Exhibit 99.1
EXECUTION COPY
AMENDMENT NO. 7 TO TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NO. 7 TO TRANSFER AND ADMINISTRATION
AGREEMENT, dated as of February 19, 2003 (this "Amendment"), to
that certain Transfer and Administration Agreement dated as of
March 21, 2001, as amended by Amendment No. 1 to Transfer and
Administration Agreement dated as of November 30, 2001, Amendment
No. 2 to Transfer and Administration Agreement dated as of
December 14, 2001, Amendment No. 3 to Transfer and Administration
Agreement dated as of March 20, 2002, Amendment No. 4 to Transfer
and Administration Agreement dated as of March 29, 2002,
Amendment No. 5 to Transfer and Administration Agreement dated as
of May 22, 2002, and Amendment No. 6 and Limited Waiver to
Transfer and Administration Agreement dated as of September 27,
2002 (as so amended and in effect, the "TAA"), by and among Arrow
Electronics Funding Corporation, a Delaware corporation (the
"SPV"), Arrow Electronics, Inc., a New York corporation,
individually ("Arrow") and as the initial Master Servicer, the
several commercial paper conduits identified on Schedule A to the
TAA and their respective permitted successors and assigns (the
"Conduit Investors"; each individually, a "Conduit Investor"),
the agent bank set forth opposite the name of each Conduit
Investor on such Schedule A and its permitted successors and
assigns (each a "Funding Agent") with respect to such Conduit
Investor, and Bank of America, National Association, a national
banking association, as the administrative agent for the
Investors (the "Administrative Agent"), and the financial
institutions from time to time parties thereto as Alternate
Investors. Capitalized terms used and not otherwise defined
herein have the meanings assigned to such terms in the TAA.
PRELIMINARY STATEMENTS:
WHEREAS, the SPV, Arrow, the Conduit Investors, the
Funding Agents, the Alternate Investors and the Administrative
Agent have entered into the TAA;
WHEREAS, the SPV and Arrow have requested that the
Conduit Investors, the Funding Agents, the Alternate Investors
and the Administrative Agent agree to make certain changes and
amendments to the TAA;
WHEREAS, subject to the terms and conditions set forth
herein, the Conduit Investors, the Alternate Investors, the
Funding Agents and the Administrative Agent are willing to make
such changes and amendments to the TAA; and
NOW, THEREFORE, in consideration of the premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. Amendments to the TAA. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 4
hereof, the TAA is hereby amended as follows:
Section 1.1. Section 1.1. is hereby amended by adding the
following new definitions in their respective alphabetical
locations, to read in their entirety as follows:
""CA Adjusted Fees" means, at a particular date, the
sum of the annualized rates of all fees and margins
then in effect on such date under the Multi-year Credit
Agreement that are payable periodically to the banks
and other financial institutions and not any agent
thereunder (except for account of such banks and
financial institutions) and accrue based on (x) the
utilized portion of any commitment to make loans
thereunder in United States Dollars that shall bear
interest by reference to a London interbank market
rate, provided that such fee or margin shall not
otherwise be payable or accrue under the Multi-year
Credit Facility on the unutilized portion of such
commitment, (y) the outstanding principal amount of
such committed loans or (z) both the utilized and
unutilized amount of such commitment, provided that, in
the case of any fee or margin under this subclause (z),
the annualized rate of such fee or margin shall be
included in the sum under this definition solely to the
extent of the excess, if any, of the annualized rate of
such fee or margin over the Facility Fee Rate hereunder
on such date. The sum under this definition above on
the Closing Date shall (by reference to the Multi-year
Credit Agreement as then in effect) be equal to the sum
of (1) the "Applicable Margin" (as defined in the Multi-
year Credit Agreement) on such date, plus (2) the per
annum rate then used to calculate the "utilization fee"
pursuant to Section 7.1 of the Multi-year Credit
Agreement on such date, plus (3) the excess, if any, of
the "Facility Fee Rate" (as defined in the Multi-year
Credit Agreement) on such date over the Facility Fee
Rate hereunder on such date."
""CA Loan Parties" has the meaning ascribed to the term
"Loan Parties" in the Multi-year Credit Agreement."
