EXHIBIT 10.1
EXECUTION COPY
$450,000,000
AMENDED AND RESTATED THREE-YEAR CREDIT AGREEMENT
AMONG
ARROW ELECTRONICS, INC.,
THE SUBSIDIARY BORROWERS
THE SEVERAL BANKS
FROM TIME TO TIME PARTIES HERETO,
BANK OF AMERICA, N.A.,
THE BANK OF NOVA SCOTIA,
BNP PARIBAS AND
FLEET NATIONAL BANK
AS SYNDICATION AGENTS
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
----------
X.X. XXXXXX SECURITIES INC.,
AS ARRANGER
Dated as of December 18, 2003
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS................................................................................. 1
1.1 Defined Terms.......................................................................... 1
1.2 Other Definitional Provisions.......................................................... 23
1.3 Accounting Determinations.............................................................. 23
SECTION 2. THE COMMITTED RATE LOANS.................................................................... 24
2.1 Committed Rate Loans................................................................... 24
2.2 Procedure for Committed Rate Loan Borrowing............................................ 24
2.3 Repayment of Committed Rate Loans; Evidence of Debt.................................... 24
2.4 Termination or Reduction of Commitments................................................ 25
2.5 Optional Prepayments................................................................... 25
2.6 Conversion and Continuation Options.................................................... 26
2.7 Minimum Amounts of Tranches............................................................ 26
2.8 Interest Rates and Payment Dates for Committed Rate Loans.............................. 26
2.9 Inability to Determine Interest Rate................................................... 27
2.10 Commitment Increases.................................................................. 27
2.11 Refunding of Committed Rate Loans Denominated in Available Foreign Currencies......... 29
2.12 Certain Borrowings of Committed Rate Loans and Refunding of Loans..................... 30
SECTION 3. THE COMPETITIVE ADVANCE LOANS............................................................... 32
3.1 Competitive Advance Loans.............................................................. 32
3.2 Procedure for Competitive Advance Loan Borrowing....................................... 32
3.3 Repayment of Competitive Advance Loans; Evidence of Debt............................... 33
3.4 Prepayments............................................................................ 34
SECTION 4. THE SWING LINE LOANS........................................................................ 34
4.1 Swing Line Loans....................................................................... 34
4.2 Procedure for Swing Line Borrowing..................................................... 34
4.3 Repayment of Swing Line Loans; Evidence of Debt........................................ 35
4.4 Allocating Swing Line Loans; Swing Line Loan Participations............................ 35
SECTION 5. THE LETTERS OF CREDIT....................................................................... 37
5.1 L/C Commitment......................................................................... 37
5.2 Procedure for Issuance of Letters of Credit under this Agreement....................... 38
5.3 Fees, Commissions and Other Charges.................................................... 38
5.4 L/C Participations..................................................................... 39
5.5 Reimbursement Obligation of the Specified Borrowers.................................... 39
5.6 Obligations Absolute................................................................... 40
5.7 Letter of Credit Payments.............................................................. 41
5.8 Application............................................................................ 41
SECTION 6. LOCAL CURRENCY FACILITIES................................................................... 41
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6.1 Terms of Local Currency Facilities..................................................... 41
6.2 Reporting of Local Currency Outstandings............................................... 42
6.3 Refunding of Local Currency Loans...................................................... 43
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND LETTERS OF CREDIT............................ 44
7.1 Facility Fee; Utilization Fee; Other Fees; Other Payments.............................. 44
7.2 Computation of Interest and Fees....................................................... 45
7.3 Pro Rata Treatment and Payments........................................................ 45
7.4 Illegality............................................................................. 46
7.5 Requirements of Law.................................................................... 46
7.6 Taxes.................................................................................. 49
7.7 Company's Options upon Claims for Increased Costs and Taxes............................ 51
7.8 Break Funding Payments................................................................. 52
7.9 Determinations......................................................................... 52
7.10 Change of Lending Office.............................................................. 53
7.11 Company Controls on Exposure; Calculation of Exposure; Prepayment if
Exposure exceeds Commitments.......................................................... 53
SECTION 8. REPRESENTATIONS AND WARRANTIES.............................................................. 54
8.1 Financial Condition.................................................................... 54
8.2 No Change.............................................................................. 55
8.3 Corporate Existence; Compliance with Law............................................... 55
8.4 Corporate Power; Authorization; Enforceable Obligations................................ 55
8.5 No Legal Bar........................................................................... 55
8.6 No Material Litigation................................................................. 56
8.7 No Default............................................................................. 56
8.8 Ownership of Property; Liens........................................................... 56
8.9 Intellectual Property.................................................................. 56
8.10 Local Currency Facilities............................................................. 56
8.11 Taxes................................................................................. 56
8.12 Federal Regulations................................................................... 57
8.13 ERISA................................................................................. 57
8.14 Investment Company Act; Other Regulations............................................. 58
8.15 Subsidiaries.......................................................................... 58
8.16 Accuracy and Completeness of Information.............................................. 58
8.17 Purpose of Loans; Commitments......................................................... 58
8.18 Environmental Matters................................................................. 58
SECTION 9. CONDITIONS PRECEDENT........................................................................ 59
9.1 Conditions to Closing Date............................................................. 59
9.2 Conditions to Each Extension of Credit................................................. 61
SECTION 10. AFFIRMATIVE COVENANTS...................................................................... 62
10.1 Financial Statements.................................................................. 62
10.2 Certificates; Other Information....................................................... 63
10.3 Payment of Obligations................................................................ 65
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10.4 Conduct of Business and Maintenance of Existence...................................... 65
10.5 Maintenance of Property; Insurance.................................................... 65
10.6 Inspection of Property; Books and Records; Discussions................................ 65
10.7 Notices............................................................................... 65
10.8 Environmental Laws.................................................................... 66
10.9 Additional Subsidiary Guarantees...................................................... 66
10.10 Foreign Subsidiary Borrowers......................................................... 66
SECTION 11. NEGATIVE COVENANTS......................................................................... 67
11.1 Financial Condition Covenants......................................................... 67
11.2 Threshold Liquidity Levels............................................................ 68
11.3 Limitation on Indebtedness of Subsidiaries............................................ 68
11.4 Limitation on Liens................................................................... 68
11.5 Limitation on Fundamental Changes..................................................... 69
11.6 Limitations on Payments............................................................... 70
11.7 Limitations on Acquisitions........................................................... 70
11.8 Limitation on Negative Pledge Clauses................................................. 71
11.9 Limitation on Restrictions on Subsidiary Distributions................................ 71
SECTION 12. EVENTS OF DEFAULT.......................................................................... 72
SECTION 13. THE ADMINISTRATIVE AGENT; THE SYNDICATION AGENTS; THE ARRANGER............................. 75
13.1 Appointment........................................................................... 75
13.2 Delegation of Duties.................................................................. 75
13.3 Exculpatory Provisions................................................................ 75
13.4 Reliance by Administrative Agent...................................................... 75
13.5 Notice of Default..................................................................... 76
13.6 Non-Reliance on Administrative Agent and Other Banks.................................. 76
13.7 Indemnification....................................................................... 77
13.8 Administrative Agent in Its Individual Capacity....................................... 77
13.9 Successor Administrative Agent........................................................ 77
13.10 The Arranger and Syndication Agents.................................................. 78
SECTION 14. MISCELLANEOUS.............................................................................. 78
14.1 Amendments and Waivers................................................................ 78
14.2 Notices............................................................................... 80
14.3 No Waiver; Cumulative Remedies........................................................ 81
14.4 Survival of Representations and Warranties............................................ 81
14.5 Payment of Expenses and Taxes......................................................... 82
14.6 Successors and Assigns; Participations and Assignments................................ 82
14.7 Adjustments; Set-off.................................................................. 85
14.8 Power of Attorney..................................................................... 86
14.9 Judgment.............................................................................. 86
14.10 Counterparts......................................................................... 87
14.11 Severability......................................................................... 87
14.12 Integration.......................................................................... 87
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14.13 GOVERNING LAW........................................................................ 87
14.14 Submission To Jurisdiction; Waivers.................................................. 87
14.15 Acknowledgements..................................................................... 88
14.16 WAIVERS OF JURY TRIAL................................................................ 88
SCHEDULES
I - Banks and Commitments
II - Subsidiary Borrowers
III - Certain Information Concerning Swing Line
Loans and Letters of Credit
IV - Administrative Schedule
1.1 - Existing Joint Ventures
8.10 - Outstanding Local Currency Loans
8.13 - Excluded ERISA Arrangements
8.15 - Subsidiaries
8.18 - Environmental Matters
11.3 - Existing Indebtedness
12(i) - Material Litigation
EXHIBITS
Exhibit A - Form of Joinder Agreement
Exhibit B - Form of Schedule Amendment
Exhibit C - Form of Local Currency Facility Addendum
Exhibit D - [Reserved]
Exhibit E - Form of Borrowing Certificate
Exhibit F-1 - Form of Company Guarantee
Exhibit F-2 - Form of Subsidiary Guarantee
Exhibit G-1 - Form of Opinion of Milbank, Tweed, Xxxxxx & XxXxxx LLP
Exhibit G-2 - Form of Opinion of Xxxxx X. Xxxxx
Exhibit G-3 - Opinions Relating to Foreign Subsidiary Borrowers
Exhibit H - Form of Certificate Pursuant to Subsection 10.2
Exhibit I - Form of Assignment and Acceptance
Exhibit J - [Reserved]
Exhibit K - Form of New Bank Supplement
Exhibit L - Form of Commitment Increase Supplement
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AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT, dated as of
December 18, 2003, among:
(i) ARROW ELECTRONICS, INC., a New York corporation
(the "Company");
(ii) the SUBSIDIARY BORROWERS (as hereinafter
defined);
(iii) the several banks and other financial
institutions from time to time parties to this Agreement (the
"Banks");
(iv) BANK OF AMERICA, N.A., THE BANK OF NOVA SCOTIA,
BNP PARIBAS and FLEET NATIONAL BANK, as syndication agents for
the Banks hereunder (in such capacity, the "Syndication
Agents"); and
(v) JPMORGAN CHASE BANK, as administrative agent for
the Banks hereunder (in such capacity, the "Administrative
Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Banks to make available
a three year revolving credit facility that amends and restates the Amended and
Restated Credit Agreement, dated as of February 22, 2001, among the Company,
certain of its subsidiaries, certain financial institutions, JPMorgan Chase
Bank, as administrative agent, and others (as in effect on the date hereof, the
"Existing Credit Agreement"); and
WHEREAS, the Banks are willing to make such credit facility
available upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree that, effective as
of the Closing Date (as defined below), the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank as its prime rate in effect at its principal office
in New York City (the Prime Rate
Arrow Electronics Credit Agreement
2
not being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the C/D Reserve
Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such
day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the ABR shall be
determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the ABR
due to a change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business
on the effective day of such change in the Prime Rate, the Base CD Rate
or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans denominated in Dollars the rate of interest
applicable to which is based upon the ABR.
"Acceleration Date": any date on which the Commitments shall
have been terminated and/or the Loans shall have been declared
immediately due and payable pursuant to Section 12.
"Additional Local Currencies": Australian Dollars, Singapore
Dollars, New Taiwan Dollars and any other available and freely
convertible non-Dollar currency selected by the Company and approved by
the Administrative Agent in the manner described in subsection 14.1(b).
Arrow Electronics Credit Agreement
3
"Adjusted Consolidated EBITDA": for any fiscal period, without
duplication (a) the Consolidated Net Income of the Company and its
Subsidiaries for such period, plus (b) to the extent deducted from
earnings in determining Consolidated Net Income for such period, the
sum, in each case for such period, of income taxes, interest expense,
depreciation expense, amortization expense, including amortization of
any goodwill or other intangibles, minus (c) to the extent included in
determining Consolidated Net Income for such period, non-cash equity
earnings of unconsolidated Affiliates, plus (d) to the extent excluded
in determining Consolidated Net Income for such period, cash
distributions received by the Company from unconsolidated Affiliates
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 period in accordance with Financial
Accounting Standards Board's Statement of Financial Accounting
Standards No. 142, all as determined on a consolidated basis in
accordance with GAAP plus (f) gains or losses related to the early
extinguishment of notes, bonds or other fixed income investments plus
(g) gains or losses due to integration or restructuring charges to the
extent disclosed in public filings; provided that in determining
Adjusted Consolidated EBITDA for any period of four consecutive fiscal
quarters during which any business is acquired by the Company, such
Adjusted Consolidated EBITDA shall be measured on a pro forma basis to
include the consolidated EBITDA of the acquired business (determined
for such business in the manner Adjusted Consolidated EBITDA is
determined for the Company, as described above in this definition),
plus identifiable, board-approved and publicly announced
acquisition-related synergies which are expected to be realized over a
twelve-month period following such acquisition.
"Administrative Agent": as defined in the preamble hereto.
"Administrative Schedule": Schedule IV to this Agreement,
which contains interest rate definitions and administrative information
in respect of each Currency and each Type of Loan.
"Affected Bank": any Bank affected by the events described in
subsection 7.4, 7.5 or 7.6, as the case may be, but only for the period
during which such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person or (b) any
Person who is a director or officer of the Company or any of its
Subsidiaries. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (i) vote 10% or more
of the securities having ordinary voting power for the election of
directors of such Person or (ii) direct or cause the direction of the
management and policies of such Person, whether by contract or
otherwise.
"Aggregate Commitments": the aggregate amount of the
Commitments hereunder.
Arrow Electronics Credit Agreement
4
"Aggregate Committed Outstandings": the aggregate outstanding
principal or face amount of the Committed Rate Loans, Swing Line Loans,
Letters of Credit and Local Currency Loans hereunder.
"Agreement": this Amended and Restated Three Year Credit
Agreement, as amended, supplemented or otherwise modified from time to
time.
"Allocable Share": as to any Assenting Bank at any time, a
fraction, the numerator of which shall be the Commitment of such
Assenting Bank then in effect and the denominator of which shall be the
aggregate of the Commitments of all Assenting Banks then in effect.
"Applicable Margin": for each Type of Loan for any day, the
rate per annum determined based upon the Rating in effect on such date
by both S&P and Xxxxx'x set forth under the relevant column heading
below opposite such Rating:
Applicable Margin (in Applicable Margin (in
Rating basis points) for basis points) for ABR
(S&P/Xxxxx'x) Eurocurrency Loans Loans
---------------------------------- --------------------- ---------------------
Greater than or equal to BBB/Baa2 105.0 5
Greater than or equal to BBB-/Baa3 125.0 25
Greater than or equal to BB+/Ba1 170.0 70
Less than BB+/Ba1 185.0 85
; provided that, in the event that the Ratings of S&P and Xxxxx'x do
not coincide, (i) the Applicable Margin set forth above opposite the
lower of such Ratings will apply if the Ratings differ by only one
level, (ii) the Applicable Margin consistent with the Rating one level
above the lower Rating will apply if the ratings differ by two or more
levels, and (iii), if there is no Rating in effect, the Applicable
Margin will be based on the Rating of less than BB+/Ba1.
"Application": an application, in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank to
issue a Letter of Credit.
"Arranger": JPMorgan Securities Inc., as sole advisor, sole
lead arranger and sole bookrunner.
"Arrow Note Documents": the collective reference to the
Indenture dated as of January 15, 1997 between the Company and The Bank
of New York (as successor to Bank of Montreal Trust Company), as
Trustee, all supplemental indentures in respect thereof, and all notes
issued thereunder and under any such supplemental indenture, as any
such document may be amended, restated, supplemented or otherwise
modified and in effect from time to time.
Arrow Electronics Credit Agreement
5
"Assenting Bank": as defined in subsection 7.7(a).
"Assignee": as defined in subsection 14.6(c).
"Assignment and Acceptance": each Assignment and Acceptance,
substantially in the form of Exhibit I, executed and delivered pursuant
to subsection 14.6(c).
"Available Foreign Currencies": (i) with respect to Committed
Rate Loans and Swing Line Loans, Pounds Sterling, euro, Hong Kong
Dollars and Swedish Kroner, and any other currency agreed upon by the
Company, the Administrative Agent and all of the Banks, and (ii) with
respect to Competitive Advance Loans, any currency agreed upon by the
Borrower of such Competitive Advance Loan and the Bank that makes such
Competitive Advance Loan.
"Banks": as defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System
or any successor.
"Borrowers": the collective reference to the Company, the
Subsidiary Borrowers and the Local Currency Borrowers.
"Borrowing Date": any Business Day on which the Company or any
Subsidiary Borrower requests the Banks to make Loans hereunder.
"Borrowing Percentage": (a) with respect to Committed Rate
Loans denominated in Dollars to be made by any Bank at any time, the
ratio (expressed as a percentage) of the amount of such Bank's Undrawn
Commitment at such time to the aggregate amount of the Undrawn
Commitments of all the Banks at such time; provided, that in
determining any Bank's Undrawn Commitment for purpose of determining
such Bank's Borrowing Percentage of any such Committed Rate Loans whose
proceeds will be simultaneously applied to repay Swing Line Loans or
Local Currency Loans or to pay Reimbursement Obligations, such Bank's
Commitment Percentage of the amount of such Swing Line Loans and
Reimbursement Obligations, and the amount of such Local Currency Loans
owing to such Bank, will not be considered Committed Exposure of such
Bank (such Borrowing Percentage of each Bank at any time to be
calculated by the Administrative Agent on the basis of its most recent
calculations of the Undrawn Commitments of the Banks) and (b) with
respect to Committed Rate Loans denominated in any Available Foreign
Currency to be made by any Bank at any time, a percentage equal to such
Bank's Foreign Currency Commitment Percentage in the Currency of such
Committed Rate Loans.
"Business": as defined in subsection 8.18(b).
"Business Day": (a) when such term is used in respect of any
amount denominated or to be denominated in (i) any Available Foreign
Currency, a London Banking Day which is also a day other than a
Saturday or Sunday on which banks are open for general banking business
in (x) the city which is the principal financial center of
Arrow Electronics Credit Agreement
6
the country of issuance of such Available Foreign Currency, (y) in the
case of euro only, Frankfurt am Main, Germany (or such other principal
financial center as the Administrative Agent may from time to time
nominate for this purpose) and (z) New York City and (ii) Dollars, a
London Banking Day which is also a day other than a Saturday or Sunday
on which banks are open for general banking business in New York City
and (b) when such term is used for the purpose of determining the date
on which the Eurocurrency Rate is determined under this Agreement for
any Loan denominated in euro for any Interest Period therefor and for
purposes of determining the first and last day of any Interest Period,
references in this Agreement to Business Days shall be deemed to be
references to Target Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan,
the net annual assessment rate (rounded upward to the nearest 1/100th
of 1%) determined by JPMorgan Chase Bank to be payable on such day to
the Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of JPMorgan
Chase Bank in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time deposits
in Dollars having a maturity of 30 days or more.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP; and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, options or rights
to purchase any of the foregoing.
"Change in Control": one or more of the following events:
(a) less than a majority of the members of the
Company's board of directors shall be persons who either (i)
were serving as directors on the Closing Date or (ii) were
nominated as directors and approved by the vote of the
majority of the directors who are directors referred to in
clause (i) above or this clause (ii); or
(b) the stockholders of the Company shall approve any
plan or proposal for the liquidation or dissolution of the
Company; or
Arrow Electronics Credit Agreement
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(c) a Person or group of Persons acting in concert
(other than the direct or indirect beneficial owners of the
Capital Stock of the Company as of the Closing Date) shall, as
a result of a tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise, have become the
direct or indirect beneficial owner (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended from time to time) of securities of the Company
representing 40% or more of the combined voting power of the
outstanding voting securities for the election of directors or
shall have the right to elect a majority of the board of
directors of the Company.
"Closing Date": the date on which the conditions precedent set
forth in subsection 9.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, the obligation of such Bank to
make and/or acquire participating interests in Committed Rate Loans or
Swing Line Loans hereunder and/or under Local Currency Facilities and
issue and/or acquire participating interests in Letters of Credit
hereunder in an aggregate Dollar Equivalent Amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule I under the caption "Dollar Commitment Amount", as
such amount may be changed from time to time in accordance with the
provisions of this Agreement.
"Commitment Increase Notice": as defined in subsection
2.10(a).
"Commitment Increase Supplement": as defined in subsection
2.10(c).
"Commitment Percentage": as to any Bank at any time, the
percentage which such Bank's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall have
expired or terminated, the percentage which the amount of such Bank's
Exposure at such time constitutes of the aggregate amount of the
Exposure of all the Banks at such time).
"Commitment Period": the period from and including the Closing
Date to and including the earliest of (i) the Termination Date, (ii)
the date on which an Early Termination Event shall have occurred or
(iii) such other date on which the Commitments shall terminate as
provided herein.
"Committed Exposure": as to any Bank, the sum of (a) the
aggregate Dollar Equivalent Amount of the principal amount of all
outstanding Committed Rate Loans and Local Currency Loans made by such
Bank or its Local Currency Bank affiliates, agencies or branches plus
(b) such Bank's Commitment Percentage of the aggregate Dollar
Equivalent Amount of the principal or face amount of all outstanding
Swing Line Loans and L/C Obligations.
"Committed Rate Loan": as defined in subsection 2.1; a
Committed Rate Loan bearing interest based upon the ABR shall be a
"Committed Rate ABR Loan", and a
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Committed Rate Loan bearing interest based upon a Eurocurrency Rate
shall be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Company and which is treated as a single employer under Section 414
of the Code.
"Company": as defined in the preamble hereto.
"Company Guarantee": the Guarantee of the Company,
substantially in the form of Exhibit F-1, as amended, supplemented or
otherwise modified from time to time.
"Competitive Advance Loan": as defined in subsection 3.1.
"Competitive Advance Loan Offer": with respect to any
Competitive Advance Loan Request in any Currency, an offer from a Bank
in respect of such Competitive Advance Loan Request, containing the
information in respect of such Competitive Advance Loan Offer and
delivered to the Person, in the manner and by the time specified for a
Competitive Advance Loan Offer in respect of such Currency in the
Administrative Schedule.
"Competitive Advance Loan Request": with respect to any
Competitive Advance Loan in any Currency, a request from the Specified
Borrower in respect of such Loan, containing the information in respect
of such Competitive Advance Loan and delivered to the Person, in the
manner and by the time specified for a Competitive Advance Loan Request
in respect of such Currency in the Administrative Schedule.
"Consolidated Cash Interest Expense": for any period, (a) the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" or any like caption on a consolidated income
statement of the Company and its Subsidiaries minus (b) the amount of
non-cash interest (including interest paid by the issuance of
additional securities) included in such amount; provided that in the
case of any Permitted Receivables Securitization, "Consolidated Cash
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 period by the
special purpose entity to the Receivable Financiers under such
Permitted Receivables Securitization; provided, further that, in
computing "Consolidated Cash Interest Expense" for the period ending
December 31, 2003 the Company shall be permitted to exclude its net
interest expense related to the 6.875% Senior Notes due 2013 issued by
the Company pursuant to the Indenture dated January 15, 1997 between
the Company and The Bank of New York in an amount not to exceed
$10,000,000.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) Adjusted Consolidated EBITDA to (b) Consolidated Cash
Interest Expense for such period.
Arrow Electronics Credit Agreement
9
"Consolidated Leverage Ratio": on any date, the ratio of (a)
Consolidated Total Debt on such date to (b) Adjusted Consolidated
EBITDA for the period of four consecutive fiscal quarters most recently
ended on or prior to such date.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or loss) of the Company and its Subsidiaries
after excluding all unusual, extraordinary and non-recurring gains and
after adding all unusual, extraordinary and non-recurring losses, in
all cases of the Company and its Subsidiaries determined on a
consolidated basis during the relevant period in accordance with GAAP.
"Consolidated Total Debt": at the date of determination
thereof, (i) all Indebtedness of the Company and its Subsidiaries
(excluding Indebtedness of the Company owing to any of its Subsidiaries
or Indebtedness of any Subsidiary of the Company owing to the Company
or any other Subsidiary of the Company), as determined on a
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
Receivables Financiers to the special purpose entity under any
Permitted Receivables Securitization at the date of determination.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Convertible Debt": the zero coupon convertible debentures of
the Company due 2021.
"Credit Documents": this Agreement, the Applications, the
Subsidiary Guarantees, the Company Guarantee and the Local Currency
Facilities.
"Currencies": the collective reference to Dollars and Foreign
Currencies.
"Default": any of the events specified in Section 12, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Disposition": with respect to any Property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other
disposition thereof; and the terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollar Equivalent Amount": with respect to (i) the amount of
any Foreign Currency on any date, the equivalent amount in Dollars of
such amount of Foreign Currency, as determined by the Administrative
Agent using the Exchange Rate and (ii) any amount in Dollars, such
amount.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such
Person organized under the laws of a State of the United States or the
District of Columbia.
Arrow Electronics Credit Agreement
10
"Domestic Subsidiary Borrower": each Subsidiary of the Company
listed as a Domestic Subsidiary Borrower in Schedule II as amended from
time to time in accordance with subsection 14.1(b)(i).
"Early Termination Event": the date on which the Company fails
to meet the Threshold Liquidity Test; provided that no Early
Termination Event shall occur and no Threshold Liquidity Test shall be
required so long as (a) there are no Loans outstanding and L/C
Obligations are less than $50,000,000, (b) the Company's Consolidated
Leverage Ratio is less than or equal to 4.35 to 1.00 or (c) there is no
outstanding balance on the Convertible Debt.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including, without limitation, common
law) regulating, relating to or imposing liability or standards of
conduct concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"euro": the single currency of participating member states of
the European Union.
"Eurocurrency Loan": any Loan bearing interest based upon a
Eurocurrency Rate.
"Eurocurrency Rate": in respect of Dollars and each Available
Foreign Currency, the rate determined as the Eurocurrency Rate for
Dollars or such Available Foreign Currency in the manner set forth in
the Administrative Schedule.
"European Subsidiaries": as of any date, any Subsidiary of the
Company that is domiciled in Europe.
"Event of Default": any of the events specified in Section 12,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any Foreign Currency on any
date, the rate at which such Foreign Currency may be exchanged into
Dollars, as set forth on such date on the relevant Reuters currency
page at or about 11:00 a.m. London time on such date. In the event that
such rate does not appear on any Reuters currency page, the "Exchange
Rate" with respect to such Foreign Currency shall be determined by
reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and
the Company or, in the absence of such agreement, such "Exchange Rate"
shall instead be the Administrative Agent's spot rate of exchange in
the interbank market where its foreign currency exchange operations in
respect of such Foreign Currency are then being conducted, at or about
10:00 a.m., local time, at such
Arrow Electronics Credit Agreement
11
date for the purchase of Dollars with such Foreign Currency, for
delivery two Business Days later; provided, that if at the time of any
such determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be
conclusive absent manifest error (without prejudice to the
determination of the reasonableness of such method).
"Existing Credit Agreement": as defined in the recitals
hereof.
"Existing Joint Ventures": the Persons specified on Schedule
1.1.
"Existing Subsidiary Guarantee": the Subsidiary Guarantee
executed on February 22, 2001 by Support Net, Inc., an Indiana
corporation, Gates/Arrow Distribution, Inc., a Delaware corporation,
and Mid Range Open Computing Alliance, Inc., a Delaware corporation, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Exposure": at any date, (a) as to all the Banks, the
aggregate Dollar Equivalent Amount of (i) the outstanding principal
amount of all Loans then outstanding and (ii) all L/C Obligations then
outstanding, (b) as to any Bank, the aggregate Dollar Equivalent Amount
of (i) the outstanding principal amount of all Committed Rate Loans,
Local Currency Loans and Competitive Advance Loans made by such Bank or
its Local Bank affiliates, branches or agencies and (ii) such Bank's
Commitment Percentage of the outstanding principal amount of all Swing
Line Loans and L/C Obligations and (c) as to any Borrower, the
aggregate Dollar Equivalent Amount of the outstanding principal amount
of all Loans to such Borrower then outstanding.
"Extensions of Credit": the collective reference to the making
of any Loans (including, without limitation, participating in any Swing
Line Loans) and the issuance of, or participation in, any Letters of
Credit but excluding the continuation or conversion of any Loan
pursuant to a Notice of Conversion or a Notice of Continuation.
"Facility Fee Rate": a rate per annum determined based upon
the Rating in effect on such date by both S&P and Xxxxx'x set forth
under the relevant column heading below opposite such Rating:
Rating
(S&P/Xxxxx'x) Facility Fee Rate (in basis points)
---------------------------------- -----------------------------------
Greater than or equal to BBB/Baa2 20.0
Greater than or equal to BBB-/Baa3 25.0
Greater than or equal to BB+/Ba1 30.0
Less than BB+/Ba1 40.0
Arrow Electronics Credit Agreement
12
; provided that, in the event that the Ratings of S&P and Xxxxx'x do
not coincide, (i) the Facility Fee Rate set forth above opposite the
lower of such Ratings will apply if the Ratings differ by only one
level, (ii) the Facility Fee Rate consistent with the Rating one level
above the lower Rating will apply if the ratings differ by two or more
levels, and (iii), if there is no Rating in effect, the Facility Fee
Rate will be based on the Rating of less than BB+/Ba1.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Foreign Currencies": the collective reference to the
Available Foreign Currencies and the Additional Local Currencies.
"Foreign Currency Commitment": as to any Bank and any
Available Foreign Currency, the obligation of such Bank to make
Committed Rate Loans hereunder denominated in such Available Foreign
Currency in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Bank's name on
Schedule I under the caption "[Name of applicable Available Foreign
Currency] Commitment Amount", as such amount may be changed from time
to time in accordance with the provisions of this Agreement.
"Foreign Currency Commitment Percentage": as to any Bank and
any Available Foreign Currency at any time, the percentage which such
Bank's Foreign Currency Commitment in such Available Foreign Currency
then constitutes of the aggregate Foreign Currency Commitments of all
Banks in such Available Foreign Currency.
"Foreign Currency Exposure": at any date, the aggregate Dollar
Equivalent Amount of (a) the outstanding principal amount of all Loans
then outstanding which are denominated in a currency other than Dollars
and (b) all L/C Obligations then outstanding which are denominated in a
currency other than Dollars.
"Foreign Currency Exposure Sublimit": at any date, (a) with
respect to euros, a Dollar Equivalent Amount equal to $300,000,000, (b)
with respect to Pounds Sterling, a Dollar Equivalent Amount equal to
$200,000,000, (c) with respect to Hong Kong Dollars, a Dollar
Equivalent Amount equal to $100,000,000, and (d) with respect to
Swedish Kroner, a Dollar Equivalent Amount equal to $100,000,000.
"Foreign Subsidiary": any Subsidiary that is not a Domestic
Subsidiary.
"Foreign Subsidiary Borrower": each Subsidiary of the Company
listed as a Foreign Subsidiary Borrower in Schedule II as amended from
time to time in accordance with subsection 14.1(b)(i); provided that
with respect to any Subsidiary for which a Foreign Subsidiary Opinion
has not previously been delivered, if the aggregate Exposure of such
Subsidiary owing to all Banks exceeds $20,000,000 for a period of 30
consecutive days, then, unless a Foreign Subsidiary Opinion is
delivered within 30 days after the end of such period, such Subsidiary
shall cease to be a Foreign Subsidiary
Arrow Electronics Credit Agreement
13
Borrower 30 days after the end of such period with respect to all
Exposure of such Subsidiary owing to the Banks in excess of
$20,000,000.
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agent and the Banks
concluding that such Foreign Subsidiary Borrower and the Credit
Documents to which it is a party substantially comply with the matters
listed on Exhibit G-3 hereto, with such deviations therefrom as the
Administrative Agent shall consent (such consent not to be unreasonably
withheld).
"Funding Office": (i) for each Type of Committed Rate Loan and
each Currency, the Funding Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as
agreed by the Borrower that borrows such Competitive Advance Loan, the
Bank that makes such Competitive Advance Loan and the Administrative
Agent.
"Funding Time": (i) for each Type of Committed Rate Loan and
each Currency, the Funding Time set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as
agreed by the Borrower that borrows such Competitive Advance Loan, the
Bank that makes such Competitive Advance Loan and the Administrative
Agent.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governing Documents": as to any Person, the certificate or
articles of incorporation and by-laws or other organizational or
governing documents of such Person.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary
Arrow Electronics Credit Agreement
14
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Company in good faith.
"Guarantor": the Company or any Subsidiary in its capacity as
a party to the Company Guarantee or a Subsidiary Guarantee, as the case
may be.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any
swap, futures, forward or option agreements or other agreements or
arrangements designed to limit or eliminate the risk and/or exposure of
a Person to fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or
affiliates which from time to time enter into Hedging Agreements with
the Company or any of its Subsidiaries.
"Increasing Bank": as defined in subsection 2.10(c).
"Indebtedness": of any Person at any date, without
duplication, (a) the principal amount of all indebtedness of such
Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with
customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) the portion of all obligations of
such Person under Financing Leases which must be capitalized in
accordance with GAAP, (d) the principal or stated amount of all
obligations of such Person in respect of letters of credit, banker's
acceptances or similar obligations issued or created for the account of
such Person, (e) all liabilities arising under Hedging Agreements of
such Person, (f) the principal or stated amount of all Guarantee
Obligations of such Person (other than guarantees by the Company or any
Subsidiary in respect of current trade liabilities of the Company or
any Subsidiary incurred in the ordinary course of business and payable
in accordance with customary terms), and (g) the principal amount of
all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
Arrow Electronics Credit Agreement
15
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Committed
Rate Eurocurrency Loan having an Interest Period of three months or
less, the last day of such Interest Period, (c) as to any Committed
Rate Eurocurrency Loan having an Interest Period longer than three
months, each day which is three months after the first day of such
Interest Period and the last day of such Interest Period, (d) as to any
Swing Line Loan, the last Business Day of each calendar month during
which such Swing Line Loan is outstanding, and (e) as to any
Competitive Advance Loan, the date or dates set forth in the applicable
Competitive Advance Loan Request or otherwise agreed upon by the
relevant Borrower and Bank at the time the terms of such Competitive
Advance Loan are determined as provided in subsection 3.2.
"Interest Period": with respect to any Committed Rate
Eurocurrency Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower in its Notice
of Borrowing or Notice of Conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower by a Notice
of Continuation with respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date;
and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate
swap, interest rate cap or other interest rate hedge or arrangement
under which the Company is a party or a beneficiary.
"Issuing Bank": in respect of any Currency, each Bank listed
as an Issuing Bank in Schedule III in respect of such Currency.
Arrow Electronics Credit Agreement
16
"Issuing Office": in respect of each Issuing Bank, the Issuing
Office set forth for such Issuing Bank in Schedule III.
"Joinder Agreement": each Joinder Agreement, substantially in
the form of Exhibit A, from time to time executed and delivered
hereunder pursuant to subsection 14.1 (b).
"L/C Commitment": the Dollar Equivalent Amount of
$100,000,000.
"L/C Obligations": at any time, an amount equal to the sum of
the Dollar Equivalent Amount of (a) the aggregate then undrawn and
unexpired amount of the then outstanding Letters of Credit and (b) the
aggregate amount of drawings under Letters of Credit which have not
then been reimbursed pursuant to subsection 5.5(a).
"L/C Participant": in respect of each Letter of Credit, each
Bank (other than the Issuing Bank in respect of such Letter of Credit)
in its capacity as the holder of a participating interest in such
Letter of Credit.
"Letters of Credit": as defined in subsection 5.1(b).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any Committed Rate Loan, Competitive Advance Loan,
Swing Line Loan or Local Currency Loan.
