Exhibit 10.3.2
EXECUTION VERSION
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of October 23, 2023, is made between, among others, MARVELL TECHNOLOGY, INC., a Delaware corporation (the “Borrower”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as the Administrative Agent under the Credit Agreement (as defined below) (in such capacity, the “Agent”).
RECITALS:
WHEREAS, reference is made to that certain Credit Agreement, dated as of December 7, 2020 (as amended by the First Amendment to Credit Agreement, dated as of April 14, 2023, and as otherwise amended, restated, amended and restated, supplemented or otherwise modified through the date hereof, the “Credit Agreement”), between, among others, the Borrower, the Agent, the Lenders from time to time party thereto and the other parties from time to time party thereto.
WHEREAS, the parties to the Credit Agreement desire and agree to make certain amendments to the Credit Agreement as specified in this Amendment.
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Unless otherwise specifically defined herein, each term used herein that is defined in the Credit Agreement has the meaning assigned to such term in the Credit Agreement. Each reference in the Credit Agreement to “this Agreement”, “hereof”, “hereunder”, “herein” and “hereby” and each other similar reference, and each reference in any other Loan Document to “the Credit Agreement”, “thereof”, “thereunder”, “therein” or “thereby” or any other similar reference to the Credit Agreement shall, from the Second Amendment Effective Date, refer to the Credit Agreement as amended by this Amendment.
Section 2. Amendments to Credit Agreement. In accordance with Section 9.02 of the Credit Agreement and effective as of the Second Amendment Effective Date, the first paragraph of Section 6.02 of the Credit Agreement is hereby amended to delete the following as it appears in Section 6.02: “or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof,”.
Section 3. Conditions to the Second Amendment Effective Date. This Amendment shall become effective as of the date on which the following conditions are satisfied (or waived by the applicable parties) (such date, the “Second Amendment Effective Date”):
(a)The Agent (or its counsel) shall have received from the Borrower, the Agent and each Lender party hereto (which constitutes the Required Lenders) a counterpart of this Amendment signed on behalf of such party.
(b)The representations and warranties contained in the Credit Agreement and the other Loan Documents shall be true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the Second Amendment Effective Date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date.
(c)On the Second Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing, or would result after giving effect to the modifications contemplated by this Amendment.
Section 4 Representations and Warranties.
(a)Both before and immediately after giving effect to this Amendment, the Borrower represents and warrants that the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, other than any such representation or warranty which relates to a specified prior date, in which case such representations and warranties were true and correct in all material respects as of such prior date.
(b)No Default or Event of Default has occurred and is continuing on and as of the Second Amendment Effective Date.
Section 5 Governing Law.
(a)THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b)The jurisdiction, venue, service of process and waiver of jury trial provisions in Sections 9.09 and 9.10 of the Credit Agreement are hereby incorporated by reference into this Amendment and shall apply, mutatis mutandis, to this Amendment.
Section 6. Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Amendment by facsimile or other electronic transmission (including “.pdf”, “.tif” or similar format) shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
Section 7. Miscellaneous.
(a)Loan Document. This Amendment shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. The provisions of this Amendment are deemed incorporated into the Credit Agreement as if fully set forth therein.
(b)Entire Agreement. This Amendment, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
(c)Severability. Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
(d)Headings. Headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting this Amendment.
(e) Credit Agreement Governs. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of any Lender or the Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend, novate or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Obligor to a future consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
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MARVELL TECHNOLOGY, INC., AS THE BORROWER |
| By: | /s/ Willem Meintjes |
| Name: Willem Meintjes |
| Title: Chief Financial Officer |
[Signature Page – Second Amendment to Credit Agreement]
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JPMORGAN CHASE BANK, N.A., AS THE ADMINISTRATIVE AGENT, AND A LENDER |
| By: | /s/ Abhishek Joshi |
| Name: Abhishek Joshi |
| Title: Vice President |
[Signature Page – Second Amendment to Credit Agreement]
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BANK OF AMERICA, N.A., AS A LENDER |
| By: | /s/ James Haack |
| Name: James Haack |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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CITIBANK, N.A., AS A LENDER |
| By: | /s/ Stella Zhang |
| Name: Stella Zhang |
| Title: Vice President |
[Signature Page – Second Amendment to Credit Agreement]
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GOLDMAN SACHS BANK USA, AS A LENDER |
| By: | |
| Name: |
| Title: |
[Signature Page – Second Amendment to Credit Agreement]
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HSBC BANK USA, NATIONAL ASSOCIATION, AS A LENDER | |
| By: | /s/ John Houck |
| Name: John Houck |
| Title: Associate Relationship Manager |
[Signature Page – Second Amendment to Credit Agreement]
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MUFG Bank, Ltd., AS A LENDER |
| By: | /s/ Lillian Kim |
| Name: Lillian Kim |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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WELLS FARGO BANK, NATIONAL ASSOCIATION, AS A LENDER |
| By: | /s/ Daniel Kurtz |
| Name: Daniel Kurtz |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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DBS BANK LTD., AS A LENDER |
| By: | /s/ Kate Khoo |
| Name: Kate Khoo |
| Title: Vice President |
[Signature Page – Second Amendment to Credit Agreement]
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MIZUHO BANK, LTD., AS A LENDER |
| By: | /s/ Tracy Rahn |
| Name: Tracy Rahn |
| Title: Executive Director |
[Signature Page – Second Amendment to Credit Agreement]
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PNC BANK, NATIONAL ASSOCIATION, AS A LENDER |
| By: | /s/ Dana Kerpsack |
| Name: Dana Kerpsack |
| Title: Vice President |
[Signature Page – Second Amendment to Credit Agreement]
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SUMITOMO MITSUI BANKING CORPORATION, AS A LENDER |
| By: | /s/ Irlen Mak |
| Name: Irlen Mak |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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THE BANK OF NOVA SCOTIA, AS A LENDER |
| By: | /s/ David Dewar |
| Name: David Dewar |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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KEYBANK NATIONAL ASSOCIATION, AS A LENDER |
| By: | /s/ Suzannah Valdivia |
| Name: Suzannah Valdivia |
| Title: Senior Vice President |
[Signature Page – Second Amendment to Credit Agreement]
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THE TORONTO-DOMINION BANK, NEW YORK BRANCH, AS A LENDER |
| By: | /s/ David Perlman |
| Name: David Perlman |
| Title: Authorized Signatory |
[Signature Page – Second Amendment to Credit Agreement]
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TRUIST BANK, AS A LENDER |
| By: | /s/ Alfonso Brigham |
| Name: Alfonso Brigham |
| Title: Director |
[Signature Page – Second Amendment to Credit Agreement]
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U.S. BANK NATIONAL ASSOCIATION, AS A LENDER |
| By: | /s/ Matt S. Scullin |
| Name: Matt S. Scullin |
| Title: Senior Vice President |
[Signature Page – Second Amendment to Credit Agreement]
[Signature Page – Second Amendment to Credit Agreement]
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| By: | /s/ George Ko |
| Name: George Ko |
| Title: Director |
| |
| By: | /s/ My-Linh Yoshiike |
| Name: My-Linh Yoshiike |
| Title: Vice President |
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[Signature Page – Second Amendment to Credit Agreement]