""Calculation Period" is defined on Schedule II.
""Consolidated Net Worth" means at a particular date,
all amounts which would be included under shareholders'
equity on a consolidated balance sheet of Arrow and its
CA Subsidiaries determined on a consolidated basis in
accordance with GAAP, adjusted to exclude non-cash
charges due to impairments recorded in accordance with
the Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 142."
""Consolidated Total Capitalization" means at a
particular date, the sum of (a) Consolidated Net Worth
plus (b) Consolidated Total Debt as at such date."
""Consolidated Total Debt" means at the date of
determination thereof, (i) all Indebtedness of Arrow
and its CA Subsidiaries (excluding Indebtedness of
Arrow owing to any of its CA Subsidiaries or
Indebtedness of any CA Subsidiary owing to Arrow or any
other CA Subsidiary of Arrow), as determined on a
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consolidated basis in accordance with GAAP plus (ii)
without duplication of amounts included in clause (i)
above, an amount equal to the aggregate unpaid amount
of cash proceeds advanced by the CA Receivables
Financiers to the special purpose entity under any CA
Permitted Receivables Securitization at the date of
determination."
Section 1.2. Section 1.1 is amended by amending and
restating the definition of "Commitment," such definition to read
in its entirety as follows:
""Commitment" means, with respect to each Alternate
Investor, as the context requires, (a) the commitment
of such Alternate Investor to make Investments and to
pay Assignment Amounts in accordance herewith in an
amount not to exceed the amount described in the
following clause (b), and (b) the dollar amount set
forth opposite such Alternate Investor's name on
Schedule A hereto under the heading "Alternate
Investor(s) Commitment" (or (i) in the case of an
Alternate Investor which becomes a party hereto
pursuant to an Assignment and Assumption Agreement, as
set forth in such Assignment and Assumption Agreement
and (ii) in the case of an Alternate Investor which
becomes a party hereto pursuant to an Additional
Commitment Amendment, as specified in such Additional
Commitment Amendment), minus the dollar amount of any
Commitment or portion thereof assigned by such
Alternate Investor pursuant to an Assignment and
Assumption Agreement, plus the dollar amount of any
increase to such Alternate Investor's Commitment
consented to by such Alternate Investor prior to the
time of determination; provided, however, that in the
event that the Facility Limit is reduced, the aggregate
of the Commitments of all the Alternate Investors shall
be reduced in a like amount and the Commitment of each
Alternate Investor shall be reduced in proportion to
such reduction.
Section 1.3. Section 1.1 is amended by amending and
restating the definition of "Commitment Termination Date," such
definition to read in its entirety as follows:
""Commitment Termination Date" means the earliest to
occur of (a) February 19, 2006, (b) the date the
commitment of any Program Support Provider terminates
under any Program Support Agreement, and (c) the date
of termination of any Program Support Agreement;
provided, that in any event the Commitment Termination
Date shall not occur prior to February 18, 2004 (or
such later date as to which the SPV, Arrow, each
Conduit Investor, Funding Agent and Alternate Investor
affected thereby and the Administrative Agent may agree
in writing)."
Section 1.4. Section 1.1 is amended by amending the
definition of "Adjusted Consolidated EBITDA" by inserting, after
the word "Affiliates," in clause (d) thereof:
"plus (e) to the extent deducted from earnings in
determining Consolidated Net Income for such period,
non-cash charges due to impairments recorded in such
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period in accordance with the Financial Accounting
Standards Board's Statement of Financial Accounting
Standards No. 142,".
