EXHIBIT 10.ZZ(3)
AMENDMENT NUMBER 1 TO SECOND
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 1 TO SECOND AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "Amendment"), dated as of November 9, 1999, among
TECH DATA CORPORATION, a Florida corporation ("Tech Data"), as collection agent
and guarantor (in such capacities, the "Collection Agent" and the "Guarantor",
respectively), TECH DATA FINANCE, INC., a California corporation, as transferor
(in such capacity, the "Transferor"), ENTERPRISE FUNDING CORPORATION, a Delaware
corporation (the "Enterprise"), ATLANTIC ASSET SECURITIZATION CORP.
("Atlantic"), a Delaware corporation, LIBERTY STREET FUNDING CORP. ("Liberty"),
a Delaware corporation, CREDIT LYONNAIS NEW YORK BRANCH, a branch duly licensed
under the laws of the State of New York of a banking corporation organized and
existing under the laws of the Republic of France ("Credit Lyonnais"), as an
Atlantic Bank Investor and as agent for Atlantic and the Atlantic Bank Investors
(in such capacity, the "Atlantic Agent"), THE BANK OF NOVA SCOTIA, a banking
corporation organized and existing under the laws of Canada, acting through its
New York Agency, ("Scotia Bank"), as a Liberty Bank Investor and as agent for
Liberty and the Liberty Bank Investors (in such capacity, the "Liberty Agent")
and BANK OF AMERICA, N.A. (as successor by merger to NationsBank, N.A.), a
national banking association ("Bank of America"), as agent for Enterprise,
Atlantic, Liberty, the Enterprise Bank Investors, the Atlantic Bank Investors
and the Liberty Bank Investors (in such capacity, the "Agent"), as an Enterprise
Bank Investor and as agent for Enterprise and the Enterprise Bank Investors (in
such capacity, the "Enterprise Agent"), amending that certain Second Amended and
Restated Transfer and Administration Agreement dated as of February 10, 1999,
and as amended to the date hereof (the "Existing Agreement" and said agreement
as amended by this Amendment, the "Agreement" ).
WHEREAS, the Transferor has requested that the Investors and the Agent
agree to an increase in (i) the Atlantic Facility Limits, Enterprise Facility
Limits and Liberty Facility Limits, (ii) the Atlantic Maximum Net Investments,
the Enterprise Maximum Net Investments and the Liberty Maximum Net Investments
and (iii) the Atlantic Loss Reserves, the Enterprise Loss Reserves and the
Liberty Loss Reserves under the Existing Agreement, and to make certain other
amendments;
WHEREAS, on the terms and conditions set forth herein, the parties
hereto consent to such amendments;
WHEREAS, the Existing Agreement requires that the consent of those Bank
Investors which hold Commitments aggregating in excess of 66 and 2/3% of the
Facility Limit as of the date hereof be obtained, and the consent of any Bank
Investor whose Commitment is increased hereby;
WHEREAS, the Bank Investors whose Commitments are being increased
hereby are Bank of America, N.A., The Bank of Nova Scotia and Credit Lyonnais
New York Branch; and
WHEREAS, capitalized terms used herein shall have the meanings assigned
to such terms in the Existing 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 "Atlantic
Facility Limit" is hereby amended by deleting the amount "$102,000,000" in the
text thereof and replacing it with the amount "$132,600,000".
(b) The definition of "Atlantic Loss Reserve" is hereby amended by
deleting the amount "$8,000,000" in the text thereof and replacing it with the
amount "$10,400,000".
(c) The definition of "Atlantic Maximum Net Investment" is hereby
amended by deleting the amount "$100,000,000" in the text thereof and replacing
it with the amount "$130,000,000".
(d) The definition of "Enterprise Facility Limit" is hereby amended by
deleting the amount "$255,000,000" in the text thereof and replacing it with the
amount "$331,500,000".
(e) The definition of "Enterprise Loss Reserve" is hereby amended by
deleting the amount "$20,000,000" in the text thereof and replacing it with the
amount "$26,000,000".
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(f) The definition of "Enterprise Maximum Net Investment" is hereby
amended by deleting the amount "$250,000,000" in the text thereof and replacing
it with the amount "$325,000,000".