"Loan Parties": the Company and each Subsidiary of the Company
which is a party to a Credit Document.
"Local Currency Bank": any Bank (or, if applicable, any
affiliate, branch or agency thereof) party to a Local Currency
Facility.
"Local Currency Bank Maximum Borrowing Amount": as defined in
subsection 6.1(b).
"Local Currency Borrower": each Subsidiary of the Company
organized under the laws of a jurisdiction outside the United States
that the Company designates as a "Local Currency Borrower" in a Local
Currency Facility Addendum.
"Local Currency Facility": any Qualified Credit Facility that
the Company designates as a "Local Currency Facility" pursuant to a
Local Currency Facility Addendum or that is set forth on Schedule 8.10.
Arrow Electronics Credit Agreement
17
"Local Currency Facility Addendum": a Local Currency Facility
Addendum received by the Administrative Agent, substantially in the
form of Exhibit C and conforming to the requirements of Section 6.
"Local Currency Facility Agent": with respect to each Local
Currency Facility, the Local Currency Bank acting as agent for the
Local Currency Banks party thereto.
"Local Currency Facility Maximum Borrowing Amount": as defined
in subsection 6.1(b).
"Local Currency Loan": any loan made pursuant to a Local
Currency Facility.
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Company and its Subsidiaries taken as a whole, (b)
the ability of the Company to perform its obligations under this
Agreement or other Credit Documents or (c) the validity or
enforceability of this Agreement or any of the other Credit Documents
or the rights or remedies of the Administrative Agent or the Banks
hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in subsection 2.10(b).
"New Bank Supplement": as defined in subsection 2.10(b).
"Non-Excluded Taxes": as defined in subsection 7.6.
"Notice of Borrowing": with respect to a Committed Rate Loan
of any Type in any Currency, a notice from the Specified Borrower in
respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time
specified for a Notice of Borrowing in respect of such Currency and
such Type of Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate
Eurocurrency Loan in any Currency, a notice from the Specified Borrower
in respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the
Arrow Electronics Credit Agreement
18
manner and by the time specified for a Notice of Continuation in
respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan
in Dollars which a Specified Borrower wishes to convert from a
Eurocurrency Loan to an ABR Loan, or from an ABR Loan to a Eurocurrency
Loan, as the case may be, a notice from such Borrower setting forth the
amount of such Loan to be converted, the date of such conversion and,
in the case of conversions of ABR Loans to Eurocurrency Loans, the
length of the initial Interest Period applicable thereto. Each Notice
of Conversion shall be delivered to the Administrative Agent at its
address set forth in subsection 14.2 and shall be delivered before
12:00 Noon, New York City time, on the Business Day of the requested
conversion in the case of conversions to ABR Loans, and before 12:00
Noon, New York City time, three Business Days before the requested
conversion in the case of conversions to Eurocurrency Loans.
"Notice of Local Currency Outstandings": with respect to each
Local Currency Facility Agent, a notice from such Local Currency
Facility Agent containing the information, delivered to the Person, in
the manner and by the time, specified for a Notice of Local Currency
Outstandings in the Administrative Schedule.
"Notice of Prepayment": with respect to prepayment of any
Committed Rate Loan of any Type in any Currency, a notice from the
Specified Borrower in respect of such Loan, containing the information
in respect of such prepayment and delivered to the Person, in the
manner and by the time specified for a Notice of Prepayment in respect
of such Currency and such Type of Loan in the Administrative Schedule.
"Notice of Swing Line Borrowing": with respect to a Swing Line
Loan of any Type in any Currency, a notice from the Specified Borrower
in respect of such Loan, containing the information in respect of such
Swing Line Loan and delivered to the Person, in the manner and by the
time agreed by the Company and the applicable Swing Line Bank in
respect of such Currency and such Type of Loan.
"Notice of Swing Line Outstandings": with respect to each
Swing Line Bank, a notice from such Swing Line Bank containing the
information, delivered to the Person, in the manner and by the time,
specified for a Notice of Swing Line Outstandings in the Administrative
Schedule.
"Notice of Swing Line Refunding": with respect to each Swing
Line Bank, a notice from such Swing Line Bank containing the
information, delivered to the Person, in the manner and by the time,
specified for a Notice of Swing Line Refunding in the Administrative
Schedule.
"Objecting Bank": as defined in subsection 14.1(e).
"Offered Increase Amount": as defined in subsection 2.10(a).
"Participant": as defined in subsection 14.6(b).
Arrow Electronics Credit Agreement
19
"Payment Office": (i) for each Type of Committed Rate Loan and
each Currency, the Payment Office set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as
agreed by the Borrower that borrows such Competitive Advance Loan, the
Bank that makes such Competitive Advance Loan and the Administrative
Agent.
"Payment Time": for each Type of Committed Rate Loan and each
Currency, the Payment Time set forth in respect thereof in the
Administrative Schedule and (ii) for each Competitive Advance Loan, as
agreed by the Borrower that borrows such Competitive Advance Loan, the
Bank that makes such Competitive Advance Loan and the Administrative
Agent.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": on any date of determination, the
acquisition of all or part of any Person or business unit in any
transaction or series of transactions by the Company or any Subsidiary.
"Permitted Joint Venture": on any date of determination, a
limited-purpose corporation, partnership, limited liability company,
joint venture or other similar legal arrangement (whether created by
contract or conducted through a separate legal entity, but excluding
any Subsidiary) now or hereafter formed or invested in by the Company
or any of its Subsidiaries with another Person or Persons in order to
conduct a common venture or enterprise with such Person or Persons.
"Permitted Receivables Securitization": any transaction
involving one or more sales, contributions or other conveyances by the
Company or any Subsidiary of any Receivables to a special purpose
entity (which may be a Subsidiary or Affiliate of the Company), which
special purpose entity finances such sales, contributions or other
conveyances by in turn conveying an interest in such Receivables to one
or more Receivable Financiers, provided that such transaction shall not
involve any recourse to the Company or any Subsidiary (other than such
special purpose entity) for any reason other than (i) repurchases of
non-eligible Receivables, (ii) indemnification for losses (including
any adjustments for dilutions), other than credit losses related to the
Receivables conveyed in such transaction and (iii) payment of costs,
fees, expenses and indemnities relating to such transaction.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
Arrow Electronics Credit Agreement
00
"Xxxxxx", "Xxxxxx Xxxxxxxx" and "Sterling": the lawful
currency of the United Kingdom.
"Properties": as defined in subsection 8.18(a).
"Qualified Credit Facility": a credit facility (a) providing
for one or more Local Currency Banks to make loans denominated in an
Additional Local Currency to a Local Currency Borrower, (b) providing
for such loans to bear interest at a rate or rates determined by the
Company and such Local Currency Bank or Local Currency Banks and (c)
otherwise conforming to the requirements of Section 6.
"Ratings": the actual or implied senior unsecured non-credit
enhanced debt ratings of the Company in effect from time to time by
Moody's or S&P, as the case may be, the bank debt rating of the Company
in effect from time to time by Moody's or the corporate credit rating
of the Company in effect from time to time by S&P.
"Re-Allocation Date": as defined in subsection 2.10(e).
"Receivables": all accounts receivable of the Company or any
of its Subsidiaries, and all proceeds thereof and rights (contractual
and other) and collateral related thereto.
"Receivable Financier": any Person (other than a Subsidiary or
Affiliate of the Company) that finances the acquisition by a special
purpose entity of Receivables from the Company or any Subsidiary.
"Register": as defined in subsection 14.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": in respect of each Letter of
Credit, the obligation of the account party thereunder to reimburse the
Issuing Bank for all drawings made thereunder in accordance with
Section 5 and the Application related to such Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Replacement Bank": a bank or financial institution that
assumes certain Commitments and obligations and purchases certain Loans
and rights pursuant to subsection 7.7(b) or 14.1(e).
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Banks": at any time, Banks the Commitment
Percentages of which aggregate more than 50%.
Arrow Electronics Credit Agreement
21
"Requirement of Law": as to any Person, the Governing
Documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": as to any Person, the chief executive
officer, the chairman of the board, the president, the chief financial
officer, the chief accounting officer, any executive or senior vice
president or the treasurer of such Person.
"Restricted Payments": as defined in subsection 11.6.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially
in the form of Exhibit B, executed and delivered pursuant to subsection
14.1.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Specified Borrower": the collective reference to the Company
and the Subsidiary Borrowers.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Subsidiary Borrower": the collective reference to the Foreign
Subsidiary Borrowers and the Domestic Subsidiary Borrowers.
"Subsidiary Guarantee": each of (a) the Existing Subsidiary
Guarantee and (b) each other Subsidiary Guarantee, substantially in the
form of Exhibit F-2, to be executed and delivered from time to time by
any other Domestic Subsidiary pursuant to subsection 10.9, in each
case, as the same may be amended, supplemented or otherwise modified
from time to time.
"Supermajority Banks": at any time, Banks the Commitment
Percentages of which aggregate at least 66 2/3%.
"Swing Line Bank": in respect of any Specified Borrower and
any Currency, each Bank listed as a Swing Line Bank in respect of such
Specified Borrower and Currency in Schedule III.
Arrow Electronics Credit Agreement
22
"Swing Line Currency": in respect of any Specified Borrower,
the Currency set forth for such Specified Borrower in Schedule III.
"Swing Line Limit": in respect of any Specified Borrower, the
amount listed as the Swing Line Limit in respect of such Specified
Borrower in Schedule III, but not in any case for all Specified
Borrowers to exceed a Dollar Equivalent Amount equal to $150,000,000.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line Currency for
each Swing Line Bank, the interest rate agreed from time to time
between the Company and such Swing Line Bank.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined by
the Administrative Agent).
"Termination Date": the earlier of (a) December 18, 2006 and
(b) the date on which an Early Termination Event has occurred.
"Threshold Liquidity": as of September 30, 2005, and as of
each day thereafter through and including February 22, 2006, the sum of
(a) cash and cash equivalents held by the Company and its Subsidiaries,
plus (b) so long as the Company is able to satisfy the conditions to
borrowing set forth in subsection 9.2 (including, but not limited to,
compliance with the financial covenants pursuant to Section 11.1), the
aggregate amount of Undrawn Commitments, plus (c) any amount then
available to the Company under any Permitted Receivables Securitization
or other legally committed credit facilities (provided that, in the
case of this clause (c), the Company is able to satisfy all conditions
to the availability of such financing).
"Threshold Liquidity Test": a test as of September 30, 2005,
and as of each day thereafter through and including February 22, 2006,
whereby the Threshold Liquidity is at least the sum of (i) $350,000,000
plus (ii) the projected accreted value of the remaining outstanding
Convertible Debt at the first put date under the Convertible Debentures
to occur after the date on which the Threshold Liquidity Test is
calculated.
"Total Assets": at a particular date, the assets of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Tranche": the collective reference to Committed Rate
Eurocurrency Loans in any Currency the then current Interest Periods
with respect to all of which begin on the same date and end on the same
later date (whether or not such Loans shall originally have been made
on the same day).
"Transferee": as defined in subsection 14.6(f).
Arrow Electronics Credit Agreement
23
"Type": in respect of any Loan, its character as a Committed
Rate Loan, Competitive Advance Loan or Swing Line Loan, as the case may
be.
"UCC": the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Undrawn Commitment": as to any Bank at any time, the amount
of such Bank's Commitment minus the amount of such Bank's Committed
Exposure at such time but not less than zero.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 as the same may be amended from time to time.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Company and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) The phrases "to the knowledge of the Company" and "of
which any Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Company or any such Subsidiary, as the case may be.
1.3 Accounting Determinations. Unless otherwise specified
herein, all accounting determinations for purposes of calculating or determining
compliance with the terms found in subsection 1.1 or the standards and covenants
found in subsection 11.1 and otherwise to be made under this Agreement shall be
made in accordance with GAAP applied on a basis consistent in all material
respects with that used in preparing the financial statements referred to in
subsection 8.1. If GAAP shall change from the basis used in preparing such
financial statements, the certificates required to be delivered pursuant to
subsection 10.2 demonstrating compliance with the covenants contained herein
shall set forth calculations setting forth the adjustments necessary to
demonstrate how the Company is in compliance with the financial covenants based
upon GAAP as in effect on the Closing Date.
Arrow Electronics Credit Agreement
24
SECTION 2. THE COMMITTED RATE LOANS
2.1 Committed Rate Loans. (a) Subject to the terms and
conditions hereof, each Bank severally agrees to make loans on a revolving
credit basis ("Committed Rate Loans") to any Specified Borrower from time to
time during the Commitment Period; provided, that no Committed Rate Loan shall
be made if, after giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, (i) the aggregate amount of the Exposure of
all the Banks would exceed the aggregate amount of the Commitments, (ii) the
aggregate amount of the Foreign Currency Exposure in respect of any Currency
would exceed the Foreign Currency Exposure Sublimit for such Currency or (iii)
in the case of Committed Rate Loans denominated in an Available Foreign
Currency, the aggregate principal amount of Committed Rate Loans outstanding to
any Bank in such Currency would exceed the Foreign Currency Commitment of such
Bank in such Currency. During the Commitment Period, the Specified Borrowers may
use the Commitments by borrowing, prepaying the Committed Rate Loans in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Committed Rate Loans may be made in Dollars or any
Available Foreign Currency and may from time to time be (i) Committed Rate
Eurocurrency Loans, (ii) in the case of Committed Rate Loans in Dollars only,
Committed Rate ABR Loans or (iii) a combination thereof, as determined by the
relevant Specified Borrower and set forth in the Notice of Borrowing or Notice
of Conversion with respect thereto; provided, that no Committed Rate
Eurocurrency Loan shall be made after the day that is one month prior to the
Termination Date.
2.2 Procedure for Committed Rate Loan Borrowing. Any Specified
Borrower may request the Banks to make Committed Rate Loans on any Business Day
during the Commitment Period by delivering a Notice of Borrowing. Each borrowing
of Committed Rate Loans (other than pursuant to a Swing Line refunding pursuant
to subsection 4.4, pursuant to subsection 5.5(c) or pursuant to subsection 6.3)
shall be in an amount equal to (a) in the case of ABR Loans, $1,000,000 or a
whole multiple of $500,000 in excess thereof (or, if the then aggregate undrawn
amount of the Commitments is less than $1,000,000, such lesser amount) and (b)
in the case of Eurocurrency Loans, (i) if in Dollars, $5,000,000 or increments
of $1,000,000 thereafter, and (ii) if in any Available Foreign Currency, an
amount in such Available Foreign Currency of which the Dollar Equivalent Amount
is at least $5,000,000. Upon receipt of any such Notice of Borrowing from a
Specified Borrower, the Administrative Agent shall promptly notify each Bank
that has a Commitment in the relevant Currency of receipt of such Notice of
Borrowing and of such Bank's Borrowing Percentage of the Committed Rate Loans to
be made pursuant thereto. Subject to the terms and conditions hereof, each Bank
that has a Commitment in the relevant Currency will make its Borrowing
Percentage of each such borrowing available to the Administrative Agent for the
account of such Specified Borrower at the Funding Office, and at or prior to the
Funding Time, for the Currency of such Loan in funds immediately available to
the Administrative Agent in the applicable Currency. The amounts made available
by each Bank will then be made available to such Specified Borrower at the
Funding Office, in like funds as received by the Administrative Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt. (a)
Each Specified Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Bank on the Termination Date (or
such earlier date on which the Loans become
Arrow Electronics Credit Agreement
25
due and payable pursuant to Section 12), the then unpaid principal amount of
each Committed Rate Loan made by such Bank to such Specified Borrower. Each
Specified Borrower hereby further agrees to pay to the Administrative Agent for
the account of each Bank, interest on the unpaid principal amount of the
Committed Rate Loans made to such Specified Borrower from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 2.8.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Specified
Borrower to such Bank resulting from each Committed Rate Loan of such Bank from
time to time, including the amounts of principal and interest payable and paid
to such Bank from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 14.6(d), and a subaccount therein for each Bank, in which
shall be recorded (i) the amount of each Committed Rate Loan made hereunder and
each Interest Period (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Specified Borrower to each Bank under Committed Rate Loans and (iii) the amount
of any sum received by the Administrative Agent from each Specified Borrower in
respect of Committed Rate Loans, and the amount of each Bank's share thereof.
(d) The entries made in the Register and the accounts of each
Bank maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Specified Borrower therein recorded; provided, however, that
the failure of any Bank or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of each Specified Borrower to repay (with applicable interest) the
Committed Rate Loans made to such Specified Borrower by such Bank in accordance
with the terms of this Agreement.
2.4 Termination or Reduction of Commitments. The Company shall
have the right, upon not less than five Business Days' notice to the
Administrative Agent, to terminate the Commitments or, from time to time, to
reduce the amount of the Commitments. Any such reduction shall be in an amount
equal to $5,000,000 or a whole multiple thereof and shall reduce permanently the
Commitments then in effect; provided that the Commitments may not be optionally
reduced at any time to an amount which is less than the amount of the Exposure
of all the Banks at such time; and provided further that the Commitments may not
be reduced to an amount which is less than $50,000,000 unless they are
terminated in full.
2.5 Optional Prepayments. By giving a Notice of Prepayment,
any Specified Borrower may, at any time and from time to time, prepay the
Committed Rate Loans made to such Specified Borrower, in whole or in part,
without premium or penalty (except as provided in subsection 7.8). Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Bank thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 7.8. Partial prepayments shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof or an aggregate principal Dollar Equivalent Amount of at least
$1,000,000 for Loans denominated in a Foreign Currency.
Arrow Electronics Credit Agreement
26
2.6 Conversion and Continuation Options. (a) By giving a
Notice of Conversion, any Specified Borrower may elect from time to time (i) to
convert such Specified Borrower's Eurocurrency Loans in Dollars to ABR Loans or
(ii) to convert such Specified Borrower's ABR Loans to Eurocurrency Loans in
Dollars. Upon receipt of any Notice of Conversion the Administrative Agent shall
promptly notify each relevant Bank thereof. All or any part of Eurocurrency
Loans outstanding in Dollars or ABR Loans may be converted as provided herein,
provided that (i) no ABR Loan may be converted into a Eurocurrency Loan when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Required Banks have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to the Termination Date.
(b) By giving a Notice of Continuation, any Specified Borrower
may continue any of such Specified Borrower's Eurocurrency Loans as Eurocurrency
Loans in the same Currency for additional Interest Periods.
(c) Any Specified Borrower may convert Committed Rate Loans
outstanding in Dollars or one Available Foreign Currency to Committed Rate Loans
in Dollars or a different Currency by repaying such Loans in the first Currency
and borrowing Loans of such different Currency in accordance with the applicable
provisions of this Agreement.
(d) If any Specified Borrower shall fail to timely give a
Notice of Continuation or a Notice of Conversion in respect of any of such
Specified Borrower's Eurocurrency Loans with respect to which an Interest Period
is expiring, such Specified Borrower shall be deemed to have given a Notice of
Continuation for an Interest Period of one month.
2.7 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Committed Rate Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of the Committed Rate
Loans comprising (i) each Tranche in Dollars shall be not less than $5,000,000
and (ii) each Tranche in any Available Foreign Currency shall be not less than
the Dollar Equivalent Amount in such Currency of $5,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate Loans.
(a) Each Committed Rate Eurocurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a rate
per annum equal to the ABR plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any
Committed Rate Loan or (ii) any interest payable thereon shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2% or (y) in the case of
overdue interest, the
Arrow Electronics Credit Agreement
27
rate described in paragraph (b) of this subsection plus 2%, in each case from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest on Committed Rate Loans shall be payable in
arrears on each Interest Payment Date; provided, that interest accruing pursuant
to paragraph (c) of this subsection shall be payable from time to time on
demand.
2.9 Inability to Determine Interest Rate. If on or prior to
the date on which the Eurocurrency Rate is determined for any Interest Period in
respect of any Eurocurrency Loan in any Currency:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that, by
reason of circumstances affecting the relevant market generally,
adequate and reasonable means do not exist for ascertaining the
Eurocurrency Rate for such affected Currency or such affected Interest
Period, or
(b) the Administrative Agent shall have received notice from
Banks having Commitments comprising at least 25% of the aggregate
amount of the Commitments (or, in the case of Loans denominated in an
Available Foreign Currency, Banks having at least 25% of the Foreign
Currency Commitments in such Available Foreign Currency) that the
Eurocurrency Rate determined or to be determined for such affected
Interest Period will not adequately and fairly reflect the cost to such
Banks (as conclusively certified by such Banks) of making or
maintaining their affected Committed Rate Loans during such affected
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the Banks as soon as practicable thereafter. If such notice is given
(x) any Eurocurrency Loans requested to be made in such affected Currency on the
first day of such affected Interest Period shall be made as ABR Loans in Dollars
in the Dollar Equivalent Amount, (y) any Committed Rate Loans that were to have
been converted on the first day of such affected Interest Period from ABR Loans
to Eurocurrency Loans shall be continued as ABR Loans and (z) any Eurocurrency
Loans in such affected Currency that were to have been continued as such shall
be converted, on the first day of such Interest Period, to ABR Loans in Dollars
in the Dollar Equivalent Amount. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans in such affected Currency
shall be made, converted to or continued as such.
2.10 Commitment Increases. (a) At any time after the Closing
Date, provided that no Event of Default shall have occurred and be continuing,
the Borrowers may request an increase of the aggregate Commitments by notice to
the Administrative Agent in writing of the amount (the "Offered Increase
Amount") of such proposed increase (such notice, a "Commitment Increase
Notice"). Any such Commitment Increase Notice must offer each Bank the
opportunity to subscribe for its pro rata share of the increased Commitments;
provided, however, the Borrowers may, with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed), without
offering to each Bank the opportunity to subscribe for its pro rata share of the
increased Commitments, offer to any bank or other financial institution that is
not an existing Bank the opportunity to provide a new Commitment
Arrow Electronics Credit Agreement
28
pursuant to paragraph (b) below. If any portion of the increased Commitments
offered to the Banks as contemplated in the immediately preceding sentence is
not subscribed for by the Banks, the Borrowers may, with the consent of the
Administrative Agent as to any bank or financial institution that is not at such
time a Bank (which consent shall not be unreasonably withheld or delayed), offer
to any existing Bank or to one or more additional banks or financial
institutions the opportunity to provide all or a portion of such unsubscribed
portion of the increased Commitments pursuant to paragraph (b) below.
(b) Any additional bank or financial institution that the
Borrowers select to offer the opportunity to provide any portion of the
increased Commitments, and that elects to become a party to this Agreement and
provide a Commitment, shall execute a New Bank Supplement with the Borrowers and
the Administrative Agent, substantially in the form of Exhibit K (a "New Bank
Supplement"), whereupon such bank or financial institution (a "New Bank") shall
become a Bank for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule I shall be deemed to be amended to add the name and Commitment of such
New Bank, provided that the Commitment of any such New Bank shall be in a
principal amount not less than $10,000,000.
(c) Any Bank that accepts an offer to it by the Borrowers to
increase its Commitment pursuant to this subsection 2.10 shall, in each case,
execute a Commitment Increase Supplement with the Borrowers and the
Administrative Agent, substantially in the form of Exhibit L (a "Commitment
Increase Supplement"), whereupon such Bank (an "Increasing Bank") shall be bound
by and entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased, and Schedule I shall be deemed to be
amended to so increase the Commitment of such Bank.
(d) The effectiveness of any New Bank Supplement or Commitment
Increase Supplement shall be contingent upon receipt by the Administrative Agent
of such corporate resolutions of the Borrowers and legal opinions of counsel to
the Borrowers as the Administrative Agent shall reasonably request with respect
thereto.
(e) (i) Except as otherwise provided in subparagraphs (ii) and
(iii) of this paragraph (e), if any bank or financial institution
becomes a New Bank pursuant to subsection 2.10(b) or any Bank's
Commitment is increased pursuant to subsection 2.10(c), additional
Committed Rate Loans made on or after the date of the effectiveness
thereof (the "Re-Allocation Date") shall be made in accordance with the
pro rata provisions of subsection 5.3 based on the Commitment
Percentages (or relevant Foreign Currency Commitment Percentages, as
the case may be) in effect on and after such Re-Allocation Date (except
to the extent that any such pro rata borrowings would result in any
Bank making an aggregate principal amount of Committed Rate Loans in
excess of its Commitment (or relevant Foreign Currency Commitment, as
the case may be), in which case such excess amount will be allocated
to, and made by, the relevant New Banks and Increasing Banks to the
extent of, and in accordance with the pro rata provisions of subsection
5.3 based on, their respective Commitments (or relevant Foreign
Currency Commitments, as the case may be)). On each Re-Allocation Date,
the Administrative Agent shall deliver a notice to each Bank of the
adjusted Commitment
Arrow Electronics Credit Agreement
29
Percentages after giving effect to any increase in the aggregate
Commitments made pursuant to this subsection 2.10 on such Re-Allocation
Date.
(ii) In the event that on any such Re-Allocation Date there is
an unpaid principal amount of ABR Loans, the applicable Borrower shall
make prepayments thereof and one or more Borrowers shall make
borrowings of ABR Loans and/or Eurocurrency Loans, as the applicable
Borrower shall determine, so that, after giving effect thereto, the ABR
Loans and Eurocurrency Loans outstanding are held as nearly as may be
in accordance with the pro rata provisions of subsection 5.3 based on
such new Commitment Percentages.
(iii) In the event that on any such Re-Allocation Date there
is an unpaid principal amount of Eurocurrency Loans, such Eurocurrency
Loans shall remain outstanding with the respective holders thereof
until the expiration of their respective Interest Periods (unless the
applicable Borrower elects to prepay any thereof in accordance with the
applicable provisions of this Agreement), and on the last day of the
respective Interest Periods the applicable Borrower shall make
prepayments thereof and the applicable Borrowers shall make borrowings
of ABR Loans and/or Eurocurrency Loans so that, after giving effect
thereto, the ABR Loans and Eurocurrency Loans outstanding are held by
all of the Banks as nearly as may be in accordance with the pro rata
provisions of subsection 5.3 based on such new Commitment Percentages.
(f) Notwithstanding anything to the contrary in this
subsection 2.10, no Bank shall have any obligation to increase its Commitment
unless it agrees to do so in its sole discretion.
2.11 Refunding of Committed Rate Loans Denominated in
Available Foreign Currencies. (a) Notwithstanding noncompliance with the
conditions precedent set forth in subsection 9.2, if any Committed Rate Loans
denominated in any Available Foreign Currency (any such Loans, "Specified
Loans") are outstanding on (i) any date on which an Event of Default pursuant to
Section 12(g) shall have occurred with respect to the Company or (ii) any
Acceleration Date, then, at 10:00 A.M., New York City time, on the second
Business Day immediately succeeding (x) the date on which such Event of Default
occurs (in the case of clause (i) above) or (y) such Acceleration Date (in the
case of clause (ii) above), the Administrative Agent shall be deemed to have
received a notice from the Company pursuant to subsection 2.2 requesting that
ABR Loans be made pursuant to subsection 2.1 on such second Business Day in an
aggregate amount equal to the Dollar Equivalent Amount of the aggregate amount
of all Specified Loans, and the procedures set forth in subsection 2.2 shall be
followed in making such ABR Loans. The proceeds of such ABR Loans shall be
applied to repay such Specified Loans.
(b) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 2.11 to repay Specified Loans as required by
such paragraph, effective on the date such ABR Loans would otherwise have been
made, (i) the principal amount of each relevant Specified Loan shall be
converted into Dollars (calculated on the basis of the Exchange Rate as of the
immediately preceding Business Day) ("Converted Specified Loans") and (ii) each
Bank severally, unconditionally and irrevocably agrees that it shall purchase in
Dollars a participating interest in such Converted Specified Loans in an amount
equal to the amount of ABR Loans
Arrow Electronics Credit Agreement
30
which would otherwise have been made by such Bank pursuant to paragraph (a) of
this subsection 2.11. Each Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and the
proceeds of such participation shall be distributed by the Administrative Agent
to each Bank having such Specified Loans in such amount as will reduce the
amount of the participating interest retained by such Bank in the Converted
Specified Loans to the amount of the ABR Loans which were to have been made by
it pursuant to paragraph (a) of this subsection 2.11. All Converted Specified
Loans shall bear interest at the rate which would otherwise be applicable to ABR
Loans. Each Bank shall share on a pro rata basis (calculated by reference to its
participating interest in such Converted Specified Loans) in any interest which
accrues thereon and in all repayments thereof.
(c) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 2.11 to repay Specified Loans as required by
such paragraph and the principal amount of any Specified Loans may not be
converted into Dollars in the manner contemplated by paragraph (b) of this
subsection 2.11, (i) the Administrative Agent shall determine the Dollar
Equivalent Amount of such Specified Loans (calculated on the basis of the
Exchange Rate determined as of the Business Day immediately preceding the date
on which ABR Loans would otherwise have been made pursuant to said paragraph
(a)) and (ii) effective on the date on which ABR Loans would otherwise have been
made pursuant to said paragraph (a), each Bank severally, unconditionally and
irrevocably agrees that it shall purchase in Dollars a participating interest in
such Specified Loans in an amount equal to the amount of ABR Loans which would
otherwise have been made by such Bank pursuant to paragraph (a) of this
subsection 2.11. Each Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and the
proceeds of such participation shall be distributed by the Administrative Agent
to each relevant Bank having Specified Loans in such amount as will reduce the
Dollar Equivalent Amount as of such date of the amount of the participating
interest retained by such Bank in such Specified Loans to the amount of the ABR
Loans which were to have been made by it pursuant to paragraph (a) of this
subsection 2.11. Each Bank shall share on a pro rata basis (calculated by
reference to its participating interest in such Specified Loans) in any interest
which accrues thereon, in all repayments of principal thereof and in the
benefits of any collateral furnished in respect thereof and the proceeds of such
collateral.
(d) If any amount required to be paid by any Bank to any other
Bank pursuant to this subsection 2.11 in respect of any Specified Loan is not
paid to such Bank on the date such payment is due from such Bank, such obligor
Bank shall pay to such obligee Bank on demand an amount equal to the product of
(i) such amount, times (ii) the daily average Federal funds rate, as quoted by
such obligee Bank during the period from and including the date such payment is
required to the date on which such payment is immediately available to such
obligee Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. A
certificate of an obligee Bank submitted to any obligor Bank through the
Administrative Agent with respect to any amounts owing under this subsection (d)
shall be conclusive in the absence of manifest error.
2.12 Certain Borrowings of Committed Rate Loans and Refunding
of Loans. (a) If on any Borrowing Date on which a Specified Borrower has
requested the Banks (the "Specified Foreign Currency Banks") to make Committed
Rate Loans denominated in an Available Foreign Currency (the "Requested
Specified Loans") (i) the principal amount of the
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31
Requested Specified Loans to be made by any Specified Foreign Currency Bank
exceeds the unused amount of the Commitment of such Specified Foreign Currency
Bank in the requested Available Foreign Currency (before giving effect to the
making and payment of any Loans required to be made pursuant to this subsection
2.12 on such Borrowing Date) , (ii) the principal amount of such Requested
Specified Loan, when added to the outstanding principal amount of all other
Committed Rate Loans of such Specified Foreign Currency Banks denominated in the
Available Foreign Currency in which the Requested Specified Loans are to be
made, does not exceed the aggregate amount of such Specified Foreign Currency
Banks' Foreign Currency Commitments in such requested Available Foreign Currency
and (iii) the Dollar Equivalent of the amount of the excess described in the
foregoing clause (i) is less than or equal to the aggregate unused amount of the
Commitments of all Banks other than such Specified Foreign Currency Banks
(before giving effect to the making and payment of any Loans pursuant to this
subsection 2.12 on such Borrowing Date), each Bank other than such Specified
Foreign Currency Banks shall make a Committed Rate Loan denominated in Dollars
to the Company (or any Specified Borrower identified by the Company) on such
Borrowing Date, and the proceeds of such Committed Rate Loans shall be
simultaneously applied to repay outstanding Committed Rate Loans denominated in
Dollars of such Specified Foreign Currency Banks in each case in amounts such
that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from such Specified Foreign Currency Banks of the Requested Specified
Loans, the excess described in the foregoing clause (i) will be eliminated. To
effect such borrowings and repayments, (x) not later than 12:00 Noon, New York
City time, on such Borrowing Date, the proceeds of such Committed Rate Loans
denominated in Dollars shall be made available by each Bank other than such
Specified Foreign Currency Banks to the Administrative Agent at its office
specified in subsection 14.2 in Dollars and in immediately available funds and
the Administrative Agent shall apply the proceeds of such Committed Rate Loans
denominated in Dollars toward repayment of outstanding Committed Rate Loans
denominated in Dollars of such Specified Foreign Currency Banks (as directed by
the Company) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) such Specified Foreign Currency Banks shall, in accordance
with the applicable provisions hereof, make the Requested Specified Loans in an
aggregate amount equal to the amount so requested by the relevant Specified
Borrower and (II) the relevant Borrower shall pay to the Administrative Agent
for the account of the Specified Foreign Currency Banks whose Loans to such
Borrower are repaid on such Borrowing Date pursuant to this subsection 2.12 all
interest accrued on the amounts repaid to the date of repayment, together with
any amounts payable pursuant to subsection 7.8 in connection with such
repayment, provided that the Administrative Agent shall have provided notice to
the Company prior to the making of such Requested Specified Loans that the
making thereof would obligate the Company to pay amounts pursuant to subsection
7.8.
(b) If any borrowing of Committed Rate Loans is required
pursuant to this subsection 2.12, the Company shall notify the Administrative
Agent in the manner provided for Committed Rate Loans in subsection 2.3, except
that the minimum borrowing amounts and threshold multiples in excess thereof
applicable to ABR Loans set forth in subsection 2.3 shall not be applicable to
the extent that such minimum borrowing amounts exceed the amounts of Committed
Rate Loans required to be made pursuant to this subsection 2.12.
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32
SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1 Competitive Advance Loans. (a) Subject to the terms and
conditions hereof, any Specified Borrower may, from time to time during the
Commitment Period, request the Banks to offer bids, and any Bank may, in its
sole discretion, offer such bids, to make competitive advance loans
("Competitive Advance Loans") to such Specified Borrower on the terms and
conditions set forth in such bids. Each Competitive Advance Loan shall bear
interest at the rates, be payable on the dates, and shall mature on the date,
agreed between such Specified Borrower and Bank at the time such Competitive
Advance Loan is made; provided, that (i) each Competitive Advance Loan shall
mature not earlier than 1 day and not later than 180 days, after the date such
Competitive Advance Loan is made and (ii) no Competitive Advance Loan shall
mature after the Termination Date. During the Commitment Period, the Specified
Borrowers may accept bids from Banks from time to time for Competitive Advance
Loans, and borrow and repay Competitive Advance Loans, all in accordance with
the terms and conditions hereof; provided, that no Competitive Advance Loan
shall be made if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, (i) the aggregate amount of
the Exposure of all the Banks would exceed the aggregate amount of the
Commitments, or (ii) the aggregate amount of the Foreign Currency Exposure in
respect of any Currency would exceed the Foreign Currency Exposure Sublimit for
such Currency. Subject to the foregoing, any Bank may, in its sole discretion,
make Competitive Advance Loans in an aggregate outstanding amount exceeding the
amount of such Bank's Commitment.
(b) The Competitive Advance Loans may be made in Dollars or
any Available Foreign Currency, as agreed between the Specified Borrower and
Bank in respect thereof at the time such Competitive Advance Loan is made.