Section 1.5. Section 1.1 is amended by amending and
restating clause (e) of the definition of "Eligible Receivable",
such clause to read in its entirety as follows:
"(e) as to which at the time of the purchase by the
Administrative Agent, on behalf of the Funding Agents
for the benefit of the Investors thereof hereunder the
Administrative Agent has not notified the SPV that
either such Receivable or any class of Receivables of
which such Receivable is a part is not acceptable for
purchase hereunder, as determined by the Funding Agents
in their reasonable discretion, because of the nature
of the business of the Obligor or because of a
potential conflict of interest between the interests of
the SPV or the Originator, on the one hand, and any
Investor, any Funding Agent, Conduit Investor, any
Program Support Provider, any Alternate Investor or any
of their Affiliates, on the other hand;"
Section 1.6. Section 1.1 is amended by amending and
restating clause (v) of the definition of "Eligible Receivable",
such clause to read in its entirety as follows:
"(v) [RESERVED]; and"
Section 1.7. Section 1.1 is amended by amending and
restating the definition of "Facility Limit" to read in its
entirety as follows:
""Facility Limit" means $561,000,000; provided that
such amount may not at any time exceed the aggregate
Commitments then in effect."
Section 1.8. Section 1.1 is amended by amending and
restating the definition of "Reporting Date" to read in its
entirety as follows:
""Reporting Date" means each of the following dates:
(i) at any time other than during the occurrence and
continuance of an Arrow Rating Reporting Event, the
18th day of each calendar month or if such day is not a
Business Day, the next succeeding Business Day, (ii) at
any time during the occurrence and continuance of an
Arrow Rating Reporting Event, the third Business Day of
the week, and (iii) after the occurrence of a
Termination Event, within two (2) Business Days after a
request from the Administrative Agent; provided,
however, if the public senior unsecured debt of Arrow
is rated below BB+ or Ba1 by S&P or ▇▇▇▇▇'▇,
respectively, the Reporting Date shall be each Business
Day of the week."
Section 1.9. Section 2.8 is amended by amending and
restating it to read in its entirety as follows:
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""Reports. By no later than 4:00 p.m. (New York City
time) on each Reporting Date, the Master Servicer shall
prepare and forward to the Administrative Agent a
Master Servicer Report, as at, and for the Calculation
Period ending on, the immediately preceding Month End
Date; provided, however, that with respect to a Master
Servicer Report delivered on a weekly basis, the
information shall be provided as of the Friday of the
preceding week and with respect to a Master Servicer
Report delivered more frequently than weekly, the
information shall be provided as of the Business Day
immediately prior to such Reporting Date. The Master
Servicer Report shall be certified by the SPV and the
Master Servicer. The Administrative Agent shall
promptly provide a copy of such Master Servicer Report
to each Investor."
Section 1.10. Section 5.2 is amended by amending and
restating clause (d) thereof, such clause to read in its entirety
as follows:
"(d) In the case of an Investment, the Administrative
Agent shall have received a Master Servicer Report (i)
at any time other than during the occurrence and
continuance of an Arrow Rating Event, dated no more
than five (5) days prior to the proposed Investment
Date, and (ii) at any time during the occurrence and
continuance of an Arrow Rating Event, dated no later
than the last Business Day of the week immediately
prior to the week of such proposed Investment Date,
provided, however, if the senior unsecured debt of
Arrow is rated below BB+ or Ba1 by S&P or ▇▇▇▇▇'▇,
respectively, such Master Servicer Report shall be
dated no later than the Business Day immediately prior
to such proposed Investment Date, and in each such
case, the information contained in Master Servicer
Report shall be true, complete and correct."
Section 1.11. Subsection 7.2 is amended by amending and
restating clause (c) thereof, such clause to read in its entirety
as follows:
"(c) The Funding Agents may engage twice during any
twelve-month period, commencing June 1, 2003, at the
Master Servicer's sole expense, the services of a
specialty audit firm or a firm of independent public
accountants (which may also render other services to
the Master Servicer), to furnish an agreed-upon
procedures report to the Funding Agents substantially
in compliance with the procedures set forth in Schedule
V or any additional procedures as the Funding Agents
reasonably deem appropriate; provided that, if the
senior unsecured debt of Arrow is rated below BBB- or
Baa3 by S&P or ▇▇▇▇▇'▇, respectively, the Funding
Agents retain the right to request such reports on a
reasonable, more frequent basis, at the Master
Servicer's sole expense."
