FIRST AMENDMENT TO WAIVER AGREEMENT
Exhibit 10-BBy
FIRST AMENDMENT TO
THIS FIRST AMENDMENT TO WAIVER AGREEMENT dated as of July 29, 2013 (the “Agreement”) is entered into among Tech Data Corporation, a Florida corporation (the “Borrower”), the Lenders party hereto, the Guarantors party hereto and Bank of America, N.A., as Administrative Agent. All capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Lenders and Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer entered into that certain Credit Agreement dated as of September 27, 2011 (as amended or modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower, the Required Lenders and Bank of America, N.A., as Administrative Agent entered into that certain Waiver Agreement dated as of April 30, 2013 (the “Waiver Agreement”); and
WHEREAS, the Borrower has requested, and the Required Lenders have agreed, to certain amendments to the Waiver Agreement, as more specifically set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment. The Waiver Agreement is hereby amended as follows:
(a) In the fifth Recital to the Waiver Agreement, clause (i), which includes the definition of “Affected Quarterly Financial Statements”, is hereby amended to refer to “its financial statements for the fiscal quarters ending April 30, 2013 and July 31, 2013”.
(b) In Section 1(a) of the Waiver Agreement, each reference to “July 31, 2013” is hereby replaced with a reference to “October 31, 2013”.
(c) The proviso at the end of Section 1(b) of the Waiver Agreement is hereby amended and restated in its entirety to read as follows:
“provided that it is understood and agreed that failure of the Borrower to deliver restated Prior Financial Statements on or before October 31, 2013 (which may be provided as part of the Borrower’s Annual Report on Form 10-K for fiscal year ended January 31, 2013) showing results for consolidated net income that are substantially consistent (within $20,000,000) with the estimates of consolidated net income reductions included in Part IV of the SEC Filing, shall constitute an immediate Event of Default, except as may be further amended upon mutual agreement between the Borrower and the Required Lenders; and”
(d) Section 1(c) of the Waiver Agreement is hereby amended and restated in its entirety to read as follows:
“(c) waive any Default that may occur pursuant to Section 9.01(e) of the Credit Agreement as a result of violations of any agreement or instrument governing Indebtedness or a Guarantee of the Borrower due to (i) the Specified Matters or (ii) the failure to file with the SEC or to transmit to holders thereunder the 2013 Financial Statements or the Affected Quarterly Financial Statements as and when required by the terms thereof (A) in the case of the any agreement or instrument governing Indebtedness of the Borrower (other than Material Debt Agreements (as defined below)), until the earlier of (x) September 30, 2013 and (y) the date of acceleration of such Indebtedness or enforcement of a lien securing such Indebtedness, and (B) in the case of Material Debt Agreements, until the earlier of (x) August 15, 2013 and (y) the date of acceleration of such Indebtedness or enforcement of a lien securing such Indebtedness.”
(e) In the last paragraph of Section 1 of the Waiver Agreement, clause (i) is amended and restated in its entirety to read as follows:
“(i) the Fourth Amended and Restated Participation Agreement, dated as of June 27, 2013, among the Borrower, as lessee, SunTrust Bank, as lessor, SunTrust Equity Funding, LLC, as agent, and the Lenders party thereto from time to time,”
(f) In the last paragraph of Section 1 of the Waiver Agreement, clause (iii) is amended and restated in its entirety to read as follows:
“(iii) the Fourth Amended and Restated Lease Agreement, dated as of June 27, 2013, between SunTrust Bank, as lessor and the Borrower, as lessee.”
2. Condition Precedent. This Agreement shall be effective upon receipt by the Administrative Agent of counterparts of this Agreement duly executed by the Borrower, the Guarantors, the Required Lenders and the Administrative Agent.
3. Miscellaneous.
(a) The Credit Agreement, and the obligations of the Loan Parties thereunder and under the other Loan Documents, are hereby ratified and confirmed and shall remain in full force and effect according to their terms.
(b) Each Guarantor (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its obligations under the Loan Documents and (iii) agrees that this Agreement and all documents executed in connection herewith do not operate to reduce or discharge its obligations under the Facility Guaranty or the Loan Documents.
(c) Except as expressly provided herein, the amendments set forth herein do not modify or affect the Loan Parties’ obligations to comply fully with (i) the terms of Sections 5.02, 7.01, 7.02, 7.03, 7.08, 7.09 or 7.13 of the Credit Agreement for any future periods or any other duty, term, condition or covenant contained in the Credit Agreement or any other Loan Document, including, but not limited, to satisfaction of Section 8.13 for the fiscal year ending January 31, 2013 or (ii) the terms of Section 8.13 for any period covered by the Prior Financial Statements. The above amendments are limited solely to the waivers provided in the Waiver Agreement and nothing contained in this Agreement shall be deemed to constitute a waiver of any other rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Loan Document or under applicable law.
(d) After giving effect to this Agreement, the Borrower represents and warrants to the Lenders that (i) except with respect to the Specified Matters, the representations and warranties of the Borrower set forth in Article VI of the Credit Agreement and in each other Loan Document are true and correct in all material respects as of the date hereof with the same effect as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate solely to an earlier date, in which case they were true and correct as of such earlier date and (ii) except with respect to the Specified Matters, no event has occurred and is continuing which constitutes a Default or an Event of Default.
(e) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall be effective as an original and shall constitute a representation that an executed original shall be delivered.
(f) The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning thereof.
(g) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
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Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first above written.
BORROWER: TECH DATA CORPORATION,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Treasurer
GUARANTORS: TECH DATA PRODUCT MANAGEMENT, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Treasurer
TECH DATA FINANCE PARTNER, INC.,
a Florida corporation
By: /s/ XXXXXXX X. XXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Treasurer
ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Director
LENDERS: BANK OF AMERICA, N.A.,
as a Lender
By: /s/ XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Director
SunTrust Bank__________________,
as a Lender
By: /s/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Director
U.S. Bank National Association,
as a Lender
By: /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CITIBANK, N.A_____,
as a Lender
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President
Branch Banking and Trust Company_____,
as a Lender
By: /s/ XXXXX XXXXXXX
Name: Xxxxx Xxxxxxx
Title: Banking Officer
UniCredit Bank AG, New York Branch_____,
as a Lender
By: /s/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ XXXXXX XXXXXXXXXXXX
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
The Bank of Nova Scotia,
as a Lender
By: /s/ XXXXXXXXXXX XXXX
Name: Xxxxxxxxxxx Xxxx
Title: Director
THE ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: Director
Skandinaviska Enskilda Xxxxxx XX (publ),
as a Lender
By: /s/ XXXXXX XXXX
Name: Xxxxxx Xxxx
Title:
By: /s/ XXXXX XXXXXXX-PARK
Name: Xxxxx Xxxxxxx-Park
Title:
JPMorgan Chase Bank, N.A.,
as a Lender
By: /s/ XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Senior Underwriter
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