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Exhibit 10.2
GUARANTY
THIS
GUARANTY AGREEMENT (this “ Guaranty Agreement
”), dated as of September 27, 2007, is made by AVNET,
INC. , a New York corporation (the “ Guarantor
”), to BANK OF AMERICA, N.A ., a national banking
association organized and existing under the laws of the United
States, as administrative agent under the Credit Agreement defined
below (in such capacity, the “ Administrative Agent
”), each of the lenders now or hereafter party to the Credit
Agreement defined below (each, a “ Lender ” and,
collectively, the “ Lenders ” and, together with
the Administrative Agent, collectively, the “ Secured
Parties ” and each a “ Secured Party
”). All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement.
W I T N E S S E T
H :
WHEREAS , the Guarantor, AVNET JAPAN CO., LTD., a private
company governed under the laws of Japan, the lenders party thereto
and the Administrative Agent entered into a Credit Agreement dated
as of September 27, 2007 (as amended, restated, supplemented
or otherwise modified from time to time, the “ Credit
Agreement ”), pursuant to which such lenders have made
available to the Borrowers a revolving credit facility, with
swingline, letter of credit and multicurrency subfacilities;
WHEREAS , the execution and delivery of this Guaranty
Agreement is a condition precedent to the effectiveness of the
Credit Agreement;
NOW,
THEREFORE , in consideration of the premises and mutual
covenants contained herein, the parties hereto agree as
follows:
1. Guaranty . The Guarantor hereby
unconditionally, absolutely, continually and irrevocably guarantees
to each Secured Party the payment and performance in full of the
Guaranteed Liabilities (as defined below). For all purposes of this
Guaranty Agreement, “ Guaranteed Liabilities ”
means: (a) each Designated Borrower’s prompt payment in
full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the
Credit Agreement, the Notes, and all other Loan Documents
heretofore, now or at any time or times hereafter owing, arising,
due or payable from such Designated Borrower to any one or more of
the Secured Parties, including principal, interest, premiums and
fees (including, but not limited to, loan fees and fees and
expenses of counsel); and (b) each Designated Borrower’s
prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be
performed, observed or discharged by such Designated Borrower under
the Credit Agreement, the Notes and all other Loan Documents. The
Guarantor’s obligations to the Secured Parties under this
Guaranty Agreement are hereinafter collectively referred to as the
“ Guarantor’s Obligations ”.
The
Guarantor agrees that it is directly and primarily liable for the
Guaranteed Liabilities.
2. Payment . If any Designated
Borrower shall default in payment or performance of any of the
Guaranteed Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and fees and expenses of
counsel), or otherwise, when and as the same shall become due, and
after expiration of any applicable grace period, whether according
to the terms of the Credit Agreement, by acceleration, or
otherwise, or upon the occurrence and during the continuance of any
Event of Default under the Credit Agreement, then the Guarantor
will, upon demand by the Administrative Agent, fully pay to the
Administrative Agent, for the benefit of the Secured Parties, an
amount equal to all the Guaranteed Liabilities then due and
owing.