(g) The definition of "Liberty Facility Limit" is hereby amended by
deleting the amount "$153,00,000" in the text thereof and replacing it with the
amount "$198,900,000".
(h) The definition of "Liberty Loss Reserve" is hereby amended by
deleting the amount "$12,000,000" in the text thereof and replacing it with the
amount "$15,600,000".
(i) The definition of "Liberty Maximum Net Investment" is hereby
amended by deleting the amount "$150,000,000" in the text thereof and replacing
it with the amount "$195,000,000".
SECTION 2. Commitments. Effective as of the date hereof, the Commitment
of the Bank Investors shall be as set forth opposite their respective signatures
on the signature pages hereto.
SECTION 3. Conditions Precedent. This Amendment shall not become
effective until the Agent shall have received the following:
(a) A copy of the Resolutions of the Board of Directors of the
Transferor and Tech Data certified by its Secretary approving this Amendment and
the other documents to be delivered by the Transferor and Tech Data hereunder
delivered to the Agent;
(b) A Certificate of the Secretary of the Transferor and Tech
Data certifying (i) the names and signatures of the officers authorized on its
behalf to execute this Amendment and any other documents to be delivered by it
hereunder (on which Certificates Enterprise, Liberty, Atlantic, the Enterprise
Agent, the Liberty Agent, the Atlantic Agent, the Agent and the Bank Investors
may conclusively rely until such time as the Agent shall receive from the
Transferor and Tech Data a revised Certificate meeting the requirements of this
clause (b)(i)), (ii) the Articles of Incorporation of the Transferor and of
TechData certified by the Secretary of State or other similar official of the
Transferor's and Tech Data's
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respective jurisdictions of incorporation and (iii) a copy of the Transferor's
and Tech Data's By-Laws;
(c) An opinion of Xxxxx Xxxxxx, counsel to Tech Data, with
respect to certain corporate matters and the enforceability of the Agreement as
amended hereby in form and substance acceptable to the Agent; and
(d) A responsible officer's certificate of the Transferor and
Tech Data executed by Xxxxxx X. Xxxxxxxxx, Secretary of the Transferor and Tech
Data, respectively.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Transferor hereby makes
to Enterprise, Liberty and Atlantic, on and as of the date hereof, all of the
representations and warranties set forth in Section 3.1 of the Existing
Agreement. In addition, the Collection Agent and the Guarantor hereby make to
Enterprise, Liberty and Atlantic, on the date hereof, all the representations
and warranties set forth in Section 3.3 of the Existing Agreement.
SECTION 5. AMENDMENT AND WAIVER. No provision hereof may be amended,
waived, supplemented, restated, discharged or terminated without the written
consent of the Transferor, Enterprise, Liberty, Atlantic, the Enterprise Agent,
the Liberty Agent, the Atlantic Agent, the Agent and the Majority Investors.
SECTION 6. SUCCESSORS AND ASSIGNS. This Amendment shall bind, and the
benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; provided, however, the Transferor may not
assign any of its rights or delegate any of its duties under this Amendment
without the prior written consent of Enterprise, Liberty and Atlantic.
SECTION 7. 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.
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SECTION 8. SEVERABILITY; COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9. 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 10. RATIFICATION. Except as expressly affected by the
provisions hereof, the Existing 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 Existing Agreement to "this Agreement", "hereunder", "herein" or words of
like import shall mean and be a reference to the Existing Agreement as amended
by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
By: /s/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.
By: CREDIT LYONNAIS NEW YORK
BRANCH,
as attorney-in-fact
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: Vice President
LIBERTY STREET FUNDING CORP.