Section 1.12. Subsection 8.1 is amended by amending and
restating clause (h) thereof, such clause to read in its entirety
as follows:
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"(h) the average Default Ratio for any period of three
(3) consecutive months exceeds 5.5%; or"
Section 1.13. Subsection 8.1 is amended by amending and
restating clause (n) thereof, such clause to read in its entirety
as follows:
"(n) the Consolidated Total Debt exceeds (x) at any
time during the period from January 1, 2003 through
March 31, 2003, an amount equal to 60.0% of
Consolidated Total Capitalization, or (y) thereafter,
an amount equal to 57.5% of Consolidated Total
Capitalization (subject to the immediately succeeding
proviso, the "Leverage Event"), provided that the
percentages set forth in the foregoing clauses shall be
increased by 2.5% if, and only for so long as, the
ratio of Consolidated Total Debt as at the most recent
fiscal quarter end to Adjusted Consolidated EBITDA for
the period of four consecutive quarters ending on such
date is less than or equal to 4.0 to 1.0; provided,
further, that a Termination Event shall occur under
this subsection 8.1(n) at any time only if the Leverage
Event shall have occurred and shall be continuing and
the senior unsecured debt of Arrow is rated below BBB-
or Baa3 by S&P or ▇▇▇▇▇'▇, respectively, or each of S&P
and ▇▇▇▇▇'▇ has withdrawn its rating of such debt at
such time; or"
Section 1.14. Section 8.1 is amended by amending and
restating clause (o) thereof, such clause to read in its entirety
as follows:
"(o) the ratio of Adjusted Consolidated EBITDA to
Consolidated Cash Interest Expense is at any time less
than (i) 2.10 to 1.0 for the period of four consecutive
fiscal quarters ended December 31, 2002, (ii) 2.10 to
1.0 for the period of four consecutive fiscal quarters
ended ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) 2.20 to 1.0 for the period
of four consecutive fiscal quarters ended June 30,
2003, (iv) 2.45 to 1.0 for the period of four
consecutive fiscal quarters ended September 30, 2003,
(v) 2.75 to 1.0 for the period of four consecutive
fiscal quarters ended December 31, 2003 and (vi) 3.0 to
1.0 for any period of four consecutive fiscal quarters
after December 31, 2003; or"
Section 1.15. Section 8.1 is amended by deleting the period
from the end of clause (q) thereof, replacing it with "; or" and
adding new clause (r) immediately thereafter, such clause to read
in its entirety as follows:
"(r) the Consolidated Net Worth at any time is less
than an amount equal to the sum of 85.0% of
Consolidated Net Worth as of December 31, 2001 plus 50%
of cumulative Consolidated Net Income for the fiscal
quarter commencing January 1, 2002 and for each fiscal
quarter thereafter (without subtraction for any fiscal
quarter during which Consolidated Net Income is a
negative number) plus 50% of the cash proceeds of any
capital stock issued by Arrow or any of the other CA
Loan Parties commencing January 1, 2002 (net of
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attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in
connection therewith)."
Section 1.16. Subsection 9.2 is amended by deleting the
parenthetical "(including, without limitation, under Accounting
Research Bulletin No. 51 of the Financial Accounting Standards
Board)" in the first sentence of clause (b) thereof and replacing
it with the following:
"(other than with respect to an Accounting Based
Consolidation Event (as defined in Schedule IV
hereto)".
Section 1.17. Schedule A hereto is amended by deleting the
existing Schedule A and replacing it with the revised Schedule A
attached hereto as Annex I.
Section 1.18. Schedule I is amended by amending and
restating the definition of "Applicable Margin" to read in its
entirety as follows:
""Applicable Margin" means, on any date, the greater of
(a) 1.325% per annum and (b) the sum of (i) 0.25% per
annum, plus (ii) CA Adjusted Fees."
Section 1.19. Schedule II is amended by amending and
restating the definition of "Default Ratio" to read in its
entirety as follows:
"Default Ratio" for any Calculation Period means the
quotient, expressed as a percentage, of (a) the
aggregate Unpaid Balance of (i) each Receivable, the
invoice date of which is 121-150 days prior to the
Month End Date and (ii) each Receivable evidenced by a
promissory note issued after the origination of such
Receivable, the invoice date of which is less than 121
days prior to the Month End Date, divided by (b) the
aggregate initial Unpaid Balance of Receivables which
arose during the Calculation Period ending on the Month
End Date four months prior.
