EXHIBIT 10-LL
AMENDMENT AGREEMENT NO. 3 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
31st day of July, 1995, by and among TECH DATA CORPORATION,
a Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (each herein
individually called a "Lender" and collectively the "Lenders"), and
NATIONSBANK OF FLORIDA, NATIONAL ASSOCIATION, as Agent for the Lenders
(herein called the "Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2 (as amended, the
"Agreement") whereby the Lenders party thereto have agreed to make loans
to the Borrower and to provide Letters of Credit and to create Acceptances
on behalf of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Section 9.04 of the Agreement is hereby amended, in its
entirety, effective July 31, 1995, so that as amended it shall read as
follows:
"9.04 EBIT to Interest Expense. Permit the ratio of
Consolidated EBIT to Consolidated Interest Expense to be less
than 2.0 to 1.00 at any time."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to
the Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and as of the date
hereof except that the financial statements referred to in Section
6.02(c) of the Agreement shall be those most recently furnished to
each Lender pursuant to Section 7.01; thereof;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 of the Agreement, other than changes in the ordinary
course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 7.01
of the Agreement have not been adversely affected in any
substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Each of the Parent and its Subsidiaries has joined
in the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirms its respective guaranty of payment
of the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders
and their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation
to the subject matter hereof and supersedes any prior
negotiations and agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty, express or
4
implied, not herein set forth shall bind any party hereto, and
no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in this
Agreement, no representations, warranties or commitments,
express or implied, have been made by any other party to the other.
None of the terms or conditions of this Amendment Agreement may be changed,
modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any
preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
7. This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
(Remainder of page left intentionally blank)
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
6
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
(formally known as Tech ata New York
Training Center, Inc.)
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ CAROL T. HACKNEY By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ NANCY DIFEO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ CAROL T. HACKNEY By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ NANCY DIFEO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
7
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
8
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
9
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
10
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
11
ROYAL BANK OF CANADA
By: /s/ MICHAEL A COLE
--------------------------
Name: Michael A. Cole
Title: Manager
12
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
13
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ JULIETTE S. STAPF
--------------------------
Name: Juliette S. Stapf
Title: Senior Vice President
14
AMENDMENT AGREEMENT NO. 4 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of February, 1996, by and among TECH DATA CORPORATION,
a Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (herein
individually called the "Lender" and collectively the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
(successor by merger of NationsBank of Florida, National
Association), as Agent for the Lenders (herein called the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2 and
Amendment Agreement No. 3 (the "Agreement") whereby the Lenders
party thereto have agreed to make loans to the Borrower and to
provide Letters of Credit and to create Acceptances on behalf
of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, the Agreement is
hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Consolidated Asset Coverage
Ratio" in Section 1.01 is hereby amended in its entirety,
so that as amended it shall read as follows:
"'Consolidated Asset Coverage Ratio' means the
ratio of (A) the sum of (i) Remaining Accounts
Receivable, (ii) Receivables of Subsidiaries, (iii)
Inventory and (iv) Prepaid Inventory to (B) the sum
of, WITHOUT DUPLICATION, (i) the Revolving Credit
Debit Balance, (ii) outstanding Swing Line Loans,
(iii) outstanding Letters of Credit and Acceptances,
(iv) Indebtedness arising under the Softmart Foreign
Currency Agreement, (v) Indebtedness of TDC described
in Section 9.06(v), (vi) Indebtedness permitted under
Section 9.06(viii) and (xi), and (vii) accounts
payable of the Borrower and its Subsidiaries, all
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis;"
(b) Clause (viii) of Section 9.06 is hereby amended
in its entirety, so that as amended it shall read as
follows:
"(viii) unsecured Indebtedness of Borrower in
an aggregate outstanding principal amount at any time
not to exceed $50,000,000, of which $45,000,000 shall
be used for the sole purpose of providing Standby
Letters of Credit in favor of Compaq Computer
Corporation to support the purchase of Inventory;"
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to
the Lenders as follows:
(a) The representations and warranties made by
Borrower in Article VII of the Agreement are true on and
as of the date hereto except that the financial statements
referred to in Section 7.02(c) shall be those most
recently furnished to each Lender pursuant to Section
8.01;
(b) There has been no material change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries since the date of the most recent financial
reports of the Borrower received by each Lender under
Section 8.01 thereof, other than changes in the ordinary
course of business, none of which has been a material
adverse change;
(c) The business and properties of the Borrower and
its Subsidiaries are not, and since the date of the most
recent financial report of the Borrower and its
Subsidiaries received by each Lender under Section 8.01
thereof have not been adversely affected in any
substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or
loss of any major contracts; and
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction
contemplated hereby, constitutes a Default or an Event of
Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or
the giving of notice, or both.
