EXHIBIT 10.AAa
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TRANSFER AND ADMINISTRATION AGREEMENT
among
RECEIVABLES CAPITAL CORPORATION,
ATLANTIC ASSET SECURITIZATION CORP.,
LIBERTY STREET FUNDING CORP.,
AMSTERDAM FUNDING CORPORATION,
FALCON ASSET SECURITIZATION CORPORATION,
TECH DATA FINANCE SPV, INC.,
as Transferor
and
TECH DATA CORPORATION,
as Collection Agent
CREDIT LYONNAIS NEW YORK BRANCH,
as an Atlantic Bank Investor
BANQUE NATIONALE DE PARIS,
as an Atlantic Bank Investor
THE BANK OF NOVA SCOTIA,
as a Liberty Bank Investor
ABN AMRO BANK N.V.,
as an AFC Bank Investor
BANK ONE, NA,
as a Falcon Bank Investor
and
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrative Agent, an RCC Bank Investor and Lead Arranger
Dated as of May 19, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms..............................................................................2
SECTION 1.2. Other Terms.......................................................................................23
SECTION 1.3. Computation of Time Periods.......................................................................23
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. Facility..........................................................................................24
SECTION 2.2. Transfers; Certificates; Eligible Receivables.....................................................24
SECTION 2.3. Selection of Tranche Periods and Tranche Rates....................................................28
SECTION 2.4. Discount, Fees and Other Costs and Expenses.......................................................30
SECTION 2.5. Non-Liquidation Settlement and Reinvestment Procedures............................................31
SECTION 2.6. Liquidation Settlement Procedures.................................................................31
SECTION 2.7. Fees..............................................................................................33
SECTION 2.8. Protection of Ownership Interest of the Class Investors...........................................34
SECTION 2.9. Deemed Collections; Application of Payments.......................................................34
SECTION 2.10. Payments and Computations, Etc....................................................................35
SECTION 2.11. Reports...........................................................................................35
SECTION 2.12. Collection Account................................................................................36
SECTION 2.13. Sharing of Payments, Etc..........................................................................36
SECTION 2.14. Rights of Set-off.................................................................................36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Transferor...................................................37
SECTION 3.2. Reaffirmation of Representations and Warranties by the Transferor..................................41
SECTION 3.3. Representations and Warranties of Tech Data, as Collection Agent...................................41
SECTION 3.4. Reaffirmation of Representations and Warranties by Tech Data, as Collection Agent..................43
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. Conditions to Closing..............................................................................43
ARTICLE V
COVENANTS
SECTION 5.1. Affirmative Covenants of Transferor................................................................45
SECTION 5.2. Negative Covenants of Transferor...................................................................49
SECTION 5.3. Affirmative Covenants of Tech Data.................................................................50
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SECTION 5.4. Negative Covenants of Tech Data....................................................................53
SECTION 5.5. Financial Covenants of the Collection Agent........................................................54
ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. Appointment of Collection Agent....................................................................55
SECTION 6.2. Duties of Collection Agent.........................................................................55
SECTION 6.3. Rights After Designation of New Collection Agent...................................................56
SECTION 6.4. Responsibilities of the Transferor and Tech Data...................................................57
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. Termination Events.................................................................................57
SECTION 7.2. Termination........................................................................................59
ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. Indemnities by the Transferor......................................................................60
SECTION 8.2. Indemnity for Taxes, Reserves and Expenses.........................................................61
SECTION 8.3. Other Costs, Expenses and Related Matters..........................................................63
SECTION 8.4. Reconveyance Under Certain Circumstances...........................................................63
SECTION 8.5. Indemnities by Tech Data...........................................................................63
ARTICLE IX
THE CLASS AGENTS
SECTION 9.1. Authorization and Action...........................................................................64
SECTION 9.2. Class Agent's Reliance, Etc........................................................................65
SECTION 9.3. Credit Decision....................................................................................65
SECTION 9.4. Indemnification of the Class Agents................................................................65
SECTION 9.5. Successor Class Agent..............................................................................66
SECTION 9.6. Payments by the Class Agent........................................................................66
ARTICLE X
THE ADMINISTRATIVE AGENT; BANK COMMITMENT
SECTION 10.1. Authorization and Action...........................................................................66
SECTION 10.2. Administrative Agent's Reliance, Etc...............................................................67
SECTION 10.3. Credit Decision....................................................................................68
SECTION 10.4. Indemnification of the Administrative Agent........................................................68
SECTION 10.5. Successor Administrative Agent.....................................................................69
SECTION 10.6. Payments by the Administrative Agent...............................................................69
SECTION 10.7. Bank Commitment; Assignment to Bank Investors......................................................69
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Term of Agreement................................................................................73
SECTION 11.2. Waivers; Amendments..............................................................................73
SECTION 11.3. Notices..........................................................................................74
SECTION 11.4. Governing Law; Submission to Jurisdiction; Integration...........................................77
SECTION 11.5. Severability; Counterparts.......................................................................77
SECTION 11.6. Successors and Assigns...........................................................................77
SECTION 11.7. Waiver of Confidentiality........................................................................79
SECTION 11.8. Confidentiality Agreement........................................................................79
SECTION 11.9. No Bankruptcy Petition Against any Class Conduit.................................................79
SECTION 11.10. No Recourse Against Stockholders, Officers or Directors..........................................79
SECTION 11.11. Characterization of the Transactions Contemplated by the Agreement...............................80
SECTION 11.12. Optional Reconveyance of All Receivables.........................................................80
SECTION 11.13. Mandatory Reconveyance of Certain Receivables....................................................80
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TRANSFER AND ADMINISTRATION AGREEMENT
TRANSFER AND ADMINISTRATION AGREEMENT (this "AGREEMENT"),
dated as of May 19, 2000 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 , 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" and collectively with RCC,
Atlantic, Liberty and AFC, 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"), BANQUE NATIONALE DE PARIS, a French banking corporation, acting through
its Houston agency ("BNP"), as an Atlantic Bank Investor, 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") and BANK OF AMERICA, NATIONAL ASSOCIATION, a
national banking association ("BANK OF AMERICA"), as agent for RCC, Atlantic,
Liberty, AFC, Falcon, the RCC Bank Investors, the Atlantic Bank Investors, the
Liberty Bank Investors, the 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 "THE RCC AGENT") and
Lead Arranger.
PRELIMINARY STATEMENTS
WHEREAS, Tech Data Finance, Inc., the Collection Agent,
Enterprise Funding Corporation, Atlantic, Liberty and Bank of America, Credit
Lyonnais and Scotia Bank, as agents and bank investors, have terminated that
certain Second Amended and Restated Transfer and Administration Agreement, dated
as of February 10, 1999, among Tech Data, as collection agent, Tech Data
Finance, Inc., a California corporation, as transferor, Enterprise, Atlantic,
Liberty, Bank of America, Credit Lyonnais and Scotia Bank, as amended to the
date hereof (the "EXISTING AGREEMENT");
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WHEREAS, the parties hereto desire to enter into this
Agreement to provide, among other things, for the transfer of certain accounts
receivable from the Transferor to the Administrative Agent on behalf of the
Class Conduits and the Bank Investors, as applicable;
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINED TERMS. As used in this Agreement,
the following terms shall have the following meanings:
"ABN AMRO" means ABN AMRO Bank N.V., a banking corporation
organized and existing under the laws of the Netherlands and acting through its
Chicago branch, and its successors and assigns.
"ADMINISTRATIVE AGENT" means Bank of America, National
Association, in its capacity as agent for the Class Investors, and any
successors thereto and permitted assigns appointed pursuant to Article X.
"ADVERSE CLAIM" means a lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person's assets or
properties in favor of any other Person (including any UCC financing statement
or any similar instrument filed against such Person's assets or properties).
"AFC" means Amsterdam Funding Corporation, and its successors
and assigns.
"AFC AGENT" means ABN AMRO Bank, in its capacity as agent for
AFC and the AFC Bank Investors, and any successor thereto appointed pursuant to
Article IX.
"AFC BANK INVESTORS" shall mean ABN AMRO and its successors
and assigns who are or become parties to this Agreement as such pursuant to an
Assignment and Assumption Agreement.
"AFFECTED ASSETS" means, collectively, the Receivables and the
Related Security, Collections and Proceeds relating thereto.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting stock, by contract or
otherwise.
"AFFILIATED OBLIGOR" means any Obligor which is an Affiliate
of another Obligor.
"AGGREGATE FACILITY LIMIT" means the sum of the Facility
Limits for each Class, which shall not exceed $714,000,000.
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"AGGREGATE MAXIMUM NET INVESTMENT" means the sum of the
Maximum Net Investments for each Class, which shall not exceed $700,000,000.
"AGGREGATE NET INVESTMENT" means the sum of the Net
Investments for each Class.
"AGGREGATE PERCENTAGE FACTOR" means the sum of the Percentage
Factors for each Class.
"AGGREGATE UNPAIDS" means, with respect to each Class
Investor, as applicable, at any time, an amount equal to the sum of (i) the
aggregate accrued and unpaid Discount payable to such Class Investor with
respect to all Tranche Periods of such Class Investor at such time, (ii) such
Class Investor's Net Investment at such time and (iii) all other amounts owed
(whether due or accrued) hereunder by the Transferor (or the Collection Agent)
to the Class Investors at such time.
"ASSIGNMENT AMOUNT" means with respect to each Class and with
respect to each Bank Investor in such Class at any time an amount equal to the
lesser of (i) such Bank Investor's Pro Rata Share of the Net Investment for the
related Class at such time, (ii) such Bank Investor's unused Commitment and
(iii) such other amount as may be separately agreed by a Conduit Investor and
each applicable Bank Investor, pursuant to a Liquidity Provider Agreement.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means an Assignment and
Assumption Agreement substantially in the form of Exhibit G attached hereto.
"ATLANTIC AGENT" means Credit Lyonnais, in its capacity as
agent for Atlantic and the Atlantic Bank Investors, and any successor thereto
appointed pursuant to Article IX.
"ATLANTIC BANK INVESTORS" means Credit Lyonnais and BNP, their
respective successors and assigns who are or become parties to this Agreement as
such pursuant to an Assignment and Assumption Agreement.
"AVERAGE COLLECTION PERIOD" means at any time a period of days
equal to the product of (i) a fraction the numerator of which shall be the
amount set forth in the most recent Investor Report as the "Beginning Balance"
of the Receivables and the denominator of which shall be the Collections as set
forth in the most recent Investor Report and (ii) thirty (30).
"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, as
applicable, and (vi) with respect to any other Class, the financial institutions
specified as such in any supplement hereto and their respective successors and
permitted assigns.
"BANK ONE" means Bank One, NA (having its main office in
Chicago, Illinois), a national banking association, and its successors and
assigns.
"BASE RATE" or "BR" means, a rate per annum equal to the
greater of (i) the prime rate of interest announced by the Administrative Agent
from time to time, changing when and as said prime rate changes (such rate not
necessarily being the lowest or best rate charged by the
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Administrative Agent) and (ii) sum of (a) 1.50% and (b) the rate equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day for such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"BENEFIT PLAN" means any employee benefit plan as defined in
Section 3(3) of ERISA in respect of which the Transferor or any ERISA Affiliate
of the Transferor, is or at any time during the immediately preceding six years
was, an "employer" as defined in Section 3(5) of ERISA.
"BNP" means Banque Nationale de Paris, a French banking
association acting through its Houston agency, and its successors and assigns.
"BR TRANCHE" means, with respect to a Class, a Tranche of such
Class as to which Discount is calculated at the Base ate.
"BR TRANCHE PERIOD" means, with respect to a BR Tranche,
either (i) prior to the Termination Date for the applicable Class, a period of
up to 30 days requested by the Transferor and agreed to by the applicable Class
Agent commencing on a Business Day requested by the Transferor and agreed to by
such Class Agent, or (ii) after such Termination Date, a period of one day. If
such BR Tranche Period would end on a day which is not a Business Day, such BR
Tranche Period shall end on the next succeeding Business Day.
"BUSINESS DAY" means any day excluding Saturday, Sunday and
any day on which banks in New York, New York, Charlotte, North Carolina, San
Francisco, California, Clearwater, Florida or Chicago, Illinois are authorized
or required by law to close, and, when used with respect to the determination of
any Eurodollar Rate or any notice with respect thereto, any such day which is
also a day for trading by and between banks in United States dollar deposits in
the London interbank market.
"CAPITALIZED LEASE" of a Person means any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with generally accepted accounting principles.
"CERTIFICATE" means the certificate issued to the
Administrative Agent for the benefit of the Class Investors pursuant to Section
2.2(d) hereof.
"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).
"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
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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.
"CLASS CONDUIT" shall mean, with respect to any Class, the
member in such Class which is a multi-seller commercial paper conduit (and if
more than one member in such Class is a multi-seller commercial paper conduit,
"CLASS CONDUIT" shall mean such members collectively).
"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.
"CLOSING DATE" means May 19, 2000.
"COLLATERAL AGENT" means with respect to any Class, the Class
Agent for such Class, as collateral agent for any Liquidity Provider, any Credit
Support Provider, the holders of Commercial Paper and certain other parties.
"COLLECTION ACCOUNT" means the account, established by the
Administrative Agent, for the benefit of the Class Investors pursuant to Section
2.12.
"COLLECTION AGENT" means at any time the Person then
authorized pursuant to Section 6.1 to service, administer and collect
Receivables.
"COLLECTION AGENT ACCOUNT" means the account, established by
the Collection Agent, for the benefit of the Class Investors pursuant to Section
2.8(b).
"COLLECTION AGENT DEFAULT" shall mean the Collection Agent
shall violate any of the covenants set forth in Section 5.5.
"COLLECTION DELAY" means 30 days.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including, without
limitation, all Finance Charges, if any, insurance proceeds, and cash proceeds
of Related Security with respect to such Receivable and any Deemed Collections
of such Receivable.
"COMMERCIAL PAPER" means the promissory notes issued by one or
all, as applicable, of the Class Conduits in the commercial paper market.
"COMMITMENT" means (i) with respect to each Bank Investor
party hereto, the commitment of such Bank Investor to make acquisitions from the
Transferor or its related Class Conduit in accordance herewith in an amount not
to exceed the dollar amount set forth opposite such Bank Investor's signature on
the signature page hereto under the heading "COMMITMENT", MINUS the dollar
amount of any Commitment or portion thereof assigned pursuant to an Assignment
and
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Assumption Agreement PLUS the dollar amount of any increase to such Bank
Investor's Commitment consented to by such Bank Investor prior to the time of
determination, (ii) with respect to any assignee of each Bank Investor party
hereto taking pursuant to an Assignment and Assumption Agreement, the commitment
of such assignee to make acquisitions from the Transferor or the related Class
Conduit, as applicable, not to exceed the amount set forth in such Assignment
and Assumption Agreement MINUS the dollar amount of any Commitment or portion
thereof assigned pursuant to an Assignment and Assumption Agreement prior to
such time of determination PLUS the dollar amount of any increase to such
assignee's Commitment consented to by such assignee prior to the time of
determination and (iii) with respect to any assignee of an assignee referred to
in clause (ii), the commitment of such assignee to make acquisitions from the
Transferor or the related Class Conduit not to exceed the amount set forth in an
Assignment and Assumption Agreement between such assignee and its assign MINUS
the dollar amount of any Commitment or portion thereof assigned pursuant to an
Assignment and Assumption Agreement PLUS the dollar amount of any increase to
such assignee's Commitment consented to by such assignee prior to the time of
determination.
"COMMITMENT TERMINATION DATE" means, with respect to each
Class, May 17, 2001, 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.
"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, at least "A+" by
Standard & Poor's and at least "A+" by DCR and with respect to which rating
neither Moody's, Standard & Poor's nor DCR 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 Administrative Agent in
the reasonable exercise of its good faith judgment and with the consent of all
of the Class Agents and disclosed in a written notice delivered to the
Transferor.
"CONDUIT ASSIGNEE" means, with respect to a Conduit Investor,
any commercial paper conduit administered by the Class Agent with respect to
such Conduit Investor or any of its Affiliates and designated by such Class
Agent from time to time to accept an assignment from such Conduit Investor of
all or a portion of the Net Investment held by such Conduit Investor.
"CONSOLIDATED SENIOR LEVERAGE RATIO" has the meaning specified
in Exhibit N hereto.
"CONSOLIDATED RENTAL EXPENSE RATIO" has the meaning specified
in Exhibit N hereto.
"CONTRACT" means an agreement or invoice in substantially the
form of one of the forms set forth in Exhibit A attached hereto or otherwise
approved by the Administrative Agent, pursuant to or under which an Obligor
shall be obligated to pay for merchandise purchased or services rendered.
"CORPORATE SERVICES PROVIDER" means, (i) with respect to RCC,
Merrill Lynch Money Markets Inc., (ii) with respect to Atlantic, Lord Securities
Corporation, (iii) with respect to Liberty,
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Global Securitization Services, LLC and (iv) with respect to AFC, Global
Securitization Services, LLC.
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"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
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RCC Annex 1
Falcon Annex 2
AFC Annex 3
Atlantic Annex 4
Liberty Annex 5
"CP TRANCHE" means, with respect to a Class, a Tranche of such
Class as to which Discount is calculated at the CP Rate.
"CP TRANCHE PERIOD" means, with respect to a CP Tranche, a
period of days not to exceed 90 days commencing on a Business Day requested by
the Transferor and agreed to by the applicable Class Agent pursuant to Section
2.3, or if applicable, such a period selected by the applicable Class Agent. If
a CP Tranche Period would end on a day which is not a Business Day, such CP
Tranche Period shall end on the next succeeding Business Day.
"CREDIT AGREEMENT" means that certain Credit Agreement, dated
as of May 19, 2000, between Tech Data and the Transferor.
"CREDIT AND COLLECTION POLICY" shall mean Tech Data's and the
Transferor's credit and collection policy or policies and practices, relating to
Contracts and Receivables existing on the date hereof and referred to in Exhibit
B attached hereto, as modified from time to time in compliance with Section
5.2(c).
"CREDIT LYONNAIS" means 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 France, and its successors
and assigns.
"CREDIT SUPPORT AGREEMENT" means with respect to each Class
Conduit, any agreement between such Class Conduit and a Credit Support Provider
evidencing the obligation of such Credit Support Provider to provide credit
support to such Class Conduit in connection with the issuance by such Class
Conduit of its Commercial Paper.
"CREDIT SUPPORT PROVIDER" means, with respect to each Class,
the Person or Persons who provides credit support to the related Class Conduit,
in connection with the issuance by such Class Conduit of Commercial Paper.
"CURRENT RECEIVABLE" means any Receivable with respect to
which no payment is outstanding beyond the date on which such payment was due.
"DCR" means Duff & Phelps Credit Rating Co.
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"DEALER FEE" means, with respect to each Class, the fee
payable by the Transferor to the Administrative Agent on behalf of the related
Class Conduit, pursuant to Section 2.4 hereof, the terms of which are set forth
in the Fee Letter.
"DEEMED COLLECTIONS" means any Collections on any Receivable
deemed to have been received pursuant to Section 2.9(a) or (b) hereof.
"DEFAULTED RECEIVABLE" means a Receivable: (i) as to which any
payment, or part thereof, remains unpaid for 91 days or more from the original
due date for such Receivable; (ii) as to which an Event of Bankruptcy has
occurred with respect to the Obligor thereof; (iii) which has been identified by
the Collection Agent as uncollectible; or (iv) which, consistent with the Credit
and Collection Policy, has been or should be written off the Transferor's books
as uncollectible.
"DEFAULTING BANK INVESTOR" shall have the meaning set forth in
Section 2.2 hereof.
"DEFICIT" shall have the meaning set forth in Section 2.2
hereof.
"DELINQUENCY RATIO" means, the ratio (expressed as a
percentage) computed as of the last day of each calendar month by dividing (i)
the aggregate Outstanding Balance of all outstanding Receivables as to which on
the date of determination, any payment or part thereof, remains unpaid for more
than 30 days from the original due date for such Receivable and which is not a
Defaulted Receivable, by (ii) the aggregate Outstanding Balance of all
Receivables as of such date less Defaulted Receivables as of such date. For
purposes of this calculation, any credits shall be excluded.
"DELINQUENT RECEIVABLE" means a Receivable: (i) as to which
any payment, or part thereof, remains unpaid for more than 60 days from the
original due date for such Receivable and (ii) which is not a Defaulted
Receivable.
"DESIGNATED OBLIGOR" means, at any time, each Obligor;
PROVIDED, HOWEVER, that any Obligor shall cease to be a Designated Obligor upon
notice from the Administrative Agent to the Transferor and the Collection Agent,
delivered at any time in good faith and based upon reasonable criteria.
"DILUTION RATIO" means, the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the aggregate
amount of credits, rebates, discounts, disputes, warranty claims, repossessed or
returned goods, charge back allowances and other dilutive factors, and any other
billing or other adjustment by the Transferor or the Collection Agent, provided
to Obligors in respect of Receivables during the preceding three months
(including such month) by (ii) the aggregate Outstanding Balance of all
Receivables which arose during the three month period commencing with the first
day of the fourth preceding month and ending with the last day of the second
preceding month.
"DILUTION RESERVE RATIO" means, at any time, an amount equal
to the highest Dilution Ratio as of the last day of any of the preceding six (6)
months.
"DISCOUNT" means, with respect to any Tranche Period:
(TR x TNI x AD)
360
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Where:
TR = the Tranche Rate applicable to such Tranche Period.
TNI = the portion of the Net Investment for the applicable Class allocated to
such Tranche Period.
AD = the actual number of days during such Tranche Period.
PROVIDED, HOWEVER, that no provision of this Agreement shall require the payment
or permit the collection of Discount in excess of the maximum amount permitted
by applicable law; and PROVIDED, FURTHER, that Discount shall not be considered
paid by any distribution if at any time such distribution is rescinded or must
be returned for any reason. For any Discount computed by reference to the CP
Rate with respect to any Class Conduit that utilizes "pool" funding, the
applicable Tranche Rate shall be determined by the applicable Class Agent on or
prior to the fifth Business Day of the calendar month following the applicable
Tranche Period.
"DISCOUNT RESERVE" means, with respect to each Class, at any
time, an amount equal to:
TD + LY
Where:
TD = the sum of the unpaid Discount for such Class for all Tranche Periods.
LY = the Liquidation Yield for such Class.
"EARLY COLLECTION FEE" means, with respect to any Tranche and
for any Tranche Period (such Tranche Period to be determined without regard to
the last sentence in Section 2.3(a) hereof) during which the portion of the Net
Investment that was allocated to such Tranche Period is reduced for any reason
whatsoever, the excess, if any, of (i) the additional Discount that would have
accrued during such Tranche Period if such reductions had not occurred, minus
(ii) the income, if any, received by the recipients of such reductions from
investing the proceeds of such reductions.
"ELIGIBLE INVESTMENTS" means any of the following: (a)
negotiable instruments or securities represented by instruments in bearer or
registered or in book-entry form which evidence (i) obligations fully guaranteed
by the United States of America; (ii) time deposits in, or bankers acceptances
issued by, any depositary institution or trust company incorporated under the
laws of the United States of America or any state thereof and subject to
supervision and examination by Federal or state banking or depositary
institution authorities; PROVIDED, HOWEVER, that at the time of investment or
contractual commitment to invest therein, the certificates of deposit or
short-term deposits, if any, or long-term unsecured debt obligations (other than
such obligation whose rating is based on collateral or on the credit of a Person
other than such institution or trust company) of such depositary institution or
trust company shall have a credit rating from Moody', S&P and DCR of at least
"P-1", "A-1" and "D-1", respectively, in the case of the certificates of deposit
or short-term deposits, or a rating not lower than one of the two highest
investment categories granted by Moody's, S&P and by DCR; (iii) certificates of
deposit having, at the time of investment or contractual
10
commitment to invest therein, a rating from Moody's, S&P, and DCR of at least
"P-1", "A-1" and "D-1", respectively; or (iv) investments in money market funds
rated in the highest investment category or otherwise approved in writing by the
applicable rating agencies, (b) demand deposits in any depositary institution or
trust company referred to in (a)(ii) above; (c) commercial paper (having
original or remaining maturities of no more than 30 days) having, at the time of
investment or contractual commitment to invest therein, a credit rating from
Moody's, S&P and DCR of at least "P-1", "A-1" and "D-1", respectively; (d)
Eurodollar time deposits having a credit rating from Moody's, S&P and DCR of at
least "P-1", "A-1" and "D-1", respectively; and (e) repurchase agreements
involving any of the Eligible Investments described in clauses (a)(i), (a)(iii)
and (d) hereof so long as the other party to the repurchase agreement has at the
time of investment therein, a rating from Moody's, S&P and DCR of at least
"P-1", "A-1" and "D-1", respectively.
"ELIGIBLE RECEIVABLE" means, at any time, any Receivable:
(i) which has been transferred by Tech Data to the
Transferor pursuant to the Purchase Agreement and to which the
Transferor has good title thereto, free and clear of all Adverse
Claims;
(ii) the Obligor of which is a United States resident,
is a Designated Obligor at the time of the initial creation of an
interest therein hereunder, is not an Affiliate or employee of
any of the parties hereto, and is not a government or a
governmental subdivision or agency;
(iii) which is not a Defaulted Receivable at the time of
the initial creation of an interest of the Administrative Agent
therein hereunder;
(iv) which is not a Delinquent Receivable at the time of
the initial creation of an interest of the Administrative Agent
therein;
(v) which, (A) arises pursuant to a Contract with
respect to which each of the Seller and the Transferor has
performed all obligations required to be performed by it
thereunder, including without limitation shipment of the
merchandise and/or the performance of the services purchased
thereunder; (B) has been billed; and (C) according to the
Contract related thereto, is required to be paid in full within
60 days of the original billing date therefor;
(vi) which is an "eligible asset" as defined in Rule
3a-7 under the Investment Company Act of 1940, as amended;
(vii) a purchase of which with the proceeds of
Commercial Paper would constitute a "current transaction" within
the meaning of Section 3(a)(3) of the Securities Act of 1933, as
amended;
(viii) which is an "account" or "chattel paper" within
the meaning of Article 9 of the UCC of all applicable
jurisdictions;
(ix) which is denominated and payable only in United
States dollars in the United States;
11
(x) which, arises under a Contract that together with
the Receivable related thereto, is in full force and effect and
constitutes the legal, valid and binding obligation of the
related Obligor enforceable against such Obligor in accordance
with its terms and, to the best knowledge of the Collection Agent
or the Transferor is not subject to any litigation, dispute,
offset, counterclaim or other defense at such time;
(xi) which, together with the Contract related thereto,
does not contravene in any material respect any laws, rules or
regulations applicable thereto (including, without limitation,
laws, rules and regulations relating to truth in lending, fair
credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy) and with respect to
which no part of the Contract related thereto is in violation of
any such law, rule or regulation in any material respect;
(xii) which (A) satisfies, in all material respects, all
applicable requirements of the applicable Credit and Collection
Policy and (B) is assignable without the consent of, or notice
to, the Obligor thereunder unless such consent has been obtained
and is in effect or such notice has been given;
(xiii) which was generated in the ordinary course of
Tech Data's business;
(xiv) the Obligor of which has been directed to make all
payments to a specified account of the Collection Agent with
respect to which there shall be a Lock-Box Agreement in effect;
(xv) which has not been compromised, adjusted or
modified (including by the extension of time for payment or the
granting of any discounts, allowances or credits); PROVIDED,
HOWEVER, that only such portion of such Receivable that is the
subject of such compromise, adjustment or modification shall be
deemed to be ineligible pursuant to the terms of this clause
(xv);
(xvi) the assignment of which under the Purchase
Agreement by the Seller to the Transferor and hereunder by the
Transferor to the Administrative Agent does not violate, conflict
or contravene any applicable Law or any contractual or other
restriction, limitation or encumbrance; and
(xvii) which is not subject to any Adverse Claim and
with respect to which no financing statement has been filed
except as permitted by this Agreement or any other Transaction
Document.
