Exhibit 10 (n)
(xi)
AMENDMENT NO. 10 TO TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NO. 10 TO TRANSFER AND
ADMINISTRATION AGREEMENT, dated as of February 18, 2004 (this "
Amendment "), to that certain Transfer and Administration
Agreement dated as of March 21, 2001, as amended by Amendment No. 1
to Transfer and Administration Agreement dated as of November 30,
2001, Amendment No. 2 to Transfer and Administration Agreement
dated as of December 14, 2001, Amendment No. 3 to Transfer and
Administration Agreement dated as of March 20, 2002, Amendment No.
4 to Transfer and Administration Agreement dated as of March 29,
2002, Amendment No. 5 to Transfer and Administration Agreement
dated as of May 22, 2002, Amendment No. 6 and Limited Waiver to
Transfer and Administration Agreement dated as of September 27,
2002, Amendment No. 7 to Transfer and Administration Agreement
dated as of February 19, 2003, Amendment No. 8 to Transfer and
Administration Agreement dated as of April 14, 2003 and Amendment
No. 9 to Transfer and Administration Agreement dated as of August
13, 2003 (as so amended and in effect, the " TAA "), by and
among Arrow Electronics Funding Corporation, a Delaware corporation
(the " SPV "), Arrow Electronics, Inc., a New York
corporation, individually (" Arrow ") and as the initial
Master Servicer, the several commercial paper conduits identified
on Schedule A to the TAA and their respective permitted successors
and assigns (the " Conduit Investors "; each individually, a
" Conduit Investor "), the agent bank set forth opposite the
name of each Conduit Investor on such Schedule A and its permitted
successors and assigns (each a " Funding Agent ") with
respect to such Conduit Investor, and Bank of America, National
Association, a national banking association, as the administrative
agent for the Investors (the " Administrative Agent "), and
the financial institutions from time to time parties thereto as
Alternate Investors. Capitalized terms used and not otherwise
defined herein have the meanings assigned to such terms in the
TAA.
PRELIMINARY
STATEMENTS:
WHEREAS, the SPV, Arrow, the Conduit
Investors, the Funding Agents, the Alternate Investors and the
Administrative Agent have entered into the TAA;
WHEREAS, the SPV and Arrow have
requested that the Conduit Investors, the Funding Agents, the
Alternate Investors and the Administrative Agent agree to make
certain changes and amendments to the TAA;
WHEREAS, subject to the terms and
conditions set forth herein, the Conduit Investors, the Alternate
Investors, the Funding Agents and the Administrative Agent are
willing to make such changes and amendments to the TAA;
and
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Amendments to the
TAA . Effective as of the
date hereof and subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the TAA is hereby amended
as follows:
1.
Section 1.1 is amended by
amending and restating the definition of "Adjusted Consolidated
EBITDA," such definition to read in its entirety as
follows:
" Adjusted Consolidated
EBITDA " means for any fiscal period, without duplication (a)
the Consolidated Net Income of Arrow and its CA 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 CA Affiliates, plus (d)
to the extent excluded in determining Consolidated Net Income for
such period, cash distributions received by Arrow from
unconsolidated CA 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 the 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 Arrow, 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 Arrow, 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.
2.
Section 1.1 is amended by
amending and restating the definition of "Commitment Termination
Date," such definition to read in its entirety as
follows:
" Commitment Termination Date
" means the earliest to occur of (a) February 19, 2006, (b) the
date the commitment of any Program Support Provider terminates
under any Program Support Agreement, and (c) the date of
termination of any Program Support Agreement; provided ,
that in any event the Commitment Termination Date shall not occur
prior to February 16, 2005 (or such later date as to which the SPV,
Arrow, each Conduit Investor, Funding Agent and Alternate Investor
affected thereby and the Administrative Agent may agree in
writing).
3.
Section 1.1 is hereby
amended by adding the following new definitions in their respective
alphabetical locations, to read in their entirety as
follows:
" Consolidated Interest Coverage
Ratio " means for any period, the ratio of (a) Adjusted
Consolidated EBITDA to (b) Consolidated Cash Interest Expense for
such period.
" Consolidated Leverage Ratio
" means 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.
" Ratings " means the actual
or implied senior unsecured non-credit enhanced debt ratings of
Arrow in effect from time to time by Moody's or S&P, as the
case may be, the bank debt rating of Arrow in effect from time to
time by Moody's or the corporate credit rating of Arrow in effect
from time to time by S&P.
4.
Subsection 8.1 is amended
by amending and restating clause (n) thereof, such clause to read
in its entirety as follows:
"(n) the Consolidated Leverage Ratio
on any day during any fiscal quarter set forth below exceeds the
ratio set forth below opposite such fiscal quarter:
Fiscal Quarter
Consolidated Leverage
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 4.00 to
1.00
thereafter
; or"
5.
Subsection 8.1 is amended
by amending and restating clause (o) thereof, such clause to read
in its entirety as follows:
"(o) the Consolidated Interest
Coverage Ratio for any period of four conse
