EXECUTION VERSION
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of December 13, 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, that
Fourth Amendment to Credit Agreement dated as of December 9, 2002, and that
Fifth Amendment to Credit Agreement dated as of December 12, 2002 (the "Fifth
Amendment") (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, effective as of the Effective Date, at Section 1.01 by amending and
restating the following defined term in its entirety:
"Trigger Event" means the occurrence of any of the
following on or after the Second Amendment Date: (i) (A) the
failure, for whatever reason, to consummate a Permitted
Capital Markets Transaction on or before February 14, 2003; or
(B) any Borrower submits a Request for Credit Extension, other
than on a one-time basis a Letter of Credit Application
relating to the issuance of a single Letter of Credit in the
amount of $50,000,000 for the benefit of IBM, at any time on
or after December 13, 2002, and prior to the date of
consummation of a Permitted Capital Markets Transaction; (ii)
the establishment of a Debt Rating by Xxxxx'x of Ba1 or lower
or by S&P of BB+ or lower or either such rating agency shall
withdraw its Debt Rating; or (iii) the day immediately
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following the occurrence of an Unwind (other than an Unwind in
connection with which Avnet simultaneously consummates and
enters into a Permitted Securitization Refinancing) arrives.
3. Representations and Warranties. Avnet hereby represents and warrants
to the Administrative Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is
continuing, either immediately prior to or after giving effect to this
Amendment.
(b) The execution, delivery and performance by Avnet of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of Avnet,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of Avnet contained in
Article V of the Credit Agreement as amended hereby are true and correct as of
the Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date.
(d) Avnet is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the
Administrative Agent, the Lenders or any other Person.
(e) As of the Effective Date, there are no Designated
Borrowers under the Credit Agreement.
4. Effective Date. This Amendment will become effective as of the date
shown first above, provided each of the following conditions precedent has been
satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received from each of
Avnet and the Required Lenders a duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) counterpart to this Amendment.
(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
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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 from Avnet
payment of all fees required to be paid as of the closing hereof, including, for
the ratable account of each Lender that has executed this Amendment before 3:00
p.m. (Pacific time) on December 13, 2002, an amendment fee of 0.15% (15 b.p.)
times such Lender's total Commitment; such fees shall be fully-earned on the
date so paid and shall be nonrefundable.
(e) 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.
(f) 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.
(g) The Fifth Amendment shall have become effective.
(h) The Effective Date shall have occurred no later than
December 13, 2002.
For purposes of determining compliance with the conditions specified in this
Section 4, each Lender that has executed this Amendment and delivered it to the
Administrative Agent shall be deemed to have consented to, approved or accepted,
or to be satisfied with, each document or other matter either sent, or made
available for inspection, by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
5. Reservation of Rights. Avnet acknowledges and agrees that the
execution and delivery by the Administrative Agent and the Required Lenders of
this Amendment shall not (a) be deemed to create a course of dealing or
otherwise obligate the Administrative Agent or any Lender to execute similar
amendments under the same or similar circumstances in the future or (b) be
deemed to create any implied waiver of any right or remedy of the Administrative
Agent or any Lender with respect to any term or provision of any Loan Document.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment shall
be deemed incorporated into, and a part of, the Credit Agreement. The Credit
Agreement, as amended hereby, is hereby ratified by Avnet.
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(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS
9.19 AND 9.20 OF THE CREDIT AGREEMENT, THE PROVISIONS OF WHICH ARE BY THIS
REFERENCE HEREBY INCORPORATED HEREIN IN FULL.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Administrative Agent of a facsimile transmitted document
purportedly bearing the signature of a Lender or Avnet shall bind such Lender or
Avnet, respectively, with the same force and effect as the delivery of a hard
copy original. Any failure by the Administrative Agent to receive the hard copy
executed original of such document shall not diminish the binding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Administrative Agent.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with reference
to the matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 9.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) Avnet covenants to pay to or reimburse the Administrative
Agent, upon demand, for all out-of-pocket costs and expenses incurred in
connection with the development, preparation, negotiation, execution and
delivery of this Amendment and the other documents contemplated hereby.
(h) This Amendment shall constitute a Loan Document.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
AVNET, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
Signature Page for the Sixth Amendment to Credit Agreement
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BANK OF AMERICA, N.A., as the
Administrative Agent, a Lender, the L/C
Issuer and the Swing Line Lender
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Principal
Signature Page for the Sixth Amendment to Credit Agreement
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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 for the Sixth Amendment to Credit Agreement
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THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
Signature Page for the Sixth Amendment to Credit Agreement
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: ____________________________________
Name: ___________________________________
Title: __________________________________
Signature Page for the Sixth Amendment to Credit Agreement
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BANK ONE, N.A., as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Director
Signature Page for the Sixth Amendment to Credit Agreement
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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
Signature Page for the Sixth Amendment to Credit Agreement
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WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Signature Page for the Sixth Amendment to Credit Agreement
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FLEET NATIONAL BANK, as a Lender
By: ____________________________________
Name: ___________________________________
Title: __________________________________
Signature Page for the Sixth Amendment to Credit Agreement
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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 for the Sixth Amendment to Credit Agreement
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NATEXIS BANQUES POPULAIRES, as a Lender
By: /s/ Xxxxxx X. van Tulder
Name: Xxxxxx X. van Tulder
Title: Vice President and Manager
Multinational Group
By: /s/ Nicolat Regent
Name: Nicolat Regent
Title: VP Multinational
Signature Page for the Sixth Amendment to Credit Agreement
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THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Second Vice President
Signature Page for the Sixth Amendment to Credit Agreement
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SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL),
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Account Manager
Signature Page for the Sixth Amendment to Credit Agreement
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STANDARD CHARTERED BANK, as a Lender
By: /s/ Xxxx Xxxxxxx-Xxxxxxxx
Name: Xxxx Xxxxxxx-Xxxxxxxx
Title: Sr. Vice President
By: /s/ Xxxxxx X. Xx
Name: Xxxxxx X. Xx
Title: Vice President
Signature Page for the Sixth Amendment to Credit Agreement
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UNICREDITO ITALIANO, NEW YORK BRANCH, as
a Lender
By: ___________________________________
Name: __________________________________
Title: _________________________________
By: ___________________________________
Name: __________________________________
Title: _________________________________
Signature Page for the Sixth Amendment to Credit Agreement
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