EXHIBIT 10.ww
AMENDMENT AGREEMENT NO. 1
TO THE REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 1 (the "Amendment Agreement"), dated as of
June 29, 1998 to the REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT dated as of
August 28, 1997 (the "Credit Agreement"), made by and among TECH DATA
CORPORATION ("TDC") and TECH DATA FRANCE, S.N.C., as Multicurrency Facilities
Borrowers, TECH DATA CANADA INC., as Canadian Facilities Borrower (collectively,
the "Borrowers"), the financial institutions from time to time party to the
Credit Agreement (collectively, the "Lenders"), NATIONSBANK, NATIONAL
ASSOCIATION, as agent for the Lenders (in such capacity, the "Agent") and
CANADIAN IMPERIAL BANK OF COMMERCE, as Canadian Agent. Capitalized terms which
are used herein without definition shall have the meaning set forth in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Agent and the Canadian Agent
have entered into the Credit Agreement; and
WHEREAS, TDC has entered into an agreement to acquire a controlling
interest in Computer 2000 AG which Acquisition requires the consent of the
Required Lenders; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to the Acquisition of Computer 2000 AG and amend the Credit Agreement as
provided herein; and
WHEREAS, upon the terms and conditions contained herein the Agent and
the Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective upon the acquisition of Computer
2000 AG, as follows:
(a) Notwithstanding the provisions of the Credit Agreement to
the contrary, in light of the acquisition of Computer 2000 AG and the
continued existence of certain existing indebtedness of Computer 2000
AG as permitted by this Amendment Agreement, effective upon the date of
acquisition of Computer 2000 AG and until the delivery of the
certificate described in SECTION 8.01(B)(III) for the period ending
January 31, 1999, the "Applicable Interest Addition" shall be
determined solely on the basis of the ratio of Consolidated Senior
Indebtedness to Consolidated Total Capital and, for a Floating CD Loan
and Fixed CD Loan, shall not be less than .525% and, for a Eurodollar
Rate Loan,
shall not be less than .40% and the "Applicable Unused Fee" shall not
be less than .1375%;
(b) The definition of Consolidated Current Liabilities is
hereby amended by deleting the reference "Section 9.07(vii)" in clause
(c) and inserting in lieu thereof the reference "Section 9.07(vii) and
(ix)."
(c) The definition of Indebtedness for Money Borrowed is
hereby amended by deleting such definition in its entirety and
inserting in lieu thereof the following:
"'Indebtedness for Money Borrowed' means, for any
Person, (i) all indebtedness, obligations and liabilities of
such Person for money borrowed which are evidenced by bonds,
debentures, notes or other similar instruments, (ii) the
purchase price of Eligible Receivables (as defined in the
Transfer and Administration Agreement) sold pursuant to the
Trade Receivables Purchase Facility, (iii) the proceeds
derived from any transfer of assets permitted under SECTION
9.09(VI) and (iv) all Capital Leases which have been
capitalized in accordance with Generally Accepted Accounting
Principles; provided, however, the term "Indebtedness for
Money Borrowed" shall specifically exclude payroll
indebtedness and trade indebtedness incurred in the ordinary
course of business (including trade indebtedness through
financial intermediaries) provided such trade indebtedness has
a maturity of less than one year;"
(d) SECTION 9.07 is hereby amended by deleting clauses (vi),
(vii) and (viii) and inserting in lieu thereof the following five
clauses:
"(vi) Indebtedness not otherwise permitted under this
Section 9.07 which does not exceed the aggregate amount at any
time outstanding of $300,000,000, so long as after giving
effect thereto no Default or Event of Default exists
hereunder;
(vii) any obligations arising under the Transfer and
Administration Agreement;
(viii) any Indebtedness permitted under SECTION
9.10(vii);
(ix) Indebtedness of up to an aggregate principal
amount of $200,000,000 of Computer 2000 AG and its
Subsidiaries secured by accounts receivable of such entities;
PROVIDED, however, that the proceeds derived from any transfer
of assets permitted under SECTION 9.09(vi) shall be deemed to
be Indebtedness for purposes of this SECTION 9.07(ix); and
(x) Indebtedness of Computer 2000 AG and its
Subsidiaries that may be outstanding from time to time under
credit facilities existing as of the date of acquisition of a
controlling interest in Computer 2000 AG by TDC or a
Subsidiary
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of TDC (the "Existing Indebtedness"); PROVIDED, however, that
such Existing Indebtedness must be reduced to an amount on or
before November 30, 1998, which, when combined with
Indebtedness incurred pursuant to SECTION 9.07(vi), does not
exceed $300,000,000 at such time and at all times thereafter."
