Exhibit 10A
SECOND AMENDMENT TO CREDIT AGREEMENT (MULTI-YEAR)
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (MULTI-YEAR) (this
"Amendment"), dated as of October 10, 2002, is entered into by and among AVNET,
INC., a New York corporation ("Avnet"), the several financial institutions party
to the Credit Agreement defined 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
by that First Amendment to Credit Agreement (Multi-Year) dated as of March 29,
2002 (as so amended, 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 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, subject to Section 2A
hereof:
(a) Section 1.01 of the Credit Agreement shall be amended as
follows:
(i) At the definition of "Applicable Rate," by
deleting the pricing grid and subsequent paragraph contained therein and
replacing them with the following:
APPLICABLE RATE
EUROCURRENCY RATE LOANS & BASE RATE
CATEGORY DEBT RATINGS FACILITY FEE LETTERS OF CREDIT LOANS
-------- ------------ ------------ ----------------- -----
1 A/A2 or better 0.080% 0.445% 0.000%
2 A-/A3 0.100% 0.525% 0.000%
3 BBB+/Baa1 0.125% 1.125% 0.000%
4 BBB/Baa2 0.250% 1.500% 0.000%
5 BBB-/Baa3 0.300% 1.950% 0.450%
6 Lower than BBB-/Baa3 0.400% 2.350% 0.850%
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For purposes of the foregoing, (i) the Applicable Rate initially shall be
determined based upon the Debt Rating specified in the certificate delivered
pursuant to Section 4.01(a)(vi); (ii) if no Debt Rating for any Long-Term Debt
of Avnet shall be available from either Xxxxx'x or S&P, such rating agency shall
be deemed to have established a Debt Rating for the Long-Term Debt of Avnet
which is one Category higher than that pertaining to the subordinated debt
rating grade of Avnet (with Category 1 being the highest and Category 6 being
the lowest), (iii) if no Debt Rating for any Long-Term Debt or subordinated debt
of Avnet shall be available from either Xxxxx'x or S&P, the Applicable Rate
shall be as set forth in Category 6, (iv) if the Debt Ratings established or
deemed to have been established by Xxxxx'x and S&P shall fall within different
Categories, the Applicable Rate shall be based upon the lower Category, and (v)
if any Debt Rating established or deemed to have been established by Xxxxx'x or
S&P shall be changed (other than as a result of a change in the rating system of
either Xxxxx'x or S&P), such change shall be effective as of the date on which
such change is first announced by the rating agency making such change. Each
such change shall apply to all Eurocurrency Rate Loans that are outstanding, and
all Facility Fees that accrue, at any time during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of either Xxxxx'x
or S&P shall change prior to the Maturity Date, Avnet and the Lenders shall
negotiate in good faith to amend the references to specific ratings in this
definition to reflect such changed rating system. As used herein, "Debt Rating"
means, as of any date of determination, the rating as determined by either S&P
or Xxxxx'x (collectively, the "Debt Ratings") of Avnet's applicable debt.
(ii) At the definition of "Permitted Investments," in
clause (a), by deleting the word "and" at the end of sub-clause (x), inserting
the word "and" at the end of sub-clause (ix) and deleting sub-clause (xi) in its
entirety;
(iii) By amending and restating the following defined
terms in their entirety as follows:
"EBITDA" means, for any period, in respect of Avnet and its
Subsidiaries on a consolidated basis, without duplication, the sum of
(i) Net Income, plus (ii) an amount which, in the determination of Net
Income, has been deducted for (a) Interest Expense, (b) income taxes,
(c) depreciation and amortization expense and (d) extraordinary items
consisting of non-cash losses or non-recurring non-cash losses; minus
(iii) an amount which, in the determination of Net Income, has been
included for (a) extraordinary items consisting of gains and (b) gains
on the sale or other disposition of assets, plus (iv) an amount which,
in the determination of Net Income, has been deducted for (a) cash
related one-time charges recorded to Avnet's income statement during
the Fiscal Quarter ended nearest June 30, 2001, in an aggregate amount
not to exceed $146,000,000 relating to (1) the merger of Kent
Electronics Corporation with and into Avnet pursuant to an Amended and
Restated Merger Agreement and Plan of Merger dated as of March 21,
2001, and (2) other restructuring activities; plus (v) solely in
respect of the Fiscal Quarters ending nearest December 31, 2002, and
March 31, 2003, an amount which, in the determination of Net Income has
been deducted for cash restructuring charges incurred for labor force
severance and lease commitment terminations, to the extent not
exceeding $25,000,000 in the aggregate for such Fiscal Quarters
together, plus (vi) an amount which, in the determination of Net Income
has been deducted for redemption or tender or other premiums actually
paid by Avnet in redeeming or repurchasing outstanding senior
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Capital Markets Notes to the extent permitted hereunder and having a
stated or final maturity prior to the Scheduled Maturity Date.
"Funded Debt" means, with respect to any Person, without
duplication (i.e., in calculating the Funded Debt of Avnet and its
Consolidated Subsidiaries at any time, without counting the Guarantee
by any such Person of the Funded Debt of any other such Person), (a)
all Debt of such Person other than any Debt of the type referred to in
clause (g) or (h) of the definition of "Debt" set forth in this Section
1.01 and (b) all Funded Debt of others Guaranteed by such Person (to
the extent of the lesser of the amount of such Funded Debt Guaranteed
or the amount of such Guarantee); provided that "Funded Debt" shall not
include Debt to the extent subject to Substantive Defeasement
undertaken pursuant to and in accordance with Section 6.18.
"Interest Expense" means, for the period of computation, the
aggregate amount of interest on a consolidated basis accruing on Debt
and all amortization of debt discount and expense on Debt (including
any obligation to pay rent in respect of Capital Leases) of Avnet and
its Subsidiaries on a consolidated basis in conformity with GAAP;
provided that (i) in the event of the consummation of any Permitted
Securitization, "Interest Expense" shall be adjusted to include
(without duplication) an amount equal to the interest (or other fees in
the nature of interest or discount) accrued and paid or payable in cash
for such computation period by the applicable Securitization Subsidiary
to the conduit entity or other receivables credit provider relating to
such Permitted Securitization, and (ii) "Interest Expense" shall not
include interest expense accruing in respect of Capital Markets Notes
to the extent subject to Substantive Defeasement undertaken pursuant to
and in accordance with Section 6.18.
"Letter of Credit Sublimit" means an amount equal to the
lesser of the Aggregate Commitments and $75,000,000. The Letter of
Credit Sublimit is a part of, and not in addition to, the Aggregate
Commitments.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, encumbrance or preferential
arrangement of any kind in respect of such asset, including any
contingent or other agreement to provide any of the foregoing. For the
purposes of this Agreement, Avnet or any Subsidiary of Avnet shall be
deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sales agreement, Capital Lease or other title retention
agreement relating to such asset.
"Loan Documents" means collectively, (i) this Agreement and
any amendments hereto, including (a) that First Amendment to Credit
Agreement (Multi-Year) dated as of March 29, 2002, and (b) that Second
Amendment to Credit Agreement (Multi-Year) dated as of October 10, 2002
(the "Second Amendment"), both by and among the parties hereto, (ii)
each Note, (iii) the Agency/Arranger Fee Letter and any other fee
letter between Avnet and the Administrative Agent and/or the Arranger,
(iv) each Request for Credit Extension, (v) each Compliance
Certificate, (vi) each Designated Borrower Certificate, (vii) the
Guaranty Agreement, (viii) each Joinder Agreement, and (ix) all
Effective Collateral Documents.
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"Loan Party" means collectively, Avnet, each Designated
Borrower, each Guarantor, and each Subsidiary of Avnet party to a
Collateral Document.
(iv) By inserting the following additional defined
terms in the proper alphabetical order:
"Adjusted Funded Debt" means, in respect of any Person,
without duplication, (a) all Funded Debt of such Person other than any
outstanding, but undrawn, letters of credit, plus (b) all Attributable
Indebtedness of such Person.
"Avnet Belgium" means, collectively, Avnet Europe CVA, a
Belgian stock limited partnership, and any successor thereto (including
any Person at any time acquiring all or substantially all of the
business or asset of Avnet Europe CVA), together with any and all other
Foreign Subsidiaries of Avnet that from time to time act as
commissionaires or agents for undisclosed principals in respect of
inventory of (including inventory originating through or from)
Avnet Europe CVA.