3.2 Procedure for Competitive Advance Loan Borrowing. (a) Any
Specified Borrower may request Competitive Advance Loans by delivering a
Competitive Advance Loan Request. The Administrative Agent shall notify each
Bank promptly by facsimile transmission of the contents of each Competitive
Advance Loan Request received by the Administrative Agent. Each Bank may elect,
in its sole discretion, to offer irrevocably to make one or more Competitive
Advance Loans to the Specified Borrower by delivering a Competitive Advance Loan
Offer to the Administrative Agent.
(b) Before the acceptance time set forth in the applicable
Competitive Advance Loan Request, the Specified Borrower, in its absolute
discretion, shall:
(i) cancel such Competitive Advance Loan Request by
giving the Administrative Agent telephone notice to that
effect, or
(ii) by giving telephone notice to the Administrative
Agent immediately confirmed in writing or by facsimile
transmission, subject to the provisions of subsection 3.2(c),
accept one or more of the offers made by any Bank or Banks
pursuant to subsection 3.2(a) of the amount of Competitive
Advance Loans for each relevant maturity date and reject any
remaining offers made by Banks pursuant to subsection 3.2(a).
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33
(c) The Specified Borrower's acceptance of Competitive Advance
Loans in response to any Competitive Advance Loan Request shall be subject to
the following limitations:
(i) The amount of Competitive Advance Loans accepted
for each maturity date specified by any Bank in its
Competitive Advance Loan Offer shall not exceed the maximum
amount for such maturity date specified in such Competitive
Advance Loan Offer;
(ii) the aggregate amount of Competitive Advance
Loans accepted for all maturity dates specified by any Bank in
its Competitive Advance Loan Offer shall not exceed the
aggregate maximum amount specified in such Competitive Advance
Loan Offer for all such maturity dates;
(iii) the Specified Borrower may not accept offers
for Competitive Advance Loans for any maturity date in an
aggregate principal amount in excess of the maximum principal
amount requested in the related Competitive Advance Loan
Request; and
(iv) if the Specified Borrower accepts any of such
offers, it must accept offers based solely upon pricing for
such relevant maturity date and upon no other criteria
whatsoever and if two or more Banks submit offers for any
maturity date at identical pricing and the Specified Borrower
accepts any of such offers but does not wish to (or by reason
of the limitations set forth in subsection 3.2(c)(iii) cannot)
borrow the total amount offered by such Banks with such
identical pricing, the Administrative Agent shall allocate
offers from all of such Banks in amounts among them pro rata
according to the amounts offered by such Banks (or as nearly
pro rata as shall be practicable).
(d) If the Specified Borrower notifies the Administrative
Agent that a Competitive Advance Loan Request is cancelled, the Administrative
Agent shall give prompt telephone notice thereof to the Banks.
(e) If the Specified Borrower accepts one or more of the
offers made by any Bank or Banks, the Administrative Agent promptly shall notify
each Bank which has made such a Competitive Advance Loan Offer of (i) the
aggregate amount of such Competitive Advance Loans to be made for each maturity
date and (ii) the acceptance or rejection of any offers to make such Competitive
Advance Loans made by such Bank. Before the Funding Time for the applicable
Currency, each Bank whose Competitive Advance Loan Offer has been accepted shall
make available to the Administrative Agent for the account of the Specified
Borrower at the Funding Office for the applicable Currency the amount of
Competitive Advance Loans in the applicable Currency to be made by such Bank, in
immediately available funds.
3.3 Repayment of Competitive Advance Loans; Evidence of Debt.
(a) Each Specified Borrower that borrows any Competitive Advance Loan hereby
unconditionally promises to pay to the Bank that made such Competitive Advance
Loan on the maturity date, as agreed by such Specified Borrower and Bank (or
such earlier date on which all the Loans become due and payable pursuant to
Section 12), the then unpaid principal amount of such
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34
Competitive Advance Loan. Each Specified Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Competitive Advance Loans made by
any Bank to such Specified Borrower from time to time outstanding from the date
thereof until payment in full thereof at the rate per annum, and on the dates,
agreed by such Specified Borrower and Bank at the time such Competitive Advance
Loan is made. All payments in respect of Competitive Advance Loans shall be made
by such Specified Borrower to the Administrative Agent for the account of the
Bank that makes such Competitive Advance Loan to the Payment Office and by the
Payment Time for the applicable Currency.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Specified
Borrower to such Bank resulting from each Competitive Advance Loan of such Bank
from time to time, including the amounts of principal and interest payable and
paid to such Bank from time to time in respect of Competitive Advance Loans. The
entries made in the accounts of each Bank maintained pursuant to this subsection
3.3(b) shall, to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of each Specified Borrower
therein recorded, absent manifest error; provided, however, that the failure of
any Bank to maintain any such account, or any error therein, shall not in any
manner affect the obligation of each Specified Borrower to repay (with
applicable interest) the Competitive Advance Loans made to such Specified
Borrower by such Bank in accordance with the terms of this Agreement.
3.4 Prepayments. Unless otherwise agreed by the Bank making a
Competitive Advance Loan, upon giving a Notice of Prepayment at the address and
time specified in Schedule IV may be optionally prepaid prior to the scheduled
maturity date thereof.
SECTION 4. THE SWING LINE LOANS
4.1 Swing Line Loans. Subject to the terms and conditions
hereof, each Specified Borrower may borrow from such Specified Borrower's Swing
Line Bank swing line loans ("Swing Line Loans") from time to time during the
Commitment Period in a Swing Line Currency of such Specified Borrower; provided,
that no Swing Line Loan shall be made if, after giving effect to the making of
such Loan and the simultaneous application of the proceeds thereof, (i) the
aggregate amount of the Exposure of all the Banks would exceed the aggregate
amount of the Commitments, (ii) the aggregate amount of the Foreign Currency
Exposure in respect of any Currency would exceed the Foreign Currency Exposure
Sublimit for such Currency, or (iii) the aggregate Dollar Equivalent Amount of
all outstanding Swing Line Loans of such Specified Borrower would exceed the
Swing Line Limit for such Specified Borrower or the Dollar Equivalent Amount of
all outstanding Swing Line Loans would exceed $150,000,000. During the
Commitment Period, the Specified Borrowers may borrow and prepay the Swing Line
Loans, in whole or in part, all in accordance with the terms and conditions
hereof.
4.2 Procedure for Swing Line Borrowing. (a) Any Specified
Borrower may borrow Swing Line Loans during the Commitment Period on any
Business Day by giving a Notice of Swing Line Borrowing in respect of such Swing
Line Loan. Subject to the terms and conditions hereof, on the Borrowing Date of
each Swing Line Loan, the relevant Swing Line Bank shall make the proceeds
thereof available to the relevant Specified Borrower in
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35
immediately available funds in the applicable Currency in the manner from time
to time agreed by such Specified Borrower and such Swing Line Bank.
(b) Upon request of the Administrative Agent and on the last
Business Day of each month on which a Swing Line Bank has any outstanding Swing
Line Loans, such Bank shall deliver to the Administrative Agent a Notice of
Swing Line Outstandings. The Administrative Agent will, at the request of any
Swing Line Bank, advise such Swing Line Bank of the Exchange Rate used by the
Administrative Agent in calculating the Dollar Equivalent Amount of Swing Line
Loans of such Swing Line Bank on any date.
4.3 Repayment of Swing Line Loans; Evidence of Debt. (a) Each
Specified Borrower hereby unconditionally promises to pay to its Swing Line Bank
on the Termination Date (or such earlier date on which such Swing Line Loans
become due and payable pursuant to subsection 4.4 or on which all the Loans
become due and payable pursuant to Section 12), the then unpaid principal amount
of all Swing Line Loans made to such Specified Borrower. Each Specified Borrower
hereby further agrees to pay interest on the unpaid principal amount of all
Swing Line Loans made to such Specified Borrower from time to time outstanding
from the date thereof until payment in full thereof at the Swing Line Rate for
the Currency of such Swing Line Loan, payable on the last Business Day of each
calendar month on which such Swing Line Loans are outstanding. All payments in
respect of Swing Line Loans shall be made by such Specified Borrower to its
Swing Line Bank at the address set forth in Schedule III for such Swing Line
Bank and Swing Line Loans in such Currency.
(b) Each Swing Line Bank shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of each Specified
Borrower to such Swing Line Bank resulting from each Swing Line Loan of such
Bank from time to time, including the amounts of principal and interest payable
and paid to such Swing Line Bank from time to time under this Agreement. The
entries made in the accounts of each Swing Line Bank maintained pursuant to this
subsection 4.3(b) shall, to the extent permitted by applicable law, be prima
facie evidence of the existence and amounts of the obligations of each Specified
Borrower therein recorded; provided, however, that the failure of any Swing Line
Bank to maintain any such account, or any error therein, shall not in any manner
affect the obligation of each Specified Borrower to repay (with applicable
interest) the Swing Line Loans made to such Specified Borrower by such Swing
Line Bank in accordance with the terms of this Agreement.
4.4 Allocating Swing Line Loans; Swing Line Loan
Participations. (a) If any Event of Default shall occur and be continuing, any
Swing Line Bank may, in its sole and absolute discretion, direct that the Swing
Line Loans owing to it be refunded, by delivering a Notice of Swing Line
Refunding. Upon receipt of a Notice of Swing Line Refunding the Administrative
Agent shall promptly give notice of the contents thereof to the Banks and,
unless an Event of Default described in Section 12(g) in respect of the Company
or the relevant Specified Borrower has occurred, to the Company and the relevant
Specified Borrower. Each such Notice of Swing Line Refunding shall be deemed to
constitute delivery by such Specified Borrower of a Notice of Borrowing of
Committed Rate Eurocurrency Loans in the amount and Currency of the Swing Line
Loans to which it relates, for an Interest Period of one month's duration.
Subject to the terms and conditions hereof, each Bank (including each Swing Line
Bank in its capacity as a Bank having a Commitment) hereby agrees to make a
Committed Rate
Arrow Electronics Credit Agreement
36
Loan to such Specified Borrower pursuant to Section 2 in an amount equal to such
Bank's Borrowing Percentage of the aggregate amount of the Swing Line Loans to
which such Notice of Swing Line Refunding relates. Unless any of the events
described in Section 12(g) in respect of the Company or such Specified Borrower
shall have occurred (in which case the procedures of subsection 4.4(b) shall
apply), each Bank shall make the amount of such Committed Rate Loan available to
the Administrative Agent at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available to the
Administrative Agent. The proceeds of such Committed Rate Loans shall be
immediately made available to such Swing Line Bank by the Administrative Agent
and applied by such Swing Line Bank to repay the Swing Line Loans to which such
Notice of Swing Line Refunding related.
(b) If prior to the time a Committed Rate Loan would have
otherwise been made pursuant to subsection 4.4(a), one of the events described
in Section 12(g) shall have occurred in respect of the Company or the relevant
Specified Borrower, each Bank (other than the relevant Swing Line Bank) shall,
on the date such Committed Rate Loan would have been made pursuant to the Notice
of Swing Line Refunding referred to in subsection 4.4(a) (the "Refunding Date"),
purchase an undivided participating interest in the outstanding Swing Line Loans
to which such Notice of Swing Line Refunding related, in an amount equal to (i)
such Bank's Commitment Percentage times (ii) the aggregate principal amount of
such Swing Line Loans then outstanding which were to have been repaid with
Committed Rate Loans (the "Swing Line Participation Amount"). On the Refunding
Date, (x) each Bank shall transfer to such Swing Line Bank, in immediately
available funds, such Bank's Swing Line Participation Amount, and upon receipt
thereof such Swing Line Bank shall, if requested by any Bank, deliver to such
Bank a participation certificate dated the date of such Swing Line Bank's
receipt of such funds and evidencing such Bank's ownership of its Swing Line
Participation Amount and (y) the interest rate on the applicable Swing Line Loan
will automatically be converted to the applicable Eurocurrency Rate with an
Interest Period of one month plus the Applicable Margin. If any amount required
to be paid by any Bank to any Swing Line Bank pursuant to this subsection 4.4 in
respect of any Swing Line Participation Amount is not paid to such Swing Line
Bank on the date such payment is due from such Bank, such Bank shall pay to such
Swing Line Bank on demand an amount equal to the product of (i) such amount,
times (ii) (A) in the case of any such payment obligation denominated in
Dollars, the daily average Federal funds rate, as quoted by such Swing Line
Bank, or (B) in the case of any such payment obligation denominated in an
Available Foreign Currency, the rate customary in such Currency for settlement
of similar inter-bank obligations, as quoted by such Swing Line Bank, in each
case during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Swing Line Bank,
times (iii) a fraction the numerator of which is the number of days that elapse
during such period and the denominator of which is 360. A certificate of a Swing
Line Bank submitted to any Bank with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Swing Line Bank has
received from any Bank such Bank's Swing Line Participation Amount, such Swing
Line Bank receives any payment on account of the related Swing Line Loans, such
Swing Line Bank will distribute to such Bank its Commitment Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Bank's participating interest was outstanding and funded);
Arrow Electronics Credit Agreement
37
provided, however, that in the event that such payment received by such Swing
Line Bank is required to be returned, such Bank will return to such Swing Line
Bank any portion thereof previously distributed to it by such Swing Line Bank.
(d) Each Bank's obligation to make Committed Rate Loans
pursuant to subsection 4.4(a) and to purchase participating interests pursuant
to subsection 4.4(b) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or any Specified Borrower, or any Specified Borrower may
have against any Bank or any other Person, as the case may be, for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default; (iii) any adverse change in the condition (financial or otherwise) of
the Company or any of its Subsidiaries; (iv) any breach of this Agreement by any
party hereto; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
SECTION 5. THE LETTERS OF CREDIT
5.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Bank agrees to issue letters of credit for the account of
any Specified Borrower on any Business Day during the Commitment Period in such
form as shall be reasonably acceptable to such Issuing Bank; provided, that no
Letter of Credit shall be issued if, after giving effect thereto (i) the
aggregate amount of the Exposure of all the Banks would exceed the aggregate
amount of the Commitments, (ii) the aggregate amount of the Foreign Currency
Exposure in respect of any Currency would exceed the Foreign Currency Exposure
Sublimit for such Currency or (iii) the aggregate amount of the L/C Obligations
would exceed $100,000,000.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars or an Available Foreign
Currency and shall be either (A) a standby letter of credit
issued to support obligations of a Specified Borrower,
contingent or otherwise, to provide credit support for
workers' compensation, other insurance programs and other
lawful corporate purposes (a "Standby Letter of Credit") or
(B) a commercial letter of credit issued in respect of the
purchase of goods and services in the ordinary course of
business of the Company and its Subsidiaries (a "Commercial
Letter of Credit"; together with the Standby Letters of
Credit, the "Letters of Credit") and,
(ii) expire no later than the earlier of 365 days
after its date of issuance and 5 Business Days prior to the
Termination Date although any such Letter of Credit may be
automatically extended for periods of one year from the
current or any future expiration date of the Letter of Credit
(unless the Issuing Bank elects not to extend such Letter of
Credit) and the extended maturity date is not beyond 5
Business Days prior to the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York or, if acceptable to the
Arrow Electronics Credit Agreement
38
Required Banks and the relevant account party, the jurisdiction of the Issuing
Office at which such Letter of Credit is issued.
(d) No Issuing Bank shall at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Bank or any Bank to exceed any limits imposed by, any change after
the date hereof in any applicable Requirement of Law.
5.2 Procedure for Issuance of Letters of Credit under this
Agreement. Any Specified Borrower may from time to time request that an Issuing
Bank issue a Letter of Credit by delivering to such Issuing Bank at its Issuing
Office an Application therefor (with a copy to the Administrative Agent),
completed to the satisfaction of the Issuing Bank, and such other certificates,
documents and other papers and information as such Issuing Bank may reasonably
request. Upon receipt by an Issuing Bank of any Application, and subject to the
terms and conditions hereof, such Issuing Bank will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall any
Issuing Bank be required to issue any Letter of Credit earlier than five
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by such Issuing Bank and such Specified Borrower. Such
Issuing Bank shall advise the Administrative Agent of the terms of such Letter
of Credit on the date of issuance thereof and shall promptly thereafter furnish
copies thereof and each amendment thereto to the Company and through the
Administrative Agent each Bank.
5.3 Fees, Commissions and Other Charges. (a) Each Specified
Borrower for whose account a Letter of Credit is issued hereunder shall pay to
the Administrative Agent, for the account of the Banks (including the Issuing
Bank) pro rata according to their Commitment Percentages, a letter of credit
commission with respect to each Letter of Credit, computed at a rate equal to
the then Applicable Margin for Eurocurrency Loans on the daily average undrawn
face amount of such Letter of Credit. Such commissions shall be payable in
arrears on the last Business Day of each March, June, September and December to
occur after the date of issuance of each Letter of Credit and on the expiration
date of such Letter of Credit and shall be nonrefundable.
(b) In addition to the foregoing fees and commissions, each
Specified Borrower for whose account a Letter of Credit is issued hereunder
shall (i) pay or reimburse the Issuing Bank for such normal and customary costs
and expenses as are incurred or charged by such Issuing Bank in issuing,
effecting payment under, amending or otherwise administering such Letter of
Credit and (ii) pay the Issuing Bank such other fees as shall be agreed by the
Issuing Bank and such Specified Borrower.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the Banks all fees and
commissions received by the Administrative Agent for their respective accounts
pursuant to this subsection.
Arrow Electronics Credit Agreement
39
5.4 L/C Participations. (a) Each Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Bank to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
such Issuing Bank, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to such L/C
Participant's Commitment Percentage in such Issuing Bank's obligations and
rights under each Letter of Credit issued by such Issuing Bank hereunder and the
amount of each draft paid by such Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Bank that, if a draft
is paid under any Letter of Credit issued by such Issuing Bank for which the
Specified Borrower which is the account party under such Letter of Credit has
not reimbursed such Issuing Bank to the full extent required by the terms of
this Agreement, such L/C Participant shall pay to such Issuing Bank upon demand
at such Issuing Bank's Issuing Office an amount equal to such L/C Participant's
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to any Issuing Bank pursuant to subsection 5.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit is
not paid to such Issuing Bank on the date such payment is due from such L/C
Participant, such L/C Participant shall pay to such Issuing Bank on demand an
amount equal to the product of (i) such amount, times (ii) (A) in the case of
any such payment obligation denominated in Dollars, the daily average Federal
funds rate, as quoted by such Issuing Bank, or (B) in the case of any such
payment obligation denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations, as
quoted by such Issuing Bank, in each case during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Bank, times (iii) a fraction the numerator
of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of an Issuing Bank submitted to any
L/C Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 5.4(a) the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the account party or otherwise, including by way of set-off or proceeds of
collateral applied thereto by such Issuing Bank), or any payment of interest on
account thereof, such Issuing Bank will distribute to such L/C Participant its
pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to such Issuing Bank the portion
thereof previously distributed by such Issuing Bank to it.
5.5 Reimbursement Obligation of the Specified Borrowers. (a)
Each Specified Borrower for whose account a Letter of Credit is issued hereunder
agrees to reimburse the Issuing Bank in respect of such Letter of Credit on each
date on which such Issuing Bank notifies such Specified Borrower (with a copy to
the Administrative Agent at its address in the Administrative Schedule for
Notices of Borrowing for the applicable Currency) of the date and amount of a
draft presented under such Letter of Credit and paid by such Issuing Bank for
the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses
Arrow Electronics Credit Agreement
40
incurred by such Issuing Bank in connection with such payment; provided if any
Issuing Bank shall notify the Specified Borrower of a drawing after 2:00 p.m.
local time of such Issuing Bank's Issuing Office on the date of any drawing
under a Letter of Credit, the Specified Borrower will not be required to
reimburse such Issuing Bank until the next succeeding Business Day. Each such
payment shall be made to such Issuing Bank at its Issuing Office in the Currency
in which payment of such draft was made and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by any Specified Borrower under this subsection from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which is (i) in the case of such
amounts payable in Dollars, 2% above the ABR from time to time and (ii) in the
case of such amounts payable in any other currency, 2% above the rate reasonably
determined by the Issuing Bank as the cost of funding such overdue amount from
time to time on an overnight basis.
(c) Each notice of a drawing under any Letter of Credit
denominated in Dollars shall constitute a request by the Specified Borrower for
a borrowing pursuant to subsection 2.2 of ABR Loans in the amount of such
drawing plus any amounts payable pursuant to subsection 5.5(a)(ii) in respect of
such drawing. The Borrowing Date with respect to such borrowing shall be the
date of such drawing.
5.6 Obligations Absolute. (a) The obligations of the Specified
Borrowers under this Section 5 shall be absolute and unconditional under any and
all circumstances and irrespective of any set-off, counterclaim or defense to
payment which any Specified Borrower may have or have had against the Issuing
Bank or any beneficiary of a Letter of Credit.
(b) Each Specified Borrower for whose account a Letter of
Credit is issued hereunder also agrees with the Issuing Bank in respect of such
Letter of Credit that such Issuing Bank shall not be responsible for, and such
Specified Borrower's Reimbursement Obligations under subsection 5.5(a) shall not
be affected by, among other things, (i) the validity or genuineness of documents
or of any endorsements thereon, even though such documents shall in fact prove
to be invalid, fraudulent or forged, provided, that reliance upon such documents
by such Issuing Bank shall not have constituted gross negligence or willful
misconduct of such Issuing Bank or (ii) any dispute between or among such
Specified Borrower and any beneficiary of any Letter of Credit or any other
party to which such Letter of Credit may be transferred or (iii) any claims
whatsoever of any Specified Borrower against any beneficiary of such Letter of
Credit or any such transferee.
(c) No Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by such Issuing Bank's gross negligence or willful
misconduct.
(d) Each Specified Borrower for whose account a Letter of
Credit is issued hereunder agrees that any action taken or omitted by any
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
Arrow Electronics Credit Agreement
41
Uniform Customs, shall be binding on such Specified Borrower and shall not
result in any liability of such Issuing Bank to such Specified Borrower.
5.7 Letter of Credit Payments. If any draft shall be presented
for payment to an Issuing Bank under any Letter of Credit, such Issuing Bank
shall promptly notify the account party of the date and amount thereof. The
responsibility of the Issuing Bank to the account party in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
5.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 5, the provisions of this Section 5 shall apply.
SECTION 6. LOCAL CURRENCY FACILITIES
6.1 Terms of Local Currency Facilities. (a) Subject to the
provisions of this Section 6, the Company may in its discretion from time to
time designate any Subsidiary of the Company organized under the laws of any
jurisdiction outside the United States as a "Local Currency Borrower" and any
Qualified Credit Facility to which such Local Currency Borrower and any one or
more Banks (or its affiliates, agencies or branches) is a party as a "Local
Currency Facility", with the consent of each such Bank in its sole discretion,
by delivering a Local Currency Facility Addendum to the Administrative Agent and
the Banks (through the Administrative Agent) executed by the Company, each such
Local Currency Borrower and each such Bank, provided, that on the effective date
of such designation no Event of Default shall have occurred and be continuing.
Concurrently with the delivery of a Local Currency Facility Addendum, the
Company or the relevant Local Currency Borrower shall furnish to the
Administrative Agent copies of all documentation executed and delivered by any
Local Currency Borrower in connection therewith, together with, if applicable,
an English translation thereof. Except as otherwise provided in this Section 6
or in the definition of "Qualified Credit Facility" in subsection 1.1, the terms
and conditions of each Local Currency Facility shall be determined by mutual
agreement of the relevant Local Currency Borrower(s) and Local Currency Bank(s).
The documentation governing each Local Currency Facility shall (i) contain an
express acknowledgement that such Local Currency Facility shall be subject to
the provisions of this Section 6 and (ii) designate a Local Currency Facility
Agent for such Local Currency Facility. Each of the Company and, by agreeing to
any Local Currency Facility designation as contemplated hereby, each relevant
Local Currency Bank (if any) party thereto which is an affiliate, branch or
agency of a Bank, acknowledges and agrees that each reference in this Agreement
to any Bank shall, to the extent applicable, be deemed to be a reference to such
Local Currency Bank. In the event of any inconsistency between the terms of this
Agreement and the terms of any Local Currency Facility, the terms of this
Agreement shall prevail.
(b) The documentation governing each Local Currency Facility
shall set forth (i) the maximum amount (expressed in Dollars) available to be
borrowed from all Local Currency Banks under such Local Currency Facility (as
the same may be reduced from time to time, a "Local Currency Facility Maximum
Borrowing Amount") and (ii) with respect to each Local
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42
Currency Bank party to such Local Currency Facility, the maximum Dollar
Equivalent Amount available to be borrowed from such Local Currency Bank
thereunder (as the same may be reduced from time to time, a "Local Currency Bank
Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no
event shall the Local Currency Banks party to a Local Currency Facility have the
right to accelerate the Local Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Local Currency Loans prior to
the earlier of the stated termination date in respect thereof or the Termination
Date, except, in each case, in connection with an acceleration of the Loans or a
termination of the Commitments pursuant to Section 12 of this Agreement,
provided, that nothing in this paragraph (c) shall be deemed to require any
Local Currency Bank to make a Local Currency Loan if the applicable conditions
precedent to the making of such Local Currency Loan set forth in the relevant
Local Currency Facility have not been satisfied. No Local Currency Loan may be
made under a Local Currency Facility if (i) after giving effect thereto, the
conditions precedent in subsection 9.2 would not be satisfied or (ii) after
giving effect to the making of such Local Currency Loan and the simultaneous
application of the proceeds thereof, (A) the aggregate amount of the Exposure of
all the Banks would exceed the aggregate amount of the Commitments, or (B) the
amount of such Local Currency Bank's Committed Exposure would exceed the amount
of such Local Currency Bank's Commitment.
(d) The relevant Local Currency Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Local Currency Banks
participating in any Local Currency Facility) to the terms of any Local Currency
Facility promptly after the effectiveness thereof (together with, if applicable,
an English translation thereof). If any such amendment, supplement or other
modification to a Local Currency Facility shall (i) add a Local Currency Bank as
a Local Currency Bank thereunder or (ii) change the Local Currency Facility
Maximum Borrowing Amount or any Local Currency Bank Maximum Borrowing Amount
with respect thereto, the Company shall promptly furnish an appropriately
revised Local Currency Facility Addendum, executed by the Company, the relevant
Local Currency Borrower and the affected Local Currency Banks (or any agent
acting on their behalf), to the Administrative Agent and the Banks (through the
Administrative Agent).
(e) The Company may terminate its designation of a facility as
a Local Currency Facility, with the consent of each Local Currency Bank party
thereto in its sole discretion, by written notice to the Administrative Agent,
which notice shall be executed by the Company, the relevant Local Currency
Borrower and each Local Currency Bank party to such Local Currency Facility (or
any agent acting on their behalf). Once notice of such termination is received
by the Administrative Agent, such Local Currency Facility and the loans and
other obligations outstanding thereunder shall immediately cease to be subject
to the terms of this Agreement and shall cease to benefit from the Company
Guarantee.
6.2 Reporting of Local Currency Outstandings. On the date of
the making of any Local Currency Loan having a maturity of 30 or more days to a
Local Currency Borrower and on the last Business Day of each month on which a
Local Currency Borrower has any outstanding Local Currency Loans, the Local
Currency Facility Agent for such Local Currency Borrower, shall deliver to the
Administrative Agent a Notice of Local Currency Outstandings. The
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43
Administrative Agent will, at the request of any Local Currency Facility Agent,
advise such Local Currency Facility Agent of the Exchange Rate used by the
Administrative Agent in calculating the Dollar Equivalent Amount of Local
Currency Loans under the related Local Currency Facility on any date.
6.3 Refunding of Local Currency Loans. (a) Notwithstanding
noncompliance with the conditions precedent set forth in subsection 9.2, if any
Local Currency Loans are outstanding on (i) any date on which an Event of
Default pursuant to Section 12(g) shall have occurred with respect to the
Company, (ii) any Acceleration Date or (iii) any date on which an Event of
Default pursuant to Section 12(a)(ii) shall have occurred and be continuing for
three or more Business Days and, in the case of clause (iii) above, any Local
Currency Bank party to the affected Local Currency Facility shall have given
notice thereof to the Administrative Agent requesting that the Local Currency
Loans ("Affected Local Currency Loans") outstanding thereunder be refunded
pursuant to this subsection 6.3, then, at 10:00 A.M., New York City time, on the
second Business Day immediately succeeding (x) the date on which such Event of
Default occurs (in the case of clause (i) above), (y) such Acceleration Date (in
the case of clause (ii) above) or (z) the date on which such notice is received
by the Administrative Agent (in the case of clause (iii) above), the
Administrative Agent shall be deemed to have received a notice from the Company
pursuant to subsection 2.2 requesting that ABR Loans be made pursuant to
subsection 2.1 on such second Business Day in an aggregate amount equal to the
Dollar Equivalent Amount of the aggregate amount of all Local Currency Loans (in
the case of clause (i) or (ii) above) or the Affected Local Currency Loans (in
the case of clause (iii) above), and the procedures set forth in subsection 2.2
shall be followed in making such ABR Loans. The proceeds of such ABR Loans shall
be applied to repay such Local Currency Loans.
(b) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 6.3 to repay Local Currency Loans as required
by such paragraph, effective on the date such ABR Loans would otherwise have
been made, (i) the principal amount of each relevant Local Currency Loan shall
be converted into Dollars (calculated on the basis of the Exchange Rate as of
the immediately preceding Business Day) ("Converted Local Currency Loans") and
(ii) each Bank severally, unconditionally and irrevocably agrees that it shall
purchase in Dollars a participating interest in such Converted Local Currency
Loans in an amount equal to the amount of ABR Loans which would otherwise have
been made by such Bank pursuant to paragraph (a) of this subsection 6.3. Each
Bank will immediately transfer to the Administrative Agent, in immediately
available funds, the amount of its participation, and the proceeds of such
participation shall be distributed by the Administrative Agent to each relevant
Local Currency Bank in such amount as will reduce the amount of the
participating interest retained by such Local Currency Bank in the Converted
Local Currency Loans to the amount of the ABR Loans which were to have been made
by it pursuant to paragraph (a) of this subsection 6.3. All Converted Local
Currency Loans shall bear interest at the rate which would otherwise be
applicable to ABR Loans. Each Bank shall share on a pro rata basis (calculated
by reference to its participating interest in such Converted Local Currency
Loans) in any interest which accrues thereon and in all repayments thereof.
(c) If, for any reason, ABR Loans may not be made pursuant to
paragraph (a) of this subsection 6.3 to repay Local Currency Loans as required
by such paragraph and the principal amount of any Local Currency Loans may not
be converted into Dollars in the manner
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44
contemplated by paragraph (b) of this subsection 6.3, (i) the Administrative
Agent shall determine the Dollar Equivalent Amount of such Local Currency Loans
(calculated on the basis of the Exchange Rate determined as of the Business Day
immediately preceding the date on which ABR Loans would otherwise have been made
pursuant to said paragraph (a)) and (ii) effective on the date on which ABR
Loans would otherwise have been made pursuant to said paragraph (a), each Bank
severally, unconditionally and irrevocably agrees that it shall purchase in
Dollars a participating interest in such Local Currency Loans in an amount equal
to the amount of ABR Loans which would otherwise have been made by such Bank
pursuant to paragraph (a) of this subsection 6.3. Each Bank will immediately
transfer to the Administrative Agent, in immediately available funds, the amount
of its participation, and the proceeds of such participation shall be
distributed by the Administrative Agent to each relevant Local Currency Bank in
such amount as will reduce the Dollar Equivalent as of such date of the amount
of the participating interest retained by such Local Currency Bank in such Local
Currency Loans to the amount of the ABR Loans which were to have been made by it
pursuant to paragraph (a) of this subsection 6.3. Each Bank shall share on a pro
rata basis (calculated by reference to its participating interest in such Local
Currency Loans) in any interest which accrues thereon, in all repayments of
principal thereof and in the benefits of any collateral furnished in respect
thereof and the proceeds of such collateral.
(d) If any amount required to be paid by any Bank to any Local
Currency Bank pursuant to this subsection 6.3 in respect of any Local Currency
Loan is not paid to such Local Currency Bank on the date such payment is due
from such Bank, such Bank shall pay to such Local Currency Bank on demand an
amount equal to the product of (i) such amount, times (ii) the daily average
Federal funds rate, as quoted by such Local Currency Bank during the period from
and including the date such payment is required to the date on which such
payment is immediately available to the Local Currency Bank, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of a Local Currency
Bank submitted to any Bank through the Administrative Agent with respect to any
amounts owing under this subsection (d) shall be conclusive in the absence of
manifest error.
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT
7.1 Facility Fee; Utilization Fee; Other Fees; Other Payments.
(a) The Company shall pay to the Administrative Agent for the account of each
Bank a facility fee for the period from and including the Closing Date to, but
excluding, the Termination Date, computed at the Facility Fee Rate in effect
from time to time on the average daily amount of the Commitment (used and
unused) of such Bank during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and December
and on the Termination Date or such earlier date on which the Commitments shall
terminate as provided herein, commencing on the first of such dates to occur
after the date hereof.
(b) The Company shall pay (i) to the Administrative Agent for
the account of each Bank a utilization fee of 0.25% per annum on such Bank's
Commitment Percentage of the aggregate outstanding principal or face amount of
Committed Rate Loans, Swing Line Loans, Letters of Credit and Local Currency
Loans for each day on which the Aggregate Committed
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45
Outstandings are equal to or exceed 33-1/3% of the Aggregate Commitments and
(ii) to the applicable Issuing Bank for its own account a fronting fee of 0.125%
per annum on the undrawn and unexpired amount of each Letter of Credit, in each
case payable quarterly in arrears on the last day of each March, June, September
and December and on the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof or the issuance date, as relevant.
(c) The Company agrees to pay to the Administrative Agent, for
its own account and for the account of the Arranger, the fees in the amounts and
on the dates agreed to by such parties in writing prior to the date of this
Agreement.
7.2 Computation of Interest and Fees. (a) Facility and
utilization fees and, whenever it is calculated on the basis of the Prime Rate,
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed; and, otherwise, interest and Letter of
Credit commissions shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as practicable
notify the relevant Specified Borrower and the Banks of each determination of a
Eurocurrency Rate. Any change in the ABR due to a change in the Prime Rate, the
Base CD Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate, the
Base CD Rate or the Federal Funds Effective Rate, respectively. The
Administrative Agent shall as soon as practicable notify the relevant Borrower
and the Banks of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Banks in the absence of manifest
error.
7.3 Pro Rata Treatment and Payments. (a) Each payment by the
Company on account of any facility fee or utilization fee hereunder and any
reduction of the Commitments of the Banks shall be made pro rata according to
the respective Commitment Percentages of the Banks. Each disbursement of
Committed Rate Loans in any Currency shall be made by the Banks holding
Commitments in such Currency pro rata according to the respective Borrowing
Percentages of such Banks. Each payment (including each prepayment) by any
Borrower on account of principal of and interest on any Loans in any Currency
shall be made pro rata according to the respective principal amounts of the
Loans of such Currency of such Borrower then due and owing to the Banks. All
payments (including prepayments) to be made by any Borrower hereunder, whether
on account of principal, interest, fees, Reimbursement Obligations or otherwise,
shall be made without set off or counterclaim. All payments in respect of
Committed Rate Loans or Letters of Credit in any Currency shall be made in such
Currency and in immediately available funds at the Payment Office, and at or
prior to the Payment Time, for such Type of Loans and such Currency, on the due
date thereof. The Administrative Agent shall distribute to the Banks any
payments received by the Administrative Agent promptly upon receipt in like
funds as received. If any payment hereunder becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
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46
(b) Unless the Administrative Agent shall have been notified
in writing by any Bank prior to a Borrowing Date in respect of Committed Rate
Loans that such Bank will not make the amount that would constitute its
Borrowing Percentage of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Bank is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Bank shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to (A) in the case of any such Committed Rate Loans denominated in
Dollars, the daily average Federal funds rate, as quoted by the Administrative
Agent, or (B) in the case of any Committed Rate Loans denominated in an
Available Foreign Currency, the rate customary in such Currency for settlement
of similar inter-bank obligations, as quoted by the Administrative Agent, in
each case for the period until such Bank makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent submitted
to any Bank with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Bank's Borrowing Percentage
of such borrowing is not made available to the Administrative Agent by such Bank
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Swing Line Loans in such Currency hereunder, on demand,
from the relevant Borrower.
