(f) Section 6.21(c) of the Credit Agreement shall be amended
by inserting at the end of the parenthetical clause therein the following: ",
such legal opinions to be delivered directly to the Administrative Agent rather
than into Document Escrow".
(g) Article VI of the Credit Agreement shall be further
amended by adding the following at the end thereof:
"6.27 MODIFICATION OF SECURITIZATION DOCUMENTS. Avnet
shall not, from and after December 12, 2002: (a) amend, modify
or supplement that certain Receivables Sale Agreement dated as
of June 28, 2001, as amended, by and between Avnet and Avnet
Receivables Corporation, a Delaware corporation (the "SPV");
or (b) consent to any amendment, modification or supplement of
(i) that certain Amended and Restated Receivables Purchase
Agreement dated as of February 6, 2002, as amended (the
"Receivables Purchase Agreement"), by and among the SPV,
Avnet, the commercial paper conduits and financial
institutions party thereto as "Purchasers," and Bank One, NA
(Main Office Chicago), as agent for the Purchasers, or (ii)
any other "Transaction Document" (as such term is defined in
the Receivables Purchase Agreement); in each case (a) or (b),
that in any manner, directly or indirectly, (y) expands the
scope of property transferred to the SPV or (z) restricts or
impairs the SPV's legal or contractual ability to make any
"SPV Distributions" (as such term is defined in the
Receivables Intercreditor Agreement).
6.28 REPURCHASE OF SECURITIZED RECEIVABLES. Avnet
shall not, and shall not permit any of its Subsidiaries to,
repurchase any Permitted Receivables subject to a Permitted
Securitization, other than pursuant to a Permitted
Securitization Refinancing.
6.29 INVENTORY LOCATED ON CUSTOMER PREMISES. With
respect to any inventory of Avnet or any of its Subsidiaries
now or hereafter located or to be located on customer premises
having a value equal to or greater than $500,000 in respect of
any such customer, Avnet shall, in
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respect of any such customer existing as of December 31, 2002,
make best efforts in order that by February 14, 2003, it has
either (a) Perfected Avnet's or such Subsidiary's Lien on or
other interest in all such inventory by filing UCC-1 financing
statements naming each such customer as the "debtor" in the
jurisdiction in which such customer is organized, providing
notice of Avnet's or such Subsidiary's Lien on or other
interest in such inventory, or (b) otherwise taken all actions
reasonably requested by the Administrative Agent in order to
evidence the ownership of such inventory by Avnet or such
Subsidiary. Avnet shall deliver to the Administrative Agent a
certificate confirming the completion of either item (a) or
(b) hereunder. In respect of any such customer arising after
December 31, 2002, Avnet shall make best efforts to complete
either of the undertakings above as soon as possible
thereafter and shall from time to time deliver to the
Administrative Agent certificates confirming such completion."
(h) Schedule 6.21 to the Credit Agreement shall be renumbered
as Schedule 6.21-1, and a new Schedule 6.21-2 shall be added to the Credit
Agreement in the form of Schedule 6.21-2 hereto.
3. Intercreditor Agreement. The Lenders hereby approve and ratify the
Receivables Intercreditor Agreement in the form of Exhibit A hereto, and hereby
instruct the Administrative Agent to execute and deliver the Receivables
Intercreditor Agreement. The Lenders hereby acknowledge that it is their intent
that and hereby represent to the Administrative Agent that (a) the
Administrative Agent has the power and authority to bind each Lender to the
Receivables Intercreditor Agreement, all as if each such Lender were a signatory
thereof, and (b) upon the execution and delivery of the Receivables
Intercreditor Agreement by the Administrative Agent, such agreement will
constitute the legal, valid and binding obligation of each Lender enforceable
against each such Lender in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law). The Lenders further acknowledge that the
Administrative Agent is relying upon the foregoing assurances in executing and
delivering the Receivables Intercreditor Agreement. This Section 3 is hereby
incorporated into and made a part of Article VIII of the Credit Agreement by
this reference.
4. 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
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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.
5. 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.
