AMENDMENT NUMBER 2 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 2 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of May 17, 2001 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"), BLACK FOREST FUNDING
------
CORPORATION, a Delaware corporation, ("Black Forest"and collectively with RCC,
------------
Atlantic, Liberty, AFC and Falcon, the "Class Conduits"), CREDIT LYONNAIS NEW
--------------
YORK BRANCH, a branch duly licensed under the laws of the State of New York of a
banking corporation organized and existing under the laws of the Republic of
France ("Credit Lyonnais"), as an Atlantic Bank Investor and as agent for
---------------
Atlantic and the Atlantic Bank Investors (in such capacity, the "Atlantic
--------
Agent"), BNP PARIBAS, a French banking corporation, acting through its Houston
-----
agency ("BNPP"), 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"), BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
------------
BRANCH, a branch duly licensed under the laws of New York of a banking
corporation organized and existing under the laws of the Federal Republic of
Germany ("HypoVereinsbank"), as a Black Forest Bank Investor and as agent for
---------------
Black Forest and the Black Forest Bank Investors (in such capacity, the "Black
-----
Forest Agent") and BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking
------------
association ("Bank of America"), as agent for RCC, Atlantic, Liberty, AFC,
---------------
Falcon, Black Forest, the RCC Bank Investors, the Atlantic Bank
Investors, the Black Forest 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 "RCC Agent") and Lead Arranger, amending
---------
that certain Transfer and Administration Agreement dated as of May 19, 2000,
among the Transferor, the Collection Agent, the Class Conduits (as defined
thereunder) and the Bank Investors (the "Original Agreement" and said agreement
------------------
as amended, the "Agreement").
----------
WHEREAS, the parties hereto mutually desire to make certain amendments
to the Agreement as hereinafter set forth; and
WHEREAS, capitalized terms used herein shall have the meanings
assigned to such terms in the Original Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. Amendment to Definitions.
------------------------
(a) The definition of "Commitment Termination Date" is hereby deleted
and replaced with the following (solely for convenience added language is
italicized):
""Commitment Termination Date" means, with respect to each Class, May
---------------------------
16, 2002, 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."
(b) The definition of "Dilution Reserve Ratio" is hereby deleted
and replaced with the following (solely for convenience added language is
italicized):
""Dilution Reserve Ratio" means, at any time, an amount equal to the
----------------------
product of (i) two (2) and (ii) the highest Dilution Ratio as of the last day of
any of the preceding six (6) months."
2
(c) The definition of "Facility Limit" is hereby deleted and
replaced with the following (solely for convenience added or changed language is
italicized):
""Facility Limit" means (i) with respect to the Class of which
--------------
Atlantic is a member, $111,562,500; 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, $133,875,000; 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, $111,562,500; 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, $111,562,500; 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, (vi) with respect to the Class of which
Black Forest is a member, $66,937,500; provided that such amount may not at any
time exceed the aggregate Commitments with respect to the Black Forest Bank
Investors, in each case, at any time in effect and (vii) 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."
(d) The definition of "Loss and Dilution Reserve" is hereby
deleted and replaced with the following (solely for convenience added or changed
language is italicized):
""Loss and Dilution Reserve" means, with respect to each Class, at any
-------------------------
time, an amount equal to the product of (i) the Loss and Dilution Reserve
Percentage and (ii) the Net Investment for such Class at such time.
Notwithstanding the foregoing, (i) with respect to the Class of which RCC is a
member, the portion of the Loss and Dilution Reserve attributable to losses
shall at all times be at least equal to $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
$8,750,000, (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 $10,500,000, (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
3
all times be at least equal to $8,750,000, (v) with respect to the Class of
which Falcon is a member, the portion of the Loss and Dilution Reserve
attributable to losses shall at all times be at least equal to $8,750,000, (vi)
with respect to the Class of which Black Forest is a member, the portion of the
Loss and Dilution Reserve attributable to losses shall at all times be at least
equal to $5,250,000, and (vii) 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."
(e) The definition of "Maximum Net Investment" is hereby deleted
and replaced with the following (solely for convenience added or changed
language is italicized):
""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, $109,375,000, (iii) with respect to the Class of which Liberty is a
member, $131,250,000, (iv) with respect to the Class of which AFC is a member, $
109,375,000, (v) with respect to the Class of which Falcon is a member,
$109,375,000, (vi) with respect to the Class of which Black Forest is a member,
$65,625,000 and (vii) with respect to any other Class, the amount set forth
pursuant to Section 11.2(b)."
SECTION 1. Affirmations.
------------
(a) The Transferor and Collection Agent have complied with
Section 2.8 of the Agreement with respect to Lock-Box Accounts and solely for
convenience attached hereto is the updated Exhibit C.
(b) All parties hereto agree and acknowledge that with respect
to each Bank Investor party hereto, each Bank Investor has a Commitment and such
Commitment of such Bank Investor shall be the dollar amount set forth opposite
such Bank Investor's signature on the signature page hereto, which may be
different from the Original Agreement.
SECTION 2. Conditions Precedent. This Amendment shall not become
--------------------
effective until the Administrative Agent shall have received the following:
(a) A copy of the Resolutions of the Board of Directors of the
Transferor and Tech Data certified by its Secretary approving this Amendment
4
and the other documents to be delivered by the Transferor and Tech Data
hereunder; and
(b) A Certificate of the Secretary of the Transferor and Tech
Data certifying (i) the names and signatures of the officers authorized on its
behalf to execute this Amendment and any other documents to be delivered by it
hereunder and (ii) the Resolutions referenced in Section 3(a) are still in full
force and effect and that the Board has not taken any action to amend modify or
repeal such Resolutions.
SECTION 3. Representations and Warranties. The Transferor hereby
------------------------------
makes to the Company, on and as of the date hereof, all of the representations
and warranties set forth in Section 3.1 of the Original Agreement. In addition,
the Collection Agent and the Guarantor hereby make to the Company, on the date
hereof, all the representations and warranties set forth in Section 3.3 of the
Original Agreement.
SECTION 4. Successors and Assigns. This Amendment shall bind, and
----------------------
the benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns;
SECTION 5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRANSFEROR
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT
SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 6. Severability; Counterparts. This Amendment may be
--------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5
SECTION 7. Captions. The captions in this Amendment are for
--------
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 8. Ratification. Except as expressly affected by the
------------
provisions hereof, the Original Agreement as amended by this Amendment shall
remain in full force and effect in accordance with its terms and ratified and
confirmed by the parties hereto. On and after the date hereof, each reference
in the Original Agreement to "this Agreement", "hereunder", "herein" or words of
like import shall mean and be a reference to the Original Agreement as amended
by this Amendment.
6
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
TECH DATA FINANCE SPV, INC.,
as Transferor
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Chief Financial Officer,
Treasurer, and Secretary
TECH DATA CORPORATION,
as Collection Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Chief Financial Officer,
Treasurer, and Secretary
RECEIVABLES CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.
By: CREDIT LYONNAIS NEW YORK BRANCH,
as attorney-in-fact
By: /s/ Kostantina Kourmpetis
-------------------------
Name: Kostantina Kourmpetis
Title: Director
LIBERTY STREET FUNDING CORP.
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: President
AMSTERDAM FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: President
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
BLACK FOREST FUNDING CORPORATION
By: /s/ Xxxx Xxxxx
--------------
Name: Xxxx Xxxxx
Title: Vice President
Commitment BANK OF AMERICA, NATIONAL
---------- ASSOCIATION, as Administrative Agent, RCC
$116,000,000 Agent and as an RCC Bank Investor
By: /s/ Xxxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Commitment CREDIT LYONNAIS NEW YORK BRANCH,
----------
$38,437,500 as Atlantic Agent and as an Atlantic Bank
Investor
By: /s/ Kostantina Kourmpetis
-------------------------
Name: Kostantina Kourmpetis
Title: Director
Commitment BNP PARIBAS,
----------
$13,125,000 as an Atlantic Bank Investor
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Associate
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Commitment THE BANK OF NOVA SCOTIA, as Liberty
----------
$133,875,000 Agent and as a Liberty Bank Investor
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Managing Director
Commitment ABN AMRO BANK N.V., as AFC Agent
---------- and as an AFC Bank Investor
$111,562,500
By: /s/ Xxxxxxx Xxx
---------------
Name: Xxxxxxx Xxx
Title: Group Vice President
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: Group Vice President
Commitment BANK ONE, NA (having its main office
---------- in Chicago Illinois), as Falcon Agent
$111,562,500 and as a Falcon Bank Investor
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Director
Commitment BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
---------- as Black Forest Agent and Black Forest Bank Investor
$66,937,500
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Director
Commitment LLOYDS TSB BANK PLC,
---------- as an Atlantic Bank Investor
$60,000,000
By: /s/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
Title: Assistant Director, Structured Finance
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President, Structured Finance
Commitment LLOYDS TSB BANK PLC,
---------- as an RCC Bank Investor
$62,500,000
By: /s/ Xxxxx Xxxx
--------------
Name: Xxxxx Xxxx
Title: Assistant Director, Structured Finance
By: /s/ Xxxxxxxx Xxxxx
------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President, Structured Finance