7.4 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to make or maintain
Loans or to make or maintain Extensions of Credit to one or more Foreign
Subsidiary Borrowers or Local Currency Borrowers contemplated by this Agreement,
the commitment of such Bank hereunder to make Loans to such Foreign Subsidiary
Borrowers or Local Currency Borrowers, continue Loans to such Foreign Subsidiary
Borrowers or Local Currency Borrowers as such, and maintain Extensions of Credit
to such Foreign Subsidiary Borrowers or Local Currency Borrowers shall forthwith
be cancelled to the extent necessary to remedy or prevent such illegality.
Nothing in this subsection 7.4 shall affect the obligation of the Banks to make
and maintain Loans to the Company.
7.5 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law (other than the Certificate of Incorporation and
By-Laws or other organizational or governing documents of the Banks) or in the
interpretation or application thereof or compliance by any Bank or Issuing Bank
with any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank or Issuing Bank or any
corporation controlling such Bank or from which such Bank
obtains funding or credit to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit or any
Eurocurrency Loan or Local Currency Loan made by it, or change
the basis of taxation of payments to such Bank or such
corporation in respect thereof (except for Non-Excluded Taxes
covered by subsection 7.6 (including taxes
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47
excluded under the first sentence of subsection 7.6(a)) and
changes in the rate of tax on the overall net income of such
Bank or Issuing Bank or such corporation);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, deposit insurance, compulsory loan
or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Bank or Issuing Bank or any
corporation controlling such Bank or Issuing Bank or from
which such Bank obtains funding or credit which is not
otherwise included in the determination of the Eurocurrency
Rate hereunder or the interest rate on such Local Currency
Loans under the relevant Local Currency Facility; or
(iii) shall impose on such Bank or Issuing Bank or
any corporation controlling such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank or
Issuing Bank or such corporation, by an amount which such Bank or Issuing Bank
or such corporation deems to be material, of making, converting into, continuing
or maintaining Eurocurrency Loans or Local Currency Loans or issuing or
participating in Letters of Credit or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Company shall promptly pay such
Bank or Issuing Bank, within five Business Days after its demand, any additional
amounts necessary to compensate such Bank or Issuing Bank for such increased
cost or reduced amount receivable, together with interest on each such amount
from the date due until payment in full at a rate per annum equal to the ABR
plus 2%. If any Bank or Issuing Bank becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Company,
through the Administrative Agent, of the event by reason of which it has become
so entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Bank or Issuing Bank, through the Administrative
Agent, to the Company shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of
Loans and all other amounts payable hereunder.
(b) If any Bank shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank or Issuing Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof does or shall have the
effect of reducing the rate of return on such Bank's or Issuing Bank or such
corporation's capital as a consequence of its obligations hereunder or under any
Letter of Credit to a level below that which such Bank or Issuing Bank or such
corporation could have achieved but for such change or compliance (taking into
consideration such Bank's or Issuing Bank or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Bank or Issuing Bank to
be material, then from time to time, after submission by such Bank or Issuing
Bank to the Company (with a copy to the Administrative Agent) of a written
request therefor (which written request shall be conclusive in the absence of
manifest error), the Company shall pay to such Bank or Issuing Bank such
additional amount or amounts as will compensate such Bank or Issuing Bank for
such reduction.
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48
(c) In addition to, and without duplication of, amounts which
may become payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 7.5, each Borrower agrees to pay to each Bank which requests
compensation under this paragraph (c) by notice to such Borrower, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency Loan
made by such Bank to such Borrower, at any time when such Bank shall be required
to maintain reserves against "Eurocurrency liabilities" under Regulation D of
the Board (or, at any time when such Bank may be required by the Board or by any
other Governmental Authority, whether within the United States or in another
relevant jurisdiction, to maintain reserves against any other category of
liabilities which includes deposits by reference to which the Eurocurrency Rate
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Bank which includes any such
Committed Rate Eurocurrency Loans), an additional amount (determined by such
Bank's calculation or, if an accurate calculation is impracticable, reasonable
estimate using such reasonable means of allocation as such Bank shall determine)
equal to the actual costs, if any, incurred by such Bank during such Interest
Period as a result of the applicability of the foregoing reserves to such
Committed Rate Eurocurrency Loans.
(d) A certificate of each Bank, Issuing Bank, Swing Line Bank
or Local Currency Bank setting forth such amount or amounts as shall be
necessary to compensate such Bank, Issuing Bank, Swing Line Bank or Local
Currency Bank as specified in paragraph (a), (b) or (c) above, as the case may
be, and setting forth in reasonable detail an explanation of the basis of
requesting such compensation in accordance with paragraph (a), (b) or (c) above,
including calculations in detail comparable to the detail set forth in
certificates delivered to such Bank in similar circumstances under comparable
provisions of other comparable credit agreements, shall be delivered to the
relevant Borrower and shall be conclusive absent manifest error. The relevant
Borrower shall pay each Bank, Issuing Bank, Swing Line Bank or Local Currency
Bank the amount shown as due on any such certificate delivered to it within 10
days after its receipt of the same.
(e) Failure or delay on the part of any Bank or the Issuing
Bank to demand compensation pursuant to this subsection shall not constitute a
waiver of such Bank's or the Issuing Bank's right to demand such compensation;
provided that the Company shall not be required to compensate a Bank or the
Issuing Bank pursuant to this subsection for any increased costs or reductions
incurred more than six months prior to the date that such Bank or the Issuing
Bank, as the case may be, notifies the Company of the event giving rise to such
increased costs or reductions and of such Bank's or the Issuing Bank's intention
to claim compensation therefor; provided further that, if the event giving rise
to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
(f) Notwithstanding the foregoing provisions of this
subsection, a Bank shall not be entitled to compensation pursuant to this
subsection in respect of any Competitive Advance Loan if the event that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Advance Loan Offer pursuant to which such
Loan was made.
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49
(g) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
7.6 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agent and each Bank, (i)
net income taxes, capital taxes, doing business taxes and franchise taxes
imposed on the Administrative Agent or such Bank (including, without limitation,
each Bank in its capacity as an Issuing Bank or as a Swing Line Bank), as the
case may be, as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Administrative Agent or such Bank (excluding a connection arising solely from
the Administrative Agent or such Bank having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement) or any
political subdivision or taxing authority thereof or therein, (ii) taxes
required to be withheld because of a failure to deliver any certificate
described in this subsection 7.6 for any reason and (iii) any and all
withholding taxes payable with respect to payments under this Agreement made by
the Company or by any Subsidiary Borrower that was organized under the laws of
the United States, other than any such withholding taxes imposed as a result of
any change in or amendment to the laws of any jurisdiction affecting taxation
(including any regulation or ruling proposed or promulgated by a taxing
authority thereof and any treaty provisions) or any change in the official
application, enforcement or interpretation of such laws, regulations, rulings or
treaties or any other action taken by a taxing authority or a court of competent
jurisdiction, which change, amendment, application, enforcement, interpretation
or action becomes effective after the date hereof (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Non-Excluded Taxes"). If any Non-Excluded Taxes are required
to be withheld from any amounts payable to the Administrative Agent or any Bank
hereunder, the amounts so payable to the Administrative Agent or such Bank shall
be increased to the extent necessary to yield to the Administrative Agent or
such Bank (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Taxes are payable by any Borrower, as
promptly as possible thereafter such Borrower shall send to the Administrative
Agent for its own account or for the account of such Bank, as the case may be, a
certified copy of an original official receipt received by such Borrower showing
payment thereof. If such Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify the Administrative Agent and such Bank for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or such Bank as a result of any such failure. The
agreements in this subsection 7.6(a) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) (i) Each Bank (including each Assignee) that is not
incorporated under the laws of the United States of America or a state
thereof agrees that it will deliver to the Company and the
Administrative Agent concurrently with the delivery of this Agreement
(or, in the case of any Assignee, concurrently with the delivery of an
Assignment and Acceptance) two duly completed copies of (x) United
States Internal Revenue Service
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50
Form W-8BEN or W-8ECI or successor applicable form, as the case may be,
and (y) an Internal Revenue Service Form W-8BEN or W-9 or successor
applicable form, as the case may be. Each such Bank also agrees to
deliver to the Company and the Administrative Agent two further copies
of the said Form W-8BEN or W-8ECI and Form W-8BEN or W-9, or successor
applicable forms or other manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event (including, without limitation, a
change in such Bank's lending office) requiring a change in the most
recent form previously delivered by it to the Company and the
Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Company or the Administrative Agent,
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and such
Bank so advises the Company and the Administrative Agent. Such Bank
shall certify (x) in the case of a Form W-8BEN or W-8ECI, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) in the
case of a Form W-8BEN or W-9, that it is entitled to an exemption from
United States backup withholding tax.
(ii) Upon the written request of any Borrower, each Bank
promptly will provide to such Borrower and to the Administrative Agent,
or file with the relevant taxing authority (with a copy to the
Administrative Agent) such form, certification or similar documentation
(each duly completed, accurate and signed) as is required by the
relevant jurisdiction in order to obtain an exemption from, or reduced
rate of Non-Excluded Taxes to which such Bank or the Administrative
Agent is entitled pursuant to an applicable tax treaty or the law of
the relevant jurisdiction; provided, however, such Bank will not be
required to (x) disclose information which in its reasonable judgment
it deems confidential or proprietary or (y) incur a cost if such cost
would, in its reasonable judgment, be substantial in comparison to the
cost of the Borrower under this subsection 7.6 of such Bank's failure
to provide such form, certification or similar documentation. Such Bank
shall certify in the case of any such form, certification or similar
documentation so provided (to the extent it may accurately and properly
do so) that it is entitled to receive payments under this Agreement
without deduction or withholding, or at a reduced rate of deduction or
withholding of Non-Excluded Taxes.
(iii) A Bank shall be required to furnish a form under this
paragraph (b) only if it is entitled to claim an exemption from or a
reduced rate of withholding under applicable law. A Bank that is not
entitled to claim an exemption from or a reduced rate of withholding
under applicable law, promptly upon written request of the applicable
Borrower, shall inform the applicable Borrower in writing.
(c) If any Bank is, in its sole opinion, able to apply for any tax
credit, tax deduction or other reduction in tax (a "Tax Benefit") by reason of
any increased amount paid by the Company under this subsection 7.6, such Bank
will use reasonable efforts to obtain such Tax Benefit and, upon receipt thereof
will pay to the Company such amount, not exceeding the increased amount paid by
the Company, as it considers, in its sole opinion, to be equal to the net
after-tax value to
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51
such Bank of the Tax Benefit or such part thereof allocable to such withholding
or deduction, having regard to all of such Bank's dealings giving rise to
similar credits and to the cost of obtaining the same, less any and all expenses
incurred by such Bank in obtaining such Tax Benefit (including any and all
professional fees incurred therewith); provided, however, that (i) no Bank shall
be obligated by this subsection 7.6 to disclose to the Company any information
regarding its tax affairs or computations, (ii) nothing in this subsection 7.6
shall interfere with the right of each Bank to arrange its tax affairs as it
deems appropriate and (iii) nothing in this subsection 7.6 shall impose an
obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole opinion,
to do so would (x) impose undue hardships, burdens or expenditures on such Bank
or (y) increase such Bank's exposure to taxation by the jurisdiction in
question.
7.7 Company's Options upon Claims for Increased Costs and
Taxes. In the event that any Affected Bank shall decline to make Loans pursuant
to subsection 7.4 or shall have notified the Company that it is entitled to
claim compensation pursuant to subsection 7.5 or 7.6, the Company may exercise
any one or both of the following options:
(a) The Company may request one or more of the Banks which are
not Affected Banks to take over all (but not part) of any Affected Banks' then
outstanding Loans and to assume all (but not part) of any Affected Bank's
Commitments, if any, and obligations hereunder, and if applicable, under any
Local Currency Facility. If one or more Banks shall so agree in writing
(collectively, the "Assenting Banks"; individually, an "Assenting Bank") with
respect to an Affected Bank, (i) the Commitments, if any, of each Assenting Bank
and the obligations of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the Commitments, if any, and of
the obligations of such Affected Bank under this Agreement and if applicable,
under any Local Currency Facility and (ii) each Assenting Bank shall make Loans
to the Company, according to such Assenting Bank's respective Allocable Share,
in an aggregate principal amount equal to the outstanding principal amount of
the Loans and, if applicable, Local Currency Loans, of such Affected Bank, on a
date mutually acceptable to the Assenting Banks, such Affected Bank and the
Company. The proceeds of such Loans, together with funds of the Company, shall
be used to prepay the Loans, and if applicable, Local Currency Loans, of such
Affected Bank, together with all interest accrued thereon and all other amounts
owing to such Affected Bank hereunder (including any amounts payable pursuant to
subsection 7.8 in connection with such prepayment), and, upon such assumption by
the Assenting Bank and prepayment by the Company, such Affected Bank shall cease
to be a "Bank" for purposes of this Agreement and shall no longer have any
obligations or rights hereunder (other than any obligations or rights which
according to this Agreement shall survive the termination of this Agreement).
(b) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any such Affected Bank hereunder and
if applicable, under any Local Currency Facility, and to purchase the
outstanding Loans of such Affected Bank and such Affected Bank's rights
hereunder and with respect thereto, without recourse upon, or warranty by, or
expense to, such Affected Bank (unless such Affected Bank agrees otherwise), for
a purchase price equal to the outstanding principal amount of the Loans and, if
applicable, Local Currency Loans, of such Affected Bank plus (i) all interest
accrued and unpaid thereon and all other amounts owing to such Affected Bank
hereunder and (ii) any amount which would be payable to such Affected Bank
pursuant to subsection 7.8, and upon such assumption and
Arrow Electronics Credit Agreement
52
purchase by the Replacement Bank, such Replacement Bank, if it is not already a
Bank, shall be deemed to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations or rights hereunder (other than any
obligations or rights which according to this Agreement shall survive the
termination of this Agreement).
7.8 Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan or Committed Rate Loan other than on the
last day of an Interest Period therefor (including as a result of an Event of
Default and as a result of the provisions of subsection 2.11 or 2.12), (b) the
conversion of any Eurocurrency Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable hereunder and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Advance Loan
after accepting the Competitive Advance Loan Offer to make such Loan, or (e) the
assignment as a result of a request by the Company pursuant to subsection 7.7 of
any Eurocurrency Loan other than on the last day of an Interest Period therefor
or of any Competitive Advance Loan, then, in any such event, the Company shall
compensate each Bank for the loss, cost and expense attributable to such event.
In the case of a Eurocurrency Loan, the loss to any Bank attributable to any
such event shall be deemed to include an amount determined by such Bank to be
equal to the excess, if any, of (i) the amount of interest that such Bank would
pay for a deposit equal to the principal amount of such Bank denominated in the
Currency of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the Eurocurrency Rate for such Currency for such Interest Period, over
(ii) the amount of interest that such Bank would earn on such principal amount
for such period if such Bank were to invest such principal amount for such
period at the interest rate that would be bid by such Bank (or an affiliate of
such Bank) for deposits denominated in such Currency from other banks in the
eurocurrency market at the commencement of such period. The Company shall also
compensate each relevant Bank for any loss, cost or expense suffered by such
Bank as a result of the conversion, pursuant to subsection 2.11(b) or 6.3(b), of
the Currency in which a Loan is denominated, or the purchase or sale, pursuant
to subsection 2.11(c) or 6.3(c), of a participating interest in any Loan. A
certificate of any Bank setting forth any amount or amounts that such Bank is
entitled to receive pursuant to this Section shall be delivered to the Company
and shall be conclusive absent manifest error. The Company shall pay such Bank
the amount shown as due on any such certificate within 10 days after receipt
thereof.
7.9 Determinations. In making the determinations contemplated
by subsection 7.5, 7.6 and 7.8, each Bank may make such estimates, assumptions,
allocations and the like that such Bank in good faith determines to be
appropriate. Upon request of the Company, each Bank shall furnish to the
Company, at any time after demand for payment of an amount under subsection
7.5(a) or 7.8, a certificate outlining in reasonable detail the computation of
any amounts owing. Any certificate furnished by a Bank shall be binding and
conclusive in the absence of manifest error.
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53
7.10 Change of Lending Office. If an event occurs with respect
to any Bank that makes operable the provisions of subsection 7.4 or entitles
such Bank to make a claim under subsection 7.5 or 7.6, such Bank shall, if
requested in writing by the Company, to the extent not inconsistent with such
Bank's internal policies, use reasonable efforts to (a) designate another office
or offices for the making and maintaining of its Loans or (b) obtain a different
source of funds or credit, as the case may be, the designation or obtaining of
which will eliminate such operability or reduce materially the amount such Bank
is so entitled to claim, provided that such designation or obtaining would not,
in the sole discretion of such Bank, result in such Bank incurring any costs
unless the Company has agreed to reimburse such Bank therefor.
7.11 Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments. (a) The Company will implement and
maintain internal accounting controls to monitor the borrowings and repayments
of Loans by the Borrowers and the issuance of and drawings under Letters of
Credit, with the object of preventing any request for an Extension of Credit
that would result in (i) the Exposure of the Banks being in excess of the
Commitments, or (ii) the Foreign Currency Exposure in respect of any Currency
exceeding the Foreign Currency Exposure Sublimit for such Currency, and of
promptly identifying and remedying any circumstance where, by reason of changes
in exchange rates, (i) the aggregate amount of the Exposure exceeds the
Commitments, or (ii) the amount of the Foreign Currency Exposure in respect of
any Currency exceeds the Foreign Currency Exposure Sublimit for such Currency.
In the event that at any time the Company determines that (i) the aggregate
amount of the Exposure of the Banks exceeds the aggregate amount of the
Commitments by more than 5%, or (ii) the amount of the Foreign Currency Exposure
in respect of any Currency exceeds the Foreign Currency Exposure Sublimit for
such Currency, the Company will, as soon as practicable but in any event within
five Business Days of making such determination, make or cause to be made such
repayments or prepayments of Loans as shall be necessary to cause (i) the
aggregate amount of the Exposure of the Banks to no longer exceed the
Commitments, and (ii) the amount of the Foreign Currency Exposure in respect of
any Currency not to exceed the Foreign Currency Exposure Sublimit for such
Currency.
(b) The Administrative Agent will calculate the aggregate
amount of the Exposure of the Banks from time to time, and in any event not less
frequently than once during each calendar month. In making such calculations,
the Administrative Agent will rely on the information most recently received by
it from the Swing Line Banks in respect of outstanding Swing Line Loans, from
Banks in respect of outstanding Competitive Advance Loans, from Local Currency
Facility Agents in respect of outstanding Local Currency Loans and Issuing Banks
in respect of L/C Obligations. Upon making each such calculation, the
Administrative Agent will inform the Company and the Banks of the results
thereof.
(c) In the event that on any date the Administrative Agent
calculates that (i) the aggregate amount of the Exposure of the Banks exceeds
the aggregate amount of the Commitments by more than 5%, or (ii) the Foreign
Currency Exposure in respect of any Currency exceeds the Foreign Currency
Exposure Sublimit for such Currency, the Administrative Agent will give notice
to such effect to the Company. After receipt of any such notice, the Company
will, as soon as practicable but in any event within five Business Days of
receipt of such notice, make or cause to be made such repayments or prepayments
of Loans as shall be necessary to cause (i) the aggregate amount of the Exposure
of the Banks to no longer
Arrow Electronics Credit Agreement
54
exceed the Commitments, or (ii) the Foreign Currency Exposure in any respect of
any Currency not to exceed the Foreign Currency Exposure Sublimit for such
Currency.
(d) If at any time the Committed Exposure of any Bank exceeds
such Bank's Commitment, upon demand of such Bank, the Company will within one
Business Day prepay Loans in such amounts that after giving effect to such
prepayment the Committed Exposure of such Bank does not exceed its Commitment.
(e)Any prepayment required to be made pursuant to this
subsection 7.11 shall be accompanied by payment of amounts payable, if any,
pursuant to subsection 7.8 in respect of the amount so prepaid.
SECTION 8. REPRESENTATIONS AND WARRANTIES
To induce the Syndication Agents, the Administrative Agent and
the Banks to enter into this Agreement and to make the Loans and issue or
participate in the Letters of Credit, the Company and each Subsidiary Borrower
(insofar as the representations and warranties by such Subsidiary Borrower
relate to it) hereby represents and warrants to each Agent, the Administrative
Agent and each Bank that:
8.1 Financial Condition. The audited consolidated balance
sheets of the Company and its consolidated Subsidiaries as at December 31, 2002
and the related consolidated statements of income and of cash flows for the
fiscal year ended on such date, reported on by Ernst & Young LLP, copies of
which have heretofore been furnished to each Bank or will be furnished to each
Bank that has not already received such copies, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. The unaudited consolidating balance
sheet of the Company and its consolidated Subsidiaries by legal entity (with
respect to Subsidiaries organized under the laws of the United States and
Canada) and by principal operating group (with respect to other Subsidiaries) as
at September 30, 2003 and the related unaudited consolidating statement of
operations and retained earnings for the portion of the fiscal year ended on
September 30, 2003, present fairly the consolidating financial condition of the
Company and its consolidated Subsidiaries by legal entity (with respect to
Subsidiaries organized under the laws of the United States and Canada) and by
principal operating group (with respect to other Subsidiaries) as at such date,
and the consolidating results of their operations for the fiscal year then
ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither the
Company nor any of its consolidated Subsidiaries had, at the date of the most
recent balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any interest
rate or foreign currency swap or exchange transaction, which is not reflected in
the foregoing statements or referred to in the notes thereto. During the period
from September 30, 2003 to and including the date hereof there has been no sale,
transfer or other disposition by the Company or any of its consolidated
Subsidiaries of any material part of its business or property (other than the
sale of certain Microtronica businesses) and no purchase or
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55
other acquisition of any business or property (including any Capital Stock of
any other Person) material in relation to the consolidated financial condition
of the Company and its consolidated Subsidiaries at September 30, 2003 except as
disclosed in writing to the Banks prior to the Closing Date).
8.2 No Change. Since December 31, 2002 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
8.3 Corporate Existence; Compliance with Law. The Company and
each of its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate or other power and authority, and the legal right, to own and operate
its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except where the failure to be duly
qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect, and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Company and its Subsidiaries has the corporate or other power and
authority, and the legal right, to make, deliver and perform the Credit
Documents to which it is a party and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the execution, delivery and performance of the
Credit Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Credit
Documents. This Agreement has been, and each other Credit Document to which the
Company or any of its Subsidiaries is a party will be, duly executed and
delivered on behalf of the Company or such Subsidiary, as the case may be. This
Agreement constitutes, and each other Credit Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of the Company or any of its Subsidiaries party thereto enforceable
against the Company or such Subsidiary, as the case may be, in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
8.5 No Legal Bar. The execution, delivery and performance of
the Credit Documents to which the Company or any of its Subsidiaries is a party,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or Contractual Obligation of the Company or of any of its
Subsidiaries (except for violations of Contractual Obligations which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation, except for
the Liens expressly permitted by subsection 11.3.
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56
8.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues with respect to any of the Credit Documents or any of the transactions
contemplated hereby or thereby.
8.7 No Default. No Default or Event of Default has occurred
and is continuing.
8.8 Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, except where the failure to have
such title or such leasehold interest, as the case may be, could not reasonably
be expected to have a Material Adverse Effect, and none of such property is
subject to any Lien except as permitted by subsection 11.3.
8.9 Intellectual Property. Each of the Company and each of its
Subsidiaries owns, or is licensed to use, all domestic and foreign trademarks,
tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted (the "Intellectual Property")
except for those the failure to own or license which could not reasonably be
expected to have a Material Adverse Effect. No claim has been asserted and is
pending or, to the knowledge of the Company, has been threatened by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property which could
reasonably be expected to have a Material Adverse Effect, nor does the Company
know of any valid basis for any such claim. The use of such Intellectual
Property by the Company and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
8.10 Local Currency Facilities. Schedule 8.10 sets forth, as
of the Closing Date, all Local Currency Facilities (including the Local Currency
Borrower, Local Currency Banks, Local Currency Facility Agent, Local Currency
Facility Maximum Borrowing Amount and Local Currency Bank Maximum Borrowing
Amount with respect thereto).
8.11 Taxes. Each of the Company and its consolidated
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Company, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any unfiled tax
returns for taxes, and unpaid taxes, fees and other charges, (a) the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its consolidated Subsidiaries, as the
case may be, or (b) which in each case, individually or in the aggregate, would
not cause the Company and its consolidated Subsidiaries to have a liability in
excess of $10,000,000 or the Dollar Equivalent Amount thereof); no notice of tax
Lien has been filed, and, to the knowledge of the Company, no claim is being
asserted by any taxing authority, with respect to any such tax, fee or other
charge except for claims the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
Arrow Electronics Credit Agreement
57
reserves in conformity with GAAP have been provided on the books of the Company
or its consolidated Subsidiaries, as the case may be, and claims for amounts
which, in the aggregate, do not exceed $10,000,000.
8.12 Federal Regulations. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
regulations of such Board of Governors. If requested by any Bank or the
Administrative Agent, the Company will furnish to the Administrative Agent and
each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
8.13 ERISA. Each Plan which is intended to be qualified under
Section 401(a) (or 403(a) as appropriate) of the Code and each related trust
agreement, annuity contract or other funding instrument which is intended to be
tax-exempt under Section 501(a) of the Code is so qualified and tax-exempt and
has been so qualified and tax-exempt during the period from its adoption to
date. No event has occurred in connection with which the Company or any Commonly
Controlled Entity or any Plan, directly or indirectly, could reasonably be
expected to be subject to any material liability under ERISA, the Code or any
other law, regulation or governmental order or under any agreement, instrument,
statute, rule of law or regulation pursuant to or under which the Company or a
Subsidiary has agreed to indemnify or is required to indemnify any person
against liability incurred under, or for a violation or failure to satisfy the
requirements of, any such statute, regulation or order. No Reportable Event has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. The present value of all accrued benefits under each Single
Employer Plan maintained by the Company or any Commonly Controlled Entity or for
which the Company or any Commonly Controlled Entity has or could have any
liability (based on those assumptions used to fund the Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Company nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Company nor any Commonly Controlled Entity could reasonably be
expected to become subject to any liability under ERISA if the Company or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits provided
and the employees participating) of the unfunded liability of the Company and
each Commonly Controlled Entity for benefits under all unfunded retirement or
severance plans, programs, policies or other arrangements (including, without
limitation, post retirement benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA)), whether or not funded does not, in the aggregate, exceed
$10,000,000 (excluding those arrangements set forth on Schedule 8.13).
Arrow Electronics Credit Agreement
58
8.14 Investment Company Act; Other Regulations. Neither the
Company nor any Subsidiary of the Company is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. Neither the Company nor any
Subsidiary of the Company is subject to regulation under any Federal or State
statute or regulation which limits its ability to incur Indebtedness.
8.15 Subsidiaries. On the Closing Date, the only Subsidiaries
of the Company, and the only material partnerships or joint ventures in which
the Company or any Subsidiary has an interest, are those set forth on Schedule
8.15. On the Closing Date, the Company owns the percentage of the issued and
outstanding Capital Stock or other evidences of the ownership of each
Subsidiary, partnership or joint venture set forth on Schedule 8.15 as set forth
on such Schedule. On the Closing Date, except as set forth on Schedule 8.15, no
such Subsidiary, partnership or joint venture has issued any securities
convertible into shares of its Capital Stock. The outstanding stock and
securities (or other evidence of ownership) of such Subsidiaries, partnerships
or joint ventures owned by the Company and its Subsidiaries are owned by the
Company and its Subsidiaries free and clear of all Liens, warrants, options or
rights of others of any kind whatsoever except for Liens permitted by subsection
11.3.
8.16 Accuracy and Completeness of Information. No document
furnished or statement made in writing to the Banks by the Company in connection
with the negotiation, preparation or execution of this Agreement or any of the
other Credit Documents contains any untrue statement of a material fact, or
omits to state any such material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been corrected,
supplemented or remedied by subsequent documents furnished or statements made in
writing to the Banks. All other written information, reports and other papers
and data with respect to the Company and its Subsidiaries (other than financial
statements), furnished to the Banks by the Company, or on behalf of the Company,
were (a) in the case of those not prepared for delivery to the Banks, to the
Company's knowledge, at the time the same were so furnished, complete and
correct in all material respects for the purposes for which the same were
prepared and (b) in the case of those prepared for delivery to the Banks, to the
Company's knowledge, complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other papers or data,
to the extent necessary to give the Banks a true and accurate knowledge of the
subject matter in all material respects, it being understood that financial
projections as to future events are not to be viewed as facts and that actual
results may differ from projected results.
8.17 Purpose of Loans; Commitments. The proceeds of the Loans
and Letters of Credit shall be used by the Company for general corporate
purposes of the Company and, to the extent permitted hereunder, its
Subsidiaries, including working capital in the ordinary course of business,
letters of credit, repayment, prepayment or purchase of long-term indebtedness
and acquisitions, and the Commitments may be used by the Company as backup for
its commercial paper program, as applicable.
8.18 Environmental Matters. Except as set forth on Schedule
8.18 or insofar as there is no reasonable likelihood of a Material Adverse
Effect arising from any combination of facts or circumstances inconsistent with
any of the following:
Arrow Electronics Credit Agreement
59
(a) The facilities and properties owned or operated by the
Company or any of its Subsidiaries (the "Properties") do not contain,
and to the knowledge of the Company or its Subsidiaries, have not
previously contained, any Materials of Environmental Concern in amounts
or concentrations which (i) constitute or constituted a violation of,
or (ii) could reasonably be expected to give rise to liability under,
any applicable Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no
contamination at, under or to the knowledge of the Company about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its
Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties.
(c) Neither the Company nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties
or the Business, nor does the Company or any of its Subsidiaries have
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) To the knowledge of the Company or any of its
Subsidiaries, Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably be expected to give rise
to liability under, any Environmental Law, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened, under any Environmental Law to which the
Company or any Subsidiary is or will be named as a party with respect
to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders,
or other analogous administrative or judicial requirements outstanding
under any Environmental Law with respect to the Properties or the
Business.
(f) There has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Company or any
Subsidiary in connection with the Properties or otherwise in connection
with the Business, in violation of or in amounts or in a manner that
could reasonably give rise to liability under any applicable
Environmental Laws.
SECTION 9. CONDITIONS PRECEDENT
9.1 Conditions to Closing Date. The occurrence of the Closing
Date, and the agreement of each Bank to make the initial Extension of Credit
requested to be made by it on or
Arrow Electronics Credit Agreement
60
after the Closing Date, shall be subject to the satisfaction, on or prior to the
Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Company and each Subsidiary that will be a
Subsidiary Borrower party hereto on the Closing Date, with a
counterpart for each Bank, (ii) for the account of each Bank, an
amended and restated Company Guarantee executed and delivered by a duly
authorized officer of the Company, with a counterpart or conformed copy
for each Bank and (iii) for the account of each Bank, an amendment and
restatement of each Existing Subsidiary Guarantee and any other
Subsidiary Guarantee, in each case executed and delivered by a duly
authorized officer of the Company or the applicable Subsidiary
Guarantor, with a counterpart or conformed copy for each Bank.
(b) Corporate Proceedings of each Loan Party. The
Administrative Agent shall have received, with a counterpart for each
Bank, a copy of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of each Loan Party
(except any Foreign Subsidiary Borrower) authorizing (i) the execution,
delivery and performance of each Credit Document to which it is a party
and (ii) in the case of each Borrower (except any Foreign Subsidiary
Borrower), the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary of such Loan Party as of the
Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(c) Fees and Expenses. The Administrative Agent shall have
received the fees and expenses to be received on or prior to the
Closing Date pursuant to subsection 7.1(c).
(d) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Bank, the following executed
legal opinions:
(i) the executed legal opinion of Milbank, Tweed,
Xxxxxx & XxXxxx LLP, counsel to the Company and the Subsidiary
Borrowers, substantially in the form of Exhibit G-1, with such
modifications therein as shall be reasonably requested or
approved by the Administrative Agent; and
(ii) the executed legal opinion of Xxxxx X. Xxxxx,
general counsel of the Company, substantially in the form of
Exhibit G-2, with such modifications therein as shall be
reasonably requested or approved by the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the other Credit
Documents as the Administrative Agent may reasonably require.
(e) No Material Litigation. No litigation, inquiry, injunction
or restraining order shall be pending, entered or threatened (including
any proposed statute, rule or regulation) which in the reasonable
judgment of any Bank could have a Material Adverse Effect.
Arrow Electronics Credit Agreement
61
(f) Existing Credit Agreement. Any principal, interest, fees
or other amounts owing or accrued and unpaid under the Existing Credit
Agreement to any Person which is a Bank under (and as defined in) the
Existing Credit Agreement shall have been paid in full to such Person.
(g) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other
Credit Documents shall be reasonably satisfactory in form and substance
to the Administrative Agent.
9.2 Conditions to Each Extension of Credit. The agreement of
each Bank to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit, but excluding
any Committed Rate Loan made pursuant to a Notice of Swing Line Refunding,
pursuant to subsections 5.5(c) or 6.3 or pursuant to subsection 2.6(c) if the
Dollar Equivalent Amount thereof is not increased) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company and its Subsidiaries
in or pursuant to the Credit Documents (other than, in respect of any
Extension of Credit made after the Closing Date the proceeds of which
are to be applied by the Company to repay maturing commercial paper (as
specified in the applicable Notice of Borrowing), subsection 8.2) shall
be true and correct in all material respects on and as of such date as
if made on and as of such date except for representations and
warranties expressly stated to relate to a specific earlier date, in
which case such representations and warranties are true and correct as
of such earlier date.
(b) No Default. No Default or Event of Default (including an
Early Termination Event pursuant to Section 12(c)) shall have occurred
and be continuing on such date after giving effect to the Loans
requested to be made on such date.
(c) No Material Adverse Change in Subsidiary Borrowers. If
such Extension of Credit is to or for a Subsidiary Borrower, no event
which has or could reasonably expected to have a material adverse
effect on the ability of such Subsidiary Borrower to perform its
obligations under this Agreement shall have occurred.
(d) Borrowing Certificate. In the case of the first requested
borrowing subsequent to the Closing Date, the Administrative Agent
shall have received with a counterpart for each Bank, a certificate of
the Company, dated as of such date, substantially in the form of
Exhibit E, with appropriate insertions and attachments, satisfactory in
form and substance to the Administrative Agent, executed by any
Responsible Officer of the Company.
