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0000007536 false 0000007536 2022-09-20 2022-09-20 iso4217:USD xbrli:shares iso4217:USD xbrli:shares

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): September 20, 2022

 

ARROW ELECTRONICS, INC.

(Exact Name of Registrant as Specified in Charter)

 

NEW YORK 1-4482 11-1806155
(State or Other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification No.)

 

9201 East Dry Creek Road, Centennial, CO 80112
(Address of Principal Executive Offices)  

 

Registrant's telephone number, including area code: (303) 824-4000

 

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 20.14a-12)
   
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of the exchange on which registered
Common Stock, $1 par value   ARW   New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ¨

 

 

 


 

Item 1.01.       Entry Into a Material Definitive Agreement.

 

Amendment of EMEA Securitization Facility

 

As described by Arrow Electronics, Inc. (the “Company”) in its Current Report on Form 8-K filed with the Securities and Exchange Commission on January 30, 2020, certain subsidiaries of the Company established a multi-jurisdictional asset-backed securitization (such transaction, together with the agreements and the other documents related thereto (as amended or otherwise modified prior to the hereinafter defined EMEA Amendment No. 1), the “Original EMEA Securitization”).

 

In connection with the Original EMEA Securitization, among other related agreements, and that certain Omnibus Deed of Amendment No. 1 dated December 23, 2021 (the “EMEA Amendment No. 1”) which effectuated certain regulatory updates (the Original EMEA Securitization as amended by EMEA Amendment No. 1, collectively, the “Existing EMEA Securitization”), the parties thereto delivered and entered into (i) a Master Framework Agreement dated as of January 27, 2020, among the Company, Arrow EMEA Funding Corp B.V., a bankruptcy remote special purpose vehicle established in connection with the Original EMEA Securitization, (the “SPV”), Arrow Central Europe GmbH, an indirect wholly owned subsidiary of the Company (the “German Originator”), Arrow Electronics FC B.V., an indirect wholly owned subsidiary of the Company (the “Subordinated Lender”), and Arrow Electronics (UK) Limited, an indirect wholly owned subsidiary of the Company (together with the German Originator, collectively, the “Originators”) (as amended or otherwise modified prior to the hereinafter defined EMEA Amendment No. 2, the “Existing MFA”) and (ii) a Receivables Transfer Agreement dated as of January 27, 2020, among the SPV, as the seller, BNP Paribas, as the administrative agent, purchaser agent, and a committed purchaser, and the Originators, each as an agent servicer and SPV servicer (as amended or otherwise modified prior to the hereinafter defined EMEA Amendment No. 2, the “Existing RTA”).

 

On September 20, 2022, the Company further amended and otherwise modified the Existing EMEA Securitization, including particularly the Existing MFA and Existing RTA, by entering into (i) an Omnibus Deed of Amendment No. 2 together with the SPV, the Originators, the Company, the Subordinated Lender, the administrative agent, the purchaser agent, the paying agent, the security trustee, and certain credit providers (“EMEA Amendment No. 2”, and the Existing EMEA Securitization as amended or otherwise modified by EMEA Amendment No. 2, the “EMEA Securitization”); and (ii) certain other related agreements (together with EMEA Amendment No. 2, the “EMEA Amendment No. 2 Documents”).

 

After giving effect to the EMEA Amendment No. 2 Documents, the Existing MFA and Existing RTA have been modified such that (i) the available commitment of the Existing EMEA Securitization has increased from €400 million to €600 million; (ii) the EMEA Securitization may satisfy the criteria for a simple, transparent and standardized (STS) securitization under European securitization regulations; (iii) the scheduled maturity of the Existing EMEA Securitization has been extended from January 27, 2023, to December 15, 2025; and (iv) certain other regulatory updates have been made.

 

The foregoing description of EMEA Amendment No. 2 does not purport to be complete, and is qualified in its entirety by reference to the full consolidated text of the omnibus deeds of amendment and the respective annexes thereto, which is filed in consolidated form as Exhibit 10.1 to this Current Report on Form 8-K.

 

Amendment of U.S. Securitization Facility

 

On September 20, 2022, the Company entered into Amendment No. 34 (the “U.S. Securitization Amendment”) to that certain Transfer and Administration Agreement dated as of March 21, 2001, by and among the parties from time to time party thereto, which governs the Company’s existing domestic accounts-receivables securitization facility (as amended or otherwise modified prior to the U.S. Securitization Amendment, the “Existing U.S. Securitization Facility”, and the Existing U.S. Securitization Facility as amended by the U.S. Securitization Amendment, the “U.S. Securitization Facility”). Pursuant to the U.S. Securitization Amendment, (i) the size of the Existing U.S. Securitization Facility was increased from $1,250,000,000 to $1,500,000,000; (ii) the maturity of the Existing U.S. Securitization Facility was extended from March 15, 2024, to September 20, 2025; and (iii) the parties made certain regulatory updates to the Existing U.S. Securitization Facility. The following banks are participating in the U.S. Securitization Facility: Bank of America, Mizuho, PNC, Wells Fargo, Sumitomo Mitsui Banking Corporation, and Truist Bank.

 

 


 

The foregoing description of the U.S. Securitization Amendment does not purport to be complete, and is qualified in its entirety by reference to the full text of the U.S. Securitization Amendment, which is filed as Exhibit 10.2 to this Current Report on Form 8-K.

 

Item 2.03.       Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

 

The disclosures set forth in Item 1.01 above are incorporated herein by reference in their entirety.

 

Item 9.01.       Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
Number
Description
   
10.1 Omnibus Deeds of Amendment (dated December 23, 2021 and September 20, 2022), by and among Arrow EMEA Funding Corp B.V., as the SPV; BNP Paribas, as administrative agent, a purchaser agent and as a committed purchaser; Matchpoint Finance PLC, as a conduit purchaser; ING Belgium S.A./N.V., as a purchaser agent; Mont Blanc Capital Corp, as a committed purchaser and conduit purchaser; Arrow Electronics (UK) Limited, as agent servicer, an SPV servicer and an originator; Arrow Central Europe GMBH, as an agent servicer, an SPV servicer and an originator; Arrow Electronics Inc.; Arrow Electronics FC B.V., as subordinated lender; U.S. Bank Trustees Limited, as security trustee; and Elavon Financial Services DAC, as paying agent, together with the Annexes thereto.
   
10.2 Amendment No. 34, dated as of September 20, 2022, to the Transfer and Administration Agreement dated March 21, 2001.
   
104 Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  ARROW ELECTRONICS, INC.
   
Date: September 22, 2022 By: /s/ Carine Jean-Claude
  Name: Carine Jean-Claude
  Title: Senior Vice President, Chief Legal Officer and Secretary

 

 

 

 

  

 

 

EX-10.1 2 tm2226382d1_ex10-1.htm EXHIBIT 10.1

 

Exhibit 10.1

 

[*****] Indicates omitted information. This redacted information has been excluded because it is both (i) not material and (ii) of the type that the registrant treats as private and confidential.

 

THIS OMNIBUS DEED OF AMENDMENT NO. 1 (this “Amendment”) is dated December 23_, 2021 and made among ARROW EMEA FUNDING CORP B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, as the SPV (the “SPV”), BNP PARIBAS (“BNPP”), a société anonyme incorporated under the laws of France, as the Administrative Agent (in such capacity, the “Administrative Agent”), as Purchaser Agent for the BNP Purchaser Group (in such capacity, the “BNPP Purchaser Agent”) and as a Committed Purchaser, MATCHPOINT FINANCE PLC, a public limited company incorporated under the laws of Ireland, as a Conduit Purchaser (“Matchpoint”), ING BELGIUM S.A./N.V., a public limited liability company (société anonyme/naamloze vennootschap) organised under the laws of Belgium, as Purchaser Agent for the ING Purchaser Group (the “ING Purchaser Agent”), MONT BLANC CAPITAL CORP, a corporation organised under the laws of the State of Delaware, as a Committed Purchaser and as a Conduit Purchaser (“Mont Blanc”), ARROW ELECTRONICS (UK) LIMITED, a limited liability company incorporated under the laws of England and Wales, as an Agent Servicer, an SPV Servicer and an Originator (“Arrow UK”), ARROW CENTRAL EUROPE GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany, as an Agent Servicer, an SPV Servicer and an Originator (“Arrow Germany”), ARROW ELECTRONICS, INC., a corporation organised under the laws of the State of New York, as the Parent (the “Parent”), ARROW ELECTRONICS FC B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, as the Subordinated Lender (the “Subordinated Lender”), U.S. BANK TRUSTEES LIMITED, a limited liability company incorporated under the laws of England and Wales, as the Security Trustee (the “Security Trustee”), ELAVON FINANCIAL SERVICES DAC, a designated activity company registered in Ireland, as the Paying Agent (the “Paying Agent”), and DEMICA LIMITED, a private company with limited liability incorporated under the Laws of England and Wales, as the Reporting Services Provider (the “Reporting Services Provider”). Each Person above shall be a “Party” and together shall be the “Parties”.

 

WITNESSETH

 

WHEREAS, the SPV, the Administrative Agent, the BNPP Purchaser Agent, Matchpoint, the ING Purchaser Agent, Mont Blanc, Arrow UK, Arrow Germany, the Parent, the Subordinated Lender, the Security Trustee and the Paying Agent have entered into that certain Master Framework Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Master Framework Agreement”);

 

WHEREAS, the SPV, the Administrative Agent, the BNPP Purchaser Agent, Matchpoint, the ING Purchaser Agent, Mont Blanc, Arrow UK, Arrow Germany, the Security Trustee and the Paying Agent have entered into that certain Receivables Transfer Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Receivables Transfer Agreement”);

 

WHEREAS, Arrow UK and the SPV have entered into that certain English Receivables Sale Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “English RSA”);

 

WHEREAS, the SPV, the Administrative Agent, Arrow UK, Arrow Germany, the Security Trustee and the Paying Agent have entered into that certain Receivables Servicing Deed, dated as of January 27, 2020 (as amended up to the date of this Amendment, the "Servicing Deed"); WHEREAS, the SPV, Arrow Germany and the Security Trustee have entered into that certain English Declaration of Trust (German Collection Accounts), dated as of January 27, 2020 (as amended up to the date of this Amendment, the "Arrow Germany DOT");

 


 

 

WHEREAS, the SPV, Arrow UK, and the Security Trustee have entered into that certain English Declaration of Trust (English Collection Accounts), dated as of January 27, 2020 (as amended up to the date of this Amendment, the "Arrow UK DOT");

 

WHEREAS, the Parent, the SPV, the Administrative Agent and the Security Trustee have entered into that certain Parent Undertaking Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Parent Undertaking”);

 

WHEREAS, the Subordinated Lender, the SPV, Arrow UK, Arrow Germany and the Administrative Agent have entered into that certain Subordinated Loan Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Subordinated Loan Agreement”);

 

WHEREAS, the SPV, Arrow UK, Arrow Germany, the Administrative Agent and the Reporting Services Provider have entered into that certain Reporting Services Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Reporting Services Agreement” and, together with the Master Framework Agreement, Receivables Transfer Agreement, English RSA, Servicing Deed, Arrow Germany DOT, Arrow UK DOT, Parent Undertaking and Subordinated Loan Agreement, the “Agreements” and each Agreement, reflecting the amendment of such Agreement effected or proposed to be effected pursuant to this Amendment, the “Amended Agreements”);

 

WHEREAS, concurrently herewith Arrow Germany, the SPV and the Administrative Agent are entering into that certain First Amendment to German Receivables Sale Agreement, dated as of the Effective Date (the “German RSA Amendment”);

 

WHEREAS, concurrently herewith Arrow Germany, Arrow UK and the Security Trustee are entering into that certain Dutch Account Security Agreement, dated as of the Effective Date (the “Dutch Account Security Agreement”);

 

WHEREAS, the Parties desire to amend the Agreements to which they are a party as provided herein; and

 

NOW THEREFORE, the Parties agree as follows.

 

THIS DEED WITNESSES that:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Terms defined in the Amended Agreements

 

Terms defined in each Amended Agreement but not in this Amendment shall have the same meaning in this Amendment as in such Amended Agreement or, if not defined therein, in the Master Framework Agreement.

 


 

1.2 Interpretation

 

The principles of interpretation set out in Clause 2.2 (Interpretation) of the Master Framework Agreement apply to this Amendment, mutatis mutandis, as if fully set forth herein.

 

2. AMENDMENTS TO THE AGREEMENTS

 

2.1 Amendment of Master Framework Agreement. The Parties to the Master Framework Agreement hereby agree that with effect from the Effective Date, the Master Framework Agreement shall be amended as follows:

 

(a) Clause 2.1 is hereby amended by adding the following defined terms in the appropriate alphabetical order:

 

"Affected Financial Institution" means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

"Agent Entity" is defined in Clause 8.11 (Erroneous Payments) of the Receivables Transfer Agreement.

 

"Compounded Reference Rate" means, in relation to any RFR Banking Day, the percentage rate per annum which is the aggregate of:

 

(a) the Daily Non-Cumulative Compounded RFR for that RFR Banking Day; and

 

(b) the applicable Credit Adjustment Spread.

 

"Credit Adjustment Spread" means any rate which is specified as such in the Reference Rate Terms.

 

"Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day, the percentage rate per annum determined by the Reporting Services Provider in accordance with the methodology set out in Schedule 4 (Daily Non- Cumulative Compounded RFR Rate).

 

"Dutch Account Pledge Agreement (German and English Collection Accounts)" means that certain Dutch account security agreement, dated on or around December 23, 2021, among the German Originator, the English Originator and the Security Trustee.

 

"Effective Date" means December 23, 2021.

 

"EU Securitisation Regulation" means Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending certain other European Union Directives and Regulations, as amended and in effect from time to time.

 


 

"EU Securitisation Regulation Rules" means the EU Securitisation Regulation, together with all relevant implementing regulations in relation thereto, all regulatory technical standards, implementing technical standards and delegated regulations in relation thereto or applicable in relation thereto pursuant to any transitional arrangements made pursuant to the EU Securitisation Regulation and, in each case, any relevant guidance or policy statements published in relation thereto by European Banking Authority, the European Securities and Markets Authority and the European Insurance and Occupational Pensions Authority (or in each case, any predecessor or successor or any other applicable regulatory authority) or by the European Commission, in each case as amended and in effect from time to time.

 

"EUWA" means the European Union (Withdrawal) Act 2018, as amended.

 

"FCA" means the Financial Conduct Authority.

 

"ICE TERM SONIA" means the ICE Term SONIA reference rate administered and published by ICE Benchmark Administration Limited, or any other person which takes over the administration of such rate, published on the ICE Term Risk Free Rates portal at or around 11:55 am (London time).

 

"Other Party Entity" is defined in Clause 8.11 (Erroneous Payments) of the Receivables Transfer Agreement.

 

"PRA" means the United Kingdom Prudential Regulation Authority.

 

"Reference Rate Terms" means the terms set out in Schedule 3 (Reference Rate Terms).

 

"Resolution Authority" means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

"RFR" means the rate specified as such in the Reference Rate Terms.

 

"RFR Banking Day" means any day specified as such in the Reference Rate Terms.

 

"Securitisation Regulation Rules" means the EU Securitisation Regulation Rules and the UK Securitisation Regulation Rules.

 

"UK Financial Institution" means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

"UK Insolvency Regulation" means the EU Insolvency Regulation, as it forms part of UK domestic law as "retained EU law" by operation of the EUWA, and as amended by the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019/146.

 

"UK Securitisation Regulation" means Regulation (EU) 2017/2402 as it forms part of UK domestic law as "retained EU law" by operation of the EUWA, and as amended by the Securitisation (Amendment) (EU Exit) Regulations 2019, and as further amended from time to time.

 


 

"UK Securitisation Regulation Rules" means the UK Securitisation Regulation together with (a) all applicable binding technical standards made under the UK Securitisation Regulation; (b) all EU regulatory technical standards and implementing technical standards relating to the EU Securitisation Regulation (including such regulatory technical standards or implementing technical standards which are applicable pursuant to any transitional provisions of the EU Securitisation Regulation) forming part of UK domestic law by operation of the EUWA; (c) relevant guidance, policy statements or directions relating to the application of the UK Securitisation Regulation (or any binding technical standards) published by the PRA and/or the FCA (or their successors); (d) any guidelines relating to the application of the EU Securitisation Regulation which are applicable in the UK, (e) any other relevant transitional, saving or other provision relevant to the UK Securitisation Regulation by virtue of the operation of the EUWA; and (f) any other applicable laws, acts, statutory instruments, rules, guidance or policy statements published or enacted relating to the UK Securitisation Regulation, in each case as may be amended from time to time.

 

"UK Resolution Authority" means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

(b) The definition of “Bail-In Action” in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

(c) The definition of “Bail-In Legislation” in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Bail-In Legislation" means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

(d) The definition of "Collection Account" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Collection Account" means any account, at an Eligible Account Bank, described in Schedule 3 (Accounts) to the Receivables Transfer Agreement under the heading "Collection Account" and any account added as a Collection Account in accordance with the Transaction Documents.

 


 

(e) The definition of "Collection Account Agreements" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Collection Account Agreements" means, collectively, the English Declaration of Trust (English Collection Accounts), the English Declaration of Trust (German Collection Accounts), the Dutch Account Pledge Agreement (German Collection Accounts), the Dutch Account Pledge Agreement (German and English Collection Accounts), the Irish Declaration of Trust and the German Account Pledge Agreement, and each other control or other security agreement or arrangement, in form and substance reasonably satisfactory to the Administrative Agent and the Security Trustee and as may be appropriate under the laws of any relevant jurisdiction, with respect to a Collection Account.

 

(f) The definition of "Data Protection Law" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Data Protection Law" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (repealing Directive 95/46/EC (General Data Protection Regulation)), including as it forms part of English law pursuant to the EUWA, the German Data Protection Act (Bundesdatenschutzgesetz) or any other applicable Law relating to data protection or privacy.

 

(g) The definition of “Dutch Account Pledge Agreement (Collection Accounts)” in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Dutch Account Pledge Agreement (German Collection Accounts)" means that certain Dutch account security agreement, dated on or around the Closing Date, among the German Originator and the Security Trustee.

 

(h) The definition of “Existing Law” in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Existing Law" means (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act; (b) the third Basel Accord issued by the Basel Committee on Banking Supervision as set out in the publications entitled "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" as updated from time to time (collectively "Basel III") and any further guidance or standards published by the Basel Committee relating to Basel III, (c) any rules, regulations, guidance, interpretations, directives or requests from any Official Body relating to, or implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act or Basel III (whether or not having the force of law), or (d) the Securitisation Regulation Rules.

 

(i) The definition of "GBP Investment Interest Reserve Percentage" in Clause 2.1 is hereby amended in its entirety as follows:

 

"GBP Investment Interest Reserve Percentage" means, as at any Monthly Calculation Date, the ratio (expressed as a percentage) determined as:

 

(a) the product of:

 


 

(i) the maximum between:

 

(A)             ICE TERM SONIA for a period of one (1) month as at such Monthly Calculation Date multiplied by [*****], and

 

(B)             ICE TERM SONIA for a period of one (1) month as at such Monthly Calculation Date plus [*****], multiplied by

 

(ii) the product determined as:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient determined as:

 

(x)              the Base Currency Equivalent of the GBP Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(y)              the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iii)            the DSO as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iv) the Relevant Stress Factor, multiplied by

 

(v) 1/360; divided by

 

(b)              the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date.

 

(j) Clause 2.1 is hereby amended by the deletion of the definition of "LIBOR GBP" in its entirety.

 

(k) The definition of "Minimum Total Reserve Percentage" in Clause 2.1 is hereby amended so that references to the "Securitisation Regulation" are replaced by references to the "EU Securitisation Regulation".

 

(l) The definition of "Retained Interest" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Retained Interest" means a material net economic interest of not less than 5% as required by Article 6(1) of each of the Securitisation Regulations in the form of a first loss tranche pursuant to (i) paragraph (d) of Article 6(3) of the EU Securitisation Regulation, and (ii) paragraph (d) of Article 6(3) of the UK Securitisation Regulation, in each case as in effect on the Effective Date.

 


 

(m) The definition of "Securitisation Regulation" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Securitisation Regulations" means the EU Securitisation Regulation and the UK Securitisation Regulation.

 

(n) Clause 2.1 is hereby amended by the deletion of the definition of "Securitisation Regulation Requirements" in its entirety.

 

(o) The definition of "SPV Account" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"SPV Account" means any account, at an Eligible Account Bank, described in Schedule 3 (Accounts) to the Receivables Transfer Agreement under the heading "SPV Accounts" and any account added as an SPV Account in accordance with the Transaction Documents.

 

(p) The definition of "STS Requirements" in Clause 2.1 is hereby amended so that references to the "Securitisation Regulation" are replaced by references to the "EU Securitisation Regulation".

 

(q) The definition of "Subordinated Loan Interest Rate" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Subordinated Loan Interest Rate" means, (A) with respect to any Currency other than GBP, (i) the offered rate that appears on the page of the Bloomberg Screen that displays an average ICE Benchmark Administration Limited (or any successor thereof acceptable to the Subordinated Lender) London interbank offered rate for deposits in such Currency with a term equivalent to three months at 11:00 a.m. London time on the applicable Settlement Date; or (ii) in the event such offered rate does not appear on such page or service or such page or service shall cease to be available (other than under the circumstances set forth in Clause 2.5(e) (Successor Applicable Currency Benchmark Rate) of the Receivables Transfer Agreement), the offered rate per annum (rounded upwards to five decimal places) equal to the offered rate determined by the Subordinated Lender to be the offered rate on another page or other service that displays an average ICE Benchmark Administration Limited (or any successor thereof acceptable to the Subordinated Lender) London interbank offered rate for deposits in such Currency with a term equivalent to three months, in each case determined as of the most recent Subordinated Loan Interest Determination Date, or (B) with respect to GBP, the Compounded Reference Rate on the applicable Settlement Date. If the calculation of the Subordinated Loan Interest Rate results in a Subordinated Loan Interest Rate of less than zero (0), the Subordinated Loan Interest Rate shall be deemed to be zero (0) for all purposes hereunder.

 

(r) The definition of "Total Reserve Percentage" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Total Reserve Percentage" means, for any Monthly Calculation Period, a percentage equal to the greater of:

 

(a) The Minimum Total Reserve Percentage, and

 


 

(b) the sum of:

 

(i)        the Loss Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period, plus

 

(ii)       the Non-Contractual Dilution Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period, plus

 

(ii)       the Yield and Expenses Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period.

 

(s) The definition of "Write-Down and Conversion Powers" in Clause 2.1 is hereby amended in its entirety to read as follows:

 

"Write-Down and Conversion Powers" means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

(t) A new Schedule 3 (Reference Rate Terms) is hereby added in the form set forth on Annex B attached hereto.

 

(u) A new Schedule 4 (Daily Non-Cumulative Compounded RFR Rate) is hereby added in the form set forth on Annex C attached hereto.

 

2.2 Amendment of Receivables Transfer Agreement. The Parties to the Receivables Transfer Agreement hereby agree that with effect from the Effective Date, the Receivables Transfer Agreement shall be amended as follows:

 

(a) The definition of "Alternate Rate" in Clause 2.5(c) is hereby amended in its entirety to read as follows:

 

"Alternate Rate" means, for any Investment, for each day in any applicable Rate Period:

 

(i) initially funded in Dollars, the greater of (a) zero and (b) the sum of (x) LIBOR on such day for a period of one (1) month and (y) the Applicable Margin;

 

(ii) initially funded in Euros, the greater of (a) zero and (b) the sum of (x) EURIBOR on such day for a period of one (1) month and (y) the Applicable Margin;

 

(iii) initially funded in GBP, the greater of (a) zero and (b) the sum of (x) the Compounded Reference Rate on such day, provided that if such day is not a RFR Banking Day, the rate of interest for that day will be the rate applicable to the immediately preceding RFR Banking Day, as calculated by the Reporting Services Provider and (y) the Applicable Margin; and

 


 

(iv) on any day in any Rate Period falling on or after the date of any declaration or automatic occurrence of the Termination Date pursuant to Clause 6.3 (Remedies), a rate per annum equal to the Default Rate for such Currency.

 

(b) The definition of "Applicable Currency Benchmark Rate" in Clause 2.5(c) is hereby amended in its entirety to read as follows:

 

"Applicable Currency Benchmark Rate" means, (i) with respect to any Investment denominated in Dollars, LIBOR, and (ii) with respect to any Investment denominated in Euros, EURIBOR.

 

(c) Clause 2.5(c) is hereby amended by the deletion of the definition of "LIBOR GBP" in its entirety.

 

(d) The definition of "Yield" in Clause 2.5(c) is hereby amended in its entirety to read as follows:

 

"Yield" [*****]

 

(e) Clause 2.5(e) is hereby amended by adding a new paragraph to the end of such Clause to read as follows:

 

Without prejudice to any other provision of this Agreement, each party hereto acknowledges and agrees that, as of the Effective Date, the circumstances set forth in Clause 2.5(e)(ii)(B) above have arisen with respect to LIBOR.

 

(f) Clause 2.5 is hereby amended by adding a new sub-clause (f) at the end of such Clause to read as follows:

 

(f) Successor RFR.

 

(i) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document, if the SPV or the Majority Purchasers notify the Administrative Agent (with, in the case of the Majority Purchasers, a copy to the SPV) that the SPV or the Majority Purchasers (as applicable) have determined that:

 

(A) the methodology, formula or other means of determining the RFR has, in the opinion of the Majority Purchasers or the SPV, materially changed;

 

(B) the administrator of the RFR or its supervisor publicly announces that such administrator is insolvent and there is no successor administrator to continue to provide the RFR;

 

(C) the administrator of the RFR publicly announces that it has ceased or will cease to provide the RFR permanently or indefinitely and, at that time, there is no successor administrator to continue to provide the RFR;

 


 

(D) the supervisor of the administrator of the RFR publicly announces that the RFR has been or will be permanently or indefinitely discontinued;

 

(E) the administrator of the RFR or its supervisor announces that the RFR may no longer be used; or

 

(F) the administrator of the RFR (or the administrator of an interest rate which is a constituent element of the RFR) determines that the RFR should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Purchasers and the SPV) temporary,

 

then the Administrative Agent, the SPV and the Servicers shall endeavour to establish an alternate rate of interest to such RFR that gives due consideration to the then-prevailing market convention for determining a rate of interest for syndicated loans in England at such time, and shall enter into an amendment to this Agreement and the other Transaction Documents to reflect such alternate rate of interest and such other related changes to this Agreement and the other Transaction Documents as may be applicable (but, for the avoidance of doubt, such related changes shall not include a reduction of the Applicable Margin).

 

Notwithstanding anything to the contrary in Clause 12 (Amendments and Waivers), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Purchaser Agents and the Purchasers, a written notice from the Majority Purchasers of an objection to such amendment. Until an alternate rate of interest shall be determined in accordance with this Clause 2.5(f), (1) the obligation of the Purchasers to make or maintain Investments with Yield calculated by reference to such RFR shall be suspended (to the extent of the affected Investments or Rate Periods), and (2) the related RFR component shall no longer be utilized in determining the Alternate Rate, if applicable. Upon receipt of such notice, the SPV may revoke any pending request for an Investment (to the extent of the affected Investment or Rate Periods) or, failing that, will be deemed to have converted such request into a request for an Investment with Yield calculated at the Base Rate.

 

(g) Clause 3(a)(v) is hereby amended in its entirety to read as follows:

 

(v)   is not established in a third country referred to in Article 4 of the EU Securitisation Regulation or in Article 4 of the UK Securitisation Regulation.

 


 

(h) Clause 5.1(x) is here amended in its entirety to read as follows:

 

(i)           Securitisation Regulations. The SPV shall promptly provide each Purchaser and the Subordinated Lender with such information relating to the Receivables or the transactions under the Transaction Documents as any Purchaser or the Subordinated Lender may from time to time reasonably request in order to enable such Purchaser (in its capacity as Purchaser or as a sponsor) or the Subordinated Lender to comply with any and all applicable requirements of Article 5 and/or Article 7 of each Securitisation Regulation and any other due diligence provision or transparency provision of the Securitisation Regulation Rules. The SPV shall make available all the information that a securitisation special purpose entity is required to make available in accordance with Article 7 of the EU Securitisation Regulation and Article 7 of the UK Securitisation Regulation.

 

(i) Clause 5.2(d) is here amended in its entirety to read as follows:

 

(d)          Change in payment instructions to Obligors. The SPV shall not add or terminate any bank as an Account Bank or any account as an Account to or from those listed in Schedule 3 (Accounts) or, except to the extent permitted or required by the Transaction Documents, make any change in its instructions to Obligors regarding payments to be made to any Account, unless (i) such instructions are to deposit such payments for a Receivable to another existing Account, (ii) with respect to the addition or termination of any bank as an Account Bank or any account as an Account, (A) the Administrative Agent and each Purchaser Agent have received written notice of such addition, termination or change at least thirty (30) days prior thereto, (B) the Majority Purchasers have consented to each new Account Bank and/or the termination of any Account Bank (in each case, where applicable, and provided that such consent or instructions are not unreasonably withheld or delayed), (C) the Administrative Agent and each Purchaser Agent have received a duly executed Account Agreement with respect to each new Account, where applicable, and (D) the Administrative Agent and each Purchaser Agent have received an updated Schedule 3 (Accounts) along with a certification from the SPV that all conditions to add or remove such Account and/or Account Bank under the Transaction Documents have been satisfied, or (iii) on and after the Account Redirection Date, such instructions are to deposit payments into an SPV Account (it being agreed that, at any time on and after the Account Redirection Date, the SPV shall instruct all Obligors to make all payments in respect of the Receivables and associated Related Rights to an SPV Account).

 

(j) Clause 7.2(a)(i)(B) is hereby amended so that the words "or Compounded Reference Rate" are added after the words "the Applicable Currency Benchmark Rate" and before the word "hereunder".

 

(k) Clause 7.4(a)(ii) is hereby amended in its entirety to read as follows:

 

(ii) any costs and expenses in connection with the requirements of the EU Securitisation Regulation and the UK Securitisation Regulation, in each case including any costs or fees related to the provision of information required in connection with transparency, due diligence or reporting requirements requested by the Administrative Agent or any Purchaser,

 


 

(l) Clause 8 is hereby amended by adding a new Clause 8.11 to the end of such Clause to read as follows:

 

8.11        Erroneous Payments

 

Where a sum is to be paid to the Administrative Agent, a Purchaser Agent or the Paying Agent, as applicable, under this Agreement or any other Transaction Document for another party hereto or thereto, the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, is not obliged to pay that sum to that other party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. If the Administrative Agent, a Purchaser Agent or the Paying Agent, as applicable, or its Affiliate or representative on its behalf or direction (the Administrative Agent, each Purchaser Agent and the Paying Agent, as applicable, and their applicable Affiliate or representative, an "Agent Entity") pays an amount to another party (unless the immediately following sentence applies) or, at the direction of such party, that party’s Affiliate, related fund or representative (such party and its applicable Affiliate, related fund or representative, an "Other Party Entity") and it proves to be the case (in the sole determination of the Administrative Agent, a Purchaser Agent or the Paying Agent, as applicable) that (a) neither the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, nor the applicable Agent Entity actually received that amount or (b) such amount was otherwise paid in error (whether such error was known or ought to have been known to such other party or applicable Other Party Entity), then the party to whom that amount (or the proceeds of any related exchange contract) was paid (or on whose direction its applicable Other Party Entity was paid) by the applicable Agent Entity shall hold such amount on trust or, to the extent not possible as a matter of law, for the account (or will procure that its applicable Other Party Entity holds on trust or for the account) of the Agent Entity and on demand (or will procure that its applicable Other Party Entity shall) refund the same to the Agent Entity together with interest on that amount from the date of payment to the date of receipt by the Agent Entity, calculated by the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, to reflect its cost of funds. If the Administrative Agent, a Purchaser Agent or the Paying Agent, as applicable, has notified the Purchasers that it is willing to make available amounts for the account of the SPV before receiving funds from the Purchasers then if and to the extent that the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, does so but it proves (in the sole determination of the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable) to be the case that it does not then receive funds from a Purchaser in respect of a sum which it paid to the SPV: (i) the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, shall notify Arrow of that Purchaser’s identity and the SPV to whom that sum was made available shall hold such amount on trust or, to the extent not possible as a matter of law, for the account, of the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, and on demand refund it to the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable; and (ii) the Purchaser by whom those funds should have been made available shall on demand pay to the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, the amount (as certified by the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable) which will indemnify the Administrative Agent, such Purchaser Agent or the Paying Agent, as applicable, against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Purchaser.