"ERISA" means the U.S. Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means, with respect to any Person, (i) any
corporation which is a member of the same controlled group of corporations
(within the meaning of Section 414(b) of the Code (as in effect from time to
time, the "Code")) as such Person; (ii) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Code) with
12
such Person; or (iii) a member of the same affiliated service group (within the
meaning of Section 414(n) of the Code) as such Person, any corporation described
in clause (i) above or any trade or business described in clause (ii) above.
"ESTIMATED MATURITY PERIOD" means, at any time, the period,
rounded upward to the nearest whole number of days, equal to the weighted
average number of days until due of the Receivables as calculated by the
Collection Agent in good faith and set forth in the most recent Investor Report,
such calculation to be based on the assumptions that (a) each Receivable within
a particular aging category, (as set forth in the Investor Report) will be paid
on the last day of such aging category and (b) the last day of the last such
aging category coincides with the last date on which any Outstanding Balance of
any Receivables would be written off as uncollectible or charged against any
applicable reserve or similar account in accordance with the objective
requirements of the Credit and Collection Policy and the Transferor's normal
accounting practices applied on a basis consistent with those reflected in the
Transferor's financial statements, PROVIDED, HOWEVER, that if any of the Class
Investors shall reasonably disagree with any such calculation, the
Administrative Agent may recalculate the Estimated Maturity Period on the basis
of such calculation at such time, and such recalculation, in the absence of
manifest error, shall be conclusive.
"EURODOLLAR RATE" means, with respect to any Eurodollar
Tranche Period, a rate which is 1.125% in excess of a rate per annum equal to
the sum (rounded upwards, if necessary, to the next higher 1/100 of 1%) of (A)
the rate obtained by dividing (i) the applicable LIBOR Rate by (ii) a percentage
equal to 100% minus the reserve percentage used for determining the maximum
reserve requirement as specified in Regulation D (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) that is
applicable to the Administrative Agent during such Eurodollar Tranche Period in
respect of eurocurrency or eurodollar funding, lending or liabilities (or, if
more than one percentage shall be so applicable, the daily average of such
percentage for those days in such Eurodollar Tranche Period during which any
such percentage shall be applicable) plus (B) the then daily net annual
assessment rate (rounded upwards, if necessary, to the nearest 1/100 of 1%) as
estimated by the Administrative Agent for determining the current annual
assessment payable by the Administrative Agent to the Federal Deposit Insurance
Corporation in respect of eurocurrency or eurodollar funding, lending or
liabilities.
"EURODOLLAR TRANCHE" means, with respect to a Class, a Tranche
of such Class as to which Discount is calculated at the Eurodollar Rate.
"EURODOLLAR TRANCHE PERIOD" means, with respect to a
Eurodollar Tranche, prior to the applicable Termination Date, a period of up to
one month requested by the Transferor and agreed to by the applicable Class
Agent, commencing on a Business Day requested by the Transferor and agreed to by
such Class Agent; provided, however, that if such Eurodollar Tranche Period
would expire on a day which is not a Business Day, such Eurodollar Tranche
Period shall expire on the next succeeding Business Day; provided, further, that
if such Eurodollar Tranche Period would expire on (a) a day which is not a
Business Day but is a day of the month after which no further Business Day
occurs in such month, such Eurodollar Tranche Period shall expire on the next
preceding Business Day or (b) a Business Day for which there is no numerically
corresponding day in the applicable subsequent calendar month, such Eurodollar
Tranche Period shall expire on the last Business Day of such month.
"EVENT OF BANKRUPTCY", means, with respect to any Person, (i)
that such Person (a) shall generally not pay its debts as such debts become due
or (b) shall admit in writing its inability
13
to pay its debts generally or (c) shall make a general assignment for the
benefit of creditors; (ii) any proceeding shall be instituted by or against such
Person seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or any substantial part of its property or (iii) if such Person
is a corporation, such Person or any Subsidiary shall take any corporate action
to authorize any of the actions set forth in the preceding clauses (i) or (ii).
" FACILITY FEE" means, with respect to each Class, the fee
payable by the Transferor to the Administrative Agent, for distribution to the
Class Investors, pursuant to Section 2.7 hereof, the terms of which are set
forth in the Fee Letter.
"FACILITY LIMIT" means (i) with respect to the Class of which
Atlantic is a member, $127,500,000; 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,
$178,500,000; 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, $153,000,000; 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, $127,500,000; 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, $127,500,000; 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.
"FALCON" means Falcon Asset Securitization Corporation, and
its successors and assigns.
"FALCON AGENT" means Bank One, in its capacity as agent for
Falcon and the Falcon Bank Investors, and any successor thereto appointed
pursuant to Article IX.
"FALCON BANK INVESTORS" shall mean Bank One and its successors
and assigns who are or become parties to this Agreement as such pursuant to an
Assignment and Assumption Agreement.
"FEE LETTER" means the letter agreement dated the date hereof
between the Transferor, the Collection Agent, the Class Conduits, the
Administrative Agent, and the Class Agents with respect to the fees to be paid
by the Transferor hereunder, as amended, modified or supplemented from time to
time.
"FINANCE CHARGES" means, with respect to a Contract, any
finance, interest, late or similar charges owing by an Obligor pursuant to such
Contract.
"FLUCTUATION FACTOR" means 1.2.
14
"INCREMENTAL TRANSFER" means a Transfer which is made pursuant
to Section 2.2(a) hereof.
"INDEBTEDNESS" means, with respect to any Person, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of property other than accounts payable arising in the
ordinary course of such Person's business on terms customary in the trade, (iii)
obligations, whether or not assumed, secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease obligations and (vi) obligations for which
such Person is obligated pursuant to a Guaranty.
"INDEMNIFIED AMOUNTS" has the meaning specified in Section 8.1
hereof.
"INDEMNIFIED PARTIES" has the meaning specified in Section 8.1
hereof.
"INTEREST COMPONENT" shall mean, (A) with respect to any Class
Conduit not utilizing "pool" funding (i) with respect to any Commercial Paper
issued on an interest-bearing basis, the interest payable on such Commercial
Paper at its maturity (including any dealer commissions) and (ii) with respect
to any Commercial Paper issued on a discount basis, the portion of the face
amount of such Commercial Paper representing the discount incurred in respect
thereof (including any dealer commissions) and (B) with respect to any Class
Conduit utilizing "pool funding," the aggregate Discount accrued and to accrue
through the end of the current Tranche Period for the portion of Net Investment
accruing Discount calculated by reference to the CP Rate at such time
(determined for such purpose using the CP Rate most recently determined by the
applicable Class Agent, MULTIPLIED BY the Fluctuation Factor).
"INVESTOR REPORT" means a report, in substantially the form
attached hereto as Exhibit E or in such other form as is mutually agreed to by
the Transferor and the Administrative Agent, furnished by the Collection Agent
pursuant to Section 2.11.
"LAW" means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"LEASE AGREEMENT" means the Sublease Agreement, effective as
of the date of the effectiveness of this Agreement, between the Transferor,
David G. Cartwright and David R. Kelly.
"LIBERTY AGENT" means The Bank of Nova Scotia, a banking
corporation organized and existing under the laws of Canada, acting through its
New York Agency, in its capacity as agent for Liberty and the Liberty Bank
Investors, and any successor thereto appointed pursuant to Article IX.
"LIBERTY BANK INVESTORS" shall mean The Bank of Nova Scotia,
and its successors and assigns who are or become parties to this Agreement as
such pursuant to an Assignment and Assumption Agreement.
"LIBOR RATE" means, with respect to any Eurodollar Tranche
Period, the rate at which deposits in dollars are offered to the Administrative
Agent in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days before the first day of such Eurodollar Tranche Period in an
amount approximately equal to the Eurodollar Tranche to which
15
the Eurodollar Rate is to apply and for a period of time approximately equal to
such Eurodollar Tranche Period.
"LIQUIDITY PROVIDER" means, with respect to each Class
Conduit, the Person or Persons who will provide liquidity support to such Class
Conduit, in connection with the issuance by such Class Conduit, of its
Commercial Paper.
"LIQUIDITY PROVIDER AGREEMENT" means the agreement between
each Class Conduit and the related Liquidity Provider(s) evidencing the
obligation of such Liquidity Provider(s) to provide liquidity support to such
Class Conduit in connection with the issuance by such Class Conduit of its
Commercial Paper.
"LIQUIDATION YIELD" means, with respect to each Class, at any
time, an amount equal to:
(RVF x LBR x NI) x (EM + CD)
--------
360
Where:
RVF = the Rate Variance Factor for such Class;
LBR = the Base Rate which is applicable to the liquidation period of the Net
Investment for such Class at such time;
NI = the Net Investment for such Class;
EM = the Estimated Maturity Period of the Receivables; and
CD = the Collection Delay.
"LOCK-BOX ACCOUNT" means an account maintained by the
Collection Agent at a Lock-Box Bank for the purpose of receiving Collections
from Receivables.
"LOCK-BOX AGREEMENT" means an agreement between the Collection
Agent and a Lock-Box Bank in substantially the form of Exhibit D hereto.
"LOCK-BOX BANK" means each of the banks set forth in Exhibit C
hereto and such banks as may be added thereto or deleted therefrom pursuant to
Section 2.8 hereof.
"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 $14,000,000, (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
$10,000,000, (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 $12,000,000, (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 $10,000,000, (v) with respect to
the Class of which Falcon is a member, the portion of the Loss and
16
Dilution Reserve attributable to losses shall at all times be equal to
$10,000,000,(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.
"LOSS AND DILUTION RESERVE PERCENTAGE" means on any day an
amount equal to:
(DRR + LP)
---------------
1-(DRR + LP)
Where:
DRR = the Dilution Reserve Ratio on such day and
LP= the Loss Percentage on such day.
"LOSS PERCENTAGE" means on any day the greater of (i) 5 times
the highest Loss-to-Liquidation Ratio as of the last day of the 12 months
preceding the then current month, and (ii) 10 percent.
"LOSS-TO-LIQUIDATION RATIO" means, for any period of
determination, the ratio (expressed as a percentage) computed as of the last day
of each calendar month by dividing (i) the aggregate Outstanding Balance of all
Receivables which became Defaulted Receivables during such period (such amount
shall exclude any credits), by (ii) the aggregate amount of Collections received
by the Collection Agent during such period less Deemed Collections received and
applied by the Administrative Agent for the period.
"MAJORITY INVESTORS" shall have the meaning specified in
Section 10.1(a) hereof.
"MAXIMUM NET INVESTMENT" means (i) with respect to the Class
of which RCC is a member, $175,000,000, (ii) with respect to the Class of which
Atlantic is a member, $ 125,000,000, (iii) with respect to the Class of which
Liberty is a member, $150,000,000, (iv) with respect to the Class of which AFC
is a member, $ 125,000,000, (v) with respect to the Class of which Falcon is a
member, $125,000,000 and (vi) with respect to any other Class, the amount set
forth pursuant to Section 11.2(b).
"MAXIMUM PERCENTAGE FACTOR" means 98%.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a "Multi employer plan" as defined
in Section 4001(a)(3) of ERISA which is or was at any time during the current
year or the immediately preceding five years contributed to by the Transferor,
or any ERISA Affiliate of the Transferor on behalf of its employees.
"NET INVESTMENT" means, with respect to each Class, the sum of
the cash amounts paid to the Transferor by or on behalf of the Class Investors
of such Class for each Incremental
17
Transfer less the aggregate amount of Collections received and applied by the
Administrative Agent to reduce such Net Investment pursuant to Sections 2.5, 2.6
or 2.9 hereof; PROVIDED that such Net Investment shall be restored and
reinstated in the amount of any Collections so received and applied if at any
time the distribution of such Collections is rescinded or must otherwise be
returned for any reason; and provided further that such Net Investment may be
increased by the amount described in Section 10.7(d) as described therein.
"NET RECEIVABLES BALANCE" means at any time the Outstanding
Balance of the Eligible Receivables at such time reduced by the sum of (i) the
aggregate amount by which the Outstanding Balance of all Eligible Receivables of
each Designated Obligor exceeds the Concentration Factor for such Designated
Obligor, PLUS (ii) the aggregate Outstanding Balance of all Eligible Receivables
which are Defaulted Receivables, PLUS (iii) the aggregate Outstanding Balance of
all Eligible Receivables which are Delinquent Receivables.
"NON-DEFAULTING BANK INVESTOR" shall have the meaning set
forth in Section 2.2 hereof.
"OBLIGOR" means a Person obligated to make payments for the
provision of goods and services pursuant to a Contract.
"OFFICIAL BODY" means any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"OTHER TRANSFEROR" means any Person other than the Transferor
that has entered into a receivables purchase agreement or transfer and
administration agreement with any Class Conduit.
"OUTSTANDING BALANCE" means, with respect to any Receivable at
any time, the then outstanding principal amount thereof including any accrued
and outstanding Finance Charges related thereto.
"PERCENTAGE FACTOR" shall mean, with respect to each Class,
the fraction (expressed as a percentage) computed at any time of determination
as follows:
18
NI + LDR + DR + SFR
-------------------
NRB
Where:
NI = the Net Investment for such Class at the time of such computation;
LDR = the Loss and Dilution Reserve for such Class at the time of such
computation;
DR = the Discount Reserve for such Class at the time of such computation;
SFR = the Servicing Fee Reserve for such Class at the time of such
computation; and
NRB = the Net Receivables Balance at the time of such computation.
Notwithstanding the foregoing the calculation of Percentage Factor is subject to
the last sentence of Section 2.2(e).
"PERSON" means any corporation, limited liability company,
natural person, firm, joint venture, partnership, trust, unincorporated
organization, enterprise, government or any department or agency of any
government.
"POTENTIAL TERMINATION EVENT" means an event which but for the
lapse of time or the giving of notice, or both, would constitute a Termination
Event.
"PROGRAM FEE" with respect to each Class, means the fee
payable by the Transferor to the Administrative Agent, for distribution to the
Class Investors, pursuant to Section 2.7 hereof, the terms of which are set
forth in the Fee Letter.
"PROMISSORY NOTE" means that certain Promissory Note, dated as
of May 19, 2000, between Tech Data and the Transferor.
"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.
"PROCEEDS" means "proceeds" as defined in Section 9-306(1) of
the UCC.
"PURCHASE AGREEMENT" means the Receivables Purchase Agreement
dated as of May 19, 2000, between Tech Data and the Transferor, as the same may
be amended, supplemented or otherwise modified.
19
"PURCHASE TERMINATION DATE" means the date upon which the
Transferor shall cease, for any reason whatsoever, to make purchases of
Receivables from Tech Data under the Purchase Agreement or the Purchase
Agreement shall terminate for any reason whatsoever.
"PURCHASED INTEREST" means the interest in the Receivables
acquired by a Liquidity Provider through purchase pursuant to the terms of a
Liquidity Provider Agreement.
"RATE VARIANCE FACTOR" means, with respect to each Class, the
number, computed from time to time in good faith by the related Class Agent,
that reflects the largest potential variance (from minimum to maximum) in
selected interest rates over a period of time selected by such Class Agent from
time to time, set forth in a written notice by such Class Agent to the
Administrative Agent, the Transferor and the Collection Agent.
"RCC" means Receivables Capital Corporation and its successors
and assigns.
"RCC AGENT" means Bank of America, National Association, in
its capacity as agent for RCC and the RCC Bank Investors, and any successor
thereto appointed pursuant to Article IX.
"RCC BANK INVESTORS" shall mean Bank of America, National
Association and its successors and assigns who are or become parties to this
Agreement as such pursuant to an Assignment and Assumption Agreement.
"RECEIVABLE" means the indebtedness owed to the Transferor or
Tech Data by any Obligor (without giving effect to any purchase hereunder by any
Class Investor at any time) under a Contract whether constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale of merchandise or services by Tech Data and thereafter transferred to the
Transferor by Tech Data pursuant to the Purchase Agreement, and includes the
right to payment of any Finance Charges and other obligations of such Obligor
with respect thereto. Notwithstanding the foregoing, once a Receivable has been
deemed collected pursuant to Section 2.9 hereof, it shall no longer constitute a
Receivable hereunder with respect to such portion which has been deemed
collected.
"RECEIVABLES SYSTEMS" means the computer applications involved
in the origination, collection, management or servicing of the Receivables.
"RECORDS" means all Contracts and other documents, books,
records and other information (including, without limitation, computer programs,
tapes, discs, punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related Obligors.
"REINVESTMENT TERMINATION DATE" means, with respect to each
Class, the second Business Day after the delivery by the related Class Agent to
the Transferor of written notice that the related Class Conduit elects to
commence the amortization of the Net Investment for such Class or otherwise
liquidate its interest in the Transferred Interest.
"RELATED COMMERCIAL PAPER" shall mean, with respect to
Commercial Paper issued by the Class Conduits the proceeds of which were used to
acquire, or refinance the acquisition of, an interest in Receivables with
respect to the Transferor.
20
"RELATED SECURITY" means with respect to any Receivable,
all of the Transferor's and the Seller's rights, title and interest in,
to and under:
(i) the merchandise (including returned or repossessed
merchandise), if any, the sale of which by the Seller gave rise to such
Receivable;
(ii) all other security interests or liens and property
subject thereto from time to time, if any, purporting to secure payment
of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements signed
by an Obligor describing any collateral securing such Receivable;
(iii) all guarantees, indemnities, warranties, insurance
(and proceeds and premium refunds thereof) or other agreements or
arrangements of any kind from time to time supporting or securing
payment of such Receivable whether pursuant to the Contract related to
such Receivable or otherwise;
(iv) all Records related to such Receivable; and
(v) all rights and remedies of the Transferor under the
Purchase Agreement, together with all financing statements filed by the
Transferor against the Seller in connection therewith; and
(vi) all Collections on and Proceeds of any of the
foregoing.
"REVOLVING SUBORDINATED NOTE" has the meaning specified in the
Purchase Agreement.
"SCOTIA BANK" means The Bank of Nova Scotia, a banking
corporation organized and existing under the laws of Canada, acting through its
New York Agency.
"SECTION 8.2 COSTS" has the meaning specified in Section
8.2(d) hereof.
"SELLER" means Tech Data Corporation, a Florida corporation
and its successors and permitted assigns.
"SERVICING FEE" means, with respect to each Class, the fees
payable by the Class Investors of such Class to the Collection Agent, with
respect to a Tranche in an amount equal to 0.75% per annum on the amount of the
Net Investment for such Class, allocated to such Tranche pursuant to Section
2.3. Such fee shall accrue from the date of the initial purchase of an interest
in the Receivables to the later of the Termination Date for such Class or the
date on which the Net Investment for such Class is reduced to zero. On or prior
to such Termination Date such fee shall be payable only from Collections
pursuant to, and subject to the priority of payments set forth in, Section 2.5
hereof. After such Termination Date, such fee shall be payable only from
Collections pursuant to, and subject to the priority of payments set forth in,
Section 2.6 hereof.
"SERVICING FEE RESERVE" means, with respect to each Class, at
any time the sum of (i) the Servicing Fee with respect to such Class for all
Tranches and (ii) an amount equal to the
21
product of (A) the Net Investment for such Class at such time, (B) the 0.75% per
annum and (C) a fraction having as the numerator, the sum of the Estimated
Maturity Period and the Collection Delay and as the denominator, 360.
"STANDARD & POOR'S" or "S&P" means Standard & Poor's, a
division of The McGraw-Hill Companies, Inc.
"SUBSIDIARY" of a Person means any corporation more than 50%
of the outstanding voting interests of which shall at any time be owned or
controlled, directly or indirectly, by such Person or by one or more
Subsidiaries of such Person or any similar business organization which is so
owned or controlled.
"SUPPLEMENTAL FEE LETTER" means that certain fee letter, dated
as of May 19, 2000, between the Collection Agent, the Transferor and the
Administrative Agent.
"TECH DATA" means Tech Data Corporation, a Florida
corporation, and its successors and assigns.
"TERMINATION DATE" means, with respect to each Class, the
earliest of (i) the Business Day designated by the Transferor to the
Administrative Agent and the related Class Agent as the Termination Date for
such Class at any time following 60 days' written notice to the Administrative
Agent and such Class Agent, (ii) the date of termination of the commitment of
all related Liquidity Providers under the related Liquidity Provider Agreement
for the related Class Conduit for such Class, (iii) the date of termination of
the commitment of the related Credit Support Provider under the related Credit
Support Agreement for the related Class Conduit, (iv) the day upon which a
Termination Date for such Class is declared or automatically occurs pursuant to
Section 7.2(a) hereof, (v) two Business Days prior to the Commitment Termination
Date for such Class, (vi) the day on which a Reinvestment Termination Date for
such Class shall occur (provided, that this clause (vi) shall not cause a
Termination Date if the applicable Class Conduit assigns its interest in whole
to its related Bank Investors pursuant to Section 10.7), and (vii) the Purchase
Termination Date.
"TERMINATION EVENT" means an event described in Section 7.1
hereof.
"TRANCHE" means, with respect to each Class, a portion of the
Net Investment for such Class allocated to a Tranche Period for such Class
pursuant to Section 2.3 hereof.
"TRANCHE PERIOD" means a CP Tranche Period, a Eurodollar
Tranche Period or a BR Tranche Period.
"TRANCHE RATE" means either (i) the CP Rate quoted for the CP
Tranche; (ii) the Eurodollar Rate for a Eurodollar Tranche; or (iii) the Base
Rate for a BR Tranche.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement,
the Purchase Agreement, the Fee Letter, the Supplemental Fee Letter, the
Lock-Box Agreements, the Certificate, the Transfer Certificate, the Credit
Agreement, the Promissory Note, the Revolving Subordinated Note and all of the
other instruments, documents and other agreements executed and delivered by Tech
Data or the Transferor in connection with any of the foregoing, in each case, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
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"TRANSFER" means a conveyance, transfer and assignment by the
Transferor to the Class Investors, as applicable, of an undivided percentage
ownership interest in Receivables and Related Security hereunder (including,
without limitation, as a result of any reinvestment of Collections in the
Transferred Interest pursuant to Section 2.2(b) and 2.5 hereof).
"TRANSFER CERTIFICATE" has the meaning specified in Section
2.2(a) hereof.
"TRANSFER DATE" means, with respect to each Transfer, the
Business Day on which such Transfer is made.
"TRANSFER PRICE" means with respect to any Incremental
Transfer, the amount paid to the Transferor by the applicable Class Investors as
described in the applicable Transfer Certificate.
"TRANSFEROR" means Tech Data Finance SPV, Inc., a Delaware
corporation, and its successors and permitted assigns.
"TRANSFERRED INTEREST" means, at any time of determination, an
undivided percentage ownership interest in (i) each and every then outstanding
Receivable, (ii) all Related Security with respect to each such Receivable,
(iii) all Collections with respect thereto, and (iv) other Proceeds of the
foregoing, which undivided ownership interest shall be equal to the Aggregate
Percentage Factor at such time, and only at such time (without regard to prior
calculations). The Transferred Interest in each Receivable, together with
Related Security, Collections and Proceeds with respect thereto, shall at all
times be equal to the Transferred Interest in each other Receivable, together
with Related Security, Collections and Proceeds with respect thereto. To the
extent that the Transferred Interest shall decrease as a result of a
recalculation of the Aggregate Percentage Factor, the Administrative Agent on
behalf of the applicable Class Investors shall be considered to have reconveyed
to the Transferor an undivided percentage ownership interest in each Receivable,
together with Related Security, Collections and Proceeds with respect thereto,
in an amount equal to such decrease such that in each case the Transferred
Interest in each Receivable shall be equal to the Transferred Interest in each
other Receivable.
"UCC" means, with respect to any state, the Uniform Commercial
Code as from time to time in effect in such state.
"UNPAID BALANCE" means, at any time, with respect to any
Receivable, the outstanding principal amount of the indebtedness of the related
Obligor incurred in connection with a particular purchase under or evidenced by
such Receivable, exclusive of any sales or other tax, if any, included in or
payable with respect to such purchase.
SECTION 1.2. OTHER TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles. All terms used in Article 9 of the UCC in the
State of New York, California or Delaware, as applicable, and not specifically
defined herein, are used herein as defined in such Article 9.
SECTION 1.3. COMPUTATION OF TIME PERIODS. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including", the words "to" and "until" each means "to but excluding"
23
and the word "within" means "from and excluding a specified date and to and
including a later specified date".
ARTICLE II
PURCHASES AND SETTLEMENTS
SECTION 2.1. FACILITY. With respect to each Class, upon the
terms and subject to the conditions herein set forth and provided that the
Termination Date for such Class shall not have occurred, (x) the Transferor may,
at its option, convey, transfer and assign to the Administrative Agent, on
behalf of the applicable Class Investors for such Class and (y) the
Administrative Agent, on behalf of the Class Conduit for such Class may, at the
option of such Class Conduit, or the Administrative Agent on behalf of the Bank
Investors for such Class, provided that such Bank Investors shall have
previously accepted the assignment by the related Class Conduit of all of such
Class Conduit's interest in the Affected Assets, shall, if so requested, accept
such conveyance, transfer and assignment from the Transferor of, without
recourse except as provided herein, undivided percentage ownership interests in
the Receivables, together with Related Security, Collections and Proceeds with
respect thereto, from time to time. By accepting any conveyance, transfer and
assignment hereunder, neither any Class Investor, Class Agent nor the
Administrative Agent assumes or shall have any obligations or liability under
any of the Contracts, all of which shall remain the obligations and liabilities
of the Transferor and the Seller.
SECTION 2.2. TRANSFERS; CERTIFICATES; ELIGIBLE RECEIVABLES.