(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, or on the facts and information regarding Avnet
and its Subsidiaries as represented as of the date hereof.
(d) The Administrative Agent shall have received satisfactory
evidence that Avnet has paid (i) all Attorney Costs of the Administrative Agent
to the extent invoiced prior to the Effective Date (including any previously
invoiced and outstanding Attorney Costs that relate to services previously
provided), plus such additional amounts of Attorney Costs as shall constitute
the Administrative Agent's reasonable estimate of Attorney Costs incurred or to
be incurred by it through the Effective Date (provided that such estimate shall
not thereafter preclude a final settling of accounts between Avnet and 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.
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(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) Avnet shall have executed and delivered or caused to be
executed and delivered into Document Escrow or to the Administrative Agent all
of the Collateral Documents listed on Schedule I hereto, other than those
Collateral Documents listed (i) on Schedule 6.21-2 to the Credit Agreement and
(ii) in item 6 of Schedule I hereto.
(g) The Effective Date shall have occurred no later than
December 12, 2002.
For purposes of determining compliance with the conditions specified in this
Section 5, 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.
6. 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.
7. Miscellaneous.
(a) The Lenders hereby acknowledge, solely in favor and for
the benefit of the Administrative Agent, that the Collateral Documents will or
may consist only of those Collateral Documents listed on Schedule I hereto,
copies of all of which the Administrative Agent has made available for review by
each Lender upon such Lender's request, and the Lenders hereby approve and
ratify the Administrative Agent's decisions to request only those Collateral
Documents listed on such schedule.
(b) 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.
(c) 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.
(d) 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.
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(e) 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.
(f) 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.
(g) Each provision of this Amendment shall, whenever possible,
be interpreted in such a manner as to be effective, valid and enforceable in all
respects. If, however, any provision of this Amendment shall be prohibited by
any applicable law or regulation in any jurisdiction, or shall be invalid or
unenforceable for any reason, such provision shall be deemed modified (i) as to
such jurisdiction, in order to conform to the minimum requirements of such law
or regulation, or (ii) to the minimum extent necessary in order to render such
provision valid and enforceable. If, for any reason, such provision is not
deemed so modified, it shall be ineffective, invalid or unenforceable only to
the extent of such prohibition, invalidity or unenforceability, without
affecting the remaining provisions of this Amendment, the Credit Agreement or
any other Loan Documents.
(h) 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.
(i) This Amendment shall constitute a Loan Document.
[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
A-1
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
A-2
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxx
Name: Xxxxx Xxx
Title: Vice President
X-0
XXX XXXX XX XXXX XXXXXX, as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
A-4
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a
Lender
By: ________________________________
Name: ________________________________
Title: _______________________________
X-0
XXXX XXX, X.X., as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Director
A-6
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Director
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Associate
A-7
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
A-8
FLEET NATIONAL BANK, as a Lender
By: __________________________________
Name: _________________________________
Title: ________________________________
A-9
KBC BANK, N.V., as a Lender
By: ___________________________________
Name: __________________________________
Title: _________________________________
By: ___________________________________
Name: __________________________________
Title: _________________________________
A-10
NATEXIS BANQUES POPULAIRES, as a Lender
By: ___________________________________
Name: __________________________________
Title: _________________________________
By: ___________________________________
Name: __________________________________
Title: _________________________________
A-11
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Second Vice President
A-12
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL),
as a Lender
By: ___________________________________
Name: __________________________________
Title: _________________________________
A-13
STANDARD CHARTERED BANK, as a Lender
By: /s/ Xxxx Xxxxxxx-Xxxxxxxx
Name: Xxxx Xxxxxxx-Xxxxxxxx
Title: Sr. Vice President
By: /s/ Xxxxxx X. Xx
Name: Xxxxxx X. Xx
Title: Vice President
A-14
UNICREDITO ITALIANO, NEW YORK BRANCH, as a
Lender
By: ___________________________________
Name: __________________________________
Title: _________________________________
By: ___________________________________
Name: __________________________________
Title: _________________________________
A-15
