AMENDMENT NUMBER 1 TO
AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT
AMENDMENT NUMBER 1 TO AMENDED AND RESTATED TRANSFER AND ADMINISTRATION
AGREEMENT (this "Amendment"), dated as of March 3, 1997, 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"), ENTERPRISE FUNDING CORPORATION, a Delaware corporation (the
"Company"), and NATIONSBANK, N.A., a national banking association
("NationsBank"), as agent for the Company and the Bank Investors (in such
capacity, the "Agent") and as a Bank Investor, amending that certain Amended and
Restated Transfer and Administration Agreement dated as of January 21, 1997
among the Transfer-or, the Collection Agent, the Guarantor, the Company, the
Agent and the Bank Investor (the "Original Agreement" and said agreement as
amended by this Amendment, the "Agreement").
WHEREAS, the Transferor has requested that the Company and the
Agent agree to an increase in the Facility Limit and the Maximum Net Investment
under the Original Agreement;
WHEREAS, the Agent has requested an amendment to the defini-
tion of Concentration Factor under the Original Agreement;
WHEREAS, on the terms and conditions set forth herein, the
parties hereto consent to such amendments; 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 and replaced with the following (solely
for convenience added language is italicized):
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""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 Agent in the reasonable
exercise of its good faith judgment and with the consent of
the Bank Investors and disclosed in a written notice delivered
to the Transferor.
(b) The definition of "Facility Limit" is hereby amended by
deleting the amount "306,000,000" in the text thereof and replacing it with the
amount "331,500,000".
(c) The definition of "Maximum Net Investment" is hereby
amended by deleting the amount "300,000,000" in the text thereof and replacing
it with the amount "325,000,000".
(d) The definition of "Loss Reserve" is hereby amended by
deleting the amount "25,000,000" in the text of the final paragraph thereof and
replacing it with the amount "27,100,000".
SECTION 2. Amendment to Section 5.2(c). Section 5.2(c) of the
Original Agreement is hereby deleted and replaced with the following:
"(c) No Change in Business or Credit and Collection Policy.
The Transferor will not engage in any business other than
acquiring accounts receivable from Tech Data pursuant to the
Purchase Agreement, financing such acquisition pursuant
hereto, making loans to Tech Data and Subsidiaries of Tech
Data and other activities incidental thereto. The Transferor
will not make any change in
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the Credit and Collection Policy, which change would impair
the collectibility of the Receivables in a material respect."
SECTION 3. Amendments
(a) Amendment to Section 10.1(a). Section 10.1(a) of the
original Agreement is hereby deleted and replaced with the following (solely for
convenience changed language is italicized):
"(a) The Company and each Bank Investor hereby appoints and
authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and
the other Transaction Documents as are delegated to the Agent
by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto. In furtherance, and without
limiting the generality, of the foregoing, the Company and
each Bank Investor hereby appoints the Agent as its agent to
execute and deliver all further instruments and documents, and
take all further action that the Agent may deem necessary or
appropriate or that the Company or a Bank Investor may
reasonably request in order to perfect, protect or more fully
evidence the interests transferred or to be transferred from
time to time by the Transferor hereunder, or to enable any of
them to exercise or enforce any of their respective rights
hereunder, including, without limitation, the execution by the
Agent as secured party/assignee of such financing or
continuation statements, or amendments thereto or assignments
thereof, relative to all or any of the Receivables now
existing or hereafter arising, and such other instruments or
notices, as may be necessary or appropriate for the purposes
stated hereinabove. The Company and/or the Majority Investors
may direct the Agent to take any such incidental action
hereunder. With respect to other actions which are incidental
to the actions specifically delegated to the Agent hereunder,
the Agent shall not be required to take any such incidental
action hereunder, but shall be required to act or to refrain
from acting (and shall be fully protected in acting or
refraining from acting) upon the direction of the Majority
Investors; provided, however, that Agent shall not be required
to take any action hereunder if the taking of such action, in
the reasonable determination of the Agent, shall be in
violation of any applicable law, rule or regulation or
contrary to any provision of this Agreement or shall expose
the
0111920.07-01S7a
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Agent to liability hereunder or otherwise. Upon the occurrence
and during the continuance of any Termination Event or
Potential Termination Event, the Agent shall take no action
hereunder (other than ministerial actions or such actions as
are specifically provided for herein) without the prior
consent of the Majority Investors (which consent shall not be
unreasonably withheld or delayed). The Agent shall not,
without the prior written consent of all Bank Investors, agree
to (i) amend, modify or waive any provision of this Agreement
in any way which would (A) reduce or impair Collections or the
payment of Discount or fees payable hereunder to the Bank
Investors or delay the scheduled dates for payment of such
amounts, (B) increase the Servicing Fee (other than as
permitted pursuant to Section 6.2(b)), (C) modify any
provisions of this Agreement or the Receivables Purchase
Agreement relating to the timing of payments required to be
made by the Transferor, the Seller or the Guarantor or the
application of the proceeds of such payments, (D) permit the
appointment of any Person (other than the Agent) as successor
Collection Agent, (E) release any property from the lien
provided by this Agreement (other than as expressly
contemplated herein) or (F) release Tech Data from any of its
obligations under the Guaranty. Notwithstanding Section 11.2
hereof, the Agent (together with the Transferor, Tech Data,
the Company and the applicable Bank Investor or financial
institution) may agree to any amendment of this Agreement
which (A) increases the dollar amount of a Bank Investor's
Commitment (and similarly increases the Facility Limit and the
Maximum Net Investment) or (B) increases the Facility Limit
(and similarly increases the Maximum Net Investment) by adding
a financial institution as a Bank Investor party hereto;
provided, that in each case after giving effect to any such
amendment the aggregate Bank Investors' Commitment at least
equals the Facility Limit, and provided, further, that no such
amendment shall increase the dollar amount of a Bank
Investor's Commitment without the prior consent of such Bank
Investor. In addition, the Agent shall not agree to any
amendment of this Agreement not specifically described in the
two preceding sentences without the consent of the related
Majority Investors (which consent shall not be unreasonably
withheld or delayed). "Majority Investors" shall mean, at any
time, the Agent and those Bank Investors which hold
Commitments aggregating in excess of 66 and 2/3% of the
Facility Limit as of such date. In the event the
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Agent requests the Company's or a Bank Investor's consent
pursuant to the foregoing provisions and the Agent does not
receive a consent (either positive or negative) from the
Company or such Bank Investor within 10 Business Days of the
Company's or Bank Investor's receipt of such request, then the
Company or such Bank Investor (and its percentage interest
hereunder) shall be disregarded in determining whether the
Agent shall have obtained sufficient consent hereunder. "
(b) Amendment to Section 10.5. Section 10.5 of the original
Agreement is hereby deleted and replaced with the following (solely for
convenience additional language is italicized):
"SECTION 10.5 Successor Agent. The Agent may resign at any
time by giving written notice thereof to each Bank Investor,
the Company and the Transferor and may be removed at any time
with cause by the Majority Investors. Upon any such
resignation or removal, (i) if no Termination Event shall have
occurred, the Transferor,with the consent of the Majority
Investors, shall appoint a successor Agent and (ii) if a
Termination Event shall have occurred, the Company and the
Majority Investors shall appoint a successor Agent. The
Transferor and the Company and each Bank Investor, as
applicable, each agrees that it shall not unreasonably
withhold or delay its approval of the appointment of a
successor Agent. If no such successor Agent shall have been so
appointed, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of
resignation or the Majority Investors' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Company
and the Bank Investors, appoint a successor Agent which
successor Agent shall be either (i) a commercial bank
organized under the laws of the United States or of any state
thereof and have a combined capital and surplus of at least
$50,000,000 or (ii) an Affiliate of such a bank. Upon the
acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall
be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article IX shall
continue to inure to its benefit as to any
0111920.07-01S7a
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actions taken or omitted to be taken by it while it was Agent
under this Agreement."
(c) Amendment to Section 11.6(a). Section 11.6(a) of the
original Agreement is hereby deleted and replaced with the following (solely for
convenience additional language is italicized):
"(a) This Agreement shall be binding on the parties hereto and
their respective successors and assigns; provided, however,
that the Transferor may not assign any of its rights or
delegate any of its duties hereunder without the prior written
consent of the Company and the Majority Investors. No
provision of this Agreement shall in any manner restrict the
ability of the Company to assign, participate, grant security
interests in, or otherwise transfer any portion of the
Transferred Interest."
SECTION 4. Conditions Precedent. This Amendment shall not
become effective until the Agent 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, the Agent and the
Bank Investors may conclusively rely until such time as the Agent shall receive
from the Trans-feror 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 Agent;
(d) An opinion of Heller, Ehrman, White & McAuliffe,
special California counsel to the Transferor, addressing certain corporate
matters and the enforceability of the Agreement as amended hereby in form and
substance acceptable to the Agent; and
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(e) A responsible officer's certificate of the
Transferor and Tech Data executed by Arthur W. Singleton, Secretary of the
Transferor and Tech Data, respectively.
SECTION 5. 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 6. Amendment and Waiver. No provision hereof may be
amended, waived, supplemented, restated, discharged or terminated without the
written consent of the Transferor, the Company, the Agent and the Majority
Investors.
SECTION 7. 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 8. 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 9. 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
unen-forceable 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
0111920.07-01S7a
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shall not invalidate or render unenforceable such provision in any other juris-
diction.
SECTION 10. 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 11. 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 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/ STEWART L. CUTLER
Name: Stewart L. Cutler
Title: Vice President
TECH DATA FINANCE, INC.,
as Transferor
By: /S/ JEFFERY P. HOWELLS
Name: Jeffery P. Howells
Title: President
TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /S/ JEFFERY P. HOWELLS
Name: Jeffery P. Howells
Title: Senior Vice President of Finance
NATIONSBANK, N.A.,
as Agent and Bank Investor
By: /S/ STAN MIEHUAS
Name: Stan Meihuas
Title: Vice President