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
TECH DATA FINANCE, INC.,
as Transferor
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Chief
Financial Officer and
Secretary
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TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
and Secretary
COMMITMENT BANK OF AMERICA, N.A., as Agent,
$281,500,000 Enterprise Agent
and as an Enterprise Bank Investor
By: /s/ XXXX XXXXXXX
---------------------------------
Name: Xxxx Xxxxxxx
Title: Principal
COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH,
$132,600,000 as Atlantic Agent and as an
Atlantic Bank Investor
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: Vice President
COMMITMENT THE BANK OF NOVA SCOTIA, as Liberty
$198,900,000 Agent and as a Liberty Bank
Investor
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: Director
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Consented and agreed to this 9th
day of November, 1999
COMMITMENT THE ROYAL BANK OF CANADA, as an
$50,000,000 Enterprise Bank Investor
By: /s/ XXXXXX X. [ILLEGIBLE]
---------------------------------
Name: Xxxxxx X. [ILLEGIBLE]
Title: Senior Manager
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AMENDMENT NUMBER 2 TO SECOND
AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 2 TO SECOND AMENDED AND RESTATED TRANSFER AND
ADMINISTRATION AGREEMENT (this "AMENDMENT"), dated as of February 9, 2000, among
TECH DATA CORPORATION, a Florida corporation ("TECH DATA"), as collection agent
and guarantor (in such capacities, the "COLLECTION AGENT" and the "GUARANTOR",
respectively), TECH DATA FINANCE, INC., a California corporation, as transferor
(in such capacity, the "TRANSFEROR"), ENTERPRISE FUNDING CORPORATION, a Delaware
corporation ("ENTERPRISE"), ATLANTIC ASSET SECURITIZATION CORP. ("ATLANTIC"), a
Delaware corporation, LIBERTY STREET FUNDING CORP. ("LIBERTY"), a Delaware
corporation, CREDIT LYONNAIS NEW YORK BRANCH, a branch duly licensed under the
laws of the State of New York of a banking corporation organized and existing
under the laws of the Republic of France ("CREDIT LYONNAIS"), as an Atlantic
Bank Investor and as agent for Atlantic and the Atlantic Bank Investors (in such
capacity, the "ATLANTIC AGENT"), THE BANK OF NOVA SCOTIA, a banking corporation
organized and existing under the laws of Canada, acting through its New York
Agency, ("SCOTIA BANK"), as a Liberty Bank Investor and as agent for Liberty and
the Liberty Bank Investors (in such capacity, the "LIBERTY AGENT") and BANK OF
AMERICA, N.A. (as successor by merger to NationsBank, N.A.), a national banking
association ("BANK OF AMERICA"), as agent for Enterprise, Atlantic, Liberty, the
Enterprise Bank Investors, the Atlantic Bank Investors and the Liberty Bank
Investors (in such capacity, the "AGENT"), as an Enterprise Bank Investor and as
agent for Enterprise and the Enterprise Bank Investors (in such capacity, the
"ENTERPRISE AGENT"), amending that certain Second Amended and Restated Transfer
and Administration Agreement dated as of February 10, 1999, and as amended to
the date hereof (the "EXISTING AGREEMENT" and said agreement as amended by this
Amendment, the "AGREEMENT" ).
WHEREAS, the Transferor has requested that the Investors and the Agent
agree to extend the Enterprise Commitment Termination Date, the Liberty
Commitment Termination Date and the Atlantic Commitment Termination Date, and to
make certain other amendments;
WHEREAS, on the terms and conditions set forth herein, the parties
hereto consent to such amendments;
WHEREAS, the Existing Agreement requires that the consent of those Bank
Investors which hold Commitments aggregating in excess of 66 and 2/3% of the
Facility Limit as of the date hereof be obtained, and the consent of any Bank
Investor whose Commitment is extended hereby;
WHEREAS, the Bank Investors whose Commitments are being extended hereby
are Bank of America, N.A., The Bank of Nova Scotia, Credit Lyonnais New York
Branch and Banque Nationale de Paris; and
WHEREAS, the Bank One, NA will become an Enterprise Bank Investor to
the Agreement as of the date hereof;
WHEREAS, capitalized terms used herein shall have the meanings assigned
to such terms in the Existing 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 "Atlantic Commitment Termination Date" is hereby
amended by deleting the date "February 9, 2000" in the text thereof and
replacing it with the date "May 9, 2000".
(b) The definition of "Enterprise Commitment Termination Date" is
hereby amended by deleting the date "February 9, 2000" in the text thereof and
replacing it with the date "May 9, 2000".