Section 1.20. Schedule II is amended by amending and
restating the definition of "Dilution Stress Factor" to read in
its entirety as follows:
"Dilution Stress Factor" means (i) 1.75, with respect
to any Calculation Period during which Arrow's senior
unsecured debt is rated equal to or higher than BBB and
Baa2 by S&P and ▇▇▇▇▇'▇, respectively, (ii) 2.00, with
respect to any Calculation Period during which Arrow's
senior unsecured debt is rated BBB- and Baa3 by S&P and
▇▇▇▇▇'▇, respectively, (iii) 2.25, with respect to any
Calculation Period during which Arrow's senior
unsecured debt is rated equal to or less than BB+ or
Ba1 but greater than BB- and Ba3 by S&P or ▇▇▇▇▇'▇,
respectively, and (iv) 2.50, with respect to any
Calculation Period during which Arrow's senior
unsecured debt is rated equal to or less than BB- or
Ba3 by S&P or ▇▇▇▇▇'▇, respectively, or is not rated by
each of S&P and ▇▇▇▇▇'▇, provided, however, that in the
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event the ratings of ▇▇▇▇▇'▇ and S&P do not correspond,
the "Dilution Stress Factor" shall be determined using
the lower rating, provided, further, that in the event
the respective ratings of ▇▇▇▇▇'▇ or S&P differ within
a Calculation Period, the "Dilution Stress Factor"
shall be determined using the lower rating with respect
to such Calculation Period."
Section 1.21. Schedule II is amended by amending and
restating the definition of "Loss Reserve Ratio" to read in its
entirety as follows:
""Loss Reserve Ratio" for any Calculation Period means
the product of (a) 2.00, multiplied by (b) the Peak
Default Ratio for such Calculation Period, multiplied
by (c) the Loss Horizon Ratio for such Calculation
Period; provided, however, that in the event that
Arrow's senior unsecured debt is rated below BBB- or
Baa3 but greater than BB- and Ba3 by S&P and ▇▇▇▇▇'▇,
respectively, in any Calculation Period, the Loss
Reserve Ratio for such Calculation Period means the
product of (a) 2.25, multiplied by (b) the Peak Default
Ratio for such Calculation Period, multiplied by (c)
the Loss Horizon Ratio for such Calculation Period;
provided, further, that in the event that Arrow's
senior unsecured debt is rated equal to or below BB- or
Ba3 by S&P and ▇▇▇▇▇'▇, respectively, or is not rated
by each of S&P and ▇▇▇▇▇'▇, in any Calculation Period,
the Loss Reserve Ratio for such Calculation Period
means the product of (a) 2.50, multiplied by (b) the
Peak Default Ratio for such Calculation Period,
multiplied by (c) the Loss Horizon Ratio for such
Calculation Period; provided, further, that in the
event the ratings of ▇▇▇▇▇'▇ and S&P do not correspond,
the "Loss Reserve Ratio" shall be determined using the
lower rating."
Section 1.22. Schedule II is amended by amending and
restating the definition of "Minimum Reserve Ratio" to read in
its entirety as follows:
""Minimum Reserve Ratio" for any Calculation Period
means the sum of (a) 4.00, multiplied by the percentage
set forth in clause (b) of the definition of
"Concentration Percentage", plus (b) the product of (i)
the Dilution Ratio multiplied by (ii) the Dilution
Horizon Ratio; provided, however, that in the event
that Arrow's senior unsecured debt is rated equal to or
below BB+ or Ba1 by S&P and ▇▇▇▇▇'▇, respectively, or
is not rated by each of S&P and ▇▇▇▇▇'▇, in any
Calculation Period, the Minimum Reserve Ratio for such
Calculation Period means the sum of (a) 5.00,
multiplied by the percentage set forth in clause (b) of
the definition of "Concentration Percentage", plus (b)
the product of (i) the Dilution Ratio multiplied by
(ii) the Dilution Horizon Ratio; provided, further,
that in the event the ratings of ▇▇▇▇▇'▇ and S&P do not
correspond, the "Minimum Reserve Ratio" shall be
determined using the lower rating."