(a) INCREMENTAL TRANSFERS. With respect to each Class, upon
the terms and subject to the conditions herein set forth and provided that a
Termination Event or a Potential Termination Event or the Termination Date for
such Class shall not have occurred and be continuing, the Transferor may, at its
option, convey, transfer and assign to the Administrative Agent on behalf of the
applicable Class Investors for such Class and the Administrative Agent, on
behalf of the Class Conduit for such Class may, at the option of such Class
Conduit, or the Administrative Agent on behalf of the Bank Investors for such
Class provided that such Bank Investors shall have previously accepted the
assignment by the related Class Conduit of all of such Class Conduit's interest
in the Affected Assets, shall, if so requested by the Transferor, accept such
conveyance, transfer and assignment from the Transferor, without recourse except
as provided herein, undivided percentage ownership interests in the Receivables,
together with Related Security, Collections and Proceeds with respect thereto
(each, an "INCREMENTAL TRANSFER"); PROVIDED that after giving effect to the
payment to the Transferor of the Transfer Price therefor (i) the Net Investment
for such Class shall not exceed the Maximum Net Investment for such Class, (ii)
the sum of the Net Investment for such Class PLUS, in the case where the Class
Conduit for such Class holds a portion of the Transferred Interest, the Interest
Component of all outstanding Related Commercial Paper issued by such Class
Conduit shall not exceed the Facility Limit for such Class and (iii) the
Aggregate Percentage Factor shall not exceed the Maximum Percentage Factor; and,
PROVIDED, that the representations and warranties set forth in Section 3.1 shall
be true and correct both immediately before and immediately after giving effect
to any such Transfer. All Incremental Transfers shall be made on a PRO RATA
basis to each Class (based upon the relation of the Maximum Net Investment for
such Class to the Aggregate Maximum Net Investment).
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The Transferor shall, by notice to the Administrative Agent
given by telecopy, offer to convey, transfer and assign to the Administrative
Agent, on behalf of any of the applicable Class Investors, undivided percentage
ownership interests in the Receivables and the other Affected Assets relating
thereto at least two (2) Business Days prior to the proposed date of any
Incremental Transfer. With respect to each Class, each such notice shall specify
(w) whether such request is made to the Administrative Agent on behalf of the
Class Conduit for such Class or the related Bank Investors for such Class (it
being understood and agreed that once any of such Bank Investors acquire any
interest in the Transferred Interest hereunder, such Bank Investors shall be
required to purchase all of the portion of the Transferred Interest held by the
related Class Conduit in accordance with Section 10.7 and thereafter such Class
Conduit shall no longer accept any additional Incremental Transfers hereunder),
(x) the desired Transfer Price (which shall be at least $5,000,000 per Class or
integral multiples of $1,000,000 in excess thereof) or, to the extent that the
then available unused portion of the Aggregate Maximum Net Investment is less
than such amount, such lesser amount equal to such available portion of such
Aggregate Maximum Net Investment), (y) the desired date of such Incremental
Transfer and (z) the desired Tranche Period(s) and allocations of the Net
Investment for such Class of such Incremental Transfer thereto as required by
Section 2.3. The Administrative Agent will promptly notify each Class Agent and
each Class Conduit or related Bank Investors for such Class, as applicable, of
the Administrative Agent's receipt of any request for an Incremental Transfer to
be made to such Person. To the extent that any such Incremental Transfer is
requested of a Class Conduit, such Class Conduit shall accept or reject such
offer by notice given to the Transferor and the Administrative Agent by
telephone or telecopy by no later than the close of its business on the Business
Day following its receipt of any such request. Each notice of proposed Transfer
shall be irrevocable and binding on the Transferor and the Transferor shall
indemnify each Class Investor against any loss or expense incurred by such Class
Investor, either directly or through a Liquidity Provider Agreement, as a result
of any failure by the Transferor to complete such Incremental Transfer
including, without limitation, any loss (including loss of anticipated profits)
or expense incurred by such Class Investor, either directly or pursuant to a
Liquidity Provider Agreement by reason of the liquidation or reemployment of
funds acquired by such Class Investor (or a related Liquidity Provider)
(including, without limitation, funds obtained by issuing commercial paper or
promissory notes or obtaining deposits as loans from third parties) to fund such
Incremental Transfer.
On the date of the initial Incremental Transfer to the Class
Investors, the related Class Agent on behalf of such Class shall deliver written
confirmation to the Transferor of the Transfer Price, the Tranche Period(s) and
the Tranche Rate(s) relating to such Transfer and the Transferor shall deliver
to the Administrative Agent the Transfer Certificate in the form of Exhibit F
hereto (the "TRANSFER CERTIFICATE"). The Administrative Agent shall indicate the
amount of the initial Incremental Transfer together with the date thereof on the
grid attached to the Transfer Certificate. On the date of each subsequent
Incremental Transfer, the applicable Class Agent shall send written confirmation
to the Transferor of the Transfer Price, the Tranche Period(s), the Transfer
Date and the Tranche Rate(s) applicable to such Incremental Transfer. The
Administrative Agent shall indicate the amount of the Incremental Transfer
together with the date thereof as well as any decrease in each Net Investment,
on the grid attached to the Transfer Certificate. The Transfer Certificate shall
evidence the Incremental Transfers.
By no later than 11:00 a.m. (New York time) on any Transfer
Date, each Class Investor participating in the Incremental Transfer occurring on
such date shall remit its share (which, in the case of an Incremental Transfer
to the Bank Investors for any Class shall be equal to each such Bank Investor's
Pro Rata Share) of the aggregate Transfer Price for such Transfer to the account
of
25
the Administrative Agent specified therefor from time to time by the
Administrative Agent by notice to such Persons. The obligation of each Bank
Investor of any Class to remit its Pro Rata Share of any such Transfer Price
shall be several from that of each other Bank Investor of such Class and the
failure of any such Bank Investor to so make such amount available to the
Administrative Agent shall not relieve any other Bank Investor of such Class of
its respective obligation hereunder. Following each Incremental Transfer and the
Administrative Agent's receipt of funds from the applicable Class Investors, as
aforesaid, the Administrative Agent shall remit to the Transferor's account at
the location indicated in Section 11.3 hereof, in immediately available funds,
an amount equal to the Transfer Price for such Incremental Transfer. Unless the
Administrative Agent shall have received notice from a Class Investor that such
Person will not make its share of any Transfer Price relating to any Incremental
Transfer available on the applicable Transfer Date therefor, the Administrative
Agent may (but shall have no obligation to) make such Person's share of any such
Transfer Price available to the Transferor in anticipation of the receipt by the
Administrative Agent of such amount from such Person. To the extent any Class
Investor fails to remit any such amount to the Administrative Agent after any
such advance by the Administrative Agent on such Transfer Date, such Class
Investor, on the one hand, and the Transferor on the other hand, shall be
required to pay such amount, together with interest thereon at a per annum rate
equal to the Federal funds rate (as determined in accordance with clause (ii) of
the definition of "BASE RATE"), in the case of such Class Investor, or the Base
Rate, in the case of the Transferor, to the Administrative Agent upon its demand
therefor (provided that no Class Conduit shall have any obligation to pay such
interest amounts except to the extent that it shall have sufficient funds to pay
the face amount of its Commercial Paper in full). Until such amount shall be
repaid, such amount shall be deemed to be Aggregate Net Investment paid by the
Administrative Agent and the Administrative Agent shall be deemed to be the
owner of a Transferred Interest hereunder. Upon the payment of such amount to
the Administrative Agent (x) by the Transferor, the amount of the Aggregate Net
Investment shall be reduced by such amount or (y) by such Class Investor, such
payment shall constitute such Class Investor's payment of its share of the
applicable Transfer Price for such Transfer.
(b) REINVESTMENT TRANSFERS. With respect to each
Class, on each Business Day occurring after the initial Incremental Transfer
hereunder and prior to the Termination Date for such Class, and provided that no
Termination Event or Potential Termination Event for such Class shall have
occurred and be continuing, the Transferor hereby agrees to convey, transfer and
assign to the Administrative Agent, on behalf of the Class Investors of such
Class then owning any portion of the Transferred Interest, and in consideration
of the Transferor's agreement to maintain at all times prior to such Termination
Date a Net Receivables Balance in an amount at least sufficient to maintain the
Aggregate Percentage Factor at an amount not greater than the Maximum Percentage
Factor, the Administrative Agent on behalf of the applicable Class Conduit may
(at the option of such Class Conduit), and the Administrative Agent on behalf of
the applicable Bank Investors shall (in either case, to the extent such Persons
then own any portion of the Transferred Interest), purchase from the Transferor
undivided percentage ownership interests in each and every Receivable, together
with Related Security, Collections and Proceeds with respect thereto, to the
extent that Collections are available for such Transfer in accordance with
Section 2.5 hereof, such that after giving effect to such Transfer, (i) the
amount of the Net Investment for such Class at the close of business on such
Business Day shall be equal to the amount of the Net Investment for such Class
at the close of business on the Business Day immediately preceding such Business
Day plus the Transfer Price of any Incremental Transfer made by or on behalf of
such Class Investors, as applicable, on such day, if any, and (ii) the
Transferred Interest in each Receivable, together with Related Security,
Collections and Proceeds with respect thereto, shall be equal to the Transferred
Interest in each other Receivable, together with Related Security, Collections
and Proceeds with respect thereto PROVIDED,
26
that the representations and warranties set forth in Section 3.1 shall be true
and correct both immediately before and immediately after giving effect to any
such Transfer.
(c) ALL TRANSFERS. With respect to each Class, each Transfer
shall constitute a purchase by the Administrative Agent, on behalf of the
applicable Class Investors for such Class, of an undivided percentage ownership
interest in each and every Receivable, together with Related Security,
Collections and Proceeds with respect thereto, then existing, as well as in each
and every Receivable, together with Related Security, Collections and Proceeds
with respect thereto, which arises at any time after the date of such Transfer.
The Administrative Agent's aggregate undivided percentage ownership interest in
the Receivables, together with the Related Security, Collections and Proceeds
with respect thereto, held on behalf of all Class Investors, shall equal the
Aggregate Percentage Factor in effect from time to time. With respect to each
Class, so long as the Administrative Agent on behalf of either the Class Conduit
for such Class, on the one hand, or the Bank Investors for such Class, on the
other hand, owns all of the Transferred Interest related to the Net Investment
for such Class at such time, each of such Class Conduit's and each such Bank
Investor's undivided percentage ownership interest in the Affected Assets shall
equal such Person's ratable share (determined on the basis of the relationship
that such Person's portion of Net Investment for such Class bears to the
Aggregate Net Investment for all Classes at such time) of the Aggregate
Percentage Factor at such time.
(d) CERTIFICATE. The Transferor shall issue to the
Administrative Agent the Certificate, in the form of Exhibit M, on or prior to
the date hereof.
(e) AGGREGATE PERCENTAGE FACTOR. The Aggregate Percentage
Factor shall be initially computed as of the opening of business on May 19,
2000. Thereafter, with respect to each Class, until the Termination Date for
such Class, the Percentage Factor for such Class shall be automatically
recomputed as of the close of business of the Collection Agent on each day. The
Percentage Factor for each Class shall remain constant from the time as of which
any such computation or recomputation is made until the time as of which the
next such recomputation, if any, shall be made. The Percentage Factor with
respect to each Class, as computed as of the day immediately preceding the
Termination Date for such Class, shall remain constant at all times on and after
such Termination Date, until the date on which the Net Investment for such Class
has been reduced to zero, and all accrued Discounts and Servicing Fees for such
Class have been paid in full and all other Aggregate Unpaids owing to the
applicable Class Investor(s) for such Class have been paid in full to such Class
Investors.
At no time shall the Aggregate Percentage Factor exceed one
hundred percent (100%). Notwithstanding anything to the contrary contained
herein, should the Aggregate Percentage Factor exceed one hundred percent (100%)
at any time, the Percentage Factor for each Class shall be calculated PRO RATA,
based upon the relationship of the Net Investment for such Class to the
Aggregate Net Investment.
(f) DEFAULTING BANK INVESTOR. If, by 2:00 p.m. (New York City
time), one or more Bank Investors in any Class (each, a "DEFAULTING BANK
INVESTOR," and each Bank Investor in such class other than any Defaulting Bank
Investor being referred to as a "NON-DEFAULTING BANK INVESTOR") fails to make
its Pro Rata Share of the Transfer Price available to the Administrative Agent
pursuant to Section 2.2(a), or any Assignment Amount payable by it to its
related Class Conduit pursuant to Section 10.7(a) (the aggregate amount not so
made available being herein called in either case the "DEFICIT"), then the
Administrative Agent shall, by no later than 2:30 p.m. (New
27
York City time) on the applicable Transfer Date or the applicable date that such
Assignment Amount is payable (the "ASSIGNMENT DATE"), as the case may be,
instruct each Non-Defaulting Bank Investor to pay or deposit, by no later than
3:00 p.m. (New York City time), in immediately available funds, to the
Administrative Agent or such Class Conduit, an amount equal to the lesser of (i)
such Non-Defaulting Bank Investor's proportionate share (based upon the relative
Commitments of the Non-Defaulting Bank Investors) of the Deficit and (ii) its
unused Commitment. A Defaulting Bank Investor shall forthwith, upon demand, pay
to the Administrative Agent for the ratable benefit of the Non-Defaulting Bank
Investors all amounts paid by each Non-Defaulting Bank Investor on behalf of
such Defaulting Bank Investor, together with interest thereon, for each day from
the date a payment was made by a Non-Defaulting Bank Investor until the date
such Non-Defaulting Bank Investor has been paid such amounts in full, at a rate
PER ANNUM equal to the sum of the Base Rate, PLUS 2.00% PER ANNUM. In addition,
if, after giving effect to the provisions of the immediately preceding sentence,
any Deficit with respect to any Assignment Amount continues to exist, each such
Defaulting Bank Investor shall pay interest to the Administrative Agent, for the
account of the related Class Conduit, on such Defaulting Bank Investor's portion
of such remaining Deficit, at a rate PER ANNUM, equal to the sum of the Base
Rate, PLUS 2.00% PER ANNUM, for each day from the applicable Assignment Date
until the date such Defaulting Bank Investor shall pay its portion of such
remaining Deficit in full to such Class Conduit. For the avoidance of doubt, no
Bank Investor shall be obligated pursuant to this paragraph (f) with respect to
any Deficit created by a Bank Investor which is not a member of the same Class.
SECTION 2.3. SELECTION OF TRANCHE PERIODS AND TRANCHE RATES.
(a) TRANSFERRED INTEREST HELD BY A CLASS CONDUIT PRIOR
TO A TERMINATION EVENT. With respect to each Class, at all times hereafter, but
prior to the occurrence of a Termination Event for such Class and not with
respect to any portion of the Transferred Interest held by the Bank Investors
for such Class (or any of them), the Transferor may, subject to the applicable
Class Conduit's approval and the limitations described below, request Tranche
Periods with respect to such Class and allocate a portion of the Net Investment
for such Class to each such selected Tranche Period, so that the aggregate
amounts allocated to such outstanding Tranche Periods at all times shall equal
the Net Investment held by such Class Conduit. The Transferor shall give the
Administrative Agent irrevocable notice (which notice the Administrative Agent
shall forward to the applicable Class Agent) by telephone of the new requested
Tranche Period(s) and whether the requested Tranche Rate applicable thereto
shall be the applicable CP Rate, the Base Rate or the Eurodollar Rate at least
(i) three (3) Business Days prior to the expiration of any then existing Tranche
Period if the Tranche Rate to be applicable to the new requested Tranche Period
shall be the applicable Eurodollar Rate, (ii) two (2) Business Days prior to the
expiration of any then existing Tranche Period if the Tranche Rate to be
applicable to the new requested Tranche Period shall be the Base Rate, and (iii)
two (2) Business Days prior to the expiration of any then existing Tranche
Period if the Tranche Rate to be applicable to the new requested Tranche Period
shall be the CP Rate; PROVIDED, HOWEVER, that such Class Agent may select, in
its reasonable discretion, any such new Tranche Period and the Tranche Rate if
(i) the Transferor fails to provide such notice on a timely basis or (ii) such
Class Agent determines, in its reasonable discretion, that the Tranche Rate or
the Tranche Period requested by the Transferor is unavailable or for any reason
commercially undesirable. Each Class Conduit confirms that it is its intention
to allocate all or substantially all of the Net Investment held by it to one or
more of its CP Tranche Periods; provided that such Class Conduit may determine
from time to time, in its sole discretion, that funding such Net Investment by
means of one or more of its CP Tranche Periods is not desirable for any reason.
If a Liquidity Provider acquires from any Class Conduit a Purchased Interest
with respect to the
28
Receivables pursuant to the terms of the applicable Liquidity Provider
Agreement, the applicable Class Agent, on behalf of such Liquidity Provider, may
exercise the right of selection granted to such Class Conduit hereby. The
initial Tranche Period applicable to any such Purchased Interest shall be a
period of not greater than 14 days. In the case of any Tranche Period selected
pursuant to this paragraph that is outstanding upon the occurrence of a
Termination Event, such Tranche Period shall end on such date. Notwithstanding
the foregoing, with respect to any portion of the Transferred Interest held by a
Class Conduit which utilizes "pool" funding, such Class Conduit or its Class
Agent shall select, in its sole discretion, all Tranche Periods and shall
allocate a portion of the Net Investment for such Class to such Tranche Periods
so that the aggregate amounts allocated to such outstanding Tranche Periods at
all times shall equal the Net Investment held by such Class Conduit.
(b) TRANSFERRED INTEREST HELD BY A CLASS CONDUIT AFTER A
TERMINATION EVENT. With respect to each Class, at all times on and after the
occurrence of a Termination Event for such Class, with respect to any portion of
the Transferred Interest held by a Class Conduit which shall not have been
transferred to the related Bank Investors (or any of them), subject to Section
7.2(b) such Class Conduit or its Class Agent shall select all Tranche Periods
and Tranche Rates applicable thereto.
(c) TRANSFERRED INTEREST HELD BY THE BANK INVESTORS
PRIOR TO A TERMINATION EVENT. With respect to each Class, at all times with
respect to any portion of the Transferred Interest held by the related Bank
Investors (or any of them), but prior to the occurrence of a Termination Event
for such Class, the initial Tranche Period applicable to such portion of the Net
Investment for such Class allocable thereto shall be a period of not greater
than 14 days and such Tranche shall be a BR Tranche. Thereafter, with respect to
such portion, and with respect to any other portion of the Transferred Interest
held by such Bank Investors (or any of them), provided that the Termination Date
shall not have occurred, the Tranche Period applicable thereto shall be, at the
Transferor's option, either a BR Tranche Period or a Eurodollar Tranche Period.
The Transferor shall give the Administrative Agent irrevocable notice by
telephone of the new requested Tranche Period at least two (2) Business Days
prior to the expiration of any then existing Tranche. In the case of any Tranche
Period selected pursuant to this paragraph that is outstanding upon the
occurrence of a Termination Event, the related Tranche Period shall end on the
date of such occurrence.
(d) TRANSFERRED INTEREST HELD BY THE BANK INVESTORS
AFTER A TERMINATION DATE. With respect to each Class, at all times on and after
the occurrence of a Termination Event for such Class and with respect to any
portion of the Transferred Interest held by the related Bank Investors for such
Class (or any of them), subject to Section 7.2(b), the applicable Class Agent
shall select all Tranche Periods and Tranche Rates applicable thereto.
(e) EURODOLLAR RATE PROTECTION; ILLEGALITY. (i) If the
applicable Class Agent is unable to obtain on a timely basis the information
necessary to determine the Eurodollar Rate for any proposed Eurodollar Tranche,
then:
(A) the Administrative Agent shall forthwith
notify the applicable Class Investors and the
Transferor that the Eurodollar Rate cannot be
determined for such Eurodollar Tranche, as applicable;
and
(B) while such circumstances exist, neither
any Class Investor nor the Administrative Agent shall
allocate any portion of
29
the Net Investment purchased by such Person during such
period or reallocate the Net Investment allocated to
any then existing Tranche ending during such period, to
a Eurodollar Tranche.
(ii) If, with respect to any outstanding
Eurodollar Tranche, any Class Investor owning any portion of the
Transferred Interest therein notifies the Administrative Agent that it
is unable to obtain matching deposits in the London interbank market to
fund its purchase or maintenance of such portion of the Transferred
Interest or that the Eurodollar Rate applicable to such portion of the
Transferred Interest will not adequately reflect the cost to such Class
Investor of funding or maintaining its respective portion of the
Transferred Interest for such Tranche Period then the Administrative
Agent shall forthwith so notify the Transferor, whereupon neither the
Administrative Agent nor any of the Class Investors, as applicable,
shall, while such circumstances exist, allocate any portion of the Net
Investment with respect to such Class of any additional Transferred
Interest purchased during such period or reallocate the Net Investment
with respect to such Class allocated to any Tranche Period ending
during such period, to an applicable Eurodollar Tranche.
(iii) Notwithstanding any other provision of this
Agreement, if any Class Investor, as applicable, shall notify the
Administrative Agent that such Class Investor has determined (or has
been notified by any related Liquidity Provider) that the introduction
of or any change in or in the interpretation of any law or regulation
makes it unlawful (for such Class Investor or such related Liquidity
Provider, as applicable), or any central bank or other governmental
authority asserts that it is unlawful, for such Class Investor or
Liquidity Provider, as applicable, to fund the purchases or maintenance
of the Transferred Interest at the Eurodollar Rate, then (x) as of the
effective date of such notice from such Person to the Administrative
Agent, the obligation or ability of such Class Investor to fund its
purchase or maintenance of the Transferred Interest at the Eurodollar
Rate shall be suspended until such Person notifies the Administrative
Agent that the circumstances causing such suspension no longer exist
and (y) the Net Investment of each Eurodollar Tranche in which such
Person owns an interest shall either (1) if such Person may lawfully
continue to maintain such Transferred Interest at the Eurodollar Rate
until the last day of the applicable Tranche Period be reallocated on
the last day of such Tranche Period to another Tranche Period in
respect of which such Net Investment allocated thereto accrues Discount
at the applicable Tranche Rate other than the Eurodollar Rate or (2) if
such Person shall determine that it may not lawfully continue to
maintain such Transferred Interest at the Eurodollar Rate until the end
of the applicable Tranche Period such Person's share of the Net
Investment allocated to such Eurodollar Tranche shall be deemed to
accrue Discount at the Base Rate from the effective date of such notice
until the end of such Tranche Period.
SECTION 2.4. DISCOUNT, FEES AND OTHER COSTS AND EXPENSES. The
Transferor shall pay, as and when due in accordance with this Agreement, all
fees hereunder, all amounts payable pursuant to Article VIII hereof, if any, and
the Servicing Fees. With respect to each Class, on the last day of each Tranche
Period or, for any Conduit that utilizes "pool funding" on or prior to the fifth
Business Day of the calendar month following the applicable Tranche Period, the
Transferor shall pay to the Administrative Agent on behalf of the related Class
Conduit, and the Administrative
30
Agent shall pay such payment to such Class Conduit, in the event any portion of
the Transferred Interest is held by such Class Conduit, an amount equal to the
Discount accrued on such Class Conduit's Commercial Paper to the extent such
Commercial Paper was issued in order to fund such portion of the Transferred
Interest in an amount in excess of the Transfer Price of an Incremental
Transfer, which excess amount shall not exceed $5,000. The Transferor shall pay
to the Administrative Agent on behalf of the applicable Class Conduit each day
on which Commercial Paper is issued by such Class Conduit, the applicable Dealer
Fee, and the Administrative Agent shall pay such Dealer Fee to such Class
Conduit. The applicable Discount shall accrue with respect to each respective
Tranche on each day occurring during the Tranche Period related thereto. Nothing
in this Agreement shall limit in any way the obligations of the Transferor to
pay the amounts set forth in this Section 2.4.
SECTION 2.5. NON-LIQUIDATION SETTLEMENT AND REINVESTMENT
PROCEDURES. With respect to each Class, on each day after the date of any
Incremental Transfer but prior to the Termination Date for such Class and
provided in each case that no Termination Event or Potential Termination Event
for which there is no grace period shall have occurred and be continuing for
such Class, the Collection Agent shall out of the Percentage Factor for such
Class of Collections received on or prior to such day and not previously applied
or accounted for: (i) set aside and hold in trust for the applicable Class
Investors for such Class (or deposit into the Collection Account if so required
pursuant to Section 2.12 hereof), an amount equal to all Discount (which, in the
case of Discount computed by reference to the CP Rate with respect to any Class
Conduit that utilizes "pool" funding, shall be determined for such purpose using
the CP Rate most recently determined by the related Class Agent, MULTIPLIED by
the Fluctuation Factor) for such Class and the Servicing Fee accrued through
such day and not so previously set aside or paid and (ii) apply the balance of
the Aggregate Percentage Factor of Collections remaining after application of
Collections as provided in clause (i) of this Section 2.5 to the Transferor, for
the benefit of the Class Investors, as applicable, to the purchase of additional
undivided percentage interests in each Receivable pursuant to Section 2.2(b)
hereof. On the last day of each Tranche Period for each Class from the amounts
set aside as described in clause (i) of the first sentence of this Section 2.5,
the Collection Agent shall deposit to the Administrative Agent's account, for
the benefit of the applicable Class Investors for such Class, an amount equal to
the accrued and unpaid Discount for such Class and for such Tranche Period and
shall deposit to its own account an amount equal to the accrued and unpaid
Servicing Fee for such Tranche Period. The Administrative Agent, upon its
receipt of such amounts in the Administrative Agent's account, shall distribute
such amounts to the Class Investors entitled thereto as set forth above;
PROVIDED that if the Administrative Agent shall have insufficient funds to pay
all of the above amounts in full on any such date, the Administrative Agent
shall pay such amounts ratably (based on the amounts owing to each such Class
Investor) to all such Class Investors entitled to payment thereof. In addition,
the Collection Agent shall remit to the Transferor at the end of each Tranche
Period, as provided in Section 6.2(b), such portion of Collections not allocated
to the Class Investors.
SECTION 2.6. LIQUIDATION SETTLEMENT PROCEDURES. If at any time
on or prior to the Termination Date for such Class the Aggregate Percentage
Factor is greater than the Maximum Percentage Factor, then the Transferor shall
immediately pay to the Administrative Agent, for the benefit of the Class
Investors from previously received Collections, an amount equal to the amount
such that, when applied in reduction of the Aggregate Net Investment, will
result in an Aggregate Percentage Factor less than or equal to the Maximum
Percentage Factor. Such amounts shall be applied pro rata to the reduction of
the Net Investment for each Class of the Tranche Periods selected by the Class
Agent for such Class. With respect to each Class, on the Termination Date for
such Class and on each day thereafter, and on each day on which a Termination
Event or Potential Termination Event has occurred and is continuing for such
Class, the Collection Agent shall set aside and hold in trust for the applicable
Class Investors for such Class (or deposit into the Collection Account if so
required pursuant to Section 2.12 hereof) the Percentage Factor for such Class
of all Collections received on such day and shall set aside and hold in trust
for the Transferor such portion of Collections not allocated to the Class
Investors. On each such Termination Date or the day on which a Termination Event
or Potential
31
Termination Event for such Class for which there is no grace period occurs, the
Collection Agent shall deposit to the Administrative Agent's account, for the
benefit of the applicable Class Investors for such Class, any amounts set aside
pursuant to Section 2.5 above. With respect to each Class, on the last day of
each Tranche Period to occur on or after such Termination Date for such Class or
during the continuance of a Termination Event or Potential Termination Event for
such Class, the Collection Agent shall deposit to the Administrative Agent's
account to the extent not already so deposited, for the benefit of the Class
Investors for such Class, the amounts so set aside for such Class Investors,
pursuant to the second preceding sentence, but not to exceed the sum of (i) the
accrued Discount (which, in the case of Discount computed by reference to the CP
Rate with respect to any Class Conduit that utilizes "pool" funding, shall be
determined for such purpose using the CP Rate most recently determined by the
related Class Agent, MULTIPLIED by the Fluctuation Factor) for such Tranche
Period (ii) the portion of the Net Investment allocated to such Tranche Period
and (iii) all other Aggregate Unpaids owing to such Class Investors. On such
day, the Collection Agent shall deposit to its account, from the amounts set
aside for such Class, pursuant to the preceding sentence which remain after
payment in full of the aforementioned amounts, the accrued Servicing Fee for
such Tranche Period. If there shall be insufficient funds on deposit for the
Collection Agent to distribute funds in payment in full of the aforementioned
amounts, the Collection Agent shall distribute funds FIRST, in payment of the
accrued Discount to each Class, SECOND, in payment of all fees payable by the
Transferor to the Administrative Agent or any of the Class Investors, THIRD, if
the Transferor, Tech Data or any Affiliate of the Transferor or Tech Data is not
then the Collection Agent, to the Collection Agent's account, in payment of the
Servicing Fee payable to the Collection Agent, FOURTH, in reduction of the Net
Investment allocated to any Tranche Period ending on such date, FIFTH, in
payment of all other Aggregate Unpaids owing to the Class Investors, as
applicable, and SIXTH, if the Transferor, Tech Data or any Affiliate of the
Transferor or Tech Data is the Collection Agent, to its account as Collection
Agent, in payment of the Servicing Fee payable to such Person as Collection
Agent. The Administrative Agent, upon its receipt of such amounts in the
Administrative Agent's account, shall distribute such amounts to the Class
Investors, each as entitled thereto as set forth above; provided that if the
Administrative Agent shall have insufficient funds to pay all of the above
amounts in full on any such date, the Administrative Agent shall pay such
amounts in the order of priority set forth above and, with respect to any such
category above for which the Administrative Agent shall have insufficient funds
to pay all amounts owing on such date, ratably (based on the amounts in such
categories owing to such Persons) among all such Persons entitled to payment
thereof.
Following the date after all Termination Dates on which the
Aggregate Net Investment has been reduced to zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate Unpaids have been
paid in full, (i) the Collection Agent shall recompute the Percentage Factor for
each Class, (ii) the Administrative Agent, on behalf of the Class Investors,
shall be considered to have reconveyed to the Transferor all of the Class
Investors' right, title and interest in and to the Affected Assets (including
the Transferred Interest), (iii) the Collection Agent shall pay to the
Transferor any remaining Collections set aside and held by the Collection Agent
pursuant to the third sentence of this Section 2.6 and (iv) the Administrative
Agent, on behalf of the applicable Class Investor(s), shall execute and deliver
to the Transferor, at the Transferor's expense, such documents or instruments as
are necessary to terminate the Class Investors' respective interests
32
in the Affected Assets. Any such documents shall be prepared by or on behalf of
the Transferor. On the last day of each Tranche Period, the Collection Agent
shall remit to the Transferor such portion of Collections set aside for the
Transferor pursuant to this Section 2.6.
SECTION 2.7. FEES. Notwithstanding any limitation on recourse
contained in this Agreement, the Transferor shall pay, on the last day of each
month, to the Administrative Agent, for distribution to the Class Investors, in
each case as agreed between themselves, all of the applicable Program Fee and
the applicable Facility Fee. In addition, the Transferor shall pay to the
Administrative Agent an administrative fee as set forth in the Supplemental Fee
Letter. The Transferor acknowledges that the foregoing fees are non-refundable.
33
SECTION 2.8. PROTECTION OF OWNERSHIP INTEREST OF THE CLASS
INVESTORS. (a) The Transferor agrees that it will, and will cause the Seller to,
from time to time, at its expense, promptly execute and deliver all instruments
and documents and take all actions as may be necessary or as the Administrative
Agent or any Class Agent may reasonably request in order to perfect or protect
the Transferred Interest or to enable the Administrative Agent or any of the
Class Investors to exercise or enforce any of their respective rights hereunder.
Without limiting the foregoing, the Transferor will, and will cause the Seller
to, upon the reasonable request of the Administrative Agent or any of the Class
Investors, in order to accurately reflect this purchase and sale transaction,
(x) execute and file such financing or continuation statements or amendments
thereto or assignments thereof (as permitted pursuant to Section 11.6 hereof) as
may be requested by the Administrative Agent or any of the Class Investors and
(y) mark its and the Seller's respective master data processing records and
other documents with a legend describing the conveyance to the Transferor and
the conveyance to the Administrative Agent, for the benefit of the Class
Investors, of the Transferred Interest in the manner required by Section 5.1(n).
The Transferor shall, and will cause the Seller to, upon the reasonable request
of the Administrative Agent or any of the Class Investors, obtain such
additional search reports as the Administrative Agent or any of the Class
Investors shall request. To the fullest extent permitted by applicable law, the
Administrative Agent shall be permitted to sign and file continuation statements
and amendments thereto and assignments thereof without the Transferor's or the
Seller's signature. The Transferor shall not, and shall not permit the Seller
to, change its respective name, identity or corporate structure (within the
meaning of Section 9-402(7) of the UCC as in effect in the State of New York,
Delaware or California, as applicable,) nor relocate its respective chief
executive office or any office where Records are kept unless it shall have: (i)
given the Administrative Agent at least thirty (30) days prior notice thereof
and (ii) prepared at Transferor's expense and delivered to the Administrative
Agent all financing statements, instruments and other documents necessary to
preserve and protect the Transferred Interest or requested by the Administrative
Agent or any Class Agent in connection with such change or relocation. Any
filings under the UCC or otherwise that are occasioned by such change in name or
location shall be made at the expense of Transferor.
(b) The Collection Agent shall instruct all
Obligors to cause all Collections to be deposited directly with a Lock-Box Bank.
Any Lock-Box Account maintained by a Lock-Box Bank pursuant to the related
Lock-Box Agreement shall be under the exclusive ownership and control of the
Administrative Agent which is hereby granted to the Administrative Agent by the
Seller and the Transferor. The Collection Agent shall be permitted to give
instructions to the Lock-Box Banks for so long as neither a Collection Agent
Default nor any other Termination Event has occurred hereunder. The Collection
Agent shall not add any bank as a Lock-Box Bank to those listed on Exhibit C
attached hereto unless such bank has entered into a Lock-Box Agreement. The
Collection Agent shall not terminate any bank as a Lock-Box Bank unless the
Administrative Agent shall have received fifteen (15) days' prior notice of such
termination. If the Transferor receives any Collections or is deemed to receive
any Collections pursuant to Section 2.9, the Transferor shall immediately remit
such Collections to a Lock-Box Account. Any Collections that are received by the
Seller or the Collection Agent shall be immediately, but in any event within
forty-eight (48) hours of receipt, deposited into a Lock-Box Account or a bank
account (the "COLLECTION AGENT ACCOUNT") established by the Collection Agent
pursuant to an agreement between the Collection Agent, the Administrative Agent
and a bank consented to by the Administrative Agent, which shall be
substantially in the form of a Lock-Box Agreement.
SECTION 2.9. DEEMED COLLECTIONS; APPLICATION OF PAYMENTS. (a)
If on any day the Outstanding Balance of a Receivable is either (x) reduced as a
result of any defective, rejected or
34
returned merchandise or services, any discount, credit, rebate, dispute,
warranty claim, repossessed or returned goods, chargeback, allowance, any
billing adjustment, dilutive factor or other adjustment, or (y) reduced or
canceled as a result of a setoff or offset in respect of any claim by any Person
(whether such claim arises out of the same or a related transaction or an
unrelated transaction), the Transferor shall be deemed to have received on such
day a Collection of such Receivable (each, a "DEEMED COLLECTION") in the amount
of such reduction or cancellation and the Transferor shall pay to the Collection
Agent an amount equal to such reduction or cancellation and such amount shall be
applied by the Collection Agent as a Collection in accordance with Section 2.5
or 2.6 hereof, as applicable. The Net Investment with respect to each Class
shall be reduced by the amount of such payment applied to the reduction of such
Net Investment and actually received by the Administrative Agent for the benefit
of the Class Investors.
(b) If on any day any of the representations or
warranties in Article III was or becomes untrue with respect to a Receivable
(whether on or after the date of any transfer of an interest therein to the
Administrative Agent or any of the Class Investors as contemplated hereunder),
the Transferor shall be deemed to have received on such day a Collection of such
Receivable (each, a "DEEMED COLLECTION") in full and the Transferor shall on
such day pay to the Collection Agent an amount equal to the Outstanding Balance
of such Receivable and such amount shall be allocated and applied by the
Collection Agent as a Collection allocable to the Transferred Interest in
accordance with Section 2.5 or 2.6 hereof, as applicable. The Net Investment
with respect to each Class shall be reduced by the amount of such payment
applied to the reduction of such Net Investment, and actually received by the
Administrative Agent for the benefit of the Class Investors.
(c) Any payment by an Obligor in respect of any
indebtedness owed by it to the Transferor shall, except as otherwise specified
by such Obligor or otherwise required by contract or law and unless otherwise
instructed by the Administrative Agent, be applied as a Collection of any
Receivable of such Obligor included in the Transferred Interest (starting with
the oldest such Receivable) to the extent of any amounts then due and payable
thereunder before being applied to any other receivable or other indebtedness of
such Obligor.
SECTION 2.10. PAYMENTS AND COMPUTATIONS, ETC. All amounts to
be paid or deposited by the Transferor or the Collection Agent hereunder shall
be paid or deposited in accordance with the terms hereof no later than 11:00
a.m. (New York City time) on the day when due in immediately available funds; if
such amounts are payable to any Class Investor they shall be paid or deposited
in the account notified by the Administrative Agent. The Transferor shall, to
the extent permitted by law, pay to the Administrative Agent, for the benefit of
the Class Investors, upon demand, interest on all amounts not paid or deposited
when due hereunder at a rate equal to 1% per annum plus the Base Rate. All
computations of Discount, interest and all per annum fees hereunder shall be
made on the basis of a year of 360 days for the actual number of days (including
the first but excluding the last day) elapsed. Any computations by the
Administrative Agent of amounts payable by the Transferor hereunder shall be
binding upon the Transferor absent manifest error.
SECTION 2.11. REPORTS. Prior to the 15th day of each month,
the Collection Agent shall prepare and forward to each Class Agent and the
Administrative Agent (i) an Investor Report (including without limitation, a
settlement statement and a certification as to the Net Receivables Balance)
together with an aging of all Receivables, as of the close of business of the
Collection Agent on the last day of the immediately preceding month, (ii) if
requested by any of the Class
35
Agents, a listing by Obligor of all Receivables together with an aging of such
Receivables and (iii) such other information as any Class Agent or the
Administrative Agent may reasonably request.
SECTION 2.12. COLLECTION ACCOUNT. There shall be established
on the day of the initial Incremental Transfer hereunder and maintained, for the
benefit of the Class Investors, with the Administrative Agent, a segregated
account (the "COLLECTION ACCOUNT"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Class
Investors. On and after the occurrence of a Collection Agent Default or a
Termination Event, the Collection Agent shall remit daily within forty-eight
hours of receipt to the Collection Account all Collections received with respect
to any Receivables. Funds on deposit in the Collection Account (other than
investment earnings) shall be invested by the Administrative Agent in Eligible
Investments that will mature so that such funds will be available prior to the
last day of each successive Tranche Period following such investment. On the
last day of each calendar month, all interest and earnings (net of losses and
investment expenses) on funds on deposit in the Collection Account shall be
retained in the Collection Account and be available to make any payments
required to be made hereunder (including any Discount) to the Administrative
Agent or the applicable Class Investors. On the date after all Termination Dates
on which the Aggregate Net Investment is zero, all accrued Discount and
Servicing Fees have been paid in full and all other Aggregate Unpaids have been
paid in full, any funds remaining on deposit in the Collection Account shall be
paid to the Transferor.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Class Investor
(for purposes of this Section only, being a "RECIPIENT") shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of any portion of the Transferred Interest
owned by it (other than pursuant to Section 2.7, or Article VIII and other than
as a result of the differences in the timing of the applications of Collections
pursuant to Section 2.5 or 2.6) in excess of its ratable share of payments on
account of any portion of the Transferred Interest obtained by such Class
Investor, each as entitled thereto, such Recipient shall forthwith purchase from
the other Class Investors entitled to a share of such amount participations in
the portion of the Transferred Interest owned by such Class Investors as shall
be necessary to cause such Recipient to share the excess payment ratably with
each such other Person entitled thereto; PROVIDED, HOWEVER, that if all or any
portion of such excess payment is thereafter recovered from such Recipient, such
purchase from each such other Class Investor shall be rescinded and each such
other Class Investor shall repay to the Recipient the purchase price paid by
such Recipient for such participation to the extent of such recovery, together
with an amount equal to such other Class Investor's ratable share (according to
the proportion of (a) the amount of such other Person's required payment to (b)
the total amount so recovered from the Recipient) of any interest or other
amount paid or payable by the Recipient in respect of the total amount so
recovered.
SECTION 2.14. RIGHTS OF SET-OFF. Without in any way limiting
the provisions of Section 2.13, each Class Investor is hereby authorized (in
addition to any other rights it may have) at any time after the occurrence of
the Termination Date for its Class or during the continuance of a Termination
Event or a Potential Termination Event for its Class to set-off, appropriate and
apply (without presentment, demand, protest or other notice which are hereby
expressly waived) any deposits and any other indebtedness held or owing by such
Class Investor to, or for the account of, the Transferor against the amount of
the Aggregate Unpaids owing by the Transferor to such Class Investor (even if
contingent or unmatured).
36
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR.
The Transferor represents and warrants to the Class Investors, the Class Agents
and the Administrative Agent:
(a) CORPORATE EXISTENCE AND POWER. The Transferor is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Transferor of this
Agreement, the Purchase Agreement, the Fee Letter, the Supplemental Fee Letter,
the Certificate and the Transfer Certificate are within the Transferor's
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, Official Body or official
thereof (except as contemplated by Section 2.8 hereof), and do not contravene,
or constitute a default under, any provision of applicable law or regulation or
of the Certificate of Incorporation or Bylaws of the Transferor or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Transferor or result in the creation or imposition of any Adverse Claim on
the assets of the Transferor or any of its Subsidiaries (except as contemplated
by Section 2.8 hereof).
(c) BINDING EFFECT. Each of this Agreement, the
Purchase Agreement, the Fee Letter, the Supplemental Fee Letter and the
Certificate constitutes and the Transfer Certificate upon payment of the
Transfer Price set forth therein will constitute, the legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws affecting the rights of creditors generally.
(d) PERFECTION. Immediately preceding each Transfer
hereunder, the Transferor shall be the owner of all of the Receivables, free and
clear of all Adverse Claims. On or prior to each Transfer and each recomputation
of the Transferred Interest, all financing statements and other documents
required to be recorded or filed in order to perfect and protect the Transferred
Interest against all creditors of and purchasers from the Transferor and Tech
Data will have been duly filed in each filing office necessary for such purpose
and all filing fees and taxes, if any, payable in connection with such filings
shall have been paid in full.
(e) ACCURACY OF INFORMATION. All information heretofore
furnished by the Transferor (including without limitation, the Investor Report
furnished on a monthly basis and the Transferor's financial statements) to any
Class Investor, any Class Agent or the Administrative Agent for purposes of or
in connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Transferor to any Class
Investor, any Class Agent or the Administrative Agent will be, true and accurate
in every material respect, on the date such information is stated or certified.
(f) TAX STATUS. The Transferor has filed all tax
returns (federal, state and local) required to be filed and has paid or made
adequate provision for the payment of all taxes, assessments and other
governmental charges.
37
(g) ACTION, SUITS. Except as set forth in Exhibit H,
there are no actions, suits or proceedings pending, or to the knowledge of the
Transferor threatened, against or affecting the Transferor or any Affiliate of
the Transferor or their respective properties, in or before any court,
arbitrator or other body, which may materially adversely affect the financial
condition of the Transferor and the Subsidiaries taken as a whole or materially
adversely affect the ability of Transferor to perform its obligations under this
Agreement.
(h) USE OF PROCEEDS. No proceeds of any Transfer will
be used by the Transferor to acquire any security in any transaction which is
subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) PLACE OF BUSINESS. The principal place of business
and chief executive office of the Transferor are located at the address of the
Transferor indicated in Section 11.3 hereof and the offices where the Transferor
keeps all its Records, are located at the address(es) described on Exhibit I or
such other locations notified to the Administrative Agent in accordance with
Section 2.8 hereof in jurisdictions where all action required by Section 2.8
hereof has been taken and completed.
(j) GOOD TITLE. Upon each Transfer and each
recomputation of the Transferred Interest, the Administrative Agent, on behalf
of the applicable Class Investor(s), shall acquire a valid and perfected first
priority undivided percentage ownership interest to the extent of the
Transferred Interest or a first priority perfected security interest in each
Receivable that exists on the date of such Transfer and recomputation and in the
Related Security and Collections with respect thereto free and clear of any
Adverse Claim.
(k) TRADENAMES, ETC. As of the date hereof: (i) the
Transferor has only the Subsidiaries and divisions listed on Exhibit J hereto;
and (ii) the Transferor has, within the last five (5) years, operated only under
the tradenames identified in Exhibit J hereto, and, within the last five (5)
years, has not changed its name, merged with or into or consolidated with any
other corporation or been the subject of any proceeding under Title 11, United
States Code (Bankruptcy), except as disclosed in Exhibit J hereto.
(l) NATURE OF RECEIVABLES. Each Receivable (x)
represented by the Transferor or the Collection Agent to be an Eligible
Receivable (including in any Investor Report or other report delivered pursuant
to Section 2.11 hereof) or (y) included in the calculation of the Net
Receivables Balance in fact satisfies at such time the definition of "Eligible
Receivable" set forth herein and is an "eligible asset" as defined in Rule 3a-7
under the Investment Company Act of 1940, as amended and, in the case of clause
(y) above, is not a Receivable of the type described in clauses (i) through
(iii) of the definition of "Net Receivables Balance."
(m) COVERAGE REQUIREMENT; AMOUNT OF RECEIVABLES. The
Aggregate Percentage Factor does not exceed the Maximum Percentage Factor. As of
April 30, 2000, the aggregate Outstanding Balance of the Receivables in
existence was $938,016,434 and the Net Receivables Balance was $873,131,721.
(n) NO TERMINATION EVENT. No event has occurred and is
continuing and no condition exists which constitutes a Termination Event or a
Potential Termination Event for any Class or if either such event has occurred,
the Transferor has notified the Administrative Agent in
38
writing of either such event immediately upon learning of the occurrence
thereof, describing the same and if applicable, the steps being taken by the
Person(s) affected with respect thereto.
(o) NOT AN INVESTMENT COMPANY. The Transferor is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
(p) ERISA. The Transferor and each of its ERISA
Affiliates is in compliance in all material respects with ERISA and no ERISA
lien exists on any of the Receivables.
(q) LOCK-BOX ACCOUNTS. The name and address of the Bank
where the Collection Agent Account is maintained, together with the account
number of such account, and the names and addresses of all the Lock-Box Banks,
together with the account numbers of the Lock-Box Accounts at such Lock-Box
Banks, are specified in Exhibit C hereto (or at such other Lock-Box Banks and/or
with such other Lock-Box Accounts as have been notified to the Administrative
Agent and for which Lock-Box Agreements have been executed in accordance with
Section 2.8(b) hereof and delivered to the Collection Agent). All Obligors have
been instructed to make payment to a Lock-Box Account and only Collections are
deposited into the Lock-Box Accounts.
(r) NONCONSOLIDATION. The Transferor is operated in
such manner that the separate corporate existence of the Transferor, on the one
hand, and Tech Data or any Affiliate thereof, on the other hand, shall not be
disregarded and, without limiting the generality of the foregoing:
(i) the Transferor is a limited purpose corporation
whose activities are restricted in its Certificate of Incorporation to
activities related to purchasing or otherwise acquiring receivables and
related property (including the Receivables and the Related Security)
and related assets and rights and conducting any related or incidental
business or activities it deems necessary or appropriate to carry out
its primary purpose, including entering into agreements like the
Transaction Documents;
(ii) the Transferor has not engaged, and does not
presently engage, in any activity other than those activities expressly
permitted hereunder and under the other Transaction Documents, nor has
the Transferor entered into any agreement other than this Agreement,
the other Transaction Documents to which it is a party, and with the
prior written consent of each Class Agent and the Administrative Agent,
any other agreement necessary to carry out more effectively the
provisions and purposes hereof or thereof;
(iii) (A) the Transferor maintains its own deposit
account or accounts, separate from those of any of its Affiliates, with
commercial banking institutions, (B) the funds of the Transferor are
not and have not been diverted to any other Person or for other than
the corporate use of the Transferor and (C), except as may be expressly
permitted by this Agreement, the funds of the Transferor are not and
have not been commingled with those of any of its Affiliates;
(iv) to the extent that the Transferor contracts or
does business with vendors or service providers where the goods and
services provided are
39
partially for the benefit of any other Person, the costs incurred in so
doing are fairly allocated to or among the Transferor and such entities
for whose benefit the goods and services are provided, and each of the
Transferor and each such entity bears its fair share of such costs; and
all material transactions between the Transferor and any of its
Affiliates shall be only on an arm's-length basis;
(v) the Transferor maintains a principal executive and
administrative office through which its business is conducted and a
telephone number and stationery through which all business
correspondence and communication are conducted, in each case separate
from those of Tech Data and its Affiliates;
(vi) the Transferor conducts its affairs strictly in
accordance with its certificate of incorporation and observes all
necessary, appropriate and customary corporate formalities, including
(A) holding all regular and special stockholders' and directors'
meetings appropriate to authorize all corporate action (which, in the
case of regular stockholders' and directors' meetings, are held at
least annually), (B) keeping separate and accurate minutes of such
meetings, (C) passing all resolutions or consents necessary to
authorize actions taken or to be taken, and (D) maintaining accurate
and separate books, records and accounts, including intercompany
transaction accounts;
(vii) all decisions with respect to its business and
daily operations are independently made by the Transferor (although the
officer making any particular decision may also be an employee, officer
or director of an Affiliate of the Transferor) and are not dictated by
any Affiliate of the Transferor;
(viii) the Transferor acts solely in its own corporate
name and through its own authorized officers and agents, and no
Affiliate of the Transferor shall be appointed to act as its agent,
except as expressly contemplated by this Agreement;
(ix) no Affiliate of the Transferor advances funds to
the Transferor, other than as is otherwise provided herein or in the
other Transaction Documents, and no Affiliate of the Transferor
otherwise supplies funds to, or guaranties debts of, the Transferor;
PROVIDED, HOWEVER, that an Affiliate of the Transferor may provide
funds to the Transferor in connection with the capitalization of the
Transferor;
(x) other than organizational expenses and as expressly
provided herein, the Transferor pays all expenses, indebtedness and
other obligations incurred by it;
(xi) the Transferor does not guarantee, and is not
otherwise liable, with respect to any obligation of any of its
Affiliates;
(xii) any financial reports required of the Transferor
comply with generally accepted accounting principles and are issued
separately from, but may be consolidated with, any reports prepared for
any of its Affiliates;
40
(xiii) at all times the Transferor is adequately
capitalized to engage in the transactions contemplated in its
certificate of incorporation;
(xiv) the financial statements and books and records of
the Transferor and Tech Data reflect the separate corporate existence
of the Transferor;
(xv) the Transferor does not act as agent for Tech Data
or any Affiliate thereof, but instead presents itself to the public as
a corporation separate from each such member and independently engaged
in the business of purchasing and financing the Receivables;
(xvi) the Transferor maintains a three-person board of
directors, including at least one independent director, who has never
been, and shall at no time be a stockholder, director, officer,
employee or associate, or any relative of the foregoing, of Tech Data
or any Affiliate thereof (other than the Transferor and any other
bankruptcy-remote special purpose entity formed for the sole purpose of
securitizing, or facilitating the securitization of, financial assets
of any Tech Data or any Affiliate thereof), all as provided in its
certificate or articles of incorporation, and is otherwise reasonably
acceptable to each Class Agent and the Administrative Agent; and
(xvii) the certificate of incorporation of the
Transferor requires the affirmative vote of the independent director
before a voluntary petition under Section 301 of the Bankruptcy Code
may be filed by the Transferor, and the Transferor to maintain correct
and complete books and records of account and minutes of the meetings
and other proceedings of its stockholders and board of directors.
SECTION 3.2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
BY THE TRANSFEROR. On each day that a Transfer is made hereunder, the
Transferor, by accepting the proceeds of such Transfer, whether delivered to the
Transferor pursuant to Section 2.2(a) or Section 2.5 hereof, shall be deemed to
have certified that all representations and warranties described in Section 3.1
hereof are correct on and as of such day as though made on and as of such day.
Each Incremental Transfer shall be subject to the further condition precedent
that prior to the date of such Transfer, the Collection Agent shall have
delivered to each Class Agent and the Administrative Agent, in form and
substance satisfactory to the each Class Agent and the Administrative Agent, a
completed Investor Report dated within 14 days prior to the date of such
Transfer, together with a listing by Obligor, if requested, and such additional
information as may be reasonably requested by any Class Agent or the
Administrative Agent; and the Transferor shall be deemed to have represented and
warranted that such conditions precedent have been satisfied.
Any document, instrument, certificate or notice delivered to
any Class Investor hereunder shall be deemed a representation and warranty by
the Transferor to the extent that such document, instrument, certificate or
notice contains any statement of fact, which shall not include forward-looking
statements.
SECTION 3.3. REPRESENTATIONS AND WARRANTIES OF TECH DATA, AS
COLLECTION AGENT. Tech Data, as Collection Agent represents and warrants to the
Class Investors, the Class Agents and the Administrative Agent that:
41
(a) CORPORATE EXISTENCE AND POWER. Tech Data is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted.