(e) SECTION 9.08 is hereby amended by (a) deleting the word
"and" at the end of clause (vi), (b) deleting the period at the end of
clause (vii) and inserting in lieu thereof a semi-colon and (c) adding
two new clauses (viii) and (ix) which clauses shall read as follows:
"(viii) Liens on accounts receivable of Computer 2000
AG and its Subsidiaries securing Indebtedness permitted under
SECTION 9.07(ix); and
(ix) Liens on assets of Computer 2000 AG and its
Subsidiaries securing Existing Indebtedness; PROVIDED,
however, that commencing December 1, 1998, such Liens shall be
permitted to secure an aggregate maximum amount of
$150,000,000 in Existing Indebtedness; PROVIDED FURTHER, that
such Liens shall not encumber assets located in the United
States of America and that the Existing Indebtedness secured
by such Liens must be incurred by such borrowers, and be
funded by lending offices of financial institutions, located
outside of the United States of America."
(f) SECTION 9.09 is hereby amended by (a) deleting the word
"and" at the end of clause (iv), (b) deleting the period at the end of
clause (v) and inserting in lieu thereof a semi-colon and the word
"and" and (c) adding a new clause (vi) which clause shall read as
follows:
"(vi) sales, dispositions, or transfers of accounts
receivable of Computer 2000 AG; PROVIDED, however, that the
proceeds derived from any transfer of assets described in this
SECTION 9.09(vi) shall be deemed to be Indebtedness for
purposes of SECTION 9.07(ix)."
(g) SCHEDULE 7.02(a) to the Credit Agreement is hereby deleted
in its entirety and replaced in lieu thereof with SCHEDULE 7.02(a)
attached hereto.
2. Each Lender by its execution of this Amendment Agreement consents to
the acquisition by TDC or a Subsidiary of TDC of a controlling interest in
Computer 2000 AG upon the terms and conditions described on EXHIBIT 1 attached
hereto. Notwithstanding SECTION 8.20 to the contrary, TDC shall have a period of
90 days to provide to the Agent, in form and substance satisfactory to the
Agent, a pledge of 65% of the capital stock or ownership interest in the first
tier foreign subsidiary of TDC which is the owner, either directly or
indirectly, of Computer 2000 AG.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrowers hereby represent
and warrant that the Credit
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Agreement has been re-examined by the Borrowers and that except as disclosed by
any Borrower in writing to the Lenders as of the date hereof:
a. The representations and warranties made by the Borrowers in
Article VII thereof are true on and as of the date hereof except that
the financial statements referred to in SECTION 7.01 shall be those
most recently furnished to the Agent pursuant to SECTION 8.01;
b. There has been no material adverse change in the condition,
financial or otherwise, of the Borrowers and their Subsidiaries since
the date of the most recent financial reports of the Borrowers
delivered to the Agent under SECTION 8.01 thereof, other than changes
in the ordinary course of business, none of which has been a material
adverse change;
c. The business and properties of the Borrowers and their
Subsidiaries are not, and since the date of the most recent financial
reports of the Borrowers delivered to the Agent under SECTION 8.01
thereof, have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation
or loss of any major contracts; and
d. After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrowers under the Credit Agreement or the Notes,
either immediately or with the lapse of time or the giving of notice,
or both.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
a. twenty-four (24) counterparts of this Amendment Agreement
duly executed by the Borrowers, the Guarantors, the Agent and the
Required Lenders; and
b. copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrowers relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty.