Section 1.23. Schedule IV is amended by amending and
restating the definition of "Program Fee" to read in its entirety
as follows:
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""Program Fee" means a fee, calculated on the basis of
the actual number of days elapsed divided by 360 and
payable to each Conduit Investor, on each Remittance
Date, in an amount equal to (i) at any time prior to an
Accounting Based Consolidation Event with respect to
such Conduit Investor, the product of (x) the daily
average Net Investment held by such Conduit Investor
during the calendar month immediately prior to such
Remittance Date, and (y) the rate per annum determined
based upon the rating of Arrow's senior unsecured debt
by S&P and ▇▇▇▇▇'▇ as set forth below under "Program
Fee Rate (Per Annum) (prior to an Accounting Based
Consolidation Event)" and (ii) at any time after an
Accounting Based Consolidation Event with respect to
such Conduit Investor, the product of (x) the daily
average Net Investment held by such Conduit Investor
during the calendar month immediately prior to such
Remittance Date, and (y) the greatest of (I) 0.825% per
annum, (II) the CA Adjusted Fees minus 0.25%, (III)
1.75%, in the event that Arrow's senior unsecured debt
is rated equal to BB+ or Ba1 by S&P and ▇▇▇▇▇'▇,
respectively, and (IV) 2.50%, in the event that Arrow's
senior unsecured debt is rated equal to or below BB or
Ba2 by S&P and ▇▇▇▇▇'▇, respectively; provided,
however, that in the event that the ratings of S&P and
▇▇▇▇▇'▇ do not correspond, the rate shall be determined
using the lower of the ratings, and provided, further,
that in the event that the rating changes during a
calendar month, the rate shall be determined using a
weighted daily average of rates in effect during such
calendar month, and provided, further, in the event
that an Accounting Based Consolidation Event shall be
deemed to have occurred with respect to a Conduit
Investor with retroactive effect, the Program Fee with
respect to those Remittance Dates during such
retroactive period shall be recalculated and the
difference between (A) the aggregate Program Fees
accrued during such period and (B) the aggregate
Program Fees accrued during such period calculated on
the basis that an Accounting Based Consolidation Event
had occurred with respect to such Conduit Investor at
the onset of such period, shall be payable to such
Conduit Investor on the immediately following
Remittance Date. As used herein, "Accounting Based
Consolidation Event" means the existence of, or
occurrence of any change in, accounting standards or
the issuance of any pronouncement or release by any
accounting body or any other body charged with the
promulgation or administration of accounting standards
(including, without limitation, the Financial
Accounting Standards Board, the American Institute of
Certified Public Accountants or the Securities and
Exchange Commission) or the existence of, or occurrence
of any change in, the interpretation or application of
any accounting standard, the effect of which (in any
such event) is to cause or require the consolidation of
all or any portion of the assets and liabilities of a
Conduit Investor with the assets and liabilities of the
Related Alternate Investor or Related Funding Agent or
any of their Affiliates or the effect of which is to
deem all or any portion of the assets and liabilities
of a Conduit Investor to be consolidated with the
assets and liabilities of the Related Alternate
Investor or Related Funding Agent or any of their
Affiliates; provided, however, that an Accounting Based
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Consolidation Event shall be deemed to have occurred
only with respect to a Conduit Investor if the
existence or occurrence of such change or issuance
shall have caused the consolidation of all or any
portion of the assets and liabilities of such Conduit
Investor with the assets and liabilities of the Related
Alternate Investor or Related Funding Agent."
Section 1.24. Schedule IV is amended by replacing the table
therein set forth below the definition of "Program Fee" to read
in its entirety as follows:
Rating Facility Fee Program Fee
S&P/▇▇▇▇▇'▇ Rate (Per Annum) Rate (Per Annum)
(prior to an
Accounting Based
Consolidation
Event)
Greater than or equal 0.135% 0.175%
to A-/A3
BBB+/Baa1 0.150% 0.175%
BBB/Baa2 0.200% 0.225%
BBB-/Baa3 0.300% 0.300%
BB+/Ba1 0.400% 0.450%
BB/Ba2 0.500% 0.550%
Less than BB/Ba2 or Base Rate plus 0.000%
not rated by each of 2.00%
S&P and ▇▇▇▇▇'▇
SECTION 2. Acknowledgment. Each of Arrow and the SPV
hereby acknowledge that pursuant to this Amendment, the term
"Commitment" opposite each Alternate Investor's signature on the
signature page of the TAA shall be of no further effect.
SECTION 3. Representations and Warranties. To induce
the Conduit Investors, Alternate Investors, the Funding Agents
and the Administrative Agent to enter into this Amendment, the
SPV and Arrow each makes the following representations and
warranties (which representations and warranties shall survive
the execution and delivery of this Amendment) as of the date
hereof, after giving effect to the amendments set forth herein:
Section 3.1. Authority. The SPV and Arrow each has the
requisite corporate power, authority and legal right to execute
and deliver this Amendment and to perform its obligations
hereunder and under the Transaction Documents, including the TAA
(as modified hereby). The execution, delivery and performance by
the SPV and Arrow of this Amendment and their performance of the
Transaction Documents, including the TAA (as modified hereby),
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have been duly approved by all necessary corporate action and no
other corporate proceedings are necessary to consummate such
transactions.
Section 3.2. Enforceability. This Amendment has been duly executed and
delivered by the SPV and Arrow. This Amendment is the legal, valid and binding
obligation of the SPV and Arrow, enforceable against the SPV and Arrow in
accordance with its terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws affecting the rights of creditors generally and
the application of general principles of equity (regardless of whether
considered in a proceeding at law or in equity). The making and delivery of this
Amendment and the performance of the Agreement, as amended by this Amendment, do
not violate any provision of law or any regulation (except to the extent that
the violation thereof could not, in the aggregate, be expected to have a
Material Adverse Effect or a material adverse effect on the condition (financial
or otherwise), business or properties of Arrow and the other Originators, taken
as a whole), or its charter or by-laws, or result in the breach of or constitute
a default under or require any consent under any indenture or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound or affected.
Section 3.3. Representations and Warranties. The representations and
warranties contained in the Transaction Documents are true and correct on and as
of the date hereof as though made on and as of the date hereof after giving
effect to this Amendment.
Section 3.4. No Termination Event. After giving effect to this Amendment,
no event has occurred and is continuing that constitutes a Termination Event or
a Potential Termination Event.
SECTION 4. Conditions Precedent. This Amendment shall
become effective, as of the date hereof, on the date on which the
following conditions precedent shall have been fulfilled:
Section 4.1. This Amendment. The Administrative Agent
shall have received counterparts of this Amendment, duly executed
by each of the parties hereto.
Section 4.2. Amendment Fee. Each of the following specified Funding Agents
shall have received payment of an amendment fee in the amount of (i) $128,333.33
in the case of each of Bank of America, National Association; JPMorgan Chase
Bank; and Fleet Securities, Inc. and (ii) $100,833.33 in the case of each of
Credit Suisse First Boston, New York Branch; The Bank of Nova Scotia and The
Bank of Tokyo-Mitsubishi, Ltd.
Section 4.3. Additional Documents. The Administrative Agent shall have
received all additional approvals, certificates, documents, instruments and
items of information as the Administrative Agent may reasonably request and all
of the foregoing shall be in form and substance reasonably satisfactory to the
Administrative Agent and each Funding Agent.
11
Section 4.4. Legal Matters. All instruments and legal and corporate
proceedings in connection with the transactions contemplated by this Amendment
shall be satisfactory in form and substance to the Administrative Agent, the
Administrative Agent's counsel and each Funding Agent and the fees and expenses
of counsel to the Administrative Agent incurred in connection with the execution
of this Amendment and the transactions contemplated hereby shall have been paid
in full.
SECTION 5. References to and Effect on the Transaction
Documents.
Section 5.1. Except as specifically amended and modified
hereby, each Transaction Document is and shall continue to be in
full force and effect and is hereby in all respects ratified and
confirmed.
Section 5.2. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Investor,
Funding Agent or the Administrative Agent under any Transaction Document, nor
constitute a waiver, amendment or modification of any provision of any
Transaction Document, except as expressly provided in Section 1 hereof.
