Exhibit 10AAP
AMENDMENT NUMBER 5 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 5 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of May 2, 2003 among TECH DATA CORPORATION ("Tech Data"),
a Florida corporation ("Tech Data"), as collection agent (in such capacity, the
"Collection Agent"), TECH DATA FINANCE SPV, INC., a Delaware corporation
headquartered in California, as transferor (in such capacity, the "Transferor"),
RECEIVABLES CAPITAL CORPORATION ("RCC"), a Delaware corporation , LA FAYETTE
ASSET SECURITIZATION LLC, a Delaware corporation ("La Fayette") (assignee of
ATLANTIC ASSET SECURITIZATION CORP., a Delaware corporation, ("Atlantic")),
LIBERTY STREET FUNDING CORP., a Delaware corporation, ("Liberty"), AMSTERDAM
FUNDING CORPORATION, a Delaware corporation ("AFC"), FALCON ASSET SECURITIZATION
CORPORATION, a Delaware corporation, ("Falcon"), BLACK FOREST FUNDING
CORPORATION, a Delaware corporation, ("Black Forest"and collectively with RCC,
Atlantic, Liberty, AFC and Falcon, the "Class Conduits"), CREDIT LYONNAIS NEW
YORK BRANCH, a branch duly licensed under the laws of the State of New York of a
banking corporation organized and existing under the laws of the Republic of
France ("Credit Lyonnais"), as an Atlantic Bank Investor and as agent for
Atlantic and the Atlantic Bank Investors (in such capacity, the "Atlantic
Agent"), THE BANK OF NOVA SCOTIA, a banking corporation organized and existing
under the laws of Canada, acting through its New York Agency ("Scotia Bank"), as
a Liberty Bank Investor and as agent for Liberty and the Liberty Bank Investors
(in such capacity, the "Liberty Agent"), ABN AMRO BANK N.V., a banking
corporation organized and existing under the laws of the Netherlands and acting
through its Chicago Branch ("ABN AMRO"), as an AFC Bank Investor and as agent
for AFC and the AFC Bank Investors (in such capacity, the "AFC Agent"), BANK
ONE, NA (having its main office in Chicago, Illinois), a national banking
association ("Bank One"), as a Falcon Bank Investor and as agent for Falcon and
the Falcon Bank Investors (in such capacity, the "Falcon Agent"), BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, a branch duly licensed under the laws
of New York of a banking corporation organized and existing under the laws of
the Federal Republic of Germany ("HypoVereinsbank"), as a Black Forest Bank
Investor and as agent for Black Forest and the Black Forest Bank Investors (in
such capacity, the "Black Forest Agent") and BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association ("Bank of America"), as agent for
RCC, Atlantic, Liberty, AFC, Falcon, Black Forest, the RCC Bank Investors, the
Atlantic Bank Investors, the Liberty Bank Investors, the
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AFC Bank Investors and the Falcon Bank Investors (in such capacity, the
"Administrative Agent"), as an RCC Bank Investor, as agent for RCC and the RCC
Bank Investors (in such capacity, the "RCC Agent") and Lead Arranger, amending
that certain Transfer and Administration Agreement dated as of May 19, 2000,
among the Transferor, the Collection Agent, the Class Conduits (as defined
thereunder) and the Bank Investors (the "Original Agreement" and said agreement
as amended, the "Agreement").
WHEREAS, Transferor desires to remove Black Forest as a Class
Conduit and HypoVereinsbank as a Bank Investor and Black Forest Agent from the
Agreement;
WHEREAS, the Transferor desires the Facility Limits, Loss and
Dilution Reserves and Maximum Net Investments in the Agreement to be decreased;
WHEREAS, the Transferor desires to extend the Commitment
Termination Date;
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 "Bank Investor" is hereby deleted
and replaced with the following (solely for convenience changed language is
italicized):
""Bank Investor" means (i) with respect to the Class of which RCC
is a member, the RCC Bank Investors, (ii) with respect to the
Class of which Atlantic is a member, the Atlantic Bank Investors,
(iii) with respect to the Class of which Liberty is a member, the
Liberty Bank Investors, (iv) with respect to the Class of which
AFC is a member, the AFC Bank Investors, (v) with respect to the
Class of which Falcon is a member, the Falcon Bank Investors, and
(vi) with respect to any
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other Class, the financial institutions specified as such in any
supplement hereto and their respective successors and permitted
assigns."