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by Tech Data of this
Agreement, the Fee Letter, the Supplemental Fee Letter and the Purchase
Agreement are within Tech Data's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any Official Body or official thereof (except for the filing of UCC
financing statements in connection with the Purchase Agreement), and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Certificate of Incorporation or Bylaws of Tech Data or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon Tech Data or result in the creation or imposition of any Adverse Claim on
the assets of Tech Data or any of its Subsidiaries except as contemplated by
this Agreement and the Purchase Agreement.
(c) BINDING EFFECT. Each of this Agreement, the Fee
Letter, the Supplemental Fee Letter and the Purchase Agreement constitute the
legal, valid and binding obligation of Tech Data, enforceable in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the rights of creditors.
(d) ACCURACY OF INFORMATION. All information heretofore
furnished by Tech Data to the Transferor, any Class Agent, any Class Investor or
the Administrative Agent for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by Tech Data to the Transferor, any Class Agent, any Class Investor or
the Administrative Agent will be, true and accurate in every material respect,
on the date such information is stated or certified.
(e) TAX STATUS. Tech Data has filed all tax returns
(federal, state and local) required to be filed and has paid or made adequate
provision for the payment of all taxes, assessments and other governmental
charges.
(f) ACTION, SUITS. Except as set forth in Exhibit H
hereto, there are no actions, suits or proceedings pending, or to the knowledge
of Tech Data threatened, against or affecting Tech Data or any Affiliate of Tech
Data or their respective properties, in or before any court, arbitrator or other
body, which may materially adversely affect the financial condition of Tech Data
and its Subsidiaries taken as a whole or materially adversely affect the ability
of Tech Data to perform its obligations under this Agreement.
(g) CREDIT AND COLLECTION POLICY. Since March 30, 2000
there have been no material changes in Tech Data's Credit and Collection Policy;
since such date, no material adverse change has occurred in the overall rate of
collection of the Receivables.
(h) COLLECTIONS AND SERVICING. Since March 30, 2000
there has been no material adverse change in the ability of Tech Data to service
and collect the Receivables.
42
(i) PLACE OF BUSINESS. The principal place of business
and chief executive office of Tech Data are located at the address of Tech Data
indicated in Section 11.3 hereof and the offices where Tech Data keeps all its
Records, are located at the address(es) described on Exhibit I or such other
locations notified to the Administrative Agent in accordance with Section 2.8
hereof in jurisdictions where all action required by Section 2.8 hereof has been
taken and completed.
(j) TRADENAMES, ETC. As of the date hereof: (i) Tech
Data has, within the last five (5) years, operated only under the tradenames
that it has protected, and, within the last five (5) years, has not changed its
name, merged with or into or consolidated with any other corporation or been the
subject of any proceeding under Title 11, United States Code (Bankruptcy),
except as disclosed in Exhibit J hereto.
(k) NATURE OF RECEIVABLES. Each Receivable is an
"eligible asset" as defined in Rule 3a-7 under the Investment Company Act of
1940, as amended.
(l) NO TERMINATION EVENT. No event has occurred and is
continuing and no condition exists which constitutes a Termination Event or a
Potential Termination Event for any Class or if either such event has occurred,
Tech Data has notified the Administrative Agent in writing of either such event
immediately upon learning of the occurrence thereof, describing the same and if
applicable, the steps being taken by the Person(s) affected with respect
thereto.
(m) NOT AN INVESTMENT COMPANY. Tech Data is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
(n) ERISA. Tech Data is in compliance in all material
respects with ERISA and no lien exists in favor of the Pension Benefit Guaranty
Corporation on any of the Receivables.
SECTION 3.4. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES
BY TECH DATA, AS COLLECTION AGENT. On each day that a Transfer is made
hereunder, Tech Data shall be deemed to have certified that all representations
and warranties described in Section 3.3 are correct on and as of such day as
though made on and as of such day.
Any document, instrument, certificate or notice delivered to
the Administrative Agent, any Class Agent or any Class Investor hereunder shall
be deemed a representation and warranty by Tech Data.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1. CONDITIONS TO CLOSING. On or prior to the date of
execution hereof, the Transferor shall deliver to the Administrative Agent and
each Class Agent the following documents, instruments and fees all of which
shall be in a form and substance acceptable to the Administrative Agent and each
Class Agent:
(a) A copy of the resolutions of the Board of Directors
of the Transferor and Tech Data certified by its Secretary approving the
execution, delivery and performance by the Transferor and Tech Data of this
Agreement, the Purchase Agreement and the other Transaction Documents to be
delivered by the Transferor and Tech Data hereunder or thereunder.
43
(b) The Articles of Incorporation of the Transferor and
of Tech Data certified by the Secretary of State or other similar official of
the Transferor's and Tech Data's respective jurisdictions of incorporation, each
dated a date reasonably prior to the Closing Date.
(c) A Good Standing Certificate for the Transferor and a
Certificate of Status for Tech Data issued by the Secretary of State or a
similar official of the Transferor's and Tech Data's respective jurisdictions of
incorporation and certificates of qualification as a foreign corporation issued
by the Secretaries of State or other similar officials of each jurisdiction
where such qualification is material to the transactions contemplated by this
Agreement and the other Transaction Documents, in each case, dated a date
reasonably prior to the Closing Date.
(d) A Certificate of the Secretary of the Transferor and
Tech Data substantially in the form of Exhibit L attached hereto certifying (i)
the names and signatures of the officers authorized on its behalf to execute
this Agreement, the Purchase Agreement, the Certificate, the Fee Letter, the
Supplemental Fee Letter and any other documents to be delivered by it hereunder
(on which Secretary's Certificates each Class Investor 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
(d)(i)) and (ii) a copy of the Transferor's and Tech Data's By-Laws.
(e) Copies of proper financing statements (Form UCC-1),
dated a date reasonably near to the date of the initial Incremental Transfer
naming the Transferor as the debtor in favor of the Administrative Agent, as
secured party for the benefit of the Class Investors, or other similar
instruments or documents as may be necessary or in the reasonable opinion of the
Administrative Agent desirable under the UCC of all appropriate jurisdictions or
any comparable law to perfect the Administrative Agent's undivided percentage
interest in all Receivables and the Related Security and Collections relating
thereto.
(f) Copies of proper financing statements (Form UCC-1),
dated a date reasonably near to the date of the initial Incremental Transfer
naming Tech Data as the debtor in favor of the Transferor as secured party and
the Administrative Agent, for the benefit of the Class Investors, as assignee of
the secured party or other similar instruments or documents as may be necessary
or in the reasonable opinion of the Administrative Agent desirable under the UCC
of all appropriate jurisdictions or any comparable law to perfect the
Transferor's ownership interest in all Receivables.
(g) Copies of proper financing statements (Form UCC-3)
necessary to terminate all security interests and other rights of any person in
Receivables previously granted by Tech Data or any of its Subsidiaries.
(h) Certified copies of requests for information or
copies (Form UCC-11) (or a similar search report certified by parties acceptable
to the Administrative Agent) dated a date reasonably near the date of the
initial Incremental Transfer listing all effective financing statements which
name the Transferor or the Seller (under their respective present names and any
previous names) as debtor and which are filed in jurisdictions in which the
filings were made pursuant to items (e) or (f) above together with copies of
such financing statements (none of which shall cover any Receivables or
Contracts).
44
(i) Executed copies of the Lock-Box Agreements, relating
to each of the Lock-Boxes and the Lock-Box Accounts, and an executed copy of the
agreement referred to in Section 2.8(b).
(j) An opinion of David Vetter, counsel to Tech Data,
addressing certain corporate matters relating to Tech Data, covering the
appropriate matters set forth in Exhibit K hereto.
(k) An opinion of Holland & Knight, LLP, special counsel
to the Transferor, addressing certain corporate and bankruptcy matters relating
to the Transferor, covering the appropriate matters set forth in Exhibit K
hereto, which shall include, among other things, opinions as to "true sale" and
nonconsolidation.
(l) A certificate of the Transferor and Tech Data in the
form of Exhibit L-1 and Exhibit L-2 hereto.
(m) A hard copy, microfiche or computer tape setting
forth all Receivables and the Outstanding Balances thereon and such other
information as the Administrative Agent may reasonably request.
(n) An executed copy of this Agreement, the Purchase
Agreement and the Fee Letter.
(o) The Transfer Certificate, duly executed by the
Transferor.
(p) The Certificate, duly executed by the Transferor and
appropriately completed.
(q) An Investor Report for April 30, 2000.
(r) The agreements necessary to terminate the Existing
Agreement and any agreements and other ancillary documents related thereto.
(s) Such other documents, instruments, certificates and
opinions as the Administrative Agent or any Class Agent, shall reasonably
request.
ARTICLE V
COVENANTS
SECTION 5.1. AFFIRMATIVE COVENANTS OF TRANSFEROR. At all times
from the date hereof to the later to occur of (i) the Termination Dates or (ii)
the date on which the Aggregate Net Investment has been reduced to zero, all
accrued Discount and Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless the
Administrative Agent shall otherwise consent in writing:
45
(a) REPORTS. The Transferor shall deliver to the
Administrative Agent and each Class Agent:
(i) ANNUAL REPORTING. Within ninety-five (95) days
after the close of each of its fiscal years, an unqualified audit
report certified by independent certified public accountants prepared
in accordance with generally accepted accounting principles on a
consolidated and consolidating basis (consolidating statements need not
be certified by such accountants) for itself including balance sheets
as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by any management letter prepared by said accountants and
by a certificate of said accountants that, in the course of the
foregoing, they have obtained no knowledge of any Termination Event or
Potential Termination Event, or if, in the opinion of such accountants,
any Termination Event or Potential Termination Event shall exist,
stating the nature and status thereof. The independent certified public
accountants shall be either KPMG, PricewaterhouseCoopers, Ernst & Young
LLP, Deloitte and Touche, Arthur Andersen or any other independent
certified public accountants acceptable to the Administrative Agent.
(ii) QUARTERLY REPORTING. Within fifty (50) days
after the close of the first three quarterly periods of each of its
fiscal years, for itself consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements
and a statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer.
(iii) COMPLIANCE CERTIFICATE. Within ninety-five
(95) days of the close of each of its fiscal years and within fifty
(50) days of the close of each of the first three fiscal quarters of
each of its fiscal years, a compliance certificate signed by its chief
financial officer stating that no Termination Event or Potential
Termination Event exists for any Class, or if any Termination Event or
Potential Termination Event exists for any Class, stating the nature
and status thereof.
(iv) NOTICE OF TERMINATION EVENTS OR POTENTIAL
TERMINATION EVENTS. As soon as possible and in any event within two
days after the occurrence of each Termination Event or each Potential
Termination Event for each Class, a statement of the chief financial
officer or chief accounting officer of the Transferor setting forth
details of such Termination Event or Potential Termination Event and
the action which the Transferor proposes to take with respect thereto.
(v) CHANGE IN CREDIT AND COLLECTION POLICY. Within
15 days after the date any material change in or amendment to the
Credit and Collection Policy is made, a copy of the Credit and
Collection Policy then in effect indicating such change or amendment.
(vi) ERISA. Promptly after the filing or receiving
thereof, copies of all reports and notices with respect to any
"reportable event" (as defined in Article IV of ERISA) which the
Transferor, Tech Data or any domestic Affiliate of
46
the Transferor files under ERISA with the Internal Revenue Service, the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor or
which the Transferor, Tech Data or any domestic Affiliates of the
Transferor receives from the Internal Revenue Service, the Pension
Benefit Guaranty Corporation or the U.S. Department of Labor.
(vii) OTHER INFORMATION. Such other information
(including non-financial information) as the Administrative Agent, or
the Administrative Agent, may from time to time reasonably request.
(b) CONDUCT OF BUSINESS. The Transferor will carry on
and conduct its business in substantially the same manner and in substantially
the same fields of enterprise as it is presently conducted and do all things
necessary to remain duly incorporated, validly existing and in good standing as
a domestic corporation in its jurisdiction of incorporation and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
(c) COMPLIANCE WITH LAWS. The Transferor will comply in
all material respects with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject.
(d) FURNISHING OF INFORMATION AND INSPECTION OF
RECORDS. The Transferor will furnish to the Administrative Agent from time to
time such information with respect to the Receivables as the Administrative
Agent may reasonably request, including, without limitation, listings
identifying the Obligor and the Outstanding Balance for each Receivable. The
Transferor will at any time and from time to time during regular business hours
upon forty-eight (48) hours prior written notice, permit the Administrative
Agent, or its agents or representatives, (i) to examine and make copies of and
abstracts from all Records and (ii) to visit the offices and properties of the
Transferor or Tech Data, as applicable, for the purpose of examining such
Records, and to discuss matters relating to Receivables or the Transferor's
performance hereunder with any of the officers, directors, employees or
independent public accountants of the Transferor having knowledge of such
matters.
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The
Transferor will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals thereof), and keep
and maintain, all documents, books, records and other information reasonably
necessary or advisable for the collection of all Receivables (including, without
limitation, records adequate to permit the daily identification of each new
Receivable and all Collections of and adjustments to each existing Receivable);
PROVIDED, that the Transferor shall not be required to keep and maintain such
records with respect to any Receivables for a period of more than sixty (60)
days after such Receivables shall have been paid in full by the Obligors
thereof. The Transferor will give the Administrative Agent notice of any
material change in the administrative and operating procedures referred to in
the previous sentence.
(f) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND
CONTRACTS. The Transferor will at its expense timely and fully perform and
comply with all material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Receivables.
47
(g) CREDIT AND COLLECTION POLICIES. The Transferor will
comply in all material respects with the Credit and Collection Policy in regard
to each Receivable and the related Contract.
(h) COLLECTIONS. The Transferor shall instruct, or
cause to be instructed, all Obligors to cause all Collections to be deposited
directly to a Lock-Box Account.
(i) COLLECTIONS RECEIVED BY TRANSFEROR. The Transferor
shall hold in trust, and deposit, immediately, but in any event not later than
forty-eight (48) hours of its receipt thereof, to a Lock-Box Account all
Collections received from time to time by the Transferor (including without
limitation, in the case of the Transferor, all Collections deemed to have been
received by the Transferor under Section 2.9(a)).
(j) SALE TREATMENT. The Transferor shall not (i)
account for (including for accounting and tax purposes), or otherwise treat, the
transactions contemplated by the Purchase Agreement in any manner other than as
a sale of Receivables by Tech Data to the Transferor, or (ii) account for (other
than for tax purposes) or otherwise treat the transactions contemplated hereby
in any manner other than as a sale of the Receivables by the Transferor to the
Administrative Agent on behalf of the Class Investors. In addition the
Transferor shall disclose (in a footnote or otherwise) in all of its financial
statements (including any such financial statements consolidated with any other
Persons' financial statements) the existence and nature of the transaction
contemplated hereby and by the Purchase Agreement and the interest of the
Transferor (in the case of Tech Data's financial statements) and the
Administrative Agent, on behalf of the Class Investors, in the Affected Assets.
(k) ORGANIZATIONAL DOCUMENTS. The Transferor shall only
amend, alter, change or repeal its Certificate of Incorporation with the prior
written consent of the Administrative Agent and each Class Agent.
(l) MINIMUM NET WORTH. The Transferor shall at all
times maintain a net worth in accordance with GAAP which is not less than an
amount equal to the sum of (i) the Outstanding Balance of all Defaulted
Receivables at such time, (ii) the Outstanding Balance of all Delinquent
Receivables at such time and (iii) the sum of the Outstanding Balance of the
three largest Receivables of the non-investment grade Obligors; PROVIDED,
HOWEVER, that in any case, the net worth shall never be less than 7.5% of the
Aggregate Facility Limit.
(m) CREDIT AGREEMENT. Prior to a Termination Event, the
Transferor shall exercise its rights against Tech Data under the Credit
Agreement (including its set-off rights) in a manner such that it shall be able
to meet all of its obligations under this Agreement (to the extent permitted by
the terms of the Credit Agreement). After a Termination Event, the Transferor
shall exercise its rights under the Credit Agreement (including its set-off
rights) as directed by the Administrative Agent with the approval of the
Majority Investors.
(n) LEGENDS. At all times from and after July 31, 2000,
the Transferor shall cause each and every electronic representation of any
Receivable (whether in disk, tape or other medium), as well as any paper
printout of any such electronic records, to be clearly marked with the following
legend: "THE ACCOUNTS DESCRIBED HEREIN HAVE BEEN SOLD TO TECH DATA FINANCE SPV,
INC. AND AN INTEREST IN THESE ACCOUNTS HAS BEEN TRANSFERRED TO BANK OF AMERICA,
N.A., AS ADMINISTRATIVE AGENT, ON
48
BEHALF OF CERTAIN INVESTORS." Such legend shall be in bold, in type face at
least as large as 10 point and shall be entirely in capital letters.
SECTION 5.2. NEGATIVE COVENANTS OF TRANSFEROR. At all times
from the date hereof to the later to occur of (i) the Termination Dates or (ii)
the date on which the Aggregate Net Investment has been reduced to zero, all
accrued Discount and Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless the
Administrative Agent shall otherwise consent in writing:
(a) NO SALES, LIENS, ETC. Except as otherwise provided
herein, the Transferor will not sell, assign (by operation of law or otherwise)
or otherwise dispose of, or create or suffer to exist any Adverse Claim upon (or
the filing of any financing statement) or with respect to (x) any of the
Affected Assets, (y) any inventory or goods, the sale of which may give rise to
a Receivable or any Receivable or related Contract, or (z) any account which
concentrates in a Lock-Box Bank to which any Collections of any Receivable are
sent, or assign any right to receive income in respect thereof. Notwithstanding
the foregoing, the Transferor may sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist an Adverse
Claim on any goods or inventory held on consignment solely with respect to the
consignor's interest.
(b) NO EXTENSION OR AMENDMENT OF RECEIVABLES. Except as
otherwise permitted in Section 6.2 hereof, the Transferor will not extend, amend
or otherwise modify the terms of any Receivable, or amend, modify or waive any
term or condition of any Contract related thereto.
(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 the Credit and Collection Policy, which change would impair the
collectibility of the Receivables in a material respect.
(d) NO MERGERS, ETC. The Transferor will not (i)
consolidate or merge with or into any other Person, or (ii) sell, lease or
transfer all or substantially all of its assets to any other person.
(e) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. The
Transferor will not add or terminate any bank as a Lock-Box Bank or any account
as a Lock-Box Account to or from those listed in Exhibit C hereto or make any
change in its instructions to Obligors regarding payments to be made to any
Lock-Box Account, unless (i) such instructions are to deposit such payments to
another existing Lock-Box Account or (ii) the Administrative Agent shall have
received written notice of such addition, termination or change at least 30 days
prior thereto and the Administrative Agent shall have received a Lock-Box
Agreement executed by each new Lock-Box Bank or an existing Lock-Box Bank with
respect to each new Lock-Box Account, as applicable.
(f) DEPOSITS TO LOCK-BOX ACCOUNTS. The Transferor will
not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock-Box Account cash or cash
proceeds other than Collections of Receivables or cash proceeds of other
receivables that were originally Receivables but were not Eligible Receivables
on the date of the initial Transfer hereunder and so were subsequently
repurchased by the Transferor pursuant to Section 2.9 and, upon
49
any deposit of any proceeds of such other receivables to any Lock-Box Account,
remove such proceeds within two Business Days following such deposit.
(g) CHANGE OF NAME, ETC. The Transferor will not change
its name, identity or structure or the location f its chief executive office,
unless at least 10 days prior to the effective date of any such change the
Transferor delivers to the Administrative Agent (i) such documents, instruments
or agreements, executed by the Transferor, necessary to reflect such change and
to continue the perfection of the Administrative Agent's ownership interests or
security interests in the Affected Assets and (ii) new or revised Lock-Box
Agreements executed by the Lock-Box Banks which reflect such change and enable
the Administrative Agent to continue to exercise its rights contained in Section
2.8 hereof.
(h) AMENDMENT TO PURCHASE AGREEMENT. The Transferor
will not amend, modify or supplement the Purchase Agreement or any other
Transaction Document, or waive any provision thereof, or enter into any consent
with respect thereto, in each case except with the prior written consent of the
Administrative Agent and the Majority Investors; nor shall the Transferor take,
or permit Tech Data to take, any other action under the Purchase Agreement that
could have a material adverse effect on the Administrative Agent or any Class
Investor or which is inconsistent with the terms of this Agreement.
(i) SEPARATE BUSINESS; NONCONSOLIDATION. The Transferor
shall not (i) engage in any business not permitted by its Certificate of
Incorporation as in effect on the Closing Date or (ii) conduct its business or
act in any other manner which is inconsistent with Section 3.1(r). The officers
and directors of the Transferor (as appropriate) shall make decisions with
respect to the business and daily operations of the Transferor independent of
and not dictated by Tech Data or any other controlling Person.
(j) OTHER AGREEMENTS. The Transferor shall not enter
into any other agreements except this Agreement and the other Transaction
Documents, unless the Administrative Agent consents in writing. The
Administrative Agent hereby consents to the Transferor entering into the Lease
Agreement, provided that such consent is limited to the Lease Agreement in the
form and substance reviewed by the Administrative Agent.
(k) OTHER INDEBTEDNESS. The Transferor shall not incur
any Indebtedness other than (i) as permitted by the Transaction Documents and
(ii) Indebtedness existing under the Lease Agreement.
SECTION 5.3. AFFIRMATIVE COVENANTS OF TECH DATA. At all times
from the date hereof to the later to occur of (i) the Termination Dates or (ii)
the date on which the Aggregate Net Investment has been reduced to zero, all
accrued Discount and Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless the
Administrative Agent shall otherwise consent in writing:
(a) FINANCIAL REPORTING. Tech Data will maintain, for
itself, a system of accounting established and administered in accordance with
generally accepted accounting principles, and furnish to the Administrative
Agent (who shall forward such information to the Class Agents):
50
(i) ANNUAL REPORTING. Within ninety-five (95) days
after the close of each of its fiscal years, an unqualified audit
report certified by independent certified public accountants prepared
in accordance with generally accepted accounting principles on a
consolidated and consolidating basis (consolidating statements need not
be certified by such accountants) for itself including balance sheets
as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by any management letter prepared by said accountants and
by a certificate of said accountants that, in the course of the
foregoing, they have obtained no knowledge of any Termination Event or
Potential Termination Event, or if, in the opinion of such accountants,
any Termination Event or Potential Termination Event shall exist,
stating the nature and status thereof. The independent certified public
accountants shall be either KPMG, PricewaterhouseCoopers, Ernst & Young
LLP, Deloitte and Touche, Arthur Andersen or any other independent
certified public accountants acceptable to the Administrative Agent.
(ii) QUARTERLY REPORTING. Within fifty (50) days
after the close of the first three quarterly periods of each of its
fiscal years, for itself consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated and
consolidating profit and loss and reconciliation of surplus statements
and a statement of cash flows for the period from the beginning of such
fiscal year to the end of such quarter, all certified by its chief
financial officer.
(iii) COMPLIANCE CERTIFICATE. Together with the
financial statements required hereunder, a compliance certificate
signed by its chief financial officer stating that no Termination Event
or Potential Termination Event exists for any Class, or if any
Termination Event or Potential Termination Event exists for any Class,
stating the nature and status thereof and containing a computation of,
and showing compliance with, each of the financial ratios and
restrictions contained in this Agreement.
(iv) SHAREHOLDERS STATEMENTS AND REPORTS. Promptly
upon the furnishing thereof to the shareholders of Tech Data, copies of
all financial statements, reports and proxy statements so furnished.
(v) S.E.C. FILINGS. Promptly upon the filing
thereof, copies of all registration statements and annual, quarterly,
monthly or other regular reports which Tech Data or any subsidiary
files with the Securities and Exchange Commission; PROVIDED, that Tech
Data may alternatively notify the Administrative Agent (which notice
the Administrative Agent shall forward to each Class Agent) that such
reports are available on the EDGAR Database.
(vi) OTHER INFORMATION. Such other information
(including non-financial information) as the Administrative Agent may
from time to time reasonably request.
(b) CONDUCT OF BUSINESS. Tech Data will, and will cause
each of its Subsidiaries to, carry on and conduct its business in substantially
the same manner and in substantially the same fields of enterprise as it is
presently conducted and to do all things necessary
51
to remain duly incorporated, validly existing and in good standing as a domestic
corporation in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except to the extent that any failure with respect to the foregoing
does not have a material adverse effect on the business or operations of Tech
Data or the performance by Tech Data under any of the Transaction Documents.
(c) COMPLIANCE WITH LAWS. Tech Data will, and will
cause each of its Subsidiaries to, comply in all material respects with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its properties may be subject.
(d) FURNISHING OF INFORMATION AND INSPECTION OF
RECORDS. Tech Data will furnish to the Transferor and the Administrative Agent
from time to time such information with respect to the Receivables as the
Transferor or the Administrative Agent may reasonably request, including,
without limitation, listings identifying the Obligor and the Outstanding Balance
for each Receivable. Tech Data will at any time and from time to time during
regular business hours upon forty-eight (48) hours prior written notice, permit
the Administrative Agent, or its agents or representatives, (i) to examine and
make copies of and abstracts from all Records and (ii) to visit the offices and
properties of Tech Data for the purpose of examining such Records, and to
discuss matters relating to Receivables or Tech Data's performance hereunder
with any of the officers, directors, employees or independent public accountants
of Tech Data having knowledge of such matters.
(e) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Tech Data
will maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing Receivables in the
event of the destruction of the originals thereof), and keep and maintain, all
documents, books, records and other information reasonably necessary or
advisable for the collection of all Receivables (including, without limitation,
records adequate to permit the daily identification of each new Receivable and
all Collections of and adjustments to each existing Receivable); PROVIDED, that
Tech Data shall not be required to keep and maintain such records with respect
to any Receivables for a period of more than sixty (60) days after such
Receivables shall have been paid in full by the Obligors thereof. Tech Data will
give the Administrative Agent notice of any material change in the
administrative and operating procedures referred to in the previous sentence.
(f) PERFORMANCE AND COMPLIANCE WITH RECEIVABLES AND
CONTRACTS. Tech Data, at its expense, will timely and fully perform and comply
with all material provisions, covenants and other promises required to be
observed by it under the Contracts related to the Receivables and all purchase
orders and other agreements related to such Receivables.
(g) CREDIT AND COLLECTION POLICIES. Tech Data will
comply in all material respects with the Credit and Collection Policy in regard
to each Receivable and the related Contract.
(h) COLLECTIONS. Tech Data shall instruct all Obligors
to cause all Collections to be deposited directly to a Lock-Box Account.
(i) COLLECTIONS RECEIVED BY TECH DATA. Tech Data shall
hold in trust, and deposit, immediately, but in any event not later than
forty-eight (48) hours of its receipt thereof, to a Lock-Box Account or the
Collection Agent Account all Collections received from time to time by Tech
Data.