(e) Foreign Subsidiary Borrowers. In the case of the first
requested borrowing by each Foreign Subsidiary Borrower, the Company
shall deliver to the Administrative Agent on or prior to such date a
copy of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of such Foreign
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62
Subsidiary Borrower authorizing (1) the execution, delivery and
performance of each Credit Document to which it is a party and (2) the
borrowings contemplated hereunder, certified by the Secretary or an
Assistant Secretary or other authorized officer of such Foreign
Subsidiary Borrower as of the Closing Date, which certificate shall be
in form and substance satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
Each borrowing by and Letter of Credit issued on behalf of any Borrower shall
constitute a representation and warranty by the Company and such Borrower as of
the date of such Loan and/or Letter of Credit that the conditions contained in
this subsection 9.2 have been satisfied.
SECTION 10. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding and unpaid or any
other amount is owing to any Bank, any Agent or the Administrative Agent
hereunder or under any Local Currency Facility, the Company shall and (except in
the case of delivery of financial information, reports and notices) shall cause
each of its Subsidiaries to:
10.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within the earlier
of (i) 120 days after the end of each fiscal year of the Company or
(ii) 30 days after the date on which such financial statements are
required to be filed with the Securities and Exchange Commission under
the Securities Act of 1933, a copy of the audited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of operations and
shareholders equity and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
Ernst & Young or other independent certified public accountants of
nationally recognized standing reasonably acceptable to the Required
Banks; provided that the Company may in lieu of furnishing such
financial statements furnish to each Bank its Form 10-K filed with the
Securities and Exchange Commission or any successor or analogous
Governmental Authority for such year;
(b) as soon as available, but in any event within the earlier
of (i) 120 days after the end of each fiscal year of the Company or
(ii) 30 days after the date on which consolidated financial statements
for the relevant period are required to be filed with the Securities
and Exchange Commission under the Securities Act of 1933, the unaudited
consolidating balance sheet of the Company and its consolidated
Subsidiaries by geographic region as at the end of such year and the
related unaudited consolidating statements of operations of the Company
and its consolidated Subsidiaries by geographic region for such year,
setting forth in each case in comparative form the figures for the
previous year, certified pursuant to subsection 10.2(b) by a
Responsible Officer as fairly presenting the consolidating financial
condition and results of operations of the Company and its consolidated
Subsidiaries by geographic region;
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63
(c) as soon as available, but in any event within the earlier
of (i) 60 days after the end of each of the first three quarterly
periods of each fiscal year of the Company or (ii) 15 days after the
date on which such financial statements are required to be filed with
the Securities and Exchange Commission under the Securities Act of
1933, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and shareholders'
equity and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for such quarter of the previous year,
certified by a Responsible Officer as fairly presenting in all material
respects when considered in relation to the consolidated financial
statements of the Company and its consolidated Subsidiaries (subject to
normal year-end audit adjustments); provided that the Company may in
lieu of furnishing such unaudited consolidated balance sheet furnish to
each Bank its Form 10-Q filed with the Securities and Exchange
Commission or any successor or analogous Governmental Authority for the
relevant quarterly period; and
(d) as soon as available, but in any event within the earlier
of (i) 60 days after the end of each of the first three quarterly
periods of each fiscal year of the Company or (ii) 15 days after the
date on which consolidated financial statements for the relevant period
are required to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, the unaudited consolidating balance
sheet of the Company and its consolidated Subsidiaries by geographic
region as at the end of such quarter and the related unaudited
consolidating statements of operations of the Company and its
consolidated Subsidiaries by geographic region for such quarter and the
portion of the fiscal year through the end of such quarter, in the case
of the unaudited consolidating balance sheet setting forth in
comparative form the figures for the previous year (but not the
corresponding figures for such quarter of the previous year) and in the
case of the statements of operations setting forth in comparative form
the figures for such quarter of the previous year, certified by a
Responsible Officer as fairly presenting the consolidating financial
condition and results of operations of the Company and its consolidated
Subsidiaries by geographic region (subject to normal year-end audit
adjustments);
the financial statements to be furnished pursuant to this subsection 10.1 shall
fairly present the consolidated (or consolidating by geographic region)
financial position and results of operations of the Company and its consolidated
Subsidiaries in accordance with GAAP (subject, in the case of subsections
10.1(c) and (d), to normal year-end audit adjustments and the absence of
complete footnotes) applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
Responsible Officer, as the case may be, and disclosed therein).
10.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 10.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
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64
(b) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(b), a certificate of a
Responsible Officer substantially in the form of Exhibit H;
(c) concurrently with the delivery of the financial statements
referred to in subsection 10.1(c), a certificate of a Responsible
Officer (i) stating that, to the best of such Responsible Officer's
knowledge, the Company has observed and performed all of its covenants
and other agreements contained in this Agreement and the other Credit
Documents to which it is a party to be observed or performed by it,
(ii) that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified therein and (iii)
setting forth calculations supporting compliance with subsections
11.1(a), (b) and 11.2;
(d) as soon as delivered, a copy of the letter, addressed to
the Company, of the certified public accountants who prepared the
financial statements referred to in subsection 10.1(a) for such fiscal
year and otherwise referred to as a "management letter";
(e) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders generally, and within five days after the same are filed,
copies of all financial statements and reports which the Company or any
of its Subsidiaries may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority;
(f) concurrently with the delivery of the financial statements
referred to in subsections 10.1(a) and 10.1(c), a certificate of a
Responsible Officer setting forth the name of each Foreign Subsidiary
Borrower and each outstanding Swing Line Loan, Competitive Advance
Loan, Local Currency Loan made and Letter of Credit issued to the
Foreign Subsidiary Borrowers as of the date of such financial
statements;
(g) within five Business Days after September 30, 2005, a
certificate of a Responsible Officer, in form and substance reasonably
acceptable to the Administrative Agent, stating that the Threshold
Liquidity Test has been met as of September 30, 2005 and setting forth
the calculations used in making such determination; provided that no
certificate shall be required to be delivered under this Section
10.2(g) so long as (i) there are no Loans outstanding and L/C
Obligations are less than $50,000,000, (ii) the Company's Consolidated
Leverage Ratio is less than or equal to 4.35 to 1.00 or (iii) there is
no outstanding balance on the Convertible Debt;
(h) within five Business Days after December 31, 2005, a
certificate of a Responsible Officer stating that the Threshold
Liquidity Test was met as of each day during the fiscal quarter ended
on such date; and
(i) promptly, such additional documents, instruments, legal
opinions or financial and other information as the Administrative Agent
or any Bank may from time to time reasonably request.
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65
10.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, including, without limitation, all
obligations in respect of taxes, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be, or where the failure to
pay, discharge or otherwise satisfy could not reasonably be expected to have a
Material Adverse Effect.
10.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted by it
and preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 11.4; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
10.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and furnish to each
Bank, upon written request, full information as to the insurance carried.
10.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which the entries are, in all
material respects, full, true and correct in conformity with sound business
practice and all Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and, upon reasonable
notice under the circumstances, permit representatives of the Administrative
Agent to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with officers
and employees of the Company and its Subsidiaries and with its independent
certified public accountants.
10.7 Notices. Promptly, after the Company becomes aware
thereof, give notice to the Administrative Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case of clauses (i) or (ii), if not cured or
if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect or cause a Default or an
Event of Default;
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66
(c) any litigation or proceeding affecting the Company or any
of its Subsidiaries (i) in which the amount involved is $10,000,000 or
more and not covered by insurance or (ii) in which injunctive or
similar relief is sought which could reasonably be expected to have a
Material Adverse Effect;
(d) the following events: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a failure
to make any required contribution to a Plan, the creation of any Lien
in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
terminating (other than a standard termination under Section 4041(b) of
ERISA), Reorganization or Insolvency of, any Plan; and
(e) any change, development or event involving a prospective
change, which has had or could reasonably be expected to have a
Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
10.8 Environmental Laws. (a) Comply with, and take all
reasonable efforts to ensure compliance by all tenants and subtenants, if any,
in all material respects with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and undertake all reasonable
efforts to ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect.
10.9 Additional Subsidiary Guarantees. In the event that any
Domestic Subsidiary (with assets accounting for more than 5% of Total Assets)
which is not a Guarantor shall own any assets or generate any revenues
(excluding any Domestic Subsidiary the sole activities of which consist of
entering into one or more Permitted Receivables Securitizations), take all
actions necessary to cause such Domestic Subsidiary to execute and deliver a
Subsidiary Guarantee, within 30 days of the occurrence of such event.
10.10 Foreign Subsidiary Borrowers. Within 45 days after the
Closing Date, the Company shall deliver to the Administrative Agent (i) an
executed Foreign Subsidiary Opinion of counsel to each Foreign Subsidiary
Borrower that is a party to this Agreement on the Closing Date if the aggregate
Exposure of such Subsidiary owing to all Banks as of the Closing Date
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67
exceeds $20,000,000 and (ii) a copy of all documentation with respect to all
Local Currency Facilities.
SECTION 11. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments
remain in effect, any Letter of Credit remains outstanding and unpaid or any
other amount is owing to any Bank, any Agent or the Administrative Agent
hereunder or under any Local Currency Facility:
11.1 Financial Condition Covenants. The Company shall not:
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio on any day during any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Consolidated
Leverage
Fiscal Quarter Ratio
-------------- -----
December 31, 2003 7.50 to 1.00
March 31, 2004 7.35 to 1.00
June 30, 2004 7.30 to 1.00
September 30, 2004 7.25 to 1.00
December 31, 2004 6.75 to 1.00
March 31, 2005 6.50 to 1.00
June 30, 2005 6.50 to 1.00
September 30, 2005 6.50 to 1.00
December 31, 2005 5.25 to 1.00
March 31, 2006 5.00 to 1.00
June 30, 2006 5.00 to 1.00
September 30, 2006 5.00 to 1.00
December 31, 2006 and thereafter 4.00 to 1.00
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of four consecutive fiscal
quarters of the Borrower ending with any fiscal quarter set forth below to be
less than the ratio set forth below opposite such fiscal quarter:
Consolidated
Interest Coverage
Fiscal Quarter Ratio
-------------- -----
December 31, 2003 2.50 to 1.00
March 31, 2004 2.50 to 1.00
June 30, 2004 2.50 to 1.00
September 30, 2004 2.50 to 1.00
December 31, 2004 2.50 to 1.00
March 31, 2005 and thereafter 3.00 to 1.00
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11.2 Threshold Liquidity Levels. The Company shall not permit
Threshold Liquidity to be less than that required by the Threshold
Liquidity Test on any date on or after September 30, 2005 until no
Convertible Debt is outstanding; provided that the requirements of this
Section 11.2 shall be temporarily suspended during such periods where
either (i) there are no Loans outstanding and L/C Obligations are less
than $50,000,000 or (ii) the Company's Consolidated Leverage Ratio is
less than or equal to 4.35 to 1.00.
11.3 Limitation on Indebtedness of Subsidiaries. The Company
shall not permit any of its Subsidiaries to, and the Subsidiaries shall not,
directly or indirectly, create, incur, assume or suffer to exist any
Indebtedness, except (a) any Indebtedness of Subsidiaries pursuant to any of the
Credit Documents, (b) any Guarantee Obligation of any Domestic Subsidiary
guaranteeing Indebtedness of the Company otherwise permitted hereunder so long
as such Domestic Subsidiary shall have executed and delivered to the
Administrative Agent a Subsidiary Guarantee and such Subsidiary Guarantee shall
be in full force and effect, (c) cash pooling arrangements in connection with
cash management systems entered into by the Company or any Subsidiaries in the
ordinary course of business; provided that such arrangements do not have a
negative balance, (d) Indebtedness in respect of drafts on Italian banks with
regard to working capital needs in the ordinary course of business, (e)
Indebtedness of any Foreign Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Lease Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(provided that such Indebtedness is incurred prior to or within 180 days after
such acquisition or the completion of such construction or improvement), (f)
Indebtedness of any Foreign Subsidiary owing to the Company or any other
Subsidiary, (g) Indebtedness specified on Schedule 11.3 and (h) any other
Indebtedness of a Foreign Subsidiary in an aggregate amount not to exceed
$150,000,000, of which no more than $50,000,000 may constitute Indebtedness of
European Subsidiaries.
11.4 Limitation on Liens. The Company shall not, and shall not
permit any of its Domestic Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Company or its Domestic Subsidiaries, as the case may be, in conformity
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
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69
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Domestic Subsidiary;
(f) Liens created in connection with the securitization of
Receivables; provided that (i) the aggregate net proceeds of any such
securitization transaction shall not exceed $550,000,000 and (ii) any
such securitization transaction shall be a Permitted Receivables
Securitization;
(g) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the
date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the date of
such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; provided that (i) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (ii) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets and (iii) such security interests shall not
apply to any other property or assets of the Company or any Subsidiary;
(i) any Lien on a bank account of the Company or any
Subsidiary arising in connection with the cash pooling arrangements
referred to in Section 11.3(c); and
(j) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Domestic
Subsidiaries) a Dollar Equivalent Amount equal $25,000,000 at any time
outstanding.
11.5 Limitation on Fundamental Changes. The Company shall not,
and shall not permit any of its Domestic Subsidiaries to, directly or
indirectly, enter into any merger, consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation
Arrow Electronics Credit Agreement
70
or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of, all or substantially all of its property, business or assets, except:
(i) any Subsidiary may be merged or consolidated with or into
the Company (provided that the Company shall be the continuing or
surviving corporation) or with or into any one or more wholly-owned
Domestic Subsidiaries; and
(ii) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) (a) to the Company or any other wholly owned Domestic
Subsidiary or (b) to any other Person if the Company would be permitted
to sell such assets directly to such Person under this Section 11.5.
11.6 Limitations on Payments. For the period from and including the
Closing Date until and including the first fiscal quarter end on which the
Consolidated Leverage Ratio for the period of four consecutive quarters ending
on such date is less than or equal to 3.5 to 1.0 (before and after giving effect
to such restricted payment), the Company shall not, and shall not permit any of
its Subsidiaries to, make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Capital Stock of any Loan Party, whether
now or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
any Loan Party (collectively, "Restricted Payments"), except that (w) the
Company or any Subsidiary may purchase all or any portion of the minority equity
interests in any Subsidiary listed as less than wholly-owned (directly or
indirectly) by the Company on Schedule 8.15, (x) any Subsidiary or Loan Party
may make Restricted Payments to any other Loan Party, (y) any Loan Party may
make Restricted Payments consisting solely of Capital Stock of any Loan Party
and (y) any Loan Party may make payments related to restricted stock for
employee compensation and ESOP related purchases in an aggregate amount not to
exceed $30,000,000 in each fiscal year of the Borrower.
11.7 Limitations on Acquisitions. The Company shall not, and shall not
permit any of its Subsidiaries to, purchase any assets constituting a business
unit of, or the Capital Stock of, any Person, or make any investment in or loan
or advance to any joint venture except for investments in Existing Joint
Ventures in an aggregate amount not to exceed $25,000,000, Permitted Joint
Ventures and Permitted Acquisitions; provided that immediately prior to and
after giving effect to such Permitted Acquisition:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) such Permitted Joint Ventures and Permitted Acquisitions are funded
(i) with common stock of the Company; or (ii) cash or other consideration, so
long as, at the time of such Permitted Joint Venture and Permitted Acquisitions
funded with consideration other than common stock of the Company, the Company
meets the Threshold Liquidity Test (without giving effect to the amounts in
clause (ii) of such term); provided that the Threshold Liquidity Test under this
clause (b)(ii) shall not be a condition to consummation of Permitted Joint
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Ventures or Permitted Acquisitions for aggregate consideration not exceeding
$25,000,000 in each fiscal year of the Company.
11.8 Limitation on Negative Pledge Clauses. The Company shall not, and
shall not permit any of its Subsidiaries to, enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Company or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, to secure the obligations of the Loan Parties under the Credit
Documents, other than (a) this Agreement and the other Credit Documents, (b)
conditions imposed by law, regulation, court order, rule or decree, (c)
agreements relating to Property encumbered by Liens permitted by Section 11.4 as
long as such agreements apply only to the Property encumbered by such Liens, (d)
restrictions contained in the Arrow Note Documents or any other evidence of
Indebtedness so long as not materially more restrictive in the aggregate than
the Arrow Note Documents, (e) any agreement relating to Property of a Subsidiary
that is in effect at the time such Person becomes a Subsidiary (provided that
such agreement was not entered into in contemplation of such Person becoming a
Subsidiary), (f) any restrictions with respect to a Subsidiary imposed pursuant
to an agreement that has been entered into in connection with the Disposition of
all or substantially all of the Capital Stock or assets of such Subsidiary, (g)
any agreement evidencing Indebtedness of any Foreign Subsidiary permitted by
Section 11.3 so long as such agreement does not restrict any Lien securing any
Property of the Company or any Domestic Subsidiary, (h) agreements with
suppliers to the Company or any Subsidiary relating to any inventory supplied by
such suppliers and (i) any restrictions in Hedging Agreements that require the
granting of liens to the counterparty thereunder on an equal and ratable basis
with Liens securing the obligations of the Loan Parties under the Credit
Documents.
11.9 Limitation on Restrictions on Subsidiary Distributions. The
Company shall not, and shall not permit any of its Subsidiaries to, enter into
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary to (a) make Restricted Payments in respect of
any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to,
the Company or any other Subsidiary, (b) make investments in the Company or any
other Subsidiary or (c) transfer any of its assets to the Company or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Credit Documents, (ii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary, (iii) conditions imposed
by law, regulation, court order, rule or decree, (iv) restrictions relating to
any special purpose entity under any Permitted Receivables Securitization, (v)
any restriction imposed on any Subsidiary that is in effect at the time such
Person becomes a Subsidiary (provided that such restriction was not entered into
in contemplation of such Person becoming a Subsidiary) and (vi) any restriction
in any agreement evidencing Indebtedness of any Foreign Subsidiary permitted by
Section 11.3.
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72
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) (i) Any Specified Borrower shall fail to pay any principal
of any Loan or any Reimbursement Obligation owing by it when due
(whether at the stated maturity, by acceleration or otherwise) in
accordance with the terms hereof; or (ii) any Local Currency Borrower
shall fail to pay any principal of or interest on any Local Currency
Loan when due in accordance with the applicable terms of the relevant
Local Currency Facility; or (iii) any Specified Borrower shall fail to
pay any interest on any Loan or any fee or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Company or any Subsidiary herein or in any other Credit Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any such other Credit Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Company or any Subsidiary shall default in the
observance or performance of any agreement contained in Section 11 and,
with respect to subsection 11.2, such default shall continue unremedied
for a period of 3 Business Days and, with respect to subsections 11.3
and 11.4, such default shall continue unremedied for a period of 20
days; or
(d) The Company or any Subsidiary shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Credit Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after the Company has
knowledge thereof; or
(e) Any of the Credit Documents shall cease, for any reason,
to be in full force and effect, or the Company shall so assert in
writing (except for the termination of any Local Currency Facility if
all Local Currency Loans and other amounts owing thereunder are paid in
full); or
(f) The Company or any of its consolidated Subsidiaries shall
(i) default in any payment of principal of or interest of any
Indebtedness (other than the Loans and Reimbursement Obligations) or in
the payment of any Guarantee Obligation or in connection with any
Permitted Receivables Securitization, in each case with an outstanding
principal amount in excess of a Dollar Equivalent Amount equal to
$50,000,000 when due beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Permitted Receivables
Securitization or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
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73
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(g)(i) Any Specified Borrower, or any Subsidiary that,
directly or indirectly, accounts for more than 5% of Total Assets, at
any date shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Company or any such Subsidiary
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against any Specified Borrower or any
Subsidiary any case, proceeding or other action of a nature referred to
in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Specified Borrower or any
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or
(h)(i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Banks is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to
a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if
any, could reasonably be expected to subject the Company to any tax,
penalty or other liabilities in the aggregate material in relation to
the business, operations, property or financial or other condition of
the Company; or
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74
(i) One or more judgments or decrees (other than those related
to material litigation listed on Schedule 12(i); provided that the
aggregate amount of such judgments shall not exceed euro 25,000,000)
shall be entered against the Company or any of its Subsidiaries
involving in the aggregate a liability (not paid or fully covered by
insurance) of a Dollar Equivalent Amount equal to $25,000,000 or more,
and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(j) The Company Guarantee or any Subsidiary Guarantee shall
cease, for any reason, to be in full force and effect (other than, in
the case of any Subsidiary Guarantee, in accordance with the terms
thereof) or any Guarantor party thereto shall so assert; or
(k) A Change in Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to any Specified
Borrower or Guarantor, automatically the Commitments shall immediately terminate
and the Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall become
immediately due and payable and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice to the Company declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required Banks, the
Administrative Agent shall, by notice to the Company, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to the preceding
sentence, the applicable Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of Letters of Credit issued for its
account. Each Borrower hereby grants to the Administrative Agent, for the
benefit of the Issuing Banks and the L/C Participants, a security interest in
such cash collateral to secure all obligations of such Borrower under this
Agreement and the other Loan Documents. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the applicable Borrower
hereunder. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the applicable Borrower hereunder shall have been paid in
full, the balance, if any, in such cash collateral account shall be returned to
the applicable Borrower. The Borrowers shall execute and deliver to the
Administrative Agent, for the account of the Issuing Banks and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to
Arrow Electronics Credit Agreement
75
evidence the creation and perfection of the within security interest in such
cash collateral account.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 13. THE ADMINISTRATIVE AGENT; THE SYNDICATION AGENTS; THE ARRANGER
13.1 Appointment. Each Bank hereby irrevocably designates and
appoints JPMorgan Chase Bank as the Administrative Agent of such Bank under this
Agreement and the other Credit Documents, and each such Bank irrevocably
authorizes JPMorgan Chase Bank, as the Administrative Agent for such Bank, to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
13.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Credit Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
13.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by the Company or
any officer thereof contained in this Agreement or any other Credit Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure of the Company to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement (other than conditions precedent set forth in Section 9.1) or any
other Credit Document, or to inspect the properties, books or records of the
Company.
13.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
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76
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Credit Document unless it shall first receive such advice or concurrence
of the Required Banks or all of the Banks, as may be required hereunder, as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected from liability to the Banks in acting, or
in refraining from acting, under this Agreement and the other Credit Documents
in accordance with a request of the Required Banks or all of the Banks, as may
be required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and their respective
successors and assigns.
13.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Bank or the Company referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks or all of the Banks, as may be
required hereunder; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
13.6 Non-Reliance on Administrative Agent and Other Banks.
Each Bank expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Company, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement and the other Credit Documents to which
it is or will be a party. Each Bank also represents that it will, independently
and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Credit Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Company and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business,
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77
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company and its Subsidiaries which may come into the
possession of the Administrative Agent and any Issuing Bank or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
13.7 Indemnification. The Banks agree to indemnify the
Administrative Agent and each Issuing Bank in their respective capacities as
such (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this subsection (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent or any Issuing Bank in
any way relating to or arising out of this Agreement, any of the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent or any Issuing Bank under or in connection with any
of the foregoing; provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's or Issuing Bank's, as the case may be, gross negligence
or willful misconduct. The agreements in this subsection shall survive the
payment of the Loans, the Reimbursement Obligations and all other amounts
payable hereunder.
13.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company and any of its
Subsidiaries as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Credit Documents. With respect to its Loans
made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Credit Documents as any Bank and may
exercise the same as though it were not the Administrative Agent, and the terms
"Bank" and "Banks" shall include the Administrative Agent in its individual
capacity.
13.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Banks; provided
that any such resignation shall not be effective until a successor agent has
been appointed and approved in accordance with this subsection 13.9, and such
successor agent has accepted its appointment. If the Administrative Agent shall
resign as Administrative Agent under this Agreement and the other Credit
Documents, then the Required Banks shall appoint from among the Banks a
successor administrative agent for the Banks, which successor agent shall be
approved by the Company (which approval shall not be unreasonably withheld or
delayed or be required during the existence of an Event of Default), whereupon
such successor administrative agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
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former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement. After
any retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Credit Documents.
13.10 The Arranger and Syndication Agents. Each Bank
acknowledges that none of the Arranger and the Syndication Agents, in such
respective capacity, shall have any duties or responsibilities, or shall incur
any liabilities, under this Agreement or the other Credit Documents.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers. (a) Neither this Agreement nor
any other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Banks may, or, with the written consent of the Required
Banks, the Administrative Agent may, from time to time, (i) enter into with the
Loan Parties party thereto written amendments, supplements or modifications to
this Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder or
(ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the aggregate amount or extend the expiration date
of any Bank's Commitment, in each case without the consent of each Bank directly
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of Required
Banks, or consent to the assignment or transfer by the Company of any of its
rights and obligations under this Agreement and the other Credit Documents or
amend, modify or waive subsection 7.3(a) or 14.6(a), or amend, modify or waive
any other provision hereof specifying the number or percentage of Banks required
to waive, amend or modify any rights hereunder or any determination granting
consent hereunder, or release any Subsidiary from its Subsidiary Guarantee or
release the Company from the Company Guarantee, in each case without the written
consent of all the Banks, (iii) amend or modify the definition of "Early
Termination Event", "Threshold Liquidity" or "Threshold Liquidity Test", without
the written consent of the Supermajority Banks, or (iv) amend, modify or waive
any provision of Section 13 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Banks and shall be binding upon
the Company, the Subsidiary Borrowers, the Banks, the Syndication Agents, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Company, the Banks and the Administrative Agent shall be restored to
their former position and rights hereunder and under any other Credit Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
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79
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II, III and IV may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the
Company as additional Subsidiary Borrowers upon (A) execution and
delivery by the Company, any such Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (1) if reasonably requested by the
Administrative Agent, a legal opinion in respect of such additional
Subsidiary Borrower and (2) such other documents with respect thereto
as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Subsidiary Borrower upon (A) execution and delivery by the Company of a
Schedule Amendment providing for such amendment, (b) repayment in full
of all outstanding Loans of such Subsidiary Borrower and (c) cash
collateralization of all outstanding Letters of Credit issued for the
account of such Subsidiary Borrower.
(iii) Schedule III will be amended to designate other Banks as
additional or replacement Swing Line Banks or additional Issuing Banks,
upon execution and delivery by the Company, the Administrative Agent
and such additional or replacement Swing Line Bank or additional
Issuing Bank, as the case may be, of a Schedule Amendment providing for
such amendment. In the case of any replacement of a Swing Line Bank
pursuant to a Schedule Amendment, the existing Swing Line Bank replaced
pursuant thereto shall cease to be a Swing Line Bank upon the
effectiveness of such Schedule Amendment and the repayment of all Swing
Line Loans owing to such replaced Swing Line Bank.
(iv) Schedule III will be amended to change administrative
information (including the Swing Line Rate definition) with respect to
Swing Line Banks or Issuing Banks, upon execution and delivery by the
Company, the Administrative Agent and such Swing Line Bank or Issuing
Bank, as the case may be, of a Schedule Amendment providing for such
amendment.
(v) Schedule IV will be amended to change administrative
information contained therein (other than any interest rate definition,
Funding Time, Payment Time or notice time contained therein) or to add
Available Foreign Currencies (and related interest rate definitions and
administrative information), upon execution and delivery by the Company
and the Administrative Agent of a Schedule Amendment providing for such
amendment.
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80
(vi) Schedule IV will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the Company, the Required
Banks and the Administrative Agent of a Schedule Amendment providing
for such amendment.
(vii) Schedule IV will be amended to change any interest rate
definition contained therein, upon execution and delivery by the
Company, all the Banks and the Administrative Agent of a Schedule
Amendment providing for such amendment.
(c) The Administrative Agent shall give prompt notice to each Bank of
any amendment effect pursuant to subsection 14.1(b).
(d) Notwithstanding the provisions of this subsection 14.1, any Local
Currency Facility may be amended, supplemented or otherwise modified in
accordance with its terms so long as after giving effect thereto either (i) such
Local Currency Facility ceases to be a "Local Currency Facility" and the Company
so notifies the Administrative Agent or (ii) the Local Currency Facility
continues to meet the requirements of a Local Currency Facility set forth
herein.
(e) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any Bank (an "Objecting Bank") that
refuses to consent to an amendment, supplement or waiver that both requires the
consent of all the Banks in order to become effective and is acceptable to one
or more other Banks constituting the Required Banks, and to purchase the
outstanding Loans of such Objecting Bank and such Objecting Bank's rights
hereunder and with respect thereto, without recourse upon, or warranty by, or
expense to, such Objecting Bank (unless such Objecting Bank agrees otherwise),
for a purchase price equal to the outstanding principal amount of the Loans of
such Objecting Bank plus (i) all interest accrued and unpaid thereon and all
other amounts owing to such Objecting Bank hereunder and (ii) any amount which
would be payable to such Objecting Bank pursuant to subsection 7.8 (assuming
that all Loans of such Objecting Bank were prepaid on the date of such
assumption), and upon such assumption and purchase by the Replacement Bank, such
Replacement Bank, if it is not already a Bank, shall be deemed to be a "Bank"
for purposes of this Agreement and such Objecting Bank shall cease to be a
"Bank" for purposes of this Agreement and shall no longer have any obligations
or rights hereunder (other than any obligations or rights which according to
this Agreement shall survive the termination of this Agreement).
14.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or five days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Company, the Subsidiary
Borrowers and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Loans:
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81
The Company: Arrow Electronics, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: JPMorgan Chase Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Subsidiary Borrowers: c/o Arrow Electronics, Inc
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
; provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Swing Line Outstandings, Notice of Swing Line Refunding,
Notice of Local Currency Outstandings, Notice of Prepayment, Notice of Swing
Line or Borrowing, or any notice pursuant to subsections 2.4, 2.5 or 5.2 shall
not be effective until received.
14.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any Bank,
any right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
14.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Credit Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the other Credit Documents and the making of the Loans hereunder and the
issuance of Letters of Credit.
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14.5 Payment of Expenses and Taxes. The Company agrees (a) to
pay or reimburse the Administrative Agent and the Arranger for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Credit Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the fees and disbursements of counsel to the Administrative
Agent and the Arranger, (b) to pay or reimburse each Bank and the Administrative
Agent and any Issuing Bank for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents upon the
occurrence of an Event of Default, including, without limitation, the fees and
disbursements of counsel to the Administrative Agent and to the several Banks
and any Issuing Bank, and (c) to pay, indemnify, and hold each Bank, each Agent,
the Arranger and the Administrative Agent and any Issuing Bank harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other
Credit Documents and any such other documents, and (d) to pay, indemnify, and
hold each Bank, each Agent, the Arranger and the Administrative Agent and any
Issuing Bank (and their respective directors, officers, employees and agents)
(collectively, the "indemnified person") harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Credit Documents and any such other documents,
including, without limitation, any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Company, any of
its Subsidiaries or any of the Properties (it being understood that costs and
expenses incurred in connection with the enforcement or preservation of rights
under this Agreement and the other Credit Documents shall be paid or reimbursed
in accordance with clause (b) above rather than this clause (d)) (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Company shall have no obligation hereunder to any indemnified
person with respect to indemnified liabilities arising from (i) the gross
negligence or willful misconduct of such indemnified person or (ii) legal
proceedings commenced against the Administrative Agent, any Issuing Bank or any
Bank by any security holder or creditor thereof arising out of and based upon
rights afforded any such security holder or creditor solely in its capacity as
such. Any payments required to be made by the Company under this subsection 14.5
shall be made within 30 days of the demand therefor. The agreements in this
subsection shall survive repayment of the Loans and all other amounts payable
hereunder.
14.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Subsidiary Borrowers, the Banks, the Administrative Agent, all
future holders of the Loans and their respective successors and assigns, except
that no Specified Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each Bank.
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83
(b) Any Bank may, without the consent of the Borrowers, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Bank, any Commitment of such Bank or any other
interest of such Bank hereunder and under the other Credit Documents. In the
event of any such sale by a Bank of a participating interest to a Participant,
such Bank's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Bank shall remain solely responsible for
the performance thereof, such Bank shall remain the holder of any such Loan for
all purposes under this Agreement and the other Credit Documents, and the
Company, the Subsidiary Borrowers and the Administrative Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement and the other Credit Documents. In no event
shall any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Credit Document, or any consent to
any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Loans or any fees payable hereunder, or postpone the date of the final maturity
of the Loans, in each case to the extent subject to such participation. Each of
the Company and the Subsidiary Borrowers agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Banks the proceeds thereof as provided in subsection
14.7(a) as fully as if it were a Bank hereunder. Each of the Company and the
Subsidiary Borrowers also agrees that each Participant shall be entitled to the
benefits of subsections 7.5, 7.6 or 7.8 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Bank;
provided that, in the case of subsection 7.6, such Participant shall have
complied with the requirements of said subsection and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any such
subsection than the transferor Bank would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Bank
to such Participant had no such transfer occurred.
(c) Any Bank may, with the consent of the Issuing Banks, if
applicable (which shall not be unreasonably withheld or delayed), in accordance
with applicable law, at any time and from time to time assign to any Bank or any
affiliate thereof or, with the consent of the Administrative Agent and the
Company (which shall not be unreasonably withheld or delayed and provided that
the consent of the Company shall not be required for such assignment if a
Default or Event of Default pursuant to subsection 12(a), 12(c) or 12(g) has
occurred and is continuing at the time of such assignment), to an additional
bank, financial institution or other entity ("an Assignee") all or any part of
its rights and obligations under this Agreement and the Loans pursuant to an
Assignment and Acceptance, executed by such Assignee, such assigning Bank and
any other Person whose consent is required pursuant to this paragraph, and
delivered to the Administrative Agent for its acceptance and recording in the
Register; provided that after giving effect to any such assignment, the
transferor Bank's aggregate Dollar Equivalent Amount of its Local Currency Bank
Maximum Borrowing Amount under all Local Currency Facilities may not exceed its
Commitment hereunder; provided further that, unless otherwise agreed by the
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84
Company and the Administrative Agent, no such assignment to an Assignee (other
than any Bank or any affiliate thereof) shall be in an aggregate principal
amount of less than $5,000,000, except in the case of an assignment of all of a
Bank's interests under this Agreement. For purposes of the proviso contained in
the preceding sentence, the amount described therein shall be aggregated in
respect of each Bank and its affiliates, if any. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Bank hereunder with a Commitment and/or Loans as set
forth therein, and (y) the assigning Bank thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such assigning Bank shall cease to be a party hereto but shall
continue to be entitled to the provisions hereunder which survive termination).
(d) The Administrative Agent shall maintain, on behalf of the
Borrowers, at its address referred to in subsection 14.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment of,
and principal amount of the Loans owing hereunder to, each Bank from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. Any assignment of any
Loan shall be effective only upon appropriate entries with respect thereto being
made in the Register. The Register shall be available for inspection by the
Company or any Bank at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank, an Assignee and any other Person whose consent is required
by Section 14.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register.