(a) The definition of "Class" is hereby deleted and
replaced with the following (solely for convenience changed language is
italicized):
""Class" means each of the following groups of Class Investors:
(i) RCC and the RCC Bank Investors, (ii) Atlantic and the Atlantic Bank
Investors, (iii) Liberty and the Liberty Bank Investors, (iv) AFC and the AFC
Bank Investors, (v) Falcon and the Falcon Bank Investors, or (vi) any other
Class consisting of a multi-seller commercial paper conduit, its related Bank
Investors and its respective assigns and participants, as added from time to
time with the consent of the Administrative Agent and the Transferor as set
forth in Section 11.2(b)."
(a) The definition of "Class Agent" is hereby deleted
and replaced with the following (solely for convenience changed language is
italicized):
""Class Agent" means (i) with respect to the Class of which RCC is
a member, the RCC Agent, (ii) with respect to the Class of which Atlantic is a
member, the Atlantic Agent, (iii) with respect to the Class of which Liberty is
a member, the Liberty Agent, (iv) with respect to the Class of which AFC is a
member, the AFC Agent, (v) with respect to the Class of which Falcon is a
member, the Falcon Agent, and (vi) with respect to any other Class, the
financial institution or other Person specified as such in any amendment or
supplement hereto for such Class."
(a) The definition of "Class Investors" is hereby
deleted and replaced with the following (solely for convenience changed language
is italicized):
""Class Investors" means (i) with respect to the Class of which
RCC is a member, RCC and the RCC Bank Investors, (ii) with respect to the Class
of which Atlantic is a member, Atlantic and the Atlantic Bank Investors, (iii)
with respect to the Class of which Liberty is a member, Liberty and the Liberty
Bank Investors, (iv) with respect to the Class of which AFC is a member, AFC and
the AFC Bank Investors, (v) with respect to the Class of which Falcon is a
member, Falcon and the Falcon Bank Investors, and (vi) with respect to any other
Class, the related Class Conduit and the related Bank Investors."
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(a) The definition of "Commitment Termination Date" is
hereby deleted and replaced with the following (solely for convenience changed
language is italicized):
""Commitment Termination Date" means, with respect to each Class,
August 29, 2003, or such later date to which such Commitment
Termination Date may be extended by Transferor, the related Class
Agent and the related Bank Investors not later than 60 days prior
to the then current Commitment Termination Date for such Class."
(a) The definition of "Corporate Services Provider" is
hereby deleted and replaced with the following (solely for convenience changed
language is italicized):
""Corporate Services Provider" means, (i) with respect to RCC,
Amacar Investments LLC, (ii) with respect to Atlantic, Lord Securities
Corporation, (iii) with respect to Liberty, Global Securitization Services, LLC
and (iv) with respect to AFC, Global Securitization Services, LLC."
(a) The definition of "CP Rate" is hereby deleted and
replaced with the following:
""CP Rate" for each Class Conduit listed below, shall have the
meaning specified in the Annex set forth below for such Class Conduit:
Class Conduit Annex
RCC Annex 1
Falcon Annex 2
AFC Annex 3
Atlantic Annex 4
Liberty Annex 5 "
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(a) The definition of "Facility Limit" is hereby deleted
and replaced with the following (solely for convenience changed language is
italicized):
""Facility Limit" means (i) with respect to the Class of which
Atlantic is a member, $70,380,000; provided that such amount may not at any time
exceed the aggregate Commitments with respect to the Atlantic Bank Investors,
(ii) with respect to the Class of which RCC is a member, $113,220,000; provided
that such amount may not at any time exceed the aggregate Commitments with
respect to the RCC Bank Investors, (iii) with respect to the Class of which
Liberty is a member, $83,640,000; provided that such amount may not at any time
exceed the aggregate Commitments with respect to the Liberty Bank Investors, in
each case, at any time in effect, (iv) with respect to the Class of which AFC is
a member, $70,380,000; provided that such amount may not at any time exceed the
aggregate Commitments with respect to the AFC Bank Investors, in each case, at
any time in effect, (v) with respect to the Class of which Falcon is a member,
$70,380,000; provided that such amount may not at any time exceed the aggregate
Commitments with respect to the Falcon Bank Investors, in each case, at any time
in effect, and (vi) with respect to any other Class, the amount specified as
such in any supplement hereto for such Class; provided that, with respect to any
other Class, the Facility Limit for such Class shall not at any time exceed the
aggregate Commitments for the Bank Investors in such Class."
(a) The definition of "Loss and Dilution Reserve" is
hereby deleted and replaced with the following (solely for convenience changed
language is italicized):
""Loss and Dilution Reserve" means, with respect to each Class, at
any time, an amount equal to the product of (i) the Loss and Dilution Reserve
Percentage and (ii) the Net Investment for such Class at such time.