52
(j) TRANSFER OF RECEIVABLES. Tech Data shall sell or
contribute Receivables (as defined in the Purchase Agreement) to the Transferor
at such time or times as necessary in order to cause the Aggregate Percentage
Factor not to exceed the Maximum Percentage Factor.
(k) LEGENDS. At all times from and after July 31, 2000,
Tech Data shall cause each and every electronic representation of any Receivable
(whether in disk, tape or other medium), as well as any paper printout of any
such electronic records, to be clearly marked with the following legend: "THE
ACCOUNTS DESCRIBED HEREIN HAVE BEEN SOLD TO TECH DATA FINANCE SPV, INC. AND AN
INTEREST IN THESE ACCOUNTS HAS BEEN TRANSFERRED TO BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT, ON BEHALF OF CERTAIN INVESTORS." Such legend shall be in
bold, in type face at least as large as 10 point and shall be entirely in
capital letters.
SECTION 5.4. NEGATIVE COVENANTS OF TECH DATA. At all times
from the date hereof to the later to occur of (i) the Termination Dates or (ii)
the date on which the Aggregate Net Investment has been reduced to zero, all
accrued Discount and Servicing Fees shall have been paid in full and all other
Aggregate Unpaids shall have been paid in full, in cash, unless the
Administrative Agent shall otherwise consent in writing:
(a) NO SALES, LIENS, ETC. Except as otherwise provided
herein, Tech Data will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon (or
the filing of any financing statement) or with respect to (x) any of the
Affected Assets, (y) any inventory or goods, the sale of which may give rise to
a Receivable or any Receivable or related Contract, or (z) any account which
concentrates in a Lock-Box Bank to which any Collections of any Receivable are
sent, or assign any right to receive income in respect thereof. Notwithstanding
the foregoing, Tech Data may sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist an Adverse Claim on any goods
or inventory held on consignment solely with respect to the consignor's
interest.
(b) NO EXTENSION OR AMENDMENT OF RECEIVABLES. Except as
otherwise permitted in Section 6.2 hereof, Tech Data will not extend, amend or
otherwise modify the terms of any Receivable, or amend, modify or waive any term
or condition of any Contract related thereto.
(c) NO CHANGE IN BUSINESS OR CREDIT AND COLLECTION
POLICY. Tech Data will not make any change in the character of its business or
in the Credit and Collection Policy, which change would, in either case, impair
the collectibility of the Receivables in a material respect.
(d) NO MERGERS, ETC. Tech Data will not (i) consolidate
or merge with or into any other Person if such action shall result in a
Potential Termination Event or a Termination Event for any Class or Tech Data
shall not be the surviving entity or (ii) sell, lease or transfer all or
substantially all of its assets to any other person.
(e) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. Tech
Data will not add or terminate any bank as a Lock-Box Bank or any account as a
Lock-Box Account to or from those listed in Exhibit C hereto or make any change
in its instructions to Obligors regarding payments to be made to any Lock-Box
Account, unless (i) such instructions are to deposit such payments to another
existing Lock-Box Account or (ii) the Administrative Agent shall have received
written notice of such addition, termination or change at least 30 days prior
thereto and the Administrative
53
Agent shall have received a Lock-Box Agreement executed by each new Lock-Box
Bank or an existing Lock-Box Bank with respect to each new Lock-Box Account, as
applicable.
(f) DEPOSITS TO LOCK-BOX ACCOUNTS. Tech Data will not
deposit or otherwise credit, or cause or permit to be so deposited or credited,
to any Lock-Box Account cash or cash proceeds other than Collections of
Receivables or cash proceeds or other receivables that were originally
Receivables but were not Eligible Receivables on the date of the initial
Transfer hereunder and so were subsequently repurchased by the Transferor
pursuant to Section 2.9 and, upon any deposit of any proceeds of such other
receivables to any Lock-Box Account, remove such proceeds within two Business
Days following such deposit.
(g) CHANGE OF NAME, ETC. Tech Data will not change its
name, identity or structure or location of its chief executive office, unless at
least 10 days prior to the effective date of any such change Tech Data delivers
to the Transferor and the Administrative Agent (i) such documents, instruments
or agreements, executed by the Transferor, as are necessary to reflect such
change and to continue the perfection of the Transferor's ownership interest in
the Receivables and (ii) new or revised Lock-Box Agreements executed by the
Lock-Box Banks which reflect such change and enable the Administrative Agent on
behalf of the Class Investors to continue to exercise its rights contained in
Section 2.8 hereof.
SECTION 5.5. FINANCIAL COVENANTS OF THE COLLECTION AGENT.
(a) CONSOLIDATED SENIOR LEVERAGE RATIO. The
Collection Agent shall not permit the Consolidated Senior Leverage
Ratio at any time during the respective periods set forth below to be
greater than the ratio set forth below opposite each such period:
PERIODS MAXIMUM CONSOLIDATED SENIOR
LEVERAGE RATIO
---------------------------------- ----------------------------
Closing Date through 3.75 to 1.00
January 31, 2001
---------------------------------- ----------------------------
February 1, 2001 through January 3.50 to 1.00
31, 2002
----------------------------------- ---------------------------
Thereafter 3.25 to 1.00
----------------------------------- ---------------------------
(b) CONSOLIDATED RENTAL EXPENSE RATIO. The Collection
Agent shall not permit the Consolidated Rental Expense Ratio as of the
end of any fiscal quarter of the Collection Agent to be less than 2.50
to 1.00.
Capitalized terms used in this Section 5.5 and not defined
herein shall have those meanings assigned in Exhibit N.
54
ARTICLE VI
ADMINISTRATION AND COLLECTIONS
SECTION 6.1. APPOINTMENT OF COLLECTION AGENT. The servicing,
administering and collection of the Receivables shall be conducted by such
Person (the "COLLECTION AGENT") so designated from time to time in accordance
with this Section 6.1. Until the Administrative Agent gives notice to Tech Data
of the designation of a new Collection Agent, Tech Data is hereby designated as,
and hereby agrees to perform the duties and obligations of, the Collection Agent
pursuant to the terms hereof. The Collection Agent may not delegate any of its
rights, duties or obligations hereunder, or designate a substitute Collection
Agent, without the prior written consent of the Administrative Agent, and
provided that the Collection Agent shall continue to remain solely liable for
the performance of the duties as Collection Agent hereunder. The Administrative
Agent may, with the consent of and upon the direction of the Majority Investors,
shall, after the occurrence of a Collection Agent Default or any other
Termination Event for any Class designate as Collection Agent any Person
(including itself) to succeed Tech Data or any successor Collection Agent, on
the condition in each case that any such Person so designated shall agree to
perform the duties and obligations of the Collection Agent pursuant to the terms
hereof. The Administrative Agent, at any time following the occurrence of a
Termination Event for any Class, may notify any Obligor of the Transferred
Interest.
SECTION 6.2. DUTIES OF COLLECTION AGENT.
(a) Subject to the limitations contained herein, the
Collection Agent shall take or cause to be taken all such action as may be
necessary or advisable to collect each Receivable from time to time, all in
accordance with applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy. Each of the
Transferor, the Administrative Agent and the Class Investors hereby appoints as
its agent the Collection Agent, from time to time designated pursuant to Section
6.1 hereof, to enforce its respective rights and interests in and under the
Affected Assets. To the extent permitted by applicable law, each of the
Transferor and the Seller (to the extent not then acting as Collection Agent
hereunder) hereby grants to any Collection Agent appointed hereunder an
irrevocable power of attorney to take any and all steps in the Transferor's
and/or the Seller's name and on behalf of the Transferor or the Seller necessary
or desirable, in the reasonable determination of the Collection Agent, to
collect all amounts due under any and all Receivables, including, without
limitation, endorsing the Transferor's and/or the Seller's name on checks and
other instruments representing Collections and enforcing such Receivables and
the related Contracts. The Collection Agent shall set aside for the account of
the Transferor and the Class Investors, as applicable, their respective
allocable shares of the Collections of Receivables in accordance with Sections
2.5 and 2.6 hereof. The Collection Agent shall segregate and deposit to the
Administrative Agent's account each Class Investor's allocable share of
Collections of Receivables when required pursuant to Article II hereof. So long
as no Termination Event shall have occurred and be continuing for any Class, the
Collection Agent may, in accordance with the Credit and Collection Policy,
extend the maturity of Receivables, but not beyond 60 days, and extend the
maturity or adjust the Outstanding Balance as the Collection Agent may determine
to be appropriate to maximize Collections thereof; PROVIDED, HOWEVER, that such
extension or adjustment shall not alter the status of such Receivable as a
Delinquent Receivable or a Defaulted Receivable. The Transferor shall deliver to
the Administrative Agent all Records which evidence or relate to Receivables or
Related Security. The Administrative Agent shall forward all such Records to the
Collection Agent and the Collection Agent shall hold in trust for the Transferor
and the Class Investors, in accordance with their respective interests, such
Records. Notwithstanding anything to the contrary contained herein, the
Administrative Agent shall have the absolute and unlimited right to direct the
Transferor, if Tech Data is the Collection Agent, or if Tech Data is not the
Collection Agent, the Collection Agent to commence or settle any legal action to
enforce collection of any Receivable or to foreclose
55
upon or repossess any Related Security. The Collection Agent shall not make the
Administrative Agent or any of the Class Investors a party to any litigation
without the prior written consent of such Person.
(b) Subject to the terms and conditions set forth in
this Agreement (including Article II) Collection Agent shall, as soon as
practicable following receipt of any Collections, turn over to the Transferor an
amount equal to such Collections MINUS the Aggregate Percentage Factor of such
Collections. In addition, the Collection Agent shall, as soon as practicable
following receipt thereof, turn over to the Transferor any collections of any
indebtedness of any Obligor which is not a Receivable. If the Collection Agent
is not Tech Data or the Transferor or any Affiliate of the Transferor or Tech
Data, the Collection Agent, by giving three Business Days' prior written notice
to the Administrative Agent, may revise the percentage used to calculate the
Servicing Fee so long as the revised percentage will not result in a Servicing
Fee that exceeds 110% of the reasonable and appropriate out-of-pocket costs and
expenses of such Collection Agent incurred in connection with the performance of
its obligations hereunder as documented to the reasonable satisfaction of the
Administrative Agent. The Collection Agent, if other than Tech Data, shall as
soon as practicable upon demand, deliver to the Transferor all Records in its
possession which evidence or relate to indebtedness of an Obligor which is not a
Receivable, and copies of Records in its possession which evidence or relate to
Receivables.
(c) On or before 120 days after the end of each fiscal
year of the Collection Agent, beginning with the fiscal year ending January 31,
2001, the Collection Agent shall cause a firm of independent public accountants
(who may also render other services to the Collection Agent or the Transferor)
to furnish a report to the Administrative Agent to the effect that they have (i)
confirmed the Net Receivables Balance as of the end of each Tranche Period
during such fiscal year, and (ii) confirmed that the Receivables treated by the
Collection Agent as Eligible Receivables in fact satisfied the requirements of
the definition thereof contained herein, except, in each case for (a) such
exceptions as such firm shall believe to be immaterial (which exceptions need
not be enumerated) and (b) such other exceptions as shall be set forth in such
statement.
(d) Notwithstanding anything to the contrary contained
in this Article VI, the Collection Agent, if not Tech Data, the Transferor, or
any Affiliate of the Transferor or Tech Data, shall have no obligation to
collect, enforce or take any other action described in this Article VI with
respect to any indebtedness that is not included in the Transferred Interest
other than to deliver to the Transferor the collections and documents with
respect to any such Receivable as described in Section 6.2(b) hereof.
SECTION 6.3. RIGHTS AFTER DESIGNATION OF NEW COLLECTION AGENT.
At any time following the designation of a Collection Agent (other than Tech
Data, the Transferor, or any Affiliate of Tech Data or the Transferor) pursuant
to Section 6.1 hereof:
(i) The Administrative Agent may direct that
payment of all amounts payable under any Receivable be made directly to
the Administrative Agent or its designee for the benefit of the Class
Investors.
(ii) Tech Data shall, at the Administrative
Agent's request and at Tech Data's expense, give notice of the
Administrative Agent's, the Transferor's, or each Class Investor's
ownership of Receivables to each Obligor and direct
56
that payments be made directly to the Administrative Agent or its
designee for the benefit of the Class Investors.
(iii) Tech Data shall, at the Administrative
Agent's request, (A) assemble all of the Records, and shall make the
same available to the Administrative Agent at a place selected by the
Administrative Agent or its designee, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections of Receivables in a manner acceptable to the
Administrative Agent and shall, promptly upon receipt, remit all such
cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Administrative Agent or its designee
for the benefit of the Class Investors.
(iv) The Transferor and Tech Data hereby authorize
the Administrative Agent to take any and all steps in the Transferor's
or Tech Data's name and on behalf of the Transferor or Tech Data
necessary or desirable, in the determination of the Administrative
Agent, to collect all amounts due under any and all Receivables,
including, without limitation, endorsing the Transferor's or Tech
Data's name on checks and other instruments representing Collections
and enforcing such Receivables and the related Contracts.
SECTION 6.4. RESPONSIBILITIES OF THE TRANSFEROR AND TECH DATA.
Anything herein to the contrary notwithstanding, the Transferor and Tech Data,
as seller under the Purchase Agreement, shall (i) perform all of their
respective obligations under the Contracts related to the Receivables to the
same extent as if interests in such Receivables had not been sold hereunder and
the exercise by the Administrative Agent of its rights hereunder shall not
relieve the Transferor or Tech Data, as seller under the Purchase Agreement,
from such obligations and (ii) pay when due any taxes, including without
limitation, any sales taxes payable in connection with the Receivables and their
creation and satisfaction. Neither the Administrative Agent, any Class Agent,
any Class Conduit nor any of the Bank Investors shall have any obligation or
liability with respect to any Receivable or related Contracts, nor shall any of
them be obligated to perform any of the obligations of the Transferor or Tech
Data thereunder.
&&&
ARTICLE VII
TERMINATION EVENTS
SECTION 7.1. TERMINATION EVENTS. The occurrence of any one or
more of the following events shall constitute a Termination Event for any Class:
(a) (i) the Collection Agent shall fail to perform or
observe any term, covenant or agreement hereunder (other than as referred to in
clause (ii) of this Section 7.1(a)) and such failure shall remain unremedied for
15 days, or (ii) either the Collection Agent or the Transferor shall fail to
make any payment or deposit to be made by it hereunder when due or the
Collection Agent shall fail to observe or perform any term, covenant or
agreement on the Collection Agent's part to be performed under Section 2.8(b)
hereof; or
(b) any representation, warranty, certification or
statement made by Tech Data or the Transferor in this Agreement or in any other
document delivered pursuant hereto shall prove to have been incorrect in any
material respect when made or deemed made; or
57
(c) (i) the Transferor shall default in the observance
or performance of the terms, covenants, conditions or agreements on the
Transferor's part to be performed or observed under Section 5.1(a)(iv), 5.1(h),
Section 5.1(i), Section 5.1(j), Section 5.1(k), Section 5.1(l), Section 5.1(m),
Section 5.1(n), Section 5.2(a), Section 5.2(c), Section 5.2(d), Section 5.2(e),
Section 5.2(f), Section 5.2(g) Section 5.2(h) Section 5.2(i), Section 5.2(j) or
Section 5.2(k) hereof or (ii) the Transferor shall default in the observance or
performance of the terms, covenants, conditions or agreements on the
Transferor's part to be performed or observed under Section 5.1(a)(i), Section
5.1(a)(ii), Section 5.1(a)(iii), Section 5.1(a)(v), Section 5.1(b), Section
5.1(c), Section 5.1(d), Section 5.1(e), Section 5.1(f), Section 5.1(g) or
Section 5.2(b) hereof and such failure shall remain unremedied for 15 days; or
(d) (i) Tech Data shall default in the observance or
performance of the terms, covenants, conditions or agreements on Tech Data's
part to be performed or observed under Section 5.3(h), Section 5.3(i), Section
5.3(j), Section 5.3(k), Section 5.4(a), Section 5.4(c), Section 5.4(d), Section
5.4(e), Section 5.4(f), Section 5.4(g) or Section 5.5 or (ii) Tech Data shall
default in the observance or performance of the terms, covenants, conditions or
agreements on Tech Data's part to be performed under Section 5.3(a), Section
5.3(b), Section 5.3(c), Section 5.3(d), Section 5.3(e), Section 5.3(f), Section
5.3(g) or Section 5.4(b) hereof and such failure shall remain unremedied for 15
days; or
(e) the Transferor or Tech Data shall default in the
observance or performance of any other term, covenant, condition or agreement on
the Transferor's or Tech Data's part to be performed or observed under this
Agreement and such default shall continue for 30 days after the earlier of (i)
the date that such written notice thereof is given to the Transferor or Tech
Data, as applicable, by the Administrative Agent or (ii) the date the Transferor
or Tech Data, as applicable, becomes aware of such default; or
(f) failure of Tech Data or any Subsidiary of Tech Data
to pay any Indebtedness greater than $10,000,000 when due; or the default by
Tech Data or any Subsidiary of Tech Data in the performance of any term,
provision or condition contained in any agreement under which any Indebtedness
greater than $10,000,000 was created or is governed, the effect of which is to
cause, or to permit the holder or holders of such Indebtedness greater than
$10,000,000 to cause, such Indebtedness to become due prior to its stated
maturity; or any Indebtedness greater than $5,000,000 shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the date of maturity thereof; or
(g) any Event of Bankruptcy shall occur with respect to
the Transferor, the Collection Agent, Tech Data or any Subsidiary of either the
Transferor or Tech Data; or
(h) the Administrative Agent, on behalf of the Class
Investors shall, for any reason, fail or cease to have a valid and perfected
first priority ownership or security interest in the Affected Assets free and
clear of any Adverse Claims; or
(i) Tech Data shall enter into any transaction or
merger whereby it is not the surviving entity; or the Transferor shall no longer
be wholly owned by Tech Data; or
(j) there shall have occurred any material adverse
change in the operations of Tech Data since March 20, 2000, or any other event
shall have occurred which materially affects
58
Tech Data's ability to either collect the Receivables or to perform under this
Agreement or under the Purchase Agreement; or
(k) any Liquidity Provider or any Credit Support
Provider shall have given notice that an event of default has occurred and is
continuing under any of its respective agreements with the applicable Class
Conduit(s); or
(l) the Commercial Paper issued by any of the Class
Conduits shall not be rated at least "A-2" by Standard & Poor's, at least "P-2"
by Moody's and at least "D-1" by DCR, unless such downgrading is the result of
the Credit Support Provider being downgraded; or
(m) the Aggregate Percentage Factor exceeds the Maximum
Percentage Factor unless the Transferor reduces, on a PRO RATA basis, the Net
Investment of each Class on the next day or increases the balance of the
Affected Assets on the next Business Day so as to reduce the Aggregate
Percentage Factor to less than or equal to 98%; or
(n) the Aggregate Percentage Factor equals or exceeds
100% for a period of one full Business Day (provided that in such case the
Termination Event caused thereby shall be deemed to have occurred at the start
of such one full Business Day period) or the Aggregate Percentage Factor as
reported on any Investor Report shall equal or exceed 100% or for any Class, the
sum of the Net Investment for such Class PLUS, in the case where the related
Class Conduit holds a portion of the Transferred Interest, the Interest
Component of all outstanding Related Commercial Paper issued by such Class
Conduit exceeds the Facility Limit for such Class; or
(o) the Dilution Ratio equals or exceeds 15%; or
(p) the average of the Loss to Liquidation Ratios for
any three consecutive months exceeds 2.25%; or
(q) the average Delinquency Ratio for any three
consecutive months exceeds 11%; or
(r) a Collection Agent Default shall have occurred and
be continuing.
SECTION 7.2. TERMINATION. (a) Upon the occurrence of any
Termination Event (i) the Administrative Agent may by notice to the Transferor
and the Collection Agent declare the Termination Date for all Classes to have
occurred or (ii) any Class Agent may by notice to the Transferor and the
Collection Agent declare the Termination Date for its respective Class to have
occurred; PROVIDED, HOWEVER, that in the case of any event described in Section
7.1(g), 7.1(h), 7.1(i) or 7.1(n) above, the Termination Date shall be deemed to
have occurred automatically upon the occurrence of such event. Upon any such
declaration or automatic occurrence, the Administrative Agent shall have, in
addition to all other rights and remedies under this Agreement or otherwise, all
other rights and remedies provided under the UCC of the applicable jurisdiction
and other applicable laws, all of which rights shall be cumulative.
(b) At all times after the declaration or automatic occurrence
of the Termination Date pursuant to Section 7.2(a) (other than a declaration
following the occurrence of a Termination Event set forth in Section 7.1(k) or
Section 7.1(l)), the Base Rate plus 2.00% shall be the Tranche Rate applicable
to the Aggregate Net Investment for all existing and future Tranches.
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ARTICLE VIII
INDEMNIFICATION; EXPENSES; RELATED MATTERS
SECTION 8.1. INDEMNITIES BY THE TRANSFEROR. Without limiting
any other rights which the Administrative Agent or any of the Class Investors
may have hereunder or under applicable law, the Transferor hereby agrees to
indemnify each Class Agent, each Class Investor, the Administrative Agent, the
Collateral Agent, any Liquidity Provider and any Credit Support Provider and any
successors and any permitted assigns and their respective officers, directors
and employees (collectively, "INDEMNIFIED PARTIES") from and against any and all
damages, losses, claims, liabilities, costs and expenses, including, without
limitation, reasonable attorneys' fees (which such attorneys may be employees of
any Liquidity Provider, any Credit Support Provider, any Class Agent, the
Administrative Agent or the Collateral Agent, as applicable) and disbursements
(all of the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS")
awarded against or incurred by any of them arising out of or as a result of this
Agreement or the ownership, either directly or indirectly, by the Administrative
Agent or any Class Investor of the Transferred Interest excluding, however, (i)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party or (ii) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Receivables
or (iii) claims arising from credit losses. Without limiting the generality of
the foregoing, the Transferor shall indemnify each Indemnified Party for
Indemnified Amounts relating to or resulting from:
(i) reliance on any representation or warranty
made by the Transferor (or any officers of the Transferor) under or in
connection with this Agreement, any Investor Report or any other
information or report delivered by the Transferor pursuant hereto,
which shall have been false or incorrect in any material respect when
made or deemed made;
(ii) the failure by the Transferor to comply with
any applicable law, rule or regulation with respect to any Receivable
or the related Contract, or the nonconformity of any Receivable or the
related Contract with any such applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in
the Administrative Agent on behalf of the Class Investors an undivided
percentage ownership or security interest, to the extent of the
Transferred Interest, in the Receivables included in the Transferred
Interest, free and clear of any Adverse Claim;
(iv) the failure to file, or any delay in filing,
financing statements, continuation statements, or other similar
instruments or documents under the UCC of any applicable jurisdiction
or other applicable laws with respect to any of the Affected Assets;
(v) any dispute, claim, offset or defense (other
than discharge in bankruptcy) of the Obligor to the payment of any
Receivable included in the Transferred Interest (including, without
limitation, a defense based on such
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Receivable or the related Contractnot being legal, valid and binding
obligation of such Obligor enforceable against it in accordance with
its terms), or any other claim resulting from the sale of merchandise
or services related to such Receivable or the furnishing or failure to
furnish such merchandise or services;
(vi) any failure of Tech Data, as Collection Agent
or otherwise, to perform its duties or obligations in accordance with
the provisions of Article VI; or
(vii) any products liability claim or personal
injury or property damage suit or other similar or related claim or
action of whatever sort arising out of or in connection with
merchandise or services which are the subject of any Receivable;
PROVIDED, HOWEVER, that if any Class Conduit enters into agreements for the
purchase of interests in receivables from one or more Other Transferors, such
Class Conduit shall allocate such Indemnified Amounts which are in connection
with a Liquidity Provider Agreement, a Credit Support Agreement or the credit
support furnished by a Credit Support Provider to the Transferor and each Other
Transferor.
SECTION 8.2. INDEMNITY FOR TAXES, RESERVES AND EXPENSES. (a)
If after the date hereof, the adoption of any Law or bank regulatory guideline
or any amendment or change in the interpretation of any existing or future Law
or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law):
(i) shall subject any Indemnified Party to any
tax, duty or other charge with respect to this Agreement, the
Transferred Interest, the Receivables or payments of amounts due
hereunder, or shall change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect of this Agreement, the
Transferred Interest, the Receivables or payments of amounts due
hereunder or its obligation to advance funds under a Liquidity Provider
Agreement or the credit support furnished by a Credit Support Provider
or otherwise in respect of this Agreement, the Transferred Interest or
the Receivables (except for changes in the rate of general corporate,
franchise, net income or other income tax imposed on such Indemnified
Party by the jurisdiction in which such Indemnified Party's principal
executive office is located);
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System) against assets of, deposits with or for the
account of, or credit extended by, any Indemnified Party or shall
impose on any Indemnified Party or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting this Agreement, the Transferred Interest, the
Receivables or payments of amounts due hereunder or its obligation to
advance funds under a Liquidity Provider Agreement or the credit
support provided by a Credit Support Provider or otherwise in respect
of this Agreement, the Transferred Interest or the Receivables; or
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(iii) imposes upon any Indemnified Party any other
expense (including, without limitation, reasonable attorneys' fees and
expenses, and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Agreement, the
Transferred Interest, the Receivables or payments of amounts due
hereunder or its obligation to advance funds under a Liquidity Provider
Agreement or the credit support furnished by a Credit Support Provider
or otherwise in respect of this Agreement, the Transferred Interest or
the Receivables,
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, any portion of the Transferred
Interest, the Receivables, the obligations hereunder, the funding of any
purchases hereunder, a Liquidity Provider Agreement or a Credit Support
Agreement, by an amount deemed by such Indemnified Party to be material, then,
within ten (10) days after demand by such Indemnified Party through the
Administrative Agent, the Transferor shall pay to the Administrative Agent, for
the benefit of such Indemnified Party such additional amount or amounts as will
compensate such Indemnified Party for such increased cost.
(b) If any Indemnified Party shall have determined that
after the date hereof, the adoption of any applicable Law or bank regulatory
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation thereof by any Official Body, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Official Body, has or would have the effect
of reducing the rate of return on capital of such Indemnified Party (or its
parent) as a consequence of such Indemnified Party's obligations hereunder or
with respect hereto to a level below that which such Indemnified Party (or its
parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Indemnified Party to be material, then from time to time,
within ten (10) days after demand by such Indemnified Party through the
Administrative Agent, the Transferor shall pay to the Administrative Agent, for
the benefit of such Indemnified Party such additional amount or amounts as will
compensate such Indemnified Party (or its parent) for such reduction.
(c) The Administrative Agent will promptly notify the
Transferor of any event of which it has knowledge, occurring after the date
hereof, which will entitle an Indemnified Party to compensation pursuant to this
Section. A notice by the Administrative Agent or the applicable Indemnified
Party claiming compensation under this Section and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of manifest error. In determining such amount, the Administrative Agent or any
applicable Indemnified Party may use any reasonable averaging and attributing
methods.