"Capital Markets Notes" means, at any time, any notes,
debentures, bonds or similar instruments (including senior or
subordinated, whether or not convertible) of Avnet or any of its
Subsidiaries issued and outstanding at such time.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by Avnet and its
Subsidiaries described in any Collateral Document or in or upon which a
Lender Lien now or hereafter exists.
"Collateral Documents" means, at any time, collectively, (i)
the Springing Lien Escrow Agreement, (ii) any and all security
agreements, pledge agreements, mortgages, charges, assignments, and
other documents creating a Lien on assets of any Loan Party, in form
and substance satisfactory to the Administrative Agent, executed by any
Loan Party pursuant to this Agreement (including any such document and
agreement subject at such time to the Document Escrow), and (iii) all
Perfection Documents relating to the foregoing, in form and substance
satisfactory to the Administrative Agent.
"Disposition" or "Dispose" means the direct or indirect sale,
assignment, conveyance, lease, transfer, license or other disposition
(including any sale and leaseback transaction) of any property (other
than cash or Permitted Investments) by any Person, including any sale,
assignment, transfer or other disposition, with or without recourse, of
any notes or accounts receivable or any rights and claims associated
therewith.
"Document Escrow" means the document escrow arrangement
established pursuant to the Springing Lien Escrow Agreement or any
subsequent, similar agreement.
"Domestic Subsidiary" means any Subsidiary that is organized
under the laws of any political subdivision of the United States.
"Dormant Subsidiary" means any Subsidiary of Avnet listed on
Schedule 5.20.
"EBIT" means, for any period, in respect of any Person,
without duplication, the sum of (a) Net Income, plus (b) an amount
which, in the determination of Net Income,
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has been deducted for (i) Interest Expense, (ii) income taxes and (iii)
extraordinary items consisting of non-cash losses or non-recurring
non-cash losses, minus (c) an amount which, in the determination of Net
Income, has been included for (i) extraordinary items consisting of
gains and (ii) gains on the sale or other disposition of assets.
"Effective Collateral" means, at any time, any and all
Collateral subject to an Effective Collateral Document at such time.
"Effective Collateral Documents" means, at any time, all
Collateral Documents, other than Collateral Documents remaining subject
to the Document Escrow at such time.
"First Tier Foreign Subsidiary" means, at any time, any
Foreign Subsidiary the majority of the Voting Stock of which is owned
at such time by Avnet or any Domestic Subsidiary of Avnet, or any
combination thereof.
"Foreign Stock Collateral" means, at any time, Collateral
issued by any First Tier Foreign Subsidiary and pledged to the
Administrative Agent pursuant to the Foreign Stock Pledge Agreement.
"Foreign Stock Pledge Agreement" means that pledge agreement
by Avnet as Pledgor, relating to securities issued by certain Foreign
Subsidiaries, in substantially the form of Exhibit L.
"Lender Lien" means, at any time, any Lien existing at such
time under any of the Effective Collateral Documents in favor of the
Administrative Agent for the benefit of the Lenders.
"Mandatory Redemption" means, in respect of any Capital
Markets Notes, or any equity security, any contingent or other right of
the holder thereof to receive (with or without demand) full or partial
redemption, repurchase, prepayment, sinking fund payment or defeasement
(other than, in respect of Debt, any such right arising upon the breach
by Avnet or its Subsidiaries of any term or provision of such
instrument).
"Net Proceeds" means, with respect to any sale or issuance of
any Permitted Debt or Permitted Equity by any Person, the aggregate
consideration received by such Person from such sale or issuance less
the amount of reasonable fees and commissions actually paid by such
Person to Persons other than such Person or any Affiliate of such
Person in connection therewith.
"Non-Springing Lien Collateral" means, collectively, SPV Stock
Collateral and any cash collateral resulting from any obligation
hereunder to Cash Collateralize L/C Obligations.
"October 2000 Indenture" means that Indenture dated as of
October 1, 2000 between Avnet and Bank One Trust Company, N.A. as
trustee.
"One Action Jurisdiction" means California and any other state
or jurisdiction having legislation limiting a Person holding as
creditor a Lien on real property to one action or proceeding in
enforcement of such Lien and the underlying indebtedness.
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"Perfect" means, with respect to any Lien, that all filings,
registrations, recordings, notices and other actions have been made or
taken, with or to any Governmental Authority or other Person, in order
to render such Lien "perfected" as such term is construed under the
UCC, or, if the UCC is not applicable, to ensure the enforceability of
such Lien as against certain third parties and notwithstanding any
proceeding commenced under any Debtor Relief Law. "Perfected" and
"Perfection" have corresponding meanings.
"Perfection Documents" means, in respect of any Lien, any
financing statement, fixture filing, mortgage, notice of assignment,
control agreement, or other document or instrument, as may be required
under applicable Laws in order to Perfect such Lien.
"Permitted Capital Markets Transaction" means the raising of
Net Proceeds in an amount of no less than $325,000,000 in cash through
the issuance by Avnet after the Second Amendment Date of Permitted Debt
or Permitted Equity, or any combination thereof.
"Permitted Debt" means unsecured Debt arising under any
Capital Markets Notes issued by Avnet, provided that (a) such Debt has
an original stated maturity of not less than three years, and no
amortization of principal, including pursuant to any sinking fund
arrangement; (b) such Debt provides no right of Mandatory Redemption
unless solely exercisable more than three years after the date of
issue; (c) such instrument contains no maintenance-based debt
covenants, nor any covenants or events of default that are more
restrictive than may be customary at the time of issuance for
similarly-rated offerings of similar type, and does not contain a Third
Party Negative Pledge other than as permitted by Section 6.20; and (d)
such Debt shall not be convertible into other Debt that is not itself
Permitted Debt.
"Permitted Equity" means any common stock or preferred equity
security issued by Avnet, provided that such stock or equity security
is not subject to any right of Mandatory Redemption, or subject to any
right of conversion to any common stock or preferred equity security
that is not itself Permitted Equity, or to Debt other than Permitted
Debt.
"Permitted Intercompany Transfers" means (a) sales and
transfers of inventory in the ordinary course of business by Avnet or
any of its Domestic Subsidiaries to any Foreign Subsidiary, provided
such sale or transfer is undertaken (i) upon the receipt of and in
order to satisfy a bona fide customer order or (ii) in anticipation of
future customer orders, based upon a bona fide customer commitment or
customer-provided purchase forecast; (b) sales and transfers of
inventory or equipment by any Loan Party to any other Loan Party (other
than a sale or transfer from Avnet or a Domestic Subsidiary to a
Foreign Subsidiary); or (c) other sales and transfers of inventory in
the ordinary course of business by Avnet or any of its Domestic
Subsidiaries to any Foreign Subsidiary (other than as described in
clause (a) of this defined term) pursuant to reasonably anticipated
customer demand in the jurisdiction of such recipient (including
"special needs" situations) and not exceeding in the aggregate
$6,000,000 in value for any Fiscal Quarter.
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"Permitted Securitization Refinancing" means a Permitted
Securitization (a) the documents of which provide for no Unwind Event
based on Debt Ratings, other than as permitted by Section 6.21(a), and
which do not otherwise contravene or result in any breach, Default or
Event of Default under the Loan Documents; (b) in connection with which
the owner and holder of the stock of the applicable Securitization
Subsidiary has pledged such stock to the Administrative Agent as
additional Effective Collateral; and (c) having a maximum availability
(Attributable Indebtedness) of not less than $350,000,000.
"Principal Property" means certain real and personal property
of Avnet, identified by Avnet to the Administrative Agent as "Principal
Property" for purposes of and as defined in the October 0000 Xxxxxxxxx
and other indentures containing equivalent Third Party Negative
Pledges.
"Second Amendment" has the meaning specified in the definition
of "Loan Documents."
"Second Amendment Date" means the "Effective Date," as defined
in the Second Amendment.
"Securitization Property" means, at any time, any Permitted
Receivables subject to a Permitted Securitization at such time, subject
to Section 6.16 and all other provisions of the Loan Documents.
"Springing Lien" means the Lender Lien to be granted to the
Administrative Agent for the benefit of the Lenders upon the occurrence
of a Trigger Event in Springing Lien Assets.
