EXHIBIT 10-AAn
AMENDMENT NUMBER 4 TO
TRANSFER AND ADMINISTRATION AGREEMENT
AMENDMENT NUMBER 4 TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of March 6, 2003 among TECH DATA CORPORATION ("Tech
Data"), a Florida corporation ("Tech Data"), as collection agent (in such
capacity, the "Collection Agent"), TECH DATA FINANCE SPV, INC., a Delaware
corporation headquartered in California, as transferor (in such capacity, the
"Transferor"), RECEIVABLES CAPITAL CORPORATION ("RCC"), a Delaware corporation,
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 a Atlantic Bank Investor and as agent for
Atlantic and the Atlantic Bank Investors (in such capacity, the "Atlantic
Agent"), THE BANK OF NOVA SCOTIA, a banking corporation organized and existing
under the laws of Canada, acting through its New York Agency ("Scotia Bank"), as
a Liberty Bank Investor and as agent for Liberty and the Liberty Bank Investors
(in such capacity, the "Liberty Agent"), ABN AMRO BANK N.V., a banking
corporation organized and existing under the laws of the Netherlands and acting
through its Chicago Branch ("ABN AMRO"), as an AFC Bank Investor and as agent
for AFC and the AFC Bank Investors (in such capacity, the "AFC Agent"), BANK
ONE, NA (having its main office in Chicago, Illinois), a national banking
association ("Bank One"), as a Falcon Bank Investor and as agent for Falcon and
the Falcon Bank Investors (in such capacity, the "Falcon Agent"), BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, a branch duly licensed under the laws
of New York of a banking corporation organized and existing under the laws of
the Federal Republic of Germany ("HypoVereinsbank"), as a Black Forest Bank
Investor and as agent for Black Forest and the Black Forest Bank Investors (in
such capacity, the "Black Forest Agent"), Lloyds TSB Bank plc, as an Atlantic
Bank Investor and as an RCC Bank Investor 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) Effective as of January 31, 2003, the definition of
"Consolidated Net Income" set forth in Exhibit N to the Original Agreement is
hereby deleted and replaced with the following (solely for convenience added or
changed language is italicized):
""Consolidated Net Income" means the gross revenues of Collection
Agent and its Subsidiaries less all operating and non-operating expenses of
Collection Agent and its Subsidiaries, plus or minus minority interest of a
Person, including taxes on income, and plus any non-cash charges due to
impairments in accordance with the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 142, but excluding as income:
(i) gains or losses on the sale, conversion or other disposition of capital
assets, (ii) gains or losses on the acquisition, retirement, sale or other
disposition of capital stock and other securities
of Collection Agent or any Subsidiary, (iii) gains or losses on the collection
of proceeds of life insurance policies, (iv) any write-up of any asset, (v) any
gain or loss arising by reason of any foreign exchange transaction adjustment
and (vi) any other gain or loss or credit of an extraordinary nature as
determined in accordance with GAAP."
(b) Effective as of March 13, 2003, the definition of "Official
Body" is hereby deleted and replaced with the following (solely for convenience
added or changed language is italicized):
""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, or any accounting board or authority
(whether or not a part of government) which is responsible for the establishment
or interpretation of national or international accounting principles, in each
case whether foreign or domestic."
SECTION 2. Effective as of March 13, 2003, Section 8.2(b) of the
Agreement is hereby deleted and replaced with the following (solely for
convenience added or changed language is italicized):
(b) If any Indemnified Party shall have determined that (a)
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 or administration thereof by any Official Body, or any
request or 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, or (b) any interpretation of Accounting Research Bulletin No. 51
by the Financial Accounting Standards Board or any application of such standard
or of any interpretation thereof, 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, directive, interpretation
or application (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.
SECTION 3. 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 Corporate Officer approving this
Amendment and the other documents to be delivered by the Transferor and Tech
Data hereunder; and
(b) A Certificate of the Corporate Officer 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 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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.
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, CFO, Treasurer,
and Secretary
TECH DATA CORPORATION,
as Collection Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Corporate Vice President, 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/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
LIBERTY STREET FUNDING CORP.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
AMSTERDAM FUNDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx III
--------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Authorized Signatory
BLACK FOREST FUNDING CORPORATION
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent, RCC
Agent and as an RCC Bank Investor
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Atlantic Agent and as an Atlantic Bank
Investor
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as Liberty
Agent and as a Liberty Bank Investor
By: /s/ Xxxxxx Last
--------------------------------------
Name: Xxxxxx Last
Title: Managing Director
ABN AMRO BANK N.V., as AFC Agent
and as an AFC Bank Investor
By: /s/ Xxxxxxx Xxx
--------------------------------------
Name: Xxxxxxx Xxx
Title: Group Vice President
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BANK ONE, NA (having its main office
in Chicago Illinois), as Falcon Agent
and as a Falcon Bank Investor
By: /s/ Xxxxxx X. Xxxxxxx III
--------------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Director, Capital Markets
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
as Black Forest Agent and Black Forest Bank Investor
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Director
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
LLOYDS TSB BANK PLC,
as an Atlantic Bank Investor
By: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President
Structured Finance, W154
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
Structured Finance, H020
LLOYDS TSB BANK PLC,
as an RCC Bank Investor
By: /s/ Xxxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Vice President
Structured Finance, W154
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
Structured Finance, H020