(d) Anything in this Section 8.2 to the contrary
notwithstanding, if any Class Conduit enters into agreements for the acquisition
of interests in receivables from one or more Other Transferors, such Class
Conduit shall allocate the liability for any amounts under this Section 8.2
("SECTION 8.2 COSTS") to the Transferor and each Other Transferor; and PROVIDED,
FURTHER, that if such Section 8.2 Costs are attributable to the Transferor and
not attributable to any Other Transferor, the Transferor shall be solely liable
for such Section 8.2 Costs or if such Section 8.2 Costs are attributable to
Other Transferors and not attributable to the Transferor, such Other Transferors
shall be solely liable for such Section 8.2 Costs.
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SECTION 8.3. OTHER COSTS, EXPENSES AND RELATED MATTERS. (a)
The Transferor agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Administrative Agent harmless against liability for the
payment of, all reasonable out-of-pocket expenses (including, without
limitation, attorneys', accountants' and other third parties' fees and expenses,
any filing fees and expenses incurred by officers or employees of the Class
Investors, the Class Agents and the Administrative Agent) incurred by or on
behalf of any Class Investor, any Class Agent or the Administrative Agent (i) in
connection with the negotiation, execution, delivery and preparation of this
Agreement and any documents or instruments delivered pursuant hereto and thereto
and the transactions contemplated hereby or thereby (including, without
limitation, the perfection or protection of the Transferred Interest) and (ii)
from time to time relating to any amendments, waivers or consents under this
Agreement.
(b) The Transferor agrees, upon receipt of a written invoice,
to pay or cause to be paid, and to save each Class Agent, each Class Investor
and the Administrative Agent harmless against liability for the payment of, all
reasonable out-of-pocket expenses (including, without limitation, attorneys',
accountants' and other third parties' fees and expenses, any filing fees and
expenses incurred by officers or employees of any Class Investor, as applicable,
and/or the Administrative Agent or any Class Agent) incurred by or on behalf of
any of the Class Investors, Class Agents or the Administrative Agent from time
to time (i) arising in connection with any Class Investor's, any Class Agent's,
the Administrative Agent's or the Collateral Agent's enforcement or preservation
of rights (including, without limitation, the perfection and protection of the
Transferred Interest under this Agreement), or (ii) arising in connection with
any audit, dispute, disagreement, litigation or preparation for litigation
involving this Agreement.
(c) The Transferor shall pay the Administrative Agent,
for the account of the Class Investors, as applicable, on demand any Early
Collection Fee due on account of the reduction of a Tranche on a day prior to
the last day of its Tranche Period.
SECTION 8.4. RECONVEYANCE UNDER CERTAIN CIRCUMSTANCES. The
Transferor agrees to accept the reconveyance from the Administrative Agent, on
behalf of the Class Investors of the Transferred Interest if the Administrative
Agent notifies Transferor of a material breach of any representation or warranty
made or deemed made pursuant to Article III of this Agreement and Transferor
shall fail to cure such breach within 15 days (or, in the case of the
representations and warranties in Sections 3.1(d) and 3.1(j), 3 days) of such
notice. The reconveyance price shall be paid by the Transferor to the
Administrative Agent, for the account of the Class Investors, as applicable, in
immediately available funds on such 15th day (or 3rd day, if applicable) in an
amount equal to the Outstanding Balance of such Receivable and all other amounts
outstanding with respect to such Receivable, including Discount accrued and
unpaid with respect to such Receivable.
SECTION 8.5. INDEMNITIES BY TECH DATA. Without limiting any
other rights which the Administrative Agent or any of the Class Agents or Class
Investors or the other Indemnified Parties may have hereunder or under
applicable law, Tech Data hereby agrees to indemnify the Indemnified Parties
from and against any and all Indemnified Amounts arising out of or resulting
from (whether directly or indirectly) (a) the failure of any information
contained in any Investor Report (to the extent provided by Tech Data) to be
true and correct, or the failure of any other information provided to any
Indemnified Party by, or on behalf of, the Collection Agent to be true and
correct, (b) the failure of any representation, warranty or statement made or
deemed made by Tech Data (or any of its officers) under or in connection with
this Agreement or any other Transaction Document to have been true and correct
as of the date made or deemed made, (c) the
63
failure by Tech Data to comply with any applicable Law with respect to any
Receivable or the related Contract, (d) any dispute, claim, offset or defense of
the applicable Obligor to the payment of any Receivable resulting from or
related to the collection activities in respect of such Receivable, or (e) any
failure of Tech Data to perform its duties or obligations in accordance with the
provisions of this Agreement or any other Transaction Document.
ARTICLE IX
THE CLASS AGENTS
SECTION 9.1. AUTHORIZATION AND ACTION.
(a) Each Class Investor hereby appoints and authorizes
the related Class 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 such Class Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto. The Class Conduits and/or the
Bank Investors of any Class holding Commitments aggregating in excess of 66 and
2/3% of the Facility Limit of the related Class (the "MAJORITY CLASS INVESTORS")
may direct their respective Class Agent to take any such incidental action
hereunder, however, with respect to such actions which are incidental to the
actions specifically delegated to such Class Agent hereunder, such Class 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 Class
Investors; PROVIDED, HOWEVER, that such Class Agent shall not be required to
take any action hereunder if the taking of such action, in the reasonable
determination of such Class Agent, shall be in violation of any applicable law,
rule or regulation or contrary to any provision of this Agreement or shall
expose such Class Agent to liability hereunder or otherwise. In furtherance, and
without limiting the generality, of the foregoing, each Class Investor hereby
appoints its related Class Agent as its agent to execute and deliver all further
instruments and documents, and take all further action that such Class Agent may
deem necessary or appropriate or that a Class 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 such Class 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 herein above. Upon the
occurrence and during the continuance of any Termination Event or Potential
Termination Event, no Class Agent shall take any action hereunder (other than
ministerial actions or such actions as are specifically provided for herein)
without the prior consent of the related Majority Class Investors (which consent
shall not be unreasonably withheld or delayed). In the event a Class Agent
requests a Class Investor's consent pursuant to the foregoing provisions and
such Class Agent does not receive a consent (either positive or negative) from
such Class Investor within 10 Business Days of such Class Investor's receipt of
such request, then such Class Investor (and its percentage interest hereunder)
shall be disregarded in determining whether such Class Agent shall have obtained
sufficient consent hereunder.
(b) The Class Agents shall exercise such rights and
powers vested in it by this Agreement and the other Transaction Documents, and
use the same degree of care and skill in
64
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
SECTION 9.2. CLASS AGENT'S RELIANCE, ETC. Neither the Class
Agents nor any of their directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by them as Class Agents under or in
connection with this Agreement or any of the other Transaction Documents, except
for its or their own gross negligence or willful misconduct. Without limiting
the foregoing, each Class Agent: (i) may consult with legal counsel (including
counsel for the Transferor or the Seller), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or representation to any
Class Investor and shall not be responsible to any Class Investor for any
statements, warranties or representations made in or in connection with this
Agreement; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any of the other Transaction Documents on the part of the
Transferor, the Collection Agent or Tech Data or to inspect the property
(including the books and records) of the Transferor, the Collection Agent or
Tech Data (iv) shall not be responsible to any Class Investor for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, any of the other Transaction Documents or any other
instrument or document furnished pursuant hereto or thereto; and (v) shall incur
no liability under or in respect of this Agreement or any of the other
Transaction Documents by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 9.3. CREDIT DECISION. Each Class Investor acknowledges
that it has, independently and without reliance upon its related Class Agent,
any of such Class Agent's Affiliates, any other Bank Investor or Class Conduit
(in the case of any of their related Bank Investors) and based upon such
documents and information as it has deemed appropriate, made its own evaluation
and decision to enter into this Agreement and the other Transaction Documents to
which it is a party and, if it so determines, to accept the transfer of any
undivided ownership interest in the Affected Assets hereunder. Each Class
Investor also acknowledges that it will, independently and without reliance upon
their respective Class Agent, any of such Class Agent's Affiliates, any other
Bank Investor or Class Conduit (in the case of their related Bank Investors) and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own decisions in taking or not taking action under
this Agreement and the other Transaction Documents to which it is a party.
SECTION 9.4. INDEMNIFICATION OF THE CLASS AGENTS. The Bank
Investors each agree to indemnify their related Class Agent (to the extent not
reimbursed by the Transferor), ratably in accordance with their Pro Rata Shares,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against each Class Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by each Class Agent, any of the other Transaction
Documents hereunder or thereunder, PROVIDED that the Bank Investors shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from such Class Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, the Bank Investors each agree to reimburse their
related Class Agent, ratably in accordance with their Pro Rata Shares, promptly
upon demand for any out-of-pocket expenses (including counsel fees) incurred by
each Class Agent
65
in connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement and the
other Transaction Documents, to the extent that such expenses are incurred in
the interests of or otherwise in respect of any of the Bank Investors hereunder
and/or thereunder and to the extent that each Class Agent is not reimbursed for
such expenses by the Transferor.
SECTION 9.5. SUCCESSOR CLASS AGENT. Each Class Agent may
resign at any time by giving written notice thereof to each related Class
Investor and the Transferor and may be removed at any time for cause by
agreement of the related Majority Class Investors. Upon any such resignation or
removal, the Class Investor with the consent of the related Majority Class
Investors shall appoint a successor Class Agent. Each of the applicable Class
Investors, as applicable, each agrees that it shall not unreasonably withhold or
delay its approval of the appointment of a successor Class Agent for such Class.
If no such successor Class Agent shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring Class Agent's
giving of notice of resignation or the related Majority Class Investors' removal
of the retiring Class Agent, then the retiring Class Agent may, on behalf of the
related Class Investors, appoint a successor Class Agent which successor Class
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 Class Agent hereunder by a successor Class Agent, such
successor Class Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Class Agent, and the
retiring Class Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Class Agent's resignation or removal
hereunder as Class Agent, the provisions of this Article IX shall continue to
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Class Agent under this Agreement.
SECTION 9.6. PAYMENTS BY THE CLASS AGENTS. Unless specifically
allocated to a Class Investor pursuant to the terms of this Agreement, all
amounts received by each Class Agent on behalf of any of the related Class
Investors shall be paid by such Class Agent to such Class Investors (at their
respective accounts specified to such Class Agent) in accordance with their
respective related pro rata interests in the applicable Net Investment on the
Business Day received by each Class Agent, unless such amounts are received
after 12:00 noon on such Business Day, in which case each Class Agent shall use
its reasonable efforts to pay such amounts to any of the Bank Investors, as
applicable, on such Business Day, but, in any event, shall pay such amounts to
such Bank Investors in accordance with their respective related pro rata
interests in the applicable Net Investment not later than the following Business
Day.
ARTICLE X
THE ADMINISTRATIVE AGENT; BANK COMMITMENT
SECTION 10.1. AUTHORIZATION AND ACTION.
(a) Each Class Investor hereby appoints and authorizes
the Administrative 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 Administrative Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. The Class
Conduits and/or the Majority Investors may direct the Administrative Agent to
take any such
66
incidental action hereunder, however, with respect to such actions which are
incidental to the actions specifically delegated to the Administrative Agent
hereunder, the Administrative 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 Administrative
Agent shall not be required to take any action hereunder if the taking of such
action, in the reasonable determination of the Administrative Agent, shall be in
violation of any applicable law, rule or regulation or contrary to any provision
of this Agreement or shall expose the Administrative Agent to liability
hereunder or otherwise. In furtherance, and without limiting the generality, of
the foregoing, each Class Investor hereby appoints the Administrative Agent as
its agent to execute and deliver all further instruments and documents, and take
all further action that the Administrative Agent may deem necessary or
appropriate or that a Class 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 Administrative 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 herein above. Upon the occurrence and during
the continuance of any Termination Event or Potential Termination Event, the
Administrative 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). "Majority Investors" shall mean, at any time, the
Administrative Agent and the Class Agents whose related Classes hold Commitments
aggregating in excess of 66 and 2/3% of the Aggregate Facility Limit as of such
date. In the event the Administrative Agent requests a Class Investor's consent
pursuant to the foregoing provisions and the Administrative Agent does not
receive a consent (either positive or negative) from such Class Investor within
10 Business Days of such Class Investor's receipt of such request, then such
Class Investor (and its percentage interest hereunder) shall be disregarded in
determining whether the Administrative Agent shall have obtained sufficient
consent hereunder.
(b) The Administrative Agent shall exercise such rights
and powers vested in it by this Agreement and the other Transaction Documents,
and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(c) The Administrative Agent hereby agrees to provide to
each Class Agent (promptly following receipt thereof), copies of all material
correspondence, notices, reports or other similar information provided by or to
the Administrative Agent in connection with this Agreement or any other
Transaction Document, or any other correspondence, notices, reports or similar
information provided by or to the Administrative Agent under such documents that
any Class Agent reasonably requests.
SECTION 10.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them as
Administrative Agent under or in connection with this Agreement or any of the
other Transaction Documents, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the Administrative Agent:
(i) may consult with legal counsel (including counsel for the Transferor or the
Seller), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted
67
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Class
Investor and shall not be responsible to any Class Investor for any statements,
warranties or representations made in or in connection with this Agreement;
(iii) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement or
any of the other Transaction Documents on the part of the Transferor, the
Collection Agent or Tech Data or to inspect the property (including the books
and records) of the Transferor, the Collection Agent or Tech Data (iv) shall not
be responsible to any Class Investor for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Transaction Documents or any other instrument or document furnished
pursuant hereto or thereto; and (v) shall incur no liability under or in respect
of this Agreement or any of the other Transaction Documents by acting upon any
notice (including notice by telephone), consent, certificate or other instrument
or writing (which may be by telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 10.3. CREDIT DECISION. Each Class Investor
acknowledges that it has, independently and without reliance upon the
Administrative Agent, any of the Administrative Agent's Affiliates, any other
Bank Investor or Class Conduit (in the case of any of their related Bank
Investors) and based upon such documents and information as it has deemed
appropriate, made its own evaluation and decision to enter into this Agreement
and the other Transaction Documents to which it is a party and, if it so
determines, to accept the transfer of any undivided ownership interest in the
Affected Assets hereunder. Each Class Investor also acknowledges that it will,
independently and without reliance upon the Administrative Agent, any of the
Administrative Agent's Affiliates, any other Bank Investor or Class Conduit (in
the case of their related Bank Investors) and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under this Agreement and the other
Transaction Documents to which it is a party.
SECTION 10.4. INDEMNIFICATION OF THE ADMINISTRATIVE AGENT. The
Bank Investors each agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Transferor), ratably in accordance with such Bank
Investor's Commitment as a percentage of the aggregate Commitments for all Bank
Investors, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any action taken or omitted by the Administrative Agent,
any of the other Transaction Documents hereunder or thereunder, PROVIDED that
the Bank Investors shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, the Bank
Investors each agree to reimburse the Administrative Agent, ratably in
accordance with their Pro Rata Shares, promptly upon demand for any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
and the other Transaction Documents, to the extent that such expenses are
incurred in the interests of or otherwise in respect of any of the Bank
Investors hereunder and/or thereunder and to the extent that the Administrative
Agent is not reimbursed for such expenses by the Transferor.
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SECTION 10.5. SUCCESSOR ADMINISTRATIVE AGENT. The
Administrative Agent may resign at any time by giving written notice thereof to
each Class Investor and the Transferor and may be removed at any time with cause
by agreement of Bank Investors which hold Commitments aggregating in excess of
50% of the Aggregate Facility Limit as of such date. 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
Administrative Agent and (ii) if a Termination Event shall have occurred, the
Class Investors which hold Commitments aggregating in excess of 50% of the
Aggregate Facility Limit as of such date shall appoint a successor
Administrative Agent. The Transferor and each of the Class Investors, as
applicable, each agrees that it shall not unreasonably withhold or delay its
approval of the appointment of a successor Administrative Agent. If no such
successor Administrative Agent shall have been so appointed, and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Majority Investors' removal of
the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Class Investors, appoint a successor Administrative Agent which
successor Administrative 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 Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article X shall continue to inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 10.6. PAYMENTS BY THE ADMINISTRATIVE AGENT. Unless
specifically allocated to a Class Investor pursuant to the terms of this
Agreement, all amounts received by the Administrative Agent on behalf of any of
the Class Investors shall be paid by the Administrative Agent to such Class
Investors (or their respective Class Agents on their behalf) (at their
respective accounts specified to the Administrative Agent in accordance with
their respective related pro rata interests in the applicable Net Investment on
the Business Day received by the Administrative Agent, unless such amounts are
received after 12:00 noon on such Business Day, in which case the Administrative
Agent shall use its reasonable efforts to pay such amounts to any of the Class
Investors, as applicable, on such Business Day, but, in any event, shall pay
such amounts to such Class Investors in accordance with their respective related
pro rata interests in the applicable Net Investment not later than the following
Business Day.
SECTION 10.7. BANK COMMITMENT; ASSIGNMENT TO BANK INVESTORS.
(a) BANK COMMITMENT. With respect to each Class, at any
time on or prior to the Commitment Termination Date for such Class in the event
that any Class Conduit for such Class does not effect an Incremental Transfer as
requested under Section 2.2(a), then at any time, the Transferor shall have the
right to require such Class Conduit, by written notice to the Administrative
Agent and such Class Conduit's related Class Agent, to assign its interest in
the Net Investment for such Class in whole to the Bank Investors for such Class
pursuant to this Section 10.7. In addition, at any time for such Class on or
prior to such Commitment Termination Date (i) upon the occurrence of a
Termination Event that results in a Termination Date for such Class or (ii) the
applicable Class Conduit elects to give notice to the Transferor of the
Reinvestment Termination Date for such Class, the Transferor hereby requests and
directs that such Class Conduit assign its interest in the Net
69
Investment for such Class in whole to the related Bank Investors pursuant to
this Section 10.7 and the Transferor hereby agrees to pay the amounts described
in Section 10.7(d) below. Upon any such election by any Class Conduit or any
such request by the Transferor, such Class Conduit shall make such assignment
and the related Bank Investors shall accept such assignment on such day (or the
next day if such notice was received after 11:00 A.M. (New York time)) and shall
assume all of such Class Conduit's obligations hereunder. No documentation or
action shall be required to effect any such assignment of the Net Investment by
any Class Conduit to its related Bank Investors other than, in the case of the
circumstance contemplated by the first sentence hereof, the giving of the
notices contemplated thereby and the forwarding of such notice by the related
Class Agent to each applicable Bank Investor. In connection with any assignment
from any Class Conduit to its related Bank Investors pursuant to this Section
10.7, each such Bank Investor, as applicable, agrees to and shall,
unconditionally and irrevocably and under all circumstances, by 2:00 P.M. (New
York time) on the date of such assignment, pay to such Class Conduit without
setoff, counterclaim or defense of any kind, an amount (in immediately available
funds) equal to its Assignment Amount. Upon any assignment by any Class Conduit
to its respective Bank Investors contemplated hereunder, such Class Conduit
shall cease to make any additional Incremental Transfers hereunder (it being
understood that the Bank Investors, as assignees, shall (x) be obligated to
effect Incremental Transfers under Section 2.2(a) in accordance with the terms
thereof, notwithstanding that such Class Conduit was not so obligated and (y)
not have the right to elect the commencement of the amortization of the
applicable Net Investment pursuant to the definition of "REINVESTMENT
TERMINATION DATE" notwithstanding that the Class Conduits had such right).
(b) ASSIGNMENT. No Bank Investor may assign all or a
portion of its interest in the Net Investment or in the Receivables,
Collections, Related Security and Proceeds with respect thereto and its rights
and obligations hereunder to any Person unless approved in writing by the
Administrative Agent, such approval not to be unreasonably withheld. In the case
of an assignment by any Bank Investor to another Person, the assignor shall
deliver to the assignee(s) an Assignment and Assumption Agreement in
substantially the form of Exhibit G attached hereto, duly executed, assigning to
the assignee a pro rata interest in the applicable Net Investment and also in
the Receivables, Collections, Related Security and Proceeds with respect thereto
and the assignor's rights and obligations hereunder and the assignor shall
promptly execute and deliver all further instruments and documents, and take all
further action, that the assignee may reasonably request, in order to protect,
or more fully evidence the assignee's right, title and interest in and to such
interest and to enable the Administrative Agent, on behalf of such assignee, to
exercise or enforce any rights hereunder and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party. Upon any such assignment, (i) the assignee shall have all of the
rights and obligations of the assignor hereunder and under the other Transaction
Documents to which such assignor is or, immediately prior to such assignment,
was a party with respect to such interest for all purposes of this Agreement and
under the other Transaction Documents to which such assignor is or, immediately
prior to such assignment, was a party, and (ii) the assignor shall relinquish
its rights with respect to such interest for all purposes of this Agreement and
under the other Transaction Documents to which such assignor is or, immediately
prior to such assignment, was a party. No such assignment shall be effective
unless the Administrative Agent, on behalf of the related Class Conduit and the
Transferor shall have consented thereto and a fully executed copy of the related
Assignment and Assumption Agreement shall be delivered to the Administrative
Agent. All costs and expenses of the Administrative Agent and the applicable
initial Bank Investor, as assignor, incurred in connection with any assignment
hereunder shall be borne by the Transferor and not by the Administrative Agent
or such initial Bank Investor. No Bank Investor, as applicable, shall assign any
portion of its Commitment hereunder without also simultaneously assigning an
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equal portion of its interest in the related Liquidity Provider Agreement.
Notwithstanding the foregoing, the agreements set forth in Section 11.9 herein
shall be continuing and shall survive any assignment pursuant to this Section
10.7(b).
(c) EFFECTS OF ASSIGNMENT. By executing and delivering
an Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Assumption Agreement, the
assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement, the other Transaction Documents or any other
instrument or document furnished pursuant hereto or thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value or this
Agreement, the other Transaction Documents or any such other instrument or
document; (ii) the assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Transferor, the
Seller or the Collection Agent or the performance or observance by the
Transferor, the Seller or the Collection Agent of any of their respective
obligations under this Agreement, the Purchase Agreement, the other Transaction
Documents or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, the
Purchase Agreement and such other instruments, documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Assumption Agreement and to purchase such interest;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, or any of its Affiliates, or the assignor and based on
such agreements, documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement and the other Transaction Documents; (v) such assignee
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement, the other
Transaction Documents and any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto and to enforce its respective rights and interests in and under this
Agreement, the other Transaction Documents, the Receivables, the Contracts and
the Related Security; (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement and the other Transaction Documents are required to be performed by it
as the assignee of the assignor; and (vii) such assignee agrees that it will not
institute against any Class Conduit any proceeding of the type referred to in
Section 11.9 prior to the date which is one year and one day after the payment
in full of all of such Class Conduit's Commercial Paper issued by such Person.
(d) TRANSFEROR'S OBLIGATION TO PAY CERTAIN AMOUNTS;
ADDITIONAL ASSIGNMENT AMOUNT. With respect to each Class, the Transferor shall
pay to the Administrative Agent, for the account of the Class Conduit for such
Class, in connection with any assignment by such Class Conduit to its related
Bank Investors pursuant to this Section 10.7, an aggregate amount equal to all
the applicable Discount for such Class Conduit to accrue through the end of each
outstanding Tranche Period for such Class Conduit (which Discount, in the case
of a Class Conduit utilizing "pool" funding, shall be determined for such
purpose using the CP Rate most recently determined by the applicable Class
Agent) plus all other Aggregate Unpaids owing to such Person (other than the Net
Investment for such Class). To the extent that such Discount relates to interest
or discount on Related Commercial Paper, if the Transferor fails to make payment
of such amounts at or prior to the time of assignment by such Class Conduit to
its related Bank Investors such amount shall be paid by the applicable Bank
Investors (in accordance with their respective Pro Rata Shares) to such Class
Conduit as additional consideration for the interests assigned to such Bank
Investors and the
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amount of the "NET INVESTMENT," hereunder held by such Bank Investors shall be
increased by an amount equal to the additional amount so paid by such Bank
Investors.
(e) PAYMENTS. After any assignment by any Class Conduit
to its related Bank Investors pursuant to this Section 10.7, all payments to be
made hereunder by the Transferor or the Collection Agent to any Bank Investor
shall be made to the Administrative Agent for the account of such Bank Investor
as such account shall have been notified to the Transferor and the Collection
Agent. With respect to each Class, in the event that the related Assignment
Amount paid by the Bank Investors for such Class pursuant to Section 10.7(a) is
less than the sum of the applicable Net Investment for such Class PLUS the
Interest Component of all outstanding Related Commercial Paper of the related
Class Conduit then to the extent payments made hereunder in respect of the Net
Investment for such Class exceed the related Assignment Amount, such excess
amounts shall be remitted by such Bank Investors to (or as directed by) the
applicable Class Conduit.
(f) DOWNGRADE OF BANK INVESTOR. If at any time prior to
any assignment by any Class Conduit to its related Bank Investors as
contemplated pursuant to this Section 10.7, the short term debt rating of any
Bank Investor shall be "A-2", "P-2" or "D-2" from Standard & Poor's, Moody's or
DCR, respectively, with negative credit implications (and there is no fronting
arrangement or other arrangement in place which is acceptable to the Transferor
and the Administrative Agent), such Bank Investor upon request of the applicable
Class Agent shall, within 30 days of such request, assign its rights and
obligations hereunder to another financial institution (which institution's
short term debt shall be rated at least "A-2", "P-2" and "D-2" from Standard &
Poor's, Moody's and DCR, respectively, and which shall not be so rated with
negative credit implications). If the short term debt rating of a Bank Investor
shall be "A-3", "P-3" or "D-3", or lower, from Standard & Poor's, Moody's or
DCR, respectively (or such rating shall have been withdrawn by Standard &
Poor's, Moody's or DCR), such Bank Investor upon request of the applicable Class
Agent shall, within five (5) Business Days of such request, assign its rights
and obligations hereunder to another financial institution (which institution's
short term debt shall be rated at least "A-2", "P-2" and "D-2" from Standard &
Poor's, Moody's and DCR, respectively, and which shall not be so rated with
negative credit implications). In either such case, if any such Bank Investor
shall not have assigned its rights and obligations under this Agreement within
the applicable time period described above the related Class Conduit shall have
the right to require such Bank Investor to accept the assignment of such Bank
Investor's Pro Rata Share of the applicable Net Investment; such assignment
shall occur in accordance with the applicable provisions of this Section 10.7.