"Springing Lien Assets" means, (a) subject to such exceptions
as the Administrative Agent may in its discretion agree, in respect of
Avnet and its Domestic Subsidiaries (other than Dormant Subsidiaries),
(i) all improved and unimproved real property and interests therein of
any such Person, (ii) all equipment, (iii) all inventory and work in
process (other than inventory subject to a bona fide lease or
conditional sale agreement giving rise to a Permitted Receivable
pursuant to any Permitted Securitization), (iv) all accounts and other
rights to payment, (v) all investment property, deposit accounts (other
than any located outside of the United States), general intangibles
(including intercompany obligations), and all trade marks, trade names,
patents, copyrights and other intellectual property (subject, however,
to Perfection only in accordance with the UCC), and other intangible
property of whatever kind or nature, and (vi) all stock issued by any
Domestic Subsidiary other than a Dormant Subsidiary (provided, that the
stock of any Domestic Subsidiary that holds Principal Property shall
not be encumbered by Obligations exceeding the amount specified in the
October 2000 Indenture, as set forth more fully in the applicable
pledge agreement) and all Foreign Stock Collateral, in each case (i) -
(vi), now existing or hereafter acquired by Avnet or its Domestic
Subsidiaries (other than Dormant Subsidiaries); and (b) in respect of
Avnet Belgium, (i) all inventory and work in process, and (ii) all
accounts and other rights to payment; but not including Non-Springing
Lien Collateral.
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"Springing Lien Escrow Agreement" means that escrow letter
agreement between Avnet and the Administrative Agent, in substantially
the form of Exhibit K.
"SPV Stock Collateral" means any Collateral subject to the SPV
Stock Pledge Agreement.
"SPV Stock Pledge Agreement" means collectively, all pledge
agreements delivered pursuant to Section 6.21(a).
"Substantive Defeasement" means, in respect of any outstanding
Debt represented by Capital Markets Notes, that Avnet has irrevocably
deposited funds with a bank, pursuant to an escrow or trust arrangement
for the exclusive benefit of the holders of such Notes (or their
trustee or agent), and otherwise in accordance with any defeasance
terms specified in the indenture governing such Capital Markets Notes,
for the sole purpose of repaying such Notes, together with interest
thereon in the amount anticipated to accrue up to the date of final
payment.
"Third Party Negative Pledge" has the meaning specified in
Section 6.20.
"Total Free Liquid Assets" means, at any time, in respect of
Avnet and its Subsidiaries on a consolidated basis, the total of all
Permitted Investments at such time, less (a) Permitted Investments
maintained at such time with a depository outside of the United States
to the extent required to be so maintained by a Governmental Authority
within such jurisdiction, (b) Permitted Investments subject at such
time to Liens permitted by Section 6.07(f) or (g), and (c) provisional
deposit balances maintained at such time with a commercial bank
representing uncollected funds not available for immediate withdrawal.
"Trigger Event" means the occurrence of any of the following
on or after the Second Amendment Date: (i) the failure, for whatever
reason, to consummate a Permitted Capital Markets Transaction on or
before December 15, 2002; (ii) the establishment of a Debt Rating by
Xxxxx'x of Ba1 or lower or by S&P of BB+ or lower; or (iii) the
occurrence of an Unwind (other than an Unwind in connection with which
Avnet simultaneously consummates and enters into a Permitted
Securitization Refinancing).
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided that in
the event that by reason of mandatory provisions of law, any or all of
the attachment, perfection or priority of the security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for the purposes of definitions
related to such provisions.
"Unwind" means, in respect of any Permitted Securitization,
the cessation of further sales or transfers of Permitted Receivables
pursuant thereto.
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"Unwind Event" means, in respect of any Permitted
Securitization, any action, default, event or circumstance as a result
of which the immediate or ultimate purchaser or financier of Permitted
Receivables thereunder may (whether immediately, or after the giving of
any notice or passage of time or both) cause the cessation of further
sales or transfers of Permitted Receivables pursuant thereto.
(b) Section 2.01 of the Credit Agreement shall be amended by
replacing clause (i) thereof with the following:
"(i) the aggregate Outstanding Amount of all Loans and L/C Obligations
shall not exceed (A) the Aggregate Commitments, or (B) at any date
after the Second Amendment Date and prior to the date the Permitted
Capital Markets Transaction is consummated, unless otherwise consented
to by the Required Lenders, $300,000,000, and"
(c) Section 2.03(a) of the Credit Agreement shall be amended
by replacing clause (i) thereof with the following:
"(i) the aggregate Outstanding Amount of all Loans and L/C Obligations
shall not exceed (A) the Aggregate Commitments, or (B) at any date
after the Second Amendment Date and prior to the date the Permitted
Capital Markets Transaction is consummated, unless otherwise consented
to by the Required Lenders, $300,000,000, and"
(d) Section 2.04(a)(i) of the Credit Agreement shall be
amended by replacing clause (B)(x) thereof with the following:
"(x) the Outstanding Amount of all L/C Obligations and all Loans would
exceed (I) the Aggregate Commitments, or (II) at any date after the
Second Amendment Date and prior to the date the Permitted Capital
Markets Transaction is consummated, unless otherwise consented to by
the Required Lenders, $300,000,000,"
(e) Section 2.05 of the Credit Agreement shall be amended by
adding a new subsection (d) thereto as follows:
"(d) If at any time Avnet and its Subsidiaries have
Total Free Liquid Assets in excess of $200,000,000, Avnet shall within
15 days of such time prepay or cause to be prepaid Loans in an amount
equal to the amount by which Total Free Liquid Assets exceeds
$200,000,000 on and as of such date of payment, together with accrued
interest thereon and any amounts payable pursuant to Section 3.05."
(f) Section 2.06 of the Credit Agreement shall be amended and
restated in its entirety as follows:
2.06 REDUCTION OR TERMINATION OF COMMITMENTS.
(a) Optional. The Borrowers, collectively and not
individually, may, upon notice by Avnet to the Administrative Agent,
terminate the Aggregate Commitments, or permanently reduce the
Aggregate Commitments to an amount not less than the then Outstanding
Amount of Loans and L/C Obligations; provided that (i) any such notice
shall be received by the Administrative Agent not later than 8:00 a.m.
San
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Francisco time, five Business Days prior to the date of termination or
reduction, and (ii) any such partial reduction shall be in an aggregate
amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof.
(b) Mandatory. If a Permitted Capital Markets
Transaction has not been consummated on or before April 15, 2003, the
Aggregate Commitments shall immediately and automatically on such date,
if not previously reduced to an amount at or below such level pursuant
to Section 2.06(a) hereof, permanently be reduced to $300,000,000. To
the extent that the then Outstanding Amount of all Loans and L/C
Obligations exceeds such amount as of such date, the Borrowers shall
immediately upon the effectiveness of the reduction in Aggregate
Commitments hereunder prepay Loans in an amount equal to the amount by
which such Outstanding Amount of all Loans and L/C Obligations exceeds
the then-applicable Aggregate Commitments, and, if after repayment of
all Loans the resulting Outstanding Amount still exceeds the Aggregate
Commitment as so reduced, Cash Collateralize L/C Obligations in an
amount equal to such remaining excess.
(c) General. The Administrative Agent will promptly
notify the Lenders of any notice of reduction or termination of the
Aggregate Commitments pursuant to subsection (a) of this Section. Once
reduced in accordance with this Section, the Aggregate Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be
applied to the Commitment of each Lender according to its Pro Rata
Share. All facility fees accrued until the effective date of any
termination of the Aggregate Commitments shall be paid on the effective
date of such termination.
(g) Section 2.09 of the Credit Agreement shall be amended as
follows:
(i) By deleting subsection (b) thereof and replacing
it with the following:
"(b) Utilization Fee. Commencing as of the Second Amendment
Date, Avnet shall pay to the Administrative Agent for the account of
each Lender in accordance with each such Lender's Pro Rata Share, a
utilization fee of 0.250% times the actual Dollar Equivalent of the
aggregate Outstanding Amount of Loans and L/C Obligations on such day.
The utilization fee shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the Second Amendment
Date, and on the Maturity Date. The utilization fee shall be calculated
quarterly in arrears and shall accrue at all times from the Second
Amendment Date to the Maturity Date, and so long thereafter as any such
Loans or L/C Obligations shall be outstanding."
