WAIVER TO CREDIT AGREEMENT
WAIVER TO CREDIT
AGREEMENT
WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 4, 2010 (the “Waiver”) by
and among NU HORIZONS ELECTRONICS CORP., a Delaware corporation having its
executive offices at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (the “Borrower”), each
of the lenders that is a signatory thereto identified under the caption “Lenders” on the
signature pages to the Credit Agreement (as defined below) (individually, a
“Lender”, and collectively, the “Lenders”), BANK OF AMERICA, N.A., a national
banking association, as Documentation Agent for the Lenders, JPMORGAN
CHASE BANK, N.A., a national banking association, as Syndication Agent for the
Lenders, ISRAEL DISCOUNT BANK OF NEW YORK, a New York bank, as Syndication Agent
for the Lenders and CITIBANK, N.A., a national banking association, as
administrative agent for the Lenders (the “Administrative Agent”).
RECITALS
The
Borrower, the Lenders, the Documentation Agent, the Syndication Agents and the
Administrative Agent entered into an Amended and Restated Credit Agreement dated
as of January 31, 2007, as amended by a Consent and First Amendment to Credit
Agreement dated as of June 6, 2007, a Second Amendment dated as of January 4,
2008, a Third Amendment dated as of May 30, 2008, a Fourth Amendment dated
August 29, 2008 and a Fifth Amendment dated as of April 27, 2009 (collectively,
the “Credit Agreement”), pursuant to which certain financial accommodations were
made available to the Borrower.
WHEREAS,
the Borrower has requested that the Administrative Agent and the Required
Lenders agree to waive compliance with a provision of the Credit Agreement;
and
WHEREAS,
the Administrative Agent has obtained the consent of the Required Lenders to
execute this Waiver, but only upon the terms and conditions set forth
herein;
NOW, THEREFORE, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in consideration of the premises contained herein, the parties hereto agree as
follows:
Section 1.
Definitions. Except
as otherwise defined in this Waiver, terms defined in the Credit Agreement are
used herein as defined therein.
Section 2.
Waiver. The
Lenders hereby waive non-compliance with Section 7.8 of the Credit Agreement to
the extent that NIC Components Asia Pte Ltd, a Subsidiary of the Borrower, paid
a dividend of $135,831 during the third quarter of Borrower’s fiscal year ended
February 28, 2010, to an unaffiliated Person, Nippon Industries Co., Ltd., a
minority owner of such Subsidiary.
Section 3.
Condition Precedent.
The waiver set forth in Section 2 hereof shall become effective, on the
date of this Waiver, upon the execution and delivery of this Waiver by the
Borrower, the Administrative Agent and each of the Required
Lenders.
Section 4.
Representations and
Warranties. The Borrower represents and warrants to the
Lenders that the representations and warranties set forth in the Credit
Agreement and in the other Loan Documents are true and complete on the date of
this Waiver and as if made on and as of the date hereof (or, if such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
Section 5.
Borrower’s
Acknowledgments. The Borrower acknowledges and agrees that the
Borrower has no claims, counterclaims, offsets, or defenses to the Loan
Documents and the performance of the Borrower’s obligations thereunder or if the
Borrower did have any such claims, counterclaims, offsets or defenses to the
Loan Documents or any transaction related to the Loan Documents, the same are
hereby waived, relinquished and released in consideration of execution and
delivery of this Waiver.
Section 6.
Acknowledgement of
Guarantors. The Guarantors acknowledge and consent to all of
the terms and conditions of this Waiver and agree that this Waiver and all
documents executed in connection herewith do not operate to reduce or discharge
the Guarantors’ obligations under the Credit Agreement or the other Loan
Documents. The Guarantors further acknowledge and agree that the
Guarantors have no claims, counterclaims, offsets, or defenses to the Loan
Documents and the performance of the Guarantors’ obligations thereunder or if
the Guarantors did have any such claims, counterclaims, offsets or defenses to
the Loan Documents or any transaction related to the Loan Documents, the same
are hereby waived, relinquished and released in consideration of execution and
delivery of this Waiver.
Section 7.
Governing Law;
Execution in Counterparts. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and
effect. This Waiver may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument and any
of the parties hereto may execute this Waiver by signing any such
counterpart. This Waiver shall be governed by, and construed in
accordance with, the internal laws of the State of New York (without regard to
New York conflicts of laws principles).
Section 8.
Releases.
By signing below, the Borrower and each Subsdiary on its own behalf and on
behalf of its successors and assigns hereby releases (i) each Lender and the
Administrative Agent and all of the affiliates of each Lender and the
Administrative Agent, and each of their respective successors and assigns, and
(ii) all of the shareholders, directors, officers, employees, attorneys, agents
and representatives of each Lender and the Administrative Agent and such
affiliates, and their respective heirs, executors, successors and assigns
(collectively, the “Released Persons”),
from any and all claims, demands, liabilities, actions and causes of action of
any nature whatsoever, whether liquidated or unliquidated, known or unknown,
matured or unmatured, fixed or contingent which Borrower or any Subsidiary had,
has or may have had against any of the Released Persons arising out of or in any
way relating to the Credit Agreement or any Loan Document or any document,
dealing or other matter in connection with any Loan Document or any Collateral
referenced therein, in each case to the extent arising on or prior to the date
hereof or out of, or relating to, actions, dealings or other matters occurring
prior to the date hereof (including any action or omission of any Released
Person prior to the date hereof), the negotiation and documentation of this
Waiver, and any of the transactions made or contemplated to be made hereunder or
thereunder (collectively the “Released Claims”).