Notwithstanding the foregoing, (i) with respect to the Class of which RCC is a
member, the portion of the Loss and Dilution Reserve attributable to losses
shall at all times be at least equal to $8,880,000, (ii) with respect to the
Class of which Atlantic is a member, the portion of the Loss and Dilution
Reserve attributable to losses shall at all times be at least equal to
$5,520,000, (iii) with respect to the Class of which Liberty is a member, the
portion of the Loss and Dilution Reserve attributable to losses shall at all
times be at least equal to $6,560,000, (iv) with respect to the Class of which
AFC is a member, the portion of the Loss and Dilution Reserve attributable to
losses shall at all times be at least equal to $5,520,000, (v) with respect to
the Class of which Falcon is a member, the portion of the Loss and Dilution
Reserve attributable to
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losses shall at all times be at least equal to $5,520,000, and (vi) with respect
to any other Class, the portion of the Loss and Dilution Reserve shall at all
times be at least equal to an amount agreed upon by the Transferor, the
Administrative Agent and the Class Agent for such additional class at the time
it becomes a party hereto."
(a) The definition of "Maximum Net Investment" is hereby
deleted and replaced with the following (solely for convenience changed language
is italicized):
""Maximum Net Investment" means (i) with respect to the Class of
which RCC is a member, $111,000,000, (ii) with respect to the Class of which
Atlantic is a member, $69,000,000, (iii) with respect to the Class of which
Liberty is a member, $82,000,000, (iv) with respect to the Class of which AFC is
a member, $69,000,000, (v) with respect to the Class of which Falcon is a
member, $69,000,000, and (vi) with respect to any other Class, the amount set
forth pursuant to Section 11.2(b)."
(a) The definition of "Pro Rata Share" is hereby deleted
and replaced with the following (solely for convenience changed language is
italicized):
""Pro Rata Share" means, (A) for an RCC Bank Investor, the
Commitment of such RCC Bank Investor divided by the sum of the Commitments of
all the RCC Bank Investors, (B) for an Atlantic Bank Investor, the Commitment of
such Atlantic Bank Investor divided by the sum of the Commitments of all
Atlantic Bank Investors, (C) for a Liberty Bank Investor, the Commitment of such
Liberty Bank Investor divided by the sum of the Commitments of all Liberty Bank
Investors, (D) for an AFC Bank Investor, the Commitment of such AFC Bank
Investor divided by the sum of the Commitments of all AFC Bank Investors, (E)
for a Falcon Bank Investor, the Commitment of such Falcon Bank Investor divided
by the sum of the Commitments of all Falcon Bank Investors, and (F) with respect
to any other Class, for each Bank Investor of such Class, the Commitment of such
Bank Investor divided by the sum of the Commitments of all Bank Investors of
such Class."
(a) The following definitions shall be deleted from
Section 1.1 in the appropriate alphabetical order:
(1) "Black Forest" means Black Forest Funding
Corporation, and its successors and assigns.
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(1) "Black Forest Agent" means HypoVereinsbank, in its
capacity as agent for Black Forest and the Black Forest Bank
Investors, and any successor thereto appointed pursuant to Article IX.
(1) "Black Forest Bank Investors" shall mean
HypoVereinsbank and its successors and assigns who are or become
parties to this Agreement as such pursuant to an Assignment and
Assumption Agreement.
(1) "HypoVereinsbank" means Bayerische Hypo-und
Vereinsbank AG, New York Branch, a branch duly licensed under the laws
of New York of a banking corporation organized and existing under the
laws of the Federal Republic of Germany, and its successors and
assigns.
SECTION 2. Amendment to Section 11.3. Section 11.3 of the
Original Agreement is hereby amended by deleting the following language:
"If to Black Forest:
Black Forest Funding Corporation
c/o HypoVereinsbank AG
150 East 42nd Street
New York, NY 10017
Attn: Asset-Backed Finance Dept.
Telephone: (212) 672-5729
Telecopy: (212) 672-5518"; and
SECTION 3. Amendment to Annex 6. Annex 6 is hereby deleted in its
entirety.
SECTION 4. As of the date hereof, HypoVereinsbank and Black
Forest have no further obligations under the Agreement. Notwithstanding the
terms
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of this Amendment, the parties' obligations under Section 8.1, Section 11.9 and
Section 11.10 shall continue and shall survive this Amendment.
SECTION 5. Atlantic Assignment. All parties hereto agree and
acknowledge that Atlantic has assigned all of its rights and interests in the
Agreement to La Fayette and therefore all references in the Agreement to
Atlantic shall be deemed to refer to La Fayette.