(f) The Company authorizes each Bank to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Bank's possession concerning the
Company and its Affiliates which has been delivered to such Bank by or on behalf
of the Company pursuant to this Agreement or which has been delivered to such
Bank by or on behalf of the Company in connection with such Bank's credit
evaluation of the Company and its Affiliates prior to becoming a party to this
Agreement so long as each such prospective Transferee shall execute a
confidentiality agreement containing provisions substantially similar to the
provisions contained in the next succeeding sentences of this paragraph (f). The
Administrative Agent and each Bank shall hold nonpublic information obtained
pursuant to the requirements of this Agreement other than information (i) that
is, or generally becomes, available to the public, (ii) that was or becomes
available to the Administrative Agent or any Bank on a nonconfidential basis or
(iii) that becomes available to the Administrative Agent or any Bank from a
Person or other source that is not, to the best
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85
knowledge of the Administrative Agent or such Bank, as the case may be,
otherwise bound by a confidentiality obligation to the Company, in accordance
with its customary procedures for treatment of confidential information and in
accordance with safe and sound banking practices and in any event, may make
disclosure reasonably required by any Governmental Authority or representative
thereof pursuant to subpoena or other legal process or as otherwise required by
law, order or regulation. Unless specifically prohibited by applicable law,
regulation, rule or court order, the Administrative Agent and each Bank shall
notify the Company of any request by any Governmental Authority or
representative thereof (other than any such request in connection with an
examination of the financial condition of the Administrative Agent or such Bank
by such Governmental Authority) for disclosure of such information by the
Administrative Agent or such Bank so that any of them may seek an appropriate
protective order. Except as may be required by an order of a court of competent
jurisdiction and to the extent set forth therein, neither the Administrative
Agent nor any Bank shall be obligated or required to return any materials
furnished by the Company. Nothing in this paragraph (f) shall prohibit the
Administrative Agent or any Bank from disclosing nonpublic information to its
examiners, regulators and professional advisors. Notwithstanding anything herein
to the contrary, any party to this Agreement (and any employee, representative,
or other agent of any party to this Agreement) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure of
the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating to
such tax treatment and tax structure. However, any such information relating to
the tax treatment or tax structure is required to be kept confidential to the
extent necessary to comply with any applicable federal or state securities laws.
(g) Nothing herein shall prohibit any Bank from pledging or
assigning any Loan to any Federal Reserve Bank in accordance with applicable law
or require any Bank to obtain the consent of any Loan Party in order to pledge
or assign any Loan to any Federal Reserve Bank in accordance with applicable
law.
14.7 Adjustments; Set-off. (a) If any Bank (a "benefitted
Bank") shall at any time receive any payment of all or part of its Loans or the
Reimbursement Obligations then due and owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 12(g), or otherwise), in a greater proportion than any such payment to
or collateral received by any other Bank, if any, in respect of such other
Bank's Loans or the Reimbursement Obligations then due and owing to it, or
interest thereon, such benefitted Bank shall purchase for cash from the other
Banks a participating interest in such portion of each such other Bank's Loan or
the Reimbursement Obligations owing to it, or shall provide such other Banks
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefitted Bank to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Banks; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefitted Bank, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. Each of the Company and the Subsidiary Borrowers
agrees that each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of payment (including, without limitation, rights of
set-off) with respect to such portion as fully as if such Bank were the direct
holder of such portion.
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86
(b) In addition to any rights and remedies of the Banks
provided by law, each Bank shall have the right, without prior notice to the
Company or any Subsidiary Borrower, any such notice being expressly waived by
the Company and the Subsidiary Borrowers to the extent permitted by applicable
law, upon any amount becoming due and payable by the Company hereunder or under
this Agreement or the other Credit Documents (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Bank or any branch or
agency thereof to or for the credit or the account of the Company or such
Subsidiary Borrower, as the case may be. Each Bank agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application made
by such Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
14.8 Power of Attorney. Each Subsidiary Borrower hereby grants
to the Company an irrevocable power of attorney to act as its attorney-in-fact
with regard to matters relating to this Agreement, the Applications and each
other Credit Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Subsidiary Borrower hereby explicitly
acknowledges that the Administrative Agent and each Bank has executed and
delivered this Agreement and each other Credit Document to which it is a party,
and has performed its obligations under this Agreement and each other Credit
Document to which it is a party, in reliance upon the irrevocable grant of such
power of attorney pursuant to this subsection 14.8. The power of attorney
granted by each Subsidiary Borrower hereunder is coupled with an interest.
14.9 Judgment. (a) If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of the Company or any Subsidiary Borrower
in respect of any sum due to any Bank or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement or the other Credit Documents (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Bank or the Administrative Agent (as the case may be)
of any sum adjudged to be so due in the Judgment Currency such Bank or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to such Bank or the Administrative Agent (as the case may be) in the
Agreement Currency, the Company or such Subsidiary Borrower (as the case may be)
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Bank or the
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87
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Bank or the Administrative Agent (as the case may be), such Bank or the
Administrative Agent (as the case may be) agrees to remit to the Company or such
Subsidiary Borrower (as the case may be) such excess.
14.10 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Company and the
Administrative Agent.
14.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.12 Integration. This Agreement and the other Credit
Documents represent the agreement of the Company, the Subsidiary Borrowers, the
Syndication Agents, the Administrative Agent and the Banks with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Administrative Agent or any Bank relative to subject matter
hereof not expressly set forth or referred to herein or in the other Credit
Documents.
14.13 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS (OTHER THAN ANY LOCAL CURRENCY FACILITY) AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
(OTHER THAN ANY LOCAL CURRENCY FACILITY) SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14.14 Submission To Jurisdiction; Waivers. (a) Each of the
Company and the Subsidiary Borrowers hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Credit Documents to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from
any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead
or claim the same;
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88
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Company at its address
set forth in subsection 14.2 or at such other address of which
the Administrative Agent shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to xxx in any other
jurisdiction; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
subsection 14.14(a) and agrees that service of process in any such proceeding
may be made by mailing or delivering a copy thereof to it care of the Company at
its address for notice set forth in subsection 14.2.
14.15 Acknowledgements. Each of the Company and the Subsidiary
Borrowers hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit
Documents;
(b) none of the Syndication Agents, the Administrative Agent
or any Bank has any fiduciary relationship with or duty to the Company
and the Subsidiary Borrowers arising out of or in connection with this
Agreement or any of the other Credit Documents, and the relationship
between the Syndication Agents, the Administrative Agent and the Banks,
on one hand, and the Company and the Subsidiary Borrowers, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Banks or among the Company and the
Subsidiary Borrowers and the Banks.
14.16 WAIVERS OF JURY TRIAL. THE COMPANY, THE SUBSIDIARY
BORROWERS, THE SYNDICATION AGENTS, THE ADMINISTRATIVE AGENT AND THE BANKS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
Arrow Electronics Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
ARROW ELECTRONICS, INC.
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President and Treasurer
ARROW EUROPE GMBH
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:
XXXXXXX ELECTRONIC GMBH
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:
ARROW ELECTRONICS (UK) LTD.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
ARROW ELECTRONIQUE S.A.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
ARROW COMPUTER PRODUCTS SNC
By: /s/ Alain Gorrec
-----------------------------------
Name: Alain Gorrec
Title: Gerant
Arrow Electronics Credit Agreement
ARROW NORDIC COMPONENTS AB
By:/s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
MICROTRONICA UK
By:/s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
TEKELEC EUROPE S.A.
By:/s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
B.V. ARROW ELECTRONICS DLC
By:/s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:
ARROW ASIA PAC LTD.
By:/s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
COMPONENTS AGENT (CAYMAN) LTD.
By:/s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:
Arrow Electronics Credit Agreement
JPMORGAN CHASE BANK, as Administrative
Agent, as an Agent and as a Bank
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Arrow Electronics Credit Agreement
BANK OF AMERICA, N.A., as a
Syndication Agent and as a Bank
By: /s/ Xxxxx XxXxxxx
-----------------------------------
Name: Xxxxx XxXxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA, as a
Syndication Agent and as a Bank
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
BNP PARIBAS, as Syndication Agent
` and as a Bank
By:/s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxx X. March
-----------------------------------
Name: /s/ Xxxxx X. March
Title: Vice President
FLEET NATIONAL BANK, as Syndication
Agent and as a Bank
By: /s/ Xxxxxx X. Melichasek
-----------------------------------
Name: Xxxxxx X. Melichasek
Title: Senior Vice President
Arrow Electronics Credit Agreement
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Bank
By:/s/ Magreger Hyde
-----------------------------------
Name: Magreger Hyde
Title: Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as a Bank
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch,
as a Bank
By:/s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By:/s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
NATEXIS BANQUES POPULAIRES, as a Bank
By:/s/ Nicocat Regent
-----------------------------------
Name: Nicocat Regent
Title: Vice President Multinacional
By: /s/ Xxxxx X. van Tulder
-----------------------------------
Name: Xxxxx X. van Tulder
Title: Vice President and Manager
Multinacional Group
Arrow Electronics Credit Agreement
CREDIT INDUSTRIAL & COMMERCIAL, as
a Bank
By:/s/ A. de Gronard
-----------------------------------
Name: A. de Gronard
Title: Senior Vice President
By:/s/ H. Poullennec
-----------------------------------
Name: H. Poullennec
Title: Senior Vice President
ROYAL BANK OF CANADA, as a Bank
By:/s/ Xxxxxxxxx Xxxxxx-Allegra
-----------------------------------
Name: Xxxxxxxxx Xxxxxx-Allegra
Title: Authorized Signatory
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH, as a Bank
By:/s/ J. Xxxxxxxx Xxxxxxx
-----------------------------------
Name: J. Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
DANSKE BANK, as a Bank
By:/s/ Xxxx X'Xxxxx
-----------------------------------
Name: Xxxx X'Xxxxx
Title: Vice President
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
Arrow Electronics Credit Agreement
SCHEDULE I
BANKS AND COMMITMENTS
Pounds Hong Kong Swedish
Euro Sterling Dollar Kroner
Commitment Commitment Commitment Commitment
Amount Amount Amount Amount
Dollar (Dollar (Dollar (Dollar (Dollar
Commitment Equivalent Equivalent Equivalent Equivalent
Bank Amount Amount) Amount) Amount) Amount)
------------------------------- ------------- ------------- ------------ ------------- -------------
JPMORGAN CHASE BANK $ 47,000,000 $34,000,000 $ 22,100,000 $ 10,800,000 $ 10,800,000
BANK OF AMERICA, N.A. 44,500,000 32,200,000 20,900,000 10,200,000 10,200,000
BNP PARIBAS 44,500,000 32,200,000 20,900,000 10,200,000 10,200,000
FLEET NATIONAL BANK 44,500,000 32,200,000 20,900,000 10,200,000 10,200,000
THE BANK OF NOVA SCOTIA 44,500,000 32,200,000 20,900,000 10,200,000 10,200,000
BANK OF TOYKO-MITSUBISHI 35,000,000 25,300,000 16,400,000 8,000,000 8,000,000
CREDIT SUISSE FIRST BOSTON 35,000,000 25,300,000 16,400,000 8,000,000 8,000,000
XXXXXXX XXXXX 35,000,000 -0- 5,000,000 5,000,000 5,000,000
THE ROYAL BANK OF CANADA 35,000,000 25,300,000 16,400,000 8,000,000 8,000,000
WACHOVIA BANK NATIONAL 35,000,000 25,300,000 16,400,000 8,000,000 8,000,000
ASSOCIATION
CREDIT INDUSTRIEL ET COMMERCIAL 20,000,000 14,500,000 9,400,000 4,600,000 4,600,000
DEN DANSKE BANK 20,000,000 14,500,000 9,400,000 4,600,000 4,600,000
NATEXIS BANQUES POPULAIRES 10,000,000 7,200,000 4,700,000 2,300,000 2,300,000
------------- ------------- ------------ ------------ -------------
TOTAL: $450,000,000 $300,000,00 $200,000,000 $100,000,000 $100,000,000
SCHEDULE II
SUBSIDIARY BORROWERS
FOREIGN SUBSIDIARY BORROWERS
Name and Address: Jurisdiction of Incorporation:
----------------- ------------------------------
ARROW EUROPE GMBH. Germany
Xx Xxxxxxxx 00x
X-00000 Xxxxxxxx
Xxxxxxx
XXXXXXX ELECTRONIC GMBH Germany
Xxx-Xxxxxx XxxxXX 0-0
X-00000 Xxxxxxxx
Xxxxxxx
ARROW ELECTRONICS (UK) LTD. England
Xxxxxxxx Xxx
Xxxxxx Xxxxx
XX000XX
Xxxxxxx
ARROW ELECTRONIQUE S.A. France
00 xxx xx Xxxx
Xxxxx 000
00000 Xxxxxx Xxxxx
Xxxxxx
ARROW COMPUTER PRODUCTS SNC France
7, avenue du Canada
X.X. Xxxxxxxxxxx
00000 XXX XXXX xxxxx
Xxxxxx
ARROW NORDIC COMPONENTS AB Sweden
Xxx 00
Xxxxxxxxxxxxxx 0
XX-000 00 Xxxxx
Xxxxxx
MICROTRONICA UK England
0 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxx,
XX0XXX, Xxxxxx Xxxxxxx
TEKELEC EUROPE S.A. France
0, Xxx Xxxxx Xxxxxx
00000 Xxxxxx Xxxxx
0
Xxxxxx
X.X. XXXXX XXXXXXXXXXX XXX Xxxxxxxxxxx
Blauwwater 13
5951 DB Belfed
The Netherlands
ARROW ASIA PAC LTD. Hong Kong
20/F Tower II, Ever Gain Xxxxx
00 Xxxxxxxxx Xxxx Xxxx,
Xxxx Xxxxx
Xxxx Xxxx
COMPONENTS AGENT (CAYMAN) LTD. British West Indies
Century Yard, Cricket Square, Xxxxxxxx Drive
P.O. Box 2681 GT
George Town, Grand Cayman
British West Indies
SCHEDULE III
CERTAIN INFORMATION CONCERNING SWING LINE LOANS AND LETTERS OF CREDIT
I. ISSUING BANKS AND ISSUING OFFICES
NAME OF ISSUING BANK ISSUING OFFICE CURRENCIES
------------------------------ ------------------------------ ------------------
JPMorgan Chase Bank 00000 Xxxxxxxx Xxxxx Xxxxx All Available
c/o JPMorgan Treasury Services 4th Floor Currencies
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx,
Standby LC Dept.
Tel.: (000) 000-0000
Bank of America, N.A. Mail Code CA4-709-05-09 All Available
0000 Xxxxxxx Xxxx. Xxxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
8
II. SWING LINE NOTES
Dollar Equivalent
Swing Line Amount of Swing
Borrower Swing Line Bank Currencies Line Limit
-------- --------------- ---------- ----------
All Borrowers Bank of America, N.A. All Available Currencies $44,500,000
All Borrowers JPMorgan Chase Bank All Available Currencies $47,000,000
All Borrowers The Bank of Nova Scotia All Available Currencies $44,500,000
Arrow Electronique S.A. Credit Industriel et Euro $15,000,000
Commercial
Arrow Computer Products SNC $ 5,000,000
Tekelec Europe SA $15,000,000
9
SWING LINE LENDERS -- ADDRESSES OF LENDING OFFICES
Bank of America, N.A.
Mail Code CA4-706-05-09
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
phone: (000) 000-0000
fax: (000) 000-0000
Credit Industriel et Commercial
00 xxx xx xx Xxxxxxxx
Xxxxx Xxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxxxx
phone: 000-000-0000-0000
fax: 000-000-0000-0000
Danske Bank Den Danske Bank
Stockholm Branch Ballerup Branch
Xxxxxxxxxxxxx 0 Xxxxxxxxxxxx 0
X.X. Xxx 0000 Postboks 100
SE 10392 Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxx
Attn: Xxxxxx Xxxxxxxxxx Attn: Xxxxx Xxxxxx
phone: 000-00-0-000-0000 phone: 000-00-000000
fax: 000-00-0-000-0000 fax: 000-00-000000
JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
phone: (000) 000-0000
fax: (000) 000-0000
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
phone: (000) 000-0000
fax: 000-000-0000
SCHEDULE IV
ADMINISTRATIVE SCHEDULE
SECTION 15. COMMITTED RATE LOANS
15.1 Interest Rates for Each Currency
Dollars:
(a) Committed Rate ABR Loans: ABR
(b) Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Dollars for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Telerate Page 3750 (or, if no
such quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London
time, on the date which is two Business Days prior to
the first day of such Interest Period.
Euros:
Committed Rate Eurocurrency Loans:
FOR ANY INTEREST PERIOD IN RESPECT OF ANY TRANCHE, THE RATE FOR
DEPOSITS IN EUROS FOR A PERIOD BEGINNING ON THE FIRST DAY OF SUCH
INTEREST PERIOD AND ENDING ON THE LAST DAY OF SUCH INTEREST PERIOD
WHICH APPEARS ON THE TELERATE PAGE 3750 (OR, IF NO SUCH QUOTATION
APPEARS ON SUCH TELERATE PAGE, ON THE APPROPRIATE REUTERS SCREEN) AS OF
11:00 A.M., LONDON TIME, ON THE DATE WHICH IS TWO BUSINESS DAYS PRIOR
TO THE FIRST DAY OF SUCH INTEREST PERIOD.
Hong Kong Dollars:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Hong Kong Dollars for a
period beginning on the first day of such Interest
Period and ending on the last day of such Interest
Period which appears on the Reuters Screen HIBO as of
11:00 a.m., London time, on the Quotation Day for
such Interest Period.
Swedish Kroner:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Swedish Kroners for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Reuters Screen SIOR as of 11:00
a.m., London time, on the date which is two Business
Days prior to the first day of such Interest Period.
15.2 Funding Office, Funding Time, Payment Office, Payment
Time for Each Currency.
Dollars:
(a) Funding Office: JPMorgan Xxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
(x) Funding Time: 11:00 A.M., New York time for Eurocurrency
Loans
1:00 P.M., New York time for ABR Loans
(c) Payment Office: JPMorgan Xxxxx Xxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
(x) Payment Time: 12:00 Noon, New York time.
Euros:
1. Funding Office:
Account of: X.X. Xxxxxx Europe Limited
Account No: 6001600037
(i) X.X. XXXXXX XX, XXXXXXXXX
Xxxx Xxxx Dollars:
1. Funding Office:
Account of: X.X. Xxxxxx Europe Limited
Account No: 0000-000000-000
JPMorgan Chase Bank
Hong Kong
Swedish Kroner:
1. Funding Office:
Account of: X.X. Xxxxxx Europe Limited
Account No: 5201-0000000
Skandinaviska Banken Enskllda Banken,
Stockholm
15.3 Notice of Borrowing:
Dollars:
(a) Deliver to: JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
(b) Time:
(i) ABR Loans--Not later than 12:00 Noon, New York
City time, on the Borrowing Date
(ii) Eurocurrency Loans--Not later than 11:00 A.M.,
London time, three Business Days prior to the
Borrowing Date.
(c) Information Required: Name of Borrower, amount to be
borrowed, whether ABR Loans or Eurocurrency Loans, amounts of
each such type, and Interest Periods for Eurocurrency Loans
and wire instructions for remittance of drawdown proceeds.
Available Foreign Currencies:
1. Deliver to: X.X. Xxxxxx Europe Limited
000 Xxxxxx Xxxx
Xxxxxx, XX0X 0XX
Attention: Xxxxx Xxxxxx
Telephone No: 000-00-000-000 2353
Fax No: 000-00-000-000 2360
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Business Day on which the
interest rate is determined in respect of such
Borrowing Date.
3. Information Required: Name of Borrower, amount to be
borrowed, and Interest Periods and wire instruction
for remittance of drawdown proceeds.
15.4 Notice of Continuation; Notice of Prepayment;
Dollars:
(a) Deliver to: JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
(b) Time:
(i) ABR Loans--Not later than 12:00 Noon, New York
City time, on the prepayment date
(ii) Eurocurrency Loans----Not later than 11:00 A.M.,
London time, three Business Days prior to the last
day of the current Interest Period for continuations
or the prepayment date, as the case may be.
(c) Information Required: Name of Borrower, amount to be
continued or prepaid, as the case may be, whether ABR Loans or
Eurocurrency Loans, amounts of each such Type, and Interest
Periods for Eurocurrency Loans to be continued.
Available Foreign Currencies:
1. Deliver to: X.X. Xxxxxx Europe Limited
000 Xxxxxx Xxxx
Xxxxxx, XX0X 0XX
Attention: Xxxxx Xxxxxx
Telephone No: 000-00-000-000 2353
Fax No: 000-00-000-000 2360
2. Time:
Not later than 11:00 A.M., London time, three
Business Days prior to the last day of the current
Interest Period for continuations or the prepayment
date, as the case may be.
3. Information Required: Name of Borrower, amount to be
continued or prepaid, as the case may be, whether ABR
Loans or Eurocurrency Loans, amounts of each such
Type, and Interest Periods for Eurocurrency Loans to
be continued.
SECTION 16. COMPETITIVE ADVANCE LOANS
16.1 Competitive Advance Loan Request by Company
(a) 1. Deliver to: JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
2. Delivery time: By 9:30 A.M. New York time on the date on
which Competitive Advance Loan Offers are requested.
3. Information to be set forth:
Name of Borrower.
Amount and Currency of Competitive Advance Loan.
Date of Competitive Advance Loan.
Maturity Date.
Interest Payment Dates.
Date on which Competitive Advance Loan Offers are due.
16.2 Competitive Advance Loan Offer to Company
(a) Deliver to: JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telephone No: (000) 000-0000
Fax No: (000) 000-0000
(b) Delivery time: By 11:00 A,M. New York time on date set
forth in Competitive Advance Loan Request.
(c) Information to be set forth:
Name of Bank.
Amount and Currency of Competitive Advance Loan offered for
each maturity date.
interest rate.
If Competitive Advance Loans may not be prepaid.
SECTION 17. NOTICE OF SWING LINE OUTSTANDINGS
17.1 Deliver to:
17.2 Delivery time: By close of business in London on the date
of request by Administrative Agent and on the first Business Day of each month
on which a Swing Line Lender has any outstanding Swing Line Loans as of the
opening of business on such first day.
17.3 Information to be set forth:
Name of Borrower
Number of Swing Line Loans
Amount and Currency of each Swing Line Loan
Date of each Swing Line Loan
SECTION 18. NOTICE OF SWING LINE REFUNDING
18.1 Deliver to:
18.2 Information to be set forth:
Name of Borrower
Number of Swing Line Loans
Amount and Currency of each Swing Line Loan
Date of each Swing Line Loan
SECTION 19. NOTICE OF LOCAL CURRENCY OUTSTANDINGS
(a) Deliver to:
(b) Delivery time: By close of business in London on the date
of making of each Local Currency Loan and on the last Business
Day of each month on which the applicable Local Currency
Borrower has outstanding any Local Currency Loans.
(c) Information to be set forth:
Name of Borrower
Amount and Currency of outstanding Local Currency Loans
SCHEDULE 1.1
EXISTING JOINT VENTURES
Arrow-Altech Holdings (Pty) Limited, a South African company, and its
subsidiaries.
Marubun-Arrow Asia Limited, a British Virgin Islands company, and its
subsidiaries.
Marubun-Arrow USA, LLC, a Delaware limited liability company.
SCHEDULE 8.10
OUTSTANDING LOCAL CURRENCY LOANS
None.
SCHEDULE 8.13
EXCLUDED ERISA ARRANGEMENTS
1. Extended Separation Benefits
The Company maintains a broad-based program to shelter employees at all
levels from any adverse consequences which might result from a change in control
of the Company. A change in control is defined in the program to include such
time that any person becomes the beneficial owner, directly or indirectly, of
30% or more of the combined voting power of the Company's voting securities or
certain changes occur in the constitution of the Company's Board of Directors.
Pursuant to a policy adopted by the Board of Directors in 1998, the period of
salary continuation normally extended to employees whose employment is
terminated as a result of a workforce reduction or reorganization (which period
ranges from six to 24 weeks depending upon the length of service with the
Company) is tripled if employment is terminated by the Company (other than for
cause) as a result of a change in control. In addition to this policy, the
Company has entered into six-month to one-year employment agreements with
approximately 300 management-level employees, pursuant to which among other
matters, such employees will receive one year's compensation and continuation
for up to one year of medical and life insurance benefits if their employment is
terminated by the Company (other than for cause) within 12 months following a
change in control. The Company also has agreements with approximately 20
divisional and group vice presidents who are not executive officers, which
provide such presidents with two times their annualized includible compensation
(as defined in the Code) and continuation for up to three years of medical, life
and other welfare benefits if their employment is terminated by the Company
(other than for cause), if their responsibilities or base salaries are
materially diminished, or if certain other adverse changes occur within 24
months following a change in control. Similar agreements provide the executive
officers with three times their annualized includible compensation and
continuation for up to three years of their benefits if their employment is
terminated by the Company (other than of cause approved by three-fourths of the
directors then serving), if their responsibilities or base salaries are
materially diminished, or if certain other adverse changes occur within 24
months following a change in control. The amounts payable pursuant to such
agreements to the executive officers (other than Xx Xxxxxxx) and to the other
vice presidents will be reduced, if necessary, to avoid excise tax under Section
4999 of the Code.
2. Unfunded Pension Plan
The Company maintains the Unfunded Pension Plan Selected Executives of
the Company ("SERP"). Under the SERP, the Company's Board of Directors
determines those employees who are eligible to participate in the SERP and the
amount of their maximum annual pension upon retirement on or after attaining age
60. Approximately 20 executives are designated participants in the SERP, with an
aggregate maximum annual pension, assuming retirement at age 60, of
approximately $5,000,000. If a designated participant retires between the ages
of 55 and 60, the amount of the annual pension is reduced based upon a formula
contained in the SERP. In addition, if there is a change of control of the
Company and the employment of a designated participant who is at least age 50
with 15 years of service is involuntarily terminated other than for cause or
disability, or such participant terminates employment for good reason, the
participant will receive the maximum annual pension.
3. Wyle Executive Severance Obligations
In connection with the acquisition of the Wyle Group of Companies, the
Company has severance obligations under agreements with certain existing Wyle
executives. Those severance obligations could constitute severance arrangements
for purposes of ERISA.
SCHEDULE 8.15
ARROW ELECTRONICS, INC. AND SUBSIDIARIES
1. Arrow Electronics, Inc. a New York corporation
2. Arrow Electronics International, Inc., a Virgin Islands corporation
3. Arrow Electronics Canada Ltd., a Canadian corporation
4. 10556 Newfoundland Limited, a Newfoundland company
5. Schuylkill Metals of Plant City, Inc., a Delaware corporation
6. Arrow Electronics International, Inc., a Delaware corporation
7. Hi-Tech Ad, Inc., a New York corporation
8. Gates/Arrow Distributing, Inc., a Delaware corporation
A) Midrange Open Computing Alliance, Inc., a Delaware corporation
B) SN Holding, Inc. a Delaware corporation
A) Support Net, Inc., an Indiana corporation
C) SBM Holding, Inc., a Delaware corporation
A) Scientific & Business Minicomputers, Inc., a Georgia corporation
9. Consan Inc., a Minnesota corporation
10. Arrow Electronics (Delaware), Inc., a Delaware corporation
11. Arrow Electronics Funding Corporation, a Delaware corporation
12. Arrow Electronics Real Estate Inc., a New York corporation
13. Arrow Electronics (U.K.), Inc., a Delaware corporation
A) Arrow Electronics (Sweden) KB, a Swedish partnership (98% owned)
B) Arrow Electronics South Africa, LLP (1% owned)
C) Arrow Electronics EMEASA, Inc., a Delaware company
D) Arrow Electronics Distribution S.a.r.l, a Luxembourg company
1) Arrow Electronics Holdings S.a.r.l., a Luxembourg company
a) Beheer-En Beleggingsmaatschappij Mazeco B.V., a Netherlands
company
1) Arrow Electronics Netherlands Holdings B.V., a
Netherlands company
a) B.V. Arrow Electronics DLC, a Netherlands company
1) Arrow Electronics Luxembourg S.a.r.l., a
Luxembourg company
2) Arrow Electronics UK Holding Ltd., a UK company
a) Arrow Electronics (UK) Ltd., a UK company
b) Arrow Northern Europe Ltd., a UK company
1) Jermyn Holdings, Ltd., a UK company
(dormant)
a) Hawke Electronics, Ltd., a UK
company (dormant)
b) Impulse Electronics, Ltd., a UK
company (dormant)
c) Invader Electromechanical
Distribution, Ltd., a UK company (dormant)
d) Jermyn Development, Ltd., a UK
company (dormant)
e) Jermyn Distribution, Ltd., a UK
company (dormant)
f) Jermyn Electronics, Ltd., a UK
company (dormant)
g) Jermyn Manufacturing, Ltd., a UK
company (dormant)
h) Mogul Electronics, Ltd., a UK
company (dormant)
2) RR Electronics, Ltd., a UK company
(dormant)
a) Arrow Electronics, Ltd., a UK
company (dormant)
3) Techdis, Ltd., a UK company (dormant)
a) Microprocessor & Memory
Distribution, Ltd., a UK company (dormant)
b) Rapid Silicon, Ltd., a UK company
(dormant)
c) Tekdis, Ltd., a UK company
(dormant)
d) Tecdis, Ltd., a UK company
(dormant)
4) Axiom Electronics, Ltd., a UK company
(dormant)
c) Multichip Ltd., a UK company
1) Microtronica Ltd.
3) Arrow Electronic Management Holdings,
GmbH, a German company
4) Arrow Europe GmbH, a German company
a) Arrow Holding South Europe S.r.l., an Italian company
(95% owned)
1) EDI Electronics Distribution
International France, S.A., a French company
a) Arrow Electronique S.A., a
French company (22.81% owned)
1) Arrow Computer Products S.N.C.,
a French company
a) Multichip GmbH, a German
company
2) Tekelec Europe S.A., a French
company (22.19%)
2) Arrow Electronique S.A., a French company
(77.19% owned)
3) Tekelec Europe S.A., a French company
(77.81%)
4) Silverstar S.r.l., an Italian company
a) I.R. Electronic D.O.O., a Slovenian
company
b) Arrow Elektronik Ticaret, A.S., a
Turkish company
c) Arrow Electronics Hellas S.A., a
Greek company
d) Adecom Service S.r.l., an Italian
company (51% owned)
e) Algol (4% owned)
5) Arrow Iberia Electronica, S.L.U., a
Spanish company
a) Amitron-Arrow Electronica Lda., a
Portugal company
b) ATD Electronica LDA, a Portugal
company (dormant)
b) Arrow Electronics Danish Holdings ApS, a Danish
company
1) Arrow Norwegian Holdings AS, a Norweigian
company
a) Arrow Electronics Estronia OU, an
Estonian company
b) Jacob Hatteland Electronic II AS, a
Norwegian company
c) Arrow Finland OY, a Finnish company
d) Arrow Denmark ApS, a Danish company
1) Arrow Nordic Components AB, a Swedish company
f) Arrow Norway A/S, a Norwegian
company
c) Xxxxxxx Electronic GmbH, a German company
1) Xxxxxxx Electronic Distribution
International GmbH, a German company
a) E.D.I. Electronic Distribution
International GmbH, a German company
b) Industrade AG, a Swiss company
c) SEDI Hungary Kerekedelmi Kft, a
Hungarian company (99% owned)
d) Xxxxxxx Kft, a Hungarian company
1) SEDI Hungary Kerekedelmi Kft, a
Hungarian company (1% owned)
e) Tekelec Airtronic B.V., a
Netherlands company
f) Tekpar S.p.r.l., a Belgian company
(dormant)
2) Proelectron Baulelemente-
Vertriebs-Gesellschaft MbH, a German company
3) Microtronica Handelsgesellchaft
fur Components Gerate und Systeme mbH, a German company
4) Unielectronic GmbH, a German
company
5) Sasco Vertrieb von
elektronischen Bauelementen GmbH, a German company
6) Integra Handelsgesellschaft,
mbH, a German company
7) Diode Components B.V., a
Netherlands company
8) DLC Distribution Logistic Center
GmbH, a German company (dormant)
9) Xxxxxxx Electronic spol s.r.o.,
a Czech company
10) Xxxxxxx Electronic Polska
Sp.z.o.o., a Polish company
11) Xxxxxxx GmbH
d) Power and Signal Group GmbH, a German
company
4) Arrow Electronics (Sweden) KB, a Swedish
partnership (2% owned)
5) Arrow Electronics Management Holdings GmbH, a
German company (dormant)
6) Arrow Holding South Europe S.r.l., an Italian
company (5% owned)
7) ARW Electronics, Ltd., an Israeli company
a) Arrow/Rapac, Ltd, an Israeli company (51%
owned)
14. Arrow Electronics South Africa LLP (99% owned), a South African limited
partnership
15. Arrow Altech Holdings (Pty) Ltd. (50.1% owned), a South African company
A) Arrow Altech Distribution (Pty) Ltd., a South African company
B) Erf 211 Xxxxxx (Pty) Limited, a South African company
16. Panamericana Comercial Importadora S.A., a Brazilian company (66.67% owned)
17. Xxxx X.X., S.A., an Argentinean company (82.63% owned) and subsidiary
A) TEC-Tecnologia Ltda, a Brazilian company (99.99% owned)
18. Eurocomponentes, S.A., an Argentinean company (70% owned)
19. Xxxxx, X.X., an Argentinean company (70% owned)
20. Compania de Semiconductores y Componentes, S.A., an Argentinean company
(70% owned)
21. Components Agent (Cayman) Limited, a Cayman Islands company)
A. Arrow/Components (Agent) Ltd., a Hong Kong company
B. Arrow Electronics China Ltd., a Hong Kong company
1) Arrow Electronics (Shanghai) Co. Ltd., a Chinese company
2) Arrow Electronics (Shenzhen) Co. Ltd., a Chinese company
3) Arrow Electronics Distribution (Shanghai) Co. Ltd., a Chinese
company
C) Arrow Electronics Asia Limited, a Hong Kong company
D) Arrow Electronics (S) Pte Ltd, a Singaporean company
E) Intex-semi Ltd., a Hong Kong company
F) Arrow Electronics Asia (S) Pte Ltd., an Singapore company
1) Arrow Electronics (Thailand) Limited, a Thailand company
G) Arrow Electronics India Ltd., a Hong Kong company
H) Microtronica (HK) Ltd., a Hong Kong company
I) Microtronica (S) Pte. Ltd., a Singaporean company
J) Microtronica (M) Sdn Bhd., a Malaysian company
K) Arrow Asia Pac Ltd., a Hong Kong company
L) Kingsview Ltd., a British Virgin Islands company
M) Hotung Ltd., a British Virgin Islands company
N) Components Agent Asia Holdings, Ltd., a Mauritius company
1) Arrow Electronics India Private Limited, an Indian company
O) Arrow Strong Electronics (M) Sdn. Bhd., a Malaysian company
P) Arrow/Texny (H.K.) Limited, a Hong Kong company
Q) Arrow Electronics ANZ Holdings Pty Ltd, an Australian company
1) Arrow Electronics Holdings Pty Ltd., an Australian company
a) Arrow Electronics Australia Pty Ltd., an Australian company
1) Microtronica (Australia) Pty Ltd., an Australian
company
b) Zarrow Australia Pty Ltd., an Australian company
c) Arrow CMS Distribution Pty Ltd., an Australian company
2) Arrow Components (NZ), a New Zealand Company
R) Arrow Electronics Labuan Pte Ltd, a Malaysian company
a) Arrow Electronics Korea Limited, a South Korean company
S) Arrow Components (M) Sdn Bhd, a Malaysian company
T) Arrow Electronics Taiwan, Ltd., a Taiwanese company (99.67%
owned)
1) Strong Pte, Ltd., a Singaporean company
2) Lite-On Korea, Ltd., a Korean company (48.58% owned)
3) TLW Electronics, Ltd., a Hong Kong company
a) Waily Technology, Ltd., a Hong Kong company
b) Lite-On Korea, Ltd., a Korean company (51.42% owned)
c) Arrow Strong Electronics (S) Pte, Ltd., a Singaporean
company (48% owned)
4) Arrow Strong Electronics (S) Pte, Ltd., a Singaporean company
(52% owned)
5) Creative Model Limited, a Hong Kong company
22. Arrow Asia Distribution Limited, a Hong Kong company
23. Arrow Electronics Logistics Sdn Bhd, a Malaysia company
24. Arrow Electronics (CI) Ltd., a Cayman Islands company
A) Marubun/Arrow Asia Ltd., a British Virgin Islands company (50% owned)
1) Marubun/Arrow (HK) Limited, a Hong Kong company
a) Marubun/Arrow (Shanghai) Co., Ltd, a Chinese company
2) Marubun/Arrow (S) Pte Ltd., a Singaporean company
a) Marubun/Arrow (Thailand) Co. Ltd., a Thailand company
b) Marubun/Arrow (Philippines) Inc., a Filipino company
25. Marubun/Arrow USA, LLC, a Delaware limited liability company (50% owned)
26. Arrow Electronics Mexico, S. de X.X. de C.V., a Mexican company
27. Dicopel, Inc., a U.S. company (60% owned)
28. Dicopel S.A. de C.V., a Mexican company (60% owned)
29. Wyle Electronics, Inc., a Barbados company
30. Wyle Electronics de Mexico S de X.X. de C.V., a Mexican company
31. Wyle Electronics Caribbean Corp., a Puerto Rican company
32. eChipsCanada, Inc., a Canadian company
33. Marubun Corporation, a Japanese company (8.42% owned)
34. World Peace Industrial Co., Ltd., a Taiwanese company (5% owned)
SCHEDULE 8.18
ENVIRONMENTAL MATTERS
In connection with the purchase of Wyle Electronics ("Wyle") from the VEBA group
in 2000, the Company assumed the then outstanding obligations of Wyle. Among
Wyle's obligations at the time was an indemnification of the purchasers of Wyle
Laboratories, a division sold by Wyle in 1994, for any environmental clean-up
costs associated with then existing contamination or violation of environmental
regulations. Under the terms of the Company's subsequent purchase of Wyle from
VEBA, VEBA agreed to indemnify the Company for costs related to environmental
pollution associated with Wyle, including those associated with its prior sale
of Wyle Laboratories.