Borrower and each Subsidiary acknowledges and agrees that (i) this release may
be pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of the provisions of such release; and (ii) no
fact, event, circumstance, evidence or transaction which could now be asserted
or which may hereafter be discovered shall affect in any manner the final and
unconditional nature of such releases.
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Section 9.
Expenses,
etc. The Borrower agrees to pay or reimburse the
Administrative Agent for all reasonable out-of-pocket costs and expenses of the
Administrative Agent (including, without limitation, the reasonable fees and
expenses of Certilman Balin Xxxxx & Xxxxx, LLP) in connection with the
negotiation, preparation, execution and delivery of this Waiver and the
transactions contemplated hereby.
Section 10.
Effective
Date. This Waiver is dated for convenience as of May 4, 2010
and shall be effective as of such date, on the delivery of an executed
counterpart to the Borrower upon satisfaction of the conditions precedent
contained in Section 3 hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the
parties hereto have caused this Waiver to Credit Agreement to be duly executed
and delivered by their duly authorized officers, all as of the day and year
first above written.
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Borrower:
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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Guarantors:
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NIC
COMPONENTS CORP.
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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NU
HORIZONS INTERNATIONAL CORP.
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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TITAN
SUPPLY CHAIN SERVICES CORP.
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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RAZOR
ELECTRONICS, INC.
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By:
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/s/
Xxxx Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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NuXCHANGE
B2B SERVICES, INC.
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By:
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/s/
Xxxx
Xxxxxxxxxxx
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Xxxx
Xxxxxxxxxxx
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Executive
Vice President, Treasurer and
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Chief
Financial Officer
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Notice
Addresses:
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Lenders:
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CITIBANK,
N.A.
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CITIBANK,
N.A.
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730
Veterans Memorial Highway
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as
Administrative Agent and Lender
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Xxxxxxxxx,
XX 00000
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By:
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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Vice
President
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ISRAEL
DISCOUNT BANK OF NEW YORK
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ISRAEL
DISCOUNT BANK OF NEW YORK
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000
Xxxxx Xxxxxx
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as
Syndication Agent and Lender
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Xxx
Xxxx, XX 00000
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
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Senior
Vice President
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Xxxxxxx
X. Xxxxxxxx
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Vice
President
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BANK
OF AMERICA, N.A.
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BANK
OF AMERICA, N.A.
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1185
Avenue of the Americas
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as
Documentation Agent and Lender
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Xxx
Xxxx, XX 00000
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By:
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/s/
Xxxxxx X. Xxxxxxxxxx
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Xxxxxx
X. Xxxxxxxxxx
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Senior
Vice President
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JPMORGAN
CHASE BANK, N.A.
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JPMORGAN
CHASE BANK, N.A.
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000
Xxxxx Xxxxxxx Xxxx, Xxxxx 3
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as
Syndication Agent and Lender
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Xxxxxxxx,
XX 00000
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By:
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Xxxxxx
X. Xxxxxxxxxxxx
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Vice
President
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HSBC
BANK USA, NATIONAL
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HSBC
BANK USA, NATIONAL
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ASSOCIATION
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ASSOCIATION
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000
Xxxxx Xxxxxx Xxxx
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Xxxxxxxx,
XX 00000
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By:
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Xxxxxxxxxxx
Xxxxxxxxxx
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Commercial
Executive
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CAPITAL
ONE, N.A.,
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CAPITAL
ONE, N.A.,
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000
Xxxxxxxxxxx Xxxx
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formerly
known as Xxxxx Xxxx Xxxx
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Xxxxxxxx,
XX 00000
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By:
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx
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Senior
Vice President
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BANK
LEUMI USA
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BANK
LEUMI USA
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000
Xxxxx Xxx.
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Xxx
Xxxx, XX 00000
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By:
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/s/
Xxxxxxxx Xxxxx
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Xxxxxxxx
Xxxxx
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Vice
President
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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Senior
Vice President and Group Head
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SOVEREIGN
BANK
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SOVEREIGN
BANK
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000
Xxxxx Xxxxxxx Xxxx
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Xxxxxxxx,
XX 00000
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By:
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Xxxxxxxxx
Xxxxxx
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Senior
Vice President
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NEW
YORK COMMERCIAL BANK
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NEW
YORK COMMERCIAL BANK
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0
Xxxxxxx Xxxxx
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Xxxxxxx,
XX 00000
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By:
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/s/
Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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Vice
President
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