2
4. Each of the Subsidiaries of the Borrower have joined
in the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment
of the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders
and their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be
satisfactory to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation
to the subject matter hereof and supersedes any prior
negotiationsand agreements among the parties relative to such subject
matter. No promise, conditions, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and
no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment Agreement
otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other
party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or
cancelled orally or otherwise, except by writing, signed by all
the parties hereto, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any
preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective
terms.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above
written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
4
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA EDUCATION, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary
- --------------------------
WITNESS: TECH DATA CANADA, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
5
TECH DATA FRANCE
Societe en nom Collectif
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Director
- -------------------------
6
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
7
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
8
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
9
ROYAL BANK OF CANADA
By: /s/ STEPHEN S. HUGHES
--------------------------
Name: Steven S. Huges
Title: Senior Manager
10
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
11
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ MARK WELLNER
--------------------------
Name: Mark Wellner
Title: Vice President
12
AMENDMENT AGREEMENT NO. 5 TO
AMENDED AND RESTATED
REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the
13th day of March, 1996, by and among TECH DATA CORPORATION, a
Florida corporation (herein called the "Borrower"), the
financial institutions who are signatories hereto (herein
individually called the "Lender" and collectively the
"Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
(successor by merger of NationsBank of Florida, National
Association), as Agent for the Lenders (herein called the
"Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have
entered into an Amended and Restated Revolving Credit and
Reimbursement Agreement dated July 28, 1994, as amended by
Amendment Agreement No. 1, Amendment Agreement No. 2, Amendment
Agreement No. 3 and Amendment Agreement No. 4 (the "Agreement")
whereby the Lenders party thereto have agreed to make loans to
the Borrower and to provide Letters of Credit and to create
Acceptances on behalf of the Borrower; and
WHEREAS, the Subsidiaries of the Borrower have guaranteed
payment of the Obligations pursuant to a Guaranty dated July
28, 1994, all as described in the Agreement and other Loan
Documents; and
WHEREAS, the Borrower has requested that the Agreement be
amended as hereinafter provided;
NOW, THEREFORE, the Borrower, the Lenders and the Agent do
hereby agree as follows:
1. The term "Agreement" as used herein and in Loan
Documents shall mean the Agreement as hereby amended and
modified. Unless the context otherwise requires, all terms
used herein without definition shall have the definition
provided therefor in the Agreement.
2. Subject to the conditions hereof, the Agreement is
hereby amended, effective January 31, 1996, as follows:
(a) Section 1.01 is hereby amended by adding a new
definition "Cash Equivalents" thereto immediately
preceding the definition "Closing Date" which shall read
as follows:
"'Cash Equivalents' means
(a) marketable obligations issued or
unconditionally guaranteed by the United States
government, in each case maturing within one year
after the date of acquisition thereof;
(b) marketable direct obligations issued by any
state of the United States or any political
subdivision of any such state maturing within 180
days after the date of acquisition thereof and, at
the time of acquisition, having a rating of A-1 or P-
1, or better, from Standard & Poor's division of
McGraw-Hill, Inc. ("Standard & Poor's") or Moody's
Investors Service, Inc., respectively;
(c) commercial paper maturing no more than 270
days after the date of acquisition thereof, issued by a
corporation organized under the laws of any state of the
United States or of the District of Columbia and, at the
time of acquisition, having a rating of A-1 or P-1, or
better, from Standard & Poor's or Moody's Investors
Service, Inc., respectively;
(d) time deposits, certificates of deposit or
Eurodollar deposit maturing within 90 days after the
date of acquisition thereof, issued by any commercial
bank that is either (i) a member of the Federal Reserve
System that has capital, surplus and undivided profits
(as shown on its most recent statement of condition)
aggregating not less than $400,000,000 and is rated A or
better by Moody's Investors Service, Inc. or Standard &
Poor's or (ii) a Lender;
(e) repurchase agreements entered into with any
Lender or any commercial bank of the nature referred to
in CLAUSE (D), secured by a fully perfected Lien in any
obligation of the type described in any of CLAUSES (A)
through (D), having a fair market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation thereunder of such
Lender or other commercial bank; and
(f) money market funds not less than 75% of whose
investments are made up of securities described in
CLAUSES (A) THROUGH (E)."
(b) The definition of "Consolidated Asset Coverage
Ratio" in Section 1.01 is amended in its entirety so that as
amended it shall read as follows:
"'Consolidated Asset Coverage Ratio' means the
ratio of (A) the sum of, WITHOUT DUPLICATION, (i)
unrestricted cash and Cash Equivalents located in each
case within the United States, (ii) Remaining Accounts
Receivable, (iii) Receivables of Subsidiaries, (iv)
Inventory and (v) Prepaid Inventory to (B) the sum of
2
(i) the Revolving Credit Debit Balance, (ii) outstanding
Swing Line Loans, (iii) outstanding Letters of Credit
and Acceptances, (iv) Indebtedness arising under the
Softmart Foreign Currency Agreement, (v) Indebtedness of
TDC described in Section 9.06(v), (vi) Indebtedness
permitted under Section 9.06(viii) and (xi), and (vii)
accounts payable of the Borrower and its Subsidiaries,
all determined on a consolidated basis in accordance
with Generally Accepted Accounting Principals applied on
a Consistent Basis;"
(c) Section 9.13 is amended in its entirety so that as
amended it shall read as follows:
"9.13 CAPITAL EXPENDITURES. Make or become
committed to make, directly or indirectly, for any
Fiscal Year (on a non-cumulative basis, to the effect
that expenditures permitted but not made in any Fiscal
Year may not be made in any subsequent Fiscal Year)
expenditures for fixed or capital assets (including,
without limitation, Capital Leases) amounting in the
aggregate for the Borrower and its Subsidiaries to more
than (i) $42,000,000 during the Fiscal Year ending
January 31, 1995, (ii) $28,000,000 during the Fiscal
Year ending January 31, 1996 and (iii) $25,000,000
during any Fiscal Year thereafter."
3. In order to induce the Lenders to enter into this
Amendment Agreement, the Borrower represents and warrants to the
Lenders as follows:
(a) The representations and warranties made by Borrower
in Article VII of the Agreement are true on and as of the
date hereto except that the financial statements referred to
in Section 7.02(c) shall be those most recently furnished to
each Lender pursuant to Section 8.01;
(b) There has been no material change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent financial reports of the
Borrower received by each Lender under Section 8.01 thereof,
other than changes in the ordinary course of business, none
of which has been a material adverse change;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent
financial report of the Borrower and its Subsidiaries
received by each Lender under Section 8.01 thereof have not
been adversely affected in any substantial way as the result
of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot,
activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
3
(d) No event has occurred and no condition exists
which, upon the consummation of the transaction contemplated
hereby, constitutes a Default or an Event of Default on the
part of the Borrower under the Agreement or the Notes either
immediately or with the lapse of time or the giving of
notice, or both.
4. Each of the Subsidiaries of the Borrower have joined in
the execution of this Agreement for the purpose of consenting
hereto and hereby reaffirm their respective guaranty of payment of
the Obligations.
5. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be
satisfactory in form and substance to the Agent, the Lenders and
their counsel; the Agent shall have received copies of all
additional agreements, instruments and documents which they may
reasonably request in connection therewith, including copies of
resolutions of the Borrower authorizing the transactions
contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower
relating to the matters provided for herein shall be satisfactory
to the Agent, the Lenders and their counsel.
6. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations
and agreements among the parties relative to such subject matter.
No promise, conditions, representation or warranty, express or
implied, not herein set forth shall bind any party hereto, and no
one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto
acknowledges that, except as in this Amendment Agreement otherwise
expressly stated, no representations, warranties or
commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment
Agreement may be changed, modified, waived or canceled orally or
otherwise, except by writing, signed by all the parties hereto,
specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach
thereof.
Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents
are hereby confirmed and ratified in all respects and shall remain
in full force and effect according to their respective terms.
4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BORROWER:
WITNESS: TECH DATA CORPORATION
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Treasurer and Secretary
- --------------------------
GUARANTORS:
WITNESS: TECH DATA FINANCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Vice President, Chief
- -------------------------- Financial Officer and
Secretary
WITNESS: TECH DATA LATIN AMERICA, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
- --------------------------
WITNESS: TECH DATA FRANCE, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
WITNESS: TECH DATA FRANCE II, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
Secretary and Treasurer
5
WITNESS: TECH DATA CONSIGNMENT, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary and Treasurer
WITNESS: TECH DATA EDUCATION, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President, Chief
- ------------------------- Financial Officer,
WITNESS: BUYERS RESOURCE, INC.
/s/ NANCY DIFEO By: /s/ ARTHUR W. SINGLETON
- -------------------------- ---------------------------
Name: Arthur W. Singleton
/s/ SUSAN K. PLESO Title: Secretary
WITNESS: TECH DATA CANADA, INC.
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Secretary and Chief
- ------------------------- Financial Officer,
TECH DATA FRANCE
Societe en nom Collectif
WITNESS: By: TECH DATA FRANCE, INC., a
Florida Corporation
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Vice President and Chief
- ------------------------- Financial Officer,
AND
TECH DATA FRANCE II, INC., a
Florida Corporation
By: /s/ JEFFERY P. HOWELLS
--------------------------
Name: Jeffery P. Howells
Title: Vice President and Chief
Financial Officer
6
TECH DATA FRANCE
Societe en nom Collectif
/s/ NANCY DIFEO By: /s/ JEFFERY P. HOWELLS
- ------------------------- --------------------------
Name: Jeffery P. Howells
/s/ SUSAN K. PLESO Title: Director
- -------------------------
7
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) in its capacity as Agent
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) as Lender
By: /s/ NANCY J. PEARSON
------------------------
Name: Nancy J. Pearson
Title: Senior Vice President
8
BARNETT BANK OF PINELLAS COUNTY
By: /s/ MICHAEL S. CROWE
--------------------------
Name: Michael S. Crowe
Title: VP
9
NBD BANK
By: /s/ RICHARD C. ELLIS
--------------------------
Name: Richard C. Ellis
Title: VP
10
ROYAL BANK OF CANADA
By: /s/ MICHAEL A COLE
--------------------------
Name: Michael A. Cole
Title: Manager
11
BANK OF AMERICA, ILLINOIS
By: /s/ LAURENS F. SCHAAD, JR.
--------------------------
Name: Laurens F. Schaad, Jr.
Title: Vice President
12
SOUTHTRUST BANK OF ALABAMA, N.A.
By: /s/ MARK WELLNER
--------------------------
Name: Mark Wellner
Title: Vice President
13