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Each of the parties hereto acknowledges that, except as in this Amendment
Agreement otherwise expressly stated, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach thereof.
6. CONSENT OF GUARANTORS. The Guarantors have joined in the execution
of this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of Obligations of the Borrowers as
provided in the Guaranties.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. EACH BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Lenders, the Agent and their
respective successors, assigns and legal representatives; PROVIDED, HOWEVER,
that the Borrower, without the prior consent of the Lenders, may not assign any
rights, powers, duties or obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: TECH DATA CORPORATION
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
WITNESS: Managing Director
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: President
TECH DATA CANADA INC.
WITNESS:
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: Secretary and Chief Financial Officer
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MULTICURRENCY FACILITIES GUARANTORS:
TECH DATA WORLDWIDE PARTNERS, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
TECH DATA PRODUCT MANAGEMENT, INC.
WITNESS:
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
WITNESS: TECH DATA FINANCE, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: President
7
CANADIAN FACILITIES GUARANTORS:
TECH DATA CORPORATION
TECH DATA WORLDWIDE PARTNER, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
WITNESS: TECH DATA PRODUCT MANAGEMENT, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
WITNESS: TECH DATA FINANCE, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: President
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
Managing Director
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
--------------------------- -----------------------------------
/s/ XXXXX X. XXXXXX Name: Xxxxxxx X. Xxxxxxx
---------------------------- Title: Executive Vice President of Finance and
Chief Financial Officer
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NATIONSBANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By: /s/ XXXXXXX X. X'XXXXXX
-------------------------------------------
Name: XXXXXXX X. X'XXXXXX
Title: VICE PRESIDENT
9
CIBC, INC., as Domestic Facilities Lender
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------------
Name: XXXXXXXXX XXXXXXX
Title: EXECUTIVE DIRECTOR
CIBC Xxxxxxxxxxx Corp., AS AGENT
10
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Facilities Lender
By: /s/ XXXXX XXXXXXXX
-------------------------------------------
Name: XXXXX XXXXXXXX
Title: EXECUTIVE DIRECTOR
By:
-------------------------------------------
Name:
Title:
00
XXXXXXXXXX XXXXXXXXXXX XX,
XXX XXXX BRANCH
By: /s/ X. XXXXXXX
-------------------------------------------
Name: X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXX
Title: ASSISTANT TREASURER
12
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: XXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT & MANAGER
13
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ ANDRE HEITBAUM
-------------------------------------------
Name: ANDRE HEITBAUM
Title: ASST. VICE PRESIDENT
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: DIRECTOR
14
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXX X. XXXXXXXX
-------------------------------------------
Name: XXXX X. XXXXXXXX
Title: VICE PRESIDENT
00
XXXXX XXXX XX XXXXXX
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: XXXXXXX X. XXXX
Title: SENIOR MANAGER
00
XXX XXXX XX XXXX XXXXXX
By: /s/ X.X. XXXXX
-------------------------------------------
Name: X.X. XXXXX
Title: VICE PRESIDENT
17
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXX, XX.
-------------------------------------------
Name: XXXXXXX X. XXXXXXX, XX.
Title: SVP
00
XXXXXX XXXXXXXX XX XXXXX,
XXXXXXX AGENCY
By: /s/ XXXX XXXXX
-------------------------------------------
Name: XXXX XXXXX
Xxxxx: VICE PRESIDENT
00
XXXXXXXX XXXX, XXXXX XXX
By: /s/ XXXXX X. XXX
-------------------------------------------
Name: XXXXX X. XXX
Title: VICE PRESIDENT
20
NATEXIS BANQUE
(formerly BFCE, New York Branch)
By: /s/ XXXXXX X. VAN TULDER
-------------------------------------------
Name: XXXXXX X. VAN TULDER
Title: VICE PRESIDENT AND MANAGER
MULTINATIONAL GROUP
By: /s/ XXXX XXXX
-------------------------------------------
Name: XXXX XXXX
Title: AVP
21
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By: /s/ XXXXXXX XXXXXXX
-------------------------------------------
Name: XXXXXXX XXXXXXX
Title: CHIEF REPRESENTATIVE
22
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ A.R. XXXXXX
-------------------------------------------
Name: A.R. XXXXXX
Title: FIRST VP
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------------------------
Name: XXXXXXX XXXXXXXXXX
Title: VICE PRESIDENT
23
MELLON BANK, N.A.