 


 

(m) Clause 25 is hereby amended in its entirety to read as follows:

 

25.          Acknowledgement and Consent to Bail-In of Affected Financial Institutions

 

Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Transaction Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)          the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

 

(b) the effects of any Bail-in Action on any such liability, including, if applicable:

 

(i)           a reduction in full or in part or cancellation of any such liability;

 

(ii)           a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Transaction Document; or

 

(iii)          the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

 

(n) Schedule 3 is hereby amended in its entirety as set forth on Annex A attached hereto.

 

2.3 Amendment of English RSA. The Parties to the English RSA hereby agree that with effect from the Effective Date, the English RSA shall be amended as follows:

 

(a)          Clause 5.1(g) of the English RSA shall be amended in its entirety to read as follows:

 

(g)          Centre of Main Interest. For the purpose of the UK Insolvency Regulation, its centre of main interest (as that term is used in Article 3(1) of the UK Insolvency Regulation) is situated in the jurisdiction of its registered office.

 

(b)          Clause 6.1(d) of the English RSA shall be amended in its entirety to read as follows:

 

(d)          Centre of Main Interest. For the purpose of the UK Insolvency Regulation, it shall have and maintain its centre of main interest (as that term is used in Article 3(1) of the UK Insolvency Regulation) situated in the jurisdiction of its registered office.

 


 

(c)          Clause 6.2(n) of the English RSA shall be amended in its entirety to read as follows:

 

(n)          Securitisation Regulations. Upon request by a Purchaser or the Subordinated Lender, the Seller shall promptly provide each Purchaser or the Subordinated Lender, as applicable, with such information relating to the Purchased Receivables and the transactions under the Transaction Documents as any Purchaser or the Subordinated Lender may from time to time reasonably request in order to enable such Purchaser (in its capacity as Purchaser or as a sponsor) or the Subordinated Lender, as applicable, to comply with any and all applicable requirements of Article 5 and/or Article 7 of each Securitisation Regulation and any other due diligence provision or transparency provision of the Securitisation Regulation Rules. The Seller shall make available all the information that an originator is required to make available in accordance with Article 7 of the EU Securitisation Regulation and Article 7 of the UK Securitisation Regulation.

 

(d)          Clause 6.3(e) of the English RSA shall be amended in its entirety to read as follows:

 

(e)           Change in payment instructions to Obligors. The Seller shall not add or terminate any bank as an Account Bank or any account as an Account to or from those listed in schedule 3 (Accounts) to the Receivables Transfer Agreement or make any change, except to the extent permitted or required by the Transaction Documents, in its instructions to Obligors regarding payments for a Purchased Receivable to be made to any Account, unless (i) such instructions are to deposit such payments to another existing Account, (ii) with respect to the addition or termination of any bank as an Account Bank or any account as an Account, (A) the Buyer and the Administrative Agent have received written notice of such addition, termination or change at least thirty (30) days prior thereto, (B) the Buyer and the Administrative Agent (acting on the instructions of the Majority Purchasers) have consented to each new Account Bank and/or the termination of any Account Bank (in each case, where applicable, and provided that such consent or instructions are not unreasonably withheld or delayed), (C) the Security Trustee has received a duly executed Account Agreement with respect to each new Account, where applicable, and (D) the Administrative Agent and each Purchaser Agent have received an updated Schedule 3 (Accounts) to the Receivables Transfer Agreement along with a certification from the Seller that all conditions to add or remove such Account and/or Account Bank under the Transaction Documents have been satisfied, or (iii) on and after the Account Redirection Date, such instructions are to deposit payments to an SPV Account (it being agreed that, at any time on and after the Account Redirection Date, the Seller and the Buyer or its assigns shall jointly instruct all Obligors to make all payments in respect of the Purchased Receivables and their Related Security (other than any Receivable originated prior to such date) to an SPV Account).

 

2.4 Amendment of Servicing Deed. The Parties to the Servicing Deed hereby agree that with effect from the Effective Date, the Servicing Deed shall be amended as follows:

 

(a) Clause 3.4(a) is hereby amended in its entirety to read as follows:

 

(a) With respect to each Monthly Calculation Period, by no later than 6:00 p.m. (London time) on:

 


 

(i) the Monthly Calculation Date for such Monthly Calculation Period; and

 

(ii) after the occurrence of a Servicer Default which is continuing, the second (2nd) Business Day after any request from the Administrative Agent or any Purchaser Agent,

 

each Agent Servicer shall prepare and forward to the Administrative Agent, each Purchaser Agent, the Paying Agent and the SPV a Monthly Servicer Report, certified by such Agent Servicer and containing, among other things, all information required by the Subordinated Lender to comply with its requirements under Article 7 of the EU Securitisation Regulation in accordance with the Subordinated Loan Agreement and the related regulatory technical standards and implementing technical standards, as amended or replaced from time to time and Article 7 of the UK Securitisation Regulation in accordance with the Subordinated Loan Agreement and the related technical standards, as amended or replaced from time to time.

 

(b) Clause 5(r) is hereby amended in its entirety to read as follows:

 

(r)         Centre of Main Interests. Each Servicer has its centre of main interests (as such term is used in the EU Insolvency Regulation or the UK Insolvency Regulation, as applicable) in its jurisdiction of organization and it has no "establishment" (as such term is used in the EU Insolvency Regulation or the UK Insolvency Regulation, as applicable) outside its jurisdiction of registered office other than in Austria, Belgium, The Netherlands and Switzerland.

 

(c) Clause 5(t) is hereby amended to include the words "or a UK Financial Institution" at the end.

 

(d) Clause 6.1(q) is hereby amended in its entirety to read as follows:

 

(q)          Securitisation Regulations. Upon request by a Purchaser, each Servicer shall promptly provide each Purchaser with such information relating to the Receivables and the transactions under the Transaction Documents as any Purchaser may from time to time reasonably request in order to enable such Purchaser (in its capacity as Purchaser or as a sponsor) to comply with any and all applicable requirements of Article 5 and/or Article 7 of each Securitisation Regulation and any other due diligence provision or transparency provision of the Securitisation Regulation Rules. Each Servicer shall make available all the information that an originator, sponsor or securitisation special purpose entity is required to make available in accordance with Article 7 of the EU Securitisation Regulation and Article 7 of the UK Securitisation Regulation.

 

(e) Clause 6.2(d) is hereby amended in its entirety to read as follows:

 


 

(d)          No change in payment instructions to Obligors. No Servicer shall add or terminate any bank as an Account Bank or any account as an Account to or from those listed in Schedule 3 (Accounts) to the Receivables Transfer Agreement or make any, except to the extent permitted or required by the Transaction Documents, change in its instructions to Obligors regarding payments to be made to any Account, unless (i) such instructions are to deposit such payments to another existing Account, (ii) with respect to the addition or termination of any bank as an Account Bank or any account as an Account, (A) the Administrative Agent has received written notice of such addition, termination or change at least thirty (30) days prior thereto, (B) the Administrative Agent (acting on the instructions of the Majority Purchasers) has consented to each new Account Bank and/or the termination of any Account Bank (in each case, where applicable, and provided that such consent or instructions are not unreasonably withheld or delayed), (C) the Security Trustee has received a duly executed Account Agreement with respect to each new Account, where applicable, and (D) the Administrative Agent and each Purchaser Agent have received an updated Schedule 3 (Accounts) to the Receivables Transfer Agreement along with a certification from the related Servicer that all conditions to add or remove such Account and/or Account Bank under the Transaction Documents have been satisfied, or (iii) on and after the Account Redirection Date, such instructions are to deposit payments to an SPV Account (it being agreed that at any time on and after the Account Redirection Date, each Servicer shall instruct all Obligors to make all payments in respect of the Receivables and their Related Rights (other than any Receivable originated prior to such date) to an SPV Account).

 

2.5 Amendment of Arrow Germany DOT. The Parties to the Arrow Germany DOT hereby agree that with effect from the Effective Date, the Arrow Germany DOT shall be amended as follows:

 

(a) The definition of "Trust Accounts" in Clause 1.4 is hereby amended in its entirety to read as follows:

 

"Trust Accounts" means the Collection Accounts listed in Schedule 1 (Trust Accounts) and any other account of Collection Account Trustee deemed a Collection Account under the Transaction Documents (each such account being a "new Trust Account").

 

(b) Clause 4 is hereby amended in its entirety to read as follows: The Collection Account Trustee shall:

 

(a)              immediately on the date of this Declaration of Trust and on the date on which any new Trust Account is opened, deliver (with a copy to the SPV, the Security Trustee and, with respect to any new Trust Account, the Administrative Agent) a duly executed Notice of Declaration of Trust to each relevant Collection Account Bank; and

 

(b)              ensure that such Collection Account Bank acknowledges such Notice of Declaration of Trust by providing a duly executed Acknowledgement of Declaration of Trust to (i) the SPV and the Security Trustee, on or prior to the Closing Date, or (ii) with respect to any new Trust Account which has been opened, the SPV, the Security Trustee and the Administrative Agent, promptly but in any event no later than thirty (30) days after the date on which such new Trust Account has been opened.

 


 

2.6 Amendment of Arrow UK DOT. The Parties to the Arrow UK DOT hereby agree that with effect from the Effective Date, the Arrow UK DOT shall be amended as follows:

 

(a) The definition of "Trust Accounts" in Clause 1.4 is hereby amended in its entirety to read as follows:

 

"Trust Accounts" means the Collection Accounts listed in Schedule 1 (Trust Accounts) and any other account of Collection Account Trustee deemed a Collection Account under the Transaction Documents (each such account being a "new Trust Account").

 

(b) Clause 4 is hereby amended in its entirety to read as follows: The Collection Account Trustee shall:

 

(a)              immediately on the date of this Declaration of Trust and on the date on which any new Trust Account is opened, deliver (with a copy to the SPV, the Security Trustee and, with respect to any new Trust Account, the Administrative Agent) a duly executed Notice of Declaration of Trust to each relevant Collection Account Bank; and

 

(b)              ensure that such Collection Account Bank acknowledges such Notice of Declaration of Trust by providing a duly executed Acknowledgement of Declaration of Trust to (i) the SPV and the Security Trustee, on or prior to the Closing Date, or (ii) with respect to any new Trust Account which has been opened, the SPV, the Security Trustee and the Administrative Agent, promptly but in any event no later than thirty (30) days after the date on which such new Trust Account has been opened.

 

2.7 Amendment of Parent Undertaking. The Parties to the Parent Undertaking hereby agree that with effect from the Effective Date, the Parent Undertaking shall be amended as follows:

 

(a) Clause 5.1 is hereby amended so that references to "the Securitisation Regulation" are replaced by references to "each Securitisation Regulation".

 

(b) Clause 5.3(a)(ii) is hereby amended in its entirety to read as follows:

 

(ii) any costs and expenses in connection with the requirements of the EU Securitisation Regulation and the UK Securitisation Regulation, in each case including any costs or fees related to the provision of information required in connection with transparency, due diligence or reporting requirements requested by the Administrative Agent or any Purchaser,

 

(c) Clause 5.3(a)(vi) is hereby amended in its entirety to read as follows:

 

(vi)         any and all costs and expenses, including any increased capital costs, fines or penalties, relating to its participation in the transactions contemplated by the Transaction Documents arising as a result of the failure of any Arrow Party, the SPV or such transactions to comply with the EU Securitisation Regulation or the UK Securitisation Regulation.

 


 

2.8 Amendment of Subordinated Loan Agreement. The Parties to the Subordinated Loan Agreement hereby agree that with effect from the Effective Date, Clause 6 of the Subordinated Loan Agreement shall be amended in its entirety to read as follows:

 

6. COMPLIANCE WITH SECURITISATION REGULATION

 

6.1 Risk Retention

 

At all times prior to the Final Payout Date, the Subordinated Lender represents, warrants and covenants that:

 

(a) it (i) is an Affiliate of each of the Originators and (ii) is, through the Originators (as related entities), involved in the Contracts and any other agreements which give rise to the Receivables;

 

(b) by virtue of clause (a) above, it reasonably believes that it is an "originator" for purposes of each of the EU Securitisation Regulation and the UK Securitisation Regulation and will hold and will retain, on an ongoing basis, the Retained Interest by holding 100% of the outstanding principal balance of the Subordinated Loans;

 

(c) it will not sell, hedge or otherwise mitigate its credit risk under or associated with the Retained Interest or the Receivables or sell, transfer or otherwise surrender all or part of its rights, benefits or obligations arising from the Retained Interest, except to the extent permitted in accordance with the Securitisation Regulation Rules;

 

(d) it will not change the retention option or the method of calculating the Retained Interest except under exceptional circumstances in accordance with the Securitisation Regulation Rules;

 

(e) (i) it was not established for, and does not operate for, the sole purpose of securitising exposures, and it has a strategy and the capacity to meet payment obligations consistent with a broader business model that involves material support from capital, assets, fees or other sources of income, by virtue of which it does not rely on the exposures to be securitised, on any interests retained or proposed to be retained in accordance with the Securitisation Regulation Rules, or on any corresponding income from such exposures and interests as its sole or predominant source of revenue; and (ii) its responsible decision makers have the necessary experience to enable it to pursue the established business strategy, as well as adequate corporate governance arrangements;

 

(f) the Subordinated Lender shall confirm its continued compliance with the undertakings set out in clauses (a) through (e) of this Clause 6.1 (Risk Retention) to the Borrower, the Security Trustee and each Purchaser Agent in writing (which may be by way of email) (i) in each Monthly Servicer Report and (ii) promptly upon the reasonable written request of any of the Borrower, the Security Trustee or a Purchaser;

 

(g) the Subordinated Lender shall, and shall procure that each Arrow Party shall, notify the Borrower, the Security Trustee and each Purchaser Agent as soon as reasonably practicable if for any reason it fails to comply with the provisions clauses (a) to (e) of this Clause 6.1 (Risk Retention) in any way.

 


 

 

6.2 Information Requirements

 

(a) The Subordinated Lender and each Originator shall, and shall procure that each other Arrow Party shall, promptly provide each Purchaser and the Subordinated Lender with such information relating to the Receivables and the transactions under the Transaction Documents as the Subordinated Lender, any Purchaser and/or the Borrower may from time to time reasonably request in order to enable those persons to comply with any and all applicable requirements of Article 5 and/or Article 7 of each Securitisation Regulation, including the completion of all relevant information required by the regulatory technical standards and implementing technical standards, as amended or replaced from time to time in relation to Article 7 of the EU Securitisation Regulation and the technical standards, as amended or replaced from time to time, in relation to Article 7 of the UK Securitisation Regulation, and any other due diligence provision or transparency provision of the Securitisation Regulation Rules, provided that such information is in the possession of or reasonably obtainable by the Subordinated Lender, the relevant Originator and/or such other Arrow Party, as applicable.
     
(b) For the purposes of Article 7(2) of the EU Securitisation Regulation and Article 7(2) of the UK Securitisation Regulation, the Originators, the Subordinated Lender (as an “originator” as defined in each Securitisation Regulation) and the Borrower designate the Subordinated Lender to fulfil the information requirements of Article 7(1) of the EU Securitisation Regulation and Article 7(1) of the UK Securitisation Regulation and the Subordinated Lender hereby accepts such designations.

 

(c) The Subordinated Lender shall promptly make available, or shall procure that the same is made available to the Purchasers, any relevant competent authorities (as defined under the EU Securitisation Regulation and the UK Securitisation Regulation) and, upon request therefor, potential investors, and to the Agent Servicers, all documents, reports and information necessary to fulfil the reporting requirements under Article 7 of the EU Securitisation Regulation and Article 7 of the UK Securitisation Regulation including:

 

(i) the provision of the applicable templates, completed with all relevant information, in accordance with the regulatory technical standards and implementing technical standards, as amended or replaced from time to time, in relation to Article 7 of the EU Securitisation Regulation and the technical standards, as amended or replaced from time to time, in relation to the Article 7 of the UK Securitisation Regulation; and

 

(ii) information required to be disclosed pursuant to Article 7(1)(g) of the EU Securitisation Regulation and Article 7(1)(g) of the UK Securitisation Regulation.

 

 


 

(d) Pursuant to the Securitisation Regulations 2018, the FCA has been appointed as the competent authority in the United Kingdom with respect to the English Originator for the purposes of the UK Securitisation Regulation. Pursuant to the Direction of the FCA and the PRA (the "FCA/PRA Direction") in relation to regulation 25 of the UK Securitisation Regulations 2018 (the "Securitisation Regulations 2018"), the English Originator must, either directly or through the entity designated under the first sub-paragraph of Article 7(2) of the UK Securitisation Regulation, before pricing, make a notification to the FCA in the form and manner prescribed in the FCA/PRA Direction. The Subordinated Lender undertakes to make (or procure that the English Originator makes) such a notification to the FCA within the time required and otherwise in accordance with the Securitisation Regulations 2018 and the FCA/PRA Direction, and to provide all such other notifications and information required under the Securitisation Regulations 2018 and the FCA/PRA Direction in accordance with the Securitisation Regulations 2018 and the FCA/PRA Direction.

 

(e) The Subordinated Lender shall (or shall procure that the German Originator shall) provide such notices and other information to Bundesanstalt für Finanzdienstleistungsaufsicht in the form and manner prescribed in Gesetz zur Anpassung von Finanzmarktgesetzen an die Verordnung (EU) 2017/2402 und an die durch die Verordnung (EU) 2017/2401 geänderte Verordnung (EU) Nr. 575/2013, and otherwise comply with such regulation.

 

(f) The Subordinated Lender will make (or procure that the Borrower makes) the following information available to the Authority for the Financial Markets (Autoriteit Financiële Markten) ("AFM") in the Netherlands (i) at the latest on the signing date of the Transaction Documents, an Excel file based on the template of the FCA prescribed in accordance with the FCA/PRA Direction with information in respect of the securitisation; (ii) as soon as possible when requested by the AFM, the information set forth in Article 7(1)(a) and (e) of the EU Securitisation Regulation; and (iii) without delay, any information required to be disclosed pursuant to Article 7(1)(g) of the EU Securitisation Regulation, by sending such information to the following email address: [*****], provided that as soon as any legislation, regulation or instruction has been provided or published by the relevant competent authority in the Netherlands, the Subordinated Lender shall make (or procure that the Borrower makes) the information referred to in Article 7(1)(a), (e) and (g) of the EU Securitisation Regulation available in accordance with such legislation, regulation or instruction.
     
6.3 Securitisation Regulation Compliance

 

At all times prior to the Final Payout Date, the Originators and the Subordinated Lender represent and warrant that:

 

(a) they shall not select Receivables to be transferred to the Borrower with the aim of rendering losses on those Receivables, measured over the life of the transaction contemplated by the Transaction Documents, higher than the losses over the same period on comparable accounts receivable held on its balance sheet, in accordance with Article 6(2) of the EU Securitisation Regulation and Article 6(2) of the UK Securitisation Regulation;

 

 


 

(b) none of the Receivables is a securitisation position (as defined in each of the Securitisation Regulations); and

 

(c) they applied to the Receivables the same sound and well-defined criteria for credit-granting which they apply to non-securitised receivables and the same clearly established processes for approving and, where relevant, amending, renewing and refinancing the Receivables have been and will be applied and the Originators have effective systems in place to apply those criteria and processes in order to ensure that credit-granting is based on a thorough assessment of the creditworthiness, taking appropriate account of each Obligor meeting its obligations under the relevant Contract.

 

2.9 Amendment of Reporting Services Agreement. The Parties to the Reporting Services Agreement hereby agree that with effect from the Effective Date, the Reporting Services Agreement shall be amended so that references to "the Securitisation Regulation" are replaced by references to "each Securitisation Regulation".

 

3. EFFECTIVENESS

 

3.1 Effective Date

 

Subject to Clause 3.3 below, this Amendment shall become effective on the date hereof (the “Effective Date”), provided that the Administrative Agent shall have received (a) a counterpart (or counterparts) of this Amendment executed and delivered by each of the Parties, (b) a counterpart (or counterparts) of the German RSA Amendment executed and delivered by each of the parties hereto and (c) a counterpart (or counterparts) of the Dutch Account Security Agreement executed and delivered by each of the parties thereto. All covenants, agreements, representations and warranties made herein and in each Agreement shall survive the execution and delivery of this Amendment and shall continue in full force and effect.

 

3.2 Status

 

This Amendment is designated as a Transaction Document.

 

3.3 Continuing effect; Further Assurances

 

(a) On the Effective Date, and immediately following receipt of the items specified in Clause 3.1 above, the amendments and modifications to the Agreements shall be, and shall be deemed to be, effective, modified and amended in accordance herewith and, in each case, the respective rights, limitations, obligations, duties, liabilities and immunities of the respective parties thereto and hereto shall hereafter be determined, exercised and enforced subject in all respects to the modifications and amendments, and all the terms and conditions of this Amendment shall be deemed to be a part of the respective terms and conditions of the applicable Agreement for any and all purposes.
     
(b) Except as modified and expressly amended by this Amendment, each Agreement is in all respects ratified and confirmed, and all the terms, provisions and conditions thereof shall be and remain in full force and effect.

 

 


 

(c) Nothing in this Amendment shall constitute an amendment, waiver, consent or release of any right or remedy of the Administrative Agent, any Purchaser or any other Secured Party under the Transaction Documents nor otherwise prejudice the right or remedy of the Administrative Agent, any Purchaser or any other Secured Party under any Transaction Document and each of the Administrative Agent, any Purchaser or any other Secured Party reserves any other right or remedy it may have now or subsequently under the Transaction Documents.

 

(d) Each Originator shall at the request of the Administrative Agent or the Security Trustee and at its own expense promptly execute (in such form as the Administrative Agent or Security Trustee may reasonably require) and do any document, act or thing which the Administrative Agent or Security Trustee considers necessary or appropriate to preserve, perfect, protect or give effect to, the amendments contained in this Amendment.

 

4. CERTAIN REPRESENTATIONS/REAFFIRMATIONS

 

4.1 The SPV and each Arrow Party hereby represents and warrants to each of the other Parties that:

 

(a) the representations and warranties made by it in the Agreements to which it is a party, in each case as amended by this Amendment, and each of the other Transaction Documents to which it is a party are true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects) on and as of the Effective Date unless such representations and warranties by their terms refer to an earlier date, in which case they were true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects) on and as of such earlier date;
     
(b) the execution and delivery by it of this Amendment and the performance of its obligations under this Amendment, the Agreements to which it is a party (each as amended hereby) and the other Transaction Documents to which it is a party are within its organizational powers and have been duly authorized by all necessary action on its part, and this Amendment, the Agreements to which it is a party (each as amended hereby) and the other Transaction Documents to which it is a party are its valid and legally binding obligations, enforceable in accordance with their respective terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; and
     
(c) immediately before and after giving effect to this Amendment, no Early Amortisation Event, Potential Event of Default, Event of Default, Potential Servicer Default or Servicer Default has occurred and is continuing.

 

4.2 By its signature below, the Parent hereby affirms, agrees and acknowledges, as of the Effective Date, that (a) all of the terms and conditions set forth in the Parent Undertaking and all of the covenants made by the Parent therein are hereby confirmed and ratified, and (b) all of its obligations under the Parent Undertaking shall continue and remain in full force and effect, notwithstanding the amendments set forth in Article 2 (Amendments to the Agreements) of this Amendment and the amendments effected by the German RSA Amendment.

 

 


 

5. CONFIRMATIONS

 

The SPV confirms to the Administrative Agent, each Purchaser and each other Secured Party that:

 

(a) its obligations under, and the Security granted by it in and pursuant to, the Security Documents are not discharged or otherwise affected by the amendments contained in or the other provisions of this Amendment and shall accordingly remain in full force and effect; and

 

(b) the Secured Liabilities (as defined in each Security Document) shall after the Effective Date extend to the obligations of the SPV under the Amended Agreements and under any other Transaction Documents.

 

6. MISCELLANEOUS

 

6.1 Costs and Expenses

 

The Originators shall promptly on demand pay the Administrative Agent, each Purchaser and each other Secured Party the amount of all costs and expenses (including legal fees) incurred by any of them in connection with the negotiation, preparation, printing, execution of this Amendment and any other documents referred to in this Amendment. The Originators shall pay all costs and expenses (including legal fees) referred to in the immediately preceding sentence and invoiced on or prior to the date hereof within thirty (30) days of the Effective Date.

 

6.2 Counterparts

 

This Amendment may be executed in any number of counterparts, and this has the same effect as if the signatures (and if applicable, seals) on the counterparts were on a single copy of this Amendment. Delivery by electronic mail of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart of this Amendment.

 

6.3 Third Party Rights

 

Except in respect of the Secured Parties not party to this Amendment, which Persons (including, for the avoidance of doubt, their respective successors and permitted assigns) are intended to have the benefit of (but shall not enforce other than via the Administrative Agent) this Amendment pursuant to the Contracts (Rights of Third Parties) Act 1999, a Person who is not a Party has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Amendment.

 

 


 

6.4 Notices

 

The provisions of Clause 4.1 (Notices) of the Master Framework Agreement shall apply to this Amendment as if set out in full again here, with such changes as are appropriate to fit this context.

 

6.5 GOVERNING LAW

 

This Amendment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England.

 

6.6 Jurisdiction of the English Courts

 

(a) The Parties agree that the courts of England shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Amendment (including Clause 6.5 (Governing Law) and this Clause 6.6), or the transactions contemplated hereby, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts.

 

(b) Each Party for itself irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 6.6(a) being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Amendment, or the transactions contemplated hereby and agrees not to claim that any such court is not a convenient or appropriate forum.

 

6.7 Limited Recourse and No Proceedings

 

(a) Limited Recourse to the SPV. Notwithstanding anything to the contrary contained in this Amendment, the obligations of the SPV under this Amendment are solely the corporate obligations of the SPV and shall be payable solely to the extent of funds available to the SPV to satisfy such obligation in accordance with the Priority of Payments and to the extent that such funds are insufficient, any undischarged claims shall be extinguished.

 

(b) No Proceedings against the SPV. No party to this Amendment may, prior to the date which is two (2) years and one (1) day after the Final Payout Date, institute against, or join any other Person in instituting against, the SPV any proceeding of a type referred to in the definition of Event of Insolvency.

 

(c) Limited Recourse to the Conduit Purchasers. The obligations of each Conduit Purchaser under this Amendment are solely the corporate obligations of such Conduit Purchaser and are payable solely to the extent of available funds pursuant to the Programme Documents (as defined below). No recourse shall be had for the payment of any amount owing by any Conduit Purchaser under this Amendment or for the payment by such Conduit Purchaser of any fee in respect hereof or any other obligation or claim of or against such Conduit Purchaser arising out of or based upon this Amendment, against any employee, director, officer, member, manager or affiliate of such Conduit Purchaser; provided, however, that the foregoing shall not relieve any such Person of any liability they might have as a result of fraudulent acts or omissions committed by them. Each party hereto agrees that each Conduit Purchaser shall be liable for any claims that it may have against such Conduit Purchaser only to the extent that such Conduit Purchaser has funds available for such purpose in accordance with the programme documents in respect of its asset-backed commercial paper notes issuance programme (“Programme Documents”) and that, to the extent that any such claims remain unpaid after the application of such funds in accordance with the Programme Documents such claims shall be extinguished. The provisions of this Clause 6.7(c) will survive the termination of this Amendment.

 

 


 

(d) No Proceedings against the Conduit Purchasers. Each party hereto agrees that it shall not institute against, or join any Person in instituting against, any Conduit Purchaser any bankruptcy, examinership, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any bankruptcy or similar law of any jurisdiction, for two (2) years and one (1) day after (i) the latest maturing commercial paper note of any series (as set out in the Programme Documents of such Conduit Purchaser) or (ii) the latest maturing medium term note of such Conduit Purchaser, if any, is paid in full. This Clause 6.7(d) shall survive termination of this Amendment.

 

6.8 Binding Effect

 

This Amendment shall be binding on the parties hereto and their respective successors and assigns; provided that, except pursuant to the Servicing Deed, the SPV may not assign any of its rights or delegate any of its duties under this Amendment without the prior written consent of the Majority Purchasers.

 

6.9 Partial Invalidity

 

If, at any time, any provision of this Amendment is or becomes illegal, invalid or unenforceable in any respect under any Law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of that provision under the Law of any other jurisdiction will in any way be affected or impaired.

 

6.10 Instruction to Security Trustee and Paying Agent

 

The Administrative Agent (at the direction of the Specified Purchasers, which each Specified Purchaser provides by entering into this Amendment) hereby instructs (a) the Security Trustee and the Paying Agent (and instructs the SPV to instruct the Paying Agent, which the SPV does by entering into this Amendment) to execute and deliver this Amendment, and (b) the Security Trustee to execute and deliver the Dutch Account Security Agreement.

 

 


 

IN WITNESS WHEREOF, this Amendment has been executed as a deed by the parties hereto on the date first above written.

 

  ARROW EMEA FUNDING CORP B.V., as the SPV
  by Intertrust Management B.V., Managing Director
   
  By: /s/ Sytse van Ulsen   /s/ Edwin van Ankeren

    Name: Sytse van Ulsen   Edwin van Ankeren
    Title: Proxyholder   Director

 

  Signature of
Witness:
   
  Name of
Witness:
   
  Address of
Witness:
   
  Occupation of
Witness:

 

Omnibus Amendment No. 1

 

 


 

  ARROW CENTRAL EUROPE GMBH, as
  Originator, Agent Servicer and SPV Servicer
   
  By: /s/ Christopher Stansbury
    Name: Christopher Stansbury
    Title: Director

 

Omnibus Amendment No. 1

 

 


 

  ORIGINATOR, AGENT SERVICER, SPV SERVICER
     
  EXECUTED as a deedby  Christopher Stansbury ,)  
  duly authorised for and onbehalf ) /s/ Christopher Stansbury
  of ARROW ELECTRONICS (UK) )  
  LIMITED )  

 

  EXECUTED as a deedby  Mark Smith ,)  
  duly authorised for and onbehalf ) /s/ Mark Smith
  of ARROW ELECTRONICS (UK) )  
  LIMITED )  

 

Omnibus Amendment No. 1

 

 


 

  ARROW ELECTRONICS, INC., as the Parent
   
  By: /s/ Christopher Stansbury
    Name: Christopher Stansbury
    Title: Senior Vice President, Chief Financial Officer

 

Omnibus Amendment No. 1

 

 


 

Administrative Agent and Purchaser Agent for the BNPP Purchaser Group

 

Executed as a deed by BNP Paribas, a company incorporated in France, acting by Andrea De Martino and Emilie Astier who, in accordance with the laws of that territory, are acting under the authority of that company.

 

 

Signature in the name of the company: BNP Paribas
   
Signature of Andrea De Martino: /s/ Andrea De Martino
   
Signature of Emilie Astier: /s/ Emilie Astier

 

Omnibus Amendment No. 1

 

 


 

CONDUIT PURCHASER  
   
Given under the common seal of
Matchpoint Finance plc
and delivered as a deed in the presence of:
 
   
 
  Director 
   
   
  Director / Secretary
   
Vincent Lyons    
Witness Name  
   
76 HEYTESBURY LANE, BALLSBRIDGE, DUBLIN 4    
Witness Address  
   
Financial Accountant    
Witness Occupation   

 

Omnibus Amendment No. 1

 

 


 

  Purchaser Agent for the ING Purchaser Group
   
  ING BELGIUM S.A./N.V.
   
  By: /s/ Gert Sonck /s/ Annemarie Coolen
    Name: Gert Sonck Annemarie Coolen
    Title: Director Vice President
   

 

  Signature of Witness: /s/ Anton Lauwers
   
  Name of Witness: Anton Lauwers
   
  Address of Witness: Brusselsepoortstraat 148, 9000, Ghent, Belgium
   
  Occupation of Witness: Banker

 

Omnibus Amendment No. 1

 

 


 

  MONT BLANC CAPITAL CORP, as a Committed Purchaser and as a Conduit Purchaser
   
  By: /s/ Dennis Strid
    Name: Dennis Strid
    Title: Vice President

 

Omnibus Amendment No. 1

 

 


 

  U.S. BANK TRUSTEES LIMITED, as the Security Trustee
   
  By: /s/ John Collins
    Name: John Collins
    Title: Authorised Signatory
   
  By: /s/ James Preuss
    Name: James Preuss
    Title: Authorised Signatory

 

Omnibus Amendment No. 1

 

 


 

  ELAVON FINANCIAL SERVICES DAC, as the Paying Agent
   
  By: /s/ John Collins
    Name: John Collins
    Title: Authorised Signatory
   
  By: /s/ James Preuss
    Name: James Preuss
    Title: Authorised Signatory

 

Omnibus Amendment No. 1

 

 


 

  ARROW ELECTRONICS FC B.V., as the Subordinated Lender
   
  By: /s/ William Dakin
    Name: William Dakin
    Title: Director

 

Omnibus Amendment No. 1

 

 


 

  DEMICA LIMITED, as Reporting Services Provider
   
  By: /s/ Maurice Benisty
    Name: Maurice Benisty
    Title: Chief Commercial Officer

 

  Signature of Witness: /s/ Martin Chalanset
   
  Name of Witness: Martin Chalanset
   
  Address of Witness: 7 Garden Walk EC2A 3EW, London
   
  Occupation of Witness: Senior Associate

 

Omnibus Amendment No. 1

 

 


 

ANNEX A

 

SCHEDULE 3
ACCOUNTS

 

COLLECTION ACCOUNTS

 

Arrow Electronics (UK) Limited

 

[*****]

 

Arrow Central Europe GmbH

 

[*****]

 

SPV Accounts

 

[*****]

 

 


 

ANNEX B

 

SCHEDULE 3
REFERENCE RATE TERMS

 

CURRENCY: Sterling.
   
Cost of funds as a fallback Cost of funds will not apply as a fallback.

 

Definitions

 

Credit Adjustment Spread: [*****]
   
Break Costs: None specified

 

Business Day Conventions (definition of "Month" and Non-Business Days): (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:

 

(i) subject to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(ii) if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

 

(iii) if a Rate Period or a Monthly Calculation Period begins on the last Business Day of a calendar month, that Rate Period or Monthly Calculation Period shall end on the last Business Day in the calendar month in which that Rate Period or Monthly Calculation Period is to end.

 

(b) If a Rate Period or a Monthly Calculation Period would otherwise end on a day which is not a Business Day, that Rate Period or Monthly Calculation Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

 


 

(c) The Business Day Conventions shall apply to each Rate Period or Monthly Calculation Period.

 

Central Bank Rate: The Bank of England's Bank Rate as published by the Bank of England from time to time.

 

Central Bank Rate Adjustment: In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the [*****]. trimmed arithmetic mean (calculated by the Administrative Agent of the Central Bank Rate Spread for the five most immediately preceding RFR Banking Days for which the RFR was available.

 

Central Bank Rate Spread: In relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) (calculated by the Administrative Agent between: (i) the RFR for the RFR Banking Day; and (ii) the Central Bank Rate prevailing at the close of business on that RFR Banking Day.

 

Daily Rate: The "Daily Rate" for any RFR Banking Day is:

 

(a) the RFR for that RFR Banking Day; or

 

(b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:

 

(i) the Central Bank Rate for that RFR Banking Day; and

 

(ii) the applicable Central Bank Rate Adjustment; or

 

(c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of:

 

(i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and

 

(ii) the applicable Central Bank Rate Adjustment, rounded, in either case, to four decimal places.

 

 


 

Lookback Period: Five RFR Banking Days.

 

Relevant Market: The sterling wholesale market.

 

Reporting Day (SONIA): The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period.

 

RFR: The SONIA (sterling overnight index average) reference rate displayed on the relevant screen of any authorised distributor of that reference rate.

 

RFR Banking Day: A day (other than a Saturday or Sunday) on which banks are open for general business in London.

 

 


  

ANNEX C

 

SCHEDULE 4

DAILY NON-CUMULATIVE RFR RATE

 

The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during a Rate Period or Monthly Calculation Period is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Administrative Agent, any Purchaser or any other Secured Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below:

 

 

where:

 

"UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";

 

"UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Rate Period or Monthly Calculation Period;

 

"dcc" means 365 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;

 

"ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and

 

the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Rate Period or Monthly Calculation Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Administrative Agent, any Purchaser or any other Secured Party performing the calculation, taking into account the capabilities of any software used for that purpose):

 

where:

 

"ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;

 

"tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;

 

"Cumulation Period" means the period from, and including, the first RFR Banking Day of that Rate Period or Monthly Calculation Period to, and including, that Cumulated RFR Banking Day;

 

"dcc" has the meaning given to that term above; and

 

 


 

the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to 5 decimal places) calculated as set out below:

 

 

 


  

where: 

 

"d0" means the number of RFR Banking Days in the Cumulation Period;

 

"Cumulation Period" has the meaning given to that term above;

 

"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;

 

"DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the Lookback Period prior to that RFR Banking Day "i";

 

"ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;

 

"dcc" has the meaning given to that term above;

 

and "tni" has the meaning given to that term above.

 

 


 

THIS OMNIBUS DEED OF AMENDMENT NO. 2 (this “Amendment”) is dated September 20, 2022 and made among ARROW EMEA FUNDING CORP B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, as the SPV (the “SPV”), BNP PARIBAS (“BNPP”), a société anonyme incorporated under the laws of France, as the Administrative Agent (in such capacity, the “Administrative Agent”), as Purchaser Agent for the BNP Purchaser Group (in such capacity, the “BNPP Purchaser Agent”) and as a Committed Purchaser, MATCHPOINT FINANCE PLC, a public limited company incorporated under the laws of Ireland, as a Conduit Purchaser (“Matchpoint”), ING BELGIUM S.A./N.V., a public limited liability company (société anonyme/naamloze vennootschap) organised under the laws of Belgium, as Purchaser Agent for the ING Purchaser Group (the “ING Purchaser Agent”), MONT BLANC CAPITAL CORP, a corporation organised under the laws of the State of Delaware, as a Committed Purchaser and as a Conduit Purchaser (“Mont Blanc”), ARROW ELECTRONICS (UK) LIMITED, a limited liability company incorporated under the laws of England and Wales, as an Agent Servicer, an SPV Servicer and an Originator (“Arrow UK”), ARROW CENTRAL EUROPE GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany, as an Agent Servicer, an SPV Servicer and an Originator (“Arrow Germany”), ARROW ELECTRONICS, INC., a corporation organised under the laws of the State of New York, as the Parent (the “Parent”), ARROW ELECTRONICS FC B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands, as the Subordinated Lender (the “Subordinated Lender”), U.S. BANK TRUSTEES LIMITED, a limited liability company incorporated under the laws of England and Wales, as the Security Trustee and mandatario con rappresentanza pursuant to and for the purposes of Italian law (the “Security Trustee”), and ELAVON FINANCIAL SERVICES DAC, a designated activity company registered in Ireland, as the Paying Agent (the “Paying Agent”). Each Person above shall be a “Party” and together shall be the “Parties”.

 

WITNESSETH

 

WHEREAS, the SPV, the Administrative Agent, the BNPP Purchaser Agent, Matchpoint, the ING Purchaser Agent, Mont Blanc, Arrow UK, Arrow Germany, the Parent, the Subordinated Lender, the Security Trustee and the Paying Agent have entered into that certain Master Framework Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Master Framework Agreement”);

 

WHEREAS, the SPV, the Administrative Agent, the BNPP Purchaser Agent, Matchpoint, the ING Purchaser Agent, Mont Blanc, Arrow UK, Arrow Germany, the Security Trustee and the Paying Agent have entered into that certain Receivables Transfer Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Receivables Transfer Agreement”);

 

WHEREAS, the SPV, the Administrative Agent, Arrow UK, Arrow Germany, the Security Trustee and the Paying Agent have entered into that certain Receivables Servicing Deed, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Servicing Deed”);

 

WHEREAS, the Subordinated Lender, the SPV, Arrow UK, Arrow Germany and the Administrative Agent have entered into that certain Subordinated Loan Agreement, dated as of January 27, 2020 (as amended up to the date of this Amendment, the “Subordinated Loan Agreement” and, together with the Master Framework Agreement, Receivables Transfer Agreement and Servicing Deed, the “Agreements” and each Agreement, reflecting the amendment of such Agreement effected or proposed to be effected pursuant to this Amendment, the “Amended Agreements”);

 

WHEREAS, the Parties desire to amend the Agreements to which they are a party as provided herein and, to the extent applicable to such Party, provide a limited waiver as provided herein; and Terms defined in each Amended Agreement or the German RSA (as defined below) but not in this Amendment shall have the same meaning in this Amendment as in such Amended Agreement or the German RSA, as applicable, or, if not defined therein, in the Master Framework Agreement.

 

NOW THEREFORE, the Parties agree as follows.

 

 


 

THIS DEED WITNESSES that:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Terms defined in the Amended Agreements

 

 

1.2 Interpretation

 

The principles of interpretation set out in Clause 2.2 (Interpretation) of the Master Framework Agreement apply to this Amendment, mutatis mutandis, as if fully set forth herein.

 

2. AMENDMENTS TO THE AGREEMENTS

 

2.1 Amendment of Master Framework Agreement. The Parties to the Master Framework Agreement hereby agree that with effect from the Effective Date, the Master Framework Agreement shall be amended in its entirety in the form of Annex A attached hereto.

 

2.2 Amendment of Receivables Transfer Agreement. The Parties to the Receivables Transfer Agreement hereby agree that with effect from the Effective Date, the Receivables Transfer Agreement shall be amended in its entirety in the form of Annex B attached hereto.

 

2.3 Amendment of Servicing Deed. The Parties to the Servicing Deed hereby agree that with effect from the Effective Date, the Servicing Deed shall be amended as follows:

 

(a) Clause 4.1 of the Servicing Deed shall be amended in its entirety to read as follows:

 

  “4.1 Allocation and distribution of Available Funds

 

Each Servicer shall allocate, hold and distribute Collections (including, for the avoidance of doubt, any Collections then on deposit in any Collection Account or SPV Account), any interest and income available on amounts on deposit in any Collection Account or SPV Account and proceeds of any Investment solely in accordance with this Clause 4.1, subject to Clause 4.6 (Allocation and payments in different Currencies).

 

(a) Daily Allocations. Subject to Clause 4.3 (Collections held on trust) below, on each Business Day (other than a Settlement Date), each Agent Servicer shall allocate, set aside and hold on trust Collections that are received or deemed received by the SPV, the SPV Servicers or the Agent Servicers, as applicable, on such day in the following order of priority:

 

(i) first, pro rata based on the amounts owing pursuant to this Clause 4.1(a)(i), to the SPV, in an amount equal to (x) any expenses (including management or corporate services fees and expenses of the SPV and any Taxes payable by the SPV) of the SPV, as the case may be, then due and payable or that will become due and payable on or prior to the next Settlement Date and (y) the SPV Profit Amount;

 

 


 

(ii) second, for the benefit of the Administrative Agent, the Security Trustee, the Purchasers and any other applicable party, in an aggregate amount equal to the sum of:

  

(A) the Yield accrued up to and including such day on the Aggregate Invested Amount;

 

(B) the Agent Servicing Fee, the SPV Servicing Fee and the Backup Servicing Fee (if any) accrued up to and including such day;

 

(C) any other fees accrued up to and including such day as described in the Fee Letters or the Receivables Transfer Agreement;

 

(D) any payment or optional or mandatory prepayment of the Aggregate Invested Amounts to be made in accordance with Clause 2.4 (Repayment of Investments and Yield) of the Receivables Transfer Agreement on or before the next Settlement Date (and, after the Termination Date, the Aggregate Invested Amounts);

 

(E) any other amounts owing by the SPV or any other Arrow Party as described in the definition of Aggregate Unpaids,

 

in the case of each item referred to in Clause 4.1(a)(ii)(A) to (D), less the amount previously allocated, set aside and held on trust and as at such day held on trust by any Agent Servicer in respect of that item; and

 

(iii) third, to the SPV for application in accordance with Clause 4.2 (Application of Available Funds allocated to the SPV); provided that, at any time (x) after the Termination Date, but prior to the Final Payout Date, (y) an Event of Default, Potential Event of Default, Early Amortisation Event or Potential Early Amortisation Event has occurred and is continuing or (z) on and after the Account Redirection Date, each Servicer shall cause amounts pursuant to this Clause 4.1(a)(iii) to be deposited and retained in an SPV Account and shall allocate such Collections in accordance with this Clause 4.1(a) on the immediately succeeding Business Day;

 

provided, that, with respect to this Clause 4.1(a), such Collections shall be held on trust first, from Sold Receivable Collections received or deemed received on such day, and second, solely to the extent such Sold Receivable Collections are insufficient to satisfy the amounts required to be held on trust pursuant to this Clause 4.1(a), from Unsold Receivable Collections received or deemed received on such day; provided, further, that each SPV Servicer shall transfer any amounts held on trust pursuant to this Clause 4.1(a) to the applicable Agent Servicer upon receipt thereof.”

 

 


 

(b) Deposits and Distributions on Settlement Dates. On each Settlement Date, each Agent Servicer shall distribute Collections so allocated in accordance with Clause 4.1(a) (including, for the avoidance of doubt, any Collections then on deposit in any Collection Account or SPV Account), together with any income available on amounts on deposit in any Collection Account or SPV Account and any proceeds of any Investment (if applicable), in the order of priority set forth below:

 

(i) to the SPV to pay, (x) pro rata, any expenses (including management or corporate services fees and expenses of the SPV and any Taxes payable by the SPV) of the SPV then due and payable and (y) the SPV Profit Amount;

 

(ii) first, to the Security Trustee to pay any Liabilities then due and second, to the Paying Agent to pay any Liabilities then due;

 

(iii) pro rata to the SPV Account Bank and, solely after the occurrence of the Termination Date, the Reporting Services Provider any fees and other amounts due and payable to the SPV Account Bank and, if applicable, the Reporting Services Provider then due provided that the amounts payable pursuant to this clause (iii) shall not exceed [*****] in any calendar year until the occurrence of the Termination Date; and shall not exceed [*****] in any calendar year thereafter;

 

(iv) solely to the extent the Agent Servicers and the SPV Servicers are not Arrow Parties, to each Agent Servicer and SPV Servicer and the Backup Servicer (if any) in payment of its respective accrued Agent Servicing Fee, SPV Servicing Fee and the Backup Servicing Fee (if any) payable on such Settlement Date;

 

(v) to the Purchasers, pro rata based on the amount of accrued and unpaid Yield owing to each of them and any accrued and unpaid fees owing to each of them under the Fee Letters or the Receivables Transfer Agreement, in payment of the accrued and unpaid Yield and such fees;

 

(vi) to the Purchasers, pro rata based on the respective amounts of the Investments made by them, in repayment and reduction of the Aggregate Invested Amounts, if any, then due and payable;

 

(vii) to the Administrative Agent, each Purchaser Agent, the applicable Purchasers or such other Persons as may be entitled to such payment, in payment of any other Aggregate Unpaids (other than the Aggregate Invested Amounts, Yield, Agent Servicing Fee, SPV Servicing Fee and Backup Servicing Fee (if any)) owed by the SPV or any Arrow Party hereunder to such Person;

 

(viii) to the extent the Agent Servicers are Arrow Parties, to each Agent Servicer in payment of its respective accrued Agent Servicing Fee payable on such Settlement Date;

 

(ix) pro rata, to the SPV Account Bank and, if applicable, the Reporting Services Provider, any fees and other amounts due and payable to the SPV Account Bank and, if applicable, the Reporting Services Provider, to the extent not already paid pursuant to clause (iii) above;

 

(x) in satisfaction of the SPV's obligations under Clause 2.2 (Appointment of SPV Servicers), to the extent the SPV Servicers are Arrow Parties, to each SPV Servicer in payment of its respective accrued SPV Servicing Fee payable on such Settlement Date; and

 

(xi) to the SPV for application in accordance with Clause 4.2 (Application of Available Funds allocated to the SPV).

 

 


 

(c) Each SPV Servicer shall retain all remaining amounts following the distributions made pursuant to Clause 4.1(b) (Deposits and Distributions on Settlement Dates) above for the benefit of the SPV as payment of a fee for the maintenance of the SPV Guaranty and the related SPV Collateral (such fee, the "SPV Guaranty Fee").

 

(d) Notwithstanding the foregoing, the aggregate amount of Collections which are received by the SPV and applied pursuant to Clauses 4.1(b)(i) through (xi) above following the Termination Date and until the Final Payout Date may not exceed an amount equal to the excess of (i) the Base Currency Equivalent of the Unpaid Balance of all Sold Receivables and Unsold Receivables as of the close of business immediately prior to the Termination Date (the "Termination Date Portfolio") over (ii) the Base Currency Equivalent of the Unpaid Balance of all Receivables in the Termination Date Portfolio which became Defaulted Receivables after the Termination Date, net of recoveries (including proceeds under any Credit Insurance Policy) received by the SPV on such Defaulted Receivables.”

 

(b) Clause 4.4 of the Servicing Deed shall be amended in its entirety to read as follows:

 

“4.4 Deemed Collections

 

(a) Dilutions. If on any day the Unpaid Balance of a Receivable is reduced as a result of any Dilution or such Receivable is cancelled as a result of any Dilution, the SPV shall be deemed to have received on such day a Collection of such Receivable (i) if such Receivable is cancelled, in the full amount of the Unpaid Balance (as determined immediately prior to such Dilution) of such Receivable or (ii) otherwise, in the full amount of such Dilution, then the SPV shall be deemed to have received on such day a Deemed Collection related to such Receivable.

 

(b) Purchase Price Adjustment. If on any day the Unpaid Balance of a Receivable is less than the Unpaid Balance on the basis on which the purchase price for such Receivable has been determined pursuant to the applicable Sale Agreement, then the SPV shall be deemed to have received on such day a Deemed Collection equal to such reduction.

 

(c) Breach of representation or warranty. (x) If on any day any of the representations or warranties in Clauses 3(d) (Receivables and Related Rights), 3(k) (Good Title), 3(l) (Eligibility of Receivables), 3(r) (Transfers under the Sale Agreements), 3(s) (No voidability) or 3(u) (Data Protection) of the Receivables Transfer Agreement or Clause 5(h) (Eligibility of Receivables) or 5(n) (Data Protection) of this Deed, was untrue with respect to a Receivable then the SPV shall be deemed to have received on such day a Deemed Collection of such Receivable in the full amount of the Unpaid Balance of such Receivable and (y) if on any day an application of Collections is made as described in Clause 4.2(b) when it should have been retained by a Servicer pursuant to the proviso to Clause 4.2(b) then the SPV shall be deemed to have received on such day a Deemed Collection in the full amount of the Collections so applied.

 

 


 

(d) Excluded Obligor. If on any day any Obligor of any Receivable is or, subsequent to the sale and transfer of such Receivable to the Administrative Agent (to be held on trust for the benefit of the Purchasers), becomes, an Excluded Obligor, then the SPV shall be deemed to have received on such day a Deemed Collection of such Receivable in full.

 

(e) Not later than the next Settlement Date after the SPV shall be deemed to have received a Deemed Collection pursuant to this Clause 4.4, the applicable Servicer (i) shall pay to the applicable Agent Servicer an amount (in the Currency in which such Receivable or Collection is denominated) equal to such Deemed Collection and (ii) such amount shall be applied by such Agent Servicer as a Collection in accordance with Clause 4.1 (Allocation and Distribution of Available Funds).”

 

(c) Clause 6.1(j) of the Servicing Deed shall be amended in its entirety to read as follows:

 

“(j) Collections. (i) Prior to the Account Redirection Date, each Servicer shall (or shall require the SPV and the Originators to) instruct all Obligors to cause all Collections to be deposited directly to a Collection Account or an SPV Account (unless those Collections have already been paid into a Collection Account or an SPV Account), and (ii) on and after the Account Redirection Date, each Servicer shall (and shall require the SPV and the Originators to) instruct, in a manner satisfactory to the Administrative Agent, all Obligors to cause all Collections to be deposited directly to an SPV Account (unless those Collections have already been paid into an SPV Account). Notwithstanding anything to the contrary in this Deed or any other Transaction Document, if an Obligor of any Receivable is or, subsequent to the sale and transfer of such Receivable to the Administrative Agent (to be held on trust for the benefit of the Purchasers), becomes an Excluded Obligor, the Servicer will (or will cause SPV to), within five (5) Business Days of becoming aware that an Obligor is an Excluded Obligor, instruct such Obligor to deliver payments on such Receivable to any account, postal box or other location other than a Collection Account or an SPV Account. The Servicer shall not permit Collections on Receivables, the Obligors of which are Excluded Obligors, to be deposited into any Collection Account or SPV Account, except for Deemed Collections on Receivables, the Obligors of which are Excluded Obligors, to be deposited into any Collection Account or SPV Account. If such Collections are nevertheless deposited into any Collection Account or SPV Account, the Servicer will (or will cause SPV to) within five (5) Business Days identify and transfer such funds out of the applicable Collection Account or SPV Account.”

 

2.4 Amendment of Subordinated Loan Agreement. The Parties to the Subordinated Loan Agreement hereby agree that with effect from the Effective Date, the Subordinated Loan Agreement shall be amended as follows:

 

(a) Clause 6.2(b) of the Subordinated Loan Agreement shall be amended in its entirety to read as follows:

 

“(b) For the purposes of Article 7(2) of the EU Securitisation Regulation and Article 7(2) of the UK Securitisation Regulation, the Originators, the Subordinated Lender (as an “originator” as defined in each Securitisation Regulation) and the Borrower designate the Subordinated Lender to fulfil the information requirements of Article 7(1) of the EU Securitisation Regulation and Article 7(1) of the UK Securitisation Regulation and the Subordinated Lender hereby accepts such designations. Without prejudice to the immediately preceding sentence, the Subordinated Lender, the Originators and the Borrower agree that the Originators (in their capacity as Servicers), on behalf of the Subordinated Lender, shall appoint the Reporting Services Provider (including any successor or replacement reporting services provider) under clause 2.1 (Appointment) of the Reporting Services Agreement to assist in the fulfillment of the reporting obligations under Article 7 of each Securitisation Regulation, including providing the Reports (as defined in the Reporting Services Agreement) in the format required by each Securitisation Regulation.”

 

 


 

3. EFFECTIVENESS

 

3.1 Effective Date

 

Subject to Clause 3.3 below, this Amendment shall become effective on the date hereof (the “Effective Date”), provided that the Administrative Agent shall have received each of the following:

 

(a) a counterpart (or counterparts) of this Amendment executed and delivered by each of the Parties;

 

(b) a copy of the provisional STS report of Prime Collateralised Securities (PCS) EU SAS, verifying that the securitisation transaction described in the Transaction Documents complies with Article 23 to 26 of the EU Securitisation Regulation, completed to the reasonable satisfaction of the Administrative Agent;

 

(c) a counterpart (or counterparts) of the Purchaser Fee Letter, dated as of the date hereof (the “Purchaser Fee Letter”), by and among the Parent, BNPP, Matchpoint, the ING Purchaser Agent and Mont Blanc executed and delivered by each of the parties thereto;

 

(d) a counterpart (or counterparts) of the Administrative Agent Fee Letter, dated as of the date hereof (the “Administrative Agent Fee Letter”), by and among the Parent and the Administrative Agent executed and delivered by each of the parties thereto; and

 

(e) each of the other documents, agreements (in fully executed form), opinions of counsel, lien search results, filings, certificates and other deliverables listed on the closing memorandum attached as Annex C hereto, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

 

All covenants, agreements, representations and warranties made herein and in each Agreement shall survive the execution and delivery of this Amendment and shall continue in full force and effect.

 

3.2 Status

 

This Amendment is designated as a Transaction Document.

 

3.3 Continuing effect; Further Assurances

 

(a) On the Effective Date, and immediately following receipt of the items specified in Clause 3.1 above, the amendments and modifications to the Agreements shall be, and shall be deemed to be, effective, modified and amended in accordance herewith and, in each case, the respective rights, limitations, obligations, duties, liabilities and immunities of the respective parties thereto and hereto shall hereafter be determined, exercised and enforced subject in all respects to the modifications and amendments, and all the terms and conditions of this Amendment shall be deemed to be a part of the respective terms and conditions of the applicable Agreement for any and all purposes.

 

 


 

(b) Except as modified and expressly amended by this Amendment, each Agreement is in all respects ratified and confirmed, and all the terms, provisions and conditions thereof shall be and remain in full force and effect.

 

(c) Expect for the limited purposes set forth in Clause 8, nothing in this Amendment shall constitute an amendment, waiver, consent or release of any right or remedy of the Administrative Agent, any Purchaser or any other Secured Party under the Transaction Documents nor otherwise prejudice the right or remedy of the Administrative Agent, any Purchaser or any other Secured Party under any Transaction Document and each of the Administrative Agent, any Purchaser or any other Secured Party reserves any other right or remedy it may have now or subsequently under the Transaction Documents.

 

(d) Each Originator shall at the request of the Administrative Agent or the Security Trustee and at its own expense promptly (i) execute (in such form as the Administrative Agent or Security Trustee may reasonably require) any document and (ii) do any act or thing, in each case which the Administrative Agent or Security Trustee considers necessary or appropriate to preserve, perfect, protect or give effect to, the amendments contained in this Amendment.

 

4. CERTAIN REPRESENTATIONS/REAFFIRMATIONS

 

4.1 The SPV and each Arrow Party hereby represents and warrants to each of the other Parties that:

 

(a) the representations and warranties made by it in the Agreements to which it is a party, in each case as amended by this Amendment, and each of the other Transaction Documents to which it is a party are true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects) on and as of the Effective Date unless such representations and warranties by their terms refer to an earlier date, in which case they were true and correct in all material respects (except those representations and warranties qualified by materiality or by reference to a material adverse effect, which are true and correct in all respects) on and as of such earlier date;

 

(b) the execution and delivery by it of this Amendment and the performance of its obligations under this Amendment, the Agreements to which it is a party (each as amended hereby) and the other Transaction Documents to which it is a party are within its organizational powers and have been duly authorized by all necessary action on its part, and this Amendment, the Agreements to which it is a party (each as amended hereby) and the other Transaction Documents to which it is a party are its valid and legally binding obligations, enforceable in accordance with their respective terms, subject to the effect of bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally, and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; and

 

 


 

(c) immediately before and after giving effect to this Amendment, no Early Amortisation Event, Potential Event of Default, Event of Default, Potential Servicer Default or Servicer Default has occurred and is continuing, except as expressly waived pursuant to Clause 8.

 

4.2 By its signature below, the Parent hereby affirms, agrees and acknowledges, as of the Effective Date, that (a) all of the terms and conditions set forth in the Parent Undertaking and all of the covenants made by the Parent therein are hereby confirmed and ratified, and (b) all of its obligations under the Parent Undertaking shall continue and remain in full force and effect, notwithstanding the amendments set forth in Clause 2(Amendments to the Agreements) of this Amendment or the limited waiver set forth in Clause 8 (Additional Settlement Date; Limited Waiver).

 

5. ADDITIONAL REPRESENTATIONS AND WARRANTIES

 

5.1 Each Originator represents and warrants to the Administrative Agent, the Purchaser Agents, the Purchasers, the Security Trustee and the Paying Agent, that, on the Effective Date and on each Purchase Date, Investment Date and Settlement Date that such Originator has expertise in, and at least five years' experience of, originating Receivables of a similar nature to the Receivables in the Portfolio.

 

5.2 Each Committed Purchaser confirms for the purposes of EU STS Requirements that it is in compliance with Article 25(3) of the EU Securitisation Regulation and that its relevant competent authority has not objected to it acting as sponsor of an ABCP programme.

 

6. CONFIRMATIONS

 

The SPV confirms to the Administrative Agent, each Purchaser and each other Secured Party that:

 

(a) its obligations under, and the Security granted by it in and pursuant to, the Security Documents are not discharged or otherwise affected by the amendments contained in or the other provisions of this Amendment and shall accordingly remain in full force and effect; and

 

(b) the Secured Liabilities (as defined in each Security Document) shall after the Effective Date extend to the obligations of the SPV under the Amended Agreements and under any other Transaction Documents.

 

7. MISCELLANEOUS

 

7.1 Costs and Expenses

 

The Originators shall promptly on demand pay the Administrative Agent, each Purchaser and each other Secured Party the amount of all costs and expenses (including legal fees) incurred by any of them in connection with the negotiation, preparation, printing and execution of this Amendment and any other documents referred to in this Amendment. The Originators shall pay all costs and expenses (including legal fees) referred to in the immediately preceding sentence and invoiced on or prior to the date hereof within thirty (30) days of the Effective Date.

 

7.2 Counterparts

 

This Amendment may be executed in any number of counterparts, and this has the same effect as if the signatures (and if applicable, seals) on the counterparts were on a single copy of this Amendment. Delivery by electronic mail of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart of this Amendment.

 

 


 

7.3 Third Party Rights

 

Except in respect of the Secured Parties not party to this Amendment, which Persons (including, for the avoidance of doubt, their respective successors and permitted assigns) are intended to have the benefit of (but shall not enforce other than via the Administrative Agent) this Amendment pursuant to the Contracts (Rights of Third Parties) Act 1999, a Person who is not a Party has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Amendment.

 

7.4 Notices

 

The provisions of Clause 4.1 (Notices) of the Master Framework Agreement shall apply to this Amendment as if set out in full again here, with such changes as are appropriate to fit this context.

 

7.5 Mandatario con rappresentanza pursuant to and for the purposes of Italian law

 

References in any Transaction Document to the Security Trustee in connection with and/or related to any security document governed by Italian law shall be deemed to include a reference to the Security Trustee also in its capacity as mandatario con rappresentanza pursuant to and for the purposes of Italian law where applicable.

 

7.6 GOVERNING LAW

 

This Amendment and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of England.

 

7.7 Jurisdiction of the English Courts

 

(a) The Parties agree that the courts of England shall have jurisdiction to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Amendment (including Clause 7.5 (Governing Law) and this Clause 7.6), or the transactions contemplated hereby, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts.

 

(b) Each Party for itself irrevocably waives any objection which it might now or hereafter have to the courts referred to in Clause 7.6(a) being nominated as the forum to hear and determine any suit, action or proceeding, and to settle any dispute, which may arise out of or in connection with this Amendment, or the transactions contemplated hereby and agrees not to claim that any such court is not a convenient or appropriate forum.

 

7.8 Limited Recourse and No Proceedings

 

(a) Limited Recourse to the SPV. Notwithstanding anything to the contrary contained in this Amendment, the obligations of the SPV under this Amendment are solely the corporate obligations of the SPV and shall be payable solely to the extent of funds available to the SPV to satisfy such obligation in accordance with the Priority of Payments and to the extent that such funds are insufficient, any undischarged claims shall be extinguished.

 

 


 

(b) No Proceedings against the SPV. No party to this Amendment may, prior to the date which is two (2) years and one (1) day after the Final Payout Date, institute against, or join any other Person in instituting against, the SPV any proceeding of a type referred to in the definition of Event of Insolvency.

 

(c) Limited Recourse to the Conduit Purchasers. The obligations of each Conduit Purchaser under this Amendment are solely the corporate obligations of such Conduit Purchaser and are payable solely to the extent of available funds pursuant to the Programme Documents (as defined below). No recourse shall be had for the payment of any amount owing by any Conduit Purchaser under this Amendment or for the payment by such Conduit Purchaser of any fee in respect hereof or any other obligation or claim of or against such Conduit Purchaser arising out of or based upon this Amendment, against any employee, director, officer, member, manager or affiliate of such Conduit Purchaser; provided, however, that the foregoing shall not relieve any such Person of any liability they might have as a result of fraudulent acts or omissions committed by them. Each party hereto agrees that each Conduit Purchaser shall be liable for any claims that it may have against such Conduit Purchaser only to the extent that such Conduit Purchaser has funds available for such purpose in accordance with the programme documents in respect of its asset-backed commercial paper notes issuance programme (“Programme Documents”) and that, to the extent that any such claims remain unpaid after the application of such funds in accordance with the Programme Documents such claims shall be extinguished. The provisions of this Clause 7.7(c) will survive the termination of this Amendment.

 

(d) No Proceedings against the Conduit Purchasers. Each party hereto agrees that it shall not institute against, or join any Person in instituting against, any Conduit Purchaser any bankruptcy, examinership, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any bankruptcy or similar law of any jurisdiction, for two (2) years and one (1) day after (i) the latest maturing commercial paper note of any series (as set out in the Programme Documents of such Conduit Purchaser) or (ii) the latest maturing medium term note of such Conduit Purchaser, if any, is paid in full. This Clause 7.7(d) shall survive termination of this Amendment.

 

7.9 Binding Effect

 

This Amendment shall be binding on the parties hereto and their respective successors and assigns; provided that, except pursuant to the Servicing Deed, the SPV may not assign any of its rights or delegate any of its duties under this Amendment without the prior written consent of the Majority Purchasers.

 

7.10 Partial Invalidity

 

If, at any time, any provision of this Amendment is or becomes illegal, invalid or unenforceable in any respect under any Law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of that provision under the Law of any other jurisdiction will in any way be affected or impaired.

 

7.11 Instruction to Security Trustee and Paying Agent

 

The Administrative Agent (at the direction of the Specified Purchasers, which each Specified Purchaser provides by entering into this Amendment) hereby instructs the Security Trustee and the Paying Agent (and instructs the SPV to instruct the Paying Agent, which the SPV does by entering into this Amendment) to execute and deliver this Amendment.

 

 


 

8. ADDITIONAL SETTLEMENT DATE; LIMITED WAIVER

 

8.1 Additional Settlement Date

 

Pursuant to paragraph (a)(ii) of the definition of “Settlement Date” in the Master Framework Agreement, each of the Agent Servicers, the Administrative Agent and the Majority Purchasers hereby agree that September 28, 2022, shall be a “Settlement Date” under the Transaction Documents (the “Additional Settlement Date”). Solely with respect to the Additional Settlement Date, the following shall apply (including any other modifications to terms or determination dates that are mutually agreed in writing between the Agent Servicers, the Administrative Agent and the Majority Purchasers and relate solely to the Additional Settlement Date):

 

(a) Month End Date – September 20, 2022

 

(b) Monthly Calculation Date – September 23, 2022

 

(c) Dilution Horizon Ratio – shall be calculated using values for each component part thereof as of the immediately preceding Monthly Calculation Date

 

(d) Net Eligible Receivables Balance – clause (e) of “Net Eligible Receivables Balance” shall be calculated using the Base Currency Equivalent of the aggregate outstanding Provisions for Contractual Dilutions with respect to Eligible Obligors as of the immediately preceding Monthly Calculation Date

 

(e) Minimum Total Reserve Percentage – shall be calculated (i) as of September 23, 2022, and (ii) solely to the extent the BNPP Purchaser Agent and the ING Purchaser Agent have provided written consent (which may be by electronic mail) to Parent regarding the same, using [*****]%

 

(f) Loss Reserve Percentage – shall reflect the Loss Reserve Percentage from September 1, 2022

 

(g) Yield and Expenses Reserve Percentage – shall reflect the Yield and Expenses Reserve Percentage from September 1, 2022

 

For the avoidance of doubt, the terms and determination dates used in this Clause 8.1 are solely with respect to the Additional Settlement Date and shall in no way effect past or future Settlement Dates which shall continue pursuant to and in accordance with the Transaction Documents as if the Additional Settlement Date had not occurred.

 

8.2 Limited Waiver Regarding Certain Accounts of Arrow Germany

 

Reference is hereby made to the (i) Receivables Transfer Agreement, and (ii) German Receivables Sale Agreement, dated as of January 27, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “German RSA”), by and between the SPV, as buyer, and Arrow Germany, as seller and original servicer.

 

The following clauses (a) – (d) are collectively referred to herein as the “Subject Covenants”:

 

(a)       Pursuant to Clause 6.2(f) of the German RSA, Arrow Germany shall, among other things, instruct all relevant Obligors to cause all Collections to be deposited directly to a Collection Account.

 

 


 

(b)       Pursuant to Clause 6.2(g) of the German RSA, Arrow Germany shall, among other things, hold all Collections received by it from time to time on trust for the benefit of the SPV and deposit such Collections immediately to a Collection Account or an SPV Account (unless those Collections have already been paid into a Collection Account or an SPV Account).

 

(c)       Pursuant to Clause 6.2(h) of the German RSA, Arrow Germany shall, among other things, procure that each Collection Account shall at all times be subject to an Account Agreement.

 

(d)       Pursuant to Clause 6.3(e) of the German RSA, Arrow Germany shall not, among other things, add any bank as an Account Bank or any account as an Account to or from those listed in schedule 3 (Accounts) to the Receivables Transfer Agreement unless (i) the SPV and the Administrative Agent have received written notice of such addition at least thirty (30) days prior thereto, (ii) the SPV and the Administrative Agent (acting on the instructions of the Majority Purchasers) have consented to each new Account Bank (in each case, where applicable, and provided that such consent or instructions are not unreasonably withheld or delayed), (iii) the Security Trustee has received a duly executed Account Agreement with respect to each new Account, where applicable, and (iv) the Administrative Agent and each Purchaser Agent have received an updated Schedule 3 (Accounts) to the Receivables Transfer Agreement along with a certification from Arrow Germany that all conditions to add such Account and/or Account Bank under the Transaction Documents have been satisfied.

 

Pursuant to Clause 6.1(c) of the Receivables Transfer Agreement, an Early Amortisation Event will occur if any Arrow Party shall fail to perform or observe any term, covenant, agreement or other term contained in (i) any Specified Covenant Clause, or (ii) any Transaction Document (other than as addressed in Clauses 6.1(a) and 6.1(c)(i) (Early Amortisation Events)) and such failure in the case of this Clause 6.1(c)(ii) has continued for twenty (20) days after such Person obtained knowledge or received notice thereof.

 

Each of the SPV, the Administrative Agent, the BNPP Purchaser Agent, the ING Purchaser Agent, the Security Trustee and the Paying Agent agrees and acknowledges that (i) in December 2019, Arrow Germany opened an account in Italy with [*****] (the “Italian Account”) into which Collections have been deposited since August 1, 2020 (the “Initial Breach Date”) and continue to be deposited and for which the amount of Collections in such account for any month did not and will not exceed €1,300,000, and (ii) prior to the end of the Waiver Period, the Italian Account is not a Collection Account or an SPV Account, in each case constituting a failure to comply with one or more of the Subject Covenants and triggering an Early Amortization Event (collectively, the “Specified Breaches”).

 

Pursuant to Clause 12.1 of the Receivables Transfer Agreement, each of the SPV, the Administrative Agent, the Security Trustee, the Paying Agent and each Majority Purchaser party hereto hereby waives, on a limited basis, (i) the occurrence of the Specified Breaches, (ii) any failure to give notice of the Specified Breaches, (iii) any false representation, warranty, certification or statement regarding any Account, Account Bank or the absence of an Early Amortisation Event or Event of Default, solely to the extent that such falsity arose from the Specified Breaches, (iv) any failure of the SPV, any Servicer or any Originator under the Transaction Documents to comply with a covenant or obligation with respect to any Account or Account Bank, solely to the extent that such failure arose from the Specified Breaches and (v) with respect to any Investment, the failure to satisfy any condition pursuant to Clause 4.2 of the Receivables Transfer Agreement, solely to the extent that such failure arose from the Specified Breaches (such events, the “Resulting Events”), in each case, solely to the extent occurring during the period of time from the Initial Breach Date, to and including the earlier of (1) the date that the Security Trustee and Administrative Agent has received a duly executed Account Agreement with respect to the Italian Account in form and substance satisfactory to the Security Trustee and Administrative Agent and (2) December 31, 2022 (the “Waiver Period”).

 

 


 

 

For the avoidance of doubt, the limited waiver granted hereunder shall not apply to any period of time other than the Waiver Period. The waiver set forth in the immediately preceding paragraph is a one-time waiver and is limited to its express terms. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent, the Security Trustee, the Paying Agent, any Purchaser Agent or any Purchaser, nor constitute a waiver of any provision of the Receivables Transfer Agreement or any other Transaction Document or any other documents, instruments and agreements executed and/or delivered in connection therewith except to the limited extent specifically set forth herein. Additionally, nothing contained in this Amendment shall be construed to modify or in any way amend Clause 6.2(f), Clause 6.2(g), Clause 6.2(h) or Clause 6.3(e) of the German RSA or Clause 6.1(c) of the Receivables Transfer Agreement or any other provision of the Receivables Transfer Agreement, the German RSA or any other Transaction Document, other than as expressly set forth in Clause 2 (Amendments to the Agreements).

 

[Signature Pages Follow]

 

 


  

IN WITNESS WHEREOF, this Amendment has been executed as a deed by the parties hereto on the date first above written.

 

  ARROW EMEA FUNDING CORP B.V., as the SPV
   
  By: /s/ Henry Kröner
    Name: Henry Kröner
    Title: proxy holder
   
  Signature of Witness:
   
  Name of Witness:
   
  Address of Witness:
   
  Occupation of Witness:
   
  By: /s/ Kristina Adamovich
    Name: Kristina Adamovich
    Title: proxy holder
   
  Signature of Witness:
   
  Name of Witness:
   
  Address of Witness:
   
  Occupation of Witness: 

 

Omnibus Amendment No. 2

 

 


 

  ARROW CENTRAL EUROPE GMBH, as Originator, Agent Servicer and SPV Servicer
   
  By: /s/ Rajesh Agrawal
    Name: Rajesh Agrawal
    Title: Managing Director
   
  By: /s/ Carine Jean-Claude
    Name: Carine Jean-Claude
    Title: Managing Director

 

Omnibus Amendment No. 2

 

 


 

  ORIGINATOR, AGENT SERVICER, SPV SERVICER
   
  EXECUTED as a deed by   /s/ Rajesh Agrawal, )
  duly authorised for and on behalf )
  of ARROW ELECTRONICS (UK) )
  LIMITED )
    
  EXECUTED as a deed by   /s/ Carine Jean-Claude, )
  duly authorised for and on behalf )
  of ARROW ELECTRONICS (UK) )
  LIMITED )

 

Omnibus Amendment No. 2

 

 


 

  ARROW ELECTRONICS, INC., as the Parent
   
  By: /s/ William Dakin
    Name: William Dakin
    Title: VP and Treasurer
   
  By: /s/ Carine Jean-Claude
    Name: Carine Jean-Claude
    Title: SVP, CLO and Secretary

  

Omnibus Amendment No. 2

 


 

  ARROW ELECTRONICS FC B.V., as the Subordinated Lender
   
  By: /s/ William Dakin
    Name: William Dakin
    Title: Director
   
  By: /s/ Carine Jean-Claude
    Name: Carine Jean-Claude
    Title: Director

 

Omnibus Amendment No. 2

 

 


 

Administrative Agent and Purchaser Agent for the BNPP Purchaser Group

 

Executed as a deed by BNP Paribas, a company incorporated in France, acting by Emilie Astier and Eric Lefol who, in accordance with the laws of that territory, are acting under the authority of that company.

 

Signature in the name of the company:                                 BNP Paribas

 

Signature of __/s/ Emilie Astier___________________: 

 

Signature of _/s/ Eric Lefol____________________:  

 

Omnibus Amendment No. 2

 

 


 

CONDUIT PURCHASER

Given under the common seal of

Matchpoint Finance plc

and delivered as a deed in the presence of:

  

  /s/ Adrian J. Masterson
  Director
    
  Adrian J. Masterson
  Director / Secretary

  

Renata Santos  
Witness Name  
    
4th Floor, 25-28 Adelaide Road, Dublin 2, Ireland  
Witness Address  
   
Accounts Administrator  
Witness Occupation  

 

Omnibus Amendment No. 2

 

 


  

  Purchaser Agent for the ING Purchaser Group
   
  ING BELGIUM S.A./N.V.
   
  By: /s/ Ellen Aelvoet
    Name: Ellen Aelvoet
    Title: Head of WB Belgium

 

  Signature of Witness: /s/ Anton Lauwers    
   
  Name of Witness: Anton Lauwers
   
  Address of Witness:

 

  Occupation of Witness: Associate – Working Capital Solutions
   
  By: /s/ Gordana Hulina
    Name: Gordana Hulina
    Title: CRO ING BELGIUM  

 

Omnibus Amendment No. 2

 

 


 

  MONT BLANC CAPITAL CORP, as a Committed Purchaser and as a Conduit Purchaser
   
  By: /s/ Dennis Strid
    Name: Dennis Strid
    Title: Vice President
   
  By: /s/ Thomas Ryan
    Name: Thomas Ryan
    Title: Managing Director

 

Omnibus Amendment No. 2

 

 


 

  U.S. BANK TRUSTEES LIMITED, as the Security Trustee
   
  By: /s/ James Preuss
    Name: James Preuss
    Title: Authorised Signatory
     
  By: /s/ John Collins
    Name: John Collins
    Title: Authorised Signatory

 

Omnibus Amendment No. 2

 

 


 

  ELAVON FINANCIAL SERVICES DAC, as the Paying Agent
   
  By: /s/ James Preuss
    Name: James Preuss
Title: Authorised Signatory  
     
  By: /s/ John Collins
    Name: John Collins
    Title: Authorised Signatory

 

 


  

ANNEX A

 

MASTER FRAMEWORK AGREEMENT

 

 


 

CONFORMED COPY through

EXECUTION COPY

First Amendment to MFA, dated as of May 27, 2020

Omnibus Deed of Amendment No. 1, dated December 23, 2021

Omnibus Deed of Amendment No. 2, dated September 20, 2022

 

Dated January 27, 2020
 
(1)  ARROW EMEA FUNDING CORP B.V., as SPV
 
(2) BNP PARIBAS, as Administrative Agent, a Committed Purchaser and Purchaser Agent for the BNP Purchaser Group
 
(3) MATCHPOINT FINANCE PLC, as Conduit Purchaser
 
(4) ING BELGIUM S.A./N.V., as Purchaser Agent for the ING Purchaser Group
 
(5)  MONT BLANC CAPITAL CORP, as a Committed Purchaser and as a Conduit Purchaser
 
(6)  ARROW ELECTRONICS (UK) LIMITED, as Agent Servicer, SPV Servicer and Originator
 
(7)  ARROW CENTRAL EUROPE GMBH, as Agent Servicer, SPV Servicer and Originator
 
(8)  ARROW ELECTRONICS, INC., as Parent
 
(9)  ARROW ELECTRONICS FC B.V., as Subordinated Lender
 
(10) U.S. BANK TRUSTEES LIMITED, as Security Trustee and mandatario con rappresentanza pursuant to and for the purposes of Italian law
 
(11) ELAVON FINANCIAL SERVICES DAC, as Paying Agent
 
(12)  CERTAIN OTHER PARTIES FROM TIME TO TIME PARTY TO THE TRANSACTION DOCUMENTS DESCRIBED HEREIN
 
MASTER FRAMEWORK AGREEMENT

 

 


 

CONTENTS

 

Clause Page

 

1. This Master Framework Agreement 2

 

2. Definitions and interpretation 2

 

3. Amendments 61

 

4. Notices and payments 61

 

5. VAT 62

 

6. FATCA 63

 

7. Third Party Rights 65

 

8. Counterparts; Electronic delivery 65

 

9. Governing Law 65

 

10. Jurisdiction 65

 

11. Service of Process 66

 

12. No Proceedings; Limited Recourse 66

 

13. Notification and Acknowledgement of Assignment 67

 

14. Reporting Services Provider Actions 67

  

Schedule 1 Address and Payment Information
Schedule 2 Arrow Fiscal Calendar
Schedule 3 Reference Rate Terms
Schedule 4 Daily Non-Cumulative Compounded RFR Rate
   
Exhibit A Form of Agreed Jurisdiction Request
Exhibit B Excluded Obligors

 

 


 

THIS MASTER FRAMEWORK AGREEMENT (this "Agreement") is dated on January 27, 2020 and made among:

 

(1) ARROW EMEA FUNDING CORP B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands whose registered number is 74299069 and whose registered office is at Basisweg 10, 1043 AP Amsterdam, The Netherlands, as the SPV;

 

(2) BNP PARIBAS, a société anonyme incorporated under the laws of France, as the Administrative Agent, Purchaser Agent for the BNP Purchaser Group and a Committed Purchaser;

 

(3) MATCHPOINT FINANCE PLC, a public limited company incorporated under the laws of Ireland (registered number 386704), whose registered office is at 4th Floor, 25-28 Adelaide Road, Dublin 2, Ireland, as a Conduit Purchaser;

 

(4) ING BELGIUM S.A./N.V., a public limited liability company (société anonyme/naamloze vennootschap) organised under the laws of Belgium, having its principal office at Avenue Marnix 24, 1000 Brussels, Belgium, enterprise number 0403.200.393, as Purchaser Agent for the ING Purchaser Group;

 

(5) MONT BLANC CAPITAL CORP, a corporation organised under the laws of the State of Delaware and having its registered office at 874 Walker Road, Suite C, City of Dover, County of Kent, State of Delaware 19904, United States of America, as a Committed Purchaser and as a Conduit Purchaser;

 

(6) ARROW ELECTRONICS (UK) LIMITED, a limited liability company incorporated under the laws of England and Wales, with company number 02582534 and having its registered office at Kao 1 Kao Park, Hockham Way, Harlow, Essex, CM17 9NA, United Kingdom, as an Agent Servicer, an SPV Servicer and an Originator;

 

(7) ARROW CENTRAL EUROPE GMBH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the laws of Germany, as an Agent Servicer, an SPV Servicer and an Originator;

 

(8) ARROW ELECTRONICS, INC., a corporation organised under the laws of the State of New York, as the Parent;

 

(9) ARROW ELECTRONICS FC B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of The Netherlands whose registered number is 75739879 and whose registered office is at Elzenkade 1, 3992 AD Houten, The Netherlands, as the Subordinated Lender;

 

(10) U.S. BANK TRUSTEES LIMITED, a limited liability company incorporated under the laws of England and Wales and with registration number 02379632, whose registered office is at 125 Old Broad Street, London, EC2N 1AR, United Kingdom, as the Security Trustee and mandatario con rappresentanza pursuant to and for the purposes of Italian law (which shall include such company and all other Persons or companies for the time being acting as Security Trustee under this Agreement);

 

(11) ELAVON FINANCIAL SERVICES DAC, a designated activity company registered in Ireland with the Companies Registration Office, registered number 418442, with its registered office at Building 8, Cherrywood Business Park, Loughlinstown, Dublin 18, D18 W319, Ireland, in its capacity as Paying Agent which term shall where the context permits, include the Paying Agent and any successor paying agent for the time being so appointed under the terms of the Transaction Documents; and

 

(12) Certain other parties from time to time party to the Transaction Documents (as defined below).

 

1 


 

IT IS AGREED that:

 

1. THIS MASTER FRAMEWORK AGREEMENT

 

1.1 Status of this Agreement

 

This Master Framework Agreement (this "Agreement") dated January 27, 2020, is entered into by and among the parties whose signatures appear on the signature pages hereto and certain other parties that become party to one or more Transaction Documents from time to time after the Closing Date.

 

1.2 Application of definitions

 

Capitalised terms used in each of the Transaction Documents (as defined herein) shall, unless otherwise defined therein or where the context requires a different meaning, have the meanings provided in this Agreement.

 

2. DEFINITIONS AND INTERPRETATION

 

2.1 Defined terms

 

To the extent set out in Clause 1.2 (Application of definitions), the following terms used in the Transaction Documents have the following meanings:

 

"Account" means the SPV Accounts and the Collection Accounts.

 

"Account Agreements" means the SPV Account Agreements and the Collection Account Agreements, collectively.

 

"Account Banks" means the SPV Account Banks and the Collection Account Banks.

 

"Account Redirection Date" means the date designated by the Administrative Agent by notice to the SPV, the Servicers and the Parent at any time (a) following the occurrence of an Event of Default or Early Amortisation Event or (b) the Parent has a Public Debt Rating from at least two Rating Agencies of (i) "BB-" or below from S&P, (ii) "BB-" or below from Fitch and/or (iii) "Ba3" or below from Moody's (or such other rating as the Administrative Agent, the Majority Purchasers and the Parent may agree in writing); provided that, for purposes of clause (b) above (x) if at any time only one Rating Agency has issued a Public Debt Rating for the Parent, then such Public Debt Rating alone shall be used to determine if an Account Redirection Date has occurred pursuant to clause (b) above, and (y) if at any time Parent does not have a Public Debt Rating, then Parent shall be deemed to have a Public Debt Rating of (i) "BB-" or below from S&P, (ii) "BB-" or below from Fitch and (iii) "Ba3" or below from Moody's.

 

2 


 

"Accountants' Letter" is defined in Clause 6.1(b)(vi) (Annual agreed upon procedures audit) of the Servicing Deed.

 

"Adjusted Term SOFR" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Administrative Agent" means BNP Paribas, in its capacity as administrative agent for the Purchasers, and any successor to it in that capacity appointed pursuant to Clause 8 (The Administrative Agent, Purchaser Agents and Paying Agent) of the Receivables Transfer Agreement.

 

"Administrative Agent-Related Persons" means the Administrative Agent, together with its Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Persons and their respective Affiliates.

 

"Administrative Agent Fee Letter" means each fee letter agreement, dated on or after the Closing Date, between the Parent and the Administrative Agent.

 

"Adverse Claim" means a mortgage, charge, pledge, lien or other security interest, any agreement or arrangement having a similar effect and any other encumbrance or right in, of or on any Person's assets in favour of any other Person; provided, however, that a subordinated lien on one or more Collection Accounts in favor of ING Bank N.V. (or its Affiliates) to secure an Originator's obligations with respect to certain cash pooling arrangements between ING Bank N.V. (or its Affiliates) and one or more Arrow Parties shall not constitute an Adverse Claim under the Transaction Documents for any purpose so long as such arrangement is subject to subordination provisions in form and substance satisfactory to the Administrative Agent in its sole discretion.

 

"Affected Financial Institution" means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

"Affiliate" means, as to any Person, any other Person which, directly or indirectly, owns, is in control of, is controlled by, or is under common control with, such Person, in each case whether legally or beneficially. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the other Person, whether through the ownership of voting shares or membership interests, by contract, or otherwise.

 

"Agent Entity" is defined in Clause 8.11 (Erroneous Payments) of the Receivables Transfer Agreement.

 

"Agent Servicer" means, initially, the English Agent Servicer and the German Agent Servicer, as applicable, and any other Person as may from time to time be appointed as an Agent Servicer pursuant to Clause 2.1(a) (Appointment of Agent Servicers) of the Servicing Deed.

 

"Agent Servicing Fee" means an amount in the Base Currency equal to either (a) at any time when each Agent Servicer is an Arrow Party or an Affiliate thereof, the actual cost of servicing the Sold Receivables plus an amount consistent with industry standards determined by the Agent Servicers and approved by the Administrative Agent in its reasonable discretion, such additional amount to be reviewed and updated from time to time, or (b) at any time when any Agent Servicer is not an Arrow Party or an Affiliate thereof, the amount determined by agreement between such Person and the Administrative Agent, in either case, payable in arrears on each Settlement Date from Collections pursuant to, and subject to the Priority of Payments set out in, the Servicing Deed.

 

3 


 

"Agreed Jurisdiction Request" means a request by an Agent Servicer, on behalf of the SPV, to add an additional jurisdiction as an Agreed Obligor Jurisdiction or an Agreed Receivable Jurisdiction, as applicable, substantially in the form of Exhibit A.

 

"Agreed Obligor Jurisdiction" means Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, the United Kingdom, solely with respect to the German Originator, Switzerland, and each additional Agreed Obligor Jurisdiction with respect to Arrow Germany or Arrow UK agreed to in writing from time to time by the Administrative Agent and each Purchaser Agent pursuant to an Agreed Jurisdiction Request; provided that, (i) with respect to Romania, a legal memorandum from local counsel in Romania has been received by and addressed to the Administrative Agent and each Purchaser Agent with respect to true sale, tax, choice-of-law, perfection and enforcement matters in such jurisdiction, (ii) upon the occurrence of a Level II Rating Event, a legal memorandum or opinion (as determined by the Administrative Agent acting on behalf of each Purchaser Agent) from local counsel in each such Agreed Obligor Jurisdiction has been received by and addressed to the Administrative Agent and each Purchaser Agent with respect to true sale, tax, choice-of-law, perfection and enforcement matters in such jurisdiction; provided, however, if no such memorandum or opinion is given or if such memorandum or opinion does not provide a favorable opinion with respect to true sale, tax, choice-of-law, perfection and enforcement matters or otherwise, each in the reasonable opinion of the Administrative Agent and each Purchaser Agent, then the related jurisdiction shall no longer be deemed an Agreed Obligor Jurisdiction until such a favorable memorandum or opinion in form and substance satisfactory to the Administrative Agent and each Purchaser Agent is received by the Administrative Agent and each Purchaser Agent, and (iii) any other information that has been reasonably requested by the Administrative Agent or any Purchaser Agent has been provided to the Administrative Agent and each Purchaser Agent, in each case of clauses (i), (ii) and (iii) above, in form and substance reasonably satisfactory to the Administrative Agent and each Purchaser Agent.

 

"Agreed Receivable Jurisdiction" means (a) with respect to the German Originator, Austria, Belgium, Germany, The Netherlands, Switzerland, the United States and each additional Agreed Receivable Jurisdiction with respect to Arrow Germany agreed to in writing from time to time by the Administrative Agent and each Purchaser Agent pursuant to an Agreed Jurisdiction Request and (b) with respect the English Originator, England and the United States and each additional Agreed Receivable Jurisdiction with respect to Arrow UK agreed to in writing from time to time by the Administrative Agent and each Purchaser Agent pursuant to an Agreed Jurisdiction Request; provided that, in each case of clauses (a) and (b) above (i) a legal opinion or opinions from local counsel in each such Agreed Receivable Jurisdiction have been received by and addressed to the Administrative Agent and each Purchaser Agent with respect to true sale, tax, choice-of-law and perfection matters in such jurisdiction and (ii) any other information that has been reasonably requested by the Administrative Agent or any Purchaser Agent has been provided to the Administrative Agent and each Purchaser Agent, in each case of clauses (i) and (ii) above, in form and substance reasonably satisfactory to the Administrative Agent and each Purchaser Agent.

 

"Aggregate 3rd Party Annual Fees" means, at any time, the sum of:

 

(a)       the Corporate Services Provider Annual Fee, plus

 

(b)       the Reporting Services Provider Annual Fee, plus

 

(c)       the Security Trustee Annual Fee, plus

 

(d)       the SPV Account Bank Annual Fee, plus

 

(e)       the Paying Agent Annual Fee.

 

4 


 

"Aggregate Invested Amount" means the Base Currency Equivalent of the aggregate outstanding Invested Amounts in respect of the Investments.

 

"Aggregate Unpaids" means, at any time, an amount equal to the sum of (a) the Base Currency Equivalent of the aggregate unpaid Yield accrued, and to accrue with respect to all then current Rate Periods, at such time, (b) the Aggregate Invested Amount at such time and (c) the Base Currency Equivalent of any and all present and future obligations and liabilities (whether actual or contingent and whether owed jointly or severally or in any other capacity whatsoever) hereunder and under the other Transaction Documents from Collections and/or by the SPV and/or any Arrow Party to the Administrative Agent, the Purchaser Agents, the Purchasers, the Security Trustee or the other Secured Parties under and in connection with the Receivables Transfer Agreement and the other Transaction Documents, of whatever nature and whenever arising.

 

"Agreement" is defined in Clause 1.1 (Status of this Agreement).

 

"Alternate Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Anti-Corruption Laws" means, with respect to any Person, all Laws of any jurisdiction applicable to such Person concerning or relating to bribery, money laundering or corruption, including the U.K. Bribery Act 2010, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and any applicable Law implemented by the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

"Applicable Exchange Rate" means, at any time in relation to any amount denominated in a currency and any other currency, (i) the currency exchange rate specified in any hedging contract related to the Transaction Documents, to the extent applicable, or (ii) otherwise, the rate determined by the Administrative Agent or the applicable Agent Servicer, as applicable, as the currency exchange rate at which such amount could be converted into such other currency under a spot foreign exchange contract in the applicable currency exchange market.