(ii) By amending and restating subsection (c) thereof
in its entirety as follows:
"(c) Leverage Fee. Avnet shall pay to the Administrative Agent
for the account of each Lender in accordance with each such Lenders'
Pro Rata Share, a leverage fee on a quarterly basis of 0.250% times the
Dollar Equivalent of the actual daily aggregate Outstanding Amount of
Loans and L/C Obligations on each day during any
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such quarter. The leverage fee shall be calculated in arrears and shall
accrue at all times from the Second Amendment Date to the Maturity
Date, and so long thereafter as any such Loans or L/C Obligations shall
be outstanding."
(h) Section 2.14 of the Credit Agreement shall be amended and
restated in its entirety as follows:
"2.14 [RESERVED]"
(i) Article II of the Credit Agreement shall be amended by
adding the following new subsection thereto:
"2.15 COLLATERAL.
(a) Subject to the terms of and as more fully set
forth in the Springing Lien Escrow Agreement and the other Collateral
Documents, in addition to the grants of Non-Springing Lien Collateral,
from and after the occurrence of an event described in clause (i) or
(ii) of the definition of "Trigger Event," the Obligations shall be
secured by a Perfected Lender Lien upon the Springing Lien Assets and
Collateral, other than Securitization Property (provided that,
Collateral consisting of Principal Property shall not be encumbered by
Obligations exceeding the amount permitted under the October 2000
Indenture, as set forth more fully in the applicable Collateral
Document); upon the occurrence of a Trigger Event that is an Unwind,
the Obligations shall be secured by a Perfected Lender Lien upon all
Securitization Property, together with all other Springing Lien Assets
and Collateral. Upon the occurrence of any such Trigger Event, (i)
Avnet irrevocably authorizes and instructs the Administrative Agent to,
and agrees that the Administrative Agent may, take any and all steps
and actions as necessary or appropriate in the discretion of the
Administrative Agent to Perfect the Lender Liens in the property
specified hereinabove and in the applicable Collateral Documents,
including the delivery of any notice to the document escrow agent under
the Document Escrow regarding the occurrence of such Trigger Event;
(ii) Avnet shall be deemed to have made all representations and
warranties contained herein on and as of the date thereof (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); and (iii) Avnet shall promptly execute and deliver, or
cause to be executed and delivered, with respect to any and all Foreign
Stock Collateral as specified by the Administrative Agent, such
documents and agreements, including opinions of local counsel in the
jurisdiction of the issuer, and perform or cause to be performed such
other acts, as may be desirable in the discretion of the Administration
Agent to better ensure the Perfection and enforceability of the Lender
Lien in such Foreign Stock Collateral under the laws of the
jurisdiction of the issuer thereof, all such matters to be completed to
the satisfaction of the Administration Agent by no later than 60 days
after the date of such Trigger Event.
(b) If there has occurred a Trigger Event consisting
of or including an Unwind and Avnet subsequently consummates within 60
days of the date of the Unwind in respect of the Permitted
Securitization being replaced a Permitted Securitization Refinancing,
the Administrative Agent shall, provided there exists at such time no
Default or Event of Default and to the extent necessary to consummate
such Permitted
11
Securitization Refinancing (in each case, as certified by a Responsible
Officer of Avnet), execute and deliver a release of Securitization
Property from the Lender Lien, in form and substance satisfactory to
the Administrative Agent. Thereafter, pending any further Unwind, such
Securitization Property shall be subject to Collateral Documents placed
in Document Escrow (which documents Avnet agrees to execute and deliver
or cause to be executed and delivered as requested by the
Administrative Agent)."
(j) Section 5.09 of the Credit Agreement shall be amended and
restated in its entirety as follows:
"5.09 SUBSIDIARIES. Set forth on Schedule 5.09 is a complete
and accurate list of all of the Subsidiaries of Avnet as of the Second
Amendment Date, showing as to each such Subsidiary the percentage of
the outstanding shares of each class of capital stock owned (directly
or indirectly) by Avnet or any other Subsidiary of Avnet. All of the
outstanding capital stock or other equity interests of all of such
Subsidiaries have been validly issued, are fully paid and
non-assessable and, except as set forth on Schedule 5.09, are owned
directly or indirectly by Avnet or any of its Subsidiaries (other than
directors' qualifying shares or nominee shares which are required for
Foreign Subsidiaries pursuant to local law), as the case may be, free
and clear of all Liens other than a Lien permitted by Section 6.07
hereof. Each corporate Subsidiary of Avnet is a corporation duly
incorporated, validly existing and in good standing under the laws of
its jurisdiction of incorporation and has all corporate powers and has
obtained all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted except
for those whose absence has not had a material adverse effect on such
Subsidiary."
(k) Article V of the Credit Agreement shall be further amended
by adding the following to the end thereof:
"5.18 COLLATERAL MATTERS.
(a) The provisions of each of the Effective
Collateral Documents are effective to create in favor of the
Administrative Agent for the benefit of the Lenders a legal, valid and
enforceable security interest and Lien in all right, title, and
interest of Avnet and its Subsidiaries, as party thereto, in the
Collateral described therein, and all Perfection Documents have been
filed or registered and all other acts have been taken in order to
Perfect such security interests and Liens.
(b) Neither the execution, delivery nor performance
by Avnet or any of its Subsidiaries of such Collateral Documents, nor
the Perfection of the Lien relating thereto, does or will breach,
violate, conflict with or result in any default under any mortgage,
indenture, agreement, instrument, or other writing to which Avnet or
any of its Subsidiaries is party or to which any of their respective
properties is subject.
12
(c) All representations and warranties of Avnet and
its Subsidiaries contained in the Effective Collateral Documents are
true and correct in all material respects.
(d) Based upon the current and reasonably anticipated
earnings and tax attributes of such Foreign Subsidiaries and the tax
attributes of Avnet, as of the Second Amendment Date, the grant of
Lender Liens with respect to properties of the principal Foreign
Subsidiaries (not including Avnet Belgium) would, in the aggregate,
result in the recognition of taxable income by Avnet by virtue of
Section 956 of the Code in an amount that would reasonably be expected
to result in a significantly adverse effect upon the financial
condition of Avnet.
5.19 PRINCIPAL PROPERTY.
(a) Except as set forth at Part 1 of Schedule 5.19,
as of the Second Amendment Date, Avnet and its Subsidiaries do not own
any "Principal Property," as such term is defined in the October 2000
Indenture.
(b) Except as set forth at Part 2 of Schedule 5.19,
as of the Second Amendment Date, Avnet and its Domestic Subsidiaries do
not own or hold any interests in improved or unimproved real property
that is not Principal Property.
5.20 DORMANT SUBSIDIARIES. As of the Second Amendment Date, no
Dormant Subsidiary has any assets or liabilities, in either case,
exceeding a value or amount of $200,000.
5.21 AVNET BELGIUM. As of the date by which all Collateral
Documents in respect of Springing Lien Assets of Avnet Belgium are
required to be delivered into Document Escrow (or, if a Trigger Event
has occurred, to the Administrative Agent) pursuant to Section 6.21(b),
other than as disclosed in writing to the Administrative Agent prior to
such date, no Foreign Subsidiary of Avnet acts or has acted since
January 1, 2002, as commissionaire or agent for undisclosed principals
in respect of inventory of (including inventory originating through or
from) Avnet Europe CVA.
