EXHIBIT 10-KK
AMENDMENT NUMBER 5 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated July 17, 1995, among TECH DATA
FINANCE, INC., a California corporation, as transferor (the "Transferor"),
TECH DATA CORPORATION, a Florida corporation ("Tech Data"), as collection
agent and as guarantor (in such capacities respectively, the "Collection
Agent" and the "Guarantor") and ENTERPRISE FUNDING CORPORATION, a Delaware
corporation (the "Company"), amending that certain Transfer and
Administration Agreement dated as of December 22, 1993 among the Transferor,
the Collection Agent, the Guarantor and the Company, as amended by
amendments dated as of May 19, 1994, August 18, 1994, October 10, 1994 and
as of January 31, 1995 (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor and Tech Data have requested that the Company
agree to certain changes in certain financial covenants set forth in the
Original Agreement; and
WHEREAS, capitalized terms used herein shall have the meanings assigned
to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Amendment to Original Agreement
(a) The text of Section 5.5 of the Original Agreement is hereby
deleted in its entirety and replaced with the following:
(a) Indebtedness to Total Capital. Tech Data shall not
permit the ratio of Consolidated Funded Indebtedness to
Consolidated Total Capital to exceed .60 to 1.00 at any time.
(b) EBIT to Interest Expense. Tech Data shall not permit
the ratio of Consolidated EBIT to Consolidated Interest Expense to
be less than 2.00 to 1.00 at any time. Capitalized terms used in
this Section 5.5 and not defined herein shall have those meanings
assigned in Exhibit N.
SECTION 2. Effective Date. The undersigned parties hereby agree that
this Amendment shall be effective as of July 31, 1995.
SECTION 3. Representations and Warranties. The Transferor hereby makes
to the Company, on and as of the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Original Agreement. In addition,
the Collection Agent and the Guarantor hereby make to the Company, on the
date hereof, all the representations and warranties set forth in Section 3.3
of the Original Agreement.
SECTION 4. Amendment and Waiver. No provision hereof may be amended,
waived, supplemented, restated, discharged or terminated without the written
consent of the Transferor and the Company.
SECTION 5. Successors and Assigns. This Amendment shall bind, and the
benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; provided, however, that the Transferor may
not assign any of its rights or delegate any of its duties under this
Amendment without the prior written consent of the Company.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
TRANSFEROR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW
YORK STATE COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 7. Severability; Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
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invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8. Captions. The captions in this Amendment are for convenience
of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 9. Ratification. Except as expressly affected by the provisions
hereof, the Original Agreement as amended by this Amendment shall remain in
full force and effect in accordance with its terms and is hereby ratified
and confirmed by the parties hereto. On and after the date hereof, each
reference in the Original Agreement to "this Agreement", "hereunder",
"herein" or words of like import shall mean and be a reference to the
Original Agreement as amended by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ THOMAS S. DUNSTAN
-----------------------
Name: Thomas S. Dunstan
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By:/s/ ARTHUR W. SINGLETON
---------------------------
Name: Arthur W. Singleton
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ ARTHUR W. SINGLETON
Name: Arthur W. Singleton
Title: Vice President, Treasurer &
Secretary
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AMENDMENT NUMBER 6 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 6 TO TRANSFER AND
ADMINISTRATION AGREEMENT (this "Amendment"), dated as of
November 1, 1995, among TECH DATA FINANCE, INC., a
California corporation, as transferor (the "Transferor"),
TECH DATA CORPORATION, a Florida corporation ("Tech
Data"), as collection agent and as guarantor (in such
capacities respectively, the "Collection Agent" and the
"Guarantor") and ENTERPRISE FUNDING CORPORATION, a
Delaware corporation (the "Company"), amending that
certain Transfer and Administration Agreement dated as of
December 22, 1993 among the Transferor, the Collection
Agent, the Guarantor and the Company, as amended by
various amendments dated as of May 19, 1994, August 18,
1994, October 10, 1994, January 31, 1995 and July 17,
1995 (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor has requested that the
Company agree to an increase in the Maximum Net
Investment under the Original Agreement and to an
extension of the Termination Date;
WHEREAS, on the terms and conditions set forth
herein, the Company has agreed to increase its Maximum
Net Investment under the Original Agreement and has
agreed to an extension of the Termination Date; and
WHEREAS, capitalized terms used herein shall
have the meanings assigned to such terms in the Original
Agreement;
NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained, the
parties hereto agree as follows:
SECTION 1. Amendment to Definitions.