 

"Applicable Currency Benchmark Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Applicable Margin" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Arrow" means Arrow Electronics, Inc., a company incorporated under the laws of the State of New York.

 

5 


 

 

"Arrow Documents" is defined in Clause 2.1(a) (Undertakings to cause performance or perform) of the Parent Undertaking Agreement.

 

"Arrow Germany" means Arrow Central Europe GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Germany.

 

"Arrow Obligations" is defined in Clause 2.1(a) (Undertakings to cause performance or perform) of the Parent Undertaking Agreement.

 

"Arrow Party" means each Originator, each Agent Servicer, each SPV Servicer, the Parent, the Subordinated Lender and each Affiliate of any of them from time to time party to a Transaction Document.

 

"Arrow UK" means Arrow Electronics (UK) Limited, a limited liability company incorporated under the laws of England and Wales, with company number 02582534 and having its registered office at Kao 1 Kao Park, Hockham Way, Harlow, CM17 9NA, Essex United Kingdom.

 

"Asset Interest" means the rights of the Purchasers in and to the Portfolio and the SPV Collateral.

 

"Assignable Interest" is defined in Clause 16 (Assignment of Rights in the Portfolio and Receivables) of the Receivables Transfer Agreement.

 

"Assignment and Assumption Agreement" means an Assignment and Assumption Agreement substantially in the form of Exhibit A (Form of Assignment, Novation and Assumption Agreement) to the Receivables Transfer Agreement.

 

"Austrian Receivable" means a Receivable governed by Austrian law that is originated by Arrow Germany in its capacity as Originator and sold to the SPV under the German Sale Agreement.

 

"Backup Servicer" is defined in Clause 2.9 (Backup Servicer) of the Servicing Deed.

 

"Backup Servicing Agreement" means an agreement entered into pursuant to Clause 2.9 (Backup Servicer) of the Servicing Deed on or after the occurrence of a Level I Rating Event, in form and substance satisfactory to the Administrative Agent, among the SPV, each Originator, the Administrative Agent, the Security Trustee, the Paying Agent and the Backup Servicer, governing the roles and responsibilities to be provided by the Backup Servicer.

 

"Backup Servicing Fee" means, following the appointment of a Backup Servicer in accordance with Clause 2.9 (Backup Servicer) of the Servicing Deed, any fees payable to such Backup Servicer under the applicable Backup Servicing Agreement in the Base Currency.

 

"Bail-In Action" means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

"Bail-In Legislation" means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

6 


 

"Base Currency" means Euro.

 

"Base Currency Equivalent" means, (a) with respect to any amount denominated in the Base Currency, such amount, and (b) with respect to any amount denominated in a currency other than the Base Currency, the equivalent amount in the Base Currency determined by the Administrative Agent or the applicable Servicer, as applicable, on the basis of the Applicable Exchange Rate.

 

"Base Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Belgian Receivable" means a Receivable governed by Belgian law that is originated by Arrow Germany in its capacity as Originator and sold to the SPV under the German Sale Agreement.

 

"Beneficial Ownership Certification" means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.

 

"Beneficial Ownership Regulation" means 31 C.F.R. § 1010.230.

 

"Business Day" means a day on which commercial banks and foreign exchange markets settle payments in New York, New York, Brussels, Belgium, London, England, Paris, France, Frankfurt, Germany, Amsterdam, the Netherlands, Luxemburg City, Luxemburg, and Dublin, Ireland; provided that, (x) in relation to any sum payable in Euro, a “Business Day” shall be a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET2) System is open, (y) in relation to any sum payable in Dollars, a “Business Day” shall be a day on which members of the Securities Industry and Financial Markets Association that are fixed income departments are open for the entire day for purposes of trading in United States government securities, and (z) in relation to any sum payable in Pounds, a “Business Day” shall be any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London, England.

 

"Capitalised Lease" of a Person means any lease of assets by such Person as lessee which would be capitalised on a balance sheet of such Person prepared in accordance with GAAP.

 

"Change of Control" means, with respect to:

 

(a) any Arrow Party (other than the Parent), the failure of the Parent to own, directly or indirectly, free and clear of any Adverse Claim and on a fully diluted basis, one hundred percent (100%) of the outstanding Equity Interests of such Arrow Party; or

 

(b) the Parent:

 

 

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(i) less than a majority of the members of the Parent's board of directors shall be Persons who either (x) were serving as directors on the Closing Date or (y) were nominated as directors and/or approved by the vote of the majority of the directors who are directors referred to in clause (x) above or this clause (y), or (ii) a Person or group of Persons acting in concert (other than the direct or indirect beneficial owners of the Equity Interests of the Parent 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) of securities of the Parent 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 Parent.

 

"Closing Date" means January 27, 2020.

 

"Collection Account" means any account, at an Eligible Account Bank, described in Schedule 3 (Accounts) to the Receivables Transfer Agreement under the heading "Collection Account" and any account added as a Collection Account in accordance with the Transaction Documents.

 

"Collection Account Agreements" means, collectively, the English Declaration of Trust (English Collection Accounts), the English Declaration of Trust (German Collection Accounts), the Dutch Account Pledge Agreement (German Collection Accounts), the Dutch Account Pledge Agreement (German and English Collection Accounts), the Irish Declaration of Trust, the German Account Pledge Agreement, the Polish Account Pledge Agreement and the Italian Account Pledge Agreement, and each other control or other security agreement or arrangement, in form and substance reasonably satisfactory to the Administrative Agent and the Security Trustee and as may be appropriate under the laws of any relevant jurisdiction, with respect to a Collection Account.

 

"Collection Account Bank" means any Eligible Account Bank listed in Schedule 3 (Accounts) to the Receivables Transfer Agreement and any other Eligible Account Bank added as a Collection Account Bank in accordance with the Transaction Documents.

 

"Collections" means, with respect to any Receivable, all cash collections and other cash proceeds of such Receivable, including (i) all finance or similar charges, if any, (ii) any cash proceeds of Related Rights with respect to such Receivable, (iii) any Deemed Collections received pursuant to the Transaction Documents, and (iv) all amounts received in respect of such Receivable on account of any Credit Insurance Policy.

 

"Commercial Paper" means the promissory notes issued or to be issued by any Conduit Purchaser in the commercial paper market.

 

"Commitment" means, with respect to each Committed Purchaser, as the context requires, (a) the commitment of such Committed Purchaser to make Investments in accordance with the Receivables Transfer Agreement in an amount not exceeding the amount described in the following paragraph (b), and (b) an amount equal to (i) the amount set out opposite such Committed Purchaser's name in Schedule 1 (Purchaser Groups and Commitments) to the Receivables Transfer Agreement under the heading "Commitment and Purchaser Group Limit" (or in the case of a Committed Purchaser which becomes a party to the Receivables Transfer Agreement pursuant to an Assignment and Assumption Agreement, as set out in such Assignment and Assumption Agreement), plus (ii) the amount of any increase to such Committed Purchaser's Commitment consented to by such Committed Purchaser, minus (iii) the amount of any Commitment or portion thereof assigned by such Committed Purchaser pursuant to an Assignment and Assumption Agreement, minus (iv) upon any reduction of the Facility Limit, an amount equal to the product of (A) the amount of such reduction of the Facility Limit, times (B) a fraction the numerator of which is the Commitment of such Committed Purchaser and the denominator of which is the Facility Limit in each case before giving effect to such reduction.

 

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"Commitment Termination Date" means December 15, 2025, or such later date to which the Commitment Termination Date may be extended by the SPV (or the Servicers on its behalf), the Administrative Agent and any or all of the Committed Purchasers (in their sole discretion). Each Purchaser Agent shall use commercially reasonable efforts to notify the SPV (or the Servicers on its behalf) within ninety (90) days of any Commitment Termination Date (but in any event no later than sixty (60) days prior to any Commitment Termination Date) if the Committed Purchasers in its Purchaser Group intend to renew their Commitments. For the avoidance of doubt and notwithstanding anything in any Transaction Document to the contrary, no Committed Purchaser shall have any obligation to renew its Commitment.

 

"Committed Purchasers" means each of the financial institutions identified as such in Schedule 1 (Purchaser Groups and Commitments) to the Receivables Transfer Agreement and any other financial institution that has become a party to the Receivables Transfer Agreement pursuant to Clause 17 (Successors and assigns; binding effect) of the Receivables Transfer Agreement, but excluding any such financial institution that is no longer a party to the Receivables Transfer Agreement as provided in Clause 17 (Successors and assigns; binding effect) of the Receivables Transfer Agreement.

 

"Committed Purchaser's Purchaser Group Pro Rata Share" means, with respect to a Committed Purchaser at any time, the Commitment of such Committed Purchaser at that time, divided by the sum of the Commitments of all Committed Purchasers in such Committed Purchaser's Purchaser Group at that time.

 

"Compounded Reference Rate" means, in relation to any RFR Banking Day, the percentage rate per annum which is the aggregate of:

 

(a) the Daily Non-Cumulative Compounded RFR for that RFR Banking Day; and

 

(b) the applicable Credit Adjustment Spread.

 

"Conduit Purchaser" means any commercial paper conduit that is designated as a Conduit Purchaser on the signature pages to the Receivables Transfer Agreement and any other commercial paper conduit that has become a party to the Receivables Transfer Agreement as a "Conduit Purchaser" pursuant to Clause 17 (Successors and assigns; binding effect) of the Receivables Transfer Agreement, but excluding any such commercial paper conduit that is no longer a party to the Receivables Transfer Agreement as provided in Clause 17 (Successors and assigns; binding effect) of the Receivables Transfer Agreement.

 

"Conduit Purchaser Fee" means [*****]%.

 

"Contract" means, with respect to any Receivable, any and all contracts, instruments, agreements, leases, invoices, purchase orders and related documents, notes, or other written documentation pursuant to which such Receivable arises or which evidence such Receivable or under which an Obligor becomes or is obligated to make payment in respect of such Receivable.

 

"Contractual Dilution" means, with respect to any Receivable, any reduction, cancellation or adjustment in the Unpaid Balance of such Receivable as a result of a contractual arrangement between the applicable Originator and the applicable Obligor including, discounts, volume rebates or volume discounts, in each case arising pursuant to the Contract related to such Receivable; it being understood that in the event an Originator is not able to identify such reduction, cancellation or adjustment as a Contractual Dilution, such reduction, cancellation or adjustment will be treated as Non-Contractual Dilution.

 

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"Contractual Dilution Ratio" means, as at any Month End Date, the ratio (expressed as a percentage) computed by dividing

 

(a)            the Base Currency Equivalent of the aggregate amount of Contractual Dilutions issued with respect to Eligible Receivables which arose during the 12 Monthly Calculation Periods preceding such Month End Date, by

 

(b)            the Base Currency Equivalent of the aggregate initial Unpaid Balance of Eligible Receivables which arose during the 12 Monthly Calculation Periods preceding such Month End Date.

 

"Corporate Services Provider" means Intertrust Management B.V.

 

"Corporate Services Provider Annual Fee" means the fee payable in accordance with the Corporate Services Provider Fee Letter and as of the Closing Date the Corporate Services Provider Annual Fee is [*****].

 

"Corporate Services Provider Fee Letter" means that certain letter dated February 25, 2019, between the Corporate Services Provider and Arrow.

 

"Coverage Test" means a test that is satisfied if, on any date of determination, the Net Eligible Receivables Balance exceeds the sum of the Aggregate Invested Amount and the Required Reserves.

 

"CP Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Credit and Collection Policy" means, with respect to any Originator, the credit and collection policy or policies and practices of such Originator relating to the Receivables and the Contracts, as in effect on (a) the Closing Date and attached as Schedule 2 (Credit and Collection Policies) to the Receivables Transfer Agreement or (b) with respect to any Person who becomes an Originator after the Closing Date, the Initial Effective Date in respect of such Person, in each case, as modified from time to time pursuant to notice to the Administrative Agent in a manner not in violation of the Transaction Documents.

 

"Credit Insurance Policy" means a credit insurance policy naming the Administrative Agent, any Purchasers and/or the SPV as insured, which policy insures the payment of certain Receivables owing by one or more Obligors.

 

"Credit Insurance Provider" means each insurance company that provides a Credit Insurance Policy to the SPV.

 

"Credit Adjustment Spread" means any rate which is specified as such in the Reference Rate Terms.

 

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"Cumulative Sales Over the Loss Horizon" means, as at any Month End Date, the amount equal to the result of the following formula:

 

(A + B) x (C – D)

 

where:

 

A = the Base Currency Equivalent of the aggregate initial Unpaid Balance of the Eligible Receivables that came into existence during the previous "D" number of Monthly Calculation Periods preceding such Month End Date;

 

B = the Base Currency Equivalent of the aggregate initial Unpaid Balance of the Eligible Receivables that came into existence during the "D+1" previous Monthly Calculation Period preceding such Month End Date;

 

C = the Loss Horizon; and

 

D = the Loss Horizon rounded downward to the next whole number.

 

"Currency" means Dollars, Pounds and Euro or any other currency agreed by each Purchaser, the SPV and the Servicers.

 

"Customer Information" means, with respect to any Obligor, the Obligor's Contract(s) and any non-public information with respect to such Obligor that has been delivered by any Arrow Party to the Administrative Agent, any Purchaser or any other Secured Party pursuant to, or in connection with, the Transaction Documents or the transactions contemplated thereby, including any information with respect to the goods or services provided by any Arrow Party to such Obligor, the amount of Receivables owing by such Obligor and the contact details of such Obligor.

 

"Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day, the percentage rate per annum determined by the Reporting Services Provider in accordance with the methodology set out in Schedule 4 (Daily Non-Cumulative Compounded RFR Rate).

 

"Daily Term SOFR Determination Date" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Data Protection Law" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (repealing Directive 95/46/EC (General Data Protection Regulation)), including as it forms part of English law pursuant to the EUWA, the German Data Protection Act (Bundesdatenschutzgesetz) or any other applicable Law relating to data protection or privacy.

 

"Days Sales Outstanding" or "DSO" means, as at any Month End Date, a number of days equal to the product of (a) thirty (30) and (b) the sum of:

 

(i) the number "X", rounded downward, if necessary, to the nearest whole number, where X is a number such that each of the following statements is true:

 

(A) the Base Currency Equivalent of the aggregate initial Unpaid Balance of the Eligible Receivables that came into existence during the previous "X" number of Monthly Calculation Periods preceding such Month End Date is less than the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables as at such Month End Date; and

 

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(B) the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables that came into existence during the previous "X+1" number of Monthly Calculation Periods preceding such Month End Date is greater than the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables as at such Month End Date; plus

 

(ii) the positive value, equal to:

 

(A) the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables as at such Month End Date minus the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables that came into existence during the previous "X" number of Monthly Calculation Periods preceding such Month End Date; divided by

 

(B) the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables that came into existence during the previous "X+1" Monthly Calculation Periods preceding such Month End Date.

 

"Deemed Collections" means any Collections on any Receivable deemed to have been received by the applicable Agent Servicer pursuant to the Servicing Deed, by any Originator pursuant to any Sale Agreement or by the SPV pursuant to the Receivables Transfer Agreement.

 

"Default Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Default Ratio" means, as at any Month End Date, the quotient (expressed as a percentage), calculated as:

 

(a) the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables which became Defaulted Receivables during the Monthly Calculation Period ending on such Month End Date, divided by

 

(b) the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables issued during the fifth (5th) Monthly Calculation Period immediately preceding the Monthly Calculation Period ending on such Month End Date.

 

"Defaulted Receivable" means, without duplication, any Receivable (a) as to which any payment, or part thereof, remains unpaid for ninety-one (91) days or more after the original due date of such Receivable; (b) as to which an Event of Insolvency has occurred with respect to the Obligor thereof; (c) which has been declared or identified by the SPV, any Originator or any Servicer as uncollectible or irrecoverable; (d) in respect of which legal proceedings have been initiated for its recovery; (e) which, consistent with the applicable Originator's Credit and Collection Policy, should be written off as uncollectible; or (f) that is a Delinquent Receivable that (i) has its terms extended, materially amended or otherwise modified pursuant to Clause 6.2(a) (No extension or amendment of Receivables) of the Servicing Deed, Clause 5.2(b) (No extension or amendment of Receivables) of the Receivables Transfer Agreement, Clause 6.3(b) (No extension or amendment of Receivables) of the German Sale Agreement, or Clause 6.3(b) (No extension or amendment of Receivables) of the English Sale Agreement or (ii) is evidenced by a negotiable instrument pursuant to Clause 6.2(f) (Instruments) of the Servicing Deed, Clause 5.2(k) (Negotiable instruments) of the Receivables Transfer Agreement, Clause 6.3(g) (Negotiable instruments) of the German Sale Agreement, or Clause 6.3(g) (Negotiable instruments) of the English Sale Agreement "Defaulting Purchaser" means any Committed Purchaser that has failed to fund all or any portion of the Investments required to be funded by it hereunder within two (2) Business Days of the date such Investment was required to be funded hereunder unless such Purchaser notifies the Administrative Agent and the SPV in writing that such failure is the result of such Purchaser's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied.

 

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Any determination by the Administrative Agent that a Purchaser is a Defaulting Purchaser, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Purchaser shall be deemed to be a Defaulting Purchaser upon delivery of written notice of such determination to the SPV and each other Purchaser. No Purchaser that is also acting in the capacity as Administrative Agent hereunder or that is an affiliate of the Administrative Agent may be designated as a Defaulting Purchaser.

 

"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Trustee.

 

"Delinquency Ratio" means, as at any Month End Date, the quotient (expressed as a percentage), calculated as:

 

(a) the Base Currency Equivalent of the aggregate Unpaid Balance of all Delinquent Receivables as at such Month End Date, divided by

 

(b) the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables issued during the fourth (4th) Monthly Calculation Period immediately preceding the Monthly Calculation Period ending on such Month End Date.

 

"Delinquent Receivable" means any Receivable (a) as to which any payment, or part thereof, remains unpaid for sixty-one (61) days or more after the original due date of such Receivable, and (b) which is not a Defaulted Receivable.

 

"Designated Office" means, with respect to any Purchaser, the office of such Purchaser specified as its "Designated Office" under its name on Schedule 1 (Purchaser Groups and Commitments) to the Receivables Transfer Agreement or as specified in the Assignment and Assumption Agreement pursuant to which such Purchaser became a party to the Receivables Transfer Agreement or, in either case, such other office of such Purchaser as such Purchaser may specify from time to time to the SPV and the Servicers.

 

"Dilution" means Contractual Dilution or Non-Contractual Dilution.

 

"Dilution Horizon Ratio" means, as at any Month End Date, the quotient (expressed as a percentage) calculated as:

 

(a) the sum of (i) the Base Currency Equivalent of the aggregate initial Unpaid Balance of all Eligible Receivables which arose during the Monthly Calculation Period ending on such Month End Date plus (ii) the initial Unpaid Balance of all Eligible Receivables which arose during the Monthly Calculation Period immediately preceding the current Monthly Calculation Period multiplied by fifty percent (50.0%), divided by

 

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(b) the Net Eligible Receivables Balance as at such Month End Date;

 

provided that the applicable period set forth in clause (a) above may be adjusted annually by the Administrative Agent with the consent of the Specified Purchasers by written notice to the Servicer at least ten (10) Business Days prior to the effectiveness of such adjustment, which adjustment may take into account the dilution testing results from the most recently delivered Accountants' Letter.

 

"Dilution Ratio" means, as at any Month End Date, the ratio (expressed as a percentage) computed by dividing

 

(a) the Base Currency Equivalent of the aggregate amount of Dilutions issued with respect to Eligible Receivables which arose during the Monthly Calculation Period ending on such Month End Date, by

 

(b) the Base Currency Equivalent of the aggregate initial Unpaid Balance of Eligible Receivables which arose during the Monthly Calculation Period ending on the immediately preceding Month End Date.

 

"Dilution Reserve Floor" means [*****].

 

"Dilution Spike" means, as at any Month End Date, the highest of the Non-Contractual Dilution Ratios for the twelve (12) Month End Dates immediately preceding (and including) such Month End Date.

 

"Discount" has the meaning given to it in the applicable Sale Agreement.

 

"Dollar", "US$" or "$" means the lawful currency of the United States.

 

"Dutch Account Pledge Agreement (German Collection Accounts)" means that certain Dutch account security agreement, dated on or around the Closing Date, among the German Originator and the Security Trustee.

 

"Dutch Account Pledge Agreement (German and English Collection Accounts)" means that certain Dutch account security agreement, dated on or around December 23, 2021, among the German Originator, the English Originator and the Security Trustee.

 

"Dutch Account Pledge Agreement (SPV Accounts)" means that certain Dutch account security agreement, dated on or around the Closing Date, among the Dutch SPV and the Security Trustee.

 

"Dutch Receivable" means a Receivable governed by Dutch law that is originated by Arrow Germany in its capacity as Originator and sold to the SPV under the German Sale Agreement.

 

"Dynamic Loss Reserve Percentage" means, as at any Month End Date, the product (expressed as a percentage) of:

 

(a) the Relevant Stress Factor; multiplied by

 

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(b) the Loss Horizon Ratio as of such date; multiplied by

 

(c) the maximum over the twelve (12) Month End Dates immediately preceding (and including) such Month End Date of the three (3) month rolling average of the Default Ratio.

 

"Early Amortisation Event" has the meaning given to it in Clause 6.1 (Early Amortisation Events) of the Receivables Transfer Agreement.

 

"EEA Financial Institution" means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) and (b) of this definition and is subject to consolidated supervision with its parent.

 

"EEA Member Country" means any of the member states of the European Union, Iceland, Liechtenstein and Norway.

 

"EEA Resolution Authority" means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

"Effective Date" means December 23, 2021.

 

"Eligible Account Bank" means any depository institution with a short-term unsecured debt rating of at least P-1 from Moody's, F1 from Fitch and at least A-1 from S&P.

 

"Eligible Investments" means any demand or time deposits or certificates of deposit or bearer securities or commercial paper rated at least A-1 by S&P, F1 from Fitch and P-1 by Moody's which mature prior to the date and time for any payments to be made on the Investments and which are held with or issued by any Person whose short term unsecured and unsubordinated debt obligations are rated at least A-1 by S&P, F1 from Fitch and P-1 by Moody's.

 

"Eligible Obligor" means, at any time, an Obligor which:

 

(a) is (i) a customer of an Originator, (ii) resident in an Agreed Obligor Jurisdiction, (iii) granted credit in accordance with such Originator's Credit and Collection Policies and (iv) billed by such Originator on a regular basis;

 

(b) at the time of the sale of the relevant Receivable to the SPV by the applicable Originator pursuant to the applicable Sale Agreement, is not insolvent;

 

(c) is not an Arrow Party or any Affiliate of any Arrow Party;

 

(d) is not an individual and does not have the benefit of any applicable consumer credit legislation;

 

(e) is not an Official Body;

 

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(f) is not a supplier to an Originator unless such supplier has been identified by the related Originator in a written notice delivered to the Administrative Agent prior to the Closing Date;

 

(g) is not a Person as to which the funding of such Receivables of such Obligor by any Purchaser, the Administrative Agent or any Program Support Provider would be restricted or prohibited under applicable Law;

 

(h) is resident in (i) a country that has fully adopted Regulation (EC) No 593/2008 of 17 June 2008 or (ii) solely with respect to a German Receivable, Switzerland; and

 

(i) to the extent such Obligor is externally rated by a rating agency, it is not, to the best of the relevant Originator’s knowledge, rated B+ or below (or its equivalent) by such rating agency, provided that:

 

(i) the relevant Originator need only take into account information obtained: (A) from such Obligor at the time of origination of the relevant Receivables, (B) in the course of its servicing procedures, (C) in the course of its own risk-management procedures, and/or (D) any such information notified to it by a third party; and

 

(ii) the relevant Originator will not be required to perform any checks or conduct any further investigation in relation to any information obtained in accordance with paragraph (i) immediately above for the purposes of assessing whether the relevant Obligor complies with the rating criteria of the relevant rating agency as set out in this paragraph (i)

 

"Eligible Receivable" means, at any time, any Receivable:

 

(a) the Obligor of which is an Eligible Obligor;

 

(b) which is a non-interest bearing trade receivable (i) evidenced by an invoice sufficiently detailed to identify the relevant Obligor and the relevant amount owed by such Obligor, and (ii) originated by the applicable Originator in the ordinary course of its business;

 

(c) with respect to which the applicable Originator has performed all obligations required to be performed by it thereunder, including, if applicable, shipment of any goods or merchandise or performance of any services purchased thereunder;

 

(d) which has been billed to the relevant Obligor and is due and payable by such Obligor;

 

(e) which is required to be paid in full on or before 120 days (or such other number of days as may be agreed by the Administrative Agent, the Majority Purchasers and the Parent), in each case, after the original billing date therefor;

 

(f) which was originated in all material respects in accordance with, and otherwise satisfies, all applicable requirements of the applicable Credit and Collection Policy;

 

(g) arising under a Contract which (i) was executed after 17 December 2009, save in the case of a Contract entered into with a Swiss Obligor, or (ii) was executed prior to 17 December 2009 which relates to an Obligor located in an Agreed Obligor Jurisdiction where such jurisdiction has implemented the Rome Convention into local domestic law at the date of execution of the Contract;

 

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(h) the Obligor of which has been directed, in the invoice related to such Receivable or otherwise, to make all payments:

 

(i) prior to the Account Redirection Date, to a Collection Account or an SPV Account; or

 

(ii) on and after the Account Redirection Date, to an SPV Account;

 

(i) which under any related Contract and applicable Law is assignable, or, in relation to English Receivables, assignable or capable of being the subject of a declaration of trust, without the consent of or notice to the related Obligor other than such consents as have been obtained and notices that have been given; provided that so long as no Level I Rating Event exists and solely with respect to German Receivables governed by German law, no such consent shall be required for Contracts that contain a restriction on assignment of such Contract;

 

(j) which, together with any related Contract, (i) is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor enforceable against such Obligor in accordance with its terms with full recourse to such Obligor and (ii) has not been paid nor discharged by set-off or otherwise and is not subject to any proceedings, dispute, set-off, counterclaim or other defence of an Obligor subject to (x) applicable Insolvency Laws and (y) general equitable principles (whether enforceability of such principles is considered in a proceeding at law or in equity);

 

(k) which is denominated and payable in a Currency or any other currency agreed to in writing by the Administrative Agent and each Purchaser Agent;

 

(l) which has not been compromised, adjusted or modified (including by the extension of time for payment or the granting of any discounts, allowances or credits), except as expressly permitted by the Receivables Transfer Agreement and the other Transaction Documents;

 

(m) which is a right to payment of a monetary obligation for (i) assets that have been sold, assigned or otherwise transferred, or (ii) services rendered, in each case, by the applicable Originator to an Obligor, and which is not evidenced by an instrument, note, agreement or other writing the delivery or endorsement of which is necessary to transfer or otherwise perfect an ownership interest in such Receivable;

 

(n) which, together with any Contract related thereto, does not contravene any Laws applicable thereto (including Laws relating to consumer protection, unfair contract terms, consumer credit, fair debt collection practices and privacy) and with respect to which no part of the Contract related thereto is in violation of any such Law;

 

(o) the assignment or other disposal of which (directly and indirectly) to the SPV does not violate, conflict or contravene any applicable Law or any contractual or other restriction, limitation or encumbrance other than such contractual or other restriction, limitation or encumbrance that has been satisfied;

 

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(p) which (together with the Related Rights related thereto) has been the subject of:

 

(i) a valid transfer and assignment or other disposal of good and marketable title by the applicable Originator to the SPV pursuant to, and in accordance with, the Sale Agreement to which such Originator is a party;

 

(ii) in the case of a Sold Receivable, a valid transfer and assignment or other disposal under the Receivables Transfer Agreement by the SPV to the Administrative Agent; and

 

(iii) in the case of an Unsold Receivable, the grant of a first priority perfected security interest therein by the SPV to the Security Trustee, on behalf of the Secured Parties, of all of the SPV's rights therein, as security for the Aggregate Unpaids;

 

in each case, free and clear of any Adverse Claim (other than any Adverse Claim created or permitted pursuant to the Transaction Documents) and in any event ranking ahead of any other security interest and the rights of any other creditor of the SPV or any Arrow Party;

 

(q) which does not arise from (i) a Contract which is subcontracted, in whole or in part, by the applicable Originator to a third party, or (ii) an executory contract;

 

(r) which is governed by the Laws of an Agreed Receivable Jurisdiction or, solely with respect to an English Receivable or German Receivable that arises from an Obligor's purchase order, the related Contract does not contain a governing law clause or similar provision;

 

(s) which is payable without deduction or withholding for or on account of any taxes and which may be transferred free of any stamp, registration or similar taxes;

 

(t) with respect to a German Receivable governed by German law, if the relevant German Receivable is subject to an extended retention of title (verlängerter Eigentumsvorbehalt) or a manufacturing clause (Verarbeitungsklausel) which provides for the assignment of such Receivable to a supplier of the German Originator, the contractual arrangement between the German Originator and such supplier authorizes (including by way of deemed authorisation (konkludent)) the German Originator (i) to collect from the relevant Obligor such Receivable in its own name and (ii) to sell and validly assign such Receivable under a true sale factoring (echtes Factoring); provided that, in any such case, (x) the German Originator shall duly pay such supplier in accordance with the requirements of such contractual arrangement; provided, further, that (y) the purchase price payable under the German Sale Agreement with respect to such Receivable shall exceed the German Originator's payment obligations to such supplier under such contractual arrangement;

 

(u) with respect to a German Receivable governed by German law, which is not subject to a current account agreement (kontokorrent gebundene Forderungen) within the meaning of section 355 of the German Commercial Code (Handelsgesetzbuch);

 

(v) with respect to an English Receivable, the obligations required to be performed under the related Contract (other than payment of such Receivable), including, if applicable, shipment of any goods or merchandise or performance of any services purchased thereunder are solely the obligations of the English Originator and have been performed by the English Originator;

 

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(w) (i) which goods and/or services under any related Contract have not been rejected by the related Obligor or (ii) if the goods and/or services under any related Contract have been rejected by the related Obligor, which rejected goods and/or services by the related Obligor have been formally disputed by the related Originator;

 

(x) which is not an Excluded Receivable;

 

(y) solely with respect to a Swiss Receivable, which is freely assignable pursuant to article 164 et seq. of the Swiss Code of Obligations (Obligationenrecht);

 

(z) solely with respect to a Receivable originated by the Swiss Branch of the German Originator, arising under a Contract which is not related to or subject to an auction or stock exchange;

 

(aa) solely with respect to a Receivable originated by the Swiss Branch of the German Originator, arising under a Contract for which the Swiss branch of the German Originator received a purchase order in Switzerland from an Eligible Obligor and the Contract is most closely connected to the Swiss branch pursuant to article 117 of the Swiss Private International Law Act;

 

(bb) at any time a Level II Rating Event exists and solely with respect to a Swiss Receivable, which is evidenced by an original Swiss Declaration of Assignment that has been delivered to the SPV on the related Purchase Date or the Business Day immediately following such Purchase Date;

 

(cc) solely with respect to a Receivable that is subject to a Credit Insurance Policy, the related Credit Insurance Policy lists each of the SPV and the Administrative Agent as an insured party in form and substance satisfactory to the SPV and the Administrative Agent;

 

(dd) solely with respect to a Belgian Receivable:

 

(i) which does not arise from credit or life insurances;

 

(ii) which is not represented in the form of negotiable instruments, endorseable invoices, drafts, bills of exchange or promissory notes;

 

(iii) if the relevant Belgian Receivable is subject to an extended retention of title (verlengd eigendomsvoorbehoud/réserve de propriété prolongée) which provides for the assignment of such Receivable to a supplier of the German Originator, the contractual arrangement between the German Originator and such supplier expressly authorizes the German Originator (i) to collect from the relevant Obligor such Receivable in its own name and (ii) to sell and validly assign such Receivable in the manner provided in the Transaction Documents; provided that, in any such case, (x) the German Originator shall duly pay such supplier in accordance with the requirements of such contractual arrangement; provided, further, that (y) the purchase price payable under the German Sale Agreement with respect to such Receivable shall clearly exceed the German Originator's payment obligations to such supplier under such contractual arrangement;

 

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(iv) which is not secured by a mortgage (hypotheek/hypothèque) or any other security which must be recorded in a register;

 

(v) which is not subject to, nor arises in connection with, a contract which is subject to Belgian public procurement laws and regulations;

 

(ee) which at the time of transfer and assignment by the relevant Originator to the SPV pursuant to the relevant Sale Agreement is not:

 

(i) an exposure in default within the meaning of Article 178(1) of Regulation (EU) No 575/2013; or

 

(ii) an exposure to an Obligor which is a credit-impaired debtor or guarantor, who, to the best of such Originator's knowledge:

 

(A) has been declared insolvent or had a court grant his creditors a final non-appealable right of enforcement or material damages as a result of a missed payment within three years prior to the date of origination or has undergone a debt restructuring process with regard to its non-performing exposures within three years prior to the date of transfer or assignment of the relevant Receivables to the SPV, except if: (I) such restructured Receivable has not presented new arrears since the date of the restructuring, which must have taken place at least one year prior to the date of such relevant transfer or assignment of the restructured Receivable to the SPV; and (II) the information provided by the relevant Originator or the SPV in accordance with Article 7(1) sub-paragraphs (a) and (e)(i) of the Securitisation Regulations explicitly sets out the proportion of restructured Receivables, the time and details of the restructuring as well as their performance since the date of the restructuring;

 

(B) was, at the time of origination, where applicable, on a public credit registry of persons with adverse credit history or, where there is no such public credit registry, another credit registry that is available to such Originator; or

 

(C) has a credit assessment or a credit score indicating that the risk of contractually agreed payments not being made is significantly higher than for comparable Receivables held by such Originator which are not transferred to the SPV pursuant to the Transaction Documents; and

 

(ff) which is not a securitisation position, derivative or transferable security (as defined in Article 4(1) of Directive 2014/65/EU).

