EXHIBIT 10-AAm
AMENDMENT AGREEMENT NO. 2
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment Agreement"), dated as of March 13,
2003, and effective as of January 31, 2003 (the "Effective Date"), is made by
and among TECH DATA CORPORATION, a Florida corporation, BANK OF AMERICA, N.A., a
national banking association organized and existing under the laws of the United
States, and each other lender party to the Credit Agreement (as defined below)
(hereinafter Bank of America and such other lenders may be referred to
individually as a "Lender" or collectively as the "Lenders"), and BANK OF
AMERICA, N.A., in its capacity as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of May 8, 2000 (as the same
has been amended prior to the date hereto and may be further amended, modified,
supplemented, or restated from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Requisite Lenders amend the
Credit Agreement as hereinafter set forth; and
WHEREAS, upon the terms and conditions contained herein, the Administrative
Agent and the Requisite Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein set
forth, it is hereby agreed as follows, effective as of the Effective Date:
1. Definitions. Capitalized terms not otherwise defined in this Amendment
Agreement have the respective meanings assigned thereto in the Credit Agreement.
2. Amendment. Subject to the terms and conditions set forth herein, the
definition of "Consolidated Net Income" in Section 1.01 of the Credit Agreement
is hereby amended in its entirety so that as amended it shall read as follows:
" `Consolidated Net Income' means the gross revenues of Borrower and
its Subsidiaries less all operating and non-operating expenses of Borrower
and its Subsidiaries, plus or minus minority interest of a Person,
including taxes on income, and plus any non-cash charges due to impairments
in accordance with the Financial Accounting Standards Board's Statement of
Financial Accounting Standards No. 142, but excluding as income: (i) gains
or losses on the sale, conversion or other disposition of capital assets,
(ii) gains or losses on the acquisition, retirement, sale or other
disposition of capital stock and other securities of Borrower or any
Subsidiary, (iii) gains or losses on the collection of proceeds of life
insurance policies, (iv) any write-up of any asset, (v) any gain or loss
arising by reason of any foreign exchange transaction adjustment, and (vi)
any other gain or loss or credit of an extraordinary nature as determined
in accordance with GAAP."
3. Consent of Guarantors. The Guarantors have joined in the execution of
this Amendment Agreement solely for the purpose of (i) agreeing to the amendment
of the Credit Agreement and (ii) confirming their guarantees of payment of all
the Obligations.
4. Representations and Warranties. In order to induce the Administrative
Agent and the Lenders to enter into this Amendment Agreement, the Borrower
hereby represents and warrants that the Credit Agreement has been re-examined by
the Borrower and that:
(a) The representations and warranties made by Borrower in Article VI
of the Agreement are true on and as of the date hereof;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries since the date
of the financial reports of the Borrower received by each Lender under
Section 6.04 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 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, the
Notes or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
5. Conditions Precedent. This Amendment Agreement shall become effective
upon the Borrower delivering to the Administrative Agent the following:
(a) twenty (20) counterparts of this Amendment Agreement duly executed
by the Borrower, each Guarantor, the Administrative Agent and at least the
Requisite Lenders; and
(b) such other certificates, instruments and documents as the Agent
shall reasonably request.
6. Entire Agreement. 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, condition, 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 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 proceeding or succeeding
breach thereof.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. Counterparts. This Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA SITTING IN
THE COUNTIES OF HILLSBOROUGH AND PINELLAS FOR THE PURPOSES OF RESOLVING DISPUTES
HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY OR FOR
PURPOSES OF COLLECTION AND (ii) WAIVES TRIAL BY JURY IN CONNECTION WITH ANY SUCH
LITIGATION.
10. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. Credit Agreement. All references in any of the Loan Documents to the
Credit Agreement shall mean and include the Credit Agreement as amended hereby.
12. Successors and Assigns. This Amendment Agreement shall be binding upon
and inure to the benefit of each of the Borrower, the Lenders, the Agent and
their respective successors, assigns and legal representatives; provided,
however, that the Borrower, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
[Signatures on following pages.]
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.
TECH DATA CORPORATION
By: /s/ Arthur W. Singleton
----------------------------------------------
Name: Arthur W. Singleton
Title: Corporate Vice President, Treasurer and
Secretary
GUARANTORS:
TECH DATA PRODUCT MANAGEMENT, INC.