(a) The definition of "Concentration Factor"
is hereby deleted in its entirety and replaced with the
following (solely for convenience of reference the
modified language in this definition is italicized):
""Concentration Factor" means for any
Designated Obligor (a) 2% of the Outstanding Balance
of all Eligible Receivables; provided however, that
for up to three (3) Designated Obligors at any one
time, 2.5% of the Outstanding Balance of all
Eligible Receivables at such time; provided further,
however, that with respect to any Designated Obligor
and its affiliates whose long term unsecured debt
obligations are rated at least "A1" by Moody's and
at least "A+" by Standard & Poor's and with respect
to which rating neither Moody's nor Standard &
Poor's shall have made a public announcement
anticipating a downgrading of such Designated
Obligor's long term unsecured debt obligations to a
rating less than the aforementioned ratings ("A1/A+
Rated Obligors") 5% of the Outstanding Balance of
all Eligible Receivables at such time, or (b) such
other greater amount determined by the Company in
the reasonable exercise of its good faith judgment
and disclosed in a written notice delivered to the
Transferor."
(b) The definition of "Loss Reserve" is hereby
amended by deleting the amount "15,000,000" in the text
of the last sentence thereof and replacing it with the
amount "20,000,000".
(c) The definition of "Maximum Net
Investment" is hereby deleted in its entirety and
replaced with the following:
""Maximum Net Investment" means
$200,000,000 or such larger amount, in no event to
exceed $250,000,000, as requested by the Transferor
upon five Business Days' prior written notice to the
Administrative Agent; provided that any increase in
the Maximum Net Investment shall be in increments of
not less than $25,000,000."
(d) The definition of "Maximum Percentage
Factor" is hereby deleted in its entirety and replaced
with the following:
""Maximum Percentage Factor" means 98%."
(e) The definition of "Termination Date" is
hereby amended by deleting therefrom the reference to
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"December 31, 1995" and replacing such reference with
"December 31, 1996".
SECTION 2. Representations and Warranties.
The Transferor hereby makes to the Company, on and as of
the date hereof, all of the representations and
warranties set forth in Section 3.1 of the Original
Agreement. In addition, the Collection Agent and the
Guarantor hereby make to the Company, on the date hereof,
all the representations and warranties set forth in
Section 3.3 of the Original Agreement.
SECTION 3. Conditions Precedent. This
Amendment shall not become effective until the Company
shall have received the following:
(a) A copy of the Resolutions of the
Board of Directors of the Transferor and Tech Data
certified by its Secretary approving this Amendment and
the other documents to be delivered by the Transferor and
Tech Data hereunder;
(b) A Certificate of the Secretary of
the Transferor and Tech Data certifying (i) the names and
signatures of the officers authorized on its behalf to
execute this Amendment and any other documents to be
delivered by it hereunder (on which Certificates the
Company may conclusively rely until such time as the
Company shall receive from the Transferor and Tech Data a
revised Certificate meeting the requirements of this
clause (b)(i)) and (ii) a copy of the Transferor's and
Tech Data's By-Laws;
(c) An opinion of David Vetter, counsel
to Tech Data, with respect to certain corporate matters
and the enforceability of the Agreement as amended hereby
in form and substance acceptable to the Company;
(d) An opinion of Kindel & Anderson
L.L.P., counsel to the Transferor, addressing certain
corporate matters and the enforceability of the Agreement
as amended hereby in form and substance acceptable to the
Company; and
(e) A responsible officer's certificate
of the Transferor and Tech Data executed by Arthur W.
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Singleton, Secretary of the Transferor and Tech Data,
respectively.
SECTION 4. Amendment and Waiver. No provision
hereof may be amended, waived, supplemented, restated,
discharged or terminated without the written consent of
the Transferor and the Company.
SECTION 5. Successors and Assigns. This
Amendment shall bind, and the benefits hereof shall inure
to the parties hereof and their respective successors and
permitted assigns; provided, however, the Transferor may
not assign any of its rights or delegate any of its
duties under this Amendment without the prior written
consent of the Company.
SECTION 6. Governing Law. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE TRANSFEROR
AND THE GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7. Severability; Counterparts. This
Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an
original and all of which when taken together shall
constitute one and the same instrument. Any provisions
of this Amendment which are prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other
jurisdiction.
SECTION 8. Captions. The captions in this
Amendment are for convenience of reference only and shall
not define or limit any of the terms or provisions hereof.
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SECTION 9. Ratification. Except as expressly
affected by the provisions hereof, the Original Agreement
as amended by this Amendment shall remain in full force
and effect in accordance with its terms and is hereby
ratified and confirmed by the parties hereto. On and
after the date hereof, each reference in the Original
Agreement to "this Agreement", "hereunder", "herein" or
words of like import shall mean and be a reference to the
Original Agreement as amended by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Amendment as of the date
first written above.
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ THOMAS S. DUNSTAN
----------------------
Name: Thomas S. Dunstan
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By:/s/ ARTHUR W. SINGLETON
------------------------
Name: Arthur W. Singleton
Title: Vice President
TECH DATA CORPORATION,
as Collection Agent and
Guarantor
By: /s/ ARTHUR W. SINGLETON
-------------------------
Name: Arthur W. Singleton
Title: Vice President,
Treasurer & Secretary
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