(l) Section 6.01 of the Credit Agreement shall be amended as
follows:
(i) By deleting the word "or" at the end of
subsection (j) and by re-lettering subsection (k) as subsection (r); and
(ii) By adding the following as new subsections
thereof:
"(k) promptly upon the occurrence of a Trigger Event,
notice thereof describing the action, default, event or circumstance
constituting such Trigger Event;
(l) as soon as practicable thereafter, notice of the
consummation of a Permitted Capital Markets Transaction, setting forth
the material terms and conditions thereof;
13
(m) notice of Avnet's intent to consummate a
Permitted Securitization Refinancing, setting forth the anticipated
material terms and conditions thereof, by no later than 20 days prior
to the anticipated date of consummation of such Permitted
Securitization Refinancing;
(n) as soon as practicable thereafter, notice of the
acquisition by Avnet or any of its Subsidiaries of any real property or
interest therein, or the incorporation, creation or acquisition by
Avnet of any additional Subsidiary or the creation or acquisition of
any additional United States-based deposit account or investment
account with any depository or other Person, other than those
previously disclosed to the Administrative Agent and the Lenders;
(o) prompt notice of any amendment or modification of
any documents relating to a Permitted Securitization or any Capital
Markets Notes;
(p) prompt notice of any announcement by Xxxxx'x or
S&P of any change in a Debt Rating and of any addition or deletion of
Avnet's applicable debt to or from any Watchlist or CreditWatch of
Xxxxx'x or S&P, respectively;
(q) as soon as practicable thereafter, notice that a
Foreign Subsidiary of Avnet, other than those previously disclosed in
writing to the Administrative Agent, is acting or has acted as
commissionaire or agent for undisclosed principal in respect of
inventory of (including inventory originating through or from) Avnet
Europe CVA, together with any and all documents and agreements pursuant
to which such Foreign Subsidiary is acting or has acted in such
capacity; or"
(m) Section 6.07 of the Credit Agreement shall be amended as
follows:
(i) By deleting subsection (l) and replacing it with
the following:
"(l) Liens consisting of Substantive
Defeasement arrangements involving cash collateral, solely to the
extent derived from the proceeds of a Permitted Capital Markets
Transaction, and supporting only the repayment of senior Capital
Markets Notes having a stated or final maturity prior to the Scheduled
Maturity Date;"
(ii) By adding the following as new subsections
thereof:
"(m) Liens consisting of pledges of cash
collateral or government securities to secure, on a xxxx-to-market
basis, Permitted Hedge Transactions only, provided that the aggregate
value of such collateral so pledged by Avnet and its Subsidiaries
together in favor of any and all counterparties together does not at
any time exceed $10,000,000; and
(n) Liens on assets constituting neither
Springing Lien Assets nor Collateral and securing Debt not exceeding at
any time $5,000,000 in the aggregate."
(n) Section 6.08 of the Credit Agreement shall be amended by
amending and restating subsection (b) thereof in its entirety as follows:
14
"(b) Avnet shall not, nor shall it permit any of its
Subsidiaries to, make any Asset Sale, except (i) a sale or transfer of
Permitted Receivables pursuant to one or more Permitted Securitizations
resulting in Attributable Indebtedness in an aggregate amount not
exceeding $750,000,000 at any one time for all such Permitted
Securitizations together, or (ii) sales by Foreign Subsidiaries of
Permitted Receivables pursuant to factoring transactions, provided (A)
the aggregate face or par value of such Permitted Receivables so sold
during any 60 day period, commencing on the Second Amendment Date, does
not exceed $10,000,000, and (B) such transactions are without recourse
as to Avnet."
(o) Section 6.11(a) of the Credit Agreement shall be amended
and restated in its entirety as follows:
"(a) Minimum Interest Coverage Ratio. Avnet and its
Subsidiaries shall maintain, as of the end of each Fiscal Quarter set
forth below (commencing with the Fiscal Quarter ending nearest
September 30, 2001), a ratio of EBITDA to Interest Expense (computed,
(i) with respect to the Fiscal Quarters ending nearest March 31, 2002,
June 30, 2002, and September 30, 2002, for the Fiscal Quarter then
ending and (ii) with respect to any other fiscal quarter, for the four
Fiscal Quarter Period then ending) of no less than the correlative
ratios set forth below:
QUARTERLY PERIOD MINIMUM INTEREST COVERAGE RATIO
---------------- -------------------------------
Fiscal Quarter ending nearest September 30, 2001 1.75 to 1.00
Fiscal Quarter ending nearest December 31, 2001 1.75 to 1.00
Fiscal Quarter ending nearest March 31, 2002 1.25 to 1.00
Fiscal Quarter ending nearest June 30, 2002 1.60 to 1.00
Fiscal Quarter ending nearest September 30, 2002 1.40 to 1.00
Fiscal Quarter ending nearest December 31, 2002 1.75 to 1.00
Fiscal Quarter ending nearest March 31, 2003 1.85 to 1.00
Fiscal Quarter ending nearest June 30, 2003 2.10 to 1.00
Fiscal Quarter ending nearest September 30, 2003 2.35 to 1.00
Fiscal Quarter ending nearest December 31, 2003 2.60 to 1.00
Fiscal Quarter ending nearest March 31, 2004 2.85 to 1.00
Fiscal Quarter ending nearest June 30, 2004, and thereafter 3.00 to 1.00
(p) Section 6.13 of the Credit Agreement shall be deleted in
its entirety and replaced with the following:
"6.13 [RESERVED]"
(q) Section 6.14 of the Credit Agreement shall be amended as
follows:
(i) By amending and restating subsection (h) thereof
as follows:
15
"(h) Acquisitions of all or substantially all of the
assets or business of any other Person engaged in the same or similar
business as Avnet, or the division of a Person engaged in such a
business, or of ownership or control of at least a majority of all the
Voting Stock of such a Person (together, an "Acquisition"); provided
that
(i) no Default or Event of Default exists or
would exist before or after giving effect to such Acquisition;
(ii) the Board of Directors or other
governing body of such Person whose property or Voting Stock
is being so acquired has approved the terms of such
Acquisition;
(iii) on or before 20 days prior to
consummation of such Acquisition, Avnet demonstrates to the
Lenders in writing that (on a pro forma basis as to the
financial covenant set forth in Section 6.11, as set forth in
a Compliance Certificate signed by a Responsible Officer of
Avnet and delivered to the Administrative Agent) after giving
effect to such Acquisition it will continue to comply through
the term of this Agreement with the terms and conditions of
each Loan Document;
(iv) no later than 30 days after the
consummation of such Acquisition, Avnet delivers or causes to
be delivered to the Administrative Agent such documents and
agreements as the Administrative Agent may request pursuant to
Section 6.22;
(v) total cash consideration (including
compensation payable subsequent to such Acquisition based upon
earnings or other criteria, to the extent reasonably
anticipated at the time of such Acquisition) paid or payable
by Avnet and its Subsidiaries in connection with any and all
Acquisitions consummated after the Second Amendment Date
during any four Fiscal Quarter Period (commencing with the
Fiscal Quarter ending nearest December 31, 2002, and
disregarding for this purpose any Acquisitions consummated
prior to such Fiscal Quarter) shall not exceed $5,000,000,
provided, however, that after Avnet has delivered to
Administrative Agent a certificate executed by a Responsible
Officer of Avnet, in form and detail reasonably satisfactory
to the Administrative Agent, stating that on a consolidated
basis Avnet and its Subsidiaries have achieved a ratio of
Adjusted Funded Debt to EBITDA of less than 5.0:1.0 as of the
last day of any Fiscal Quarter (EBITDA being calculated for
this purpose on a rolling four quarter basis), such total cash
consideration for any such four Fiscal Quarter period shall
not exceed $25,000,000;
(vi) Acquisitions involving non-cash
consideration payable by Avnet or its Subsidiaries shall be
limited to $50,000,000 in aggregate value of such
consideration for all such Acquisitions occurring during any
period of four consecutive Fiscal Quarters (commencing with
the Fiscal Quarter ending nearest December 31, 2002, and
disregarding for this purpose any Acquisitions consummated
prior to such Fiscal Quarter), and the Person or business
being so acquired shall (as evidenced by a written certificate
to such effect delivered by a
16
Responsible Officer of Avnet to the Administrative Agent in
form and detail reasonably satisfactory to the Administrative
Agent) have EBIT of not less than zero for the four Fiscal
Quarters most recently ended; and
(vii) Avnet has provided to the
Administrative Agent and the Lenders such financial and other
information regarding the Person whose property or Voting
Stock is being so acquired, including historical financial
statements, and a description of such Person, as the
Administrative Agent or the Required Lenders may have
reasonably requested;"
(ii) By deleting the word "and" at the end of
subsection (j);
(iii) By deleting subsection (k) and replacing it
with the following:
"(k) Investments consisting of certain commitments
incurred in the ordinary course of business or pursuant to Acquisitions
permitted hereunder (as of the time of such Acquisition) and existing
on the Second Amendment Date as described more fully on Schedule
6.14(k); and"
(iv) By adding a new subsection (l) as follows:
"(l) Investments not otherwise permitted hereunder
and not constituting Acquisitions, provided that the aggregate amount
of other such Investments made during any four consecutive Fiscal
Quarters from and after the Second Amendment Date shall not exceed (net
of cash received by Avnet or its Subsidiaries during such four Fiscal
Quarter period upon repayment of Investments consisting of short-term
loans otherwise permitted hereunder and advanced during such four
Fiscal Quarter period) $5,000,000 for all such Investments together."