The Company is aware of two Wyle Laboratories facilities at which contaminated
groundwater has been identified, with respect to each of which remediation, in
form and cost are as yet undetermined, may be required. In addition, Wyle
Laboratories has been named a defendant in a putative class action regarding,
among other things, the environmental impact of its past operations at one of
those sites, at Norco, California. The Company and Wyle Laboratories have
entered into a voluntary consent decree with the California Department of Toxic
Substance Control regarding the clean-up at Norco. The consent decree has not
been finalized as the cost has not yet been determined. Wyle Laboratories has
demanded indemnification with respect to the sites and the litigation, and the
Company has, in turn, demanded indemnification from VEBA. VEBA merged with
another large German publicly-traded conglomerate in June 2000 and the combined
entity is now known as E.ON AG, which remains responsible for VEBA's
liabilities. In 2002, E.ON AG had sales of E37,000,000,000 (approximately
$34,879,000,000 at the 2002 average exchange rate) and assets in excess of
E113,000,000,000 (approximately $117,954,000,000 at the year-end exchange rate).
E.ON AG has yet to acknowledge liability in respect of the Wyle sites, and
discussions between E.ON AG and the Company are ongoing.
In addition, the United States Environmental Protection Agency has named the
Company as a de minimis potentially responsible party at a Superfund site in
Whittier, California in connection with Wyle's transmission of certain materials
to a recycling operation prior to 1995.
The Company believes that any cost which it may incur in connection with
potential remediation at the Wyle Laboratories or Superfund sites and any
related litigation is covered by the VEBA indemnification (except, under the
terms thereof, for 15 percent of the first $3,000,000 of all environmental
claims in the aggregate, or $450,000). Further, the Company believes that even
in the absence of the VEBA indemnification, potential remediation costs
associated with the sites would not have a material adverse impact on the
Company's financial position, liquidity, or results of operations.
SCHEDULE 11.3
EXISTING FOREIGN SUBSIDIARY INDEBTEDNESS
Borrower Amount Description Lender
Arrow/Rapac, Ltd. $4,500,000 Credit line Bank Leumi
(Israel) $4,000,000 Credit line First International Bank
Panamericana Comercial Importadora S.A. $1,000,000 Credit lines Various banks
(Brazil)
Elko C.E. S.A. $ 800,000 Capital leases Various
(Argentina)
Arrow Nordic Components $1,100,000 Capital leases Various
(Sweden)
Xxxxxxx Electronic GmbH $5,500,000 Capital leases Various
(Germany)
SCHEDULE 12(i)
MATERIAL LITIGATION
In April 2000, the Company purchased Tekelec, a French company, from Airtronic
and certain other selling shareholders. Pursuant to the share purchase
agreement, Airtronic agreed to indemnify the Company against certain
liabilities. Since the closing of the acquisition, Tekelec has received (i)
claims by the French tax authorities relating to alleged fraudulent activities
intended to avoid the payment of value-added tax in respect of periods prior to
closing in the amount of E11,327,000, including penalties and interest (the "VAT
Matter"), (ii) a product liability claim in the amount of E11,333,000 and (iii)
claims for damages from certain former employees of Tekelec for wrongful
dismissal or additional compensation in the amount of E467,000. Tekelec has
notified Airtronic of these claims and invoked its right to indemnification
under the purchase agreement.
The VAT Matter is currently the subject of administrative proceedings in France
and Airtronic has elected to assume the defense of this claim in accordance with
the terms of the purchase agreement.
The product liability claim is subject to French legal proceedings under which
separate determinations are made as to whether products were defective and the
amount of damages sustained by the purchaser. The manufacturer of the product is
also a party to these proceedings. The Company believes it has valid defenses to
this claim.
During 2003, judgments were rendered in favor of the former employees and
Tekelec, while appealing, has been ordered to pay damages in the amount of
E364,000. This amount has previously been accrued by the Company in
connection with the accounting for the acquisition of Tekelec. Tekelec has
demanded payment of this amount from Airtronic but Airtronic has asserted that
the indemnification provisions of the purchase agreement are not enforceable.
The Company has been advised by counsel that the indemnification provisions are
enforceable and intends to pursue its rights for indemnification.
EXHIBIT A TO
CREDIT AGREEMENT
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of the date set forth below,
entered into pursuant to the AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT,
dated as of December 18, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"; terms defined therein being used
herein as therein defined), among ARROW ELECTRONICS, INC., the Subsidiary
Borrowers parties thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger,
and JPMORGAN CHASE BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the parties to this Joinder Agreement wish to amend
Schedule II to the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to
subsection 14.1(b) of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto hereby agree as follows:
1. Each of the undersigned Subsidiaries of the Company
hereby acknowledges that it has received and reviewed a copy (in execution form)
of the Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Subsidiary Borrower;
(b) be bound by all covenants, agreements and acknowledgements
attributable to a Subsidiary Borrower in the Credit Agreement;
and
(c) perform all obligations required of it by the Credit
Agreement.
2. Each of the undersigned Subsidiaries of the Company
hereby represents and warrants that the representations and warranties with
respect to it
contained in, or made or deemed made by it in, Section 8 of the Credit Agreement
are true and correct on the date hereof.
3. The address and jurisdiction of incorporation of each
undersigned Subsidiary of the Company is set forth in Annex I to this Joinder
Agreement.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this
Joinder Agreement to be duly executed and delivered in New York, New York by its
proper and duly authorized officer as of the date set forth below.
Dated:________________ [NAME OF SUBSIDIARY],
as a Subsidiary Borrower
By:____________________________
Name:
Title:
ARROW ELECTRONICS, INC.
By:____________________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
JPMORGAN CHASE BANK,
as Administrative Agent
By:__________________________
Name:
Title:
ANNEX I
[Insert administrative information concerning Subsidiaries]
EXHIBIT B TO
CREDIT AGREEMENT
FORM OF SCHEDULE AMENDMENT
SCHEDULE AMENDMENT, dated as of the date set forth below,
entered into pursuant to the AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT,
dated as of December 18, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"; terms defined therein being used
herein as therein defined), among ARROW ELECTRONICS, INC., the Subsidiary
Borrowers parties thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger,
and JPMORGAN CHASE BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the parties to this Schedule Amendment wish to amend
Schedule [II] [III] [IV], as specified in Annex I hereto, to the Credit
Agreement in the manner hereinafter set forth; and
WHEREAS, this Schedule Amendment is entered into pursuant to
subsection 14.1(b) of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto hereby agree as follows:
1. Schedule [II][III] [IV], as specified in Annex I hereto, is
hereby amended as set forth in Annex I hereto.
2. The Company hereby represents and warrants that, after
giving effect to the amendments effected hereby, the representations and
warranties contained in Section 8 of the Credit Agreement are true and correct
on the date hereof.
3. THIS SCHEDULE AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused this
Schedule Amendment to be duly executed and delivered in New York, New York by
its proper and duly authorized officer as of the date set forth below.
Dated:_________________
ARROW ELECTRONICS, INC.
By:__________________________
Name:
Title:
ACKNOWLEDGED AND AGREED TO:
JPMORGAN CHASE BANK,
as Administrative Agent
By:__________________________
Name:
Title:
[NAMES OF OTHER PARTIES, IF ANY, REQUIRED PURSUANT TO SUBSECTION 14.1(b)]
ANNEX I
[Describe amendments]
EXHIBIT C TO
CREDIT AGREEMENT
[FORM OF LOCAL CURRENCY FACILITY ADDENDUM]
LOCAL CURRENCY FACILITY ADDENDUM
To: JPMorgan Chase Bank, as Administrative Agent
From: Arrow Electronics, Inc.
4. This Local Currency Facility Addendum is being delivered to
you pursuant to subsection 6.1 of the Amended and Restated Three Year Credit
Agreement, dated as of December 18, 2003, among Arrow Electronics, Inc., each
Subsidiary Borrower party thereto, the Banks, the Lead Manager and the Agents
named therein, X.X. Xxxxxx Securities Inc., as Arranger and JPMorgan Chase Bank,
as Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
5. The effective date (the "Effective Date") of this Local
Currency Facility Addendum will be __________ __, 200_
6. Please be advised that, as of the Effective Date, the
credit facility described below is hereby designated as a "Local Currency
Facility" for the purposes of the Credit Agreement.
TYPE OF FACILITY:1/
------------------
1 Insert short description of terms of Local Currency Facility.
2
ADDITIONAL LOCAL CURRENC(Y)(IES):
LOCAL CURRENCY FACILITY MAXIMUM
BORROWING AMOUNT: $
3
LOCAL CURRENCY BANKS:
Local Currency Bank
Name of Lender Maximum Borrowing Amount
$
LIST OF DOCUMENTATION GOVERNING
LOCAL CURRENCY FACILITY
(THE "DOCUMENTATION"):2/
7. Arrow Electronics, Inc. hereby represents and warrants that
(i) the Documentation complies in all respects with the requirements of Section
6 of the Credit Agreement and (ii) _____ of _____ 3/ contains an express
acknowledgement that such Local Currency Facility shall be subject to the
provisions of Section 6 of the Credit Agreement.
ARROW ELECTRONICS, INC.
By ____________________________
Title:
Accepted and Acknowledged:
JPMORGAN CHASE BANK, as Administrative Agent
By ________________________________
Title:
__________________
2 Copies of the Documentation must accompany the Local Currency Facility
Addendum, together with, if applicable, an English translation thereof.
3 Provide citation to relevant provision from the Documentation.
EXHIBIT D TO
CREDIT AGREEMENT
RESERVED
EXHIBIT E TO
CREDIT AGREEMENT
FORM OF
BORROWING CERTIFICATE
Pursuant to subsection 9.2(d) of the AMENDED AND RESTATED
THREE YEAR CREDIT AGREEMENT, dated as of December 18, 2003 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among ARROW ELECTRONICS, INC., the Subsidiary Borrowers parties
thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger, and JPMORGAN CHASE
BANK, as Administrative Agent, the Company hereby certifies as follows:
8. The representations and warranties of the Company set forth
in the Credit Agreement and each of the other Credit Documents (other
than, in respect of each Loan made after the Closing Date the proceeds
of which are to be applied by the Company to repay maturing commercial
paper, subsection 8.2) or which are contained in any certificate,
document or financial or other statement furnished pursuant to or in
connection with the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as
if made on the date hereof, except for representations and warranties
expressly stated to relate to a specific earlier date, in which case
such representations and warranties are true and correct as of such
earlier date;
9. No Default or Event of Default has occurred and is
continuing as of the date hereof or will occur after giving effect to
the making of the Loans on the date hereof and the consummation of each
of the transactions contemplated by the Credit Documents; and
10. There are no liquidation or dissolution proceedings
pending or to the knowledge of the Company threatened against the
Company, any of its Domestic
Subsidiaries or any Subsidiary Borrower, nor to the knowledge of the
Company has any other event occurred affecting or threatening the
existence of the Company or any Subsidiary Borrower, except as
permitted by the Credit Agreement, or any of its Subsidiaries.
Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement and used herein are so used as so defined.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her name and affixed the corporate seal.
ARROW ELECTRONICS, INC.
By: _____________________
Name:
Title:
Date: ____________
EXHIBIT F-1 TO
CREDIT AGREEMENT
FORM OF COMPANY GUARANTEE
GUARANTEE, dated as of December __, 2003, made by ARROW
ELECTRONICS, INC., a New York corporation (the "Guarantor"), in favor of
JPMORGAN CHASE BANK, as administrative agent (in such capacity, the
"Administrative Agent") for the several banks and other financial institutions
(the "Banks") parties to the Amended and Restated Three Year Credit Agreement,
dated as of December 18, 2003 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Guarantor, the Subsidiary
Borrowers parties thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger,
and the Administrative Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have
severally agreed to make loans to, and issue and participate in letters of
credit for the account of, the Subsidiary Borrowers upon the terms and subject
to the conditions set forth therein; and
WHEREAS, pursuant to the Local Currency Facilities, the Local
Currency Banks have severally agreed, and will agree, to make loans to the Local
Currency Borrowers upon the terms and subject to the conditions set forth
therein; and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make their respective loans and other extensions of credit to the
Subsidiary Borrowers and the Local Currency Borrowers under the Credit Agreement
and the Local Currency Facilities, respectively, that the Guarantor shall have
executed and delivered this Guarantee to the Administrative Agent for the
ratable benefit of the Banks; and
WHEREAS, the Guarantor is the parent of each Subsidiary
Borrower and Local Currency Borrower, and it is to the advantage of Guarantor
that the Banks make their loans and other extensions of credit to the Subsidiary
Borrowers and the Local Currency Borrowers;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent, the Arranger and the Banks to enter into the Credit
Agreement and the Local Currency Facilities, and to induce the Banks to make
their respective loans to the Subsidiary Borrowers and the Local Currency
Borrowers under the Credit Agreement and the Local Currency Facilities,
respectively, the Guarantor hereby agrees with the Administrative Agent, for the
ratable benefit of the Banks, as follows:
Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
19.2 As used herein, "Obligations" means the collective
reference to the unpaid principal of and interest on the Loans to Subsidiary
Borrowers and on the Local Currency Loans
2
and all other obligations and liabilities of the Subsidiary Borrowers and Local
Currency Borrowers to the Administrative Agent and the Banks (including, without
limitation, interest accruing at the then applicable rate provided in the Credit
Agreement or any applicable Local Currency Facility after the maturity of the
Loans or the Local Currency Loans and interest accruing at the then applicable
rate provided in the Credit Agreement or any applicable Local Currency Facility
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to any Subsidiary
Borrower or Local Currency Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Credit Agreement, any Local Currency Facility or any other Credit Documents or
any other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the Banks
that are required to be paid by the Guarantor, any Subsidiary Borrower or any
Local Currency Borrower pursuant to the terms of the Credit Agreement, any Local
Currency Facility, this Agreement or any other Credit Document).
19.3 The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guarantee shall refer to this Guarantee as a
whole and not to any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise specified.
19.4 The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 20. Guarantee. a. The Guarantor hereby unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable benefit
of the Banks and their respective successors, indorsees, transferees and
assigns, the prompt and complete payment and performance by each Subsidiary
Borrower and each Local Currency Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
20.1 The Guarantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent or any Bank
in enforcing, or obtaining advice of counsel in respect of, any rights with
respect to, or collecting, any or all of the Obligations and/or enforcing any
rights with respect to, or collecting against, the Guarantor under this
Guarantee. This Guarantee shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Subsidiary Borrowers and the Local
Currency Borrowers or any of them may be free from any Obligations.
20.2 No payment or payments made by any Subsidiary Borrower,
any Local Currency Borrower or any other Person or received or collected by the
Administrative Agent or any Bank from any Subsidiary Borrower, any Local
Currency Borrower or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Guarantor hereunder
which shall,
3
notwithstanding any such payment or payments (other than payments made by the
Guarantor in respect of the Obligations or payments received or collected from
the Guarantor in respect of the Obligations), remain liable for the Obligations
until the Obligations are paid in full and the Commitments are terminated.
20.3 The Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any Bank
on account of its liability hereunder, it will notify the Administrative Agent
and such Bank in writing that such payment is made under this Guarantee for such
purpose.
SECTION 21. Right of Set-off. Upon the occurrence of any Event
of Default, the Administrative Agent and each Bank is hereby irrevocably
authorized at any time and from time to time without notice to the Guarantor,
any such notice being expressly waived by the Guarantor, to set off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the
Administrative Agent or such Bank to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Administrative Agent or
such Bank may elect, against or on account of the obligations and liabilities of
the Guarantor to the Administrative Agent or such Bank hereunder and claims of
every nature and description of the Administrative Agent or such Bank against
the Guarantor, in any currency, whether arising hereunder, under the Credit
Agreement, any Credit Document or otherwise, as the Administrative Agent or such
Bank may elect, whether or not the Administrative Agent or such Bank has made
any demand for payment and although such obligations, liabilities and claims may
be contingent or unmatured. The Administrative Agent and each Bank shall notify
the Guarantor promptly of any such set-off and the application made by the
Administrative Agent or such Bank, as the case may be, of the proceeds thereof;
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent and each
Bank under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Bank may have.
SECTION 22. Subrogation. Notwithstanding any payment or
payments made by the Guarantor hereunder, or any set-off or application of funds
of the Guarantor by the Administrative Agent or any Bank, the Guarantor shall
not be entitled to exercise any right of subrogation arising in respect of any
of the rights of the Administrative Agent or any Bank against a Subsidiary
Borrower or against any collateral security or guarantee or right of offset held
by the Administrative Agent or any Bank for the payment of the Obligations, nor
shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from a Subsidiary Borrower in respect of payments made by the
Guarantor hereunder, until all amounts owing to the Administrative Agent and the
Banks by such Subsidiary Borrower on account of the Obligations and on account
of all other obligations of the Guarantor to the Administrative Agent and the
Banks under the Credit Documents are paid in full and the Commitments are
terminated. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations and such other
amounts shall not have been paid in full, such amount shall be held by the
Guarantor in trust for the Administrative Agent and the Banks, segregated from
other funds of the Guarantor, and shall, forthwith upon receipt by the
Guarantor, be turned over to the
4
Administrative Agent in the exact form received by the Guarantor (duly indorsed
by the Guarantor to the Administrative Agent, if required), to be applied
against the Obligations and the other obligations of the Guarantor under the
Credit Documents, whether matured or unmatured, in such order as the
Administrative Agent may determine.
SECTION 23. Amendments, etc. with respect to the Obligations;
Waiver of Rights. The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor, and without
notice to or further assent by the Guarantor, any demand for payment of any of
the Obligations made by the Administrative Agent or any Bank may be rescinded by
the Administrative Agent or such Bank, and any of the Obligations continued, and
the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Bank, and the Credit Agreement and
the other Credit Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Administrative Agent (or the Required Banks or all the
Banks, as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Bank for the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Bank shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Obligations or for this
Guarantee or any property subject thereto. When making any demand hereunder
against the Guarantor, the Administrative Agent or any Bank may, but shall be
under no obligation to, make a similar demand on any Subsidiary Borrower or any
Local Currency Borrower or any other guarantor, and any failure by the
Administrative Agent or any Bank to make any such demand or to collect any
payments from any Subsidiary Borrower or any Local Currency Borrower or any such
other guarantor or any release of any Subsidiary Borrower or any Local Currency
Borrower or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Bank against the Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
SECTION 24. Guarantee Absolute and Unconditional. The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Bank upon this Guarantee or acceptance of this
Guarantee; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon this Guarantee; and all dealings between any Subsidiary
Borrower or any Local Currency Borrower or the Guarantor, on the one hand, and
the Administrative Agent and the Banks, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guarantee. The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Subsidiary Borrower
or any Local Currency Borrower or the Guarantor with respect to the Obligations.
This Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Credit Agreement, any Local Currency Facility or any other
Credit Document, any of the Obligations or any other collateral security
therefor or guarantee or
5
right of offset with respect thereto at any time or from time to time held by
the Administrative Agent or any Bank, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by any Subsidiary Borrower or any Local Currency
Borrower against the Administrative Agent or any Bank, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of any
Subsidiary Borrower or any Local Currency Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of any Subsidiary Borrower or any Local Currency Borrower for the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Administrative Agent and any Bank may, but shall be under no
obligation to, pursue such rights and remedies as it may have against any
Subsidiary Borrower or any Local Currency Borrower or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Bank to pursue such other rights or remedies or to collect any payments from any
Subsidiary Borrower or any Local Currency Borrower or any such other Person or
to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of any Subsidiary Borrower or any Local
Currency Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve the Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any Bank against the Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantor and its successors and assigns thereof, and shall inure to the benefit
of the Administrative Agent and the Banks, and their respective successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the Guarantor under this Guarantee shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement any Subsidiary
Borrower or any Local Currency Borrower may be free from any Obligations.
SECTION 25. Confirmation. (a) Each Joinder Agreement delivered
by the Guarantor to the Administrative Agent shall constitute a confirmation by
the Guarantor that the Obligations guaranteed hereby include all Obligations of
each Subsidiary Borrower named in such Joinder Agreement.
(b) Each Local Currency Facility Addendum delivered by the
Guarantor to the Administrative Agent shall constitute a confirmation by the
Guarantor that the Obligations guaranteed hereby include all Obligations of each
Local Currency Borrower under each Local Currency Facility named in such Local
Currency Facility Addendum.
SECTION 26. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Bank upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Subsidiary Borrower or any Local Currency Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Subsidiary Borrower or any Local
6
Currency Borrower or any substantial part of its respective property, or
otherwise, all as though such payments had not been made.
SECTION 27. Payments. b. The Guarantor hereby agrees that the
Obligations will be paid to the Administrative Agent without set-off or
counterclaim in the Currency in which they are denominated at the office for
payment thereof set forth in the Credit Agreement or the applicable Local
Currency Facility, as the case may be.
27.1 The obligation of the Guarantor in respect of any sum due
to any Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which such
sum is denominated in accordance with the applicable provisions of the Credit
Agreement, any Local Currency Facility or the other Credit Documents (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Bank or the Administrative Agent (as the case may be)
of any sum adjudged to be so due in the Judgment Currency such Bank or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to such Bank or the Administrative Agent (as the case may be) in the
Agreement Currency, the Guarantor agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Administrative
Agent (as the case may be) against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Bank or the
Administrative Agent (as the case may be), such Bank or the Administrative Agent
(as the case may be) agrees to remit to the Guarantor such excess.
SECTION 28. [Reserved]
SECTION 29. Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent and the Banks, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Banks with full and
valid authority so to act or refrain from acting, and the Guarantor shall not be
under any obligation, or entitlement, to make any inquiry respecting such
authority.
SECTION 30. Notices. All notices, requests and demands to or
upon the Administrative Agent, any Bank or the Guarantor to be effective shall
be in writing (or by telex, telecopy or similar electronic transfer confirmed in
writing) and shall be deemed to have been duly given or made (a) when delivered
by hand or (b) if given by mail, when deposited in the mails by certified mail,
return receipt requested, or (c) if by telex, telecopy or similar electronic
transfer, when sent and receipt has been confirmed, addressed as follows:
(a) if to the Administrative Agent or any Bank, at its address
or transmission number for notices provided in subsection 14.2 of the Credit
Agreement; and
7
(b) if to the Guarantor, at its address or transmission number
for notices provided in subsection 14.2 of the Credit Agreement.
The Administrative Agent, each Bank and the Guarantor may
change its address and transmission numbers for notices by notice in the manner
provided in this Section.
SECTION 31. Severability. Any provision of this Guarantee
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 32. Integration. This Guarantee represents the
agreement of the Guarantor with respect to the subject matter hereof and there
are no promises or representations by the Administrative Agent or any Bank
relative to the subject matter hereof not reflected herein.
SECTION 33. Amendments in Writing; No Waiver; Cumulative
Remedies. c. None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Guarantor and the Administrative Agent, provided that any
provision of this Guarantee may be waived by the Administrative Agent and the
Banks in a letter or agreement executed by the Administrative Agent or by telex
or facsimile transmission from the Administrative Agent.
33.1 Neither the Administrative Agent nor any Bank shall by
any act (except by a written instrument pursuant to Section 15(a) hereof),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Administrative Agent or any
Bank, any right, power or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Bank of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such Bank would
otherwise have on any future occasion.
33.2 The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
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SECTION 34. Section Headings. The section headings used in
this Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
SECTION 35. Successors and Assigns. This Guarantee shall be
binding upon the successors and assigns of the Guarantor and shall inure to the
benefit of the Administrative Agent and the Banks and their successors and
assigns.
SECTION 36. Governing Law. This Guarantee shall be governed
by, and construed and interpreted in accordance with, the law of the State of
New York.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
ARROW ELECTRONICS, INC.
By:__________________________________
Name:
Title:
EXHIBIT F-2
FORM OF SUBSIDIARY GUARANTEE
GUARANTEE, dated as of [_________, ____] (this "Guarantee"),
made by [____________________________], a [______] corporation (the
"Guarantor"), in favor of JPMORGAN CHASE BANK, as administrative agent (the
"Administrator Agent") for the Banks (as such term is defined below; and
together with the Administrative Agent, the "Guaranteed Parties"). Capitalized
terms used and not defined in this Guarantee shall have the respective meanings
assigned thereto in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Arrow Electronics, Inc. (the "Company") is the
borrower party to the Amended and Restated Three Year Credit Agreement dated as
of December 18, 2003 (as from time to time amended, supplemented or otherwise
modified, the "Credit Agreement"), with the financial as Administrative Agent
(the "Administrative Agent");
WHEREAS, the Guarantor is a wholly owned subsidiary of the
company;
WHEREAS, proceeds of extensions of credit under the Credit
Agreement will be used in part to enable the Company to make loans and advances
to the Guarantor in connection with the operation of its business;
WHEREAS, the Guarantor and the Company share an identity of
interests as members of a combined group of companies engaged in substantially
similar businesses, and the Guarantor will derive substantial direct and
indirect benefits from such extensions of credit; and
WHEREAS, the Credit Agreement requires that the Guarantor
enter into this Guarantee and pursuant hereto guarantee the Obligations (as such
term is defined below).
AGREEMENT
NOW, THEREFORE, the Guarantor hereby agrees with the
Administrative Agent for its benefit and the ratable benefit of the Guaranteed
Parties as follows:
SECTION 1. THE GUARANTEE. The guarantee of the Guarantor
hereunder is as follows:
SECTION 1.1 Guarantee of Extensions of Credit to the Company.
The Guarantor hereby unconditionally and irrevocably guarantees to the
Guaranteed Parties and their successors, endorsees, transferees and assigns, the
prompt and complete payment when due (whether at stated maturity, by
acceleration or otherwise) and performance of all Obligations (including all
interest and costs of enforcement or preservation and protection of collateral
which would be owing by the Company but for the effect of the Bankruptcy Code,
as hereinafter defined). The Guarantor agrees that this Guarantee is a guaranty
of payment and performance and not of collection, and that its obligations under
this Guarantee shall be joint and several with any other Persons which may at
any time or from time to time be or become directly or indirectly
2
financially responsible to the Guaranteed Parties with respect to the
Obligations and shall be under all circumstances primary, absolute and
unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability
or any future amendment of, or change in this Guarantee, any other Credit
Document or other agreement, document or instrument to which the Company or any
of its subsidiaries is or are or may become a party;
(b) the absence of any action to enforce this Guarantee,
any other Credit Document or the waiver or consent by the Guaranteed Parties
with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure of
the Guaranteed Parties to perfect their Lien against, any security for the
Obligations or any action, or the absence of any action, by the Guaranteed
Parties in respect thereof (including, without limitation, the release of any
such security);
(d) any bankruptcy, insolvency, reorganization,
arrangement, adjustment, composition, liquidation or the like of the Company or
the Guarantor including, but not limited to, (i) any Guaranteed Party's
election, in any proceeding instituted under Title 11 of the United States Code
(11 U.S.C. Section 101 et seq.) or any replacement of supplemental federal
statutes dealing with the bankruptcy of debtors (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code, (ii) any borrowing or
grant of a security interest by the Company or any Subsidiary as
debtor-in-possession, under Section 364 of the Bankruptcy Code, or (iii) the
disallowance of all or any portion of any Guaranteed Party's claim(s) for
repayment of the Obligations under Section 502 of the Bankruptcy Code;
(e) any merger or consolidation of the Company or the
Guarantor into or with any other Person, or any sale, lease or transfer of any
or all of the assets of the Company or the Guarantor to any other Person;
(f) any circumstance which might constitute a defense
available to, or a discharge of, the Company or the Guarantor;
(g) absence of any notice to, or knowledge by, the
Guarantor of the existence or occurrence of any of the matters or events set
forth in the foregoing subdivisions (a) through (f);
(h) any sale, transfer or other disposition by the
Company of any stock of the Guarantor; or
(i) any other fact or circumstance;
it being agreed by the Guarantor that its obligations under
this Guarantee shall not be discharged until the payment and performance, in
full, of the Obligations (including all interest and costs of enforcement or
preservation and protection of Collateral which would be owing by the Company
but for the affect of the Bankruptcy Code) or release of the Guarantor by the
Guaranteed Parties, whichever shall occur first. Subject to the limitations
contained in
3
Section 1.2 hereof, the Guarantor shall be regarded, and shall be in the same
position, as principal debtor with respect to the Obligations and specifically
agrees that, notwithstanding any discharge of the Company or any other Person or
the operation of any other provision of the Bankruptcy Code with respect to the
Obligations or any such Persons, the Guarantor shall be fully responsible for
paying all interest and costs of enforcement or preservation and protection of
collateral which may at any time accrue with respect to the Obligations or which
would accrue but for the operation of any provision of or doctrine with respect
to the Bankruptcy Code. The Guarantor expressly waives all rights it may have
now or in the future under any statute, or at common law, or at law or in
equity, or otherwise, to compel the Guaranteed Parties to proceed in respect of
the Obligations against the Company, any other Loan Party or any other party or
against any security for the payment and performance of the Obligations before
proceeding against, or as a condition to proceeding against, the Guarantor. The
Guarantor agrees that any notice or directive given at any time to the
Guaranteed Parties which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored by the Guaranteed
Parties, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guarantee for the reason that such pleading or
introduction would be at variance with the written terms of this Guarantee
unless the Guaranteed Parties have specifically agreed otherwise in writing. It
is agreed between the Guarantor and the Guaranteed Parties that the foregoing
waivers are of the essence of the transaction contemplated by the Credit
Documents and that, but for this Guarantee and such waivers, the Guaranteed
Parties would decline to extend credit under the Credit Documents.
As used in this Guarantee, the term "Obligations" means the
unpaid principal of and interest on (including interest accruing on or after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Company to the
Guaranteed Parties, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, any Credit Document and any other document made,
delivered or given in connection herewith or therewith, including, without
limitation, each other obligation and liability, whether direct or contingent,
due or to become due, or now existing or hereafter incurred, whether on account
of principal, interest, fees, indemnities, costs, or expenses (including,
without limitation, all fees and disbursements of counsel to the Administrative
Agent of the Banks) that are required to be paid by the Company pursuant to the
terms of the Credit Agreement or any of the other Credit Documents or otherwise.
SECTION 1.2 Maximum Guaranteed Amount. Notwithstanding any
other provision of this Guarantee to the contrary, if the obligations of the
Guarantor hereunder would otherwise be held or determined by a court of
competent jurisdiction in any action or proceeding involving any state corporate
law or any state or Federal bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other law affecting the rights of creditors generally,
to be void, invalid or unenforceable to any extent on account of the amount of
the Guarantor's liability under this Guarantee, then notwithstanding any other
provision of this Guarantee to the contrary, the amount of such liability shall,
without any further action by the Guarantor or any other Person, be
automatically limited and reduced to the highest amount which is valid and
enforceable as determined in such action or proceeding.
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SECTION 1.3 Demand by the Guaranteed Parties. In addition to
the terms of the Guarantee set forth in Section 1.1 hereof, but subject to the
limitations contained in Section 1.2 hereof, and in no manner imposing any other
limitation on such terms, it is expressly understood and agreed that, if the
then outstanding principal amount of the Obligations (together with all accrued
interest thereon) becomes due and payable, then the Guarantor shall, upon demand
in writing therefore by the Administrative Agent to the Guarantor, pay to the
holder or holders of the Obligations the outstanding Obligations due and owing
to such holder or holders. Payment by the Guarantor shall be made to the
Guaranteed Parties, to be credited and applied against the Obligations, in
immediately available Federal funds to an account designated by the Guaranteed
Parties or at the address set forth herein for the giving of notice of the
Guaranteed Parties or at any other address that may be specified in writing from
time to time by the Guaranteed Parties.
SECTION 1.4 Enforcement of Guarantee. In no event shall the
Guaranteed Parties have any obligation (although they are entitled, at their
option) to proceed against the Company or any other Person or any real or
personal property pledged to secure the Obligations before seeking satisfaction
from the Guarantor, and the Guaranteed Parties may proceed, prior or subsequent
to, or simultaneously with, the enforcement of the Guaranteed Parties, rights
hereunder, to exercise any right or remedy which it or they may have against any
property, real or personal, as a result of any Lien it or they may have as
security for all or any portion of the Obligations.
SECTION 1.5 Waiver. In addition to the waivers contained in
Section 1.1 hereof, the Guarantor waives, and agrees that it shall not at any
time insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption laws, or exemption, whether now or at any time all hereafter in
force, which may delay, prevent or otherwise affect the performance by the
Guarantor of its obligations under, or the enforcement by the Guaranteed Parties
of, this Guarantee. The Guarantor hereby waives diligence, presentment and
demand (whether for nonpayment or protest or of acceptance, maturity, extension
of time, change in nature or form of the Obligations, acceptance of further
security, release of further security, composition or agreement arrived at as to
the amount of, or the terms of, the Obligations, notice of adverse change in the
Company's or any Subsidiary's financial condition or any other fact which might
be in conflict with the terms of this Guarantee. The Guarantor hereby waives any
requirement on the part of any Guaranteed Party to mitigate the damages
resulting from any default under any Credit Document. The Guarantor represents,
warrants and agrees that, as of the date of this Guarantee, its obligations
under this Guarantee are not subject to any offsets or defenses of any kind
against the Guaranteed Parties, the Company or any Subsidiary that executes a
Credit Document. The Guarantor further agrees that its obligations under this
Guarantee shall not be subject to any counterclaims, offsets or defenses of any
kind which may arise in the future against the Guaranteed Parties of the Company
or any other Loan Party that executes a Credit Document.
SECTION 1.6 Benefit of Guarantee. The provisions of this
Guarantee are for the benefit of the Guaranteed Parties and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between the Loan Parties and the Guaranteed Parties, the
obligations of the Loan Parties under the Credit Document. In the event all or
any part of the Obligations are transferred, endorsed or assigned by the
Guaranteed Parties
5
to any Person or Persons in accordance with the terms of the Credit Agreement,
any reference to "Guaranteed Parties" herein shall be deemed to refer equally to
such Person or Persons.