By: /s/ XXXXXXXXX XXXXX
-------------------------------------------
Name: XXXXXXXXX XXXXX
Title: FIRST VICE PRESIDENT
24
PNC BANK, N.A. (FORMERLY KNOWN AS PNC
BANK, KENTUCKY, INC.)
By: /s/ XXXXX X. XXXX
-------------------------------------------
Name: XXXXX X. XXXX
Title: VICE PRESIDENT
25
AMSOUTH BANK
By: /s/ XXXXX X. XXXXX
-------------------------------------------
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
26
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: VICE PRESIDENT
27
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: /s/ X.X. XXXXX
-------------------------------------------
Name: X.X. XXXXX
Title: AVP
By: /s/ XXXXX XXXX XXXXXX, JR.
-------------------------------------------
Name: XXXXX XXXX XXXXXX, JR.
Title: VICE PRESIDENT
28
AMENDMENT AGREEMENT NO. 2
TO THE REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT NO. 2 (the "Amendment Agreement"), dated as of
June 29, 1998 to the REVOLVING CREDIT AND REIMBURSEMENT AGREEMENT dated as of
August 28, 1997 (as amended by Amendment Agreement No. 1 to the Revolving Credit
and Reimbursement Agreement dated as of June 29, 1998 and as the same may be
amended or modified from time to time, the "Credit Agreement"), made by and
among TECH DATA CORPORATION ("TDC") and TECH DATA FRANCE, S.N.C., as
Multicurrency Facilities Borrowers, TECH DATA CANADA INC., as Canadian
Facilities Borrower (collectively, the "Borrowers"), the financial institutions
from time to time party to the Credit Agreement (collectively, the "Lenders"),
NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders (in such capacity,
the "Agent") and CANADIAN IMPERIAL BANK OF COMMERCE, as Canadian Agent.
Capitalized terms which are used herein without definition shall have the
meaning set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Agent and the Canadian Agent
have entered into the Credit Agreement; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to a limitation of liability of TD France under the Credit Agreement such that
TD France is liable only for Obligations arising as a result of Domestic Loans
and Domestic Advances made directly to TD France, and for TD France to change
its organizational form and become Tech Data France, S.A. and amend the Credit
Agreement as provided herein; and
WHEREAS, the Borrowers have requested the Agent and the Lenders consent
to the disposition of any one or all of Tech Data Europe Gmbh, Tech Data
Acquisition Gmbh or Macrotron AG as may be determined by the Borrowers (as so
determined, the "German Entity Disposition") and amend the Credit Agreement as
provided herein; and
WHEREAS, upon the terms and conditions contained herein the Agent and
the Lenders are willing to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. CREDIT AGREEMENT AMENDMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended as follows:
(a) Section 2.17 is hereby amended by deleting such section in
its entirety and inserting in lieu thereof the following:
"Section 2.17 ONE LOAN. (a) All Domestic Loans and
Domestic Advances by the Multicurrency Facilities Lenders to
any Multicurrency Facilities Borrower shall constitute the
joint and several general obligation of each of the
Multicurrency Facilities Borrowers other than TD France. Each
Multicurrency Facilities Borrower other than TD France shall
be jointly and severally liable to the Agent and the
Multicurrency Facilities Lenders for all Obligations hereunder
in respect of Multicurrency Facilities, regardless of whether
such Obligations arise as a result of Domestic Advances to
such Borrower, it being stipulated and agreed that Domestic
Advances hereunder to any Multicurrency Facilities Borrower
inure to the benefit of each of the Multicurrency Facilities
Borrowers, and that the Multicurrency Facilities Lenders are
relying on the joint and several liability of the
Multicurrency Facilities Borrowers, other than TD France, in
extending credit under the Multicurrency Facilities.