(c) The definition of "Liberty Commitment Termination Date" is hereby
amended by deleting the date "February 9, 2000" in the text thereof and
replacing it with the amount "May 9, 2000".
(d) The definition of "Applicable Margin" is hereby deleted in its
entirety.
(e) The definition of "CD Rate" is hereby amended to delete the
reference to "the Applicable Margin" contained therein and to substitute a
reference of "1.50%" therefor.
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(f) The definition of "Eurodollar Rate" is hereby amended to delete the
reference to "the Applicable Margin" contained therein and to substitute a
reference of "1.25%" therefor.
SECTION 2. AMENDMENTS TO THE EXISTING AGREEMENT.
Section 5.3(a)(iii) is hereby amended to delete the words "and showing
all information necessary in order to determine the Applicable Margin" contained
at the end of the section thereof.
Section 7.2(a) is hereby amended to delete the words "the Majority
Investors" contained therein and to substitute the words "at least 51% of the
aggregate Commitments of the Enterprise Bank Investors, Atlantic Bank Investors
and the Liberty Bank Investors" therefor.
SECTION 3. COMMITMENTS. Effective as of the date hereof, the Commitment
of the Bank Investors shall be as set forth opposite their respective signatures
on the signature pages hereto.
SECTION 4. CONDITIONS PRECEDENT. This Amendment shall not become
effective until the Agent shall have received seven (7) duly executed copies of
this Amendment from each party hereto.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Transferor hereby makes
to each Investor and the Agent, on and as of the date hereof, all of the
representations and warranties set forth in Section 3.1 of the Existing
Agreement. In addition, the Collection Agent and the Guarantor hereby make to
each Investor and the Agent, on the date hereof, all the representations and
warranties set forth in Section 3.3 of the Existing Agreement.
SECTION 6. AMENDMENT AND WAIVER. No provision hereof may be amended,
waived, supplemented, restated, discharged or terminated without the written
consent of the Transferor, Enterprise, Liberty, Atlantic, the Enterprise Agent,
the Liberty Agent, the Atlantic Agent, the Agent and the Majority Investors.
SECTION 7. SUCCESSORS AND ASSIGNS. This Amendment shall bind, and the
benefits hereof shall inure to the parties hereof and their respective
successors and permitted assigns; PROVIDED, HOWEVER, the Transferor may not
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assign any of its rights or delegate any of its duties under this Amendment
without the prior written consent of the Agent and the Majority Investors.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRANSFEROR
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT
SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9. SEVERABILITY; COUNTERPARTS. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
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 10. CAPTIONS. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 11. RATIFICATION. Except as expressly affected by the
provisions hereof, the Existing 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 Existing Agreement to "this Agreement", "hereunder", "herein" or words of
like import shall mean and be a reference to the Existing Agreement as amended
by this Amendment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
ENTERPRISE FUNDING CORPORATION,
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.
By: CREDIT LYONNAIS NEW YORK
BRANCH,
as attorney-in-fact
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: Director
LIBERTY STREET FUNDING CORP.
By: /s/ XXXXXX X. XXXXX
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
TECH DATA FINANCE, INC.,
as Transferor
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, CFO and
Secretary
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TECH DATA CORPORATION,
as Collection Agent and Guarantor
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Treasurer
and Secretary
COMMITMENT BANK OF AMERICA, N.A., as Agent,
$281,500,000 Enterprise Agent
and as an Enterprise Bank Investor
By: /s/ XXXXX XXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COMMITMENT CREDIT LYONNAIS NEW YORK BRANCH,
$117,600,000 as Atlantic Agent and as an
Atlantic Bank Investor
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: Director
COMMITMENT THE BANK OF NOVA SCOTIA, as Liberty
$198,900,000 Agent and as a Liberty Bank
Investor
By: /s/ [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title:
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Consented and agreed to this 9th
day of February, 2000
COMMITMENT BANK ONE, NA (Main Office Chicago),
$50,000,000 as an Enterprise Bank Investor
By: /s/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
COMMITMENT BANQUE NATIONALE DE PARIS, as an
$15,000,000 Atlantic Bank Investor
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Xxxxx: SVP
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