SECTION 1.7 Modification of Obligations. If the Guaranteed
Parties shall at any time or from time to time, with or without the consent of,
or notice to, the Guarantor:
(a) change or extend the manner, place or terms of
payment of, or renew or alter all or any portion of, the Obligations;
(b) take any action under or in respect of the Credit
Documents in the exercise of any remedy, power or privilege contained therein or
available to it at law, equity or otherwise, or waive or refrain from exercising
any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Credit
Documents;
(d) extend or waive the time for and of the Guarantor's,
any Loan Party's or any other Person's performance of, or compliance with, any
term, covenant or agreement on its part to be performed or observed under the
Credit Documents, or waive such performance or compliance or consent to a
failure of, or departure from, such performance or compliance;
(e) take and hold security or collateral for the payment
of the Obligations, or sell, exchange, release, dispose of, or otherwise deal
with, any property pledged, mortgaged or conveyed, or in which the Guaranteed
Parties have been granted a Lien, to secure any indebtedness of the Guarantor or
the Loan Parties to the Guaranteed Parties;
(f) release or limit the liability of anyone who may be
liable in any manner for the payment of any amounts owed by the Guarantor or the
Loan Parties to the Guaranteed Parties;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of the
Guarantor or the Loan Parties are subordinated to the claims of the Guaranteed
Parties; or
(h) apply any sums by whomever paid or however realized
to any amounts owing by the Guarantor or the Loan Parties to the Guaranteed
Parties in such manner as the Guaranteed Parties shall determine in their
discretion;
then the Guaranteed Parties shall not incur any liability to the Guarantor
pursuant hereto as a result thereof and no such action shall impair or otherwise
affect or release the obligations of the Guarantor under this Guarantee.
SECTION 1.8 Reinstatement. This Guarantee shall remain in full
force and effect and continue to be effective in the event any petition is filed
by or against the Company or the Guarantor for liquidation or reorganization, in
the event the Company or the Guarantor becomes insolvent or makes an assignment
for the benefit of creditors or in the event a receiver or trustee is appointed
for all or any significant part of the Company's or the Guarantor's assets, and
shall continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Obligations, or any part thereof, is
pursuant to applicable law, rescinded or
6
reduced in amount, or must otherwise be restored or returned by the Guaranteed
Parties, whether as a "voidable preference," "fraudulent conveyance," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
SECTION 1.9 Subrogation.
(a) Subject to subsection (b) below, if the Guarantor
makes a payment in respect of the Obligations, it shall be subrogated to the
rights of the payees against the Company with respect to such payment.
(b) The Guarantor shall not exercise any rights of
subrogation under this Guarantee, by any payment made hereunder or otherwise,
nor shall the Guarantor seek any reimbursement from any of the Loan Parties in
respect of payments made by the Guarantor hereunder, unless and until all of the
Obligations shall have been paid to the Guaranteed Parties and discharged, in
full, and the Commitments are terminated, and if any payment shall be made to
the Guarantor on account of such subrogation, contribution or reimbursement
rights at any time when the Obligations shall not have been paid and discharged,
in full, or the Commitments are not terminated, each and every amount so paid
shall be held by the Guarantor in trust for the Guaranteed Parties and forthwith
be paid to the Guaranteed Parties to be credited and applied against the
Obligations, whether matured or unmatured.
(c) If, pursuant to applicable law, the Guarantor, by
payment or otherwise, becomes subrogated to all or any of the rights of the
Guaranteed Parties under any of the Credit Documents, the rights of the
Guaranteed Parties to which the Guarantor shall be subrogated shall be accepted
by the Guarantor "as is" and without any representation or warranty of any kind
by the Guaranteed Parties, express or implied, with respect to the legality,
value, validity or enforceability of any such rights, or the existence,
availability, value, merchantability or fitness for any particular purpose of
any collateral and shall be without recourse to the Guaranteed Parties.
(d) If the Guaranteed Parties may, under applicable law,
proceed to realize their benefits under any of the Credit Documents giving the
Guaranteed Parties a Lien upon any collateral, whether owned by any of the Loan
Parties or by any other Person, either by judicial foreclosure or by
non-judicial sale or enforcement, the Guaranteed Parties may, at their sole
option, determine which of their remedies or rights they may pursue without
affecting any of their rights and remedies under this Guarantee. If, in the
exercise of any of their rights and remedies, the Guaranteed Parties shall
forfeit any of their rights or remedies, including their right to enter a
deficiency judgment against any of the Loan Parties of any other Person, whether
because of any applicable laws pertaining to "election of remedies" or the like,
the Guarantor hereby consents to such action by the Guaranteed Parties and, to
the extent permitted by
7
applicable law, waives any claim based upon such action, even if such action by
the Guaranteed Parties shall result in a full or partial loss of any rights of
subrogation which the Guarantor might otherwise have had but for such action by
the Guaranteed Parties. Any election of remedies which results in the denial or
impairment of the right of the Guaranteed Parties to seek a deficiency judgment
against any of the Loan Parties shall not, to the extent permitted by applicable
law, impair the Guarantor's obligation to pay the full amount of the
Obligations. In the event the Guaranteed Parties shall bid at any foreclosure or
trustee's sale or at any private sale permitted by law, the Guaranteed parties
may bid all or less than the amount of the Obligations and the amount of such
bid need not be paid by the Guaranteed Parties but shall be credited against the
Obligations. To the extent permitted by applicable law, the amount of the
successful bid at any such sale, whether the Guaranteed Parties or any other
party is successful bidder, shall be conclusively deemed to be the fair market
value of the collateral and the difference between such bid amount and the
remaining balance of the Obligations shall be conclusively deemed to be the
amount of the Obligations guaranteed under this Guarantee, notwithstanding that
any present or future law or court decision or ruling may have the effect of
reducing the amount of any deficiency claim to which the Guaranteed Parties
might otherwise be entitled but for such bidding at any such sale.
SECTION 1.10 Continuing Guarantee. This Guarantee is a
continuing guaranty and shall (i) remain in full force and effect until payment
in full (including after the Termination Date) of the Obligations and any other
amounts which may be owing hereunder and termination of the Credit Agreement and
the other Credit Documents, (ii) be binding upon the Guarantor and its
successors and permitted assigns, and (iii) inure, together with the rights and
remedies of the Guaranteed Parties hereunder, to the benefit of the Guaranteed
Parties and their respective successors, transferees and assigns.
SECTION 2. DELIVERIES. In a form satisfactory to the
Guaranteed Parties, the Guarantor shall deliver to the Guaranteed Parties,
concurrently with the execution of this Guarantee, such other instruments,
certificates and documents as are required to be delivered by the Guarantor to
the Guaranteed Parties under the Credit Agreement.
SECTION 3. REPRESENTATIONS. WARRANTIES AND COVENANTS. The
Guarantor hereby makes all representations and warranties, and agrees to comply
with all of the obligations, requirements and restrictions in the
representations, warranties and covenants contained in the Credit Agreement, to
the extent such obligations, requirements and restrictions are expressly
applicable to the Guarantor, a Subsidiary (with respect to itself) or any Person
party to any Credit Document (with respect to itself). The Guarantor further
represents and warrants to the Administrative Agent and the Guaranteed Parties
that:
(a) the execution, delivery and performance by the
Guarantor of this Guarantee are within the Guarantor's corporate powers, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental authority and do not contravene,
or constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or bylaws of the Guarantor or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Guarantor or result in the creation or imposition of any Lien on any asset
of the Guarantor; and
(b) this, Guarantee constitutes a legal, valid and
binding agreement of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as such enforceability may be limited by the
affect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and general principles of
equity.
8
SECTION 4. FURTHER ASSURANCES. The Guarantor agrees, upon the
written request Of the Guaranteed Parties, and at the Guarantor's expense, to
execute and deliver to the Guaranteed Parties, from time to time, any additional
instruments or documents considered necessary by the Guaranteed Parties to cause
this Guarantee to be, become or remain valid and effective in accordance with
its terms.
SECTION 5. PAYMENTS FREE AND CLEAR OF TAXES.
(a) Any and all payments by the Guarantor to or for the
benefit of any Guaranteed Party shall be made free and clear of and without
deduction or withholding for or on account of any present or future taxes. If
the Guarantor shall be required by law to deduct any taxes from or in respect of
any sum payable hereunder, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions of taxes (including
deductions of taxes applicable to additional sums payable under this Section 5)
the Guaranteed Party receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Guarantor shall make such deductions
and (iii) the Guarantor shall pay the full amount so deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Guarantor agrees to pay any present
or future stamp, documentary, privilege, intangible or similar taxes or any
other excise or property taxes, charges or similar levies that arise at any time
or from time to time (i) from any payment made under any and all Credit
Documents or (ii) from the execution or delivery by the Guarantor or any
Subsidiary of the Guarantor of, or from the filing or recording or maintenance
of, or otherwise with respect to, any and all Credit Documents (hereinafter
referred to as "Other Taxes").
(c) The Guarantor agrees to indemnify the Guaranteed
Parties for the full amount of taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section) paid by the Guaranteed Parties, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto (plus interest
thereon at a rate equal to the rate calculated pursuant to Section 2.8 of the
Credit Agreement, calculated as if such payments constituted overdue amounts of
principal as of the date of the making of such payments), whether or not such
taxes or Other Taxes were correctly or legally asserted. Payments of all such
amounts shall be made within 30 days from the date the Guaranteed Parties make
written demand therefor.
(d) If any Guaranteed Party is, in its sole opinion, able
to apply for any tax credit, tax deduction or other reduction in tax by reason
of any withholding or deduction made by the Guarantor in respect of a payment
made by the Guarantor hereunder and increased pursuant to this Section, such
Guaranteed Party will use reasonable efforts to obtain such credit, deduction or
other reduction and, upon receipt thereof will pay to the Guarantor such amount,
not exceeding the increased amount paid by the Guarantor, as it considers in its
sole opinion, is equal to the net after tax value to such Guaranteed Party, in
its sole opinion, or such part of such credit, deduction or other reduction as
it considers to be allocable to such withholding or deduction having regard to
all of such Guaranteed Party's dealings giving rise to similar credits,
deductions or other reductions in relation to the same tax period and to the
cost of obtaining the same, less any and all expenses incurred by such
Guaranteed Party in obtaining such credit, deduction or other reduction;
provided, however, that (i) no Guaranteed Party shall be obligated
9
by this Section to disclose to the Guarantor any information regarding its tax
affairs or computations, (ii) nothing in this Section shall interfere with the
right of each Guaranteed Party to arrange its tax affairs as it deems
appropriate and (iii) nothing in this Section shall impose an obligation on any
Guaranteed Party to obtain any tax credit, tax deduction or other reduction in
tax if, in such Guaranteed Party's sole opinion, to do so would (a) impose undue
hardships, burdens or expenditures on such Guaranteed Party or (b) increase such
Guaranteed Party's exposure to taxation by the jurisdiction in question.
(e) Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 5 shall survive the payment in full of the
Obligations and the termination of the Credit Agreement and the other Credit
Documents.
(f) Within 30 days after the date of any payment of taxes
or Other Taxes, the Guarantor shall furnish to the Guaranteed Parties a
certified copy of an official receipt for any taxes or Other Taxes paid by the
Guarantor pursuant to this Section 5.
(g) Each Guaranteed Party that is not incorporated under
the laws of the United States of America or a state thereof (including the
District of Columbia) agrees that it will deliver to the Guarantor prior to any
payment made by the Guarantor hereunder (i) two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable
form, as the case may be, and (ii) an Internal Revenue Service Form W-8BEN or
W-9 or successor applicable form, as the case may be. Each such Guaranteed Party
also agrees to deliver to the Guarantor two further copies of the said Form
W-8BEN or W-8ECI and Form W-8BEN or W-9, or successor applicable forms or other
manner of certification, as the case may be, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent form previously delivered by it to the Guarantor,
and such extensions or renewals thereof as may reasonably be requested by the
Guarantor, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Guaranteed Party from duly completing
and delivering any such form with respect to it and such Guaranteed Party so
advises the Guarantor. Such Guaranteed Party shall certify (i) in the case of a
Form W-8BEN or W-8ECI, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes and (ii) in the case of a Form W-8BEN or W-9, that it is entitled to an
exemption from United States backup withholding tax.
SECTION 6. RIGHT OF SET-OFF. In addition to and not in
limitation of all rights of offset that any Guaranteed Party may have under
applicable law or under the Credit Agreement, each Guaranteed Party shall upon
the occurrence of any Event of Default and whether or not such Guaranteed Party
has made any demand or whether the Guarantor's obligations are matured, have the
right to appropriate and apply to the payment of the Guarantor's obligations
hereunder, all deposits (general or special, time or demand, provisional or
final) then or thereafter held by, and other indebtedness or property then or
thereafter owing by, such Guaranteed Party, whether or not related to this
Guarantee or any transaction hereunder.
10
SECTION 7. MISCELLANEOUS PROVISIONS.
SECTION 7.1 Amendments. Any amendment or waiver of any
provision of this Guarantee and any consent to any departure by the Guarantor
from any provision of this Guarantee, shall be effective only if made pursuant
to a written instrument executed by the Guarantor and the Administrative Agent
(or, if a waiver or a consent, a written letter or agreement executed by the
Administrative Agent).
SECTION 7.2 Expenses. The Guarantor shall promptly pay to the
Guaranteed Parties the amount of any and all reasonable out-of-pocket costs and
expenses of the Guaranteed Parties (both before and after the execution hereof)
in connection with (a) the development, preparation and execution of, and any
amendment, supplement or modification to this Guarantee and any of the other
Credit Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, (b) any action by any Guaranteed Party to
commence, defend, or intervene in any litigation or to file a petition
complaint, answer, motion or other pleadings necessary to protect or enforce the
rights of the Guaranteed Parties under this Guarantee or any other Credit
Document, provided that only the Administrative Agent, for and on behalf of
itself or any Guaranteed Party, may commence any such litigation, (c) the taking
by any Guaranteed Party of any other action in or with respect to any suit or
proceeding (bankruptcy or otherwise) necessary to protect the rights of the
Guaranteed Parties under this Guarantee or any other Credit Document or to
respond to any subpoena, deposition or interrogatory with respect to any
litigation involving the Guarantor, or (d) the taking by any Guaranteed Party of
any action to attempt to enforce or to enforce any rights of the Guaranteed
Parties to collect any of the Obligations, including all reasonable fees,
expenses and disbursements of attorneys and paralegals (including charges for
inside counsel). Any payments to be made by the Guarantor under this Section 7.2
shall be made within 30 days of the demand therefor.
SECTION 7.3 Headings. The headings in this Guarantee are for
purposes of reference only and shall not otherwise affect the meaning or
construction or any provision of this Guarantee.
SECTION 7.4 Severability. The provisions of this Guarantee are
severable, and if any clause or provision shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction, or any other clause or provision of this
Guarantee in any jurisdiction.
SECTION 7.5 Notices. All notices, approvals, consents and
other communications to any party hereunder shall be in writing and sent by
certified or registered mail, return receipt requested, or by overnight delivery
service, with all charges prepaid to such party at its address set forth on
Schedule A attached hereto, or by facsimile transmission, promptly confirmed in
writing, sent by first class mail, to the telecopy number set forth on, Schedule
A attached hereto, or such other address or telecopy number as such party may
hereafter specify by notice to the Administrative Agent and the Guarantor. All
such notices, approvals, consents or other communications shall be deemed given
(i) if sent by certified or registered mail, five (5) Business Days after being
postmarked (ii) if sent by overnight delivery
11
service, when received at the address specified on Schedule A or when delivery
is refused and (iii) if sent by facsimile transmission, when receipt of such
transmission is acknowledged.
SECTION 7.6 Remedies Cumulative. Each right, power and remedy
of the Guaranteed Parties provided in this Guarantee or now or hereafter
existing at law or in equity or by statute or otherwise shall be cumulative and
concurrent and shall be in addition to every other right, power or remedy
provided for in this Guarantee or now or hereafter existing at law or in equity
or by statute or otherwise. The exercise or partial exercise by the Guaranteed
Parties of any one or more of such rights, powers or remedies shall not preclude
the simultaneous or later exercise by the Guaranteed Parties of all such other
rights, powers or remedies, and no failure or delay on the part of the
Guaranteed Parties to exercise any such right power or remedy shall operate as a
waiver thereof.
SECTION 7.7 Statute of Limitations. To the full extent
permitted by applicable law, the Guarantor hereby waives the right to plead any
statute of limitations as a defense to performance of its obligations under, or
enforcement of, this Guarantee.
SECTION 7.8 Final Expression. This Guarantee, together with
any other agreement executed in connection herewith, is intended by the parties
as a final expression of this Guarantee and is intended as a complete and
exclusive statement of the terms and conditions thereof. Acceptance of or
acquiescence in a course of performance rendered under this Guarantee shall not
be relevant to determine the meaning of this Guarantee even though the accepting
or acquiescing party had knowledge of the nature of the performance and
opportunity for objection.
SECTION 7.9 Financial Status. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Company and any and all endorsers and other guarantors of any instrument or
document evidencing all or any part of the Obligations and of all other
circumstances bearing upon the risk of nonpayment of the Obligations or any part
thereof that diligent inquiry would reveal, and the Guarantor hereby agrees that
the Guaranteed Parties shall have no duty to advise the Guarantor of information
known to the Guaranteed Parties regarding such condition or any such
circumstances. In the event the Guaranteed Parties, in their discretion,
undertake at any time or from time to time to provide any such information to
the undersigned, the Guaranteed Parties shall be under no obligation (i) to
undertake any investigation not a part of their regular business routine, (ii)
to disclose any information which pursuant to accepted or reasonable commercial
lending practices the Guaranteed Parties wish to maintain confidential, or (iii)
to make any other or future disclosures of such information or any other
information to the Guarantor.
SECTION 7.10 Authority of Administrative Agent. The Guarantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Guarantee with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Administrative
Agent and the Banks, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as
12
agent for the Banks with full and valid authority so to act or refrain from
acting, and the Guarantor shall not be obligated or entitled to make any inquiry
respecting such authority.
SECTION 7.11 Assignability. This Guarantee shall be binding on
the Guarantor and its successors and permitted assigns and shall inure to the
benefit of the Guaranteed Parties and their respective successors, transferees
and assigns. The Guarantor may not assign this Guarantee.
SECTION 7.12 Non-Waiver. The failure of the Guaranteed Parties
to enforce any right or remedy hereunder, or promptly to enforce any such right
or remedy, shall not constitute a waiver thereof, nor give rise to any estoppel
against the Guaranteed Parties, nor excuse the Guarantor from its obligations
hereunder.
SECTION 7.13 Termination. Subject to the provisions of
Sections 1.8 and 5(c) hereof, this Guarantee shall terminate upon the receipt by
each of the Guaranteed Parties of evidence satisfactory to it of the payment (or
prepayment) in full of the Obligations and any other amounts which may be owing
hereunder and the termination of the Credit Agreement and the other Credit
Documents, or the release of the Guarantor by the Guaranteed Parties, whichever
shall occur first. In addition, upon certification by the Company that the
Guarantor has been sold to a third party in compliance with the provisions of
the Credit Agreement, so long as no Default or Event of Default has occurred and
is continuing, this Guarantee shall terminate. At the time of any such
termination, the Guaranteed Parties, at the request and expense of the
Guarantor, will execute and deliver to the Guarantor a proper instrument or
instruments acknowledging the satisfaction and termination (as applicable) of
this Guarantee.
SECTION 7.14 Counterparts. This Guarantee may be executed in
any number of counterparts, and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which taken together shall constitute one and the same instrument.
SECTION 7.15 GOVERNING LAW. THIS GUARANTEE AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 7.16 Submission to Jurisdiction: Waivers. The
Guarantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Guarantee, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
13
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Guarantor at its address set forth on Schedule A hereto or at such other address
of which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction;
(e) waives the right to assert any counterclaims in
respect of, and all statutes of limitations which may be relevant to, such
action or proceeding;
(f) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any such action or proceeding
referred to in this Section against any Guaranteed Party unless such action or
proceeding is based on gross negligence, willful misconduct, miscalculation of
amounts owed by the Guarantor or knowing violations of law; and
(g) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive, indirect or
consequential damages unless such damages are the result of willful misconduct
or knowing violations of law.
SECTION 7.17 Acknowledgement . The Guarantor hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Guarantee;
(b) neither the Administrative Agent nor any Guaranteed
Party has any fiduciary relationship to the Guarantor, and the relationship
between the Administrative Agent and the Guaranteed Parties, on the one hand,
and the Guarantor, on the other hand, is solely that of debtor and creditor, and
(c) no joint venture exists among the Guaranteed Parties
or among the Guarantor and the Guaranteed Parties.
SECTION 7.18 WAIVERS OF JURY TRIAL. THE GUARANTOR, THE
ADMINISTRATIVE AGENT AND THE GUARANTEED PARTIES HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
[SIGNATURE PAGE FOLLOWS]
14
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to
be duly executed and delivered as of the date first above written.
[______________________________]
By:____________________________
Name:
Title:
15
SCHEDULE A TO SUBSIDIARY GUARANTEE
Notices
Address and Other Information:
Guarantor: [___________________________]
c/o Arrow Electronics, Inc.
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Administrative Agent: JPMorgan Chase Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
JPMorgan Chase Bank
0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
EXHIBIT G-1 TO
CREDIT AGREEMENT
OPINION OF MILBANK, TWEED, XXXXXX & XXXXXX LLP
EXHIBIT G-2 TO
CREDIT AGREEMENT
OPINION OF XXXXX X. XXXXX
EXHIBIT G-3 TO
CREDIT AGREEMENT
OPINIONS RELATING TO THE
FOREIGN SUBSIDIARY BORROWERS
Opinions for the Foreign Subsidiary Borrowers:
1. The Foreign Subsidiary Borrower is validly existing
and in good standing (if applicable) under the laws of the jurisdiction
of its organization (the "Jurisdiction").
SECTION 37. The Foreign Subsidiary Borrower has the power and
authority, and the legal right, to make, deliver and perform its obligations
under the Credit Agreement and to borrow under the Credit Agreement. The Foreign
Subsidiary Borrower has taken all necessary corporate action to authorize the
performance of its obligations as a "Foreign Subsidiary Borrower" under the
Credit Agreement and to authorize the execution, delivery and performance of the
Credit Agreement.
SECTION 38. Except for consents, authorizations, approvals,
notices and filings described on an attached schedule, all of which have been
obtained, made or waived and are in full force and effect, no consent or
authorization of, approval by, notice to, filing with or other act by or in
respect of, any Governmental Authority is required in connection with the
borrowings by the Foreign Subsidiary Borrower under the Credit Agreement or with
the execution, delivery, performance, validity or enforceability of the Credit
Agreement.
SECTION 39. The Credit Agreement has been duly executed and
delivered on behalf of the Foreign Subsidiary Borrower.
SECTION 40. The execution and delivery of the Credit Agreement
by the Foreign Subsidiary Borrower, the performance of its obligations
thereunder, the consummation of the transactions contemplated thereby, the
compliance by the Foreign Subsidiary Borrower with any of the provisions
thereof, the borrowings under the Credit Agreement and the use of proceeds
thereof, all as provided therein, (a) will not violate, or constitute a default
under, any Requirement of Law of the Foreign Subsidiary Borrower and (b) will
not result in, or require, the creation or imposition of any Lien on any of its
properties or revenues pursuant to any such Requirement of Law.
SECTION 41. There are no taxes imposed by the Jurisdiction (a)
on or by virtue of the execution, delivery, enforcement or performance of the
Credit Agreement or (b) on any payment to be made by the Foreign Subsidiary
Borrower pursuant to the Credit Agreement other than any Non-Excluded Taxes
payable by the Foreign Subsidiary Borrower as provided in subsection 7.6 of the
Credit Agreement.
SECTION 42. To ensure the legality, validity, enforceability
or admissibility in evidence of the Credit Agreement, it is not necessary that
the Credit Agreement or any other Loan Documents or any other document be filed,
registered or recorded with, or executed or notarized before, any
2
court of other authority of the Jurisdiction or that any registration charge or
stamp or similar tax be paid on or in respect of the Credit Agreement.
SECTION 43. The Credit Agreement is in proper legal form under
the laws of the Jurisdiction for the enforcement thereof against the Foreign
Subsidiary Borrower under the laws of the Jurisdiction.
SECTION 44. In any action or proceeding arising out of or
relating to the Credit Agreement in any court in the Jurisdiction, such court
would recognize and give effect to the choice of law provisions in the Credit
Agreement wherein the parties thereto agree that the Credit Agreement shall be
governed by, and construed and interpreted in accordance with, the laws of the
State of New York.
SECTION 45. It is not necessary under the laws of the
Jurisdiction (a) in order to enable the Administrative Agent and the Lenders or
any of them to enforce their respective rights under the Credit Agreement or (b)
by reason of the execution of the Credit Agreement [or the Joinder Agreement to
which the Foreign Subsidiary Borrower is a party] or the performance of the
Credit Agreement that any of them should be licensed, qualified or entitled to
carry on business in the Jurisdiction.
SECTION 46. Neither the Administrative Agent nor any of the
Lenders will be deemed to be resident, domiciled, carrying on business or
subject to taxation in the Jurisdiction merely by reason of the execution of the
Credit Agreement [or the Joinder Agreement to which the Foreign Subsidiary
Borrower is a party] or the performance or enforcement of any thereof. The
performance by the Administrative Agent and the Lenders or any of them of any
action required or permitted under the Credit Agreement will not violate any law
or regulation, or be contrary to the public policy, of the Jurisdiction.
SECTION 47. If any judgment of a competent court referred to
in Section 14.14(a)(i) of the Credit Agreement were rendered against the Foreign
Subsidiary Borrower in connection with any action arising out of or relating to
the Credit Agreement, such judgment would be recognized and could be sued upon
in the courts of the Jurisdiction, and such courts would grant a judgment which
would be enforceable against the Foreign Subsidiary Borrower in the Jurisdiction
without any retrial unless it is shown that (a) the foreign court did not have
jurisdiction in accordance with its jurisdictional rules, (b) the party against
whom the judgment of such foreign court was obtained had no notice of the
proceedings or (c) the judgment of such foreign court was obtained through
collusion or fraud or was based upon clear mistake of fact or law.
The foregoing opinions may be subject to customary assumptions
and qualifications.
EXHIBIT H TO
CREDIT AGREEMENT
FORM OF
CERTIFICATE OF RESPONSIBLE OFFICER
PURSUANT TO SUBSECTION 10.2(b)
Pursuant to subsection 10.2(b) of the AMENDED AND RESTATED
THREE YEAR CREDIT AGREEMENT, dated as of December 18, 2003 (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among ARROW ELECTRONICS, INC. (the "Company"), the Subsidiary
Borrowers parties thereto, the several banks and other financial institutions
from time to time parties thereto (the "Banks"), X.X. XXXXXX SECURITIES INC., as
the arranger (the "Arranger"), and JPMORGAN CHASE BANK, as administrative agent
(the "Administrative Agent"), the undersigned, [Responsible Officer of the
Company], hereby certifies, to the best of his/her knowledge, as follows:
2.For the fiscal year of the Company ending ________ __, ____,
the Company has observed or performed all of its covenants and other agreements
contained in the Credit Agreement and the other Credit Documents to which it is
a party to be observed or performed by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified
herein [specify Default or Event of Default, if any];
SECTION 48. The financial statements delivered concurrently
herewith pursuant to subsections 10.1(a) and (b) of the Credit Agreement fairly
present the consolidated (or consolidating by principal operating group, as
appropriate) financial position and results of operations of the Company and its
consolidated Subsidiaries in accordance with GAAP applied consistently
throughout the periods reflected therein and with the prior periods (except as
approved by the accountants performing such audit or the Responsible Officer
making such certification, as the case may be, and disclosed therein).
SECTION 49. The calculations set forth on Schedule A hereto
support the statement in paragraph 1 above in respect of subsections 11.1(a) and
(b), 11.2 and 11.3 of the Credit Agreement.
Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement and used herein are so used as so defined.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her name and affixed the corporate seal.
ARROW ELECTRONICS, INC.
By: ________________________________
Name:
Title:
Date: ___________
EXHIBIT I TO
CREDIT AGREEMENT
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the AMENDED AND RESTATED THREE YEAR
CREDIT AGREEMENT, dated as of December 18, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among ARROW
ELECTRONICS, INC. (the "Company"), the Subsidiary Borrowers parties thereto, the
several Banks, X.X. XXXXXX SECURITIES INC., as arranger (the "Arranger"), and
JPMORGAN CHASE BANK, as administrative agent (the "Administrative Agent").
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
___________________ (the "Assignor") and __________(the
"Assignee") agree as follows:
3. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), an interest (the "Assigned Interest") in
and to the Assignor's rights and obligations under the Credit Agreement, in a
principal amount as set forth on SCHEDULE 1.
SECTION 50. The Assignor (a) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto, other
than that the Assignor has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any such
adverse claim; and (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company, any of
its Subsidiaries or any other obligor or the performance or observance by the
Company, any of its Subsidiaries or any other obligor of any of their respective
obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto.
SECTION 51. The Assignee (a) represents and warrants that it
is legally authorized to enter into this Assignment and Acceptance; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 8.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent, each
Swing Line Bank and each Issuing Bank to take such action as agent on its behalf
and to exercise such powers and
2
discretion under the Credit Agreement, the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto as are delegated to
the Administrative Agent, each Swing Line Bank and each Issuing Bank, as the
case may be, by the terms thereof, together with such powers as are incidental
thereto; and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Bank including its obligation pursuant to subsection 7.6(b) of the Credit
Agreement.
SECTION 52. The effective date of this Assignment and
Acceptance shall be ________ (the "Effective Date"). Following the execution of
this Assignment and Acceptance, it will be delivered to the Administrative Agent
for acceptance by it and recording by the Administrative Agent pursuant to the
Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business
Days after the date of such acceptance and recording by the Administrative
Agent).
SECTION 53. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees and
other amounts) which accrue subsequent to the Effective Date to the Assignee.
The Assignor and the Assignee shall make all appropriate adjustments in payments
by the Administrative Agent for periods prior to the Effective Date or with
respect to the making of this assignment directly between themselves.
SECTION 54. From and after the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
SECTION 55. This Assignment and Acceptance shall be governed
by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE AMENDED AND RESTATED THREE YEAR CREDIT AGREEMENT, DATED AS
OF DECEMBER 18, 2003, AMONG
ARROW ELECTRONICS, INC. (THE "COMPANY"), THE SUBSIDIARY BORROWERS PARTIES
THERETO, THE SEVERAL BANKS, X.X. XXXXXX SECURITIES INC., AS ARRANGER,
AND JPMORGAN CHASE BANK, AS AGENT (IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT")
--------------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
--------------------------------------- --------------------------------------
Principal Commitment Percentage
Amount Assigned Assigned4
--------------------------------------- --------------------------------------
$------- --.-------%
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: ------------------------------- By: -------------------------------
Name: Name:
Title: Title:
Accepted [and Consented to]: Consented To:5 /
JPMORGAN CHASE BANK, as ARROW ELECTRONICS, INC.
Administrative Agent
By: ------------------------------- By: -------------------------------
Name: Name:
Title: Title:
----------------------------
4 Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of
all Lenders.
5 Consents only required if Assignee is not already a Bank or an
Affiliate thereof.
EXHIBIT J TO
CREDIT AGREEMENT
RESERVED
EXHIBIT K TO
CREDIT AGREEMENT
FORM OF NEW BANK SUPPLEMENT
SUPPLEMENT, dated _______ __, to the AMENDED AND RESTATED
THREE YEAR CREDIT AGREEMENT, dated as of December 18, 2003 (as in effect on the
date hereof, the "Credit Agreement"; terms defined therein being used herein as
therein defined), among ARROW ELECTRONICS, INC., the Subsidiary Borrowers
parties thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger, and
JPMORGAN CHASE BANK, as Administrative Agent. Unless the context otherwise
requires, all capitalized terms used herein without definition shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Credit Agreement provides in subsection 2.10
thereof that any bank or financial institution, although not originally a party
thereto, may become a party to the Credit Agreement in accordance with the terms
thereof by executing and delivering to the Borrowers and the Administrative
Agent a supplement to the Credit Agreement in substantially the form of this
Supplement; and
WHEREAS, the undersigned was not an original party to the
Credit Agreement but now desires to become a party thereto;
NOW, THEREFORE, the undersigned hereby agrees as follows:
The undersigned agrees to be bound by the provisions of the
Credit Agreement and agrees that it shall, on the date this Supplement is
accepted by the Borrowers and the Administrative Agent, become a Bank for all
purposes of the Credit Agreement to the same extent as if originally a party
thereto, with a Commitment of $__________________.
The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
delivered pursuant to Section 8.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Supplement; (c) agrees that it has made and will,
independently and without reliance upon the Administrative Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, the other Credit Documents or any instrument
or document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Administrative Agent, each Swing Line Bank and each Issuing Bank to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement or any instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent, each Swing Line
Bank and each Issuing Bank, as the case may be, by the terms thereof, together
with such powers as are incidental thereto; and (e) agrees that it will be bound
by the provisions of the Credit Agreement and will perform in accordance with
its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Bank including its obligation pursuant to subsection
7.6(b) of the Credit Agreement.
The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
______________________________________
Attention:____________________________
______________________________________
______________________________________
Fax:__________________________________
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[NAME OF NEW BANK]
By:___________________________________
Title:
Accepted this _____ day of
______________, 200_
ARROW ELECTRONICS, INC.
By:____________________________________
Title:
Accepted this _____ day of
______________, 200_
[OTHER BORROWERS]
By:____________________________________
Title:
Accepted this _____ day of
______________, 200_
JPMORGAN CHASE BANK,
as Administrative Agent
By: ___________________________________
Title:
EXHIBIT L TO
CREDIT AGREEMENT
FORM OF COMMITMENT INCREASE SUPPLEMENT
SUPPLEMENT, dated _______ __, to the AMENDED AND RESTATED
THREE YEAR CREDIT AGREEMENT, dated as of December 18, 2003 (as in effect on the
date hereof, the "Credit Agreement"; terms defined therein being used herein as
therein defined), among ARROW ELECTRONICS, INC., the Subsidiary Borrowers
parties thereto, the Banks, X.X. XXXXXX SECURITIES INC., as Arranger, and
JPMORGAN CHASE BANK, as Administrative Agent. Unless the context otherwise
requires, all capitalized terms used herein without definition shall have the
meanings ascribed to them in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of subsection 2.10 of the
Credit Agreement, the undersigned may increase the amount of its Commitment in
accordance with the terms thereof by executing and delivering to the Borrowers
and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to increase the amount of
its Commitment under the Credit Agreement;
NOW THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees, subject to the terms and conditions
of the Credit Agreement, that on the date this Supplement is accepted by the
Borrowers and the Administrative Agent it shall have its Commitment increased by
$______________, thereby making the amount of its Commitment $______________.
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[NAME OF BANK]
By:___________________________________
Title:
Accepted this _____ day of
______________, 200_
ARROW ELECTRONICS, INC.
By:____________________________________
Title:
[OTHER BORROWERS]
By:____________________________________
Title:
Accepted this _____ day of
______________, 200_
JPMORGAN CHASE BANK,
as Administrative Agent
By:____________________________________
Title:
