AMENDMENT NO. 2 TO TRANSFER AND ADMINISTRATION AGREEMENT
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AMENDMENT NO. 2 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of December 14, 2001, to that certain Transfer and
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Administration Agreement, dated as of March 21, 2001, as amended by
Amendment No. 1 to the Transfer and Administration Agreement, dated as
of November 30, 2001 (as supplemented or modified from time to time, the
"TAA"), by and among Arrow Electronics Funding Corporation, a Delaware
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corporation (the "SPV"), Arrow Electronics, Inc., a New York corporation,
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individually ("Arrow") and as the initial Master Servicer, the several
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commercial paper conduits identified on Schedule A to the TAA and their
respective permitted successors and assigns (the "Conduit Investors";
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each individually, a "Conduit Investor"), the agent bank set forth
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opposite the name of each Conduit investor on such Schedule A and its
permitted successors and assigns (each a "Funding Agent") with respect
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to such Conduit Investor, and Bank of America, National Association, a
national banking association, as the administrative agent for the
Investors (the "Administrative Agent"), and the financial institutions
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from time to time parties thereto as Alternate Investors. Capitalized
terms used and not otherwise defined herein have the meanings assigned
to such terms in the TAA.
PRELIMINARY STATEMENTS:
WHEREAS, the SPV, Arrow, the Conduit Investors, the Funding
Agents, the Alternate Investors and Administrative Agent have entered
into the TAA;
WHEREAS, the SPV and Arrow have requested that the Conduit
Investors, the Funding Agents, the Alternate Investors and Administrative
Agent agree to make certain changes and amendments to the TAA;
WHEREAS, subject to the terms and conditions set forth herein,
the Conduit Investors, the Alternate Investors, the Funding Agents and
Administrative Agent are willing to make such changes and amendments
to the TAA; and
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the TAA. Effective as of the
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date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 3 hereof, the TAA is hereby amended as follows:
(a) Section 1.1 is amended by amending and restating clauses
(l), (t) and (u) to the definition of "Eligible Receivable" and adding
new clauses (v) and (w) thereto, each such clause to read in its entirety
as follows:
"(l) which, in respect of a Canadian Receivable, has been
originated by either Arrow Electronics Canada Ltd. or Arrow Asia, (i)
has satisfied each of the Canadian Eligibility Conditions (other than in
the case of Receivables originated by Arrow Asia), and (ii) when added
to the aggregate Unpaid Balance of all other Canadian Receivables, does
not exceed the lesser of: (x) the amount equal to 10% of the aggregate
Unpaid Balance of all Eligible Receivables and (y) $100,000,000;
(t) which (together with the Related Security related thereto) has
been the subject of either a valid transfer and assignment from, or the
grant of a first priority perfected security interest therein by, the
SPV to the Administrative Agent, on behalf of the Funding Agents for the
benefit of the Investors, of all of the SPV's right, title and interest
therein;
(u) as to which no Tax is applicable, solely as a result of
withholding by the Obligor thereof or any assessment on the SPV or any
Investor;
(v) which was not originated by MOCA, unless each Investor and the
Administrative Agent shall have consented in writing to the inclusion of
Receivables originated by MOCA as "Eligible Receivables" (it being
understood and agreed that within a reasonable time period after June
15, 2002, each of the Investors and the Administrative Agent shall make
a reasonable effort to review the data related to the Receivables
originated by MOCA, provided that the SPV shall have previously
delivered to each Investor and the Administrative Agent any such data or
other information related to MOCA that such Person may reasonably
request); and
(w) which, in respect of an Arrow Asia Receivable, has been
originated by Arrow Asia, and when added to the aggregate Unpaid Balance
of all other Arrow Asia Receivables, does not exceed an amount equal to
10% of the aggregate Unpaid Balance of all Eligible Receivables."
(b) Section 1.1 is amended by amending and restating the definition
of "Event of Bankruptcy," such definition to read in its entirety as follows:
"Event of Bankruptcy" means, with respect to any Person, (a) that
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such Person or any Significant Subsidiary of such Person (i) shall
generally not pay its debts as such debts become due, (ii) shall admit
in writing its inability, or shall be deemed under any applicable Law
to be unable, to pay its debts generally or (iii) shall enter into an
arrangement or compromise with creditors or shareholders (solely in the
case of Arrow Asia) or shall make a general assignment for the benefit
of creditors or, solely in the case of Arrow Asia, shareholders; (b) any
proceeding shall be instituted by or against such Person or any
Significant Subsidiary of such Person seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, receiver and
manager, trustee, provisional liquidator, liquidator, provisional
supervisor or other similar official for it or any substantial part of
its property or assets; or (c) such Person or any Significant Subsidiary
of such Person shall take any corporate, partnership or other similar
appropriate action to authorize any of the actions set forth in the
preceding clauses (a) or (b).
(c) Section 1.1 is amended by amending and restating the definition
of "Originator," such definition to read in its entirety as follows:
"Originator" means any of Arrow, Support Net, Inc., an Indiana
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corporation; SBM; Consan Incorporated, a Minnesota corporation; Gates/Arrow
Distributing, Inc., a Delaware corporation; Arrow Electronics Canada Ltd.,
a Canadian corporation, MOCA, Arrow Asia, and such other originators as
may be designated from time to time by the SPV with the consent of the
Administrative Agent and each Investor.
(d) Section 1.1. is hereby amended by adding the following new
definitions, to read in their entirety as follows:
"Arrow Asia" means Arrow Asia Distribution Limited, a company
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incorporated in Hong Kong and having its registered office at 20th Floor,
Ever Gain Plaza, Tower 2, 88 Container Port Road, ▇▇▇▇ ▇▇▇▇▇, New
Territories, Hong Kong.
"Arrow Asia Receivable" means a Receivable originated by Arrow
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Asia.
"MOCA" means Midrange Open Computing Alliance, Inc., a
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Delaware corporation.
SECTION 2. Representations and Warranties. To induce the
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Investors, the Funding Agents and the Administrative Agent to enter
into this Amendment, the SPV and Arrow each makes the following
representations and warranties (which representations and warranties
shall survive the execution and delivery of this Amendment) as of the
date hereof, after giving effect to the amendments set forth herein:
(a) Authority. The SPV and Arrow each has the requisite corporate
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power, authority and legal right to execute and deliver this Amendment
and to perform its obligations hereunder and under the Transaction
Documents, including the TAA (as modified hereby). The execution,
delivery and performance by the SPV and Arrow of this Amendment and their
performance of the Transaction Documents, including the TAA (as modified
hereby), have been duly approved by all necessary corporate action and no
other corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
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delivered by the SPV and Arrow. This Amendment is the legal, valid and
binding obligation of the SPV and Arrow, enforceable against the SPV and
Arrow in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally and the application of general principles of equity
(regardless of whether considered in a proceeding at law or in equity).
The making and delivery of this Amendment and the performance of the
Agreement, as amended by this Amendment, do not violate any provision
of law or any regulation (except to the extent that the violation
thereof could not, in the aggregate, be expected to have a Material
Adverse Effect or a material adverse effect on the condition (financial
or otherwise), business or properties of Arrow and the other Originators,
taken as a whole), or its charter or by-laws, or result in the breach
of or constitute a default under or require any consent under any
indenture or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound or affected.
(c) Representations and Warranties. The representations and
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warranties contained in the Transaction Documents are true and correct
on and as of the date hereof as though made on and as of the date
hereof after giving effect to this Amendment.
(d) No Termination Event. After giving effect to this Amendment,
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no event has occurred and is continuing that constitutes a Termination
Event or a Potential Termination Event.
SECTION 3. Conditions Precedent. This Amendment shall become
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effective, as of the date hereof, on the date on which the following
conditions precedent shall have been fulfilled:
(a) This Amendment. The Administrative Agent shall have received
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counterparts of this Amendment, duly executed by each of the parties hereto.
(b) Legal Opinion. The Administrative Agent shall have received
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favorable opinions of counsel for the SPV, Arrow, MOCA and Arrow Asia
in form and substance satisfactory to the Administrative Agent, the
Administrative Agent's counsel and each Funding Agent, covering such
matters as the Administrative Agent may request.
(c) Additional Documents. The Administrative Agent shall have
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received all additional approvals, certificates , documents, instruments
and items of information as the Administrative Agent may reasonably
request and all of the foregoing shall be in form and substance
reasonably satisfactory to the Administrative Agent and each Funding Agent.
(d) Legal Matters. All instruments and legal and corporate
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proceedings in connection with the transactions contemplated by this
Amendment shall be satisfactory in form and substance to the Administrative
Agent, the Administrative Agent's counsel and each Funding Agent and the
fees and expenses of counsel to the Administrative Agent incurred in
connection with the execution of this Amendment and the transactions
contemplated hereby shall have been paid in full.
SECTION 4. References to and Effect on the Transaction Documents.
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(a) Except as specifically amended and modified hereby, each
Transaction Document is and shall continue to be in full force and effect
and is hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any
Investor, Funding Agent or the Administrative Agent under any Transaction
Document, nor constitute a waiver, amendment or modification of any provision
of any Transaction Document, except as expressly provided in Section 1 hereof.
(c) This Amendment contains the final and complete integration of
all prior expressions by the parties hereto with respect to the subject
matter hereof and shall constitute the entire Amendment among the parties
hereto with respect to the subject matter hereof superseding all prior oral
or written understandings.
(d) Each reference in the TAA to "this Agreement", "hereunder",
"hereof" or words of like import, and each reference in any other
Transaction Document to "the Transfer and Administration Agreement",
"thereunder", "thereof" or words of like import, referring to the Agreement,
shall mean and be a reference to the Agreement as amended hereby.
SECTION 5. Execution in Counterparts. This Amendment may be
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executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telefacsimile
shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
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WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF,
CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM
IN CONNECTION WITH THIS AMENDMENT OR ANY OTHER TRANSACTION DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
ARROW ELECTRONICS FUNDING CORPORATION,
as SPV
By:
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Name:
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Title:
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ARROW ELECTRONICS, INC.,
individually and as Master Servicer
By:
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Name:
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Title:
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ENTERPRISE FUNDING CORPORATION,
as a Conduit Investor
By:
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Name:
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Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Funding Agent, as Administrative Agent,
and as an Alternate Investor
By:
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Name:
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Title:
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DELAWARE FUNDING CORPORATION,
as a Conduit Investor
By:
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Name:
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Title:
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JPMORGAN CHASE BANK,
(successor by merger to ▇▇▇▇▇▇ Guaranty Trust
Company of New York) as a Funding Agent and as
an Alternate Investor
By:
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Name:
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Title:
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EAGLE FUNDING CAPITAL CORPORATION,
as a Conduit Investor and as an Alternate
Investor
By: Fleet Securities, Inc.,
its attorney-in-fact
By:
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Name:
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Title:
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FLEET SECURITIES, INC.
as a Funding Agent
By:
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Name:
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Title:
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GRAMERCY CAPITAL CORP.,
as a Conduit Investor
By: Credit Suisse First Boston, New York
Branch, its attorney-in-fact
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as a Funding Agent and as an Alternate Investor
By:
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Name:
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Title:
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By:
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Name:
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Title:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORP.,
as a Conduit Investor
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA,
as a Funding Agent and as an Alternate Investor
By:
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Name:
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Title:
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VICTORY RECEIVABLES CORPORATION,
as a Conduit Investor
By:
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Name:
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
as a Funding Agent and as an Alternate Investor
By:
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Name:
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Title:
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