SECTION 6. Affirmations. All parties hereto agree and acknowledge that
with respect to each Bank Investor party hereto, each Bank Investor has a
Commitment and such Commitment of such Bank Investor shall be the dollar amount
set forth opposite such Bank Investor's signature on the signature page hereto,
which may be different from the Original Agreement.
SECTION 7. Conditions Precedent. This Amendment shall not become
effective until the Administrative Agent shall have received the following:
(b) 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 Administrative Agent and the
Bank Investors may conclusively rely until such time as the Administrative Agent
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;
SECTION 8. 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.
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SECTION 9. Successors and Assigns. This Amendment shall bind, and the
benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns;
SECTION 10. 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 11. 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 12. 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 13. 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.
TECH DATA FINANCE SPV, INC.,
as Transferor
By: /s/ Arthur W. Singleton
--------------------------------------
Name: Arthur W. Singleton
Title: Vice President, Secretary, Treasurer
and Chief Financial Officer
TECH DATA CORPORATION,
as Collection Agent
By: /s/ Arthur W. Singleton
--------------------------------------
Name: Arthur W. Singleton
Title: Corporate Vice President, Secretary
and Treasurer
RECEIVABLES CAPITAL CORPORATION
By: /s/ Douglas K. Johnson
-------------------------------------------
Name: Douglas K. Johnson
Title: President
LA FAYETTE ASSET SECURITIZATION LLC
By: CREDIT LYONNAIS NEW YORK BRANCH,
as attorney-in-fact
By: /s/ Joan Flanigan-Clarke
--------------------------------------------
Name: Joan Flanigan-Clarke
Title: Vice President
LIBERTY STREET FUNDING CORP.
By: /s/ Andrew L. Stidd
-------------------------------------------
Name: Andrew L. Stidd
Title: President
AMSTERDAM FUNDING CORPORATION
By: /s/ Bernard J. Angelo
-------------------------------------------
Name: Bernard J. Angelo
Title: Vice President
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Maureen E. Marcon
-------------------------------------------
Name: Maureen E. Marcon
Title: Authorized Signor
BLACK FOREST FUNDING CORPORATION
By: /s/ Lori Gebron
-------------------------------------------
Name: Lori Gebron
Title: Vice President
Commitment BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent,
RCC
$113,220,000 Agent and as an RCC Bank Investor
By: /s/ Christopher G. Young
-----------------------------------------
Name: Christopher G. Young
Title: Vice President
Commitment CREDIT LYONNAIS NEW YORK
BRANCH,
$35,372,160 as Atlantic Agent and as an Atlantic Bank
Investor
By: /s/ Joan Flanigan-Clarke
---------------------------------------
Name: Joan Flanigan-Clarke
Title: Vice President
Commitment THE BANK OF NOVA SCOTIA, as Liberty
$83,640,000 Agent and as a Liberty Bank Investor
By: /s/ J. Alan Edwards
----------------------------------
Name: J. Alan Edwards
Title: Managing Director
Commitment ABN AMRO BANK N.V., as AFC Agent
$70,380,000 and as an AFC Bank Investor
By: /s/ Bernard Koh
-----------------------------------
Name: Bernard Koh
Title: Senior Vice President
By: /s/ Therese Gremley
-----------------------------------
Name: Therese Gremley
Title: Vice President
Commitment BANK ONE, NA (having its main office
$70,380,000 in Chicago Illinois), as Falcon Agent
and as a Falcon Bank Investor
By: /s/ Maureen E. Marcon
------------------------------------
Name: Maureen E. Marcon
Title: Director, Capital Markets
Commitment BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK
BRANCH,
$0 as Black Forest Agent and Black Forest
Bank Investor
By: /s/ Pamela J. Gillons
------------------------------------------
Name: Pamela J. Gillons
Title: Associate Director
By: /s/ Mark Hirshorn
------------------------------------------
Name: Mark Hirshorn
Title: Managing Director
Commitment LLOYDS TSB BANK PLC,
$35,007,840 as an Atlantic Bank Investor
By: /s/ Michelle White
------------------------------------
Name: Michelle White
Title: Assistant Vice President
Structured Finance, W 154
By: /s/ Thea Watkins
------------------------------------
Name: Thea Watkins
Title: Vice President
Structured Finance, W001
Commitment LLOYDS TSB BANK PLC,
$56,610,000 as an RCC Bank Investor
By: /s/ Michelle White
------------------------------------
Name: Michelle White
Title: Assistant Vice President
Structured Finance, W 154
By: /s/ Thea Watkins
------------------------------------
Name: Thea Watkins
Title: Vice President
Structured Finance, W001