(r) Section 6.15 of the Credit Agreement shall be amended by
deleting all the text following the word "except" and replacing it with the
following:
"for capital expenditures made in the ordinary course of business and
not exceeding $100,000,000 in the aggregate for all such capital
expenditures together during any four Fiscal Quarter period."
(s) Article VI of the Credit Agreement shall be amended by
adding the following new subsections thereto:
"6.16 DISPOSITIONS OF COLLATERAL. Notwithstanding the
provisions of Section 6.08, Avnet shall not, and shall not permit any
of its Subsidiaries to, Dispose of any Springing Lien Assets or
Collateral (other than cash or Permitted Investments in the ordinary
course of business), whether now owned or hereafter acquired, or enter
into any agreement to make any Disposition of Springing Lien Assets or
Collateral other than, to the extent also not prohibited by Section
6.08, (a) as expressly permitted by the applicable Collateral Document;
or (b) to the extent not in contravention of any applicable Collateral
Document, and one of the following applies:
17
(i) Provided there does not exist an Event
of Default, Dispositions of obsolete or worn out
property, whether now owned or hereafter acquired, in
the ordinary course of business;
(ii) Dispositions of inventory to third
party purchasers (not including Avnet or its
Subsidiaries) in the ordinary course of business;
(iii) Permitted Intercompany Transfers;
(iv) Dispositions of assets other than
Principal Property, as described in Schedule 6.16;
and
(v) Dispositions to which the Required
Lenders, or, if such Dispositions involve all or
substantially all of the Collateral, all of the
Lenders, have consented.
6.17 RESTRICTED PAYMENTS. Avnet shall not, and shall not
permit any of its Subsidiaries to, (a) declare or pay any dividends in
respect of its capital stock or other equity interests (other than
dividends payable, but for fractional shares, solely in common stock of
Avnet), or purchase, redeem, retire or otherwise acquire for value any
of its capital stock or other equity interests now or hereafter
outstanding, return any capital to its shareholders as such, or make
any distribution of assets to its shareholders as such or (b) other
than solely with the proceeds of a Permitted Capital Markets
Transaction to the extent permitted pursuant to Section 6.18, make any
voluntary or optional prepayment or early repayment, redemption,
exchange or acquisition for value of, or establish any sinking fund
with respect to, any Debt evidenced by Capital Markets Notes.
6.18 PROCEEDS OF PERMITTED CAPITAL MARKETS TRANSACTION. Avnet
shall, and shall cause its Subsidiaries to, promptly upon receipt apply
the Net Proceeds of any Permitted Capital Markets Transaction first to
the repayment, prepayment, Substantive Defeasement or repurchase and
cancellation of Capital Markets Notes having original stated maturities
in year 2003, in order of scheduled maturity date.
6.19 LIQUID ASSETS. Avnet and its Subsidiaries shall not, at
any time as there are outstanding any Loans hereunder, have Total Free
Liquid Assets in excess of $200,000,000, including after giving effect
to any Borrowing hereunder.
6.20 OTHER NEGATIVE PLEDGES. Avnet shall not, and shall not
suffer or permit any of its Subsidiaries to, enter into or first become
subject to after the Second Amendment Date any agreement or arrangement
that directly or indirectly prohibits Avnet or any such Subsidiary from
granting any Lien to the Administrative Agent (or restricting
Perfection or enforcement of such Lien) with respect to any Springing
Lien Assets or Collateral (a "Third Party Negative Pledge"); provided,
that Avnet and its Subsidiaries may enter into or incur Third Party
Negative Pledges (a) pursuant to an Acquisition permitted by Section
6.14(h) provided such Third Party Negative Pledge affects only assets
and property so acquired and is not undertaken or incurred in
contemplation of such Acquisition; (b) pursuant to a transaction
creating a Lien permitted by Section 6.07(b) or (c), provided such
Third Party Negative Pledge is limited to the assets or properties
subject to such Permitted Lien; and (c) pursuant to Permitted Debt
18
comprising a Permitted Capital Markets Transaction, provided such Third
Party Negative Pledge is no more restrictive than that contained in the
October 0000 Xxxxxxxxx.
6.21 POST-SECOND AMENDMENT MATTERS.
(a) (i) No later than 60 days after the Second
Amendment Date, Avnet shall deliver to the Administrative Agent (with
sufficient copies for each of the Lenders) a certificate of a
Responsible Officer of Avnet in form and detail reasonably satisfactory
to the Administrative Agent certifying that the documents and
agreements evidencing any Permitted Securitization to which Avnet or
any of its Subsidiaries is party contains no Unwind Event relating to
the Debt Rating of Avnet, unless such Unwind Event occurs at a rating
level no higher than Ba2 for Xxxxx'x and BB in respect of S&P or the
equivalent if relating to another rating agency (which ratings trigger
may, however, be phrased in the disjunctive at those levels), and
following the delivery of such certificate Avnet shall not at any time
suffer or permit any Permitted Securitization to which it or any of its
Subsidiaries may be or become party to have documentation providing for
an Unwind Event based upon Debt Ratings higher than such level.
(ii) No later than 60 days after the Second
Amendment Date, Avnet shall execute and deliver to the Administrative
Agent any and all pledge agreements and other documents and agreements
(including legal opinions satisfactory to the Administration Agent) as
may be necessary in the discretion of the Administrative Agent to
create a Perfected security interest in any and all stock issued by any
Securitization Subsidiary (including Avnet Receivables Corporation, if
then existing), which shall immediately thereupon become Effective
Collateral.
(b) Avnet shall execute and deliver or cause to be
executed and delivered into Document Escrow, by no later than 30 days
after the Second Amendment Date, all Collateral Documents that in the
view of the Administrative Agent are necessary or appropriate to
establish Springing Liens on all Springing Lien Assets (other than in
respect of Springing Lien Assets of Avnet Belgium, which shall be
executed and delivered no later than 45 days after the Second Amendment
Date), including such documents and agreements as are specified on
Schedule 6.21. The Springing Lien Escrow Agreement shall be executed
and delivered by Avnet no later than 30 days after the Second Amendment
Date. Notwithstanding the foregoing, if there shall have occurred any
Trigger Event prior to either such delivery date, each of the foregoing
Collateral Documents shall be executed and delivered immediately to the
Administrative Agent, and shall immediately thereupon result in
Effective Collateral. At such time as the documents in respect of Avnet
Belgium are required to be delivered as set forth above, Avnet shall
pay all Attorney Costs of the Administrative Agent to the extent
invoiced prior to such date, plus such additional Attorney Costs as
shall constitute the Administrative Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the completion
of the post-closing matters contemplated by the Second Amendment
(provided that such estimate shall not thereafter preclude a final
settling of accounts between Avnet and the Administrative Agent).
19
6.22 ADDITIONAL COLLATERAL AND SUBSIDIARIES.
(a) Additional Collateral. No later than 30 days after Avnet
or any of its Subsidiaries acquires any additional Springing Lien
Assets as to which the Perfection of the Lender Lien therein would
require the execution and delivery of additional Perfection Documents
(or the taking of other steps by the Administrative Agent or any
Lender), Avnet shall, or shall cause such Subsidiary to, execute and
deliver such documents and agreements (including legal opinions
satisfactory to the Administrative Agent) as may be necessary or
appropriate in the discretion of the Administrative Agent to create
(upon release from Document Escrow) a Perfected Lender Lien upon such
Springing Lien Assets (which documents and agreements shall be held in
Document Escrow pursuant to the terms of the Springing Lien Escrow
Agreement, unless a Trigger Event shall have occurred, in which event
such documents and agreements shall become effective and Perfected
immediately upon delivery to the Administrative Agent); provided that,
with respect to United States-based deposit accounts not existing on
the Second Amendment Date, such accounts shall not be established and
funded unless Avnet has delivered a fully executed account control
agreement in form satisfactory to the Administrative Agent.
(b) Additional Subsidiaries.