TECH DATA FINANCE PARTNER, INC.
TECH DATA WORLDWIDE PARTNER, LLC
By: /s/ Arthur W. Singleton
--------------------------------------------
Name: Arthur W. Singleton
Title: Corporate Vice President, Treasurer and
Secretary
TD FULFILLMENT SERVICES LLC
By: TECH DATA CORPORATION, its Member
By: /s/ Arthur W. Singleton
--------------------------------------------
Name: Arthur W. Singleton
Title: Corporate Vice President, Treasurer and
Secretary
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Sugeet Manchanda
--------------------------------------------
Name: Sugeet Manchanda
Title: Principal
BANK OF AMERICA, N.A., as a Lender
By: /s/ Sugeet Manchanda
--------------------------------------------
Name: Sugeet Manchanda
Title: Principal
SCOTIABANC INC.
By: /s/ William E. Zarrett
--------------------------------------------
Name: William E. Zarrett
Title: Managing Director
BANK ONE, NA
By: /s/ Lisa A. Whatley
--------------------------------------------
Name: Lisa A. Whatley
Title: Credit Officer/Director
SUNTRUST BANK
By: /s/ William C. Barr III
--------------------------------------------
Name: William C. Barr III
Title: Director
DZ BANK AG DEUTSCHE ZENTRAL-
GENOSSENSCHAFTSBANK, FRANKFURT
AM MAIN, (successor by merger to DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG), as a Lender
By: /s/ Bernd Franke
--------------------------------------------
Name: Bernd Franke
Title: Vice President & Head of Portfolio Mgt.
By: /s/ Ronald Matossian
--------------------------------------------
Name: Ronald Matossian
Title: Vice President
CITICORP USA, INC.
By: /s/ Stephanie Bontemps
--------------------------------------------
Name: Stephanie Bontemps
Title: Managing Director
BANK HAPOALIM, B.M.
By: /s/ Shaun Briedbart
--------------------------------------------
Name: Shaun Briedbart
Title: Vice President
By: /s/ Laura Ann Raffa
--------------------------------------------
Name: Laura Anne Raffa
Title: Senior Vice President &
Corporate Manager
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ W. Fassbender
--------------------------------------------
Name: W. Fassbender
Title: Senior Vice President
MIZUHO CORPORATE BANK (successor to
The Industrial Bank of Japan, Limited)
By: not signed
-------------------------------------------
Name: _________________________________________
Title: ________________________________________
BAYERISCHE HYPO-UND VEREINSBANK
AG, NEW YORK BRANCH
By: /s/ Marianne Weinzinger
--------------------------------------------
Name: Marianne Weinzinger
Title: Director
By: /s/ Patricia Grieve
--------------------------------------------
Name: Patricia Grieve
Title: Director
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: not signed
--------------------------------------------
Name: _________________________________________
Title: ________________________________________
NATEXIS BANQUE POPULAIRES
By: /s/ Pieter J. von Tulder
--------------------------------------------
Name: Pieter J. von Tulder
Title: Vice President and Manager
Multinational Group
By: /s/ Nicolar Regent
--------------------------------------------
Name: Nicolar Regent
Title: VP Multinational
BANCA INTESA - NEW YORK BRANCH
By: /s/ Charles Dougherty
--------------------------------------------
Name: Charles Dougherty
Title: Vice President
By: /s/ Frank Maffei
--------------------------------------------
Name: Frank Maffei
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Donald E. Sellers, Jr.
--------------------------------------------
Name: Donald E. Sellers, Jr.
Title: Director
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ David G. Dickinson, Jr.
--------------------------------------------
Name: David G. Dickinson, Jr.
Title: Vice President
By: /s/ William W. McGinty
--------------------------------------------
Name: William W. McGinty
Title: Director
ABN AMRO BANK N.V.
By: /s/ Richard DaCosta
--------------------------------------------
Name: Richard DaCosta
Title: Group Vice President
By: /s/ Jana Dombrowski
--------------------------------------------
Name: Jana Dombrowski
Title: Vice President
SUMITOMO MITSUI BANKING
CORPORATION
By: (not signed)
--------------------------------------------
Name:__________________________________________
Title:_________________________________________
U.S. BANCORP
By: (not signed)
--------------------------------------------
Name:__________________________________________
Title:_________________________________________