Notwithstanding any other provision contained herein to the
contrary, TD France shall be liable only for Obligations
arising as a result of Domestic Loans and Domestic Advances
made directly to TD France.
(b) Each Multicurrency Facilities Borrower other than
TD France guarantees to the Multicurrency Facilities Lenders
the payment in full of all of the Obligations of the other
Multicurrency Facilities Borrowers to the Multicurrency
Facilities Lenders in respect of Multicurrency Facilities and
further guarantees the due performance by each other
Multicurrency Facilities Borrower of its respective duties and
covenants made in favor of the Agent and the Multicurrency
Facilities Lenders hereunder. Each Multicurrency Facilities
Borrower agrees that the joint and several liability of the
Multicurrency Facilities Borrowers other than TD France shall
not be impaired or affected by any modification, supplement,
extension or amendment of any contract or agreement to which
the parties thereto may hereafter agree, nor by any
modification, release or other alteration of any of the rights
of the Agent and the Multicurrency Facilities Lenders with
respect to any collateral, nor by any delay, extension of
time, renewal, compromise or other indulgence granted by the
Agent and the Multicurrency Facilities Lenders with respect to
any of the Obligations, nor by any other agreements or
arrangements whatever with any other Multicurrency Facilities
Borrower, any guarantor or any other Person, each
Multicurrency Facilities Borrower hereby waiving all notice of
any such delay, extension, release, substitution, renewal,
compromise or other indulgence, and hereby consenting to be
bound thereby as fully and effectually as if it had expressly
agreed thereto in advance. The liability of each Multicurrency
Facilities Borrower, other than TD France, hereunder is direct
and unconditional as to all of the Obligations hereunder in
respect of the Multicurrency Facilities, and the liability of
TD France hereunder is direct and unconditional as to only the
Obligations arising as a result of Domestic Loans and Domestic
Advances made directly to TD France, and any such liability
may be enforced without requiring the Agent or the
Multicurrency Facilities
2
Lenders first to resort to any other right, remedy or
security; no Multicurrency Facilities Borrower shall have any
right of subrogation, reimbursement or indemnity whatsoever,
nor any right of recourse to security for any of the
Obligations in respect of the Multicurrency Facilities, unless
and until all of said Obligations have been paid in full."
2. Each Lender by its execution of this Amendment Agreement consents
to, and waives any Default or Event of Default under Sections 9.09, 10.01(d) or
10.01 (n) of the Credit Agreement as a result of, each of the following events:
(a) The German Entity Disposition by TDC or a Subsidiary of
TDC;
(b) Upon the effectiveness of the German Entity Disposition in
the event such disposed entity is Tech Data Europe Gmbh, the release by
the Agent of certain capital stock of Tech Data Europe Gmbh presently
pledged to the Agent, for itself and for the benefit of the Lenders, by
TDC pursuant to that certain Pledge of Shares dated as of August 28,
1997, by TDC in favor of the Agent for the benefit of the Lenders; and
(c) The change in organizational form of Tech Data France,
S.N.C., to become Tech Data France, S.A., provided that Tech Data
France, S.A. is the successor as a matter of law or by written
agreement satisfactory to the Agent, to all Obligations of Tech Data
France, S.N.C. existing immediately prior to such change and provided
further, that Borrowers shall deliver to the Agent an opinion of
counsel to the Borrowers satisfactory in form and substance to the
Agent as to the validity of such succession or assumption of
Obligations, as the case may be.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrowers hereby represent
and warrant that the Credit Agreement has been re-examined by the Borrowers and
that except as disclosed by any Borrower in writing to the Lenders as of the
date hereof:
(a) The representations and warranties made by the Borrowers
in Article VII thereof are true on and as of the date hereof except
that the financial statements referred to in SECTION 7.01 shall be
those most recently furnished to the Agent pursuant to SECTION 8.01;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrowers and their
Subsidiaries since the date of the most recent financial reports of the
Borrowers delivered to the Agent under SECTION 8.01 thereof, other than
changes in the ordinary course of business, none of which has been a
material adverse change;
(c) The business and properties of the Borrowers and their
Subsidiaries are not, and since the date of the most recent financial
reports of the Borrowers delivered to the
3
Agent under SECTION 8.01 thereof, have not been, adversely affected in
any substantial way as the result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo,
riot, activities of armed forces, war or acts of God or the public
enemy, or cancellation or loss of any major contracts; and
(d) After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrowers under the Credit Agreement or the Notes,
either immediately or with the lapse of time or the giving of notice,
or both.