(i) No later than 30 days after Avnet incorporates,
creates or acquires any additional Domestic Subsidiary, Avnet shall
execute and deliver or cause to be executed and delivered such
instruments, documents and agreements (including legal opinions
satisfactory to the Administrative Agent) as may be necessary or
appropriate in the discretion of the Administrative Agent to create a
Perfected Lender Lien upon the capital stock of such Subsidiary and
such Subsidiary's Springing Lien Assets (which instruments, documents
and agreements shall be held in Document Escrow pursuant to the terms
of the Springing Lien Escrow Agreement, unless a Trigger Event shall
have occurred, in which event such instruments, documents and
agreements shall become effective and Perfected immediately upon
delivery to the Administrative Agent).
(ii) No later than 30 days after Avnet incorporates,
creates or acquires any additional First Tier Foreign Subsidiary, Avnet
shall execute and deliver or cause the applicable Domestic Subsidiaries
to execute and deliver such instruments, documents and agreements
(including legal opinions satisfactory to the Administrative Agent) as
may be necessary or appropriate in the discretion of the Administrative
Agent to create a Perfected Lender Lien upon 65% of the total capital
stock issued by such additional First Tier Foreign Subsidiary, pursuant
to documentation substantially in the form of the Foreign Stock Pledge
Agreement (which instruments, documents and agreements shall be held in
Document Escrow pursuant to the terms of the Springing Lien Escrow
Agreement, unless a Trigger Event shall have occurred, in which event
such instruments, documents and agreements shall become effective and
Perfected immediately upon delivery to the Administrative Agent).
(c) Avnet Belgium. No later than 30 days after a Foreign
Subsidiary of Avnet, other than those previously disclosed in writing
to the Administrative Agent, acts as commissionaire or agent for
undisclosed principal in respect of inventory of (including
20
inventory originating through or from) Avnet Europe CVA, or becomes a
successor entity to Avnet Europe CVA (including by purchase of all or
substantially all of the business or assets of such Person), Avnet
shall cause such Subsidiary or Person to execute and deliver such
instruments, documents and agreements (including legal opinions
satisfactory to the Administrative Agent) as may be necessary or
appropriate in the discretion of the Administrative Agent to create a
Perfected Lender Lien upon such inventory and all receivables and other
rights to payment arising therefrom (which instruments, documents and
agreements shall be held in Document Escrow pursuant to the terms of
the Springing Lien Escrow Agreement, unless a Trigger Event shall have
occurred, in which event such instruments, documents and agreements
shall become effective and Perfected immediately upon delivery to the
Administrative Agent).
6.23 DORMANT SUBSIDIARIES. Notwithstanding any other term or
provision hereof, including the provisions of Section 6.14, from and
after the Second Amendment Date, Avnet shall not directly or indirectly
transfer or cause or suffer any of its Subsidiaries to transfer any
assets or properties to any Dormant Subsidiary, or suffer or permit any
Dormant Subsidiary to otherwise have or acquire assets or properties
exceeding $200,000 in value.
6.24 FURTHER ASSURANCES AND ADDITIONAL ACTS. Avnet shall
execute, acknowledge, deliver, file, notarize and register at its own
expense all such further agreements, instruments, certificates,
documents and assurances and perform such acts as the Administrative
Agent or the Required Lenders shall from time to time deem necessary or
appropriate to effectuate the purpose of the Loan Documents, and
promptly provide the Administrative Agent with evidence of the
foregoing satisfactory in form and substance to the Administrative
Agent.
6.25 SEI INVESTMENT. Avnet shall not, directly or indirectly,
pay or agree to pay or deliver any amount required to be paid or
delivered pursuant to or arising out of the guarantee provision in that
Share Purchase Agreement dated as of August 25, 1999 between Avnet and
SEI Investments B.V., other than payments and deliveries solely 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)."
(t) Section 7.01 of the Credit Agreement shall be amended as
follows:
(i) By amending and restating subsections (a), (b)
and (c) thereof as follows:
"(a) Any Borrower shall fail to pay (i) when due any
principal of any Loan or L/C Borrowing taken by such Borrower or (ii)
within five days after the same shall become due, any interest on any
Loan or L/C Borrowing taken by such Borrower or any fees or any other
amount payable by any Borrower hereunder or under any other Loan
Document;
(b) Any Borrower shall fail to observe or perform any
covenant contained in Sections 6.01 (other than in Section 6.01(e)),
6.19, 6.21 and 6.22 hereof for
21
15 days after written notice of such failure shall have been given to
Avnet by the Administrative Agent or any Lender;
(c) Any Borrower shall fail to observe or perform any
covenant contained in Sections 6.01(e), 6.07, 6.08, 6.09, 6.11, 6.12,
6.16, 6.17, 6.18, 6.20 and 6.25;"
(ii) At subsection (l) thereof, by amending and
restating the introductory clause thereof to read as follows:
"(l) The occurrence of any of the following events
with respect to (x) any Loan Party other than a Borrower, or (y) any
Material Subsidiary that is not a Designated Borrower, in both cases
excluding any Dormant Subsidiary, and the same shall not have been
cured or otherwise remedied to the satisfaction of the Required Lenders
within 10 days:"
(iii) By deleting the word "or" at the end of
subsection (o) and by deleting the period (".") at the end of subsection (p) and
replacing it with a semicolon (";"); and
(iv) By adding the following as new subsections:
"(q) (i) Any provision of any Effective Collateral
Document shall for any reason cease to be valid and binding on or
enforceable against any Loan Party or any Loan Party shall so state in
writing or bring an action to limit its obligations or liabilities
thereunder; or
(ii) Any Effective Collateral Document shall
for any reason (other than pursuant to the terms thereof) cease to
create a valid Lender Lien in the Collateral purported to be covered
thereby or such Lender Lien shall for any reason cease to be a
Perfected and first priority Lender Lien subject only to Permitted
Liens; or
(r) Any Loan Party shall at any time fail to observe
or perform any covenant or agreement contained in any Effective
Collateral Document beyond any grace or cure period provided therein,
or any representation, warranty, certification or statement made or
deemed made by any Loan Party in any Effective Collateral Document or
in any certificate, financial statement or other document delivered
pursuant thereto shall prove to have been incorrect in any material
respect when made (or deemed made)."
(u) Section 8.01 of the Credit Agreement shall be amended as
follows:
(i) By amending and restating subsection (b) as
follows:
"(b) The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the
documents associated therewith, and the L/C issuer shall have all of
the benefits and immunities (i) provided to the Administrative Agent in
this Article VIII with respect to any acts taken or omissions suffered
by the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if
the term "Administrative Agent" as used in this Article VIII and in the
22
definition of "Agent-Related Person" included the L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer."
(ii) By adding a new subsection (c) thereto as
follows:
"(c) The Administrative Agent may, in its discretion,
from time to time serve as "document escrow agent" under the terms of
the Springing Lien Escrow Agreement. In connection therewith, the
Administrative Agent, acting in such capacity, shall have all the
benefits and immunities provided to the Administrative Agent in this
Article VIII with respect to any act taken or omissions suffered by the
Administrative Agent in connection with the Springing Lien Escrow
Agreement, as fully as if the term "Administrative Agent" as used in
this Article VIII and in the definition of "Agent-Related Person"
included such document escrow agent with respect to such acts or
omissions."
(v) Article VIII of the Credit Agreement shall be further
amended by adding to the end thereof the following:
"8.11 COLLATERAL MATTERS.
(a) Each Lender authorizes and directs the
Administrative Agent to enter into the Collateral Documents (including
as document escrow agent under the Springing Lien Escrow Agreement) and
agrees that any action taken by the Administrative Agent concerning any
Collateral (with the consent or at the request of the Required Lenders
or in accordance with any Loan Document), that the Administrative
Agent's exercise of powers concerning the Collateral in any Loan
Document, and that all other reasonably incidental powers, are
authorized and binding upon all Lenders.
(b) The Administrative Agent is authorized on behalf
of all Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time, to take any action with
respect to any Collateral or Loan Documents related to Collateral that
may be necessary to Perfect and maintain Perfected the Lender Liens
upon the Collateral.
(c) The Administrative Agent has no obligation to any
Lender or to any other Person to assure that the Collateral exists or
is owned by any Loan Party or is cared for, protected, or insured or
has been encumbered or that the Lender Liens have been properly or
sufficiently or lawfully created, Perfected, protected, or enforced, or
are entitled to any particular priority.
(d) The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion, to make the
reductions and releases contemplated by and to release any Lender Lien
upon Collateral (i) in accordance with Section 2.15(b), (ii)
constituting property being disposed of as permitted under any Loan
Document, (iii) constituting property in which no Loan Party owned any
interest at the time the Lender Lien was granted or at any time after
that, (iv) constituting property leased to any Loan Party under a lease
that has expired or been terminated in a transaction permitted under
the Loan Documents or is about to expire and that has not been, and is
not intended by that Loan Party to be, renewed, (v) consisting of an
instrument evidencing Debt
23
pledged to the Administrative Agent (for the benefit of the Lenders),
if the underlying Debt has been paid in full, or (vi) if approved,
authorized, or ratified in writing by the Required Lenders, or, if such
release relates to all or substantially all of the Collateral, by all
of the Lenders. Upon request by the Administrative Agent at any time,
the Lenders shall confirm in writing the Administrative Agent's
authority to release particular types or items of Collateral under this
subsection (d)."
(w) Section 9.11 of the Credit Agreement shall be amended by
adding the following provision to the end thereof:
"Notwithstanding the foregoing, the Lenders each severally covenant and
agree to and with the Administrative Agent and each other (which
agreement is not for the benefit of and shall not be enforceable by any
Loan Party) that, following the occurrence of a Trigger Event, if a
Lender Lien has attached to real property located in a One Action
Jurisdiction, then such Lender shall not effect any set-off or exercise
of bankers' lien or the like (whether under this Section, pursuant to
common law, or otherwise) with respect to the Obligations without the
prior consent of the Administrative Agent."
(x) A new Schedule 5.09, Schedule 5.19, Schedule 5.20,
Schedule 6.14(k), Schedule 6.16 and Schedule 6.21 shall be added to the Credit
Agreement, in the form of Schedule 5.09, Schedule 5.19, Schedule 5.20, Schedule
6.14(k), Schedule 6.16 and Schedule 6.21 attached hereto, respectively.
(y) Exhibit E to the Credit Agreement shall be amended by
replacing Schedule 2 attached thereto with the document attached hereto as
Exhibit B.
(z) The Credit Agreement shall be further amended by adding a
new Exhibit K, in the form of Exhibit A hereto, and a new Exhibit L, in the form
of Exhibit C hereto.
2A. Applicability of Certain Provisions. Notwithstanding the time of
the Effective Date, the amendments herein to "EBITDA," "Funded Debt," "Interest
Expense" and to Section 6.11 shall also apply to the applicable covenant
calculations made in respect of the Fiscal Quarter ended nearest September 30,
2002.
3. Waiver.
(a) Waived Default. The Lenders hereby waive the Default or
Event of Default, if any (the "Waived Default"), existing as of September 27,
2002, under Section 7.01(c) of the Credit Agreement solely as a consequence of
the failure of Avnet to maintain the ratio of EBITDA to Interest Expense as of
such date as set forth in Section 6.11(a) of the Credit Agreement, provided and
subject to the condition that Avnet shall have satisfied the requirements of
Section 6.11(a) as amended hereby.
(b) Limited Effect. Nothing contained hereby shall be deemed a
waiver or consent in respect of (or otherwise affect the Administrative Agent's
or any Lender's ability to enforce) any Default or Event of Default not
explicitly waived by Section 3(a), including any Default or Event of Default (i)
that may now exist or hereafter arise out of or otherwise be related to the
Waived Default (including any cross-default arising under the Credit Agreement
by virtue of any matters resulting from the Waived Default) and (ii) that may
now exist or hereafter
24
arise out of the failure of Avnet and its Subsidiaries to comply with any of the
other covenants set forth in the Credit Agreement, including those based on the
financial performance of such Persons during the fiscal quarter ended on or
about September 27, 2002.
4. Representations and Warranties. Avnet hereby represents and warrants
to the Administrative Agent and the Lenders as follows:
(a) Other than the Waived Default, 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, (i) there are no Designated
Borrowers under the Credit Agreement, (ii) there does not exist any Unwind Event
under any Permitted Securitization, nor has there occurred any Unwind pursuant
thereto, (iii) there exists no Securitization Subsidiary other than Avnet
Receivables Corporation, a Delaware corporation, and (iv) all of the statements
contained in Schedule 6.14(k) are true and correct in all material respects.
(f) Subject to the Waived Default, Avnet has complied with all
of the covenants and provisions of the Credit Agreement.
5. Effective Date. This Amendment will become effective when 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 duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) counterparts 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 the other documents contemplated hereby.
25
(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, in form and
substance satisfactory to the Administrative Agent and the Lenders, evidence (i)
of the absence of any Unwind Event or Unwind under any outstanding Permitted
Securitization, and (ii) as to the truth of the representations at Sections 5.18
and 5.19 of the Credit Agreement as amended hereby.
(e) Avnet shall have executed and delivered a written notice
of termination to the "Administrative Agent" thereunder and the Administrative
Agent shall have received, in form and substance satisfactory to the
Administrative Agent and the Lenders, evidence (i) that Avnet has terminated any
and all commitments under the 364-Day Credit Agreement, repaid to the "Lenders"
thereunder the aggregate principal amount of "Loans" (as such terms are defined
therein) outstanding thereunder and (ii) that Avnet has paid and discharged, and
caused each of its Subsidiaries to pay and discharge, all their respective
obligations and liabilities under the 364-Day Credit Agreement, including tax
liabilities. Each of the undersigned Lenders, in its capacity as a "Lender"
under the 364-Day Credit Agreement, hereby waives any requirement of advance
notice by Avnet of the termination of commitments and payment contemplated by
this Section 5(e).
(f) The Administrative Agent shall have received from Avnet
payment of (i) all fees required to be paid as of the closing hereof, including,
for the ratable account of each Lender that (A) timely executed and delivered
that certain letter agreement dated as of September 26, 2002, by and among
Avnet, the Lenders and the Administrative Agent and (B) has executed this
Amendment before 5:00 p.m. (San Francisco time) on October 9, 2002, an amendment
fee of 0.30% (30 b.p.) times such Lender's total Commitment; such fees shall be
fully-earned on the date so paid and shall be nonrefundable; and (ii) all
amounts accrued (whether or not otherwise then payable) under Section 2.09(b)
and (c) of the Credit Agreement, for the benefit of the Lenders.
(g) 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 Second Amendment 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.
26
(h) 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.
(i) The Effective Date shall have occurred no later than 5:00
P.M. (San Francisco time) October 10, 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) 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.
27
(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.
(Remainder of page intentionally left blank)
28
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 to Amendment)
S-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
-----------------------------------
(Signature Page to Amendment)
S-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
-----------------------------------
(Signature Page to Amendment)
S-3
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
Title: Director
-----------------------------------
(Signature Page to Amendment)
S-4
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: VP
-----------------------------------
(Signature Page to Amendment)
S-5
BANK ONE, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------
Title: Director
-----------------------------------
(Signature Page to Amendment)
S-6
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Xxxxxxx X'Xxxx
-----------------------------------
Name: Xxxxxxx X'Xxxx
-----------------------------------
Title: Director
-----------------------------------
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
-----------------------------------
Title: Associate
-----------------------------------
(Signature Page to Amendment)
S-7
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
(Signature Page to Amendment)
S-8
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Title: S.V.P.
-----------------------------------
(Signature Page to Amendment)
S-9
KBC BANK, N.V., as a Lender
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
-----------------------------------
Title: First Vice President
-----------------------------------
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
(Signature Page to Amendment)
S-10
NATEXIS BANQUES POPULAIRES, as a Lender
By: /s/ Nicolas Regent
-----------------------------------
Name: Nicolas Regent
-----------------------------------
Title: VP Multinational
-----------------------------------
By: /s/ X X van Tulder
-----------------------------------
Name: X X van Tulder
-----------------------------------
Title: VP & Manager
-----------------------------------
(Signature Page to Amendment)
S-11
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
-----------------------------------
Title: Second Vice President
-----------------------------------
(Signature Page to Amendment)
S-12
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL),
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Account Manager
-----------------------------------
(Signature Page to Amendment)
S-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
-----------------------------------
(Signature Page to Amendment)
S-14
UNICREDITO ITALIANO, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
-----------------------------------
Title: First Vice President & Deputy
Manager
-----------------------------------
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
(Signature Page to Amendment)
S-15