3. Absolute Rights and Obligations .
This is a guaranty of payment and not of collection. The
Guarantor’s Obligations under this Guaranty Agreement shall
be absolute and unconditional irrespective of, and the Guarantor
hereby expressly waives, to the extent permitted by law, any
defense to its obligations under this Guaranty Agreement by reason
of:
(a) any
lack of legality, validity or enforceability of the Credit
Agreement, of any of the Notes, of any other Loan Document, or of
any other agreement or instrument creating, providing security for,
or otherwise relating to any of the Guarantor’s Obligations,
any of the Guaranteed Liabilities, or any other guaranty of any of
the Guaranteed Liabilities (the Loan Documents and all such other
agreements and instruments being collectively referred to as the
“ Related Agreements ”);
(b) any
action taken under any of the Related Agreements, any exercise of
any right or power therein conferred, any failure or omission to
enforce any right conferred thereby, or any waiver of any covenant
or condition therein provided;
(c) any
acceleration of the maturity of any of the Guaranteed Liabilities
or of any other obligations or liabilities of any Person under any
of the Related Agreements;
(d) any
release, exchange, non-perfection, lapse in perfection, disposal,
deterioration in value, or impairment of any security for any of
the Guaranteed Liabilities, for any of the Guarantor’s
Obligations, or for any other obligations or liabilities of any
Person under any of the Related Agreements;
(e) any
dissolution of any Designated Borrower or any other party to a
Related Agreement, or the combination or consolidation of any
Designated Borrower or any other party to a Related Agreement into
or with another entity or any transfer or disposition of any assets
of any Designated Borrower or any other party to a Related
Agreement;
(f) any
extension (including without limitation extensions of time for
payment), renewal, amendment, restructuring or restatement of, any
acceptance of late or partial payments under, or any change in the
amount of any borrowings or any credit facilities available under,
the Credit Agreement, any of the Notes or any other Loan Document
or any other Related Agreement, in whole or in part;
(g) the
existence, addition, modification, termination, reduction or
impairment of value, or release of any other guaranty (or security
therefor) of the Guaranteed Liabilities (including without
limitation obligations arising under any other guaranty now or
hereafter in effect);
(h) any
waiver of, forbearance or indulgence under, or other consent to any
change in or departure from any term or provision contained in the
Credit Agreement, any other Loan Document or any other Related
Agreement, including without limitation any term pertaining to the
payment or performance of any of the Guaranteed Liabilities or any
of the obligations or liabilities of any party to any other Related
Agreement;
(i) any
other circumstance whatsoever (with or without notice to or
knowledge of the Guarantor) which may or might in any manner or to
any extent vary the risks of the Guarantor, or might otherwise
constitute a legal or equitable defense available to, or discharge
of, a surety or a guarantor, including without limitation any right
to require or claim that resort be had to any Designated Borrower
or to any collateral in respect of the Guaranteed Liabilities or
Guarantor’s Obligations.
It is the express purpose
and intent of the parties hereto that this Guaranty Agreement and
the Guarantor’s Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be
discharged except by payment as herein provided.
4. Currency and Funds of Payment . All
Guarantor’s Obligations will be paid in lawful currency of
the United States of America and in immediately available funds,
regardless of any law, regulation or decree now or hereafter in
effect that might in any manner affect the Guaranteed Liabilities,
or the rights of any Secured Party with respect thereto as against
any Designated Borrower, or cause or permit to be invoked any
alteration in the time, amount or manner of payment by any
Designated Borrower of any or all of the Guaranteed
Liabilities.
5. Events of Default . Without limiting
the provisions of Section 2 hereof, in the event that
there shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support
for the Guaranteed Liabilities, at the Administrative Agent’s
election and without notice thereof or demand therefor, the
Guarantor’s Obligations shall immediately be and become due
and payable.
6. Suits . The Guarantor from time to
time shall pay to the Administrative Agent for the benefit of the
Secured Parties, on demand, at the Administrative Agent’s
place of business set forth in the Credit Agreement or such other
address as the Administrative Agent shall give notice of to the
Guarantor, the Guarantor’s Obligations as they become or are
declared due, and in the event such payment is not made forthwith,
the Administrative Agent may proceed to suit against the Guarantor.
At the Administrative Agent’s election, one or more and
successive or concurrent suits may be brought hereon by the
Administrative Agent against the Guarantor, whether or not suit has
been commenced against any Designated Borrower or any other Person
and whether or not the Secured Parties have taken or failed to take
any other action to collect all or any portion of the Guaranteed
Liabilities or have taken or failed to take any actions against any
collateral securing payment or performance of all or any portion of
the Guaranteed Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3
hereof.
7. Set-Off and Waiver . The Guarantor
waives any right to assert against any Secured Party as a defense,
counterclaim, set-off, recoupment or cross claim in respect of its
Guarantor’s Obligations, any defense (legal or equitable) or
other claim which the Guarantor may now or at any time hereafter
have against any Designated Borrower or any or all of the Secured
Parties without waiving any additional defenses, set-offs,
counterclaims or other claims otherwise available to the Guarantor.
The Guarantor agrees that each Secured Party shall have a lien for
all the Guarantor’s Obligations upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or
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