Section 5.3. This Amendment contains the final and
complete integration of all prior expressions by the parties
hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with
respect to the subject matter hereof superseding all prior oral
or written understandings.
Section 5.4. Each reference in the TAA to "this
Agreement", "hereunder", "hereof" or words of like import, and
each reference in any other Transaction Document to "the Transfer
and Administration Agreement", "thereunder", "thereof" or words
of like import, referring to the Agreement, shall mean and be a
reference to the Agreement as amended hereby.
SECTION 6. Execution in Counterparts. This Amendment
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telefacsimile shall be effective as
delivery of a manually executed counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF, CONNECTED
12
WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION
WITH THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT.
13
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
Arrow Electronics Funding Corporation,
as SPV
By:
------------------------------------------------------
Name:
-------------------------------------------------
Title:
-----------------------------------------------
Arrow Electronics, Inc.,
individually and as Master Servicer
By:
-----------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Enterprise Funding Corporation,
as a Conduit Investor
By:
------------------------------------------------------
Name:
-------------------------------------------------
Title:
------------------------------------------------
Bank of America, National Association,
as a Funding Agent, as Administrative Agent, and as
an Alternate Investor
By:
------------------------------------------------------
Name:
-------------------------------------------------
Title:
------------------------------------------------
14
Delaware Funding Corporation,
as a Conduit Investor
By:
---------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
JPMorgan Chase Bank,
(successor by merger to ▇▇▇▇▇▇ Guaranty Trust Company
of New York) as a Funding Agent and as an Alternate
Investor
By:
--------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Eagle Funding Capital Corporation,
as a Conduit Investor
By: Fleet Securities, Inc.,
its attorney-in-fact
By:
---------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Fleet Securities, Inc.
as a Funding Agent
By:
--------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Fleet National Bank.
as an Alternate Investor
By:
--------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
15
Gramercy Capital Corp.,
as a Conduit Investor
By: Credit Suisse First Boston, New York Branch,
its attorney-in-fact
By:
---------------------------------------------
Name:
----------------------------------------
Title:
-----------------------------------------
By:
---------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
Credit Suisse First Boston, New York Branch
as a Funding Agent and as an Alternate Investor
By:
-------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
By:
--------------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Funding Corp.,
as a Conduit Investor
By:
--------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as a Funding Agent and as an Alternate Investor
By:
---------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Gotham Funding Corporation,
as a Conduit Investor
By:
---------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd.,
as a Funding Agent and as an Alternate Investor
By:
----------------------------------------------
Name:
------------------------------------------
Title:
----------------------------------------
17
Annex I
SCHEDULE A
Conduit Investor Conduit Related Related Funding Agent Alternate
Funding Alternate
Limit Investor(s) Investor(s)
Commitment
-------------------------------------------------------------------------------------------------------------
Enterprise Funding Bank of America, Bank of America, National Association
Corporation National
$104,720,000 Association $104,720,000
-------------------------------------------------------------------------------------------------------------
Delaware Funding JPMorgan Chase JPMorgan Chase Bank (successor by merger
Corporation Bank to ▇▇▇▇▇▇ Guaranty Trust
(successor by Company)
merger to ▇▇▇▇▇▇
Guaranty Trust
Company)
$104,720,000 $104,720,000
-------------------------------------------------------------------------------------------------------------
Eagle Funding Fleet National BankFleet Securities, Inc.
Capital Corp. $104,720,000 $104,720,000
-------------------------------------------------------------------------------------------------------------
Gramercy Capital Credit Suisse FirstCredit Suisse First Boston, New York
Corp. Boston, New York Branch
$82,280,000 Branch $82,280,000
-------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ The Bank of Nova The Bank of Nova Scotia
Funding Corp. $82,280,000 Scotia $82,280,000
-------------------------------------------------------------------------------------------------------------
Gotham Funding The Bank of Tokyo- The Bank of Tokyo-Mitsubishi, Ltd.
Corporation $82,280,000 Mitsubishi, Ltd. $82,280,000
-------------------------------------------------------------------------------------------------------------
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