4. CONDITIONS PRECEDENT. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(a) twenty-four (24) counterparts of this Amendment Agreement
duly executed by all signatories hereto; and
(b) copies of all additional agreements, instruments and
documents which the Agent may reasonably request, such documents, when
appropriate, to be certified by appropriate governmental authorities.
All proceedings of the Borrowers relating to the matters provided for herein
shall be satisfactory to the Lenders, the Agent and their counsel, which
satisfaction shall be evidenced by the execution and delivery of the applicable
signature page for such Lender or the Agent.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any preceding or succeeding
breach thereof.
6. CONSENT OF GUARANTORS. The Guarantors have joined in the execution
of this Amendment Agreement for the purposes of consenting hereto and for the
further purpose of confirming their guaranty of Obligations of the Borrowers as
provided in the Guaranties.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
4
8. COUNTERPARTS. This Amendment Agreement may be executed in any number
of counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
9. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. EACH BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF FLORIDA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
12. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of the Borrowers, the Lenders, the Agent and their
respective successors, assigns and legal representatives; PROVIDED, HOWEVER,
that the Borrower, without the prior consent of the Lenders, may not assign any
rights, powers, duties or obligations hereunder.
5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in Charlotte by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: TECH DATA CORPORATION
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
TECH DATA FRANCE, S.N.C.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
TECH DATA CANADA INC.
WITNESS:
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: SECRETARY AND CHIEF FINANCIAL OFFICER
6
MULTICURRENCY FACILITIES GUARANTORS:
TECH DATA WORLDWIDE PARTNERS, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
TECH DATA PRODUCT MANAGEMENT, INC.
WITNESS:
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
WITNESS: TECH DATA FINANCE, INC.
/s/ XXXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: PRESIDENT
7
CANADIAN FACILITIES GUARANTORS:
TECH DATA CORPORATION
TECH DATA WORLDWIDE PARTNER, INC.
TECH DATA EDUCATION, INC.
TECH DATA LATIN AMERICA, INC.
WITNESS: TECH DATA PRODUCT MANAGEMENT, INC.
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
WITNESS: TECH DATA FINANCE, INC.
/s/ XXXXXX X. XXXXXXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: PRESIDENT
TECH DATA FRANCE, S.N.C.