 

"Eligible Receivables Balance" means, at any time, an amount equal to the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables at such time.

 

"English Agent Servicer" means Arrow UK.

 

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"English Law Documents" means this Agreement, the Receivables Transfer Agreement, the English Receivables Sale Agreement, the English Security Agreement, the English Declaration of Trust (English Collection Accounts), the English Declaration of Trust (German Collection Accounts), the English Declaration of Trust (Unsold Receivables), the Servicing Deed, the Parent Undertaking Agreement, the Subordinated Loan Agreement, the Fee Letters and the Reporting Services Agreement.

 

"English Declaration of Trust (English Collection Accounts)" means a declaration of trust over the English Accounts of the English Originator, dated on or around the Closing Date, by and among the SPV, the Security Trustee and the English Originator.

 

"English Declaration of Trust (German Collection Accounts)" means a declaration of trust over the English Accounts of the German Originator, dated on or around the Closing Date, by and among the SPV, the Security Trustee and the German Originator.

 

"English Declaration of Trust (Unsold Receivables)" means a declaration of trust over the Unsold Receivables of the SPV, dated on or around the Closing Date, by and between the Security Trustee and the SPV.

 

"English Originator" means Arrow UK.

 

"English Originator Stop-Purchase Date" has the meaning given to that term in the English Sale Agreement.

 

"English Receivables" means the Receivables originated by Arrow UK in its capacity as Originator and sold to the SPV under the English Receivables Sale Agreement.

 

"English Sale Agreement" means that certain English receivables sale agreement, dated on or around the Closing Date, made between the English Originator, as seller, and the SPV, as buyer.

 

"English Security Agreement" means the security agreement governed by English law, dated on or around the Closing Date, by and among the SPV and the Security Trustee.

 

"English SPV Servicer" means Arrow UK.

 

"Equity Interests" of any Person means any and all shares in its issued share capital, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in that Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

 

"ESMA" means the European Securities and Markets Authority.

 

"ESR Policy Framework" means a Purchaser Agent’s policy or policies, if any, from time to time establishing processes for identifying, assessing, managing, mitigating and reporting material environmental and social risks.

 

"EU Bail-In Legislation Schedule" means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

 

"EU Insolvency Regulation" means Regulation (EU) No 2015/848 of the European Parliament and of the Council of the European Union of 20 May 2015 on insolvency proceedings (recast).

 

21 


 

"EU Securitisation Regulation" means Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending certain other European Union Directives and Regulations, as amended and in effect from time to time.

 

"EU Securitisation Regulation Rules" means the EU Securitisation Regulation, together with all relevant implementing regulations in relation thereto, all regulatory technical standards, implementing technical standards and delegated regulations in relation thereto or applicable in relation thereto pursuant to any transitional arrangements made pursuant to the EU Securitisation Regulation and, in each case, any relevant guidance or policy statements published in relation thereto by European Banking Authority, the European Securities and Markets Authority and the European Insurance and Occupational Pensions Authority (or in each case, any predecessor or successor or any other applicable regulatory authority) or by the European Commission, in each case as amended and in effect from time to time.

 

"EU STS Requirements" means the transaction level requirements for an ABCP transaction (as defined in the EU Securitisation Regulation) to be considered STS (as defined in the EU Securitisation Regulation) as set out in Article 24 (Transaction-level requirements) of the EU Securitisation Regulation.

 

"Euro Investment Interest Reserve Percentage" means, as at any Monthly Calculation Date, the ratio (expressed as a percentage) determined as:

 

(a) the product of:

 

(i) the maximum between:

 

(A) EURIBOR for a period of one (1) month as at such Monthly Calculation Date multiplied by [*****], and

 

(B) EURIBOR for a period of one (1) month as at such Monthly Calculation Date [*****], multiplied by

 

(ii) the product determined as:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient determined as:

 

(x) the Euro Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(y) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iii) the DSO as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iv) the Relevant Stress Factor, multiplied by

 

(v) 1/360; divided by

 

(b) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date.

 

22 


 

"EURIBOR" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Euro" or "€" means the lawful currency of the Participating Member States.

 

"Euro Eligible Receivables Balance" means, at any time, an amount in Euro equal to the aggregate Unpaid Balance of all Eligible Receivables denominated in Euro at such time.

 

"Euro Net Eligible Receivables Balance" means, at any time, an amount in Euro equal to:

 

(a) the Euro Eligible Receivables Balance at such time, less

 

(b) the aggregate outstanding Dilutions denominated in Euro with respect to Eligible Receivables at such time, less

 

(c) the aggregate Unpaid Balance of all Defaulted Receivables which are Eligible Receivables denominated in Euro at such time, less

 

(d) the aggregate Unapplied Cash denominated in Euro with respect to Eligible Obligors outstanding at such time, less

 

(e) the aggregate outstanding Provisions for Contractual Dilutions denominated in Euro with respect to Eligible Obligors at such time, less

 

(f) the aggregate Unpaid Balance of all Eligible Receivables denominated in Euro the Obligor of which is located in Poland and which is subject to Polish VAT, less

 

(g) the product of:

 

(i) the sum of:

 

(A) the aggregate Obligor Excess Concentration Amount at such time for all Eligible Obligors, plus

 

(B) at any time when a Level II Rating Event does not exist, the excess, if any, of (x) the Base Currency Equivalent of the aggregate Unpaid Balance of the Eligible Receivables the Obligor of which is located in Bulgaria, Sweden, Denmark, Malta, Finland, Latvia, Lithuania, Croatia, Estonia, Luxembourg, Greece or Cyprus, over (y) the product of (I) [*****], multiplied by (II) the Eligible Receivables Balance, plus

 

(C) at any time when a Level II Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of Swiss Receivables which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, plus

 

23 


 

(D) at any time when a Level I Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of German Receivables governed by German law which arise under a Contract that contains a restriction on assignment which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, multiplied by

 

(ii) the quotient determined as:

 

(A) the Euro Eligible Receivables Balance, divided by

 

(B) the Eligible Receivables Balance.

 

"EUWA" means the European Union (Withdrawal) Act 2018, as amended.

 

"Event of Default" is defined in Clause 6.2 (Events of Default) of the Receivables Transfer Agreement.

 

"Event of Insolvency" means, with respect to any Person, the occurrence of any of the following:

 

(a) such Person:

 

(i) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(ii) becomes insolvent or is unable or fails to pay its debts as such debts become due;

 

(iii) shall admit in writing its inability to pay its debts generally as they become due; or

 

(iv) shall make a general assignment, arrangement, composition with or trust for the benefit of creditors;

 

(b) the institution of any voluntary case or other proceeding by such Person seeking to adjudicate it as insolvent or bankrupt, or seeking liquidation, winding up, reorganisation, administration, examinership, voluntary or other arrangement, adjustment, protection, relief or composition of it or its debts under any Insolvency Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee, examiner or other similar official for it or any substantial part of its assets or such Person shall consent to the appointment of or taking possession by a receiver, trustee, examiner or other similar official for such Person or for any substantial part of its assets;

 

(c) the institution of any case or other proceeding against such Person without such Person's application or consent seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation, winding up, reorganisation, administration, examinership, voluntary or other arrangement, adjustment, protection, relief or composition of it or its debts under any Insolvency Law, or seeking the entry of an order for relief or the appointment of a receiver, trustee, examiner or other similar official for it or any other substantial part of its assets and such case or proceeding shall have continued undismissed, or unstayed and in effect, for a period of thirty (30) days or an order for relief in respect of such Person shall be entered in an involuntary case under an Insolvency Law or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or against such Person;

 

24 


 

(d) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(e) the order of any preliminary insolvency measures by an insolvency court (or any other competent authority) against such Person;

 

(f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (c) above); or

 

(h) such Person shall take any corporate, partnership or other similar appropriate action to authorise or initiate any of the actions set forth in the preceding paragraphs (a), (b), (c) or (d).

 

"Excess Concentration Amount" means, as at any Month End Date, the aggregate Obligor Excess Concentration Amount for all Eligible Obligors.

 

"Excluded Obligor" means, as of any date of determination, each obligor which (a) is listed on Exhibit B attached hereto, (b) is a Restricted Party or (c) a Purchaser Agent has notified the Seller, the Servicer, the Administrative Agent and each other Purchaser Agent is excluded on the grounds that such obligor (i) is subject to internal sanctions screening by such Purchaser Agent, (ii) does not comply with internal sanctions, "know your customer" or similar requirements of such Purchaser Agent, (iii) is otherwise subject to any Sanction or in breach of any Anti-Corruption Law or (iv) does not comply with such Purchaser Agent’s ESR Policy Framework.

 

"Excluded Receivable" means, at any time, any Receivable (a) arising from a Contract with a Sanctioned Person, (b) arising from a Contract with an Obligor which is located in a Sanctioned Country, (c) arising from a Contract which is governed by the Laws of a Sanctioned Country, (d) that is otherwise related to a Sanctioned Person or Sanctioned Country, or (e) arising from a Contract the Obligor of which is an Excluded Obligor.

 

"Excluded Taxes" is defined in Clause 7.3(c) (Taxes) of the Receivables Transfer Agreement.

 

"Existing Law" means (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act; (b) the third Basel Accord issued by the Basel Committee on Banking Supervision as set out in the publications entitled "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" as updated from time to time (collectively "Basel III") and any further guidance or standards published by the Basel Committee relating to Basel III, (c) any rules, regulations, guidance, interpretations, directives or requests from any Official Body relating to, or implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act or Basel III (whether or not having the force of law), or (d) the Securitisation Regulation Rules.

 

25 


 

 

"Expected Dilution Percentage" means, as at any Month End Date, the average of the Non-Contractual Dilution Ratio for the twelve (12) Month End Dates immediately preceding (and including) such Month End Date.

 

"Expense Reserve Purchaser Fee Component" means, as at any Monthly Calculation Date, the fraction (expressed as a percentage) determined as:

 

(a) the product of:

 

(i) the sum of:

 

(A) the product of (x) [*****], multiplied by (y) the Facility Limit, plus

 

(B)           the product of (x) the Conduit Purchaser Fee, multiplied by (y) the Purchaser Group Limit for the BNP Purchaser Group, plus

 

(C)           the product of (x) the Conduit Purchaser Fee, multiplied by (y) the Purchaser Group Limit for the ING Purchaser Group, multiplied by

 

(ii) the DSO as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iii) the Relevant Stress Factor, multiplied by

 

(iv) 1/360, divided by

 

(b) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date.

 

"Expense Reserve 3rd Party Fee Component" means, as at any Monthly Calculation Date, the sum (expressed as a percentage) determined as:

 

(a) the fraction (expressed as a percentage) determined as:

 

(i) the product of:

 

(A) (x) the Aggregate 3rd Party Annual Fees divided by (y) 12, multiplied by

 

(B) (x) the DSO as at the Month End Date immediately preceding such Monthly Calculation Date divided by (y) 30, multiplied by

 

(C) the Relevant Stress Factor, divided by

 

(ii) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, plus

 

(b) the Servicing Fee Reserve Percentage.

 

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"Expense Reserve Percentage" means, as at any Monthly Calculation Date, the sum (expressed as a percentage) of:

 

(a) the Expense Reserve Purchaser Fee Component as at such Monthly Calculation date, plus

 

(b) the Expense Reserve 3rd Party Fee Component as at such Monthly Calculation date.

 

"FATCA" means: (a) sections 1471 to 1474 of the United States Internal Revenue Code of 1986 as in effect on the date hereof (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) or any associated regulations; (b) any Law of any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of any Law referred to in paragraph (a) above; or (c) any agreement pursuant to the implementation of any Law referred to in paragraphs (a) or (b) above with the United States Internal Revenue Service, the United States government or any governmental or taxation authority in any other jurisdiction.

 

"FATCA Deduction" means a deduction or withholding from a payment under a Transaction Document required by FATCA.

 

"FATCA Exempt Party" means a Person that is entitled to receive payments free from any FATCA deduction.

 

"Facility Limit" means €600,000,000.

 

"FCA" means the Financial Conduct Authority.

 

"Fee Letters" means the Administrative Agent Fee Letters and the Purchaser Fee Letters, collectively, with respect to certain fees to be paid by the SPV and the Arrow Parties in connection with the transactions contemplated by the Transaction Documents.

 

"Final Payout Date" means the date, after the Termination Date, on which the Aggregate Invested Amounts have been reduced to zero (0), all accrued Agent Servicing Fees and Backup Servicing Fees (if any) have been paid in full, and all other Aggregate Unpaids have been paid in full in cash.

 

"Fitch" means Fitch Ratings, Inc. or any successor thereto which is an internationally recognised statistical rating organisation.

 

"Foundation Management Agreement" means that certain foundation management agreement, dated as of the Closing Date, by and among the Stichting Arrow EMEA Funding Corp, the Corporate Services Provider and the Administrative Agent.

 

"GAAP" means, with respect to (i) any Arrow Party, United States generally accepted accounting principles (in effect from time to time and applicable to such Arrow Party) or, if applicable in the context, generally accepted accounting principles in effect and applicable to such Arrow Party by Law, and (ii) any other Person, generally accepted accounting principles applicable to such Person (including generally accepted accounting principles applicable to such Person by Law) or the consolidated group of which such Person is a member.

 

27


 

"GBP Eligible Receivables Balance" means, at any time, an amount in GBP equal to the aggregate Unpaid Balance of all Eligible Receivables denominated in GBP at such time.

 

"GBP Investment Interest Reserve Percentage" means, as at any Monthly Calculation Date, the ratio (expressed as a percentage) determined as:

 

(a) the product of:

 

(i) the maximum between:

 

(A) ICE TERM SONIA for a period of one (1) month as at such Monthly Calculation Date multiplied by [*****], and

 

(B) ICE TERM SONIA for a period of one (1) month as at such Monthly Calculation Date plus [*****], multiplied by

 

(ii) the product determined as:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient determined as:

 

(x)            the Base Currency Equivalent of the GBP Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(y)            the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iii) the DSO as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iv) the Relevant Stress Factor, multiplied by

 

(v) 1/360; divided by

 

(b) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date.

 

"GBP Net Eligible Receivables Balance" means, at any time, an amount in GBP equal to:

 

(a) the GBP Eligible Receivables Balance at such time, less

 

(b) the aggregate outstanding Dilutions denominated in GBP with respect to Eligible Receivables at such time, less

 

(c) the aggregate Unpaid Balance of all Defaulted Receivables which are Eligible Receivables denominated in GBP at such time, less

 

(d) the aggregate Unapplied Cash denominated in GBP with respect to Eligible Obligors outstanding at such time, less

 

28


 

(e) the aggregate outstanding Provisions for Contractual Dilutions denominated in GBP with respect to Eligible Obligors at such time, less

 

(f) the aggregate Unpaid Balance of all Eligible Receivables denominated in GBP the Obligor of which is located in Poland and which is subject to Polish VAT, less

 

(g) the product of:

 

(i) the sum of:

 

(A) the aggregate Obligor Excess Concentration Amount at such time for all Eligible Obligors, plus

 

(B) at any time when a Level II Rating Event does not exist, the excess, if any, of (x) the Base Currency Equivalent of the aggregate Unpaid Balance of the Eligible Receivables the Obligor of which is located in Bulgaria, Sweden, Denmark, Malta, Finland, Latvia, Lithuania, Croatia, Estonia, Luxembourg, Greece or Cyprus, over (y) the product of (I) [*****], multiplied by (II) the Eligible Receivables Balance, plus

 

(C) at any time when a Level II Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of Swiss Receivables which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, plus

 

(D) at any time when a Level I Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of German Receivables governed by German law which arise under a Contract that contains a restriction on assignment which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, multiplied by

 

(ii) the quotient determined as:

 

(A) the GBP Eligible Receivables Balance, divided by

 

(B) the Eligible Receivables Balance.

 

"GDPR" means (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

 

"German Account Pledge Agreement" means that certain German Account Pledge Agreement, dated on or around the Closing Date, among the German Originator and the Security Trustee.

 

"German Agent Servicer" means Arrow Germany.

 

"German Originator" means Arrow Germany.

 

29


 

"German Originator Stop-Purchase Date" has the meaning given to that term in the German Sale Agreement.

 

"German Receivables" means the Receivables originated by Arrow Germany in its capacity as Originator and sold to the SPV under the German Sale Agreement.

 

"German SPV Servicer" means Arrow Germany.

 

"German Sale Agreement" means that certain German receivables sale agreement, dated on or around the Closing Date, made between the German Originator, as seller, and the SPV, as buyer.

 

"German Security Agreement" means any agreement pursuant to which a security is created under German law pursuant to any of the Transaction Documents.

 

"Guarantee" means, 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 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 shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee 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 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, 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 shall be such guaranteeing person's maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.

 

"ICE TERM SONIA" means the ICE Term SONIA reference rate administered and published by ICE Benchmark Administration Limited, or any other person which takes over the administration of such rate, published on the ICE Term Risk Free Rates portal at or around 11:55 am (London time).

 

"Indebtedness" means, without duplication, with respect to any Person, such Person's (a) obligations for borrowed money, (b) obligations representing the deferred purchase price of assets other than accounts payable arising in the ordinary course of such Person's business on terms customary in the trade, (c) obligations, whether or not assumed, secured by security interests or payable out of the proceeds or products of assets now or hereafter owned or acquired by such Person, (d) obligations which are evidenced by notes, acceptances (including bankers acceptances), or other instruments, (e) Capitalised Lease obligations, (f) obligations for which such Person is obligated pursuant to a Guarantee, (g) reimbursement obligations, contingent or otherwise, with respect to any letters of credit, (h) the excess of all unrealised losses over all unrealised profits of the Person in question arising from hedge agreements and (i) any other liabilities which would be treated as indebtedness in accordance with GAAP.

 

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"Indemnified Amounts" is defined in Clause 7.1 (Indemnities by the SPV) of the Receivables Transfer Agreement.

 

"Indemnified Parties" is defined in Clause 7.1 (Indemnities by the SPV) of the Receivables Transfer Agreement.

 

"Initial Effective Date" means, in respect of any Person who becomes an Originator after the Closing Date, the "Effective Date" or similar term as specified in the applicable Sale Agreement on and after which such Originator is eligible to sell receivables to the SPV as buyer.

 

"Initial Investment Date" means the date on which the initial Investment is made under the Receivables Transfer Agreement.

 

"Insolvency Law" means any Law, administration, or regulation relating to reorganisation, winding up, administration, examinership, composition or adjustment of debts or otherwise relating to bankruptcy or insolvency.

 

"Invested Amounts" means the aggregate outstanding principal balance of Investments, as reduced from time to time by amounts paid to the applicable Purchaser(s) holding such Investments pursuant to Clause 2.4 (Repayment of Investments and Yield) of the Receivables Transfer Agreement, as applicable; provided that if such Invested Amount shall have been reduced by any payment and thereafter all or a portion of such payment is rescinded or must be returned for any reason, such Invested Amount shall be increased by the amount of such rescinded or returned payment, as though it had not been received by such Purchaser(s).

 

"Investment" is defined in Clause 2.2(a) (Investments; Purchase Price) of the Receivables Transfer Agreement.

 

"Investment Company Act" means the Investment Company Act of 1940.

 

"Investment Date" has the meaning specified in Clause 2.3(a) (Notice of Investment Request) of the Receivables Transfer Agreement.

 

"Investment Request" means each request substantially in the form of Exhibit B (Form of Investment Request) to the Receivables Transfer Agreement which may be attached to any Monthly Servicer Report.

 

"Irish Declaration of Trust" means that certain declaration of trust, dated on or around the Closing Date, among Arrow UK, the SPV and the Security Trustee.

 

"Irish Security Agreement" means the security agreement governed by Irish law, dated on or around the Closing Date, by and between the SPV and the Security Trustee.

 

"Italian Account Pledge Agreement" means that certain deed of pledge over balance on bank account of the German Originator, dated on or around the Second Amendment Effective Date, among the German Originator and the Security Trustee (also in its capacity as mandatario con rappresentanza pursuant to and for the purposes of Italian law).

 

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"Law" means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree, judgment or award of any Official Body or any fiscal, monetary or other authority having jurisdiction over or the ability (either directly or indirectly) to otherwise control, regulate or bind any Person or its property or assets.

 

"Level I Rating Event" means, on any date of determination, Arrow has a Public Debt Rating from at least two Rating Agencies of (i) "BB+" or below from S&P, (ii) "BB+" or below from Fitch and/or (iii) "Ba1" or below from Moody's, in each case, as of such date of determination (it being understood that the existence of a Level II Rating Event shall also constitute a Level I Rating Event).

 

"Level II Rating Event" means, on any date of determination, Arrow (a) has a Public Debt Rating from at least two Rating Agencies of (i) "BB" or below from S&P, (ii) "BB" or below from Fitch and/or (iii) "Ba2" or below from Moody's, in each case, as of such date of determination, or (b) has no Public Debt Rating.

 

"Liabilities" means any loss, damage, fees, cost, charge, claim, demand, expense, indemnities, judgment, action, proceeding or other liability whatsoever (including, without limitation, in respect of taxes, duties, levies, imposts and other charges) and including any value added tax or similar tax charged or chargeable in respect thereof and legal fees and expenses on a full indemnity basis.

 

"Loss Horizon" means, as at any Month End Date, the number equal to the result of the following formula:

 

A + B

 

where:

 

A is the weighted average payment terms calculated over all Eligible Receivables outstanding as at such Month End Date, expressed in months (i.e. calculated in days and divided by 30); provided that such weighted average shall be calculated on the basis of the Base Currency Equivalent of such Eligible Receivables; and

 

B is equal to 3.

 

"Loss Horizon Ratio" means, as at any Month End Date, the quotient (expressed as a percentage) determined as:

 

(a) the Cumulative Sales Over the Loss Horizon as at such Month End Date, divided by

 

(b) the Net Eligible Receivables Balance as at such Month End Date.

 

"Loss Reserve Floor" means [*****].

 

"Loss Reserve Percentage" means, as at any Month End Date, the maximum between:

 

(a) the Dynamic Loss Reserve Percentage as at such Month End Date, and

 

(b) the Loss Reserve Floor as at such Month End Date.

 

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"Majority Purchasers" means, at any time, (x) there are less than three Purchaser Groups, the Administrative Agent and the Purchaser Agents for those Purchaser Groups which hold Commitments aggregating 100% of the Facility Limit as of such time, and (y) there are three or more Purchaser Groups, the Administrative Agent and the Purchaser Agents for those Purchaser Groups which hold Commitments aggregating in excess of a percentage of the Facility Limit as agreed at such time by the Administrative Agent, each Purchaser Agent and the Parent (or, in the case of clauses (x) and (y), if the Commitments shall have been terminated, one or more Purchaser Agents for those Purchaser Groups whose aggregate pro rata shares of the Aggregate Invested Amounts are equal to 100%, in the case of clause (x), or exceed a percentage of the Aggregate Invested Amounts as agreed at such time by the Administrative Agent, each Purchaser Agent and the Parent, in the case of clause (y)). The Commitments and Invested Amounts of any Defaulting Purchaser shall be disregarded from both the numerator and the denominator in determining the Majority Purchasers at any time.

 

"Material Adverse Effect" means any event or condition which could have material adverse effect on (a) the collectability of the Receivables, (b) the business, operations, property, prospects or condition (financial or otherwise) of the SPV, (c) the ability of the SPV or any Arrow Party to perform its respective obligations under the Transaction Documents to which it is a party, (d) the legality, validity or enforceability of any Transaction Document or any part thereof or the rights or remedies of the Administrative Agent, the Purchasers or the Security Trustee thereunder, or (e) the SPV's, the Administrative Agent's, the Security Trustee's or any Purchaser's interest in the Receivable and the Related Rights.

 

"Maturity Date" means the earlier of:

 

(a) the Commitment Termination Date from time to time in effect; and

 

(b) the date on which the Investments are declared or automatically become due and payable pursuant to Clause 6.3 (Remedies) of the Receivables Transfer Agreement.

 

"Minimum Total Reserve Percentage" means,

 

a) until the 30th of September 2020, [*****], and

 

b) from the 30th of September 2020 and at any other date thereafter either:

 

i. prior to (and excluding) the date on which the Transaction is an EU STS Transaction, [*****], or

 

ii. from (and including) the date on which the Transaction is an EU STS Transaction, [*****];

 

provided that if a notification is sent to ESMA that the Transaction no longer meets the STS Requirements or the Transaction is no longer considered an EU STS Transaction following a decision of the competent authorities, then paragraph (i) will apply from (and including) the date of such notification.

 

For the purposes of the Transaction Documents, the Transaction will be an "EU STS Transaction" (once a notification has been submitted to ESMA by each of BNP Paribas and ING Belgium S.A./N.V. in accordance with Article 27 of the EU Securitisation Regulation that the Transaction complies with the STS Requirements) on such date that each notification by BNP Paribas and ING Belgium S.A./N.V. is published on the register maintained by ESMA on its website.

 

33


 

"Month End Date" means the last day of each fiscal month of Arrow set forth on Schedule 2 (Arrow Fiscal Calendar) hereto.

 

"Monthly Calculation Date" means the third (3rd) Business Day after the Month End Date.

 

"Monthly Calculation Period" means the period from the Closing Date until the first Month End Date thereafter and each subsequent period from a Month End Date until the next Month End Date; provided that the last Monthly Calculation Period shall end on the Final Payout Date.

 

"Monthly Servicer Report" means a report, in substantially the form attached as Schedule 1 (Form of Monthly Servicer Report) to the Servicing Deed or in such other form as is mutually agreed to by the SPV, the Agent Servicers and the Administrative Agent, furnished by the Agent Servicers pursuant to Clause 3.4 (Reports) of the Servicing Deed, which in each case shall include as an attachment an Investment Request substantially in the form of Exhibit B (Form of Investment Request) to the Receivables Transfer Agreement.

 

"Moody's" means Moody's Investors Service, Inc., or any successor that is an internationally recognised statistical rating organisation.

 

"Net Eligible Receivables Balance" means, at any time, an amount equal to:

 

(a) the Eligible Receivables Balance at such time, less

 

(b) the Base Currency Equivalent of the aggregate Dilutions previously issued with respect to Eligible Receivables and still outstanding at such time, less

 

(c) the Base Currency Equivalent of the aggregate Unpaid Balance of all Defaulted Receivables which are Eligible Receivables at such time, less

 

(d) the Base Currency Equivalent of the aggregate Unapplied Cash with respect to Eligible Obligors outstanding at such time, less

 

(e) the Base Currency Equivalent of the aggregate outstanding Provisions for Contractual Dilutions with respect to Eligible Obligors at such time, less

 

(f) the Excess Concentration Amount at such time, less

 

(g) at any time when a Level II Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of the Eligible Receivables the Obligor of which is located in Bulgaria, Sweden, Denmark, Malta, Finland, Latvia, Lithuania, Croatia, Estonia, Luxembourg, Greece or Cyprus, over (ii) the product of (A) [*****], multiplied by (B) the Eligible Receivables Balance, less

 

(h) at any time when a Level II Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of Swiss Receivables which are Eligible Receivables, over (ii) the product of (A) [*****], multiplied by (B) the Eligible Receivables Balance, less

 

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(i) at any time when a Level I Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of German Receivables governed by German law which arise under a Contract that contains a restriction on assignment which are Eligible Receivables, over (ii) the product of (A) [*****], multiplied by (B) the Eligible Receivables Balance, less

 

(j) the Base Currency Equivalent of the aggregate Unpaid Balance of all Eligible Receivables the Obligor of which is located in Poland and which is subject to Polish VAT.

 

"New Euro Monthly Sold Receivables Targeted Amount" means, as at any Monthly Calculation Date, with respect to the immediately following Monthly Settlement Date, an amount in Euro determined as the difference between (a) the Targeted Euro Investment Amount as at such Monthly Calculation Date, minus (b) the Unpaid Balance of the Sold Receivables denominated in Euro previously transferred to the Administrative Agent as of the immediately preceding Month End Date; provided that, for the avoidance of doubt, such amount shall take into consideration any Collections received and any write-off made or which should have been made in accordance with the Credit and Collection Policy of the relevant Originator with respect to such Sold Receivables previously transferred to the Administrative Agent during the previous Monthly Calculation Periods (including the immediately preceding Monthly Calculation Period).

 

"New GBP Monthly Sold Receivables Targeted Amount" means, as at any Monthly Calculation Date, with respect to the immediately following Monthly Settlement Date, an amount in GBP determined as the difference between (a) the Targeted GBP Investment Amount as at such Monthly Calculation Date, minus (b) the Unpaid Balance of the Sold Receivables denominated in GBP previously transferred to the Administrative Agent as of the immediately preceding Month End Date; provided that, for the avoidance of doubt, such amount shall take into consideration any Collections received and any write-off made or which should have been made in accordance with the Credit and Collection Policy of the relevant Originator with respect to such Sold Receivables previously transferred to the Administrative Agent during the previous Monthly Calculation Periods (including the immediately preceding Monthly Calculation Period).

 

"New USD Monthly Sold Receivables Targeted Amount" means, as at any Monthly Calculation Date, with respect to the immediately following Monthly Settlement Date, an amount in USD determined as the difference between (a) the Targeted USD Investment Amount as at such Monthly Calculation Date, minus (b) the Unpaid Balance of the Sold Receivables denominated in USD previously transferred to the Administrative Agent as of the immediately preceding Month End Date; provided that, for the avoidance of doubt, such amount shall take into consideration any Collections received and any write-off made or which should have been made in accordance with the Credit and Collection Policy of the relevant Originator with respect to such Sold Receivables previously transferred to the Administrative Agent during the previous Monthly Calculation Periods (including the immediately preceding Monthly Calculation Period).

 

"Non-Consenting Purchaser" is defined in Clause 12 (Amendments and Waivers) of the Receivables Transfer Agreement.

 

"Non-Contractual Dilution" means, with respect to any Receivable, any debt owed by the corresponding Originator to the Obligor of such Receivable, which does not correspond to discounts, volume rebates or volume discounts or another reduction set out in the Obligor's Contract(s) relating to such Receivable, and which results from:

 

(a) any credit memo or credit note issued by the corresponding Originator in relation to any defect, reject or return of goods sold by the corresponding Originator to the Obligor of such Receivable;

 

35


 

(b) any credit memo or credit note issued by the corresponding Originator in relation to an error on a Receivable; or

 

(c) any other credit memos, credit notes, reduction, cancellation, adjustment or any transactions that will come at a reduction of the Unpaid Balance of such Receivable and that either could not have been anticipated by the corresponding Originator or that could not be identified as a Contractual Dilution by the relevant Originator.

 

"Non-Contractual Dilution Ratio" means, as at any Month End Date, the ratio (expressed as a percentage) computed by dividing:

 

(a) the Base Currency Equivalent of the aggregate amount of Non-Contractual Dilutions issued with respect to Eligible Receivables during the Monthly Calculation Period ending on such Month End Date, by

 

(b) the Base Currency Equivalent of the aggregate initial Unpaid Balance of Eligible Receivables which arose during the Monthly Calculation Period ending on the immediately preceding Month End Date.

 

"Non-Contractual Dilution Reserve Percentage" means, as at any Month End Date, the greater of:

 

(a) the Dilution Reserve Floor, and

 

(b) a percentage calculated in accordance with the following formula:

 

[(EDP x SF) + ((DS – EDP) x (DS/EDP))] x DHR

 

where:

 

SF = the Relevant Stress Factor;

 

EDP = Expected Dilution Percentage;

 

DS = Dilution Spike; and

 

DHR = Dilution Horizon Ratio.

 

"Non-Defaulting Purchaser" means, at any time, each Purchaser that is not a Defaulting Purchaser at such time.

 

"Obligor" means, with respect to any Receivable, the Person (other than any Person that is Arrow or an Affiliate of Arrow) obligated to make payments in respect of such Receivable pursuant to a Contract or otherwise; provided, however, for the purposes of the definitions of "Obligor Concentration Limit" and "Obligor Excess Concentration Amount", any group of two or more Obligors that are Affiliates of each other shall be treated as a single Obligor.

 

36


 

"Obligor Concentration Limit" means on any day and for any Obligor having a long-term or short-term debt rating from S&P or Moody's in one of the categories set out below, the percentage set forth opposite such rating:

 

S&P/Moody's/Fitch Short-Term
Rating
S&P/Moody's/Fitch Long-Term
Rating
Obligor
Concentration
Limit
A-1/P-1/F1 or higher A+/A1/A+ or higher Loss Reserve Floor
A-2/P-2/F2 A to BBB+ / A2 to Baa1 / A to BBB+ Loss Reserve Floor / 2
A-3/P-3/F3 BBB to BBB- / Baa2 to Baa3 / BBB to BBB- Loss Reserve Floor / 3
Below A-3/P-3/F3 or no rating Below BBB- / below Baa3 / below BBB - or no rating Loss Reserve Floor / 5

 

provided that, for purposes of this definition (a) the long-term and/or short-term rating of a parent company shall be imputed to its Subsidiaries to the extent any such Subsidiary does not have a long-term and/or short-term rating, (b) if an Obligor maintains both short-term and long-term ratings then the short-term rating shall be used in preference to the long-term rating, and (c) subject to the foregoing, if any Obligor (including any group of two or more Obligors) has more than one such long-term rating or more than one such short-term rating, the lowest such rating shall apply.

 

"Obligor Excess Concentration Amount" means, with respect to any Obligor at any time, an amount in the Base Currency Equivalent equal to the amount by which (a) the Base Currency Equivalent of the aggregate Unpaid Balances of all Eligible Receivables of such Obligor at such time, exceeds (b) the product of (i) the Obligor Concentration Limit for such Obligor, multiplied by (ii) the Eligible Receivables Balance at such time.

 

"Official Body" means any government or political subdivision or any agency, authority, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not part of government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic (including any supra-national bodies such as the European Union or the European Central Bank).

 

37


 

"Organic Documents" of any Person means its memorandum and articles of association, articles or certificate of incorporation and by-laws, limited liability agreement, partnership agreement, deed of incorporation or other comparable charter or organisational documents.

 

"Originator Stop Purchase Percentage" means, for any Originator at any time, the ratio (expressed as a percentage) equal to (a) the Base Currency Equivalent of the aggregate Unpaid Balance of the Receivables originated by such Originator and transferred to the SPV under a Sale Agreement in the immediately preceding twelve-month period (as determined as of the most recent Settlement Date) divided by (b) the Base Currency Equivalent of the aggregate Unpaid Balance of all Receivables originated by all Originators and transferred to the SPV under the Sale Agreements in the immediately preceding twelve-month period (as determined as of the most recent Settlement Date).

 

"Originators" means, as the context requires, all or any one of the English Originator, the German Originator and each Person approved in writing by the Administrative Agent with the consent of all Purchaser Agents collectively that enters into and executes and delivers, as seller, a Sale Agreement with the SPV as buyer after the Closing Date and any other documentation and legal opinions requested by the Administrative Agent or any Purchaser Agent substantially similar to those provided with respect to the Originators as of the Closing Date.

 

"Other Party Entity" is defined in Clause 8.11 (Erroneous Payments) of the Receivables Transfer Agreement.

 

"Parent" means Arrow.

 

"Parent Undertaking Agreement" means that certain Parent Undertaking Agreement, dated on or around the Closing Date, among the Parent, the SPV and the Administrative Agent.

 

"Participating Member State" means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Community relating to Economic and Monetary Union.

 

"Paying Agent" means Elavon Financial Services DAC.

 

"Paying Agent Annual Fee" means [*****].

 

"Periodic Term SOFR Determination Date" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Permitted Investment Date" means, with respect to (a) the initial Investment (or initial Investments in more than one Currency), such day as may be agreed to by the Administrative Agent, the Majority Purchasers and the Agent Servicers, and (b) any other Investment (i) any date set out in paragraph (a) of the definition of Settlement Date, or (ii) to the extent the Administrative Agent and the Majority Purchasers, in their sole discretion, agrees, any other Business Day.

 

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"Person" means an individual, partnership, limited liability company, limited company, corporation, joint stock company, trust (including a business trust), unincorporated association, joint venture, firm, enterprise, Official Body or any other entity.

 

"Personal Data" has the meaning given to that term in the GDPR.

 

"Polish Account Pledge Agreement" means that certain Agreement for Civil and Registered Pledges Over Rights Under the Bank Accounts, dated as of January 21, 2022, among the German Originator and the Security Trustee.

 

"Portfolio" has the meaning specified in Clause 2.1(a) (Sale and Purchase) of the Receivables Transfer Agreement.

 

"Potential Early Amortisation Event" means an event which but for the lapse of time or the giving of notice, or both, would constitute an Early Amortisation Event.

 

"Potential Event of Default" means an event which but for the lapse of time or the giving of notice, or both, would constitute an Event of Default.

 

"Potential Servicer Default" means an event which but for the lapse of time or the giving of notice, or both, would constitute a Servicer Default.

 

"Pounds", "GBP" or "£" means the lawful currency of the United Kingdom.

 

"PRA" means the United Kingdom Prudential Regulation Authority.

 

"Priority of Payments" means the priority of payments set forth in Clause 4.1(b) (Deposits and Distributions on Settlement Dates) of the Servicing Deed and Clause 4.2(b) (Application of Available Funds allocated to the SPV) of the Servicing Deed, as applicable.

 

"Pro Rata Share" means, with respect to a Committed Purchaser at any time, the Commitment of such Committed Purchaser at that time, divided by the sum of the Commitments of all Committed Purchasers at that time.

 

"Program Support Agreement" means and includes any agreement entered into by any Program Support Provider providing for the issuance of one or more letters of credit for the account of a Conduit Purchaser, the issuance of one or more surety bonds for which a Conduit Purchaser is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by a Conduit Purchaser to any Program Support Provider of the Asset Interest (or portions thereof or participations therein) and/or the making of loans and/or other extensions of credit to a Conduit Purchaser in connection with a Conduit Purchaser's commercial paper program, together with any letter of credit, surety bond or other instrument issued thereunder.

 

"Program Support Provider" means and includes any Person now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, a Conduit Purchaser or issuing a letter of credit, surety bond or other instrument to support any obligations arising under or in connection with a Conduit Purchaser's commercial paper program.

 

"Provisions for Contractual Dilutions" means any provisions made by the Originators in the non-consolidated financial accounts issued by such Originator in accordance with GAAP for Contractual Dilutions.

 

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"Public Debt Rating" means, as of any date, the rating that has been most recently announced by S&P, Fitch or Moody's, as the case may be, for any class of non-credit enhanced long-term senior unsecured debt issued by the Parent or, if no such debt of the Parent is then outstanding, the corporate credit rating most recently announced by S&P, Fitch or Moody's, as the case may be, provided, if any such rating agency shall have issued more than one such rating, the lowest such rating issued by such rating agency. For purposes of the foregoing, (a) if any rating established by S&P, Fitch or Moody's shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (b) if S&P, Fitch or Moody's shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P, Fitch or Moody's, as the case may be, shall refer to the then equivalent rating by S&P, Fitch or Moody's, as the case may be.

 

"Purchase Date" means, with respect to any Receivable, the date of purchase thereof under the applicable Sale Agreement.

 

"Purchaser Agent" means each Person acting as agent on behalf of a Purchaser Group and designated as a Purchaser Agent for such Purchaser Group on the signature pages to the Receivables Transfer Agreement or any other Person who becomes a party to the Receivables Transfer Agreement as a Purchaser Agent pursuant to an Assignment and Assumption Agreement.

 

"Purchaser Agent-Related Persons" means, with respect to any Purchaser Agent, such Purchaser Agent, together with its Affiliates and their respective officers, directors, employees and agents and Affiliates.

 

"Purchaser Fee Letter" means each fee letter agreement, dated on or after the Closing Date, among the Parent, the Administrative Agent, the Purchasers and the Purchaser Agents.

 

"Purchaser Group" means, (i) for BNP Paribas, BNP Paribas as a Committed Purchaser and as Purchaser Agent for the BNP Purchaser Group and Matchpoint Finance plc as a Conduit Purchaser, (ii) for Mont Blanc Capital Corp, ING Belgium S.A./N.V. as Purchaser Agent for the ING Purchaser Group and Mont Blanc Capital Corp, as a Committed Purchaser and as a Conduit Purchaser, and (iii) for any other Committed Purchaser, such Committed Purchaser, its related Conduit Purchaser, if any, and its related Purchaser Agent, as set forth on Schedule 1 (Purchaser Groups and Commitments) to the Receivables Transfer Agreement.

 

"Purchaser Group Limit" means, for any Purchaser Group, the amount identified as the "Purchaser Group Limit" for such Purchaser Group as set forth on Schedule 1 (Purchaser Groups and Commitments) to the Receivables Transfer Agreement, as such amount may be increased or decreased as set forth in any Assignment and Assumption Agreement to which the parties in such Purchaser Group may be party or otherwise pursuant to the Receivables Transfer Agreement.

 

"Purchasers" means, collectively, the Committed Purchasers and the Conduit Purchasers.

 

"Rate Period" is defined in Clause 2.5(b) (Rate Periods) of the Receivables Transfer Agreement.

 

"Receivable" means any indebtedness and other obligations owed by any Obligor to any Originator, showing from the records of such Originator (without giving effect to any transfer under the Sale Agreements), or any right of the SPV to payment from or on behalf of an Obligor, arising in connection with the sale of products or services by such Originator to such Obligor or an Affiliate of such Obligor, and includes the obligation to pay any fees and other charges with respect thereto. The term Receivable shall not include any Excluded Receivable.

 

40


 

"Receivables Transfer Agreement" means that certain Receivables Transfer Agreement, dated on or around the Closing Date, made among the SPV, the Administrative Agent, the Purchaser Agents, Purchasers, the Security Trustee, the Paying Agent, the Agent Servicers and the SPV Servicers.

 

"Receiver" means a receiver, a receiver and manager or an administrative receiver of the whole or any part of the SPV Collateral.

 

"Recipient" is defined in Clause 2.8 (Sharing of payments, etc.) of the Receivables Transfer Agreement.

 

"Records" means all Contracts, if any, and other purchase orders, invoices, agreements, books, records and other documents and any other media, materials or devices for the storage of information (including tapes, disks, punch cards, computer programs and databases and related assets) maintained by the SPV or any Arrow Party with respect to the Receivables and their Related Rights, or the Obligors.

 

"Reference Rate Terms" means the terms set out in Schedule 3 (Reference Rate Terms).

 

"Related Rights" means, in respect of any Receivable, all Related Security and RSA Rights relating thereto.

 

"Related Security" means with respect to any Receivable, all of the applicable Originator's (without giving effect to any transfer under any Sale Agreement) and the SPV's rights in, to and under:

 

(a) any goods (including returned or repossessed goods) and documentation of title evidencing the shipment or storage of any goods relating to any sale giving rise to such Receivable;

 

(b) all other security interests and assets subject thereto from time to time, if any, purporting to secure payment of such Receivable, whether pursuant to a Contract related to such Receivable or otherwise, together with all registrations, financing statements and other filings signed by an Obligor relating thereto;

 

(c) any Contract and all guarantees, indemnities, warranties, insurance (and proceeds and premium refunds thereof) or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable, whether pursuant to a Contract related to such Receivable or otherwise;

 

(d) all Records related to such Receivable; and

 

(e) all Collections on and other proceeds of any of the foregoing.

 

"Relevant Stress Factor" means 2.5.

 

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"Reporting Services Agreement" means the Reporting Services Agreement, dated on or around the Closing Date, by and among the SPV, the Servicers, the Administrative Agent and the Reporting Services Provider.

 

"Reporting Services Provider" means Demica Limited.

 

"Reporting Services Provider Annual Fee" means [*****].

 

"Required Reserves" means, at any time during a Monthly Calculation Period, an amount equal to the product of (a) the Total Reserve Percentage at such time, times (b) the Net Eligible Receivables Balance at such time.

 

"Resolution Authority" means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

"Restricted Party" means a Person that is (a) subject to, or owned or controlled by a Person subject to, any Sanctions, or a Person acting on behalf of such a Person, (b) located in or organized under the laws of a country or territory that is the subject of country- or territory-wide Sanctions, or a Person who is owned or controlled by, or acting on behalf of such a Person or (c) otherwise a subject of Sanctions.

 

"Retained Interest" means a material net economic interest of not less than 5% as required by Article 6(1) of each of the Securitisation Regulations in the form of a first loss tranche pursuant to (i) paragraph (d) of Article 6(3) of the EU Securitisation Regulation, and (ii) paragraph (d) of Article 6(3) of the UK Securitisation Regulation, in each case as in effect on the Effective Date.

 

"RFR" means the rate specified as such in the Reference Rate Terms.

 

"RFR Banking Day" means any day specified as such in the Reference Rate Terms.

 

"RSA Rights" means, in respect of any Receivable, (a) all of the applicable Originator's right, title, interest and benefit in the Sale Agreement under which the Receivable was sold by such Originator to the SPV in respect of any warranties, representations, undertakings and indemnities provided by such Originator in respect of such Receivable and its rights to exercise all powers as seller under the relevant Sale Agreement with respect to such Receivable and (b) all of the SPV's right, title, interest and benefit in the Sale Agreement under which the Receivable was acquired by the SPV from the applicable Originator in respect of any warranties, representations, undertakings and indemnities provided to the SPV in respect of such Receivable and its rights to exercise all power as purchaser under the relevant Sale Agreement with respect to such Receivable.

 

"S&P" means S&P Global Ratings, a Standard & Poor's Financial Services LLC business, or any successor that is an internationally recognised statistical rating organisation.

 

"Sale Agreement" means, as the context requires, all or any one of the English Sale Agreement, the German Sale Agreement and each other receivables sale agreement entered into after the Closing Date between the SPV as buyer and another Arrow Party as seller and approved in writing by the Administrative Agent with the consent of all Purchaser Agents acting together.

 

"Sanctioned Country" means, at any time, a country, region or territory which is, or whose government is, the subject or target of any Sanctions.

 

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"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union, any member state of the European Union, Her Majesty's Treasury of the United Kingdom or other relevant sanctions authority or otherwise subject to any Sanctions, (b) any Person located, operating, organized or resident in a Sanctioned Country, or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) and (b).

 

"Sanctions" means any economic or financial sanctions, restrictive measures or trade embargoes enacted, imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state, Her Majesty's Treasury of the United Kingdom or other relevant sanctions authority.

 

"Screen Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Second Amendment Effective Date" means September 20, 2022.

 

"Secured Parties" means the Purchasers, the Administrative Agent, the Purchaser Agents, the Security Trustee, the Paying Agent and the other Indemnified Parties.

 

"Securitisation Regulations" means the EU Securitisation Regulation and the UK Securitisation Regulation.

 

"Securitisation Regulation Rules" means the EU Securitisation Regulation Rules and the UK Securitisation Regulation Rules.

 

"Security" means a mortgage, charge, pledge, lien, standard security, assignation in security or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

"Security Documents" means the English Security Agreement, the German Security Agreement, the Irish Security Agreement, the English Declaration of Trust (Unsold Receivables), the Account Agreements, and each other security agreement, deed of charge or other agreement or document creating a security interest executed or delivered from time to time by the SPV or any Arrow Party pursuant to, or in connection with, the transactions contemplated by the Transaction Documents.

 

"Security Trustee" means U.S. Bank Trustees Limited, as security trustee (and mandatario con rappresentanza pursuant to and for the purposes of Italian law) for the Secured Parties.

 

"Security Trustee Annual Fee" means [*****].

 

"Servicer" means the Agent Servicers, in respect of the Asset Interest, and the SPV Servicers, solely in respect of the SPV Collateral.

 

"Servicer Default" is defined in Clause 7.1 (Servicer Default) of the Servicing Deed.

 

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"Servicer Joinder Agreement" is defined in Clause 2.5 (Addition of Servicers) of the Servicing Deed.

 

"Servicing Deed" means that certain Receivables Servicing Deed, dated on or around the Closing Date, made among the SPV, the Administrative Agent, the Security Trustee, the Paying Agent, the Agent Servicers and the SPV Servicers.

 

"Servicing Fee Reserve Percentage" means [*****].

 

"Settlement Date" means (a) prior to the Termination Date (i) except as provided in paragraph (a)(ii), with respect to any Monthly Calculation Period, the third (3rd) Business Day following the Monthly Calculation Date with respect to such Monthly Calculation Period (or, if such day is not a Business Day, the immediately preceding Business Day), or (ii) such other Business Day as the Agent Servicers, the Administrative Agent and the Majority Purchasers may from time to time mutually agree, and (b) on and after the Termination Date, each Business Day selected from time to time by the Administrative Agent (it being understood that the Administrative Agent may select Settlement Dates to occur as frequently as daily) or, in the absence of any such selection, the date which would be the Settlement Date pursuant to paragraph (a)(i) or (a)(ii), as applicable, of this definition.

 

"Significant Subsidiary" means any Subsidiary that, directly or indirectly, accounts for more than ten percent (10%) of the assets of Arrow and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

 

"SOFR" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"SOFR Administrator" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Sold Receivable Collections" means the aggregate Collections attributable to the Sold Receivables that are received or deemed received.

 

"Sold Receivable Related Rights" means all Related Rights with respect to the Sold Receivables.

 

"Sold Receivables" is defined in Clause 2.1(a) (Sale and Purchase) of the Receivables Transfer Agreement.

 

"Specified Covenant Clause" means, with respect to:

 

(a) the SPV, Clauses 5.1(b)(iv) (Notice of Events of Default, Early Amortisation Events, etc), 5.1(b)(v) (Credit and Collection Policy), 5.1(c) (Change of Business), 5.1(h) (Performance and compliance with Receivables and Contracts and Credit and Collection Policy), 5.1(i) (Collections), 5.1(j) (Collections received), 5.1(k) (Accounts), 5.1(m) (Limitation on business activities), 5.2(a) (No sales, adverse claims, etc), 5.2(c) (No subsidiaries, mergers, etc), 5.2(d) (Change in payment instructions to Obligors), 5.2(g) (No amendment of Transaction Documents), 5.2(h) (Other Indebtedness) and 5.2(i) (Payments to the Originators) of the Receivables Transfer Agreement;

 

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(b) the Agent Servicers and the SPV Servicers, Clauses 6.1(b)(iv) (Notice of Servicer Defaults or Potential Servicer Defaults, etc), 6.1(b)(v) (Credit and Collection Policy), 6.1(c) (Change of Business), 6.1(h) (Performance and Compliance with Receivables and Contracts and Credit and Collection Policy), 6.1(j) (Collections), 6.1(k) (Collections received), 6.2(b) (No change to Credit and Collection Policy), 6.2(c) (No mergers, etc) and 6.2(d) (No change in payment instructions to Obligors) of the Servicing Deed;

 

(c) the Parent, Clauses 4.1(a)(v) (Notice of Early Amortisation Event, Potential Early Amortisation Event, Events of Default or Potential Events of Default, etc), 4.1(a)(vi) (Change in debt ratings), 4.1(b) (Maintenance of existence, etc.), 4.2(a) (No sales, liens, etc), 4.2(b) (No change in business or Credit and Collection Policy) and 4.2(c) (No mergers, etc) of the Parent Undertaking Agreement; or

 

(d) any Originator, Clauses 6.2(d) (Performance and compliance with Receivables and Credit and Collection Policy), 6.2(g) (Collections received), 6.2(h) (Accounts), 6.3(a) (No adverse claims, etc), 6.3(c) (No change in Credit and Collection Policy), 6.3(d) (No mergers, etc.) and 6.3(e) (Change in payment instructions to Obligors) of the relevant Sale Agreement.

 

"Specified Purchasers" means, at any time, (x) if there are less than three Purchaser Groups, any Purchaser Agent, and (y) if there are three or more Purchaser Groups, the Purchaser Agents for those Purchaser Groups which hold Commitments aggregating in excess of a percentage of the Facility Limit as agreed at such time by the Administrative Agent, each Purchaser Agent and the Parent (or, in the case of clauses (x) and (y), if the Commitments shall have been terminated, any Purchaser Agent, in the case of clause (x), or the Purchaser Agents for those Purchaser Groups whose aggregate pro rata shares of the Aggregate Investment Amounts exceed a percentage of the Aggregate Invested Amounts as agreed at such time by the Administrative Agent, each Purchaser Agent and the Parent, in the case of clause (y)). The Commitments and Invested Amounts of any Defaulting Purchaser shall be disregarded from both the numerator and the denominator in determining the Specified Purchasers at any time.

 

"SPV" means Arrow EMEA Funding Corp B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands.

 

"SPV Account" means any account, at an Eligible Account Bank, described in Schedule 3 (Accounts) to the Receivables Transfer Agreement under the heading "SPV Accounts" and any account added as an SPV Account in accordance with the Transaction Documents.

 

"SPV Account Agreements" means, collectively, the Dutch Account Pledge Agreement (SPV Accounts) and each other control or other security agreement or arrangement, in form and substance reasonably satisfactory to the Administrative Agent and the Security Trustee and as may be appropriate under the laws of any relevant jurisdiction, with respect to an SPV Account.

 

"SPV Account Bank" means any Eligible Account Bank listed in Schedule 3 (Accounts) to the Receivables Transfer Agreement and any other Eligible Account Bank added as an SPV Account Bank in accordance with the Transaction Documents.

 

"SPV Account Bank Annual Fee" means [*****].

 

"SPV Collateral" is defined in Clause 27.9 (Security Interest) of the Receivables Transfer Agreement.

 

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"SPV Guaranty" is defined in Clause 27.1 (Guaranty of Payment) of the Receivables Transfer Agreement.

 

"SPV Guaranty Fee" is defined in Clause 4.1(c) (Allocation and Distribution of Available Funds) of the Servicing Deed.

 

"SPV Management Agreement" means that certain SPV management agreement, dated as of the Closing Date, by and among the SPV, the Corporate Services Provider and the Administrative Agent.

 

"SPV Profit Amount" means, with respect to any fiscal year, an amount per annum equal to the greater of (a) [*****] and (b) the product of (x) the aggregate amount of fees owed by the SPV to the Corporate Services Provider under Clause 6 of the SPV Management Agreement in such fiscal year and (y) [*****].

 

"SPV Servicers" means, initially, the English SPV Servicer, the German SPV Servicer and any other Person as may from time to time be appointed as SPV Servicer pursuant to Clause 2.2(b) (Appointment of SPV Servicers) of the Servicing Deed.

 

"SPV Servicing Fee" means an amount in the Base Currency equal to either (a) at any time when each SPV Servicer is an Arrow Party or an Affiliate thereof, the actual cost of servicing the Unsold Receivables plus an amount consistent with industry standards determined by the SPV Servicers and approved by the SPV in its reasonable discretion, such additional amount to be reviewed and updated from time to time, or (b) at any time when any SPV Servicer is not an Arrow Party or an Affiliate thereof, the amount determined by agreement between such Person and the SPV, in either case, payable in arrears on each Settlement Date from Collections pursuant to, and subject to the priority of payments set out in, the Servicing Deed.

 

"Subordinated Lender" has the meaning specified in the Subordinated Loan Agreement.

 

"Subordinated Loan" has the meaning specified in the Subordinated Loan Agreement.

 

"Subordinated Loan Additional Interest Amount" means, in relation to any Settlement Date, a variable amount of interest in an amount equal to the excess, if any, of (a) the amount of any Collections allocated to the SPV under Clause 4.1(c) (Allocation and Distribution of Available Funds) of the Servicing Deed, over (b) the amount of such Collections allocated and applied by the applicable Agent Servicer, on behalf of the SPV pursuant to Clause 4.2(b)(i) (Application of Available Funds allocated to the SPV) and 4.2(b)(ii) (Application of Available Funds allocated to the SPV) of the Servicing Deed.

 

"Subordinated Loan Agreement" means that certain Subordinated Loan Agreement, dated on or around the Closing Date, made among the Subordinated Lender, the SPV, the Agent Servicers, the SPV Servicers and the Administrative Agent.

 

"Subordinated Loan Borrowing Statement" has the meaning specified in Clause 2.3 (Borrowing procedures) of the Subordinated Loan Agreement.

 

"Subordinated Loan Fixed Interest Amount" has the meaning specified in Clause 3.1(a) (Interest) of the Subordinated Loan Agreement.

 

46 


 

"Subordinated Loan Interest Determination Date" means the first Business Day of each calendar month.

 

"Subordinated Loan Interest Rate" means, (A) with respect to Dollars, the Term SOFR Reference Rate for a tenor of three (3) months, as such rate is published by the Term SOFR Administrator, on the applicable Settlement Date, determined as of the most recent Subordinated Loan Interest Determination Date, (B) with respect to Euros, the offered rate equal to the Euro Interbank Offered Rate as administered by the European Money Markets Institute (or any successor thereof acceptable to the Subordinated Lender) with a term equivalent to three months at 11:00 a.m. Brussels time on the applicable Settlement Date, determined as of the most recent Subordinated Loan Interest Determination Date, or (C) with respect to GBP, the Compounded Reference Rate on the applicable Settlement Date.  If the calculation of the Subordinated Loan Interest Rate results in a Subordinated Loan Interest Rate of less than zero (0), the Subordinated Loan Interest Rate shall be deemed to be zero (0) for all purposes hereunder.

 

"Subsidiary" means, with respect to any Person, any other Person (a) of which shares or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person, or (b) that is directly or indirectly controlled by such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the other Person, whether through the ownership of voting shares or membership interests, by contract, or otherwise.

 

"Swiss 10-Non-Bank Rule" means the rule that the aggregate number of actual and deemed creditors under the German Sale Agreement for Swiss Withholding Tax purposes that are not Swiss Qualifying Banks must not at any time exceed ten (10), in each case in accordance with the meaning of the Swiss Guidelines or the applicable legislation or explanatory notes addressing the same issues that are in force at such time.

 

"Swiss 20-Non-Bank Rule" means the rule that (without duplication) the aggregate number of actual and deemed creditors other than Swiss Qualifying Banks, of the Swiss Seller under all its outstanding debt relevant for classification as debenture (Kassenobligation) (including debt arising under this Agreement), facilities and/or private placements) must not at any time exceed twenty (20), in each case in accordance with the meaning of the Swiss Guidelines or the applicable legislation or explanatory notes addressing the same issues that are in force at such time.

 

"Swiss Federal Tax Administration" means the tax authorities referred to in art. 34 of the Swiss Federal Act on Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer).

 

"Swiss Guidelines" means, together, the guidelines S-02.123 in relation to interbank loans of 22 September 1986 as issued by the Swiss Federal Tax Administration (Merkblatt S-02.123 vom 22 September 1986 betreffend Zinsen von Bankguthaben, deren Gläubiger Banken sind Interbankguthaben)), S-02.130.1 in relation to money market instruments and accounts receivable of April 1999 (Merkblatt S-02.130.1 vom April 1999 "Geldmarktpapiere und Buchforderungen inländischer Schuldner"), the circular letter No. 15 (1-015-DVS-2017) of 3 October 2017 in relation to bonds and derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 "Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer und der Stempelabgaben" vom 3. Oktober 2017) and the circular letter No. 34 of 26 July 2011 (1-034-V-2011) in relation to customer credit balances (Kreisschreiben Nr. 34 "Kundenguthaben" vom 26. Juli 2011) and the practice note 010-DVS-2019 dated 5 February 2019 published by the Swiss Federal Tax Administration regarding Swiss Withholding Tax in the Group (Mitteilung-010-DVS-2019-d vom 5. Februar 2019 - Verrechnungssteuer: Guthaben im Konzern), the circular letter No. 46 of 24 July 2019 (1-046-VS-2019) in relation to syndicated credit facilities, promissory note loans, bills of exchange and subparticipations (Kreisschreiben Nr. 46 vom 24. Juli 2019 betreffend "Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen") and the circular letter No. 47 of 25 July 2019 (1-047-V-2019) in relation to bonds (Kreisschreiben Nr. 47 vom 25. Juli 2019 betreffend "Obligationen") as issued, and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any law, statute, ordinance, regulation, court decision or the like as in force from time to time.

 

47 


 

"Swiss Non-Bank Rules" means the Swiss 10-Non-Bank Rule and the Swiss 20 Non-Bank Rule.

 

"Swiss Qualifying Banks" means

 

(i) any bank as defined in the Swiss Federal Code for Banks and Savings Banks dated 8 November 1934 (Bundesgesetz über die Banken und Sparkassen); or

 

(ii) a person or entity which effectively conducts banking activities with its own infrastructure and staff as its principal business purpose and which has a banking license in full force and effect issued in accordance with the banking laws in force in its jurisdiction of incorporation, or if acting through a branch, issued in accordance with the banking laws in the jurisdiction of such branch, all and in each case in accordance with the Swiss Guidelines.

 

"Swiss Related Security" means any Related Security which is governed by Swiss law.

 

"Swiss Receivable" means a Receivable governed by Swiss law that is originated by Arrow Germany in its capacity as Originator and sold to the SPV under the German Sale Agreement.

 

"Swiss Seller" means the German Originator with its registered branch (Zweigniederlassung) in Rümlang/ZH, Switzerland.

 

"Swiss Withholding Tax" means the tax imposed based on the Swiss Withholding Tax Act.

 

"Swiss Withholding Tax Act" means the Swiss Federal Act on the Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines.

 

"Targeted Euro Investment Amount" means, as at any Monthly Calculation Date, the amount in Euro determined as:

 

(a) the lesser of

 

(i) the product of:

 

(A) the Facility Limit, multiplied by

 

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(B) the quotient of:

 

(1) the Euro Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

 

(2) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, and

 

(ii) the product of:

 

(A) the Euro Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation date, multiplied by

 

(B) 1 (one) minus the Total Reserve Percentage (expressed as a percentage); or

 

(b) any other amount denominated in Euro requested by the applicable Agent Servicer, on behalf of the SPV, in the related Investment Request, provided that such amount requested is lower than the amount calculated in clause (a) above.

 

"Targeted GBP Investment Amount" means, as at any Monthly Calculation Date, the amount in GBP determined as:

 

(a) the lesser of

 

(i) the product of:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient of:

 

(1) the GBP Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(2) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, and

 

(ii) the product of:

 

(A) the GBP Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation date, multiplied by

 

(B) 1 (one) minus the Total Reserve Percentage; or

 

(b) any other amount denominated in GBP requested by the applicable Agent Servicer, on behalf of the SPV, in the related Investment Request, provided that such amount requested is lower than the amount calculated in clause (a) above.

 

49 


 

"Targeted USD Investment Amount" means, as at any Monthly Calculation Date, the amount in USD determined as:

 

(a) the lesser of

 

(i) the product of:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient of:

 

(1) the USD Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(2) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, and

 

(ii) the product of:

 

(A) the USD Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation date, multiplied by

 

(B) 1 (one) minus the Total Reserve Percentage; or

 

(b) any other amount denominated in USD requested by the applicable Agent Servicer, on behalf of the SPV, in the related Investment Request, provided that such amount requested is lower than the amount calculated in clause (a) above.

 

"Taxes" is defined in Clause 7.3(a) (Taxes) of the Receivables Transfer Agreement.

 

"Term SOFR" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Term SOFR Adjustment" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Term SOFR Administrator" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Term SOFR Reference Rate" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Termination Date" means the earliest of:

 

(a) the Commitment Termination Date;

 

50 


 

(b) the date on which the Termination Date is declared pursuant to Clause 6.3(a) or (b) (Remedies) or automatically occurs pursuant to Clause 6.3(a) or (c) (Remedies) of the Receivables Transfer Agreement; and

 

(c) the day on which (i) any Originator, any other Arrow Party or the SPV shall become obligated to withhold any amounts in respect of Taxes from any payment made (or deemed to be made) by such Person to any Secured Party or the SPV pursuant to any Transaction Document, or shall have received notice from any Official Body that it shall be obligated to do so, whether with immediate, retroactive or prospective effect (other than any withholding taxes on any payments or distributions to or for the account of the Secured Parties in respect of which no additional amounts are payable under the Transaction Documents); provided that with respect to any such withholding tax for which an indemnity payment or other compensation payment is required to be made pursuant to any Transaction Document, the amount of any such withholding, individually or when taken together with any other amount to be withheld in respect of Tax from any payment made (or deemed to be made) by such Person to any Secured Party or the SPV pursuant to any Transaction Document (or, in the case of any withholding with prospective effect, any other amount that will in the future have to be withheld) for which an indemnity payment or other compensation payment is or will be required to be made pursuant to any Transaction Document exceeds the Threshold Debt Amount for the Parent, and (ii) the Administrative Agent shall have declared the Termination Date to have occurred by written notice thereof to the SPV and the Agent Servicers.

 

"Threshold Debt Amount" means (a) in relation to the SPV, [*****], and (b) in the case of any Arrow Party, [*****], or, in each case, the equivalent in any other currency or currencies.

 

"Total Reserve Percentage" means, for any Monthly Calculation Period, a percentage equal to the greater of:

 

(a) The Minimum Total Reserve Percentage, and

 

(b) the sum of:

 

(i) the Loss Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period, plus

 

(ii) the Non-Contractual Dilution Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period, plus

 

(ii) the Yield and Expenses Reserve Percentage as at the Month End Date immediately preceding such Monthly Calculation Period.

 

"Transaction" means the securitisation transaction as documented in the Transaction Documents.

 

"Transaction Costs" is defined in Clause 7.4(a) (Other costs and expenses) of the Receivables Transfer Agreement.

 

"Transaction Documents" means, collectively, this Agreement, the Receivables Transfer Agreement, the Subordinated Loan Agreement, the Sale Agreements, the Servicing Deed, the Backup Servicing Agreement, the Security Documents, the Parent Undertaking Agreement, the Fee Letters, the Reporting Services Agreement, each Credit Insurance Policy, the SPV Management Agreement, the Foundation Management Agreement and all of the other instruments, agreements and other documents from time to time executed and delivered by the SPV or any Arrow Party pursuant to or, with the prior written consent of the Administrative Agent, in connection with any of the foregoing, including any documentation specifically designated as a "Transaction Document" pursuant to the terms thereof.

 

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"UK Financial Institution" means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

"UK Insolvency Regulation" means the EU Insolvency Regulation, as it forms part of UK domestic law as "retained EU law" by operation of the EUWA, and as amended by the Insolvency (Amendment) (EU Exit) Regulations 2019, SI 2019/146.

 

"UK Securitisation Regulation" means Regulation (EU) 2017/2402 as it forms part of UK domestic law as "retained EU law" by operation of the EUWA, and as amended by the Securitisation (Amendment) (EU Exit) Regulations 2019, and as further amended from time to time.

 

"UK Securitisation Regulation Rules" means the UK Securitisation Regulation together with (a) all applicable binding technical standards made under the UK Securitisation Regulation; (b) all EU regulatory technical standards and implementing technical standards relating to the EU Securitisation Regulation (including such regulatory technical standards or implementing technical standards which are applicable pursuant to any transitional provisions of the EU Securitisation Regulation) forming part of UK domestic law by operation of the EUWA; (c) relevant guidance, policy statements or directions relating to the application of the UK Securitisation Regulation (or any binding technical standards) published by the PRA and/or the FCA (or their successors); (d) any guidelines relating to the application of the EU Securitisation Regulation which are applicable in the UK, (e) any other relevant transitional, saving or other provision relevant to the UK Securitisation Regulation by virtue of the operation of the EUWA; and (f) any other applicable laws, acts, statutory instruments, rules, guidance or policy statements published or enacted relating to the UK Securitisation Regulation, in each case as may be amended from time to time.

 

"UK Resolution Authority" means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

"Unapplied Cash" means, at any time, the amount computed for each given Obligor as the sum of the Base Currency Equivalent of Collections which are not applied to any of its Receivables and as stated in the relevant Monthly Servicer Report.

 

"Undrawn Margin" means, as of any date, [*****].

 

"United States" means the United States of America.

 

"Unpaid Balance" means, with respect to any Receivable at any time, the unpaid amount of such Receivable at such time.

 

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"Unpaid Balance Excluding VAT" means, with respect to any Receivable at any time, the Unpaid Balance of such Receivables minus the VAT Amount with respect to such Receivable.

 

"Unsold Receivable" is defined in Clause 2.1(c) (Unsold Receivables) of the Receivables Transfer Agreement.

 

"Unsold Receivable Collections" means the aggregate Collections attributable to the Unsold Receivables that are received or deemed received.

 

"Unsold Receivable Related Rights" means all Related Rights with respect to the Unsold Receivables.

 

"Unsold Receivable Related Security" means all Related Security with respect to the Unsold Receivables.

 

"USD Eligible Receivables Balance" means, at any time, an amount in USD equal to the aggregate Unpaid Balance of all Eligible Receivables denominated in Dollars at such time.

 

"USD Investment Interest Reserve Percentage" means, as at any Monthly Calculation Date, the ratio (expressed as a percentage) determined as:

 

(a) the product of:

 

(i) the maximum between:

 

(A) Adjusted Term SOFR for a period of one (1) month as at such Monthly Calculation Date multiplied by [*****], and

 

(B) Adjusted Term SOFR for a period of one (1) month as at such Monthly Calculation Date plus [*****], multiplied by

 

(ii) the product determined as:

 

(A) the Facility Limit, multiplied by

 

(B) the quotient determined as:

 

(x) the Base Currency Equivalent of the USD Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, divided by

 

(y) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(ii) the DSO as at the Month End Date immediately preceding such Monthly Calculation Date, multiplied by

 

(iii) the Relevant Stress Factor, multiplied by

 

(iv) 1/360; divided by

 

(b) the Net Eligible Receivables Balance as at the Month End Date immediately preceding such Monthly Calculation Date.

 

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"USD Net Eligible Receivables Balance" means, at any time, an amount in USD equal to:

 

(a) the USD Eligible Receivables Balance at such time, less

 

(b) the aggregate outstanding Dilutions denominated in Dollars with respect to Eligible Receivables at such time, less

 

(c) the aggregate Unpaid Balance of all Defaulted Receivables which are Eligible Receivables denominated in Dollars at such time, less

 

(d) the aggregate Unapplied Cash denominated in Dollars with respect to Eligible Obligors outstanding at such time, less

 

(e) the aggregate outstanding Provisions for Contractual Dilutions denominated in Dollars with respect to Eligible Obligors at such time, less

 

(f) the aggregate Unpaid Balance of all Eligible Receivables denominated in USD the Obligor of which is located in Poland and which is subject to Polish VAT, less

 

(g) the product of:

 

(i) the sum of:

 

(A) the aggregate Obligor Excess Concentration Amount at such time for all Eligible Obligors, plus

 

(B) at any time when a Level II Rating Event does not exist, the excess, if any, of (x) the Base Currency Equivalent of the aggregate Unpaid Balance of the Eligible Receivables the Obligor of which is located in Bulgaria, Sweden, Denmark, Malta, Finland, Latvia, Lithuania, Croatia, Estonia, Luxembourg, Greece or Cyprus, over (y) the product of (I) [*****], multiplied by (II) the Eligible Receivables Balance, plus

 

(C) at any time when a Level II Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of Swiss Receivables which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, plus

 

(D) at any time when a Level I Rating Event does not exist, the excess, if any, of (i) the Base Currency Equivalent of the aggregate Unpaid Balance of German Receivables governed by German law which arise under a Contract that contains a restriction on assignment which are Eligible Receivables, over (ii) the product of (x) [*****], multiplied by (y) the Eligible Receivables Balance, multiplied by

 

(ii) the quotient determined as:

 

(A) the USD Eligible Receivables Balance, divided by

 

(B) the Eligible Receivables Balance.

 

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"U.S. Government Securities Business Day" is defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"VAT" means:

 

(a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a) above, or imposed elsewhere.

 

"VAT Amount" means, with respect to any Receivable, as at any time, the VAT applicable to such Receivable and reported as such on the related invoice and in the Monthly Servicer Report.

 

"Volcker Rule" means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.

 

"Week End Date" means the last day of each week of Arrow set forth on Schedule 2 (Arrow Fiscal Calendar) hereto.

 

"Weekly Calculation Period" means, whenever a Level II Rating Event exists, the period from the date of such Level II Rating Event until the first Week End Date thereafter and each subsequent period from a Week End Date until the next Week End Date; provided that the last Weekly Calculation Period shall end on the Final Payout Date.

 

"Weekly Reporting Date" means the second (2nd) Business Day after the Week End Date.

 

"Weekly Servicer Report" means a report in form and substance to be mutually agreed to by the SPV, the Agent Servicers and the Administrative Agent, furnished by the Agent Servicers pursuant to Clause 3.4 (Reports) of the Servicing Deed.

 

"Weekly Settlement Date" means the fifth (5th) Business Day after the Week End Date.

 

"Write-Down and Conversion Powers" means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

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"Yield" means interest on Investments and is further defined in Clause 2.5(c) (Rate Definitions) of the Receivables Transfer Agreement.

 

"Yield and Expenses Reserve Percentage" means, as at any Monthly Calculation Date, the sum (expressed as a percentage) of:

 

(a) the Euro Investment Interest Reserve Percentage as at such Monthly Calculation Date, plus

 

(b) the GBP Investment Interest Reserve Percentage as at such Monthly Calculation Date, plus

 

(c) the USD Investment Interest Reserve Percentage as at such Monthly Calculation Date, plus

 

(d) the Expense Reserve Percentage as at such Monthly Calculation Date.

 

2.2 Interpretation

 

In each Transaction Document:

 

(a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under, and shall be construed in accordance with, GAAP;

 

(b) the words "hereof," "herein" and "hereunder" and words of similar import used in any Transaction Document refer to such Transaction Document as a whole and not to any particular provision of such Transaction Document;

 

(c) unless otherwise specified, references to any Clause, Schedule or Exhibit are references to Clauses, Schedules and Exhibits in or to that Transaction Document and references to any paragraph, subclause, clause or other subdivision within any Clause or definition refer to such paragraph, subclause, clause or other subdivision of such Clause or definition;

 

(d) the term "including" means "including without limitation" (with related words being construed accordingly), "in particular" means "in particular but without limitation" and other general words shall not be given a restrictive interpretation by reason of their being preceded or followed by words indicating a particular class of assets, matters or things;

 

(e) the term "disposal" includes any lease, licence, transfer, sale or other disposal of any kind (with related words being construed accordingly);

 

(f) the masculine, feminine or neuter gender respectively includes the other genders and the singular includes the plural (and vice versa);

 

(g) references to any Law refer to that Law as amended, re-enacted or replaced from time to time and includes any subordinated legislation in force under it from time to time;

 

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(h) references to any Person's Organic Documents refer to such Organic Documents as amended and otherwise in effect as at the Closing Date or as amended pursuant to and in accordance with the Transaction Documents;

 

(i) any Transaction Document or any other instrument, document or agreement is as supplemented, amended, replaced, restated, renewed, novated or otherwise modified from time to time (however fundamental that supplement, amendment, replacement, restatement, renewal, novation or modification may be, even if it involves increased, new, additional and/or replacement facilities or an increase in any other amount or rate) in accordance with the Transaction Documents;

 

(j) references to any Person include that Person's successors, permitted assigns and permitted transferees in accordance with their respective interests;

 

(k) a "right" includes any title, estate, interest, claim, remedy, power, authority, discretion or other right of any kind, both present and future (and any reference to rights in a particular asset or type or category of assets includes any rights in the proceeds of any disposal of that asset or any assets within that type or category);

 

(l) the term "assets" includes present and future properties, revenues, rights and other assets of every description (and any reference to a particular type of category of assets includes any present or future assets of that type or category);

 

(m) the term "indemnity" means "indemnify and keep indemnified";

 

(n) the term "regulation" includes any regulation, rule, official directive, notice, code of practice, guideline, demand or decision (in each case whether or not having the force of law) of any Official Body;

 

(o) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision of any Transaction Document in which they appear;

 

(p) unless otherwise specifically provided with respect to any computation of a period of time, in the computation of a period of time from a specified date to a later specified date, the word "from" means "from and including", the words "to" and "until" each means "to but excluding", and the word "within" means "from and excluding a specified date and to and including a later specified date";

 

(q) if the addition or removal of a material Obligor to or from the Portfolio, as applicable, causes the historical data contained in the calculation of Days Sales Outstanding, the Default Ratio, the Dilution Horizon Ratio, the Dilution Ratio and/or the Loss Horizon Ratio as of any Month End Date (collectively, the "Ratios") to become materially misleading or inaccurate as reasonably determined by the Administrative Agent, the Administrative Agent (at the direction of the Specified Purchasers) may adjust the historical data contained in such Ratios so that the calculation of such Ratios more accurately reflects the Asset Interest (after giving effect to any such removal or addition of an Obligor);

 

(r) all references to a "transfer" or "assignment" of (i) Sold Receivables and Sold Receivable Related Rights to the Administrative Agent shall mean and be a reference to an absolute sale and assignment of such Sold Receivables and Sold Receivable Related Rights to the Administrative Agent for all purposes other than U.S. federal and state income Tax purposes, and (ii) Unsold Receivables and Unsold Receivable Related Rights to the Security Trustee (also in its capacity as mandatario con rappresentanza pursuant to and for the purposes of Italian law) shall mean and be a reference to a security interest over such Unsold Receivables and Unsold Receivable Related Rights in favor of the Security Trustee (also in its capacity as mandatario con rappresentanza pursuant to and for the purposes of Italian law);

 

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(s) all references to the "initial" Unpaid Balance of any Receivable means the Unpaid Balance of such Receivable at the time of transfer or purported transfer from the applicable Originator to the SPV;

 

(t) all references to Servicer shall be construed to be references to (i) the Agent Servicers, as servicers of the Portfolio and (ii) the SPV Servicers, as servicers of the SPV Collateral;

 

(u) an Event of Default, Early Amortisation Event, Servicer Default or any other breach under the Transaction Documents shall be "continuing" unless waived in accordance with each applicable Transaction Document;

 

(v) in each Transaction Document, where it relates to a Dutch entity, or Dutch security, a reference to:

 

(i) a "necessary action to authorise" where applicable, includes without limitation:

 

(A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and

 

(B) obtaining an unconditional positive advice (advies) from the competent works council(s) if a positive advice is required pursuant to the Works Councils Act of the Netherlands (Wet op de ondernemingsraden);

 

(ii) a "board of directors" means a managing board (bestuur);

 

(iii) a "director" means a managing director (bestuurder);

 

(iv) a "security interest" includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijk zekerheidsrecht);

 

(v) a "winding-up", "administration" or "dissolution" includes a bankruptcy (faillissement) or dissolution (ontbinding);

 

(vi) a "moratorium" includes surseance van betaling and "a moratorium is declared" or "occurs" includes surseance verleend;

 

(vii) any "step" or "procedure" taken in connection with insolvency proceedings includes a Dutch entity having filed a notice under section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990);

 

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(viii) a "liquidator" includes a curator;

 

(ix) an "administrator" includes a bewindvoerder;

 

(x) an "attachment" includes a beslag;

 

(xi) "gross negligence" means grove schuld;

 

(xii) "willful misconduct" means opzet;

 

(xiii) a merger includes a juridische fusie;

 

(xiv) "insolvency" includes a bankruptcy, moratorium and or any resolution proceedings within the meaning of Section 3A of the Wft; and

 

(xv) a "Subsidiary" includes a dochtermaatschappij as in section 2:24a of the Dutch Civil Code;

 

(w) in each Transaction Document, where it relates to a Belgian entity, or Belgian security, a reference to:

 

(i) "gross negligence" is a reference to zware fout/faute lourde and "wilful misconduct" is a reference to opzet/dol;

 

(ii) a "liquidator", "trustee in bankruptcy", "compulsory manager", "receiver", "administrative receiver", "administrator" or similar officer includes any insolventiefunctionaris/praticien de l'insolvabilité, curator/curateur, vereffenaar/liquidateur, gedelegeerd rechter/juge délégué, ondernemingsbemiddelaar/médiateur d'entreprise, gerechtsmandataris/ mandataire de justice, voorlopig bewindvoerder/administrateur provisoire, gerechtelijk bewindvoerder/administrateur judiciaire, mandataris ad hoc/mandataire ad hoc and any sekwester/séquestre;

 

(iii) a "suspension of payments", "moratorium of any indebtedness", or "reorganisation" includes any gerechtelijke reorganisatie/réorganisation judiciaire;

 

(iv) an "insolvency" includes any insolventieprocedure/procedure d'insolvabilité, gerechtelijke reorganisatie/réorganisation judiciaire, faillissement/faillite and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);

 

(v) a "security interest" includes a mortgage (hypotheek/hypothèque), a pledge (pand/gage), a transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie), any other proprietary security interest (zakelijke zekerheid/sûreté réelle), a mandate to grant a mortgage, a pledge or any other real surety, a privilege (voorrecht/privilège) and a retention of title (eigendomsvoorbehoud/réserve de propriété);

 

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(vi) an entity being "incorporated" in Belgium or of which its "jurisdiction of incorporation" is Belgium, means that that entity has its registered office (statutaire zetel/siège statutaire) in Belgium;

 

(vii) a "composition" includes any minnelijk akkoord met schuldeisers/accord amiable avec des créanciers or any gerechtelijke reorganisatie/réorganisation judiciaire;

 

(viii) "winding-up", "administration" or "dissolution" includes any vereffening/liquidation, ontbinding/dissolution, sluiting van een onderneming/fermeture d'entreprise and faillissement/faillite;

 

(ix) "attachment", "sequestration", "distress", "execution" or analogous procedures includes any uitvoerend beslag/saisie exécution and bewarend beslag/saisie conservatoire;

 

(x) a "merger" includes an overdracht van algemeenheid/transfert d'universalité, an overdracht van bedrijfstak/transfert de branche d'activité, a splitsing/scission and a fusie/fusion as well as assimilated transactions (gelijkgestelde verrichtingen/operations assimilées) in accordance with Articles 676 and 677 of the Belgian Companies Code or article 12:7 and 12:8 of the Belgian Code of Companies and Associations, whichever is applicable;

 

(xi) the "Belgian Companies Code" means the Belgian Wetboek van vennootschappen/Code des sociétés dated 7 May 1999, as amended from time to time; and

 

(xii) the "Belgian Code of Companies and Associations" means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time; and

 

(x) all references to gross negligence shall have the meaning provided under New York law

 

2.3 Rates

 

Each of the Administrative Agent, the Paying Agent and each Purchaser Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or the Compounded Reference Rate, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any replacement Applicable Currency Benchmark Rate or RFR) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or the Compounded Reference Rate or any other Applicable Currency Benchmark Rate or RFR prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any amendments or waivers to the Transaction Documents related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or the Compounded Reference Rate or any other Applicable Currency Benchmark Rate or RFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any replacement Applicable Currency Benchmark Rate or RFR). Each of the Administrative Agent, the Paying Agent and each Purchaser Agent and their respective affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or the Compounded Reference Rate or any other Applicable Currency Benchmark Rate or RFR, any alternative, successor or replacement rate (including any replacement Applicable Currency Benchmark Rate or RFR) or any relevant adjustments thereto, in each case, in a manner adverse to the SPV. Each of the Administrative Agent, the Paying Agent and each Purchaser Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR, EURIBOR or the Compounded Reference Rate or any other Applicable Currency Benchmark Rate or RFR, in each case pursuant to the terms of this Agreement and the other Transaction Documents, and shall have no liability to the SPV, any Purchaser or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

 

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3. AMENDMENTS

 

Any provision of this Agreement may be amended if, but only if, such amendment is in writing and is signed by the SPV, each Agent Servicer, each SPV Servicer, the Parent, the Originators, the Conduit Purchasers, the Majority Purchasers, the Administrative Agent, the Security Trustee and the Paying Agent; provided, that no such amendment shall (a) change any term used in any Transaction Document, unless signed by or on behalf of each Person which is a party to such Transaction Document whose consent is required to amend such Transaction Document or (b) (i) increase the Commitment of a Committed Purchaser, (ii) reduce the Aggregate Invested Amounts or rate of Yield to accrue thereon or any fees or other amounts payable hereunder, (iii) postpone any date fixed for the payment of any scheduled distribution in respect of the Aggregate Invested Amounts or Yield with respect thereto or any fees or other amounts payable hereunder or for termination of any Commitment, (iv) change the percentage of the Commitments of Committed Purchasers which shall be required for the Committed Purchasers or any of them to take any action under the Transaction Documents, (v) release all or substantially all of the property with respect to which a security or ownership interest therein has been granted hereunder to the Administrative Agent, the Security Trustee or the other Secured Parties or (vi) extend or permit the extension of the Commitment Termination Date (it being understood that a waiver of an Early Amortisation Event or Event of Default shall not constitute an extension or increase in the Commitment of any Committed Purchaser), unless signed by each Committed Purchaser directly affected thereby.

 

4. NOTICES AND PAYMENTS

 

4.1 Notices

 

(a) Except as provided below, each notices and other communication to be made or given under or in connection with any Transaction Document shall be in writing (including electronic transmission or similar writing) and shall be given to the intended recipient at its address or electronic mail address set out in Schedule 1 (Address and payment information) or at such other address or electronic mail address as such party may specify for the purposes of notice to such party.

 

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(b) Each such notice or other communication shall be effective:

 

(i) if given by electronic mail, when such electronic mail is transmitted to the electronic mail address applicable pursuant to this Clause 4 and confirmation is received;

 

(ii) if given by overnight courier, two (2) Business Days after deposit thereof with an international overnight courier service; or

 

(iii) if given by any other means, when received at the address applicable pursuant to this Clause 4,

 

provided that each Investment Request shall only be effective upon receipt by each Purchaser Agent.

 

(c) Notwithstanding anything in this Clause 4 to the contrary, the SPV hereby authorises the Administrative Agent and the Purchasers to make investments in Eligible Investments and to make Investments based on telephonic notices made by any Person which the Administrative Agent or such Purchaser in good faith believe to be acting on behalf of the SPV and the SPV agrees to deliver promptly to the Administrative Agent a written confirmation of each telephonic notice signed by an authorised officer of the SPV. However, the absence of such confirmation shall not affect the validity of such notice. If the written confirmation differs in any material respect from the action taken by the Administrative Agent or such Purchaser, the records of the Administrative Agent or such Purchaser shall govern.

 

4.2 Payments

 

Unless otherwise specified, each payment to be made pursuant to any Transaction Document to an account of the Administrative Agent, the Agent Servicers, the SPV Servicers or any of the Purchasers shall be made to their respective accounts listed at Schedule 1 (Address and payment information) or at such other account as such party may hereafter specify in a notice given in the manner required under Clause 4.1.

 

5. VAT

 

(a) Unless otherwise specified, all amounts expressed to be payable under a Transaction Document by any party (a "Customer") to another party other than an Arrow Party (a "Supplier"), excluding all amounts expressed to be payable under a Transaction Document by or on behalf of the Administrative Agent, any Purchaser Agent or any Purchaser to the SPV, which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is or becomes chargeable on any supply made by a Supplier to a Customer under a Transaction Document and such Supplier is required to account to the relevant tax authority for the VAT, that Customer must pay to such Supplier (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Supplier must promptly provide an appropriate VAT invoice to that Customer).

 

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(b) Unless otherwise specified, all amounts expressed to be payable under a Transaction Document by any party to an Arrow Party or by or on behalf of the Administrative Agent, any Purchaser Agent or any Purchaser to the SPV which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be inclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is or becomes chargeable on any supply made by an Arrow Party under a Transaction Document or by the SPV to the Administrative Agent, any Purchaser Agent or any Purchaser under a Transaction Document, the party receiving or deemed to receive the supply for VAT purposes (the "Relevant Recipient") shall not be required to pay any additional amount in respect of any such VAT to the relevant Arrow Party or to the SPV (as applicable) in any circumstances.  Unless otherwise specified, where the Relevant Recipient is required to account to the relevant tax authority for VAT in respect of a supply for VAT purposes made to it by an Arrow Party or the SPV (as applicable), the amount of consideration payable to the relevant Arrow Party or to the SPV (as applicable) in respect of the relevant supply for VAT purposes shall be reduced by an amount equal to the VAT liability suffered by the Relevant Recipient.

 

(c) Where a Transaction Document requires any party (an "Indemnifying Party") to reimburse or indemnify another party for any cost or expense, the Indemnifying Party shall reimburse or indemnify (as the case may be) such party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

 

(d) Any reference in any Transaction Document to any Person shall, at any time when such Person is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the Person who is treated as making the supply or (as appropriate) receiving the supply under the grouping rules (as provided for in Article 11 of the Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union or any other similar provision in any jurisdiction which is not a member state of the European Union)) so that a reference to a Person shall be construed as a reference to that Person or the relevant group or unity (or fiscal unity) of which that Person is a member for VAT purposes at the relevant time or the relevant member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

 

(e) In relation to any supply made by a party to another party under a Transaction Document, if reasonably requested by the first party, the second party must promptly provide the first party with details of the second party's VAT registration and such other information as is reasonably requested in connection with the first party's VAT reporting requirements in relation to such supply.

 

6. FATCA

 

(a) Subject to paragraph (c) below, each party shall, within ten Business Days of a reasonable request by another party:

 

(i) confirm to that other party whether it is:

 

(A) a FATCA Exempt Party; or

 

(B) not a FATCA Exempt Party;

 

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(ii) supply to that other party such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other party's compliance with FATCA; and

 

(iii) supply to that other party such forms, documentation and other information relating to its status as that other party reasonably requests for the purposes of that other party's compliance with any other law, regulation, or exchange of information regime.

 

(b) If a party confirms to another party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that party shall notify that other party reasonably promptly.

 

(c) Paragraph (a) above shall not oblige any party to do anything which would or might in its reasonable opinion constitute a breach of:

 

(i) any law or regulation;

 

(ii) any fiduciary duty; or

 

(iii) any duty of confidentiality.

 

(d) If a party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such party shall be treated for the purposes of the Transaction Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the party in question provides the requested confirmation, forms, documentation or other information.

 

(e) If any withholding certificate, withholding statement, document, authorisation or waiver provided to a party pursuant to paragraph (a) above is or becomes materially inaccurate or incomplete, the party that provided it shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver unless it is unlawful for the party to do so (in which case the party shall promptly notify the party that requested such withholding certificate, withholding statement, document, authorisation or waiver.

 

(f) Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party (other than where this party is an Arrow Party and the recipient is the SPV) shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(g) Each party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the party to whom it is making the payment.

 

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7. THIRD PARTY RIGHTS

 

(a) Except in respect of the Secured Parties not party to this Agreement, which Persons (including, for the avoidance of doubt, their respective successors and permitted assigns) are intended to have the benefit of (but shall not enforce other than via the Administrative Agent) this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999, and except as provided in the relevant Transaction Documents as regards the application of this Agreement thereto, a Person who is not a party has no rights under the Contracts (Rights of Third Parties) Act 1999 or analogous applicable Laws to enforce or to enjoy the benefit of any term of this Agreement.

 

(b) Save as provided in Clause 3 (Amendments), this Agreement may be varied from time to time or rescinded without the consent of any Person that is not a party to this Agreement and sub-sections 2(1)(a) to (c) of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.