Such Bank Investor shall be obligated to pay to the applicable Class Conduit in
connection with such assignment, in addition to the Pro Rata Share of the
applicable Net Investment an amount equal to the interest component of the
outstanding Commercial Paper issued to fund the portion of the applicable Net
Investment being assigned to such Bank Investor as reasonably determined by the
applicable Class Agent. In addition, such Bank Investor shall pay to the
applicable Class Agent the amount (the "UNUSED COMMITMENT AMOUNT") of any unused
Commitment of such downgraded Bank Investor. The applicable Class Agent shall
deposit such Unused Commitment Amount in an account of such Class Agent's name,
and shall apply such amounts to fund such Bank Investor's Pro Rata Share of any
Incremental Transfer required to be funded by such Bank Investors subject to the
terms and conditions hereof. The proceeds of such account shall be invested in
Eligible Investments and any investment income with respect thereto shall be
paid to the applicable Bank Investor on a monthly basis. All amounts remaining
in such account shall be released to such Bank Investor on the Business Day
immediately following the earliest of: (x) the effective date of any replacement
of such Bank Investor or removal thereof as a party to this Agreement, (y) the
date on which such Bank Investor shall furnish the applicable Class Agent with
evidence that its short term debt rating is higher than "A-2", "P-2" or "D-2"
from Standard & Poor's, Moody's and DCR, respectively, and (z)
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the applicable Termination Date (except for a Reinvestment Termination Date).
Notwithstanding anything contained herein to the contrary, upon any such
assignment to a downgraded Bank Investor as contemplated pursuant to the
immediately preceding sentence, the aggregate available amount of the Aggregate
Facility Limit, solely as it relates to new Incremental Transfers by any Class
Conduit shall be reduced by the amount of unused Commitment of such downgraded
Bank Investor; it being understood and agreed, that nothing in this sentence or
the two preceding sentences shall affect or diminish in any way any such
downgraded Bank Investor's Commitment to the Transferor or such downgraded Bank
Investor's other obligations and liabilities hereunder and under the other
Transaction Documents.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. TERM OF AGREEMENT. This Agreement shall
terminate on the date following all of the Termination Dates upon which the
Aggregate Net Investment has been reduced to zero, all accrued Discount and all
Servicing Fees have been paid in full, and all other Aggregate Unpaids have been
paid in full, in each case, in cash; PROVIDED, HOWEVER, that (i) the rights and
remedies of each Class Agent, the Class Investors and the Administrative Agent
with respect to any representation and warranty made or deemed to be made by the
Transferor pursuant to this Agreement, (ii) the indemnification and payment
provisions of Article VIII, (iii) Tech Data's obligations under Article IX and
(iv) the agreements set forth in Section 11.8 and 11.9 hereof, shall be
continuing and shall survive any termination of this Agreement.
SECTION 11.2. WAIVERS; AMENDMENTS. (a) No failure or delay on
the part of any Class Agent, the Administrative Agent or any Class Investor in
exercising any power, right or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude any other further exercise thereof or the exercise of
any other power, right or remedy. The rights and remedies herein provided shall
be cumulative and nonexclusive of any rights or remedies provided by law.
(b) Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Transferor, the Administrative Agent, each Class Conduit (so long as such Class
Conduit holds any portion of the Transferred Interest), each Class Agent and the
Majority Investors; PROVIDED, that no such amendment or waiver shall, without
the prior written consent of all Bank Investors, amend, modify or waive any
provision of this Agreement in any way which would reduce or impair Collections
or the payment of the applicable Net Investment, Discount or fees payable
hereunder to the Bank Investors; PROVIDED FURTHER, that no such amendment or
waiver shall, without the prior written consent of each Bank Investor directly
affected thereby, amend, modify or waive any provision of this Agreement in any
way which would (A) increase the Servicing Fee (other than as permitted pursuant
to Section 6.2(b)), (B) modify any provision of this Agreement or the Purchase
Agreement relating to the timing of payments required to be made by the
Transferor or the Seller or the application of the proceeds of such payments,
(C) permit the appointment of any Person (other than the Administrative Agent)
as successor Collection Agent, or (D) release any property from the lien
provided by this Agreement (other than as expressly contemplated herein).
Notwithstanding the foregoing, the Administrative Agent, the Transferor, Tech
Data and the applicable Class Conduit and Bank Investor(s) may amend this
Agreement to (A) increase the dollar amount of any Bank Investor's Commitment
(and similarly increase the Facility Limit and
73
the Maximum Net Investment) or (B) increase the Facility Limit (and similarly
increase 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 of the respective Bank Investors' Commitment at
least equals the applicable Facility Limit. In addition, notwithstanding
anything to the contrary herein (but subject to the first, second and third
provisions set forth in this Section 11.2(b)), this Agreement may be amended by
the Transferor, the Collection Agent and the Administrative Agent solely for the
purpose of adding an additional Class (which addition may result in an increased
Facility Limit and Maximum Net Investment and changes to any definitions or
terms of this Agreement which are specific to one or more particular Classes).
SECTION 11.3. NOTICES. Except as provided below, all
communications and notices provided for hereunder shall be in writing (including
bank wire, telex, telecopy or electronic facsimile transmission or similar
writing) and shall be given to the other party at its address or telecopy number
set forth below or at such other address or telecopy number as such party may
hereafter specify for the purposes of notice to such party. Each such notice or
other communication shall be effective (i) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section 11.3
and confirmation is received, (ii) if given by mail 3 Business Days following
such posting, postage prepaid, U.S. certified or registered, (iii) if given by
overnight courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (iv) if given by any other means, when received at
the address specified in this Section 11.3. However, anything in this Section
11.3 to the contrary notwithstanding, the Transferor hereby authorizes a Class
Conduit to effect Transfers, the Tranche Periods and the Tranche Rates
selections based on telephonic notices made by any Person which such Class
Conduit in good faith believes to be acting on behalf of the Transferor. The
Transferor agrees to deliver promptly to the Administrative Agent a written
confirmation of each telephonic notice signed by an authorized officer of
Transferor (which confirmation the Administrative Agent shall forward to the
applicable Class Agent). However, the absence of such confirmation shall not
affect the validity of such notice. If the written confirmation differs in any
material respect from the action taken by any Class Conduit the records of such
Class Conduit shall govern absent manifest error.
If to RCC:
Receivables Capital Corporation
c/o Merrill Lynch Money Markets, Inc.
World Financial Center - North Tower
250 Vesey Street - 11th Floor
New York, New York 10281-1311
Attn: Stewart Cutler - Managing Director
Telephone: (212) 449-7468
Telecopy: (212) 449-8939
(with a copy to the Administrative Agent)
If to Atlantic:
Atlantic Asset Securitization Corp.
c/o Credit Lyonnais New York Branch
1301 Avenue of the Americas
74
New York, New York 10019
Attention: David Fink
Telephone: (212) 261-7816
Telecopy: (212) 459-3258
with a copy to:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: David Fink
Telephone: (212) 261-7816
Telecopy: (212) 459-3258
with a copy to:
Banque Nationale de Paris
333 Clay Street
Suite 3400
Houston, Texas 77002
Telephone: (713) 951-1223
Telecopy:(713) 659-1414
If to Liberty:
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
114 West 47th St., Suite 1715
New York, New York 10036
Attention: Andrew L. Stidd
Telephone: (212) 302-5151
Telecopy: (212) 302-8767
with a copy to:
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Richard A. Josephs
Telephone: (212) 225-5000
Telecopy: (212) 225-5090
If to AFC:
Amsterdam Funding Corporation
c/o Global Securitization Services, LLC
114 West 47th Street, Suite 1715
New York, New York 10036
75
Attention: Andrew Stidd
Telephone: (212) 302-8330
Telecopy: (212) 302-8767
with a copy to:
ABN AMRO Bank N.V.
135 South LaSalle Street
Suite 725
Chicago, Illinois 60674
Attention: Program Administrator - Amsterdam
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
If to Falcon:
Falcon Asset Securitization Corp.
c/o Asset Backed Finance
Suite IL1-0594
Chicago, Illinois 60670
Telecopy No.: (312) 732-1844
with a copy to:
Bank One, NA
1 Bank One Plaza
Suite IL1-0594
Chicago, Illinois 60670
Telecopy No.: (312) 732-1844
If to the Transferor:
Tech Data Finance SPV, Inc.
1655 N. Main Street, Suite 295
Walnut Creek, California 34596
Telephone: (925) 933-6390
Telecopy: (925) 933-6390
If to Tech Data:
Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 33760
Attention: Treasurer
Telephone: (727) 539-7429
Telecopy: (727) 538-5860
(with a copy to General Counsel)
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Telecopy: (727) 538-7803
If to the Administrative Agent:
Bank of America, National Association
Bank of America Corporate Center--10th Floor
Charlotte, North Carolina 28255
Attention: Michelle M. Heath--
Global Asset-Backed Securitization
Telephone: (704) 386-7922
Telecopy: (704) 388-9169
If to the Bank Investors, at their respective addresses set
forth on the signature pages hereto or of the Assignment and Assumption
Agreement pursuant to which it became a party hereto.
SECTION 11.4. GOVERNING LAW; SUBMISSION TO JURISDICTION;
INTEGRATION.
(a) THIS AGREEMENT 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
Transferor hereby irrevocably waives, to the fullest extent it may effectively
do so, any objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Nothing in this Section 11.4 shall affect the right of any Class Investor to
bring any action or proceeding against the Transferor or its property in the
courts of other jurisdictions.
(b) This Agreement contains the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire Agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
SECTION 11.5. SEVERABILITY; COUNTERPARTS. This Agreement 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
Agreement. Execution and delivery of this Agreement may be made by facsimile.
Any provisions of this Agreement 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 11.6. SUCCESSORS AND ASSIGNS.
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(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 Administrative Agent and the Majority
Investors. No provision of this Agreement shall in any manner restrict the
ability of any Class Conduit to assign, participate, grant security interests
in, or otherwise transfer any portion of the Transferred Interest held by it.
(b) The Transferor hereby agrees and consents to the
assignment by any Class Conduit from time to time of all or any part of its
rights under, interest in and title to this Agreement and the Transferred
Interest held by it to any related Liquidity Provider. In addition, the
Transferor hereby consents to and acknowledges the assignment by any Class
Conduit of all of its rights under, interest in and title to this Agreement and
the Transferred Interest held by it to the related Collateral Agent.
(c) Without limiting the foregoing, any Class Conduit may,
from time to time, with prior or concurrent notice to Transferor and Collection
Agent, in one transaction or a series of transactions, assign all or a portion
of its Net Investment and its rights and obligations under this Agreement and
any other Transaction Documents to which it is a party to a Conduit Assignee.
Upon and to the extent of such assignment by such Class Conduit to a Conduit
Assignee, (i) such Conduit Assignee shall be the owner of the assigned portion
of such Net Investment, (ii) the related administrative or managing agent for
such Conduit Assignee will act as the Class Agent for such Conduit Assignee,
with all corresponding rights and powers, express or implied, granted to the
applicable Class Agent hereunder or under the other Transaction Documents, (iii)
such Conduit Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to such Class Conduit and its Liquidity Support
Provider(s) and Credit Support Provider(s), respectively, herein and in the
other Transaction Documents (including, without limitation, any limitation on
recourse against such Conduit Assignee or related parties, any agreement not to
file or join in the filing of a petition to commence an insolvency proceeding
against such Conduit Assignee, and the right to assign to another Conduit
Assignee as provided in this paragraph), (iv) such Conduit Assignee shall assume
all (or the assigned or assumed portion) of such Class Conduit's obligations, if
any, hereunder or any other Transaction Document, and such Class Conduit shall
be released from such obligations, in each case to the extent of such
assignment, and the obligations of such Class Conduit and such Conduit Assignee
shall be several and not joint, (v) all distributions in respect of such Net
Investment shall be made to the applicable agent or administrative agent, as
applicable, on behalf of such Class Conduit and such Conduit Assignee on a pro
rata basis according to their respective interests, (vi) the definition of the
term "CP RATE" with respect to the portion of such Net Investment funded with
commercial paper issued by such Class Conduit from time to time shall be
determined in the manner set forth in the definition of "CP RATE" applicable to
such Class Conduit on the basis of the interest rate or discount applicable to
commercial paper issued by such Conduit Assignee (rather than such Class
Conduit), (vii) the defined terms and other terms and provisions of this
Agreement and the other Transaction Documents shall be interpreted in accordance
with the foregoing, and (viii) if requested by the Administrative Agent or the
agent or administrative agent with respect to the Conduit Assignee, the parties
will execute and deliver such further agreements and documents and take such
other actions as the Administrative Agent or such agent or administrative agent
may reasonably request to evidence and give effect to the foregoing. No
Assignment by such Class Conduit to a Conduit Assignee of all or any portion of
its Net Investment shall in any way diminish the related Bank Investors'
obligation under Section 10.7
78
to fund any Incremental Transfer not funded by such Class Conduit or such
Conduit Assignee or to acquire from such Class Conduit or such Conduit Assignee
all or any portion of the applicable Net Investment.
SECTION 11.7. WAIVER OF CONFIDENTIALITY. The Transferor and
Tech Data hereby consent to the disclosure of any non-public information with
respect to it received by the Administrative Agent, any Class Investor or any
Class Agent to any of the Administrative Agent, any Class Agent, any Class
Investor, any nationally recognized rating agency rating any Class Conduit's
Commercial Paper, the Administrative Agent, the Collateral Agent, any Bank
Investor or potential Bank Investor, any related Liquidity Provider or any
related Credit Support Provider in relation to this Agreement.
SECTION 11.8. CONFIDENTIALITY AGREEMENT. The Transferor and
Tech Data hereby agree that they will not disclose the contents of this
Agreement or any other proprietary or confidential information of any Class
Agent, the Class Conduits, the Administrative Agent, any Bank Investor, the
Collateral Agent, any related Liquidity Provider or any related Credit Support
Provider to any other Person except (i) its auditors and attorneys, employees or
financial advisors (other than any commercial bank) and any nationally
recognized rating agency, PROVIDED such auditors, attorneys, employees,
financial advisors or rating agencies are informed of the highly confidential
nature of such information or (ii) as otherwise required by applicable law or
order of a court of competent jurisdiction.
SECTION 11.9. NO BANKRUPTCY PETITION AGAINST ANY CLASS
CONDUIT. Each party hereto hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all outstanding
Commercial Paper or other indebtedness of any Class Conduit, it will not
institute against, or join any other Person in instituting against, such Class
Conduit any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
SECTION 11.10. NO RECOURSE AGAINST STOCKHOLDERS, OFFICERS OR
DIRECTORS. Notwithstanding anything to the contrary contained in this Agreement,
the obligations of each Class Conduit under this Agreement and all other
Transaction Documents are solely the corporate obligations of such Class Conduit
and shall be payable solely to the extent of funds received from the Transferor
in accordance herewith or from any party to any Transaction Document in
accordance with the terms thereof in excess of funds necessary to pay matured
and maturing Commercial Paper of the applicable Class Conduit. No recourse under
any obligation, covenant or agreement of any Class Conduit contained in this
Agreement shall be had against such Class Conduit's Corporate Services Provider
(or any Affiliate thereof), or any stockholder, employee, officer, director or
incorporator of any Class Conduit or beneficial owner of any of them, as such,
by the enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that this Agreement is solely a corporate obligation of each Class Conduit, and
that no personal liability whatsoever shall attach to or be incurred by the
Corporate Services Provider (or any Affiliate thereof), or the stockholder,
employee, officer, director or incorporator of any Class Conduit or beneficial
owner of any of them, as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of any Class Conduit contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by any Class Conduit of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute or constitution, of
the Corporate Services Provider (or any Affiliate thereof) and every such
stockholder, employee,
79
officer, director or incorporator of a Class Conduit or beneficial owner of any
of them is hereby expressly waived as a condition of and consideration for the
execution of this Agreement; PROVIDED, HOWEVER, that a Class Conduit shall be
considered to be an Affiliate of the Corporate Services Provider; and PROVIDED,
FURTHER, that this Section 11.2 shall not relieve any such stockholder,
employee, officer, director or incorporator of any Class Conduit or beneficial
owner of any of them of any liability it might otherwise have for its own
intentional misrepresentation or willful misconduct.
SECTION 11.11. CHARACTERIZATION OF THE TRANSACTIONS
CONTEMPLATED BY THE AGREEMENT. It is the intention of the parties that the
transactions contemplated hereby constitute the sale of the Transferred
Interest, conveying good title thereto free and clear of any Adverse Claims to
the Administrative Agent, on behalf of the Class Investors, and that the
Transferred Interest not be part of the Transferor's estate in the event of an
insolvency. If, notwithstanding the foregoing, the transactions contemplated
hereby should be deemed a financing, the parties intend that the Transferor
shall be deemed to have granted to the Administrative Agent, on behalf of the
Class Investors, and the Transferor hereby grants to the Administrative Agent,
on behalf of the Class Investors, a first priority perfected security interest
in all of the Transferor's right, title and interest in, to and under the
Receivables, together with Related Security and Collections with respect
thereto, and that this Agreement shall constitute a security agreement under
applicable law. The Transferor hereby grants a security interest in and assigns
to the Administrative Agent, on behalf of the Class Investors, all of its rights
and remedies under the Purchase Agreement with respect to the Receivables and
with respect to any obligations thereunder of Tech Data with respect to the
Receivables.
SECTION 11.12. OPTIONAL RECONVEYANCE OF ALL RECEIVABLES. The
Transferor shall have the option at any time to require the Administrative
Agent, on behalf of the Class Investors, as applicable, to reconvey all of its
interest in the Receivables to the Transferor subject to the following terms and
conditions: (a) the Transferor shall give the Administrative Agent and each
Class Agent not less than 10 Business Days notice of the Transferor's exercise
of this option and (b) simultaneously with the reconveyance by the
Administrative Agent to the Transferor of the Administrative Agent's interest in
the Receivables, the Transferor shall pay to the Administrative Agent, for the
benefit of the applicable Class Investors, an amount equal to the Aggregate Net
Investment plus all discount accrued and to accrue on the Class Conduit's
Related Commercial Paper to maturity, together with any other costs associated
with the receipt by each Class Conduit of its Net Investment on a day other than
the last day of an applicable Tranche Period along with any other amounts owing
hereunder to the Class Investors by the Transferor.
SECTION 11.13. MANDATORY RECONVEYANCE OF CERTAIN RECEIVABLES.
The Administrative Agent, on behalf of the Class Investors, as applicable, upon
each occasion on which the Transferor shall be required to reconvey any
Receivables to Tech Data pursuant to Section 7.2(a) of the Purchase Agreement,
shall be considered to have reconveyed and does hereby reconvey to the
Transferor such Receivables (including the Transferred Interest therein) and
upon such reconveyance, hereby terminates its interest in any such Receivables;
PROVIDED THAT no such reconveyance by the Administrative Agent shall occur or be
deemed to have occurred if (a) any Event of Termination shall have occurred and
be continuing hereunder or (b) Tech Data shall not have contemporaneously with
such reconveyance sold to the Transferor a substitute receivable as described in
Section 7.2(b) of the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Transfer and Administration Agreement as of the day first written
above.
TECH DATA FINANCE SPV, INC.,
as Transferor
By: /s/ ARTHUR W. SINGLETON
-------------------------
Name: Arthur W. Singleton
Title: Vice President, Treasurer,
CFO & Secretary
TECH DATA CORPORATION,
as Collection Agent
By: /s/ ARTHUR W. SINGLETON
---------------------------
Name: Arthur W. Singleton
Title: Corporate Vice President,
Treasurer & Secretary
RECEIVABLES CAPITAL CORPORATION
By: /s/ STEPHEN NEWMAN
----------------------
Name: Stephen Newman
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.
By: CREDIT LYONNAIS NEW YORK BRANCH,
as attorney-in-fact
By: /s/ R. MCBRIDE
------------------
Name: R. McBride
Title: Director
LIBERTY STREET FUNDING CORP.
By: /s/ ANDREW L. STIDD
-----------------------
Name: Andrew L. Stidd
Title: President
AMSTERDAM FUNDING CORPORATION
By: /s/ ANDREW L. STIDDD
------------------------
Name: Andrew L Stidd
Title: President
81
FALCON ASSET SECURITIZATION
CORPORATION
By: /s/ JULIE C. BENDA
----------------------
Name: Julie C. Benda
Title: Authorized Signatory
COMMITMENT BANK OF AMERICA, NATIONAL
$178,500,000 ASSOCIATION, as Administrative
Agent, RCC Agent and as an RCC Bank
Investor
By: /s/ CHRIS PARRISH
Name: Chris Parrish
Title: Vice President
COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH,
$112,500,000 as Atlantic Agent and as an Atlantic
Bank Investor
By: /s/ R. MCBRIDE
------------------
Name: R. McBride
Title: Director
COMMITMENT BANQUE NATIONALE DE PARIS,
$15,000,000 as an Atlantic Bank Investor
By: /s/ JOHN STACY
------------------
Name: John Stacy
Title: Senior Vice President
COMMITMENT THE BANK OF NOVA SCOTIA, as Liberty
$153,000,000 agent and as a Liberty Bank Investor
By: /s/ RICHARD JOSEPH
-----------------------
Name: Richard Joseph
Title:_____________________
COMMITMENT ABN AMRO BANK N.V., as AFC Agent
$127,500,000 and as an AFC Bank Investor
By: /s/ S. SEAN CHEN
--------------------
Name: S. Sean Chen
Title: Senior Vice President
By: /s/ W. ROBERT POFF
----------------------
Name: W. Robert Poff
Title: Group Vice President
82
COMMITMENT BANK ONE, NA (having its main office
$127,500,000 in Chicago Illinois), as Falcon
Agent and as a Falcon Bank Investor
By: /S/ JULIE C. BENDA
------------------------
Name: Julie C. Benda
Title: Vice President
83
ANNEX 1
CP Rate Definition for RCC
"CP Rate" shall mean for any CP Tranche Period, the per annum
rate equivalent to the "weighted average cost" (as defined below)
related to the issuance of Commercial Paper that is allocated, in whole
or in part, to fund RCC's Net Investment (and which may also be
allocated in part to the funding of other assets of RCC); provided,
however, that if any component of such rate described above is a
discount rate in calculating the CP Rate for RCC's Net Investment for
such CP Tranche Period, the rate used to calculate such component of
such rate shall be a rate resulting from converting such discount rate
to an interest bearing equivalent rate per annum. As used in this
definition, the "weighted average cost" shall consist of (A) the actual
interest rate (or discount) paid to purchasers of Commercial Paper
issued by RCC (other than the commissions of placement agents and
dealers), (B) certain documentation and transaction costs associated
with the issuance of such Commercial Paper, (C) any incremental
carrying costs incurred with respect to Commercial Paper maturing on
dates other than those on which corresponding funds are received by the
related Class Agent on behalf of RCC, and (D) other borrowing by RCC
(other than under any program support agreement), including to fund
small or odd dollar amounts that are not easily accommodated in the
commercial paper market.
84
ANNEX 2
CP Rate Definition for Falcon
"CP Rate" shall mean for any CP Tranche Period, unless
otherwise provided for under the Transaction Documents, the sum of (i)
discount or yield accrued on Falcon pooled Commercial Paper during such
Tranche Period, plus (ii) any and all accrued commissions in respect of
placement agents and Commercial Paper dealers, and issuing and paying
agent fees incurred, in respect of such pooled Commercial Paper for
such Tranche Period plus (iii) other costs associated with funding
small or odd-lot amounts with respect to all receivable purchase
facilities which are funded by Falcon pooled Commercial Paper for such
Tranche Period, minus (iv) any accrual of income net of expenses
received during such Tranche Period from investment of collections
received under all receivable purchase facilities funded substantially
with Falcon pooled Commercial Paper, minus (v) any payment received
during such Tranche Period net of expenses in respect of broken funding
costs related to the prepayment of any portion of the Net Investment of
Falcon pursuant to the terms of any receivable purchase facilities
funded substantially with pooled Commercial Paper. In addition to the
foregoing costs, if Seller shall request from Falcon any Incremental
Transfer during any period of time determined by the Class Agent in its
sole discretion to result in an incrementally higher CP Rate applicable
to such Incremental Transfer, the Net Investment associated with any
such Incremental Transfer shall, during such period, be deemed to be
funded by Falcon in a special pool (which may include capital
associated with other receivable purchase facilities) for purposes of
determining such additional CP Rate applicable only to such special
pool and charged each day during such period against such Net
Investment.
85
ANNEX 3
CP Rate Definition for AFC
"CP Rate" shall mean, on any day with respect to any CP
Tranche Period, the per annum rate for any funding period (inclusive of
dealer fees and commissions) paid or payable by AFC as interest on or
otherwise in respect of Commercial Paper issued by AFC on the first day
of such funding period and maturing on the last day of such funding
period that are allocated by AFC in whole or in part, to fund or
maintain its Net Investment for such day, as determined by AFC;
provided, however, that if any rate so paid or payable by AFC from time
to time as interest on or otherwise in respect of such Commercial Paper
is a discount rate, then such rate shall be the rate resulting from
converting such discount rate to an interest-bearing equivalent rate.
86
ANNEX 4
CP Rate Definition for Atlantic
"CP Rate" shall mean for any CP Tranche Period: (a) a rate per
annum equal to the sum of (i) the rate or, if more than one rate, the
weighted average of the rates, determined by converting to an
interest-bearing equivalent rate per annum the discount rate (or rates)
at which Commercial Paper issued to fund or to maintain Atlantic's Net
Investment, as the case may be, may be sold by any placement agent or
commercial paper dealer selected by the Class Agent for Atlantic, as
agreed between each such agent or dealer and such Class Agent, plus
(ii) the commissions and charges charged by such placement agent or
commercial paper dealer with respect to such Commercial Paper expressed
as a percentage of such face amount and converted to an
interest-bearing equivalent rate per annum plus (iii) any incremental
carrying costs incurred with respect to Commercial Paper maturing on
dates other than those on which corresponding funds are received by the
related Class Agent on behalf of Atlantic. [Subject to Atlantic's
review]
87
ANNEX 5
CP Rate Definition for Liberty
"CP Rate" shall mean for any CP Tranche Period, the per annum
rate equivalent to the "weighted average cost" (as defined below)
related to the issuance of Commercial Paper that is allocated, in whole
or in part, to fund Liberty's Net Investment (and which may also be
allocated in part to the funding of other assets of Liberty); provided,
however, that if any component of such rate described above is a
discount rate in calculating the CP Rate for Liberty's Net Investment
for such CP Tranche Period, the rate used to calculate such component
of such rate shall be a rate resulting from converting such discount
rate to an interest bearing equivalent rate per annum. As used in this
definition, the "weighted average cost" shall consist of (A) the actual
interest rate (or discount) paid to purchasers of Commercial Paper
issued by Liberty (other than the commissions of placement agents and
dealers), (B) certain documentation and transaction costs associated
with the issuance of such Commercial Paper, (C) any incremental
carrying costs incurred with respect to Commercial Paper maturing on
dates other than those on which corresponding funds are received by the
related Class Agent on behalf of Liberty, and (D) other borrowing byp
Liberty (other than under any program support agreement), including to
fund small or odd dollar amounts that are not easily accommodated in
the commercial paper market.
88