By: TECH DATA FRANCE, INC.,
Managing Director
/s/ XXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXXXX
-------------------------- -------------------------------------------
/s/ XXXXX X. XXXXXX Name: XXXXXXX X. XXXXXXX
-------------------------- Title: EXECUTIVE VICE PRESIDENT OF FINANCE
AND CHIEF FINANCIAL OFFICER
8
NATIONSBANK, NATIONAL ASSOCIATION, as
Agent and as a Lender
By: /s/ XXXXXXX X. X'XXXXXX
-------------------------------------------
Name: XXXXXXX X. X'XXXXXX
Title: VICE PRESIDENT
9
CIBC, INC., as Domestic Facilities Lender
By: /s/ XXXXXXXXX XXXXXXX
-------------------------------------------
Name: XXXXXXXXX XXXXXXX
Title: EXECUTIVE DIRECTOR
CIBC Xxxxxxxxxxx Corp., AS AGENT
10
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Facilities Lender
By: /s/ XXXXX XXXXXXXX
-------------------------------------------
Name: XXXXX XXXXXXXX
Title: EXECUTIVE DIRECTOR
By:
-------------------------------------------
Name:
Title:
00
XXXXXXXXXX XXXXXXXXXXX XX,
XXX XXXX BRANCH
By: /s/ X. XXXXXXX
-------------------------------------------
Name: X.XXXXXXX
Title: EVP
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXX
Title: ASSISTANT TREASURER
12
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/ XXXXX X. XXXXXX
-------------------------------------------
Name: XXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT & MANAGER
13
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ ANDRE HEITBAUM
-------------------------------------------
Name: ANDRE HEITBAUM
Title: ASST. VICE PRESIDENT
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: DIRECTOR
14
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXX X. XXXXXXXX
-------------------------------------------
Name: XXXX X. XXXXXXXX
Title: VICE PRESIDENT
00
XXXXX XXXX XX XXXXXX
By: /s/ XXXXXXX X. XXXX
-------------------------------------------
Name: XXXXXXX X. XXXX
Title: SENIOR MANAGER
00
XXX XXXX XX XXXX XXXXXX
By: /s/ X.X. XXXXX
-------------------------------------------
Name: X.X. XXXXX
Title: VICE PRESIDENT
17
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXX, XX.
-------------------------------------------
Name: XXXXXXX X. XXXXXXX, XX.
Title: SVP
00
XXXXXX XXXXXXXX XX XXXXX,
XXXXXXX AGENCY
By: /s/ XXXX XXXXX
-------------------------------------------
Name: XXXX XXXXX
Xxxxx: VICE PRESIDENT
00
XXXXXXXX XXXX, XXXXX XXX
By: /s/ XXXXX X. XXX
-------------------------------------------
Name: XXXXX X. XXX
Title: VICE PRESIDENT
20
NATEXIS BANQUE
(formerly BFCE, New York Branch)
By: /s/ XXXXXX X. VAN TULDER
-------------------------------------------
Name: XXXXXX X. VAN TULDER
Title: VICE PRESIDENT AND MANAGER
MULTINATIONAL GROUP
By: /s/ XXXX XXXX
-------------------------------------------
Name: XXXX XXXX
Title: AVP
21
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By: /s/ XXXXXXX XXXXXXX
-------------------------------------------
Name: XXXXXXX XXXXXXX
Title: CHIEF REPRESENTATIVE
22
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ A.R. XXXXXX
-------------------------------------------
Name: A.R. XXXXXX
Title: FIRST VP
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------------------------
Name: XXXXXXX XXXXXXXXXX
Title: VICE PRESIDENT
23
MELLON BANK, N.A.
By: /s/ XXXXXXXXX XXXXX
-------------------------------------------
Name: XXXXXXXXX XXXXX
Title: FIRST VICE PRESIDENT
24
PNC BANK, N.A. (FORMERLY KNOWN AS PNC
BANK, KENTUCKY, INC.)
By: /s/ XXXXX X. XXXX
-------------------------------------------
Name: XXXXX X. XXXX
Title: VICE PRESIDENT
25
AMSOUTH BANK
ATLANTA AGENCY
By: /s/ XXXXX X. XXXXX
-------------------------------------------
Name: XXXXX X. XXXXX
Title: VICE PRESIDENT
26
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: VICE PRESIDENT
27
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK,
CAYMAN ISLAND BRANCH
By: /s/ X.X. XXXXX
-------------------------------------------
Name: X.X. XXXXX
Title: AVP
By: /s/ XXXXX XXXX XXXXXX, JR.
-------------------------------------------
Name: XXXXX XXXX XXXXXX, JR.
Title: VICE PRESIDENT
28
